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WE FIGHT TO FIX THE ELECTORAL COLLEGE & END PARTISAN GERRYMANDERING

Citizens should be represented equally in elections.

Our country’s democracy was founded on an unequal access to the vote. Yet, over time, though, the promise of democracy has been expanded to include far more than just white, landholding men. We’ve made extraordinary progress. But there has been a disturbing trend in recent years to roll back this democratic progress. Instead of pushing our democracy forward, politicians across the country are now engaging in voter suppression.

States originally adopted winner-take-all because it amplified the power of their electoral votes. But once (practically) every state had embraced winner-take-all, that effect was nullified, and presidential campaigns shifted their focus to the detriment of the whole country. Under winner-take-all, it makes sense for presidential candidates to campaign exclusively in “battleground states”— states in which the popular vote margin of victory is close enough that one side has a real chance to beat the other.

 This concentration of voting power has three profoundly unrepresentative consequences: 

1)  Winner-take-all skews the political attention of the President and presidential campaigns exclusively to a handful of states. To get elected president, candidates must persuade not a majority of American voters, but a majority of voters in only 14 states. A study on the 2016 election finds that: 

  • Two-thirds of campaign events happened in just six battleground states—Florida, North Carolina, Ohio, Pennsylvania, Virginia, and Michigan.
  • Four battleground states—Florida, North Carolina, Ohio and Pennsylvania—saw 71% of campaign ad spending and 57% of candidate appearances.
  • The 14 battleground states saw 99% of ad spending and 95% of candidate campaign stops.

Voters in battleground states tend to be whiter and older than Americans generally; their industry is skewed to industry of the past. The issues that matter to younger Americans, and to people of color, are thus largely invisible in battleground campaigns. Winner-take-all in effect outsources the selection of the president to a fraction of America’s voters (35% in 2016)—a fraction that does not in any sense represent the majority of America.

The fight for the presidency has become the fight to persuade this unrepresentative minority. Presidents seeking reelection are keen to keep this unrepresentative minority happy. Federal spending in battleground states is thus higher; regulations are catered to the special interests in those states.

2) Winner-take-all increases the probability of a “minority president”—a president who loses the popular vote, yet wins in the Electoral College. Two of our last three presidents have taken office after losing the popular vote. The probability of electing a “minority president” in a close election is estimated to be over 30 percent, and that probability will likely increase over time.

3) Even worse, winner-take-all renders the presidential selection system particularly vulnerable to foreign interference. By concentrating the voting power to a handful of states, winner-take-all minimizes the number of votes that must be flipped in order to change the results in an election, making our presidential elections an easy target for foreign interferences.

The Solutions

Abolishing the Electoral College would require a constitutional amendment, which three-fourth of states need to ratify. It’s virtually impossible to get 38 states to support ending the Electoral College when 14 swing states have been benefiting so much from the system. Meanwhile, contrary to what most people think, the winner-take-all allocation of electoral votes is NOT in the Constitution. It was adopted by states in order to magnify their own voting power in the presidential election. Therefore, it doesn’t require a constitutional amendment to end winner-take-all. We believe we can end this unfair and unrepresentative practice through the following litigation and state legislation:

Equal Votes

Equal Votes is a crowdfunded legal challenge to the winner-take-all method for allocating Electoral College votes. Based on the “one person, one vote” principle already articulated by the Supreme Court in Bush v. Gore, we believe the winner-take-all system is unconstitutional—it is a violation of the Equal Protection Clause that ensures all of us, and all of our votes, must be treated equally under the law.

 

[Watch Equal Votes Q&A Videos with Lawrence Lessig →]

 

[Read Lessig’s Medium post explaining the Equal Protection argument against winner-take-all in the Electoral College →]

In September 2017, Equal Citizens launched a 30-day crowdfunding campaign to raise $250k to fund the beginning stages of the Equal Votes project. The support we received far exceeded our expectations— a testament to how deeply the public cares about fixing the way we elect our presidents. During the campaign, Bush v. Gore lawyer David Boies volunteered to lead the litigation pro bono through his law firm Boies Schiller Flexner LLP.

 

[Browse press coverage on Equal Votes → ]

 

On February 21, 2018, under the leadership of Boies Schiller Flexner LLP, a distinguished legal team including attorneys from law firms across the country, we  coordinated the filing of four lawsuits in four states — California, Texas, Massachusetts, and South Carolina — on behalf of a diverse group of Democrats and Republicans whose votes for President didn’t matter in the general election under the winner-take-all system. All four of these cases raise constitutional claims grounded in the 14th and 1st Amendments. Two of the cases also raise a Voting Rights Act claim. By filing in four states, we’ll be able to prove that this problem disenfranchises people all across our country, from east to west and south to north, and regardless of political party.

 

[Track the progress of the Equal Votes lawsuits → ]

 

One of the best ways to improve the registration process is through automatic voter registration (AVR). This wonky sounding reform is actually quite simple. In a state with AVR, anytime eligible voters interact with an eligible government agency, such as the Department of Motor Vehicles, the voter is automatically registered (unless he or she opts-out).

 

In 2015, Oregon became the first state to implement AVR and, in just one year of the program, AVR registered approximately 275,000 Oregonians and of those almost 100,000 voted for the first time. In 2016, the state had the largest increase in turnout of any state in the country. And if that wasn’t enough, the program diversified the electorate, making it more representative of Oregon’s demographics.

 

Since Oregon passed the law in 2015, eleven states (and DC) states have followed suit, with more likely on the way. According to Demos, if every state were to adopt automatic voter registration, twenty-seven million Americans would be added to the voter rolls.

 

Automatic voter registration:

Increases the numbers of registered voters

Makes electorate more representative

Reduces errors

Cleans up voter rolls

National Popular Vote Compact

Rather than abolishing the Electoral College via constitutional amendment, there is a work-around called the National Popular Vote Interstate Compact (NPVIC) that is slowly gaining momentum across the country. NPVIC would guarantee the presidency to the candidate who receives the most national popular votes, as states in the Compact would award their electoral votes to whoever wins the most votes nationwide.

 

This maneuver is legally possible because the Article II of the Constitution gives states authority to allocate electors however way they choose. The NPVIC is written with a trigger clause: As soon as 270 electoral votes worth of states have joined the Compact, each of their state laws is activated to automatically allocate all their electoral votes to the winner of the national popular vote. The presidency will therefore be determined by the national popular vote—regardless of state-by-state results or what non-Compact states do.

 

So far, twelve states (California, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, Vermont, Washington state, and Washington, D.C) are all officially part of the Compact. With the electoral vote total reaching 172, the Compact is almost 64% of the way towards the trigger. But the fear of many is that no significant “red state” will join the Compact, making it impossible to reach 270 electoral votes.

 

Equal Citizens strongly support the NPVIC (even though we’re not officially affiliated with the project). Through our litigation and advocacy, we believe we can help create the political conditions that would encourage the adoption of NPVIC.

 

[Read our blog post explaining why Equal Votes and NPV work well together → ]

[Learn more about the National Popular Vote Compact →

 

SDR isn’t just about non-registered voters. Oftentimes people move and forget to reregister with their new address. SDR allows these voters to have a voice in our elections despite this harmless mistake. (In the current system, these voters would have to fill out a provisional ballot, which is often seen as unreliable.)

Electors Freedom

In 2016, 7 electors — 5 Democrats and 2 Republicans — voted contrary to their pre-election pledge in the Electoral College. Most of these electors cast their ballots based on the good faith belief that the Constitution entitled them to depart from their pledge, but ended up facing fines or threats of criminal prosecution from their state governments.

 

Even though the number of electors who voted their conscience were significantly below what was needed to affect the 2016 result, they would have been enough to change the results in other recent elections. (In 2000, for example, a shift of just two votes would have altered the election outcome.) That fact could encourage others to do the same in the next election— so there is an urgent need to resolve the question of whether an elector is free to disregard his or her pledge, or whether the states have the power to force electors legally to vote as they direct.


Equal Citizens is currently providing legal support to the electors in Colorado and Washington who were threatened or fined by their state government for voting their conscience in 2016. In Washington State, we are defending three electors who were each fined $1,000 for voting contrary to their pledge. In Colorado, we have filed a voter intimidation action against the Colorado Secretary of State, responding to the removal of one elector, and threats to two others.

We entered this litigation because we believe it is critical for the Supreme Court to clarify the constitutional freedom of electors before it creates a constitutional crisis. Moreover, we believe that either way it is resolved, the case will advance the cause of Electoral College reform. If it is resolved to confirm the power of the states to control electors, it will remove that uncertainty from the process. If it is resolved to deny the power of the states to control electors through legal sanction, the case will make more urgent the demand for more fundamental reform.

Equal Citizens strongly believes that the Constitution does not permit the states to control the votes of electors. We believe that these states violated their electors’ rights because the Constitution guarantees electors the freedom to vote their conscience. Our argument will draw on the understanding of the framers about the role of the Electoral College, as well as relatively recent Supreme Court authority that affirms electors’ freedom.

We believe the Supreme Court will affirm the electors’ freedom through our cases in 2019. That will give states the opportunity to respond before the next election.

 

If the court rules to affirm the electors’ freedom as we expect, the most likely and effective response would be for states to join the National Popular Vote Interstate Compact. Also, if 270 electors were pledged to the winner of the national popular vote automatically, then the additional electors from non-Compact states would be certain to create a margin significant enough to neutralize any plausible defection by electors in Compact states.

 

Whether or not the Court ultimately rules that electors are free to vote their conscience, we are hopeful that these cases will be the vehicle for resolving this crucial issue before the next election.

[Learn more about our Electors Freedom cases → ]

 

And preregistration works. One study showed that preregistration for sixteen- and seventeen-year-olds can boost youth turnout up to 13 percent.  As of right now, fourteen states (and DC) allow preregistration for sixteen- and seventeen-year-olds. Four states have preregistration only for seventeen-year-olds.

 

California has taken their preregistration system even further, integrating it into their new AVR program. That means when 16 year olds get their driver’s license they are automatically registered to vote. Thus far over 100,000 teens have preregistered in California. Estimates suggest the number could grow to 200,000 per year as the preregistration program gets fully integrated into AVR.

 

Capturing youth in the political process earlier in their lives is imperative. Research shows once someone votes for the first time, they are more likely to do so again.

Make election day a national holiday or move it to the weekend

Eliminating barriers to the registration process is imperative, but so too is making sure everyone can actually cast a ballot. And a big hindrances to casting a ballot is lack of time. After all, Election Day takes place in the middle of the work week.

 

Far from some sacred tradition, voting on Tuesday is a vestige of our agrarian history. Tuesdays were just the most convenient day for people to vote.

 

But in today’s modern world, holding Election Day on a Tuesday is as absurd as it is regressive—for it makes our elections inaccessible to those who have to work multiple jobs or take care of children, and it can create an unnecessary bottleneck at the polls before and after work hours. Long lines, which disproportionately affects communities of color, deter voting.

 

Making Election Day a holiday would give voters the freedom to vote throughout the day, increasing accessibility. And if another national holiday is too hard to swallow, an alternative, suggested by political scholars Thomas Mann and Norman Ornstein, is to create a twenty-four-hour voting period from noon Saturday to noon Sunday.

 

There are concerns that retail, restaurant, and hospital workers would be adversely affected by making Election Day a holiday. But any potential pitfalls would be mitigated with a generous and accessible early voting period in every state.

Felon Re-enfranchisement

In states across the country, felons—at some point during their time in the criminal justice system—are deprived of the right to vote. Ten states, though, may never give that right back, even after the individual has served his or her time.

 

These felon disenfranchisement laws are a legacy of Jim Crow. Politicians in the post-Reconstruction era used these laws to keep African Americans from the polls. While the right to vote could not be denied based on skin color (the 15th Amendment, after all, prohibited that), with “due process” it could.  

 

And the language used during the passed of these laws show clear intent that is downright disturbing. Carter Glass, a Virginia state senator at the turn of the 20th century, for example, explained these laws would “eliminate the darkey as a political factor in this State in less than five years, so that in no single county of the Commonwealth will there be the least concern felt for the complete supremacy of the white race in the affairs of government.”

 

Yes, the legacy of Jim Crow lives on and currently prevents 2.5 percent of the voting-age population from voting, many of whom have already served their time.

 

Most of these laws are concentrated in former Confederate states. But of all of them, Florida is the worst. There, approximately 1.6 million people cannot vote—three thousand times the vote margin that decided the 2000 election in the state.  

 

The solution here is simple: everyone deserves a second chance. One does not lose citizenship during incarceration; as such, one should not lose the right to vote. Equal Citizens endorses all efforts to re-enfranchise felons.

 

Beyond increased democratic participation, it should be noted that returning the right to vote to felon greatly reduces recidivism rates. Ending these Jim Crow laws are a win-win for everyone.

Find out whether your state has felon disenfranchisement laws here.

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