Almost a year ago, a bunch of us began talking about how to fix an increasingly dangerous flaw in the mechanics of our Republic — the Electoral College. We had just witnessed the second in the last three Presidents get elected without winning the popular vote. It was quickly becoming apparent that this was not a once-in-a-century problem, but an increasingly likely part of our democratic future.
Anyone who knows my work knows that I’ve been waging the fight for a better Republic for a long time now. Throughout that fight, I’ve looked for the root. For most of that time, I thought the root was the corrupting influence of money in politics. But in the last two years, I’ve become convinced that money is just one example of a more fundamental flaw — a Republic in which citizens are not equal.
We can see that inequality in many places—in the way campaigns raise money, in the way gerrymandering renders irrelevant Republicans in safe Democratic seats, or Democrats in safe Republican seats, and in the way votes get suppressed. But until the election in 2016, I had missed perhaps the most obvious example — the way the electoral college makes our votes unequal.
I had missed it mainly because, like death and taxes, it seemed unavoidable. Yes, the Constitution could be changed — but in theory, only. And the brilliant hack of the National Popular Vote compact had hit a thick Red wall. In theory, this was a perfect fight. In reality, it seemed like a fight that no one could win.
But then I started reading the work of both lawyers and political scientists who had thought more carefully about this question. They saw something I had missed: The real problem with the College was not the College. The real problem was in the states. The College certainly made our votes unequal. But the real damage from that inequality was produced by the states.
That damage was winner-take-all — the rule that says that the winner of the popular vote gets all of the Electoral College votes. It was because (all but two of) the states allocated their electors in a winner-take-all manner that the real harm of the College was done. Winner-take-all meant that presidential campaigns were focused on a dozen states only; winner-take-all meant that the chance of a minority-elected president was high; and winner-take-all made America vulnerable to the games evil foreign governments might play, to hack our democracy and defeat majority will.
But the point most miss is this: winner-take-all is not part of the Constitution. The states started adopting the method after the Constitution was ratified; many bemoaned that decision from the very start. And while for most of our history, the constitution provided no enforceable principle to check winner-take-all, what this writing showed me was that the most recent decisions by the Supreme Court, applying the “one person, one vote” principle to the “presidential selection process,” gave us a way to get the Court to address this critical question for our democracy — does winner-take-all violate the principle of equality built into the 14th Amendment?
The more I looked, the more I became convinced it did, and more importantly, that we could get a Court to see it. The critical change that made this possible was (ironically) the Supreme Court’s decision in Bush v. Gore (2000). Until Bush, structures that rendered voting systems unequal were tested under an “invidiousness” standard — does the rule betray invidious discrimination?—meaning basically, can you show it was adopted for some illicit purpose?
That standard would be hard to meet with winner-take-all (except in the south, where it turns out the standard was adopted in some states for the express purpose of suppressing the influence of African Americans). But in Bush, the Court found the method the Florida Supreme Court had adopted to recount votes violated the one-person, one vote principle, without any finding of invidiousness. If this is the standard now, then winner-take-all is vulnerable. Or at least, that was my conclusion at the beginning of this year.
Starting then, I tried to shop the idea to various foundations and lawyers, to get just such a case going. Again and again, I struck out. After a bit, I could always get people to see the argument. But every time, they came back to a small-c-conservative conclusion: “the Court will never follow through on that principle; there is no reason to even try.”
On about the millionth rejection, I began to recognize something important. I was spending all my time talking to winners — people who were prominent and successful because they were so good at winning. I won’t say these were members of “The Chickenshit Club” (and SERIOUSLY, if you’ve not read that EXTRAORDINARY book, stop everything RIGHT NOW and read it). They emphatically were not. Many of them had taken on impossible fights before. And if anything, they were protecting their time to take on important and difficult tasks now. But it was clear I was asking them for a huge commitment, and in the place they were now, that energy could be better devoted to causes they knew they had a real shot at winning. So they said no, and winners like this were always likely to say no.
I tried to hear in their “no’s” a reason to stop. I tried to be convinced by them that this was not a sensible fight. But the more I thought about it, and the more we researched it, the more convinced I was both (1) that we should win, and (2) that whether we won or not, this would be an excellent way to get a million Americans to see this one way that we were not equal citizens. So despite striking out even more than I did as a Little League baseball player, I decided we had to find a way to make this work.
So we turned to the Net. In the middle of September, we launched a crowdfunding campaign to raise $250,000, to make launching this case feasible. I knew I could get pro-bono legal help. But to support the expert witness fees, and the costs of preparing the case, we needed real money. And more importantly, to bring a million to this cause, we needed real infrastructure. $250k was a good down-payment. If we could raise that at the start, I was convinced we could make this a go. We didn’t have a lead lawyer. We didn’t have a clear decision about which states to file in. We didn’t have a clear path to winning. But we knew the fight was right, and we knew this was a fight we had to win. So we launched, uncertain about whether we could make it work, but certain we should try.
A week after the launch, I had an extraordinary conversation with David Boies. For anyone in the legal world, there is no reason to describe David Boies. He is perhaps the greatest litigator of our time. He was the lawyer the government hired to prosecute its antitrust trial against Microsoft. He was the lawyer who (with Ted Olson) got California to overturn its ban on gay marriage. And he was the lawyer who had argued Bush v. Gore. Given the skills we needed, and the lynchpin that Bush is, there was literally no better lawyer in the world to take this case on.
I had known Boies since the Microsoft trial, and I had spoken to him about ideas a handful of times. And as I had remembered, in this conversation too, he was lightening fast, and always three steps ahead. He saw the argument was right—and correct. He recognized it would be a difficult fight. But by the end of the call, he was convinced this was a fight we should wage. “We’ll do it,” he said. And when he did, that moment became like just a handful of others in my life that I knew I could never forget.
Boies fueled the excitement about the case. As we approached our deadline, we realized we had made a fundamental fundraising mistake: We were going to hit our target before the end of our drive. “You’re leaving $100k on the table,” my fundraiser told me. “Make a stretch goal, extend the time to raise money. DO SOMETHING!”
I resisted. We had set a goal, and we had met it. Indeed, we had set a bunch of goals, and we had met each of them.
• we saw a problem;
• we identified a solution;
• we began a rally to support the fight;
• we found the very best lawyer in the world to lead that fight;
• we raised the money we needed to get the case launched.
These were the key steps to get going, and we have succeeded with each. Now the question is just this:
What comes next?
Well, first, and obviously, planning the cases comes next. We’re meeting this week with the legal team to determine how to go forward. I am hopeful we can launch something by the end of the year.
Second, next comes not asking for money, but for help. We need to build a movement of people committed to this cause. But we need people more than committed checkbooks. We need people who are committed to the ideas and principles of this cause. I cringe as I watch org’s I had something to do with send their regular emails to the list: HERE’S ANOTHER TERRIBLE THING, so SEND US MONEY. But to do what? What’s the plan? So much of social media activism has become a machine simply to raise money to fund the machine.
That won’t be us. You helped us get to the place we said we had to be. No doubt, sometime in the future, we’ll have to ask again. But between now and then, we need your work, not your money. We need you to help us champion our cause, and spread the message. We need you to help us recruit more, by making our story something more people get.
Because here’s what I get: I am not enough. No doubt, I’ve got a pretty blue shirt, and a pretty excellent video team. But I’ve got a bizarrely large head (yea, take that however you like), and weirdly set eyes. A video with me is not going to spread wildly. And I’m way too close to the most boring legal stuff to be able to even see how best to make this case to anyone other than lawyers.
So the next really critical step is to recruit you to help tell this story.
You can start right now, and send us your work. We’ll test it, and see if it spreads. If it does, we’ll put some money behind it, and spread it even further. But our hope is to find a superstar social media maven, who can build a campaign around making this message spread, and helping us to find the 3 or 4 best advocates for this cause of equality.
Stay tuned for more on this, because this, I think, could be our most important innovation. We’ve done the crowdfunding bit. Now we need to try some crowd-teaching. The experts (even in blue shirts) need to step aside; citizens (in the broadest sense of that term) need to step up. We’re going to make both of these possible.
So thank you if you’ve done something to help us get this far. And thank you if you can help us now, or in the future. I’m not even going to give you a link to give us money. Google it if you must. But here’s a link to join the cause, and to be kept in the loop as we try everything we can to build the movement that might get us back to a representative democracy.