Election 2016

Activist Files Federal Suit to Declare Electoral College Unconstitutional Under Slavery Ending Amendments

The Hail Mary suit seeks to stop Trump, elevate the popular vote and make Hillary president.

Photo Credit: www.cadc.uscourts.gov/internet/home.nsf

A series of emergency motions filed in the U.S. Court of Appeals in Washington on Thursday seek to postpone the presidential inauguration by arguing that the Electoral College is unconstitutional under the post-Civil War amendments that ended slavery and gave blacks and women the right to vote.

The lawsuit contends the Electoral College is unconstitutional—and Trump's presidency illegitimate—because it was part of a system that was created to protect slavery and give slave-owning states more representatives in Congress and in choosing the president (as each state has as many electors as members of Congress). The suit argues this slave-era holdover is unconstitutionally harming the voting rights of people who do not live in the rural states overrepresented in the Electoral College, as evidenced by the fact that, for the second time in 16 years, the national popular vote winner has not been elected president.

The suit was filed by Bret Sablosky, a paralegal who moved from Chicago to Washington to satisfy federal court filing requirements. He is hoping lower-ranking judges on the court, mostly appointed by President Obama, will be receptive to the historic nature of the case and will order the inauguration postponed while the suit is heard.

“It’s worth postponing the inauguration for four months because this is one of the most important trials that will take place in the United States—whether the popular vote is the only constitutional method to elect the president,” he said. “I’ve spent months putting this case together. I have been trying to get rid of the Electoral College for 12 years.”

The suit also argues the 19th Amendment, giving women the vote, is undermined by the Electoral College because women voters in California, for example, have less representation in the Electoral College than women voters in Wyoming, due to allocations that give small states more electors per capita than large states. It also argues that Donald Trump’s pledge to appoint fundamentalist justices to the Supreme Court violates the First Amendment right of freedom from others’ religion.

“It certainly is a Hail Mary,” said Michael Gross, a Denver lawyer who helped Sablosky with his lawsuit and federal complaint. “I know there’s been a lot of effort to alter the events that will happen next Friday, which the whole world is horrified about.”

“But there are real issues with the Electoral College and the legitimacy of the incoming president,” Gross added. “Up to this point, the courts don’t want to get involved. But we need to examine these issues, the Electoral College and the basic foundation of our democracy… This applies to the Senate and the House as well; they are trying to ram through things that are against the will of the people."

Sablosky said he first turned to this issue after the 2000 presidential election, when the Supreme Court awarded the presidency to George W. Bush over Al Gore, who had won the popular vote. “I didn’t know what to do about it,” he said. “The solution is getting rid of the Electoral College. The problem was figuring out how to do it."

Efforts like a National Popular Vote compact, in which state legislatures agree to award their Electoral College delegates to the popular vote winner, have languished, he said. When Hillary Clinton won by nearly three million votes but lost the presidency, he said the time had come to cite the post-slavery era constitutional amendments in a lawsuit seeking to throw out the Electoral College.

Procedurally, Sablosky is appealing a District Court decision that rejected a suit he filed after Election Day. In that case, a judge appointed by George W. Bush did not comment on the constitutional issues. Sablosky’s brief notes that before 1960, presidents were inaugurated in March while Congress continued its business. There’s no reason why a federal court cannot delay that process again, he said.

But the bottom line, as Sablosky's brief explains, is that Donald Trump must not be sworn in as president.

"Should the United States Supreme Court and/or the United States Circuit Court of Appeals for the District of Columbia Circuit and/or this U.S. District Court decide in favor of plaintiff’s claims, that the national popular vote total plurality is the only constitutional way to choose the president and vice president of the United States, then no one will have been sworn in as president in violation of that ruling, and Donald Trump will not have been sworn in as president and Mike Pence will not have been sworn in as vice president," the lawsuit says. "Then Hillary Rodham Clinton can then be sworn in as president of the United states and Tim Kaine can then be sworn in as vice president of the United States, in accordance with the court’s decision, that the national popular vote total plurality is the only constitutional method to choose the president and vice president."

Sablosky expects to hear by Tuesday whether the Appeals Court will postpone the inauguration and hear his lawsuit.

"I created a course of action out of the slavery amendment," he said. "There's a clear track and all we needed was a green light."

 

Steven Rosenfeld covers national political issues for AlterNet, including America's democracy and voting rights. He is the author of several books on elections and the co-author of Who Controls Our Schools: How Billionaire-Sponsored Privatization Is Destroying Democracy and the Charter School Industry (AlterNet eBook, 2016).

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