Lawrence Lessig, a Harvard law professor, has said that he and several legal experts believe that Hillary Clinton has strong legal grounds to challenge the constitutionality of her loss to Donald Trump under the Electoral College system in the Supreme Court. According to Lessig, Clinton could get the Supreme Court to declare the current state of the Electoral College system as unconstitutional, overturn the 2016 general election result in her favor, and be sworn in as the next president of the United States.
Lessig's observations come amid media reports that Clinton now has 2.6 million more votes than Donald Trump. But despite leading by a wide margin in the popular vote count, she lost the 2016 general election to Donald Trump because she failed to secure the minimum of 270 Electoral College votes needed to secure the presidency.
Trump won 306 Electoral College votes compared with Clinton's 232.
In the U.S. Electoral College System, citizens do not elect their president directly. States choose electors to represent voters at the Electoral College. Members of the Electoral College elect a president.
All states, except Maine and Nebraska, according to the Independent, operate a "winners-takes-all" system for allocating electoral votes where electors are expected to vote for the candidate that won the state regardless of how narrow or close the vote margins were.
But, according to Lawrence Lessig, Roy L. Furman Professor of Law at Harvard Law School, in an article published on Medium, the winner-takes-all system for allocating electoral votes is operated only at the discretion of states and is not mandated by the U.S. Constitution.
Lessig and Jerry Sims, a legal expert from Atlanta, argued that the winner-takes-all approach could be unconstitutional because it violates the principle of "equal protection" and "one man, one vote" enshrined in the Constitution.
The approach means that not all votes are treated in the same way and that some voters are deprived illegally of their right of say in the political process.
Lessig argued that there were valid grounds for the Supreme Court to declare winner-takes-all unconstitutional and stop the swearing in of Trump as president.
The law professor referred to a 2000 ruling by the U.S. Supreme Court when the Republicans were trying to stop a recount of votes following the close contest between George W. Bush and Al Gore. According to Lessig, the court made a decision that emphasizes the importance of "equal protection." The decision, according to Lessig, set a precedent that could favor Clinton and the Democrats if they decide to launch a legal challenge.
Lessig criticized the Democratic Party leadership for failing to challenge the legality of the 2016 general election. He wondered why despite being aware of the 2000 case and the legal precedent it set Democrats have been "timid" about doing the right thing by challenging the constitutionality of the Electoral College system.
"I've been struck in this election cycle by just how timid Democrats have been," Lessig said. "It is striking to see how committed they are to allowing this train wreck to occur. And more surprisingly, how little careful attention has been given to just how vulnerable -- given Bush v. Gore -- the current Electoral College is."
"It's perfectly clear that the Attorney General of New York or California could walk into the Supreme Court tomorrow, and ask the Court to hear the case."
"What about the unfairness being felt by the millions of voters whose votes were effectively diluted, or essentially disenfranchised?" he asked. "Why are these big states standing by quietly as their voters are essentially silenced by the unconstitutional inequality?"
Jerry Sims, a legal expert from Atlanta, also explored the case against the Electoral College system in a series of legal papers, pointing out that significant ongoing changes in the distribution of state populations since the Electoral College was first introduced are imposing increasingly deep flaws on the system.
For instance, the concentration of population in some states is creating a situation where the number of representatives allocated to states has become disproportionate. This means that people in states with larger and faster-growing populations are becoming increasingly under-represented in the Electoral College.
"A state like Wyoming gets 3 electoral votes with a population of less than 600,000, while California gets 55 electoral votes with a population of more than 37 million. California has a population that is 66x Wyoming, but only gets 18x the Electoral College votes."
The pattern of changes in population distribution means that over time, it will become increasingly common for a president who lost the popular vote by a wide margin to be elected president on the basis of an Electoral College win.
"A candidate who lost the popular vote has been elected President five times in U.S. history. It has also occurred twice in the last 16 years," Sims said. "The 2000 election was the first time in U.S. history that the candidate losing the popular vote won a majority of the Electoral College outright. Now that has happened again in 2016."
"The major contributing factors to this outcome [that is, increasing incidence of electing a president who lost the popular vote] are the winner-takes-all system of allocating electors coupled with the growing concentration of the U.S. population in a handful of States," Sims continued. "These factors create a substantial risk that a candidate that loses the popular vote would win the Electoral College outright."
A system that operates more and more to violate the constitutionally enshrined "equal protection" principle is unconstitutional and should be challenged in court, Sims argued.
"To be clear, Trump did not win the Electoral College because of a constitutional design, he won because of the winner-take-all system of allocating Electors and that critical legal factor is strictly a function of State law."
"In Georgia, for example, we have 16 Electors and approximately 44 per cent of all voters cast ballots for Clinton," Sims wrote. "Yet the Clinton Voters receive no representation within the State's Electors. They are left with no voice whatsoever in the election of the President by the Electoral College, their votes are for all practical purposes thrown away."
"If Georgia were electing a single candidate then a 'winner-take-all' result would be proper, but in an election of 16 Electors, the Clinton votes are not being given equal dignity with the Trump votes," he added.
According to Sims, allocating the electors more proportionally would create a more constitutional system because it gives every vote "equal dignity and weight."
"Proportional allocation of Electors respects the one man one vote principle."
He argued that because the current system violates the 14th Amendment "and the related principle of one man one vote," the Supreme Court could overturn the 2016 election result.
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