WASHINGTON ― A new organization is offering pro bono legal assistance to any Electoral College member who decides to break with the will of the people in his or her state, in hopes of derailing President-elect Donald Trump before he is sworn in.
The vote to determine who will become president is set to take place on Dec. 19. Christopher Suprun, a paramedic who lives in Texas and is one of the 538 members of the Electoral College, announced this week that he will not cast his vote for the president-elect.
Larry Lessig, a Harvard Law School professor heading the project, told The Huffington Post that the law firm Durie Tangri handles intake and may wind up representing Suprun. Durie Tangri generally plans to offer confidential advice to anonymous electors, but Lessing said Suprun’s case was different.
“He came to us just as he published his piece in the Times,” he said. “Our assumption is we’re talking to people who want to be anonymous, so he’s an exception. The whole community is going to step in and do what they can to help him.”
Lessig, who has been a prolific online fundraiser in the past, said his group is raising funds in addition to counting on some substantial early commitments.
“The motivation was the recognition that there were going to be a lot of electors who were considering what we believe is their constitutional right, to vote their conscience. Whether it makes sense to do it depends on who else is doing it,” Lessig said, adding that Durie Tangri would be willing to tell electors how many other electors had committed to voting against Trump.
The law firm also plans to partner with groups doing work on the ground.
Trump needs 270 electors to support him when they gather in state capitals around the country later this month. He won enough states to give him the support of 306, so anti-Trump forces need to persuade 36 more electors. That effort is underway, with Ohio Gov. John Kasich being named as a potential alternative. Trump annihilated Kasich in the Republican primary.
The Electoral College itself is weighted toward conservative, rural areas of the country. Each state is granted a number of electors that equals how many senators they have plus how many House representatives they have. But senators are not apportioned by population ― rather, each state gets two.
That means California, which has a population nearly 70 times larger than that of Wyoming, has only 18.3 times as many electors ― 55 to 3. Trump’s Electoral College win, though, was sizable enough that it would survive readjusting for population, although it would be much narrower. It would not survive, however, if the election were decided by the popular vote, which Clinton currently leads by more than 2.5 million.
(A coalition of public interest groups is calling for a fix to the Electoral College with a massive petition, which you can find here.)
The American system of government was established to be reflective of the will of population, but with a series of buffers to guard against mob rule. A myriad of layers were put between the people and the outcome of elections. Until a constitutional amendment, senators were elected not by a statewide vote, but by state legislatures. And up until fairly recently, parties chose presidential nominees at a convention without primaries or caucuses playing a significant role. The Iowa caucus, which feels like something created by the Founding Fathers, didn’t start until 1972.
Over the years, the system has extended the franchise from white, male property owners to all citizens older than 18 (except, importantly, convicted felons in many states).
Some states bind electors to vote for the candidate their state chose, but others only require a pledge. Lessig said the state laws that set up a legal requirement are clearly unconstitutional, citing the controlling 1952 Supreme Court case Ray v. Blair.
“No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices,” Justice Robert Jackson wrote in that case.
That doesn’t mean it can be a flimsy reason, Lessig said. “If you’re an elector, you have to give a moral justification for deviating from a pledge you made. There has to be an overwhelmingly strong reason,” he said.