ALEXANDER KEYSSAR: My
name's Alex Keyssar,
and I am chairing this session.
And I want to say a little bit
about how we will proceed here.
First, let me extend my
thanks not only to Larry
but to the many other people who
have made this event possible,
including, in particular,
Margaret [? Mattis, ?]
with whom I
exchanged 412 emails.
And she put up with me
over a period of months.
The title of this session
is "Why Do We Still
Have The Electoral College?"
Not coincidentally, that
is also the title of a book
that I have just completed and
will be out late next spring.
It's funny how those
coincidences happen.
And what's going to
happen in this session
is I'm going to
try to give folks
a very, very brief
overview of some
of the features of that book.
And then three of
the four commentators
have been obliged to read
some collections of chapters
from the book,
Charles Stewart, Dan
Carpenter, and Barry Burden.
And then they will each
speak about whatever way they
want to take off from whatever
they read and then, finally,
David Boies will talk presumably
about more recent periods,
but whatever he
would like to talk
about on this theme
of why do we still
have the electoral college.
So let me begin by
saying something
about the intellectual origins
of this book, which was really
to ask why this archaic and
cumbersome-- by the way,
the word cumbersome, I think I
could prove this statistically,
but I assure you I never will,
is the most frequently used
adjective in the 19th
and 20th centuries
to describe the
electoral college.
It's why this so
unpopular institution,
why is it still in place?
[INAUDIBLE] not popular.
Serious people, major
people, dedicated people,
have been trying to
abolish or significantly
reform this institution since
about an hour and a half
after it was created.
I mean, constitutional
amendments
to deal with this
start appearing
at the end of the
18th century and there
are various total aggregate
numbers, most of which
are bogus, but I think
that it's reasonable to say
that something between 700 and
1,000 constitutional amendments
have been introduced
over the last 200 years
to deal with the
electoral college.
We also know that in
terms of public opinion,
it's been very unpopular.
And I'm sorry to
add this phrase.
I didn't used to
have to say that.
It's been very unpopular
until recently.
We only have public
opinion polls since 1944,
and they reveal the
overwhelming majority, 60%, 70%,
sometimes 80% of the
American population
prefer to get rid of it and
prefer a national popular vote.
So that's the question
which shaped my inquiry.
The very fact of asking
it and treating it
as a research question is also
to say that I have rejected
certain possible
answers which I think
are non-answers, one
of which would be we
still have the electoral college
because it's worked so well
and is so terrific.
[LAUGHTER]
I don't think that's the case.
A second possibility would be
the arguments on its behalf
have been of such
shattering brilliance
that there is no possible
reason to object to it.
And the third thing which we
can talk about, if we want,
I'm only going to allude
to very briefly here,
is that it's not because
of the small states.
Jamie Raskin has referred
to that as a tenacious myth.
It is widely around
the small states
prevent reform, et cetera.
It's not true.
Anyone who wants for
whatever it is my press
is going to charge you,
you can have the tables.
It's just not true.
So what I've done in
this book is a series
of historical probes starting
in the late 18th century
and running up through
Larry's most recent lawsuit.
So it's a substantial
time frame.
And that's permitted
me, I think,
to look at the intersection
of different factors.
There are multiple factors.
There are multiple elements
in this and the way
in which they interact
in different ways
at different times.
Now, I also want to say
one other thing to just
define this subject matter
and to say something for those
of you who have spent less
time with 19th and early
20th century or even
mid 20th century
history than you might have.
The question is
not just about why
we have an electoral college
and not a national popular vote.
In 21st century
consciousness, it's
generally assumed
that the alternative
is a national popular vote.
That has not been true
for most of our history.
For most of our
history, attempts
to reform the
electoral college have
focused on getting district
elections, not winner take
all, proportional elections,
and getting rid of electors.
So the question
is not just why we
don't have a
national popular vote
but really why no reforms at
all since the 12th Amendment
have happened.
And even though we came close,
I mean, again it's not--
just to toss one
factoid out there.
The Senate passed constitutional
amendments to get rid of winner
take all five times in the first
30 years of the 19th century.
One of those years that actually
came very close in the House
as well.
So it's really only
since the mid 1960s
that a national
popular vote, and I
don't mean the compact, I
mean like the phenomenon,
has been the major
proposed reform.
And as many people
in this room know,
we came very close
to getting that
through Congress in 1969, '70.
It passed the House.
It was blocked by a
filibuster in the Senate.
So let me now turn to
some pieces of the answer
to the question that I posed.
Why do we still have it?
As a historian, of course,
I hate to generalize.
And last night, Guy Charles,
who I don't think is here today.
Is he here today?
Became the 4,443 third
person to say to me,
so what's the answer
about your book?
[LAUGHTER]
And a question I
have deeply resented.
If I can answer this in
two minutes at dinner,
I would not have had
to write the book.
And if I effectively
answer, that
means that my last four years,
five years of my research life
have been ridiculous.
But anyway, let me try to give
you some of the headlines.
And they're different pieces,
different strands of this.
I'm certainly not going
to go into all of them.
And you can think in very
broad terms about them being--
the obstacles being structural,
political, and historical.
And again, those are not fixed
categories, and they overlap.
One, the first and most
obvious, is that the US
Constitution is hard to amend.
That really matters on at least
two occasions, 1821 and 1970,
when you get a 2/3 vote
in one chamber of Congress
and you come within a whisker
of it in the other chamber.
I mean, that did not
take deep research
to discover that it's difficult
to amend the Constitution,
but it hasn't been impossible.
And as we all know,
a large proportion
of the amendments
that have occurred
have had to do with voting and
electoral procedures and voting
rights.
Second feature is that what we
call the electoral college is
actually a complicated
institution with a lot
of different parts and pieces.
And the very fact that it's
got all these different pieces
has made it harder to reform.
And let me just mention,
I mean, on the one hand,
we have the electoral college,
and yes, it aggregates votes,
and then there's
winner take all,
which is not constitutional.
That comes in only really at
the end of the first third
of the 19th century.
But you also have the
choice of electors.
You have the fact that
it is up to the states
to decide how those electoral
votes can be allocated,
whether they can do
winner take all or not.
At least that has been true
throughout our history.
If Larry has his way, it
won't be too much longer,
Larry and David both.
But I guess what I'm
saying is that the design
of the institution, the
details of it matter.
For example, the
framers, I think,
did not imagine
what would become
a kind of competitive logic race
towards the adoption of winner
take all when they decided
to leave it up to state
legislatures to decide.
Nor could they have
imagined, I think,
that, in fact, the logic that
led to the adoption of winner
take all was not reversible.
There is a long
part of our history
which is of states trying to
move to districts one by one,
and it has never worked,
in part because you just--
there's a collective
action problem
in trying to reverse
it that there isn't
in moving to a winner take all.
Also the fact that
the institution
has many undesirable
parts has been an obstacle
to reforms in various
ways, including
that if you try to
fix one of them,
and this actually relates a
little bit maybe to Sam Wang's
point earlier, if you
try to fix one of them,
at least constitutionally,
at least through Congress,
you implicitly end up
ratifying the other pieces.
In 1992, and around the
time of the Perot election,
and it's not the
only such occasion,
there are many other
occasions, everybody
agreed that the
contingent election
system, that the election goes
to the House, was ridiculous
and we should get rid of it.
But to try to amend
the Constitution just
to deal with that part
would have meant, in effect,
reaffirming the rest of
the electoral college,
and that was politically
impossible to do.
It also intersects
in other ways.
For example, it intersects
other dimensions
of our political life.
For example, who really
opposes district elections?
Not the only people,
but a group that
opposes district elections in
the middle of the 20th century,
urban areas.
Because most districts are
grossly malapportioned in favor
of rural areas, and they
don't want to extend that
to a presidential election.
Second kind of factor which
plays a role, of course,
is partisanship and
party interests.
Surprise, surprise.
Partisan hostilities
and tensions
contribute to the difficulties.
This has been extremely true and
more true in the last 40 years
than really any other period.
And sometimes it
becomes almost comic.
Those in the audience
who are old enough
to remember all the way back
to 2007, 2008 you may remember
that in 2007, Democrats in
North Carolina and Republicans
in California wanted
to get rid of winner
take all and institute
district systems,
and the two parties made
exact mirror image arguments
in the two states.
I mean, the wording
is often identical,
but it's the Republicans
in one state.
And Democrats in California
denounced this as the worst
idea that they'd ever heard of.
And it's also true, and I think
Barry may talk about this,
it's notable that
the two periods when
we did come close to getting
something through Congress, not
in the states, were periods when
the party system was unsettled.
Fourth factor, the
temporal rhythms of reform.
I only want to
mention this briefly,
but the fact is,
most people are not
interested in electoral
form most of the time.
Outside of the
people in this room,
only John Koza is
spending today thinking
about electoral college reform.
And it's also it's
an election that
occurs only every four years.
Interest tends to
come when there
is a crisis or an
impending crisis
or the aftermath of
a crisis that creates
a relatively short window.
But crises when they occur also
exacerbate partisan tensions,
making the kind of bipartisan
cooperation more difficult,
and they can shift attention
onto other linked issues.
The largest of
this, and Ned Foley
knows more about this than I
do, but after the 1876 election,
there was a lot
of dissatisfaction
with the electoral
college, but there's
even more distress in Congress
about trying to figure out
how to count and who gets
to count electoral votes
and what the principles are.
And they say, we'll deal
with electoral college reform
after we deal with the count.
It took 11 years to
deal with the count.
And by that time, the
momentum for reform was gone.
And then finally, or I guess
it's a finally for today,
at least.
There are many more
interesting things.
But is the role of race and
white supremacy in the south.
And by this, I'm not
talking about the debate.
Since Akhil Amar is
not here, I don't
have to talk about
whether or not
the Constitution with
the electoral college
was created to protect slavery.
The antebellum period is
actually not my primary concern
here, although it is notable
that the very first time
that the idea of a
national popular vote
was brought up in Congress, it
was shot down by Southerners.
That's in the
early 19th century.
Who were otherwise in
favor of other reforms.
Southerners were in favor
of district reforms.
They were not in favor of
a national popular vote.
But where it becomes
really salient
is in the late 19th century
when after Reconstruction,
after the end of Reconstruction,
during redemption
and thereafter, when the South
emerges as a one party region
with a large, disenfranchised
black population.
And whites in the South benefit
from what I have called,
and what a few contemporaries
at the time called,
the five fifths clause.
African Americans counted
100% for representation,
but they did not vote.
In that system, since
you got electoral votes
based on your congressional
representation
and your population, not
on the number of voters,
white Southerners
had an immense amount
to lose if you move to
a national popular vote,
and they knew it.
And they also came to
see the electoral college
as a critical institutional
bulwark of white supremacy
and the maintenance of
the Southern way of life,
and they fought its passage
in a lot of different ways.
It's the South that kills the
amendments in 1970 and 1979.
And I think it's
not a coincidence
that no southern
state has approved
the national popular
vote interstate compact.
That's true.
So that's creating
a framework, trying
to let you know what
the headlines are
to which people will react.
I can't resist telling
you one anecdote.
And you'll understand why this
one seemed particularly choice.
The book is, of course, filled
with rich and wonderful stories
that you will greatly enjoy
reading, or at least looking
at.
But here's one.
And there may be a
few people in the room
who might remember this.
This also dates back to
2007, and it dates back
to the attempt to switch
California from winner
take all to district
elections, which
was a Republican endeavor.
Many of these things have
been democratic endeavors,
but this one was a
Republican endeavor,
and the reason was
quite kind of obvious,
that California had
50 electoral votes,
but there were 22 congressional
districts that were Republican.
If you could switch to
a district election,
the Republicans
would pick up 20--
it would be a net shift
of 40 electoral votes.
This was a big deal.
And a campaign gets underway
and there's a leading California
Republican election lawyer
who is working on this
and is trying to raise
money to get the signatures.
And then there's this
moment which sort of freezes
the thing for a while
and I think really
is part of what kills
it, which is suddenly
the two heads of this movement
in the signature gathering
stage resign.
Both Republican, obviously.
Why do they resign?
Because it's come out
that the single largest
contribution that
they have received
has come from a non-profit
somewhere in the Midwest,
I think maybe it was Wisconsin.
A small town.
And when the press
and they had tried
to find out where the
money actually came from,
they were stonewalled.
It turned out that
the nonprofit that
made this major contribution
to their endeavor
had been incorporated,
or whatever
you do with non-profits,
had formed officially
the day before it
made the contribution.
It was formed by a small
town lawyer who will not
say where the money
is coming from,
and then it makes
this big contribution.
So they resign.
They say, we're not going
to do this if we don't know.
So then there is
an investigation.
Now, we could do
a test of hands,
but I'll just tell
you the answer.
Where did the money come from?
A very rich and close ally
of Rudolph Giuliani's,
who was a presidential
aspirant at the time.
And with that, let
me turn this over.
[LAUGHTER]
[APPLAUSE]
And I think the agreed sequence
was that Charles Stewart of MIT
was going to speak first.
Charles.
CHARLES STEWART: Great.
Thanks, Alex.
And I have the
unfortunate reality
of having to follow Alex.
That's a hard thing to do.
But I also want to
thank him for giving me
a couple of chapters
to read that are
full of interesting and
rich and detailed accounts
of legislation in a couple of
periods in American history.
And as a political scientist who
studies Congress historically,
I found it really,
really great to read.
One of the reasons, by
the way, before getting
into the substance, that I
liked reading these chapters
and reading this
book, this is more
for the students in the room, is
that one of his first footnotes
is to Herman Ames's, I guess it
was a dissertation originally
or something like that,
which is basically
a one damn thing after the
other catalog of every--
up until, what, the 1890s or so
every constitutional amendment
that had ever been proposed.
And it just reminds us
that back in that period,
you could get a
dissertation just
by writing books
that were just one
damn thing after the other
lists about electoral practices
in the United States,
legislative practices wherever,
whatever you wanted to do.
Just categorizing
and listing was
all you needed to do
to get a dissertation
or to get an award
winning publication.
And it's a great book, by the
way, as many of these are.
They like to say that
history is a foreign country.
And by reading
these books, you get
a sense about what
the possibilities
are within American history.
You don't have to go
to other countries
to see that there
are other aspects
possible in the
electoral process.
So Alex hates to generalize.
I'm a political scientist.
In fact, three of the four of
us are political scientists.
We love to generalize.
And so I'm afraid to say that
one of the things that I did
after having read what I read
was to try to ask, well, what's
general about these cases?
And I have to say,
actually, what
I came up with is fairly
close to what Alex just said.
And so although he
hates to generalize,
I think there are some
general things to be said.
And so let me just
state what I think
kind of the general
takeaways are,
at least from the two chapters.
And I'll tell you about those
chapters in just a second.
And then a few words
about the implications
for the current day.
The two chapters, by the
way, are deep dives into,
first of all, the
period where we probably
came the closest to changing
the electoral college,
the year of good feeling.
This is a time when
the Senate actually
did get 2/3 vote to forward
a constitutional amendment.
The house did not follow suit
for a variety of reasons.
But there is basically a decade
and a half of pretty constant
contestation over that.
So that's one of the chapters.
The second chapter moves from
the 19th into the 20th century,
ending with an account of
the so-called Lodge-Gossett
amendment, which, again,
passed in the Senate
and then went down in flames
in the House for reasons
that I think are really
important for the politics
of the period.
And so those are the two
kind of cases, if you will,
that I'm responding to.
And so as a political
scientist, and one
who studies Congress and is
a bit of a rat choice guy,
in trying to figure out
what to make of this,
and to generalize, I
asked first of all,
what are the
primitives of trying
to change the Constitution
around the electoral college?
And by the way, as a footnote,
I think these two panels
mesh well together, because
Ned's panel and his book
is, I would say, more
of a normative claim
about what should be, whereas
Alex's book is primarily
focusing on kind of the
empirical case about why not.
And so these kind of two--
so this is kind of--
the book is about,
well, why not?
And well, to try to package
the argument together
in terms of political
science primitives,
the first is, and this
has been said many times
before in different ways,
the status quo regime
is really, really important.
And that's the regime
you have to beat.
And that regime is, first of
all, a constitutional system
that allows the
states to do whatever
they want to do pretty much.
And that the second
major part of that regime
is that because the
states, meaning usually
the legislatures,
maybe referendum,
maybe the governors in there,
but certainly it's called
the states, the legislatures.
The state legislators
are elected
and respond to constituents.
And what do those state
constituents care about?
First of all, they don't care
about the electoral college,
by and large.
It's a low salience event,
and as Alex was mentioning,
others had mentioned.
Every now and then
there's a crisis.
But there's always
another crisis.
And so the electoral
college is rarely
salient at the state level.
It's rarely salient in a
lot of states for very long.
That's thing number one.
On the other hand, so
here's an interesting thing
that I got thinking about
in reading these chapters.
So members of the
state legislature
generally are not thinking
about the electoral regime
for selecting electors, except
they are political elites,
and they are much more likely to
care about the state of parties
and the power of parties,
and therefore, there
is something about state
legislators being responsible
for choosing the systems
within the states that kind of
nationalizes the system.
So it makes the choice not
just one state at a time,
but eventually all
state legislators
were Democrats who are going to
think about this the same way,
and all state legislators
who are Republicans
are going to think about
this in the same way,
with an important exception.
So there is a certain
nationalizing dynamic
in this being with
state legislators.
At the same time, they do
have to deal with the fact
that their constituents
don't particularly
care about parties.
And to some degree,
that ends up being
a little bit of a break against
pure partisan shenanigans
or motivations.
And you do see that
from time to time,
there are important
breaks within both
the Democrats and Republicans
and state legislatures.
But nonetheless, we
have state legislatures
that help to define what
the status quo regime.
And then we have the elements
for institutional change
that are trying to change
the status quo regime.
And the first thing
I would say, this
is an entirely political
sciencey sort of thing,
but I think it has to be said.
We got public
choice instability.
And by which I mean
that for people
who study any sort of decision
process, when you have
a multi-dimensional problem
with more than two actors,
anything can happen.
And there are two
important features here
that come from the
theory of social choice.
The first is that virtually
any policy choice will have
a majority who doesn't like it.
You will always have
dissatisfaction.
And so it's not
surprising that there's
constant dissatisfaction
with the electoral college.
But it's not just that.
The problem is, and again this
is what Alex was pointing to,
this is a gazillion
dimensional problem.
Is just not a couple of things.
But districts versus
winner take all.
If districts where their
electors are not in
proportional, whether
integer proportional or not,
popular versus
state legislature,
plurality versus majority.
If a majority, how to resolve
if you have a plurality
and you have to
come to majority.
So I don't know how many binary
choices there are in there,
but there's probably like
32 discrete possibilities
that you could light
on if you wanted
to move to something else.
And one of the things, not
to get into cases, but one
of the things that
seems to emerge
is, again, at any
given time when
there is a crisis or
general dissatisfaction
with the electoral college
that the opponents end up
cannibalizing each
other, because it's
very hard to come to one
of the 32 possibilities
that's going to get the
majority against the status quo.
So that's kind of
the choice space.
The decision arena
being Congress,
it's actually the
parameters there,
and I won't say much more,
are similar to the state
legislatures.
But I'll just repeat, low
salience of the issues.
There are things
that will get them
re-elected more
likely than worrying
about the electoral college.
And the lesser interest
among their constituents
for partisan
shenanigans sometimes
causes people like
Lodge or others
to take a stand that's contrary
to the prevailing wisdom.
The other important element
for institutional change,
again, it's been mentioned
before, but we have--
it's a constitutional
question, by and large.
And so we have super
majority requirements.
And my reading of these
cases suggests that it's
really an insuperable problem.
And I'll just offer
a couple of comments
that aren't in the book,
but I think they're
consistent with the book.
One comes about by
asking the question,
how do we explain regular
Senate super majorities
with House inaction in
the antebellum period?
That seems to be a puzzle.
And a couple things
to be said about that.
First of all, that one of the
things would be interesting.
I don't know if Alex
has thought about this.
But particularly in
the antebellum period,
some senators cared about
what the state legislatures
said, and many of the--
I mean, it seems that a lot
of the kind of motive forces
behind some of
these proposals were
petitions from state
legislatures or instructions
to US senators.
During this period,
there was an ambiguity
about the status of state
legislative instructions
to senators.
Eventually that resolved.
Senators started
just ignoring them.
But during this
period, they didn't.
And senators had
principal responses,
and usually they would go
along with instructions.
I would note that these 2/3
majorities were by the skin
of the teeth in the Senate.
And I wonder to what
degree did the instructions
in the Senate push things over
the top that would not have--
in the House, you don't
have instructions.
And so it might very well
be that not only were
these 2/3 majorities by
the skin of the teeth,
it might have been
due to another aspect
of congressional elections in
the antebellum period, which is
this thing about constructions.
Final thing I'll say
just related to the book,
and this gets a little
bit into the cases.
I like the book because
the cases, looking
at electoral college
reform, tell us
things about in general
politics during this period.
In the antebellum
period, particularly
it comes to election rules,
both the nation and the states
are trying to figure
out election rules.
It wasn't just the
electoral college.
So as has been mentioned
particularly around
the first panel,
the original section
to regime and then later--
original section two
regime was as close
as we ever get to spitballing
constitutional possibilities,
from my reading of it.
And although Ned makes an
important case in his book
that the 12th
Amendment was much more
thoughtful and reflective
on practice and theory
than the original
regime was, still there
was a lot of experimentation
during this time.
And that's certainly the case.
That's one thing to be
said about the case.
The second thing,
I think it needs
to be remembered that even
the 12th Amendment passed
with the barest of
super majorities.
In fact, it was exactly
2/3 in the House
and by just a vote
or two in the Senate.
It's also the case that they
were almost exactly party line
votes.
I mean, there's a
couple of exceptions,
but basically let's call
them party line votes.
So that's kind of problematic.
That's especially
problematic for me thinking
about the possibility of
constitutional amendments
moving forward.
Again, as Ned mentioned
earlier, it's not the case,
blatantly it is
clearly not the case,
that it was widely concluded
by the election of 1800
that the original
regime was a disaster.
Federalists were fine with it.
They would have stayed with it.
And they almost
made it so that we
could have still had the
original regime to this day.
Another thing is,
and I've promised
to say a little bit
about this, but states
were experimenting with
all sorts of things
during this period.
In New England, we had
up until the 1840s,
for instance, I
mean, not only did
Massachusetts have district
election of electors,
but we had these really
weird majority requirements
for the election of governors
and of state legislators,
et cetera.
And so there just
was a willingness
to experiment
during this period.
Now, overall, there
was a narrowing
of the political
space nonetheless.
I mean, I think this is
just an interesting period
to look at in America
in general for looking
at willingness to experiment.
With respect to the
mid 20th century case,
this is the Lodge-Gossett
period, the one thing
that I would point
out there, and I
think is kind of a social
choice political science
point by way of Bill Riker.
William Riker, who kind
of brought social choice
sorts of things to
political science,
had this argument late in his
life about the heristhetics
of political discourse, trying
to change the dimensionality
of political fights.
And the Lodge-Gossett
case, I think,
is a great example wherein when
the case was in the Senate,
it looked to be led by Lodge,
looked to be a coalition that
was trumpeting kind of the
progressive possibilities
if one were to move
toward a popular vote.
Unfortunately for them,
they were married at the hip
to this guy Gossett,
a flaming anti-Semite.
And so once the case
got into the House,
the nature of the debate changed
dramatically, and then it lost.
Now, this was not strategic.
Gossett didn't make this
choice for the purposes
of killing his reform.
But it does point out kind
of the difficulties of kind
of the rhetorical
framing of these issues
during this period and
one of the last times we
had a chance to make a change.
Just the framing of
the issue killed it.
So what does all this say today?
Just a couple of really
quick things to conclude.
One is, well, the main
thing I guess I'll just say
is that I end up being kind
of a reformed curmudgeon
and a skeptic, having read
Alex's book, I'm afraid to say.
And I don't know if
that's the intention.
But even in times in
this country's history
where the issue of the electoral
college and its deficiencies
have been more than
kind of a passing
interest among the chattering
classes, in the end of the day
at the national
level, it's really
been difficult, if not
impossible, to do anything.
It does push things
into the states
where there is a possibility
for experimentation.
And the book is not
about the states,
and so I really can't say
anything about the states.
But at the national
level, at least,
I come away, at least from
the chapters that I read,
not entirely sanguine
about the ability
to address these things through
constitutional amendment
or anything of the sort.
So thanks.
ALEXANDER KEYSSAR:
Thanks you, Charles.
[APPLAUSE]
I think Dan
Carpenter is up next.
DANIEL CARPENTER: Thank you.
Well, it's a pleasure
and an honor to be here.
Thanks to Larry.
Thanks to Margaret.
I'm also following two
scholars whose books I've
taught to undergraduates
and graduate students alike,
I believe, at different times.
Charles's book on
budget reform politics
in the House in the
late 19th century
and Alex's book on
the right to vote.
So you can pay me later with a
six pack for the contributions
to the college fund.
Look, I think this book
is going to be a landmark.
It shows just how
contingent and contested
our present day institutions
are from district
systems and their possibility
to the precise nature
of the electoral college
and the way it functions
to the possibility, actuality
of faithless electors itself,
and showing how a set of near
misses have produced not simply
the electoral college,
again, as it's
described, but the particular
form of system of aggregation
that we know.
We get the contested nature
of the Senate, excuse me,
of the Kennedy election.
I'd forgotten that.
The near miss of the
Celler resolution
in the Senate, the
contingency brought on
by the Carter Ford contests.
And to me, all of
these are narrated
in ways that bring lucidity to
a remarkably unclear subject.
So buy this book even
without any connection
to Rudolph Giuliani.
ALEXANDER KEYSSAR:
I think we can
stop the session right here.
[LAUGHTER]
DANIEL CARPENTER: Yeah.
I do want to say it's remarkable
that you brought up Giuliani
without mentioning a small
country with which he's
currently associated, which
happens to have funded also
one of the very largest
proportional size
endowments at Harvard,
which is the Ukraine Center.
I posit no
association whatsoever
between said individual and said
center, but it's worth noting.
So let me begin with a couple
of historical notes and then
a general counterfactual.
The first is for
those of you who
study historical political
science, Congress,
political history.
I think we're in need of a more
academic biography or study
of Manny Celler.
He reappears here again
as the primary author.
He's the Brooklyn congressman,
New York Democrat.
He's the primary author
of the resolution
to abolish the electoral
college in chapter five.
I'm thinking of the kind of
work that if you followed
Julian Zelizer's work on, say
Wilbur Mills, that's the kind
of thing we need of Celler.
But arguably, I think you
can make the case that Celler
is even more important
across the mid 20th century
than Wilbur Mills.
He personifies the urban
liberal's commitment
to civil rights,
crucial alliances
with African
American politicians.
He liberalizes immigration laws.
He assisted and helped
write crucial portions
of the Voting Rights Act
and the Civil Rights Act.
And here he is again.
reforming potentially
our electoral systems.
We have an autobiography
of him, if anybody knows.
It's that you can't leave
or you don't leave Brooklyn.
He was born in Brooklyn and
passed away in Brooklyn,
his whole life.
And I was about to say, I was
checking my notes this morning,
I said we have all these
other great biographies
of prominent Jewish
members of Congress.
It turns out that's
not true, actually.
I'm looking for
Javits, I'm looking
for Straus, Isidor Straus,
a whole bunch of others.
But set aside, we need a good
biography, an academic study
of Celler and his influence.
It's simply monumental at this
period of the 20th century.
And I think it would
be a great addition
to a number of bookshelves.
Second thing I want to note.
We get this moment
in this 1960s when
the following organizations
are collaborating.
The ABA, American
Bar Association,
well known to folks in the room.
The AFLCIO, the UAW, and
the Chamber of Commerce.
It's out of an
old Sesame Street.
Which one of these
doesn't belong?
And we're in this moment
in the mid 20th century
when my dearly departed
colleague departed to Berkeley,
not to heaven having.
Paul Pearson likes to
say, well, business
was liberal then
because they had to be,
because the New
Deal and Democrats
and their electoral
domination forced them
into a more moderate posture.
Whatever the reasons
for it, business
did have a more moderate
posture at the time.
And so the kind of
constellation of interest groups
and coalitions that
create that moment simply
is no longer with us.
And I think that also
deserves more study.
There are people writing
on that, the transformation
of the business coalition
in American politics,
its tethering to a wing
of the Republican Party,
things like that.
But of course, today,
what's the chamber?
It's Tom Donohue.
Along with whenever I see
him speak on Meet The Press,
I think of him and Sean
Hannity and Brett Kavanaugh,
three Irishman who make
my Irish grandmother
roll daily in her grave.
But that's another
conversation altogether.
So this is a conference in
part about counterfactuals.
We're asking what would
reality, what would 2016, 2000,
what would an alternative
set of incentives
look like were our
electoral system
to be organized differently?
And I want to advance a
reading of Alex's book,
especially in its
later chapters,
in which one counterfactual
in particular stands out.
And so let me introduce
that counterfactual
by way of my
daughter, who we were
arguing over Democratic
candidates for president.
She was making the case for
someone other than Joe Biden.
And the remark came out
sort of like the following.
Besides, Delaware
isn't a real state.
[LAUGHTER]
This remark has now become
famous in the Carpenter family
lore, so much so that it gets
repeated by people who've never
been to Delaware and who might
possibly misspell it where it
puts it under the spelling bee.
But let's run that.
We're in part here because of
the phenomenon of Donald Trump.
It may not be well
known, I think
it's reasonably well known.
You could redraw
two state lines,
put the panhandle and
Alabama or Georgia,
and put superior state, which
has been a proposal that
existed since the
1840s or 1850s,
either make it its own state
or attach it to Wisconsin,
and Hillary Clinton wins the
electoral college in 2016.
So the departure of
the electoral college
from the popular vote
depends very heavily
upon the construction, the
deeply artificial and political
construction, of
state boundaries.
So I'm going to oversimplify
in what's about to follow.
But let me say that the
two principal sources
of non proportional statehood
admissions in American history
come from two eras of
sectional conflicts.
The first is the
so-called balance rule
that characterized
what you can loosely
call the antebellum
republic, where
slave states were admitted
to offset those deemed free.
And the second was the
Republican Senate stacking work
of the late 19th
century, for which
the authoritative
treatment has actually
been written by Charles Stewart,
a fantastic article in Studies
in American Political
Development, which
I've also taught.
In the first case,
it's simple enough
to note that by 1860, the
population of post 1789 slave
states was systematically
below that of free states
by a factor of half or more.
And the easiest
way to do this is
look at the size of the House
delegations at the time.
Simply much larger in the
North, smaller in the South.
For the second, it's sufficient
to note that a number of states
admitted to the Senate
or to the Union,
excuse me, in the
1860s would not,
under the usual population and
economic development ratios,
have attained statehood
properly according
to that counterfactual
until the late 19th century.
Wyoming, what 1970, 1980?
Roughly.
So the jokes about
Wyoming earlier,
they're somewhat appropriate.
Note that two of the
principal Western states
and two of the most liberal
today, Oregon and California,
are actually already
in the Union by 1860.
So what are the implications
for Alex's argument?
Well, a lot of the
near misses here,
I'm going to argue, concern
those states and the fact
that they're in the
Union at the time.
So let me just
focus on one, which
is the House vote on
the Celler resolution
and the Senate failure to
produce closure in the debate.
Alex in the House vote
gives this summary.
He says, a majority of
votes against the resolution
came from the
Southern Democrats,
with most of the rest cast
by conservative Republicans,
particularly from the
mountain and plains states.
Once you get to the
Senate closure vote,
you start taking a
look at, and Sam Wang
earlier said, why not one
Dakota as opposed to two?
So I just went
through Alex's table,
and suppose you just
did the following.
Merge the Dakotas and
Nebraska into one state.
Do something similar with
Wyoming, Idaho, and Montana.
You basically get the
2/3 majority you need.
There are different ways of
computing this to do this.
Now, these counterfactuals
can be run in a million ways
from Wednesday.
I get that.
The other thing you can say
is, well, wait a minute, Dan.
What about all the interesting
progressive politicians
that come out of this period
in the mid 19th century?
McGovern from South Dakota,
Mike Mansfield from Montana.
I would argue those
are the exceptions that
prove the rule, that
these are largely
conservative aggregations
and actors in 20th century
politics.
So let me be very
clear that I am not
interested in advancing any
kind of functionalist rendering
of a deep relationship
between the electoral college
and the particular path that
statehood admissions have
taken.
Part of the reason we're
here is the same reason
that the reconstruction
amendments and land grant
colleges are here, namely that
the rump Congress of the 1860s
combined with what
Republicans saw
as a unique opportunity gave
that Western push for statehood
admissions.
They just had the votes.
But let's confront the
elephant, or if you
will, the donkey in
the room, since we're
talking about counterfactuals
and talking about one that's
actually quite plausible.
The future of any
sort of reform,
whether it's the
one favored by Ned
or whether it's the one favorite
by Article V enthusiasts,
depends upon Democrats
having cross branch,
legislative power
in the coming years,
not so much the state compacts.
Although we can talk about
particular coalitions there.
There was a time when the
rural tilt of the US Senate
actually paid some modest
progressive dividends, namely
in the majuscule P populist and
majiscule P progressive eras.
So if you think about the
16th through 19th amendments
or the important economic
regulation that came out
of that period, it's pretty
clear that a lot of that
owes to agrarian voting
patterns and representatives.
Elizabeth Sanders in her
book The Roots Of Reform
has tallied up the number
a lot of the votes,
particularly from those
areas of grain farming
that weren't dependent, like
dairy, on local markets.
They were more subject to
international trade flows.
But for now, for the
moment, for any proponent
either of electoral
transformation
or other egalitarian
programs, there's
no such delicious reality.
Any more egalitarian initiative
has to place political reform
high on the agenda.
And in my reading,
it needs to start
with statewide admissions,
not merely for reasons
of political pragmatism,
but, I would argue,
for reasons of
political equality,
which gets back to Alex's
last point about race.
Ending the denial of
full representation
to the District of
Columbia and Puerto Rico
and its non-white majorities
would be one element
of that political equality.
But of course, there
are others having
to do with how it would
change the political calculus,
not only for votes
in the Senate,
and think about further
statehood admissions,
but how it would change
the ratification ballgame.
And I'll conclude there.
ALEXANDER KEYSSAR:
Thank you, Dan.
[APPLAUSE]
Barry?
BARRY BURDEN: Well,
I had the pleasure
of reading a couple of chapters
from the book from essentially
the early 1800s until
the 1970s, where
we end with a vote
of 84% of the House
in favor of replacing
the electoral college
with a national popular
vote and 54% of the Senate
doing the same.
Not enough for the 2/3
required, but one of many cases
that were frustrating and
pleasurable to read about
at the same time.
How do we come to the
precipice of reform
and not make it happen,
especially in this long arc
of American history
where the movement has
been in the direction of
greater suffrage, a greater
belief in democracy,
greater involvement
of the federal
government in elections,
and a greater belief, I
think, in popular rule?
The electoral college is the
main holdout from all of that.
How does that happen?
Well, as Charles said,
there's no single answer.
It's one thing after another.
Though I went looking pretty
hard for some commonalities.
So I'm going to try to
point to some things that
seem to come up again and
again in these instances.
And so I've
classified what I saw
into a few categories of
things that have stopped
the electoral college reform.
One are things that
are gone that were
important roadblocks
at one point
but are no longer with us.
There are many of those.
One is a bigger set of things
that are still with us on top
of the dominant status quo
favorability towards keeping
things the way they
are, the difficulty
of amending the Constitution.
Some of those are
transformations
of things that are now gone.
They have turned into something
else and stuck with us.
Then I'll mention a few new
things that I think have
emerged as roadblocks that were
not in most of this history
and then just raise a couple of
puzzles about periods that look
like opportunities where some
reforms should have happened
and it didn't.
And I'm not quite satisfied, at
least by the chapters I read,
as to why those opportunities
didn't turn into reform.
So what are the things that are
gone in terms of roadblocks?
One is an early argument
that it would simply
be too difficult to
administer a popular election
in a big country like ours.
With its 13 states or
whatever the number
it was at the time,
that would have simply
been too challenging
as an infrastructure.
That argument, surprisingly,
is not around any longer,
as far as I know.
There is a second resistance
or second part, I think,
of the movement
towards reform that
appears in the 1820s after
the Jackson loss in 1824
to Adams that Congress wanted
out of the business of handling
the contingency when the
electoral college did not
choose a majority winner.
Today I don't hear members
of Congress saying,
we don't want that power.
I think they will
gladly take that power.
That's really the one
instance where that comes up
as a motivation, and so you
get the Adams and Jackson
supporters in Congress
sort of on the wrong sides
of the argument,
because they have
different reasons for wanting
to reform the electoral college.
And the third one,
and the one that
gets the most treatment
in the book chapters,
is about the
uniqueness of the South
and disenfranchising
blacks and there being
a large black population there.
And so that encouraged
Southern politicians
not to go along with any
kind of national popular vote
plan, because it would have
lessened their influence
in the national decision.
That's true when slavery is in
place through the Three Fifths
Compromise.
It's true through Jim Crow
and the white supremacy
movements in the late 1800s.
So it's not until you get
to about the 1920s or '30s
where that begins to not be the
dominant factor, I would say.
So those things are mostly gone.
So what's still with us?
One of the factors
is that there's
no agreement on what would
replace the electoral college,
even if there is widespread
dissatisfaction with it.
As Congressman
William McCullough
is quoted in the book
and says in 1969,
after introducing multiple
plans himself to reform
the electoral college, a
proportional plan, a district
plan, a national
popular vote plan,
he says the disease is
clear, but the remedy is not.
So here are a bunch of plans.
That doesn't do a lot to
coordinate the actions
of Congress on a single reform.
[LAUGHTER]
In fact, the
national popular vote
doesn't become a focus
as a main alternative
until after the 1960s,
really until the Civil Rights
movement and some other
reforms take place.
So it's not even clear
whether the right strategy
for reformers is to
set this up as a battle
between the existing system
and the national popular vote.
That's what was done
in the House in 1969,
and it got over 80% support,
but it failed in the Senate.
Is it better as a strategy
to have a menu of options
and let them all be hashed
out in the public sphere?
Birch Bayh tried that for a
while and then backed away.
President Nixon
hedged as this battle
was taking place in Congress.
At one point he
supported a district plan
or a proportional
plan, because it
seemed like a middle
path between the existing
electoral college and a
national popular vote.
So it's nothing
principled about that.
But would it have been better
than the existing system?
Would it have passed
as an alternative?
We don't know.
And I just leave that
as something for us
to think about.
Other things that
are still with us
are arguments for
protecting small states who
would lose influence,
protecting federalism, which
would be undermined,
and generally protecting
states' rights to
organize themselves
and their elections
as they wish.
Those arguments came around
pretty late in US history.
It's really not
until the late 1800s
that you begin to see
arguments in the press
and from members of Congress in
Alex's book for states' rights
and protecting states.
And most of that, I think,
he shows convincingly
is cover for white
supremacy in the South.
It's a superficial argument
that seems logical and seems
constitutional or
legal or something else
but is really protection for
some other lesser motives.
In fact, small state
representatives, small state
newspapers, small state
members of Congress,
were not arguing through
most of American history
that they would be penalized
by moving to a popular vote.
There are editorials
quoted in the book
from small state
newspapers saying,
we're all in favor of a
national popular vote.
So it does make one
wonder whether relying
on the argument about
small states and federalism
and so on becomes kind of
a self-fulfilling prophecy.
It wasn't based in fact.
These were just assertions
made by opponents
of the national popular
vote as to why we shouldn't
go that direction, but
it becomes something
that then opponents
begin to lean on,
even though it wasn't
something that actually
originated the argument.
So it's just a question as
we think about reform today
what kinds of arguments
are being lodged
that are rooted in some
falsehood from the past
or are people leaning on that
don't actually rely in fact.
I'd remind people that New
Hampshire and Iowa are two very
small population states.
Get plenty of attention
in the electoral college.
I'm from a medium
population state.
I'd be happy to
give up my front row
seat in next year's presidential
election for a popular vote.
Other things that
are still with us.
There were concerns,
especially as the popular vote
was being considered, about
the variations in rules
for suffrage across the states.
Not just about African Americans
in the South, but broader rules
about the voting age and whether
the federal government would
have to then be
involved in setting
federal standards to make sure
there was a national election.
That was something that held
up reform in some cases.
Today, I think that
has flipped a bit.
There is concern if, say,
the national popular vote
interstate compact
went into effect
that states might
begin to loosen
their rules for
eligibility to vote
in order to crank up support.
That California might
lower the voting age to 13
in order to get more Democratic
votes into the national box.
Or in more seriously,
the discussion
about ex-felon voting rights
in Florida or elsewhere.
If a state were
interested in helping
its side in the national total,
it could change its rules.
And without national
intervention,
there might actually be more
variability in suffrage rules
across the states.
So early on, as
late as the 1970s,
this was a concern
about the feds
coming in and forcing
the states to adopt
rules they didn't want.
Now it's a concern about
the Fed's not stopping
the states from adopting rules
that others might not have.
Other things still with
us as roadblocks, one
is that Congress gets
distracted by other things.
This is not a full throated
argument in the book,
but it comes out
from time to time.
In the 1860s after
Lincoln's election,
the electoral college reform
doesn't happen in part
because the Congress is
focused on impeachment
of Johnson and
reconstruction, and that's
going to take us a few decades.
So their eyes are
on something else.
In the 1880s, when there were
other scandalous elections,
their eyes are on the economy
and economic downturns
and tariffs and other
kinds of reforms.
In the 1960s when there
is a lot of attention,
nonetheless, Congress
is distracted
by Vietnam, race relations, an
opening on the Supreme Court
that ends up contaminating the
battle in the Senate in 1970
and probably dooming it
there by turning Southern
Democrats against the reform.
It's possible.
It's possible that
Congress gets distracted.
They were distracted
in the '60s,
but it did in fact,
pass with majorities
as a constitutional
amendment in both chambers.
And Congress has done other
things around election reform,
despite being busy.
I think there is a
second concern here
that maybe as part
of this, there's
always another presidential
election looming.
And if one is trying to fix the
errors from the last election
in time for the
next one, Congress
is not very well equipped to
do all that in a timely fashion
and work through, if it's
a constitutional process,
work through the
states afterwards.
So at least some
of these cases are
Congress beginning to move
in the direction of reform,
seeing the next presidential
election looming,
and then backing away saying
there's not time to fix it.
I wonder whether
reformers today might
agree that whatever
form is adopted
would not go into effect
until one or two or three
presidential elections
from now to take off some
of that immediate pressure.
Other things still with us.
You probably need to make reform
happen an entrepreneur who
is willing to take
this on as a cause,
whether it's Celler or
Bayh or Lodge or Humphrey.
These figures are there.
You probably need an
ally in the White House.
Johnson and Nixon were sort
of that in the '60s and '70s.
But that helped.
Frankly, it helped.
You probably need a
precipitating event.
So please go create one.
[LAUGHTER]
My view is that ranked
choice voting in Maine
happened for a lot of reasons.
One reason is Paul
LePage, who was
viewed as an undesirable
governor elected
through an undesirable process.
Bush v. Gore led to
a number of reforms,
the Help America
Vote Act, and others,
not the electoral college.
But you probably need an
event, an entrepreneur,
and these other things all
to fall right in place.
One event that sort of
works in a backwards way
is George Wallace and his
appearance in the '68 election,
potentially costing Nixon
the election, and a worry
that that might bite Nixon
more directly in '72.
That probably helped
Nixon get board
with some kinds of
reforms and shape
the votes of
Southern senators who
wanted to appease their
constituents while making sure
that Nixon didn't
ruin things for them.
The other general problem
that is still with reformers
is that the reformers' arguments
are mostly about principles.
It's just a good
idea for each person
to have equality in a
national popular vote.
But the opponents who
have the favorability
of being with the
status quo can raise
lots of concerns about
the specific consequences,
the details, and that's
where it bogs down.
I think being on the side of
principles is a good thing,
but not being aware of or
confronting those consequences
all the time in advance is one
thing that has hurt reformers.
So those are things
that are still
with us that have not
gone away that are
likely to inhibit reform.
There are some things that
are new, that appeared
after the chapters that I read.
One is that these
issues have become
divided by party in a way
that they were not in any
of these earlier episodes.
Not any of them.
In most of them, these
were factional battles
of some Republicans
and some Democrats
working for reform
and some Republicans
and some Democrats
in the Congress
working against reform.
Today it's mostly one party
pushing for reforms and mostly
one party on the other side.
So we need more factions.
Please help create those.
There's also very
little discussion
of the filibuster or the
structure of the Senate
as being a roadblock.
And maybe it was not in
these earlier periods.
It begins to appear
in 1970 in the debate
there where Bayh had to
work through the filibuster
to even get a vote and
then failed to get to 2/3.
And in fact, he used the
filibuster to his advantage
at one point as well.
But it strikes me
that it has to be
part of the discussion
in Congress today.
All right, so a
couple of last things.
I think it seems
to me there were
missed opportunities
for reform in other eras
where reforms were happening.
And these struck me as
dogs that did not bark
and I didn't have a
full understanding
of why that didn't happen.
Think of the areas of
massive electoral reform
and other reforms in US history.
The progressive era documented
very nicely in the book
includes women's suffrage, the
secret ballot, direct election
of senators, and other
things, some of those done
by constitutional amendment.
No real movement towards
national popular vote or reform
of the electoral
college at that time.
In fact, from 1900
to 1910, there's
not a single
proposal in Congress
to do away with the
electoral college
as constitutional amendment.
The 1960s, there's
reapportionment.
It obviously happens as a
result of court decisions.
The District of Columbia
gets electoral votes.
The Voting Rights Act pass.
Presidential nominations
are reformed.
Again, constitutional amendments
all over the place, but not
an immediate movement to
reform the electoral college,
though that happens
about 10 years later.
So it doesn't look to me as
though members of Congress
or members of the public
are averse to tinkering
with the Constitution.
We mess with it every so often
in the name of making democracy
better, but it hasn't happened
with the electoral college.
This leaves the third
missed opportunity,
which is the period
right after Bush v Gore.
Congress was
distracted after 9/11,
but it didn't stop
it from enacting
BCRA or HAVA or tax cuts.
There was plenty
busy legislating
and could have focused on this.
It's possible, I think, as
someone said this morning,
that working on HAVA
actually ratified
other parts of the
electoral system,
including the electoral college.
So there may be trade offs
between one set of reforms,
as Sam mentioned, to deal
with one set of problems
actually cements other
institutions that we think
are worthy of reform as well.
Thank you.
[APPLAUSE]
ALEXANDER KEYSSAR: Before
turning this over to David,
just a brief response
to one of the things
that [INAUDIBLE] said.
There is another
chapter to the book
that no one has read that
goes from the period of 1980
till yesterday.
Literally yesterday.
And it does treat Bush v
Gore and the partisan period.
And now David Boies.
DAVID BOIES: If the function
of political science
is to generalize, the function
of lawyers is to simplify.
And so in terms of why we still
have the electoral college,
particularly in
the modern period,
I think it is a confluence of
two factors in our politics.
Short term almost always
trumps long term interest,
and local almost always
trumps collective interest.
And you see that, I think,
a lot in the obstacles
to electoral college reform now.
And you saw that
in the example that
was mentioned earlier on
the opposing positions
of the Republican and
Democratic parties
in California and
North Carolina.
The reason that each state's
dominant party likes winner
take all is because it
greatly advantages that party
and greatly disadvantages
the other party, not
only in the
presidential election,
but in local and
statewide elections.
Because if you have
a party that you know
is going to win the
presidential election,
that tends to suck the energy
out of the other party.
And so whether you are the
Republican Party in Alabama
or the Democratic
Party in California,
you have a important
interest in winner
take all, because that
solidifies and expands
your power, not only
in terms of the impact
on your national
presidential candidate,
but in terms of your
local interests as well,
and in terms of short
term over long term.
The reason that you could
get the 12th Amendment
was that the party whose ox was
gored was the majority party.
What you had in the
1800 election is you
had a dominant party whose
will was being frustrated
or potentially
frustrated by the way
the electoral college worked.
And so you had the confluence
of a obvious problem
together with that
obvious problem
disadvantaging the winner.
What you have in more
recent elections where
the person who gets
the popular vote
loses the electoral
college is two things.
One, you have a very
divided country.
It was much less divided in 1800
in terms of electoral results.
Always hard to get anything done
if you're seriously divided.
The status quo almost
always wins in that context.
But at least as important
is that the person that
was the party, the interest
that was disadvantaged,
was the loser.
And so when you don't
have a dominant party who
is being hurt by
something, it's much harder
to get that reform done.
Now, if you think
long, term and this
is why I think the
suggestion that maybe you
have a amendment that
doesn't take place
in terms of effectiveness
for some period of time
has a lot of value,
is that I think
people can know that political
fortunes will ebb and flow.
When winner take all was
put in in Massachusetts,
it was put in to preserve
Republican dominance, not
Democratic dominance.
It now serves to reinforce
Democratic dominance
at the national level.
I think that people
can focus on the fact
that something may be
better in the long term
as long as it is not harmful
to them in the short term.
So that if you have a reform
that people can understand
is generally better
and you don't
have to overcome the obstacle
that people will think
is going to be bad for me or
my party in the short term,
I think you have a
greater chance for reform.
Now, in terms of
what kind of reform,
I think it is absolutely true
that the fact that there are
different possible solutions to
the electoral college problem,
in some senses, makes
it more difficult.
I think that, from a
personal standpoint,
if you look at a solution that
takes the electoral college
vote division and simply
allocates that proportionally
by state, you will solve a
great many of the worst problems
of the electoral college.
The two worst problems, I
think, of the electoral college
is that, A, it can give
us a minority president,
and, B, it focuses
attention on a handful
of states, which has a number
of distorting consequences.
It excludes a lot of
people, in effect,
from the national election.
It focuses the attention
of the political leaders
and political candidates
on issues that are
peculiar to particular states.
It discourages
them from focusing
on issues that may be
very important to states
that are not so-called
battleground states.
So I think those two problems
are the real problems
of the electoral college.
And those two problems
would be largely solved
by a solution that keeps the
allocation of electoral votes
the way it is now, which
does distort, to some extent,
based on state population.
A voter in Montana obviously has
a great deal more voting power,
in that sense, than a
voter in California.
But that differential
would rarely
affect the two what I think
there are fundamental problems
of the electoral college.
The areas where we have
got minority presidents
in the last few decades,
couple of decades,
are cases where, if you'd
had proportional division,
the winner of the electoral
vote would have been
the winner of the popular vote.
It would be a very unusual case.
It could happen.
But it's a hard arithmetic
model to predict
that you're going to have a
situation in which somebody
would win the popular vote
but lose the electoral vote
with the electoral vote
proportionally divided
on a state by state basis.
Second, if you
divide the electors
from each state based on
the proportion of the vote,
you do a number of things.
First, you encourage candidates
to go to a lot more states.
If you talk about the interests,
for example, of small states.
Nobody goes to Montana to
campaign or North Dakota
or South Dakota.
You would get some.
Maybe you wouldn't
get the president,
but you might get
the Vice President.
You get more campaigning
there because those votes
would count now,
whereas candidates
know those votes don't count.
And you obviously would
get tremendously more
presidential campaigning
and presidential candidate
attention to the issues that
matter to states like New York,
Massachusetts, California.
So I think that a reform
that divides electoral votes
proportionately by the
popular vote within the state
solves what I think are
the fundamental problems
of the electoral college.
And at the same
time, it avoids some
of the issues that may be raised
in terms of concern of if it's
a national popular vote.
Does that encourage states to
somehow manipulate the process,
to lower the voting age or
not keep people who are not
entitled to vote from voting?
Are they trying
to pack the vote?
If you have a proportional
division of electoral votes,
you don't face that problem.
So I think that--
and in addition, while I
agree that historically
the small state bias of
the electoral college
has not been a important
obstacle to electoral college
reform, I'm not so sure
that that's not true today.
I'm not so sure that voter--
state legislators in
Montana and Wyoming
and North Dakota
and South Dakota
wouldn't be
influenced by the fact
that going to a
national popular vote
would very much reduce
the impact of their voters
in terms of the
national election.
So I think, again, going
to a proportional division
of electoral votes
solves that problem.
Whether it's a significant
problem or not,
it's at least a
potential problem.
So I think that if you could
get over the short term
bias and the local bias
and you could divide
those votes proportionately,
I think that is
a reform that might happen.
We're trying to get the courts
to implement that reform.
The courts, obviously, cannot
abolish the electoral college,
but there's nothing in
the electoral college,
nothing in the Constitution
that supports winner take all.
And if you just look at normal
constitutional principles that
are applied and have been
applied by the courts
outside of the electoral
college presidential election
context, where you have a two
step voting process, where you
have one political
subdivision that votes
and then the people who
are elected there vote
for the next office, which is
something that has happened
in a number of cases,
historically, the courts
have held that that
is unconstitutional.
It violates the Equal
Protection Clause.
Because what it
does is it discards
the votes of the losing
people in the first phase.
Obviously, if it's a
single phase election,
one party wins, one party loses.
But when it's a two
step election like that,
the courts have identified
a serious equal protection
problem in terms of a
winner take all result.
So I think there is
an analytical base,
a sound legal analytical
base, to attack
the winner take all aspects
of the electoral college.
Whether a court is going to
be prepared to do that or not
I think is something that we're
finding out over the course
of the next several years.
But the real path to reform
is to somehow convince
the Congress and then the
states that these aspects
of the electoral college,
whatever its original purposes
were, no longer exist.
There's something on
one of those walls where
they have all the important
statements by various jurists
and people interested in the
law outside, and one of them
was a quote by Oliver Wendell
Holmes that essentially says,
it's a bad idea to do
something just because it's
been done for a long time, and
it's a particularly bad idea
to do it when of the reasons for
doing it originally have gone.
And I think that applies
to electoral college.
ALEXANDER KEYSSAR: Thank you.
[APPLAUSE]
I'm not going to
respond at this point.
I'm not going to take any time
to respond to the people who
read my chapters
except to say really,
thank you so much
for your comments,
and I really appreciate it.
But I want to take what
little remaining time we
have to open it up to people
who have been sitting patiently,
quietly, and to whatever
questions or comments you
would like to put forward.
AUDIENCE: I just would want to
echo David's comment debating
and disputing the claim that
the advantage of small states
is not [INAUDIBLE] factor.
But when the case
of Montana comes up,
I happen to listen to
the debate in Montana
on the national
popular vote compact.
And two propositions
were we can theoretically
have more campaign visits.
But the opposing side is
yes, but right now we're
four times the power of
vote than California.
Would we be doing our
constituents justice
to remove [INAUDIBLE]?
And that clearly
won the day, and I
expect it would win the day
in a lot of other [INAUDIBLE]..
ALEXANDER KEYSSAR: Let me
just say one thing in response
to that, which is that I can't
say that that wouldn't happen.
What I can say is that many,
if not most, of the leading
advocates for a national popular
vote in the 1960s and 1970s
came from small states.
William Langer of North Dakota
was the most critical person.
Mike Mansfield, who
has been mentioned.
John Pastore of Rhode Island.
And opinion polls that we
have from small states,
again, we're talking
about pre 2016.
The world may have just
gone completely nuts
since then, in all respects.
But so I'm not--
yes, that's true,
but it hasn't always
been a compelling reason.
And the forces that make it
a compelling reason or not, I
think we need to try to unearth.
AUDIENCE: I just had a question
about that proportional side
of things, because
I think there's
lots of different ways of
thinking about proportionality.
So I just wanted to--
and looking through this through
the lens of the 2016 election
and understanding there's
counterfactuals about how
campaigns operate and all that.
But you can imagine a strict
proportional system which,
by my math, would have given
Clinton 265, Trump 261,
Gary Johnson 10, and the race
is then thrown to the House.
So strict proportional, in some
ways, and probably in 1992,
1912, throws a lot more
contingent elections
to the House again in
pure proportionality.
A second alternate
might be you have
sort of a floor of 15%
threshold, in which
case, in 2016, it would
have been Clinton 270, Trump
267, McMullen 1, which is
a pretty razor thin margin
in the electoral college.
Or an alternative might
be the sort of [INAUDIBLE]
proportional representation
system with sort of [INAUDIBLE]
system of majoritarianism.
You get 50%, you get all of it.
You get below 50%, you
sort of divide it up
and then it's Trump 277,
Clinton 260, McMullen, 1.
So I just wonder,
there's different ways
of going about it.
I'm particularly worried about
the House contingent election
outcome [INAUDIBLE].
ALEXANDER KEYSSAR: When
we talk about proportion,
we're not talking about
proportional in the sense
that you have in
some countries where
if you get enough to have one
vote, you get that one vote.
I think you would
have a floor or you
could have just it divided
among the top two candidates.
So I think that
you're 100% right.
You wouldn't want to have a
situation where everybody could
run and if you got 5% of
the votes in California,
you get a couple of electors.
But you'd either--
you could have a floor
or you could have it
just among the top two
and divide the electoral things
proportionally among those
two in proportion to
each of their votes
compared to the other.
AUDIENCE: With all
this arithmetic,
these numbers that you just
gave are, in fact, correct.
I think a 270 to 260
electoral vote [INAUDIBLE]
2016 would have probably
been contentious.
[LAUGHTER]
ALEXANDER KEYSSAR: You think?
[INTERPOSING VOICES]
AUDIENCE: Yes, Barry.
You exhorted everybody who's
listening to create factions
and precipitating events.
And yet [INAUDIBLE]
preceded you used
all kinds of nomenclature
about spoilers and threats
and third parties and whatnot.
So how do you balance
what you heard
this morning with what you're
asking all viewers to do?
BARRY BURDEN: Well, I don't
want to encourage chaos.
So we don't need more factions
and more events in that sense.
But I think that
history makes clear
that you need those things as
part of the stew that leads
to some significant movement.
Take Nixon, who was on board
with some kind of reform
in the late '60s, early '70s.
He's worried about George
Wallace coming back and winning
a bunch of southern states and
ruining his southern strategy
and letting the Democrats
knock him out of office.
So that's maybe an unsavory
part of American politics,
the George Wallace
vote, but it actually
made the discussion
happen that wouldn't
have happened otherwise.
So I don't know that we
can predict these things.
There are certainly
events and factions
that don't lead to serious
movement towards reform.
So they're not a
sufficient condition,
but they seem like a
necessary condition, at least
for the instances
that I read about.
AUDIENCE: So the successful
constitutional reforms
that you mention to improve our
democracy-- lowering the voting
age, granting women
the right to vote,
et cetera, they all have
this virtue of people
can point to the people
who are disenfranchised,
19 year olds, women,
and then saying
let's give them
the right to vote,
and those people
themselves can organize.
That's obviously very difficult
with electoral college reform.
There's no one group
that you can say,
these are the people
we're harming.
So I'm curious for the folks
that have read the chapters,
how did they get closest
in explaining to the public
and explaining to
House members, these
are the people who are
really being harmed,
and we need to do that.
What's the best
messaging there that
is akin to let's grant those
people the right to vote now?
ALEXANDER KEYSSAR:
I think, well,
the best messaging in terms
of a national popular vote.
I mean, again it's
different if you're
talking about districting
in the 19th century.
Proportional really
emerges as an alternative
to district thing because
of gerrymandering.
That's where the idea comes
from in the late 19th century.
The messaging that--
I mean, I'm not a specialist
in interpreting messaging,
but that seemed to work best
and the most straightforward
was all votes should
count equally.
And that everybody's vote
should count the same.
And it's not a coincidence
that this shift
of reform energy
towards favoring
a national popular vote
rather than proportional
or [INAUDIBLE] is
really propelled in part
by the apportionment, by
the courts apportionment
decisions, the one person, one
vote decisions in the 1960s,
even though those
decisions explicitly
disclaimed any
relationship to the Senate
or the electoral college.
But if you read the newspapers
and magazines from the mid
to late 1960s, it's
all over the place.
I think the fairness
principle argument
was always the most compelling.
DANIEL CARPENTER: Can
I just add one thing?
One of the tricky features,
when Barry was talking earlier,
and I think made
a very good point
about how Congress
gets distracted,
and that plays an important
role in Alex's narrative.
It's important to
remember that in a world
with presidential
coattails or just
some kind of partisan
unity to the vote,
excuse me, the aggrieved
after an electoral college
loss, which may be accompanied
by a popular vote victory,
are going to be the people
who are out of power.
I mean, this is pretty
obvious, but they're
going to be out of power
in the near term, at least
in the White House.
And usually those
incoming presidents
have at least one
chamber with them.
So you're talking about a world
in which any kind of loyalty
to the president or to
a legislative program
is probably going to
prevent any kind of action
occurring nationally at the
federal level for at least
two years.
And then what are the kinds of
things that bring electoral--
or what are the
kinds of things that
bring reversals of majorities
in, say, midterm elections?
It's usually not, I'm just
going to generalize here
for a moment, it's usually
not electoral reform.
It's something
about the economy.
It's the Iraq war.
It's a range of other things.
So this phenomenon of agenda
crowding, I think, is real.
That it recedes in population.
Or excuse me,
recedes in prominence
as one gets further
away from the loss,
the source of the folks who
are aggrieved [INAUDIBLE]..
Which is why it's all the more
important for a conference
like this to be held to keep
it on the potential winner's
agenda so that
they don't forget,
because there's going to
be a million other things,
whether it's Medicare
for all or things
that are going to be on that
potential next Congress's
agenda.
And I think it's very important
for intellectuals, activists,
and others to kind
of hold parties' feet
to the fire on those issues.
Another source or reason
to buy Alex's book.
ALEXANDER KEYSSAR:
There are many reasons.
[LAUGHTER]
But I have committed
myself to the powers that
be that we would end on time.
And we are at the witching hour,
perhaps even 30 seconds over.
And not only that, we stand
between you and lunch.
So let me thank all of the
participants for their really
very valuable contributions.
[APPLAUSE]
