Lessig, as usual, gets it wrong. For a so-called Constitutional scholar and a Hah-vahd lawyer, he isn’t very bright.
Yes, Winner-Take-All rules are state-level. But, and here’s the point that the pro-democracy anti-republic freak Lessig either ignores or forgets on purpose: No Elector can be legally bound to that rule by the First Amendment. The Elector is not bound to the results of the election because their vote is independent of the election preference stated by the popular vote. But the Elector has the freedom to vote the way they see fit (see also Roger MacBride), and to claim that they are bound to the popular vote is to deny them their own Constitutional Rights.
The precedence for this is found in both the Constitution itself, where neither the Electors nor Congress (in case of no Electoral College majority) are bound to a popular vote result, both in Article II and the 12th Amendment, and in plain history itself, because WTA rules developed over time, and in the case of Washington, there wasn’t a popular election to begin with in Connecticut, Georgia, New Jersey, or South Carolina.
One of these days Lessig will wise up and understand that the election of the President is not one national election of popular vote, but 51 regional elections of preference, and that the *states* elect the President, not the people. That’s how the Founders, who are far wiser than Lessig could ever hope to be, designed it, and that’s how it works, in spite of the machinations of the anti-freedom left to convert it into a direct democracy, which threatens the Liberty at the core of this great nation.