UPDATE 12/16/2016: The lawsuit has been dismissed, per Alaska Dispatch News reporter Nat Herz. Judge Timothy Burgess wrote: Article II, section 1 as modified by the Twelfth Amendment to the Federal Constitution establishes and prescribes the election of the President and Vice President by the Electoral College. As Judge Kleinfeld articulately stated, ‘[o]ur Constitution requires that electoral votes be case state-by-state, not that the President be elected by plurality or majority of the nationwide popular vote. . . . Whether the electoral college and winner-take-all casting of electoral votes is a good idea or not has no bearing on the law. Article II, section 1 and the Twelfth Amendment are the Constitution we have.’ Park’s remedy lies in the constitutional amendment process, and not with the courts.”
A flurry of states are working to challenge the Electoral College in the wake of Donald Trump’s election. The attempts, ranging in approaches, are last ditch efforts to keep the president-elect from reaching the 270 electoral-vote finish line and the Oval Office. Every single one of them is an extreme long shot, but Alaska appears poised to be the next state added to the list of those willing to give it a go.
Janice Park is a paralegal in Anchorage. She’s also a Democrat who voted for Hillary Clinton in this year’s presidential contest. After the November 8 votes rolled in, she stumbled upon a podcast featuring a California lawyer named John Birke. Birke also supported Clinton and, last month, unsuccessfully tried to sue all 538 members of the Electoral College in federal court. He claimed that if electors voted for Trump, despite Clinton’s 2.8 million-vote advantage in the popular vote, those electors would “effectively cause a single vote for Clinton to be valued less than a single vote for Trump[.]”
One vote constituting more value than that of another violates another concept: “One person, one vote.” More on that in a bit.
Birke’s suit didn’t work. The court noted that Article II, Section 1 of the U.S. Constitution directly accords the power to elect someone to the office of the presidency to the Electoral College.
So, he joined several people and groups pushing for electoral college reform via challenges at the state level.
“I contacted him and he was hoping to have people in other states file challenges,” Park told me Wednesday night. “I said, ‘Would you be open to having someone do that in Alaska?’ And he said, ‘Sure.’”
Birke sent her the draft that he was readying in his home state and Park adapted it to suit an Alaska setting. On December 12, she filed a motion for an expedited hearing. On Tuesday, U.S. District Court Judge Timothy Burgess granted the motion.
Although Article II of the Constitution does explicitly vest the power of electing a president to the Electoral College, the framers didn’t put much time in effort into what it would look like, only restricting the number to parallel House and Senate seats. Alexander Hamilton, in Federalist No. 68 conceded, “[I]f the manner of it be not perfect, it is at least excellent” (he also quoted poet Alexander Pope: “For forms of government let fools contest — That which is best administered is best”). By and large, the Constitution left most of the rulemaking power to the discretion of legislatures.
Almost universal, in all states, is who an elector is. They’re former elected officials, party loyalists, and party leaders. Hence, one might not it surprising that they also tend to be quite partisan. In Alaska, “Any qualified voter except a United States senator or representative or person holding an office of trust or profit under the United States may be selected as a candidate for elector.” Electors pledge to support their party’s candidate.
29 states and the District of Columbia have taken that a step further, passing laws binding electors to the popular vote. Colorado is one such state. On Monday, a court ruled that the state’s nine electors are required to vote for the candidate who won the popular vote, Clinton. Failure to do so would result in removal and replacement.
Birke and Park contend that the obligation for electors to vote according to the popular vote (whether a legal requirement or an expected standard) violates their Fourteenth Amendment rights to equal protection of the laws.
Backed by Baker v Carr
The specific approach employed by Birke and his colleagues, to challenge the Electoral College at the state level, is rooted in both the Article II, Section 1, stipulation granting power state electors to legislatures, and a 1961 U.S. Supreme Court case, Baker v Carr.
Tennessee — in the first half of the 20th century — was politically, well, hinky. There was a tremendous amount of population growth, as well as drastic changes in the demographics regarding an increasing rural and urban divide. People were flocking to urban centers, like Memphis, as rural communities were shrinking.
Specifically, they were shrinking in population. Not in political influence.
Political apportionment was static. Despite federal law mandating redistricting and reapportionment subsequent to every decennial census, there were little changes on a district by district basis, starting around 1915. As a result, rural voters’ votes were starting to increase in value as people moved to cities, while those in population centers were depreciating. It was a brilliantly Machiavellian scheme conducted by Southern Democratic Party machinery for decades.
By 1960, one third of the state’s population was electing two-thirds of its representation.
Charles Baker sued Joseph Carr, Tennessee’s Secretary of State (part of the machinery, he served for 27 years).
Until then, courts avoided questions of political apportionment, citing the Constitution vesting the legislatures with that power and, hence, putting it outside their jurisdiction. But, in a 6-2, decision, the Court decided to interrupt that precedent. Justice Brennan, referring in his opinion geenrally to all qualified Tennessee voters, wrote that the “Appellants’ claim that they are being denied equal protection is justiciable, and if discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights.”
The landmark case decided that over-representation in rural areas over urban areas was a “debasement of their votes” and was, therefore, in the purview of the courts. This established principle of “one man, one vote,” which is now being used to challenge the impunity of the Electoral College at the state level.
“The court should be able to restrain the electors from voting in such a manner that would diminish the value of my vote,” Park explained. “And if the Alaska electors are determined for Trump than that would indeed be a mistake.”
Russian involvement and the troublesome nature of timelines
Park noted that, had voters known about the alleged involvement of the Kremlin in the election, the results may have been wildly different. Last week, the CIA announced that their intelligence suggests Russia intervened in the election, with the intent to push Trump over the top. The FBI disagrees.
54 of the 232 Democratic electors have signed a letter asking security briefing about the findings.
There’s also a time crunch of epic proportions. Or, maybe more accurately, constitutional crisis proportions. The Electoral College is constitutionally mandated to vote at the same time. That date has been determined and that date is this coming Monday. That means that the myriad state challenges have to be heard and decided in a very short period of time. In his motion granting Park’s request for a hearing, Burgess lightly objected to the fact that the three electors she was suing — former Governor Sean Parnell, Jacqueline Tupou of Juneau, and Carolyn Leman of Anchorage — had not been heard from.
“Normally, the way the works is that the court will issue the paperwork and you will have a summons which you would serve them,” she said when I asked her about it. “I didn’t get that. I may get that tomorrow. I don’t know.”
Burgess ordered that all briefings must be filed by 2 p.m. on Thursday. The hearing is scheduled just two hours later.
Park said she was hopeful. She said she had just gotten off the phone with MSNBC host Joy Reid, and might make an appearance on the network tomorrow.
“I’m very excited. I hope that it will be successful,” she replied, and reminded me of her affiliation with Birke. “I certainly hope that the court takes this very seriously and does not consider it to be frivolous, because in fact if it is denied I could then file a motion to consolidate with Mr. Birke’s case in California before the Ninth Circuit.”
I asked about the time constraints. What if time runs out?
“Even if the relief is not soon enough or sufficient to impact this election, it certainly impacts future elections.”