With all due respect, I think Prof Lessig (you can read his article at the link posted at the bottom of this piece) misses the real point here. At its extreme, the real debate isn’t (or shouldn’t) actually be about “winner take all” vs apportioned electoral votes (where the devil is in the details anyway), but whether states, or parties for that matter, can Constitutionally order or compel electors in any way at all.
In fact, the 12th Amendment says little at all about the method for choosing Electors. Should they be apportioned (a system as susceptible to mischief and Chicanery as congressional redistricting)? Should they run and be primaried like any other politician? Should they be elected from among appointed judges? Should they be drawn by lottery from registered voters or even prior jury pools?
Or assuming the Constitution allows no means for controlling electors at all, should a Constituional Amendment be passed outlining precisely how this exercise should be conducted, controls and all?
Or should the damn thing just be abolished in the interest of true democratic elections on the principal of one person, one vote?
Until these absolutely fundamental questions are debated and answered, all other questions and debates are merely nibbling at the edges of the real question and its attendant problems.
The electoral system isn’t ‘unconstitutional’; it’s IN the Constitution, but how electors are chosen (should they be primaried?) and/or whether they should or CAN be regulated or controlled in any way at all, short of a further Constitutional Amendment clarifying the situation, or perhaps simply abolishing them altogether as too unwieldy, unpredictable, uncontrollable, or simply too undemocratic, is the most fundamental question we should be debating.
“The Equal Protection Argument Against ‘Winner Take All’ in the Electoral College”
The Constitution doesn’t require the Electoral College to count votes the way it traditionally has.
BY LAWRENCE LESSIG | DECEMBER 12, 2016 (BillMoyers.com Blog)