Lawrence Lessig is a professor at Harvard Law School and the author of “Republic, Lost: Version 2.0.” He argues that when the electoral college meets to cast votes, the electors should choose Hillary Clinton.
(Clinton, by the way, is currently ahead in the popular vote by 2 million, and will likely be up by 2 and a half million when the counting is done.)
Lessig writes, “Conventional wisdom tells us that the electoral college requires that the person who lost the popular vote this year must nonetheless become our president. That view is an insult to our framers. It is compelled by nothing in our Constitution. It should be rejected by anyone with any understanding of our democratic traditions — most important, the electors themselves.”
He cites precedents:
Only twice in our past has the electoral college selected a president against the will of the people — once in the 19th century and once on the cusp of the 21st. (In 1824, it was Congress that decided the election for John Quincy Adams; likewise in 1876, it was Congress that gave disputed electoral college votes to Rutherford B. Hayes.)
In 1888, Benjamin Harrison lost the popular vote to Grover Cleveland but won in the electoral college, only because Boss Tweed’s Tammany Hall turned New York away from the reformer Cleveland (by fewer than 15,000 votes). In 2000, George W. Bush lost the popular vote by a tiny fraction — half a percent — and beat Al Gore in the electoral college by an equally small margin — less than 1 percent.
In both cases, the result violated what has become one of the most important principles governing our democracy — one person, one vote. In both cases, the votes of some weighed much more heavily than the votes of others. Today, the vote of a citizen in Wyoming is four times as powerful as the vote of a citizen in Michigan. The vote of a citizen in Vermont is three times as powerful as a vote in Missouri. This denies Americans the fundamental value of a representative democracy — equal citizenship. Yet nothing in our Constitution compels this result.
It’s a moot point because I’m sure the electors will choose Trump. Well, most of them will, anyway. But it’s an interesting intellectual exercise, because if they chose Clinton instead, constitutional law and precedent back them up.
One thing that is slightly more likely to happen is if some huge scandal surrounding Trump breaks out before the electors meet, like revelations of more dirty dealings, enough electors might withhold or change their votes that it would send the election to the House, and Republicans might choose Paul Ryan or Mitt Romney.
Are any of these things likely to happen? Probably not. But then again, a lot of smart people were telling us how unlikely it was that Donald Trump would be the Republican nominee, much less that he would win the presidency.