Lawrence Lessig and Richard Painter

Opinion contributors

Supreme Court Justice Stephen Breyer had just described a system in which “if party A wins a majority of votes, party A controls the legislature. That seems fair,” he said. Chief Justice John Roberts then jumped in: “If you need a convenient label for that approach,” Roberts offered, “you can call it ‘proportional representation,’ which has never been accepted as a political principle in the history of this country.”

Most Americans would agree with Breyer that in a democracy, it is only “fair” that the party that gets more votes gets more seats. But Roberts was making a narrower point: His claim could not have been — because it would have been absurd — that in our tradition of representative democracy, the winner shouldn’t win. He meant instead that the court has never held that party proportionality was an overriding value in structuring legislative districts. Other values, like a connection to the community or districts that are compact or equal in size, are also important — and sometimes outweigh a simple interest in proportionality.

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This is why partisan gerrymandering cases can be so hard: With so many legitimate values, it is easy to hide something illegitimate. The question for Roberts was whether courts could separate the legitimate from the illegitimate, without “seeming political."

But the truth is that proportionality is a fundamental principle of any representative democracy, including our own. Since the Supreme Court began enforcing the 14th Amendment in voting rights cases, it has demanded that democratic systems weigh votes equally. That principle of proportionality is at the heart of the “one person, one vote” rule, which the court has imposed on every representative system (save the United States Senate where the Constitution specifically requires two senators per state).

This point is critical when considering the Electoral College, another odd feature of our current political system and one that presents a more straightforward case for change. All but two states allocate their electors to the winner of the popular vote in that state. That rule of winner-take-all is a clear denial of proportionality. A million people in Massachusetts and a 1.3 million in Minnesota voted for Donald Trump. Their votes had zero weight in determining the presidency. The same with Democrats in Montana or Texas: The system counts their votes at zero, just because they are in the minority in their state.

Yet unlike with gerrymandering, this denial of proportionality has no legitimate counter-veiling justification. States adopted winner-take-all initially to amplify their power in the Electoral College. But now that (practically) all states have it, it no longer amplifies. It distorts. Winner-take-all radically concentrates the campaign for president in a dozen or so “swing states.” The voters in those states are older and whiter than Americans generally. No doubt they deserve to be represented just as any American does — but only proportionally to their size.

The Supreme Court has repeatedly held that “one person, one vote” principle applies to the “presidential selection process” too. That was the basis of its judgment in Bush v. Gore (2000). But the court has never considered directly whether the state imposed rule of winner-take-all is consistent with that fundamental federal principle of equality.

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It’s time that it did. Unlike with gerrymandering, the court could enforce this value of proportionality simply and directly, without anyone questioning the political motivation of anyone. The rule is understandable, and not just to “the intelligent man on the street,” in Roberts' phrase. And once established, it would not trigger an endless cycle of litigation. Of all of the instances in which the court has enforced equality, this one, administratively, could be the easiest.

For most of its modern history, the college has been an irrelevant flourish on the system for electing the president. But now that two of the last three presidents were inaugurated after losing the popular vote, the democratic gap created by this system is becoming more and more clear.

The Constitution is not going to be amended to remove the Electoral College. It’s possible that states will agree to a compact to allocate their votes to the winner of the national popular vote. But right now, the court should recognize that there is no principle in American law that could justify the unequal reckoning of the votes of citizens of the United States for president of the United States. Call it proportionality, or simple equality: it is an idea that needs urgent legal recognition, now.

Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard and founder of EqualCitizens.US. Richard Painter, the S. Walter Richey Professor of Corporate Law at the University of Minnesota, was the “ethics czar” for President George W. Bush. Follow them on Twitter: @Lessig and @RWPUSA