Harvard law professor and political activist Lawrence Lessig briefly ran for president in 2015, but his campaign was more of an effort to spread a message than win a job. He called it “a referendum” on campaign finance reform and electoral reform. More than two years later, Lessig is still working on those big issues. But instead of using a presidential run as a vehicle for them, he’s going directly to the courts.
The goal of Lessig’s current project, Equal Votes, is to stop states from awarding presidential candidates all of their electoral votes, even when the candidate wins the state only by the narrowest of margins. Lessig says this winner-take-all system is producing president-elects like our current president and George W. Bush before him who came to power after winning the most electoral votes but losing the popular vote in 2000.
Lessig and his legal team have filed suit against the states of California, Texas, Massachusetts, and South Carolina to do away with winner-take-all and distribute electoral votes proportionally with the popular vote. The federal district court suits are the first step in a process Lessig hopes will bring his cause to the Supreme Court.
We discussed the project with Lessig on Friday.
Fast Company: Tell me the story of what happened in 2016, and how we ended up with a president-elect who, I believe, is the most unpopular president in history.
Lawrence Lessig: What happened in 2016 is that the Electoral College performed in its worst possible way. What we know about the Electoral College right now is three important facts.
Number one, [there’s] probably now at least a 30% chance that it will elect a minority-elected president–somebody who loses the popular vote but wins the Electoral College vote. And obviously that happened in 2016, and two of the last three presidents were inaugurated after having lost the popular vote.
Number two, 2016 showed us the effect of battleground politics. The only states that matter, given winner-take-all, are states that are up for grabs. And that means 14 states were the concentration of this last presidential election. In 2016, 99% of campaign spending happened in just 14 states. What that means is those states have incredible power, but those states are not representative of the U.S. in general. Those 14 states are older, they’re whiter, their industry is 19th-century industry. So they deserve to be represented like anybody else, but they don’t deserve to be represented more than anybody else. And yet they were in this last election cycle.
And third, nobody expected this, but the Electoral College is the best possible system you could imagine to facilitate foreign hacking, because the project of skewing the results is relatively easy, given the winner-take-all system.
FC: Okay, so you’re going to the courts to try to reverse this and create a way for states to move back from winner-take-all. But how far are you trying to go? Do you want a simple national popular vote to determine who the president will be?
LL: The principle is one person, one vote. The best possible answer to that is a national popular vote. And there’s an initiative called the National Popular Vote Compact where the states would basically instruct their electors to vote for the winner of the national popular vote. That compact goes into effect when states investing 270 electors commit to it, and they’re more than halfway to that number. But they’re kind of stalled because the rest of the states need to be Republican states to join, and there’s resistance in the Republican Party to join. So that would be the best possible system, because that would guarantee one person one vote.
The second best possible system is proportional allocation of electors at the state level. So, you know, if you get 40% of the vote, you get 40% of the electors. This would create an incentive for presidential candidates to campaign everywhere. Right now there’s no Democratic candidate that would spend a moment in Texas (because it’s a sure bet that a Republican will win in Texas). And no Republican candidate would spend a moment trying to persuade voters in California. If you have proportional allocation, then those candidates would have a very important reason to try to persuade people in those states. So it would shift power dramatically, to be more representative of the U.S. as a whole, which of course is the objective of a representative democracy.
FC: You filed suit in district courts in Texas, California, South Carolina, and Massachusetts. The district court is just the first step in the process, right? What happens next?
LL: We don’t expect that it’s going to be easy for a district court to be bold in this case, so we want to get to the court of appeals. The aim is to get into the court of appeals as quickly as we can so that we can get to the Supreme Court as quickly as we can. Hopefully, ideally, before too far into the 2020 presidential cycle.
FC: How did we end up where we are with this winner-take-all system? What was the rationale behind it?
LL: The framers of the Constitution were completely unsure about how to select a president. No country the size of the United States at that point in history had ever elected their president, or their executive. And so there were all sorts of debates about what should be done, and some people wanted to make it controlled by the states, some people wanted it controlled by Congress. What they did was create a system where you would have a president that was independent of the states and independent of Congress that would be selected through this Electoral College. The delegates to the Electoral College, the electors, would be selected by states. In some states, originally, the state legislature would select the electors and tell them to vote one way or the other. Some made the electors follow the (popular) votes in districts, so each district would have an elector.
But early on, in 1824, states began to award all of their Electoral College votes to the winner of the state. That’s the beginning of winner-take-all. Now, once one state started to do that, it created enormous pressure on other states to copy them. It was very hard to get away from it because [no state] is going to voluntarily give up some of [its] power of the Electoral College. And that’s partly why you need some pretty significant intervention like from the courts to move them away from that equilibrium.
FC: We have this long tradition in this country of balancing states’ rights, state power, and federal power. Isn’t that line of thinking sort of baked into the way that we’re currently electing our presidents?
LL: It’s been this long tradition. And, no doubt that tradition grew out of what the framers of our Constitution did. But the reality is, the framers gave the states enormous power by creating the Senate the way they created it. You know, Madison was furious at the idea that every state would get two senators. It violated a fundamental principle of equality that Madison thought the republic should embrace. But that’s been the compromise–the compromise that made the union possible. And I think that what we’re saying is that’s compromise enough–that you’ve got a lot of power in the Senate. We’re all citizens and we’ve set up a system where the people are voting to elect their president, and you can’t call it a vote unless we all have the same weight to our vote.
FC: Part of your argument here is that voters who support the losing candidate in a winner-take-all state end up not having their votes count for anything. But isn’t proportional allocation (of state electoral votes) just a way of deferring that same problem to the federal level? Couldn’t you always say that because your candidate lost the national popular vote, your vote didn’t end up mattering?
LL: It’s certainly true that the only way to make sure that every voter’s votes is weighted equally is to have a national popular vote. And if you have proportional allocation of the states, you’ll get closer, but you won’t get your perfect proportionality because the number of electors allocated per state is not proportional to population, it’s number of representatives plus two senators.
It’s never going to be perfect. But the question is, if we made it proportional, even without it being perfect, it would radically change the way presidential campaigns happen.
The basic problem that we’re attacking is that in electing the president of the United States, citizens should be equal. We’re not electing the senator from Texas. We’re not electing the governor of Pennsylvania. We’re electing the president of the United States. And with respect to that, every U.S. citizen should have the same amount of power. But because of this filter of the states, that power has been neutralized, has not been equalized.
And that’s the objective we have in bringing this case.
This interview has been edited for clarity and brevity.