Sue the Electoral College in the Name of Free Speech

Kay Larson

America has never had a clearer picture of how the Electoral College disenfranchises voters: Two million people watched their voting rights being stolen from them on November 8, 2016. Hillary Clinton was the people’s choice by that margin, yet she is not president. Two million voters have had their voices silenced as surely as if they had been arrested by Russian operatives at the polling stations.

Before the Electoral College meets on Dec 19 to finalize the election results, a legal team, possibly from the ACLU, should mount a court case against the Electoral College — a class action suit on behalf of those two million people whose Constitutional rights were abrogated.

Trying to get rid of the Electoral College by a Constitutional Amendment is hopeless in the current political climate, and agonizingly slow at the best of times. But the Electoral College can be sued to ensure that each state’s electoral votes absolutely match the actual votes in that state.

For instance, Hillary Clinton won 61.59 percent of votes in California, so she should get 61.59 percent of California’s Electoral College votes and Trump should get 32.76 percent. Trump won Texas by 52.58 percent, and he should get 52.58 percent of Texas Electoral College votes; Clinton should get 43.44 percent.

Any other formula for allocating Electoral College votes is a violation of the Constitution’s strict language about protection of voter rights and freedom of speech, specifically the First Amendment and the Equal Protection Clause of the 14th Amendment.

The Constitution establishes the Electoral College but does not specify how its voting procedures will be implemented. No language in the Constitution prevents electoral ballots from being allocated proportionally to the actual vote in each state. So no Constitutional amendment is needed in order to correct this injustice.

The current practice — the winner of the popular vote in a state takes all Electoral College votes in that state — encourages situations such as the one in Florida on November 8, 2016. Trump won by 1.27 percent (49.06 percent versus Clinton’s 47.79 percent). By a thin margin of 151,300, voters gave Trump every single one of Florida’s 29 electoral votes. Trump’s total Florida vote count, 4,679,620, was very close to Clinton’s Florida vote count of 3,853,700. Trump’s voters won him Florida, and the election. But anyone who voted for Clinton might as well have stayed home: 3,853,700 votes for her were absolutely ignored. This is a shocking violation of the principle of one person, one vote.

In Common Sense, Thomas Paine tells us that “a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom.” The concession to custom is a mental habit. That demeaning phrase “popular vote” is a case in point. Each American either has one vote, or not. Right now, “not” is the operative word.

Any protest against the principle of one person, one vote is just part of the “formidable outcry in defense of custom.” Let’s start a court case to stop the Electoral College from stealing American votes. Let’s let the Constitutional protections of free speech and unhindered voting rights serve all the people, as they are designed to do.

Kay Larson is the author of Where the Heart Beats: John Cage, Zen Buddhism, and the Inner Life of Artists.