SAMUEL ISSACHAROFF: Hi,
I'm Sam Issacharoff.
I'm moderating.
And I don't have a lot to
say in introduction, so
to my left is Victoria
Bassetti of the Brennan Center,
Guy Charles from
Duke Law School,
Rebecca Green from William
and Mary Law school,
and Danielle Lang from
the Campaign Legal Center.
The title of this panel
is, Courting and Selecting
the Electoral College.
We had substantial exchanges
among the panelists,
and we have no idea
what this means.
[LAUGHTER]
But we will proceed.
And let me make a couple
of introductory comments.
And then each of the panelists
will speak to 8 to 10 minutes,
and then we will resume again.
The last time I was at a
conference on the Electoral
College was in 2003.
Alex Keyssar was there and it
was held at Columbia Barnard.
And the theme was
the following--
we just had a contested
presidential election
where the popular vote loser
won the Electoral College.
And there is a crisis
in the presidency
and something has to give.
Things are going
to change pretty
quickly because the population
won't stand any more.
We're coming up
to the re-election
of that minority president.
As you all know,
everything got resolved.
[LAUGHTER]
And so here we are
again in the aftermath
of a similar
circumstance where there
is a sense among large parts
of the country that, thank God,
we have an institution to
prevent the coastal elites
from taking power.
And the coastal elites
gather in some neutral spot
like, West Side of
Manhattan or Cambridge--
[LAUGHTER]
--to complain about the outcome.
So that's great.
[LAUGHTER]
I want to pick up on a
point that [? Amal ?] made
in the last panel, which I
think is key to all the comments
that are going to follow.
And that is,
there's real tension
between the democratic
sensibilities
that we have today
and the institutions
that we've inherited.
And I think that's
what's at the core
of all the debates about reform
and all the sense of outrage.
That there's an
institutional setting
that doesn't correspond
to how we think about.
So when the Supreme Court
in Bush vs. Gore said,
no one has a right to
vote for president.
That was a shocking statement
for the bulk of America.
It didn't resonate with
how we think about things.
And so I tell my students that
the most important election
in human history may well have
been the American election
for president in 1800.
Not for any of the technical
reasons we've described,
but because in the modern
conception of democracy,
it was the first time
that it was established
that a head of state could
be replaced peacefully
by electoral means.
This is just not a factor
of the human experience
and it was something
quite unusual.
But now let me tell
you something else
about the election of 1800.
There were 14
states at the time--
large debates about
whether something
as trivial and
irrelevant as Vermont
should be allowed in to
participate with the other 13,
but nonetheless
they allowed it in--
14 states.
Of those 14 states, five
had popular election
for the president.
The other nine, it was done
by the state legislature
by appointment, as is consistent
with the constitutional text.
So when we talk about
Jefferson having
been a landslide winner, and
Jefferson having a mandate--
Jefferson won because the
Southern state legislatures
used the 3/5 leverage
in order to put him
in office by appointment.
That's why he was known
as the Negro president.
He was thought to be the
illegitimate inheritor
of the way that the Southerners
had gamed the Electoral College
system.
It doesn't correspond.
So Alex Keyssar made a
point earlier about--
changing this is a problem
of collective action.
And there is a sense
of how we coordinate.
But let me make another
historical point.
We have seen exactly
this debate play out
in a different
institutional setting.
The Constitution
doesn't mandate how
the congressional
delegations are made up.
And so after the
Revolutionary War,
after the Constitution,
modern Constitution,
there was a mixed system.
Some had at large elections.
They elected a
statewide delegation.
Some had districts.
It tended to be the
smaller states that were
at large tended to be at large.
The larger states tended to
have districts especially,
after the first fiasco
with the Pennsylvania
congressional delegation.
And then it happened
that the small states
could take advantage
of divisions
in the large state delegations.
And the large states realized
they were having their lunch
taken from them because
they were divided
and the small states could
leverage their votes.
So they started to go over
to at large elections.
And then they realized that
no state had an incentive
not to have at large
elections because that
would enhance their
weight in the National
Assembly and the Congress.
And the way they
resolve this was they
went to some
supervening authority.
And the supervening authority
was Congress itself.
And they said, we're stuck in
this collective action dilemma.
You think [INAUDIBLE]
made this stuff up?
No.
They figured it out in 1842.
They didn't have
the terminology,
but they had it all figured out.
They said, we'll never
get out of this cycle.
And so what we have
to do is we have
to have a precommitment pact.
They called it, Ulysses
and the Congress, right?
They had an understanding
that they were stuck.
And what did they do?
They said, by
legislation in 1842,
we will all agree to go over
to single member districts.
The problem we have in the
Electoral College setting
is that the constitutional
text disables
the national legislature
from applying
that kind of collective
action coordination role.
And because of that,
we have to think
of these alternative
strategies that we're
going to discuss now.
And that's a way
of understanding
why we're doing all
this arcane discussion
of a national popular vote
or a constitutional amendment
or the litigation
challenge to say,
you have to break up
the at large elections.
Everybody understands
this problem.
And if it was a matter
of an ordinary provision
of the Constitution, like the
selection of the Congress,
it could be handled as
a legislative matter.
We have a defect in the
founding instrument that
disables the one collective
national entity that
can do so as a legislative
matter from handling it.
So that's the introduction.
I think that's all I had.
That's the introduction.
I have a question
and we're come back
to about the extent to that
after the initial presentation.
So we have an order.
And I sent an email and
there was a logic to it.
I don't remember
what the logic was.
[LAUGHTER]
But I do remember the
order, so he goes first.
[LAUGHTER]
GUY CHARLES: All right,
I'll pick up from where
Sam, in many ways, left off.
Which is in many
respects, the problem
we're dealing with
today is one that
is fundamental for election law
scholars-- much more broadly.
It raises some of
the features that Sam
has already talked about.
In one respect, you have
a constitutional structure
that has a particular
understanding
and view of political
participation
that is relatively archaic.
At least or at
best it is bimodal
that is it reflects
multiple of two
views or even multiple views.
But the dominant one
is relatively archaic.
Within a structural context
that is deeply entrenched,
and the levels of
entrenchment may
depend upon the type of issues.
So to what extent
does that make it
necessary to amend the
Constitution in order
to change it?
And [? with in a ?]
also a modern context
in which it's not clear
that our institutions are
working optimally.
So even if the
Constitution did not
make it so hard to
amend itself, what
do we have a functioning
Congress that can solve
the collective action problem?
So we have layers--
this is a similar point
that somebody made earlier--
the problem here
is multilayered,
which creates then this loop
with that we're stuck in.
So we have one set of
approaches by the Constitution,
a particular conception
of democracy,
a particular understanding
of political participation
that generally reflects
an elitist understanding.
Although, mixed in with
some populist understanding,
some republican
understandings, a view of the
states as the unit
of representation.
So not just of the
individual, but also
of the state as units
of representation.
So you've got this
mix that is reflected
within the Constitution and it's
true of the Electoral College.
And you have our
modern sensibility
of what political participation
ought to look like.
That is much more
roughly populist.
That is much more inclusive.
That has an idea of
political equality
that is deeply inconsistent with
that as we saw at the founding.
So a class of approaches, but
also structural entrenchment
layered upon a political--
not just instability,
but essentially gridlock.
And then we get to resolve
and think about these issues
every three years just at
a different law school.
And quite frankly--
[LAUGHTER]
--part of me, I'm fine with
it as long as I get invited.
[LAUGHTER]
So in four or five
years, just make sure
that I get the invite.
So it's not surprising then--
given these structural
and trenchant questions
that we're dealing with--
it's not surprising
given the way
that the Constitution is itself
and different to a number
of different types of questions.
So Sam mentioned the fact that
in many ways it's shocking.
It's always a fun thing to teach
that aspect of Bush v. Gore
when not only does
the court say,
there is no right to
vote for president--
no right to vote there.
But it's actually a
contingent fundamental right,
which is like the most amazing
constitutional law invention.
A fundamental right,
but that is contingent.
It's like, wow, how did
you create that creature?
So part of what's
interesting with respect
to our constitutional
structure is the way
that it hasn't resolved
the types of questions
that we want to
take for granted and
our modern democratic frame.
But the cultural
framework has come up
with a different type
of political theory
that goes in
multiple directions.
And the question is, how
should we think about that?
And how should we resolve it?
OK.
I'm not going to have a silver
bullet for resolving it,
but I do want to take a
page out of Larry Lessig's
approach here.
Which his approach-- at
least as I've learned
from it and understand it--
is an approach that
attempts to see in what ways
can one build commonality--
can we build commonality
across divides?
Now, I think in order to do
that or to build commonality
across divides,
at the very least
we have to be able
to articulate what
our fundamental values are.
So I have the
privilege of thinking
about these questions
of political equality
as a black man in
the 21st century.
And I think for me, it
is indeed a privilege
because you get to
see the linearity.
So if you take
the very long view
in terms of arguments
about political equality
in the American context--
not just in the, particularly,
in the last 50 to 60 years--
you understand how
strongly arguments
with respect to
political equality
[INAUDIBLE] respectable
[? local ?] participation
has had an impact on
the polity, and has
changed our polity
in significant
in fundamental ways.
So you could think about
the Voting Rights Act.
You could think about
the one person, one
vote, reapportionment cases.
But even in the
last 20 years or so,
if you had told me 10
years ago that the issue
of political
gerrymandering would
have an impact on the
national consciousness
I would have said that you
were smoking something.
Or we used to talk about
the problem of felon
disenfranchisement
and thought there
would be no political process
solution because it doesn't
make any sense for it to
be a political process
solution as a matter of
public choice theory.
But all of a sudden these
arguments with respect
to political equality seem
to be making their way
across fundamental divides.
And I think it is because the
articulation of the values that
are at stake have some type
of appeal not withstanding
the political incentives that
sometimes run the other way.
So one of the things
that I want to say,
and I won't say too
much more, but one thing
that I want to say is, we ought
to be clear in articulating
what our fundamental values are
and what the value choices are
that we are making
when we're trying
to think about these questions
of political participation.
Because if we think
about how change
is made in this
particular context,
and if we take the
very long view,
we see that these questions
of political equality
and political
participation do, in fact,
have broad appeal even across
some aspect of divides.
So and one last point
then to wrap up.
I will, I promise.
Wrapping up here.
When the case is made
for political equality,
and we think about
the aspects within,
which the trade offs
that are being made,
then there is a response.
Now, that response
will have to operate
within the American context.
So you have to take
states seriously.
You have to take the question
of federalism seriously.
So it might be the case that
the change happens slowly
across states and across time.
But taking the long view--
before it gets nationalized--
but taking the
long view, at least
I am relatively optimistic
that change comes even when
dealing with entrenched
problems when
norms and values of
equality and participation
are clearly articulated.
And even if they need to be
clearly articulated repeatedly.
And when the case is made for
contrary and entrenched norms,
that--
for contract and
entrenched norms--
they can be modified
if not uprooted.
And I will stop here.
Thank you.
[APPLAUSE]
SAMUEL ISSACHAROFF: Victoria.
VICTORIA BASSETTI:
So to just follow up
on the general confusion
that a lot of us
had about the topic
of this panel--
I think, part of the reason
was because a lot of us
don't really think about who
these electors actually are
and how they're
selected or courted.
It's kind of to
the majority of us
about as relevant as
asking the question,
how is the lead fifer
going to be selected
in the Fife and Drum
Corps that we're
going to be seeing afterwards?
But since the rise
of the party system--
[LAUGHTER]
--which was almost immediately
following the ratification
of the Constitution, but more
particularly since the advent
of the Australian ballot--
and certainly since
the Civil War--
electors have been creatures,
the actual electors,
have been creatures
of the party system.
And they've only sporadically
been category experts
in what it takes to be the
chief executive of a three
point trillion dollar
budget, 2.1 million
head count organization.
Or if it were 1900, you
might want your electors
to be a little bit of an
expert in the postal system
and the custom house and maybe
with a little bit of a side
interest in antitrust
laws, as the case might be.
But our electors are
not those people.
I should add, of course, Bill
Clinton was an elector in 2016.
So he probably was
a category expert--
[LAUGHTER]
--in what it takes to be
the executive president.
But personal loyalty
and party loyalty
probably trumped his expertise
in that particular case
in evaluating the candidates.
So today, if you were a
major organization who
needed a presidential
hiring committee that
would be an independent body
of superior characters left
to the exercise of
their own judgment,
how would you set up that
presidential hiring committee?
Well, probably not the way we
pick electors or court them.
So today, 27 states with about
275 Electoral College votes
select their electors largely
via the party executive
committees, or in
other ways that I
would describe as strong
party power selection systems.
For example, in Pennsylvania,
the presidential nominees
themselves select
their electors.
So Hillary Clinton called up the
Pennsylvania Secretary of State
and said, here are the
electors I would like.
The 33 other states, plus
the District of Columbia,
select their electors at
their state party conventions.
Those states represent about
263 Electoral College votes.
I would describe that
as moderate party power
systems [? that ?] with a
moderate level of control
over the electors.
In fact, in 2016, all
of the faithful electors
came from these states.
They didn't come from
the strong party systems.
And for what it's worth, there's
even substantial variability
within the 33 conventions
selecting states.
Some of them, for example,
select their electors
at local district conventions.
And then ratify them at
the statewide convention.
In other cases, the electors
are at large and certain people
put their names up and say,
hey, I'd like to be an elector.
And then the convention
votes on them.
In other cases, the
party's executive committee
puts a slate of electors
before the convention
and then the convention
just ratifies it.
So there's substantial
variability
amongst all of these systems.
But all of them share
the trait that there
is a very substantial
level of party control
over who the electors are.
So I think that in
understanding this
leads us down the
road to understanding
why we might care about the
topic of this panel, which
is that it's relevant.
The answer to this question is
relevant to opening the door
and assessing the probabilities
that an elector will either
be faithless or
might actually do
the job as originally intended.
And I think we can
probably all put aside
the notion that
electors are going to do
the job as originally intended.
And that they are
selected in a way
that best suits them to act
as independent evaluators
of a presidential candidate.
So to focus instead
on faithless electors,
there are, of course,
other variables
besides merely the
selection system
that could play into
determining whether or not
they're faithless.
The first, which was alluded
to in the second panel
is the contestation
of the party primary.
In other words, how hotly
contested is the primary?
All of the convention
states the weaker party
power ones select
their electors prior
to the national convention.
And that means that in
periods of high contestation
or instability, the odds are
higher that the party binds
between the elector and
the party are going to be
looser or weaker than usual.
Then another factor
or variable is
sharp ideological or
regional divisions.
When you look at the post
1900 faithless electors,
you can see a thread of
racism running through it.
So there were three
faithless electors
in '48, '56, and '68 who
were propelled by racism.
Or abortion issues in
1976, that was one of the--
and then there's a
smattering of other concerns
here or there, so kind of
a strong ideological bind.
Then another factor is
the presence or absence
of the penalty for acting
as a faithless elector.
Today, you need to bear in mind
that only 15 states provide
any sort of penalty or
enforcement mechanism
for being a faithful selector.
Others of them require
pledges, but there's
no penalty for breaking the
pledge aside from being shunned
or cast out of the party.
But I don't think that
one can say that given--
that these provisions
have necessarily
had that much of an impact
on faithlessness compared
with the softer variables
that might be in play
in determining faithfulness.
Finally, there's also cabal,
intrigue, and corruption.
So at the outset, of
course, the framers
hoped that the creation of a
transient and geographically
diffused body of men would--
and of course it was men--
would reduce the chances
of cabal and intrigue,
but we've got the internet now.
So--
[LAUGHTER]
--that's not going to work.
A survey of electors from 2000--
2004, 2008, and 2012 showed
a very substantial number
of them--
received death threats,
multiple contacts,
and lobbying campaigns to get
them to alter their votes.
And then the final variable
that I was thinking about
was closeness-- obviously, the
closeness of the election--
is also a key variable in
determining whether or not
someone would be faithless.
Overall, most modern
faithless electors
are exercising
idiopathic, occasionally,
quixotic expressions
of personal viewpoints
rather than being true
electors as we think of them.
Almost all of them are
making personal statements.
And they've only
been able to do this
because they're nestled deeply
within an election process that
guarantees that their
decisions are safe,
read irrelevant to the outcome.
Now, there's also some
evidence that there
might be a seed of
faithlessness amongst more
electors than we think.
That same survey
that I pointed to
before shows that up
to 11% of the 2000--
the 2012 electors
reported having considered
switching their vote.
How seriously they considered
it and why they didn't is
an interesting topic.
And that's a little bit of
what we're talking about.
But overall, I think
that the system of party
control that we're talking
about and all these variables
are not going to
substantially change
in the coming decades leading
to an efflorescence of more
faithless electors.
I suspect that, in fact, in
the wake of the 2016 election,
we're going to see a move
towards stronger party control
as state level parties are going
to work harder to screen out
potential faithless electors.
Incentivize faithful
electors and penalize them
in ways that are
harder to measure
than has currently been done.
Now, the critical
issue, of course,
is the level of instability
in our party system today.
And we know that there's a kind
of a macro level instability
as more and more people are
fleeing the party affiliations.
But when you take a look at
the micro elite party level,
the state level parties
are still powerful.
They're still locked in
on a legislative basis
as being the gatekeepers for
the selection of the electors.
And one thing to kind
of keep an eye on
are these state level or even
local level efforts to disrupt
the small scale party system.
As, and if, that
happens more you might
see a more faithless electors.
But overall, I
wanted to conclude
by quoting Justice Jackson
in his Ray v. Blair dissent.
"Electors, although often
personally imminent,
independent, and
respectable, officially
become voluntary party lackeys
and intellectual nonentities
to whose memory we might justly
paraphrase a tuneful satire.
They always vote at
their Party's call
and never thought of thinking
for themselves at all."
[APPLAUSE]
SAMUEL ISSACHAROFF: Thank you.
That was just fascinating.
It's one of these
issues that you
can spend your career
doing this stuff
and just never think about.
And the question that
you ended up with,
which I hope others will touch
on is, as parties break down
and State parties are weaker
and weaker institutions--
and as you get
insurgent candidates
who run for the destruction of
all the institutions before--
will this play out at the
level of [? faithless? ?]
It's a great question.
Rebecca?
REBECCA GREEN: All
right, thank you.
I'm so happy to be here.
Thanks to the [? Journal ?] and
[? Margaret ?] for inviting me.
So I teach privacy law in
addition to election law,
so that's sort of
the frame I approach
these kinds of questions from.
I'm interested in exploring the
effect of the passage of time
in the development of technology
on privacy and transparency.
And someone who is a
great thinker in this area
is, Professor Lessig, who wrote
a book called, Code, where
he wondered about
the effect of passage
of time, development
of technology
on the Fourth Amendment.
And he came up with this
concept of translation.
And his idea was, if the
founders understood privacy
in one way when they wrote
the Fourth Amendment--
and we're now, as a
Court, interpreting
the Fourth Amendment today--
we should try and translate
their understanding
what privacy meant back
in the day of the founding
to the modern context.
So in thinking about
the Electoral College,
I thought I might try a
little thought experiment
along those same lines.
So the original design
of elector discretion
in the Electoral
College was to serve us
a check on popular will.
In Federalist 68,
Hamilton emphasized
that the Electoral College
mechanism is principally
a check on popular will.
One of his biggest concerns,
of course, was corruption.
Praising the design of
the Electoral College,
he believed its detached
and divided situation
will expose electors much
less to heats and ferments.
He explained that
nothing is more
to be desired than that every
practicable obstacle should
be opposed to cabal,
intrigue, and corruption.
And he was especially
worried that foreign powers
would gain an improper
ascendant in our councils.
Hamilton saw the
Electoral College design
with electoral
discretion at its core
as a [? bow work ?] to protect
against these exact dangers.
And two preconditions
of his design and life
in post revolutionary
America, secured these goals.
Number one, the temporal
nature of electors.
And number two, the
dispersion of those
electors throughout
the 13 states.
But as we all know, neither
of those assumptions
functions today.
As Victoria mentioned, if you
Google the words, Electoral
College harassment
in 2016, you will
be treated to a barrage
of search results
that include
electors experiencing
death threats, phone
calls, bushels full of mail
and so forth.
And I think it's likely in--
to assume that this
phenomenon will only
get worse in 2020 and beyond.
So how to achieve
Hamilton's protections
of electors of yesteryear
in the modern day?
One idea would be to
allow electors to cast
their ballots in secret.
To use Professor
Lessig's word, this
would translate a constitutional
command into the modern day.
I might add that, I
think it's probably
also the case that in
addition to voting in secret,
they would also have
to be sequestered.
If you really wanted to
insulate them, like a jury.
You put them in a room
starting on election day
until they cast their
ballots, which of course this
is all fantasy, but
just work with me
for a second on this idea.
So when the framers instituted
the Electoral College,
there was disagreement about
whether the original intent was
for electors to cast
their ballots in secret.
And certainly at the
time, secret ballots
weren't commonly used.
People, a lot of times at the
founding era voted by voice.
Secret ballots came
only later in response
to concerns about
vote corruption, vote
buying, and undue
influence and so forth.
The motivation behind the secret
ballot in the popular vote
was, of course, to wipe
away those plagues.
Just as a secret ballot
was necessary as innovation
in the face of the
expansion of the franchise,
maybe the secret
ballot is necessary
now to effectuate the
founders original intent
that the Electoral College act
as a check on popular will.
So among the very many
problems with this
arrangement is that
pesky popular vote.
If Americans couldn't be assured
that their electors were going
to vote in accordance
with popular will,
there would certainly be popular
unrest, to say the least.
The election system as we know
it would be thrust into chaos.
It would be essentially
rendered meaningless.
And in that sense, a proposal to
make the Electoral College vote
secret is entirely ridiculous.
And in fact, if such a
system ever were instituted,
I think it's fair to say
that it would accomplish
Professor Lessig's
goal of hastening
some kind of constitutional
amendment or change.
But I think it's important
to note that it's
not totally out of left field.
Until 2008, Minnesota electors
cast their ballots in secret.
In their briefs in both
Baca and [? Chaffo, ?]
the parties argued over
whether the Electoral College's
original design contemplated
the secret ballot.
Plaintiffs in both cases
argued that Article II requires
electors to vote by
personal secret ballot
to insulate them from
cabal and intrigue.
The plaintiffs argument
is that states should not
be able to find or
punish faithless electors
because according to
the original design,
states wouldn't even
know who voted how.
Scholars have suggested that
the constitutional command
to count elector
ballots would be
only necessary if those ballots
were in fact cast in secret.
And according to
historians, it was
only as states started to bind
their electors that ballot
secrecy was set
aside with Minnesota
being the latest example.
So if we were to indulge the
thought that this thought
experiment that electors
in all 50 states
would cast their
ballots in secret
and also potentially
be sequestered,
how would that play out?
Well, I guess, for one thing, it
would all of the sudden really
matter who your electors were.
Instead of party
lackeys or unknowns,
you'd want people of real
substance and commitment
to public values and the common
good take over the charge.
And now, I think more than ever,
the dangers of popular will
are apparent.
I've been sort of surprised
throughout the day
that the specter of foreign
interference and corruption
hasn't been discussed
more than it has--
than it was.
And so in that sense, maybe
the founders are right.
Maybe restoring the Electoral
College to its roots
should be on the table.
As tempting as it might
be to thwart popular will
in our current climate, actually
resting the popular vote
from the people I think is
another matter entirely.
And I think most people would
agree that that ship has,
in fact, sailed.
And so if you're uncomfortable
with that world as I am,
I mean, you think it is too
late to take the power to elect
our president away from voters,
then I think that taking
the argument for
electoral discretion
to its logical
extension-- as I have
over the last few minutes--
I think exposes
that true elector
discretion is a dangerous world
that we don't want to be in.
And although it's a method
of effectuating the framers'
original design, I think
it sets into relief
a reality that American
voters would never accept.
So I'll stop there.
[APPLAUSE]
SAMUEL ISSACHAROFF: Danielle.
DANIELLE LANG: Thank you.
I want to say, thank you, to the
[? Journal ?] and Harvard Law
School for having me.
And to all my
fellow panelists, I
feel like I've learned a
lot while sitting up here.
And especially, to Victoria
for actually following
the prompt of the panel in
a way that I think really
set an interesting stage.
And we all learned a great deal.
I am not an academic.
I am a voting rights lawyer.
And so I come to all of this
with an orthogonal expertise.
I don't necessarily fit
easily in the thinkers
of Electoral College design,
but there are element.
But of course, voting
rights litigation
is all about making
sure that there
is some representational
equality in our democracy.
And nothing could be
more important to that
than the design of
our Electoral College
and how we choose our
president, our chief leader.
And so in that way, I have a
great deal of normative priors
that help the issue.
As a voting rights
lawyer, I think
that I don't want to be
in the world of allowing
some small group
of people to make
such important democratic
decisions for us.
And I feel very strongly
that the closer we
can get to true
representational equality
to a world in which the
American people feel
as though their
voices can be heard,
and the system is not
rigged against them,
we are going to live in a
better modern democracy.
And a lot of my
thinking is how we
can take this Constitution that
we have that is, in many ways,
contradictory, especially
in its concepts of democracy
and has changed over time
through these piecemeal
amendments such that
the right to vote
is never actually
enshrined anywhere.
But we all agree
that you have it,
but it's contingent
in ways that are
quite challenging as a
constitutional attorney
to navigate.
And I find these questions
really interesting.
But I also come to it with a--
the pessimism of a
voting rights attorney
in 2019 in the
Federal Court System.
And so I think that I'm
going to talk a little bit
about the litigation
that's going on around some
of these issues because it
is the only thing that I
have any expertise
to share with you.
And I do apologize to the extent
that I'm repeating discussions
that have already been
had because I just
couldn't get here to be here
for the entire conference.
And I am sad to have missed
out on such great speakers.
The first, of course, has been
discussed, mentioned at least,
a couple of times on
this panel already,
which is the faithless
elector case.
There are two cases-- the
Washington Supreme Court case,
and the Colorado
Tenth Circuit case
that have now presented a pretty
clear split in the courts.
Where Washington
Supreme Court saying,
you can enforce rules against
faithlessness in electors
and the Tenth Circuit coming
to the opposite conclusion.
I kind of wish none
of this had happened,
because I do think that
there was a relative stasis.
So that we've had these examples
of a few faithless electors,
but they have largely been in
irrelevant circumstances that
haven't really forced the issue.
But it seems likely now that
the issue will be forced
and the Supreme Court
will have to speak on it.
It's an extraordinarily
difficult question
that I think was perhaps
better left unsaid.
And so I think that more than
anything, it is incumbent to--
on all of us to watch that
case carefully and think hard
about the arguments as they're
presented to the Supreme Court.
And how we can best guide the
court out of a thorny thicket
that will continue to
protect our elections.
Because especially
in close elections,
I think harassment
and the lobbying
that could go on where
relatively few faithless
electors could make a
difference and basically,
create a constitutional crisis
that the American people are
not going to stand for
having a couple of people
change the outcome
of an election.
It is dangerous and scary.
And I think we should all
be paying close attention.
I was actually buoyed by some
of your comments, Victoria,
that perhaps there are
other ways other than fear
of enforcement that could
strengthen electors and make
faithless electors less
likely with stronger party
control, et cetera.
And think about some
of those factors
that you've framed if
we end up in a world
where the Supreme Court has
specifically said that electors
have complete freedom.
I think that's a
world that we have
to think about how we strategize
to avoid constitutional crisis.
And the second is,
Professor Lessig's strategy
around the Electoral College.
I share all of his,
I think, [? priors ?]
about needing to spur
change and needing
to have a national conversation
about how we decide
who gets to be president.
And that it is,
hopefully, untenable
for us to continue with a
system long term in which
the popular vote is
often at odds with who we
decide having be the president.
I hope that the democratic
movement of the United States
and of the world
towards a system
of more representational
equality
would demand that conversation.
And I think we are in a log
jam of trying to figure out
how to force that
conversation in a way that's
going to make change.
But as someone working
in the Courts right now,
I have extraordinary anxiety
about the cases in particular.
And what could get
said in them that I
think is just worth
considering as we think about
whether or not these
cases are going
to make their way into the--
well, they are in
the circuits now--
and whether or not they're
going to make their way up all
the way to the Supreme Court.
Which is that the
cases themselves could
be decided in very narrow ways.
At least if they
are unsuccessful,
they can be decided in very
narrow ways about the Electoral
College and its position in
the Constitution and whatnot.
But they also do raise
fundamental questions
about the scope of the 1st and
14th Amendment rights, about
one person, one vote and what
it means to our democracy
and how strong that case
law is and the Voting Rights
Act in particular.
And quite frankly, this Supreme
Court and a lot of our circuits
these days don't need an excuse
to find ways to chip away
at that contingent--
the protections
of that contingent
fundamental right.
And I think it is
incumbent on all of us
to think about ways in
which we can make sure
that, as the Supreme Court
speaks on voting rights issues,
it does so when it is
confronted with the most
stark pro-voter facts
possible, so that we
can try to bolster an
area of the law that
has struggled in recent years.
And particularly, with respect
to the Voting Rights Act--
to the extent that
the Voting Rights
Act does apply to
the Electoral College
and how we select the
Electoral College,
I have extraordinary fear
that the Supreme Court would
say that that is not
congruent and proportional
to the 14th and 15th
Amendment enforcement powers.
And that is something that is
on the radar of every voting
rights attorney already.
It is likely to be
of serious concern
to Chief Justice Roberts how
broad section two really is.
And we have already lost Section
5 of the Voting Rights Act.
And it would be folly,
I think, to think
that Section 2 is
definitely safe
in the current jurisprudence.
And I also want to
point out that as we
open this can of worms and
force this conversation, which
has to happen and will
continue to happen,
that a lot of elite law
schools among other places--
our current system is
undoubtedly undemocratic
and leads to
democratic outcomes.
In some ways is also by far not
the most undemocratic system
you could imagine, given the
Constitution that we have.
That's what the subject
of this panel has been.
That there is a--
not quite as outrageous as
we would hope view of a world
where our president
is chosen by a group
of independent thinkers.
And there are other ways to--
REBECCA GREEN: Sorry.
DANIELLE LANG: "Time."
[LAUGHTER]
So there are other
ways that could
be done too that are actually--
happen right now in
Maine and Nebraska
by congressional district.
If that were to happen,
which is by far not
out of the realm
of possibilities,
it would bake in all sorts of
partisan gerrymandering that--
into the Electoral College--
that then the federal
courts will not
be able to do anything about
because of recent events
in Supreme Court jurisprudence
on partisan gerrymandering.
So we would take all the
partisan gerrymandering that
might be happening
in Congress and we
would import it into our
Electoral College system.
And you would really have
no opportunity at that point
to make a Voting Rights Act
argument or anything like that
because congressional
districts are already
subject to the
Voting Rights Act.
And so they are
already compliant
with Section 2 of the Voting
Rights Act for the most part.
We are unearthing a can
of worms when we think
about how to promote change.
And so I just wanted to
end with a note of caution
about how we tread in
this area because we
are in neither a
particularly good place
nor in the worst possible
place when it comes to how
we decide who the president is.
[APPLAUSE]
SAMUEL ISSACHAROFF: So we
have this ambiguous word
in the title, courting.
And two panelists decided
it meant, how to court them.
And two decided [? it meant ?]
how to sue them.
[LAUGHTER]
So this was a nice
democratic exercise here.
In terms of the
question of how this
gets crystallized into a legal
question that might actually
lead into the Court
system there have been
a couple of points addressed.
So Larry at lunch, and then
again, Rebecca, on our panel
suggested that the faithless
elector might be the way
in which this gets presented.
There's another possibility
that efforts at state control
might provoke the issue--
that's Victoria's contribution.
I want to ask the
panel about what
I think is the nightmare
scenario, which
the Constitution is
sort of uncertain about
and has never been tested.
So here's the
hypothetical-- and I'm
going to pick the
Republican Party
because they have done this.
The North Carolina
Republican Party
has shown a
willingness to rip up
settled institutional
arrangements
for temporary
partisan advantage.
Whether it's the gubernatorial
appointments, or whether it's
what the court can do,
whether it's how many
commissioners there are,
et cetera, et cetera.
So here's the two scenarios
which one is shocking
and the other I
think is awesome,
in the shock and awe sense.
The shocking one
is the following.
And I want to put
these two to the panel
and see what your sense
of what they do for us is.
The first one is, just
before the election in 2020,
the national polls indicate
that it will likely come down
to the votes of just
a couple of states
and North Carolina
is one of them.
And it looks like the Democratic
contender, Marianne Williamson
in this case--
[LAUGHTER]
--has a mild advantage, or
a substantial advantage--
I don't care.
And so a week
before the election,
the North Carolina
legislature decides
it will abolish popular
election for the electors
and appoint them in the
manner in which they say.
And they say they will be the
Republican slate of electors.
So that's the shocking one.
Does the Constitution-- clearly,
our popular consciousness does
not tolerate that--
but does the Constitution
tolerate that?
The awesome one is that they do
so a week after the election.
When the Democratic candidate
has carried North Carolina,
but within the time
frame specified
by the electoral count act
so that the federal statutory
issue doesn't come into play.
And so they say, we are simply
overturning the election.
They won't use those terms.
The people have
spoken erroneously.
And in order to correct
the mistake that was made,
the legislature
hereby designates
that the following is the North
Carolina slate of electors.
So do we have any constitutional
protection on that score?
There will be political
outrage and all that.
And maybe that will
prompt Supreme Court
review and
constitutional amendment,
but is that tolerable
within our current
constitutional framework?
Go ahead.
VICTORIA BASSETTI: This
raises my opportunity
to talk about one of
my favorite things,
which is Section 2 of
the 14th Amendment.
For North Carolina-- when the
right to vote at any election
for the choice of electors for
president and vice president
of the United States is
denied to any of the--
dot, dot, dot, if any
of the male inhabitants,
dot, dot, dot--
the basis of representation
therein shall be reduced.
So is there a Section 2?
Nope.
SAMUEL ISSACHAROFF: No.
VICTORIA BASSETTI: Yeah.
SAMUEL ISSACHAROFF: It may
reduce their congressional
delegation going forward, but
they [INAUDIBLE] president--
VICTORIA BASSETTI: But they
still got the president.
Yeah.
SAMUEL ISSACHAROFF: Guy,
you're from North Carolina.
This is your call.
[LAUGHTER]
GUY CHARLES: Aww.
VICTORIA BASSETTI: And how would
we reduce that representation?
GUY CHARLES: OK so your version
of this question reminds me--
I started teaching
the fall of 2000.
And we were having
similar types of scenario
questions around that time.
And the ultimate
question really was,
what is the role of
the Supreme Court
in resolving a difficult
national election dispute?
With some discussion,
the faculty
lounge, with my colleagues
then at the University
of Minnesota-- with some saying
there is no role for the Court
at all to play.
And with others saying, no, the
Court eventually, essentially
has to be to serve the
centralized dispute resolution
role that is sometimes
served in other contexts
and other countries.
Now, if you were to
ask me, as you are--
[LAUGHS] what would happen--
SAMUEL ISSACHAROFF:
It's not a hypo--
I am.
[INAUDIBLE]
[LAUGHTER]
GUY CHARLES: You are asking what
would happen in this context.
My best guess is
that we would see
a relative replay of the
Bush v. Gore scenario,
with then the court deciding
what does-- really, now,
what does a legislature mean?
And my guess-- this would
be similar to the way
that the Chief Justice, I think,
thought about the citizenship
question when it became
really clear as to how
the fact that the government
was plainly lying and attempting
to gain a particular advantage.
My guess is that we would have
an understanding of legislature
that would be
interpreted differently
than it would have
otherwise be interpreted
in different types of context.
SAMUEL ISSACHAROFF: You're
referring to the census case?
VICTORIA BASSETTI:
Yes, the census case.
Yes.
So that's my guess as to
what the steps will likely
happen is similar pattern to
what we saw in Bush v. Gore
with the Court playing the
role of dispute resolution,
in a way that, I
don't think, would
enable a state
like North Carolina
to play this [INAUDIBLE].
SAMUEL ISSACHAROFF:
But could you
identify, what is the
constitutional dispute here?
Because the text seems
to say very clearly,
the legislature can do this.
I mean, we have this arcane
instrument that is so at odds.
And it seems that this
is within the bounds of--
I think this gets to the problem
of all these discussions.
Rebecca, you wanted to
jump in for a second.
REBECCA GREEN: Yeah, I think
that really puts the nail
on the head of why this--
it really hits the
nail on the head--
sorry--
SAMUEL ISSACHAROFF: [INAUDIBLE]
REBECCA GREEN: Yeah.
About why the design of
the Electoral College
is so preposterous.
It's almost like we
take these arguments
to the logical
conclusion legislatures
are empowered with
that kind of ability.
So I think the answer
is we need to fix it.
DANIELLE LANG: I
agree with that.
As far as just predictions
go for the hypothetical,
of course, it's
hard to even imagine
the level of crisis that
would be in the country
if something like that happened.
I actually tend
to predict that it
would come out differently in
your shock and awe categories.
So I think in the
shocking category
of North Carolina doing
this before the election,
but just based on
prognostication,
I actually think there's a
decent chance it's upheld.
But it would be so
outrageous that it would
force a great deal of change.
Maybe that's how we get to
our constitutional amendment.
But I tend to think that the
institution is very arcane.
And it is hard to imagine this
Supreme Court reaching so far
outside of the text
of the Constitution
to resolve the problem.
And so I'm at a loss.
I think it would
likely be upheld.
I think that after the election
question is a much closer one.
And I think that
that gives the--
would give the Court, at
least, a little bit of space
to play with to rule in a
way that would obviously
be in accordance
with the populists
and the sense of the populists.
And that would be that in a
Bush v. Gore like way to say,
once you have extended
the right to vote,
you cannot then nullify it.
So once it has been extended it
is therefore fundamental and is
protected and you cannot
retroactively nullify it.
So I actually think
that they probably
come out differently depending
on which of those scenarios.
And you could argue that in
the first scenario-- well,
then the candidates
are on notice
that this is how things
are going to go down
so they should shift their
energies elsewhere-- et cetera,
et cetera, et cetera.
It's a nightmare for
sure, but I do think
they come out differently.
SAMUEL ISSACHAROFF:
So all of these
are attempts to tease
out the conflict
between our culture and our
institutional arrangements.
There's hands all
over the place.
[LAUGHTER]
Larry.
LARRY: So I want to
make sure it's clear.
So Danielle is actually talking
about two separate kinds
of cases.
One [INAUDIBLE] is the
electoral freedom cases the Baca
and [INAUDIBLE].
And the other was the case of
[? David ?] [? Boies ?] was
litigating.
I want to talk a little bit more
about that [? Chaffa ?] case.
Because first, it's
important to recognize
that though it seems kind of
opportunistic to take the case,
we actually feel and
felt better [? because ?]
incredibly important to
resolve the case in the context
in which we're resolving it.
[? Jessie ?] might
mention this, I
hadn't known this until today.
But even in 2000
the Bush people may
expect that they might be
losing even though they
won the popular vote.
We're thinking about
persuading faithless people
to be, quote, "faithless
electors," in that context too.
And likelihood, if we're going
to confront this seems to be
[INAUDIBLE].
So we ought to
obviously confront them
with these [INAUDIBLE].
The other part, [? playing ?]
advocate for my clients
was [INAUDIBLE].
I think it's a really
bad word to call
them faithless electors.
When you talk to these
electors, they really
believe, [? Chaffa ?]
especially,
that they were trying to act
in the interest of the people
who they were supposed
to be representing.
Now, they saw that the
likelihood was Donald
Trump was going to be elected.
And they knew the
people who voted
for Hillary Clinton did not
want Donald Trump to be elected.
So they were trying
to act in a way that
was advancing the
interests of the people who
had in fact voted for them.
And that they thought in the
Hamilton elector [INAUDIBLE]----
was that they could
get enough votes
to be shifted to a candidate who
was closer to Hillary Clinton
than to Donald Trump.
Now, that's not faithlessness.
I mean, there have been
faithless electors in the sense
that they want to vote for
some Native American tribe
leader or some crazy person just
to assert their independence
and right to speak.
But these people
were actually acting
with the interests
of their voters
in mind in a way that
was to advance that.
And the real question is
whether that should be allowed.
Now, I know, because one
of our clients [INAUDIBLE]
other case who was
working very closely
with a a bunch of
Republican electors
who believed that he had more
than 20 Republican electors who
would vote against Trump.
The biggest thing
he was confronting
is the bunch of those
electors said, yeah,
but I'm not allowed to.
It's against the law.
So there's a really
genuine question here.
There's a real belief that they
need to do what's important.
A bunch of these people thought
they ought to be upholding
the will of the people and
the nation as a whole and vote
against [? what ?]
[? they were ?] led.
And so I think that
this is more complicated
than just imagine a
bunch of crazy people
being quote, "faithless" in
the context of the election.
SAMUEL ISSACHAROFF: Alex.
ALEX: Just
[INAUDIBLE] Precisely,
this scenario you're describing
happened in North Carolina
in [INAUDIBLE].
SAMUEL ISSACHAROFF:
Was that Guy's fault?
[LAUGHTER]
ALEX: [? Guy, ?] the legislature
canceled the election.
I think it was about a week
before probably because they
were afraid that it was going
to go the other way and said,
we'll take care of this ourself.
And several others
[INAUDIBLE] similar things.
And it was those events--
I don't think it
landed in court--
but it was those events
that precipitated
the whole wave of constitutional
amendments that began in 1813
and ran into the 1820s.
[INAUDIBLE] guaranteed
that every state held
a popular election [INAUDIBLE].
AUDIENCE: [INAUDIBLE]
to agree with Danielle,
it seems to me that the
[INAUDIBLE] one reason why
the second scenario or
the awesome scenario
would be different is
[INAUDIBLE] versus disputed
[INAUDIBLE] in 1995.
It says, it's a due
process violation.
You changed the rules
for counting ballots
after they've been cast.
So it does seem to me that
if the election [INAUDIBLE]
there'd be a serious
due process [INAUDIBLE]
whether the Supreme
Court [INAUDIBLE]..
Well, the other thing
is, yes [INAUDIBLE]
dispute be resolved
by [INAUDIBLE]..
But it also has to be
pursuant to a law in place
on the day of the popular vote.
So any change in the
rules [INAUDIBLE]..
AUDIENCE: The Constitution
gives Congress
the power to set the time
for electors to be chosen.
In 1845, they set it to
the Tuesday following
the first Monday in November.
At the time of [INAUDIBLE]
we need time [INAUDIBLE]..
[INAUDIBLE] 3, Section 2 reads,
whenever a state has held
an election for purpose of
choosing [? electors ?] and has
failed to make a choice on the
[? day ?] prescribed by law,
the electors may be appointed
on a subsequent day in a manner.
As the legislature of such
state may [INAUDIBLE]..
The second scenario is clearly
a violation of Sections 1 and 2
of Title III.
The former, where
they change the law--
they change the process before
the election [INAUDIBLE]
fortunately, North Carolina
has a Democratic governor.
And so politically,
this may depend on
whether the North
Carolina legislature can
agree on a joint
resolution that doesn't
require the governor's
signature, which
I don't think they can.
SAMUEL ISSACHAROFF: So these
are technical questions
that came up--
[LAUGHTER]
No, they came up in 2000 because
the independent legislature
provision of Article
II may not require
a gubernatorial signature
on anything they do.
This is an unknown area,
McPherson versus Blacker
introduces confusion
on this point.
This is an unknown point.
The first point you're
absolutely right.
That's what the title provides.
I don't know whether
Congress has that authority.
And again,
congressional authority,
even on the 1842
statute on single member
districts for
Congress, that's never
been tested constitutionally.
These are boundaries.
And if you're
thinking about things
that might push the courts
to have to get involved.
This is why I raise this as a--
GUY CHARLES: By
the way, Sam, this
is also where Bush
v. Gore is contingent
and might come into play.
SAMUEL ISSACHAROFF: Yeah.
GUY CHARLES: But once you've
provided the right to vote,
then it is a fundamental.
So taking it away
might pose a problem.
That's one way of beginning
to think through that as well.
SAMUEL ISSACHAROFF: Sam.
SAM: I hate to get into
the technical weeds,
but it might be
time to [INAUDIBLE]
than say that in the case of
North Carolina [INAUDIBLE]..
The article says
that the Constitution
of North Carolina
[INAUDIBLE] specifies
ways in which voters
may be eligible to vote
for president [INAUDIBLE].
Which means that there
is an implicit right
to vote [INAUDIBLE] you
all know, especially
[INAUDIBLE] I think
that you all know
that the current state Supreme
Court [INAUDIBLE] is actually
[INAUDIBLE].
So if you want to get
into the weeds then--
SAMUEL ISSACHAROFF:
Well, if you want
to get into the weeds on law,
Sam, McPherson versus Blacker
leaves open whether the state
constitution has authority
over this, whether
the state Supreme
Court has authority over this.
The remand in Bush
v. Palm Beach County
left this question on the
table and said, please,
don't force us to
address this question.
The independent state
legislature provision
of Article II may,
on one reading,
and McPherson versus Blacker
gives strong support for this--
pre-empt all other state actors
other than the legislature
acting in its own capacity.
This is a hotly--
SAM: So all that
would [INAUDIBLE]..
SAMUEL ISSACHAROFF:
Would disappear.
Would disappear.
GUY CHARLES: This
is the question
you asked Jack last night.
Does historically legislature
really mean, legislature?
SAMUEL ISSACHAROFF: OK.
So, Jack, you're next.
[LAUGHTER]
JACK: Well, I was going to
say something else, which is--
I think, this comes in the
[? New York ?] [INAUDIBLE]
[? case. ?]
SAMUEL ISSACHAROFF:
Yes, that's right.
JACK: Legislature or legislators
are sometimes used anonymously,
often used anonymously
in the 1870s [INAUDIBLE]
to an independent
[? division. ?] Chief
Justice Roberts [INAUDIBLE]
in the Arizona case.
But [INAUDIBLE].
SAMUEL ISSACHAROFF: Not that
you resolve this satisfactorily,
but go ahead.
Go ahead.
Move on.
[LAUGHTER]
JACK: [INAUDIBLE].
So the chief writes
here that the ledgers
may be a check on
popular will, which
seems to be validated
[INAUDIBLE] [? down ?]
to the electors [INAUDIBLE].
I think that's a big mistake.
If you want to take a strong
originalist position in terms
of what was being
contemplated at the time
the Constitution was written.
[INAUDIBLE] three
alternative modes of
trying to think about how the
president might be elected.
And popular election is one.
Legislative election is second.
The electors being [INAUDIBLE]
initial [? voice ?]
was the third.
[INAUDIBLE]
There's no occasion for reaction
because again [INAUDIBLE]..
So I think that the idea of a
checking function [INAUDIBLE]
says plausible because
it's there [INAUDIBLE]..
I don't think it's sustained
by the actual structure of
[? debate, ?] which
was [INAUDIBLE]..
REBECCA GREEN: Yeah.
I totally agree.
And my remarks where more
sort of a thought experiment.
I think I'm undercut
also by Ned's argument
about the 12th Amendment.
So I think that's true,
but it was just sort of
for purposes of
discussion, thinking
through some of the
implications of what
Hamilton was suggesting.
SAMUEL ISSACHAROFF: Rob.
ROB: Yeah, just to go
back to that [INAUDIBLE]
scenario [INAUDIBLE]
neighbor was saying.
So going to
[INAUDIBLE],, every vote
equal, [INAUDIBLE] this section.
So the Constitution in
Article II Section 1
says, that the Congress
may determine the time
of choosing the electors.
SAMUEL ISSACHAROFF: Rob, can
you stand and speak louder
because you're at the back.
ROB: The Congress may
determine the time
of choosing the electors
who's in the Constitution
in a day in which
they give their vote.
So both the-- the choice they
and the actual [INAUDIBLE]..
And then Congress has,
as you were saying,
specified quite
specifically the day
of choosing electors is
that particular Tuesday.
And so they couldn't
suddenly change the choice.
They would be
violating federal law.
So that's pretty clear.
The pre-election one is a
stretch, but [INAUDIBLE]..
AUDIENCE: I'm looking to the
North Carolina Constitution.
[LAUGHTER]
AUDIENCE: [INAUDIBLE]
you're awesome.
[INAUDIBLE]
SAMUEL ISSACHAROFF: That's
the original meaning of
[INAUDIBLE].
[LAUGHTER]
AUDIENCE: More [INAUDIBLE]
where the legislatures
claim [INAUDIBLE] change
is not purely based on,
we don't like the results.
But some claim of some
underlying problem [INAUDIBLE]
puts the popular
vote [INAUDIBLE]
suggest [INAUDIBLE]
congressional language where
there might be a fig leaf
argument [INAUDIBLE] is coming
in to try to at least have the
[INAUDIBLE] the congressional
[? power. ?]
SAMUEL ISSACHAROFF: Right.
I'm giving the North Carolina
legislature [INAUDIBLE]..
It will be able to say, there
has been a failure in the count
because the wrong
candidate prevails.
[LAUGHTER]
And so then they go
on from that step.
Is there any other questions?
So panel, do you
have more comments?
No?
OK.
Yes?
One more question.
Go ahead.
AUDIENCE: [INAUDIBLE] just so in
political science, the Supreme
Court [INAUDIBLE]
public opinion.
And technically,
the Supreme Court
has the right to make a very
narrow decision [INAUDIBLE]
and such.
So would they need
[INAUDIBLE] the nation
to crisis with the-- your
awesome shocking scenario?
[INAUDIBLE] let's just
not deal with this.
Yeah, let's go back to
the way things were.
Or will they be willing to just
go [INAUDIBLE] GOP short term.
DANIELLE LANG: My
own personal instinct
on that is along the lines
of what I said before,
which is I think that if they
are close legal questions,
I think they're
going to resolve them
all in the favor of not
throwing the country
into a constitutional crisis.
So I think actually, the
very complicated questions
about definition of legislature
and all that, they're all
going to go in favor of
allowing-- they don't
want to decide those things.
But because they might
have strong textualist
views about it, but I think
if the consequence is throwing
the country in
crisis, the Court is
going to resolve those
likely in the direction that
would save the system.
But I think the first, the
idea of the legislature ahead
of time deciding they want
to select electors separately
is-- it's just very hard to find
the close legal question to do
what you suggest, which is
to follow popular opinion,
to err on-- they still
have to write an opinion.
They still have to
have a legal analysis.
And I think that's where it gets
much, much harder, I'm sure.
Much better lawyers
than me will figure out
a way to try to give them
that path, but it's hard.
SAMUEL ISSACHAROFF: Let me
just reinforce what Danielle
said, which I agree with fully.
We forget the history that
led up to Bush v Gore.
What the Court did first
when Bush v Palm Beach
County was say to the
Florida Supreme Court,
please don't make us do this.
Here's the path by which you
can resolve this under Florida
law paying attention
to what we think
is the basic
principle, which is,
make sure you're following
the procedures which
were in place ahead of time.
And here's how you get to that.
And Ginsburg wrote, basically,
the advisory opinion
for the Florida Supreme Court.
The Florida Supreme
Court repudiated it.
Then there were two paths that
were going up at the same time.
One came through the
Florida Supreme Court.
The other one was
the litigation that
was taking place in
the federal courts
under the Roe v. Alabama line
of cases that Ned referred to.
And those were on hold
in the US Supreme Court.
So they were going
to have to-- and they
were going to come out
opposite directions.
There was just no way they
were going to duck it.
You can criticize Bush v. Gore.
You can do all of this.
But to read into
that and adventure
some spirit on the part
of the US Supreme Court
to jump into a failed
presidential election is,
I think, extraordinary.
And so I fully agree that the
institutional self-preservation
and conservatism of
the Supreme Court
will do everything possible to
reinforce the perception of how
elections are supposed to work.
The reason I raise
these scenarios is
because the perception is
so shockingly at odds with
the text at this point that--
and the partisan divides are
so great right now that
it's-- we're in a precarious
situation, I think.
GUY CHARLES: I have something
to add to that though, Sam.
It is true, however,
that the Court
didn't have to stop the
count in Bush v. Gore.
SAMUEL ISSACHAROFF:
That's a separate issue.
GUY CHARLES: Yeah.
So there it is expressing--
yes, there is a
reluctance to jump in,
but there's also
not a reluctance
to resolve at the end of the
day in a space in which it
didn't absolutely have to.
So I agree with you that there's
a lot going on here in terms
of the incongruity
between the culture,
the constitutional
structure, the Court itself.
But in some ways Bush v. Gore
sets the precedent for the fact
that if, at the end of the day
they have to, it's not clear
that they won't.
That is that sets the
possibility that they in fact
will.
SAMUEL ISSACHAROFF: Yes.
I agree with that.
OK.
We are one minute short
of our stopping time,
so let's thank the panel.
[APPLAUSE]
JESSE WEGMAN:
[? People ?] that I've
been reading, and studying, and
in many cases, interviewing.
And so it's a thrill just to
sit here and listen all day,
but I also feel a
bit like an imposter.
I think I wasn't quite smart
enough to be in the academy.
But I was smart enough
to get a job that
would allow me to hang
out with all of you
and ask you questions,
and learn from you.
And then do my best to translate
that to the general public.
I also wish I could
have written this book
after today's conference.
There's been more--
more things have come up
than I can even count that I
would have liked to include.
One of the, I think, exciting
but also daunting things
about the Electoral College
and writing about it
is once you start you
realize how deeply connected
it is to so many other
really large topics.
The history of the
idea of democracy,
the meaning of equality,
the development
of representative
government, the nature
of political parties,
the role of slavery
in the American constitutional
design and its function,
the Trump presidency.
My book's subtitle is, The Case
for Abolishing the Electoral
College.
And more than one person
has suggested to me
that the rest of the
book could consist
of just two words,
Donald Trump, which
would have made my job easier.
But speaking of our
current president,
I want to tell you just a
story about my job, which
I hope is going to
shed some light on some
of the themes we've been
discussing here today
and on the way that the
American people think
about electing their president.
So this is back in
mid-December of 2016.
I decided I wanted to
write my first editorial
about the Electoral College.
Donald Trump has
won the presidency
despite trailing Hillary Clinton
by nearly three million votes.
People are in shock.
People are furious.
They can't understand how
this could happen, again.
So I write the
editorial titled, Time
to End the Electoral College.
A very Times editorial headline.
So the New York
Times editorial board
is a [? precidential ?]
institution,
not unlike the Supreme
Court or like the Supreme
Court used to be.
We change positions
very rarely and only
after a lot of
internal debate that
includes the publisher and
the editorial page editor
and all of the
editorial board members.
And when we write
that editorial,
we go to pains to explain
why we've changed.
So there I was, banging
out this editorial,
glowing with my righteous
Timesian indignation.
I explained everything that
was unfair or undemocratic
about the college.
All the things that we've
been talking about today
that you know about.
I advocated for the National
Popular Vote Interstate
Compact.
I knew that I was making
a pretty strong argument.
I realized it would be
an even stronger argument
if I could demonstrate that this
was not a conveniently timed
partisan ploy, but rather a
principled stand that the Times
had always taken.
So I went back through
our editorial archives
and I found dozens of editorials
on the Electoral College.
There was one from
2012, which was the year
before I joined the board.
There was one from 2010.
There was one from 2008,
from 2006, from 2004.
I found them from the late
1960s, which, of course
that was, as we've been
talking about today,
when the nation came closer
to adopting a popular vote
than it ever has.
I even found one from 1936.
In every case, whether
it's a Republican
or a Democrat who'd
won the White House,
we supported the popular vote.
So I wrote, "This page
has opposed the Electoral
College for at least
80 years and it
has regardless of the outcome
of any given election."
I even linked to
the 1936 editorial
just because I was so
proud of my research.
First rule of journalism
is, never say, always.
[LAUGHTER]
Unless you absolutely have to.
The piece runs.
It gets a huge response.
Thousands of comments
from popular vote
advocates, Electoral College
defenders all over the country.
And then, there's always a
few coming from New Zealand
who's always like, what
is wrong with you people?
[LAUGHTER]
Anyway, the piece is
published on December 19.
On December 20, I get an email
from a former editorial board
member now living overseas.
He cites my line about the 80
years of opposing the college
and he writes,
"Surely, you remember
when the NY Times
editorially supported
retaining the Electoral
College on December 19, 2000."
Uh, no.
I did not.
[LAUGHTER]
I looked it up,
and he was right.
16 years to the day
before my own [INAUDIBLE]..
And one week after
the Supreme Court
had voted to end the Florida
recount and effectively
award the presidency
to George W. Bush,
the board had come
out unequivocally
in favor of the
Electoral College.
Why?
Because the College
was, in its words,
"First and foremost, a compact
among states, large and small,
designed to ensure
that one state
or one region did not
dominate the others."
Quote "This in turn required
presidential candidates
to build alliances across
ideological and geographical
lines."
"The editorial then
rejected the idea
that we are one homogeneous
undifferentiated mass.
And it said, "There are still
definable Midwestern interests
or Northwestern
interests, as opposed
to say Eastern interests.
There are still
definable rural interests
just as there are
urban interests."
And it called a new proposal to
abolish the Electoral College
introduced by then, Senator
elect, Hillary Rodham
Clinton a quote, "mistake"
The irony.
[LAUGHTER]
"There are benefits to the
college," the editorial said,
"that" quote, "outweigh the
majoritarian case put forward
by Mrs. Clinton and others.
I liked, "others."
Some of the "others"
besides, Hillary Clinton,
who have made a majoritatian
case for a popular vote
include James Madison, James
Wilson, Gouverneur Morris,
Thomas Jefferson.
Anyway, I was mortified.
I had gone through
decades of editorials.
Somehow I had forgotten to check
the most important one of all.
How could this happen?
Despite the claims from
certain world leaders,
we really do try to
get our facts right.
And it is bad when
we get them wrong.
We have to run a correction.
It goes in our file for the
year end review and so on.
[LAUGHTER]
So as you might imagine,
the right wing blogs
had a field day.
"The New York Times can't
even get its own position
on the Electoral College right."
Of course, they
neglected to note
that the one time we come
out in favor of the College,
it was when it awarded the
presidency to a popular vote
losing Republican,
but I digress.
Anyway, we fixed the
mistake quickly enough.
The correction ran the next
day in the print edition.
I cut it out.
I taped it to my
computer monitor
as a constant rebuke to
myself and we moved on.
So that's my little tail
of self-inflicted woe.
But what broader lessons
can we take from It?
I can think of at least four.
One is, never forget
the election of 2000.
It started the modern movement
to abolish the College.
At the time, no living American
had seen a split election.
Now, we've seen two
in less than 20 years.
I'll just note here that
for all the hubbub of 2016,
it was actually a
pretty clean split
election with none of the
recount dramas of 2000 or 1876.
There were a few
calls for recounts
in the key battleground states,
but those really wouldn't
have made any difference.
In fact, the only
person who has continued
to insist that the 2016
election was rigged
is, Donald Trump,
a curious complaint
coming from the victor.
But it makes sense
if you believe
that the popular vote
is the truest measure
of electoral legitimacy.
Two, never underestimate the
power of institutional inertia.
After my mix-up in 2016, I did
some reporting to figure out
what had happened back in 2000.
Remember I said the Times
takes reversals very seriously.
And yet that 2000 editorial
defending the College
had not made any reference
to any prior editorial
opposing it.
And it has not been cited
once by any editorial since.
Why?
For various reasons, I
was unable to identify
with certainty the
author of that editorial.
But I can offer some educated
guesses for why it came to be.
I think of it now, sort of
like our own Bush v. Gore.
Someone said earlier,
a one ride ticket.
Not meant to serve as
president, but only
to soothe the jangled nerves
of a traumatized nation.
Don't worry, it
seemed to be saying,
the republic will be fine.
Our institutions are wise.
They are stable, and
they are enduring.
That this argument would be
made by the editorial page
of the New York Times at a
moment when the Electoral
College had just operated
to deny the White
House to the popular vote
winning Democrat illustrates
the power of our impulse
to protect the systems
we already know.
Three, the same persistent
myths have propped up
the College for a long time.
And any effort to dramatically
reform or dismantle the College
will need to blow
up those myths.
After the times ran its 2000
editorial, Akhil Amar, at Yale,
was more than a bit upset.
Only a few weeks earlier,
Akhil had written his own op-ed
for the Times in
which he explained
how the College's
creation in 1787
was inseparable from the
practice and the preservation
of slavery and that it
had benefited the slave
states in the early
years of the republic.
So he wrote later, "The
Electoral College's adoption
was not first and foremost about
big states versus small states.
It was much more about slavery.
I had explained this to the
Times itself," Akhil said.
"Didn't these guys
read their own paper?"
"Then I calmed down.
The standard stories--"
this is Akhil still writing.
"The standard stories
about the Electoral College
have been circulating
for a very long time.
And it would take time for
the new story to soak in.
Well educated people like
the Times editorial board
would need not just to
learn something new,
but to unlearn something old.
And unlearning is
not easy or quick."
I think Akhil is right.
The myths are so deeply
ingrained that most of us
just keep repeating them
without any awareness
whether they actually
correspond to reality.
Jamelle Bouie, the
wonderful New York Times
columnist who joined
last year, he calls
these beliefs, folks civics.
And I do think
we've been talking
a lot about the small
state myth in particular
and how it's both
wrong, as a matter of--
it's wrong as an
empirical matter,
but it's also wrong that
through much of history,
small states have
even cared about this.
And I think it was Barry
Burden on one of the earlier
panels suggested that--
or pointed out that the
small state myth really
wasn't a myth for a long time.
It wasn't even
discussed for many
of the-- for much of the
beginning of the nation's
history.
And that it only came up
in the more recent past.
And I was thinking,
why would that be?
And it occurred to me that
it might be because it
wasn't needed earlier.
To the extent that the
history of the country
is this arc of
democratization, there
were a lot more exclusionary
electoral practices in place
then.
And as each of those has been
stripped away, what's left?
We have two anti-majoritarian
electoral structures
remaining-- the Senate
and the Electoral College.
So I call this,
the plus 2 fallacy.
The Senate very clearly
benefits the small states.
Nobody doubts that.
And because the Senate's
plus-- the Senate's two--
each state gets its two
electors from the Senate,
people assume, I think
and maybe want to believe,
that the Senate--
the power that the small
states get from the Senate
is translated directly
into the Electoral College.
We know that, clearly,
that's not true.
A, they're mixed
with the House--
the electors from the House.
And B, winner take all
pretty much completely
wipes out the power
of the small states.
But I think that's just one
possible explanation for why
the small state myth has
really risen to prominence
in the last few decades.
There's nothing else left.
And this brings us
to the fourth lesson,
which is, the importance
of remembering
how different the public's
understanding of the Electoral
College is from that of
the people in this room.
As Larry, I think, rightly
reminded us last night,
most Americans are unmoved by
even the most pressing debates
over electoral reform.
But the Electoral
College is different.
People care and they get
very emotional about how
we elect the president.
I've already experienced it
in writing these editorials
about the College
and I'm expecting
a lot more incoming when the
book comes out next spring.
Some of the emotion, of course,
reflects an intense desire
to win, to see your man or
woman in the Oval Office.
But I also think a
significant part of it
derives from our common
democratic, small d, democratic
heritage.
The belief that in a
democracy, it is simply not
right for the loser to win--
this runs very deep and has
always transcended party lines.
I think, this whole idea of--
I think, Alex earlier was
talking about the crisis,
the crisis of a split election.
And Sam Wong earlier
said, we were talking
about the risk of what would--
the risk of a popular vote loser
being elected to the presidency
being 30% given a
certain vote margin.
I think, why do we
use this language?
Why do we talk about
a crisis and a risk?
If the Electoral
College is a good thing,
if it was a smart design, if
it's there for good reasons,
that's not a crisis.
That's not a risk.
That's just how
the system works.
It doesn't matter who
wins the popular vote.
It matters who wins
the Electoral College.
I think the answer, why
we speak in that language
and why people freak out
when it happens is obvious.
People don't want the
loser to win the election.
The majority rule
is the lodestar
of our modern
democratic ideology.
So I think, when Americans are
most aware of that violation
and of the violations
of political equality
that the state winner
take all rules generate,
I think that's when the mood
for reform is the strongest.
We cite this statistic that
there have been 700, I think--
Alex said, 700 to 1,000
efforts to amend or abolish
the College in Congress.
This gives the
impression that it's
been under constant assault.
And in a sense that's true.
But of course, I
think we've really
only gotten very close once.
And that was in the
second half of the 1960s
when, Senator Birch Bayh,
who died earlier this year--
spearheaded a four
year effort to pass
a constitutional amendment
abolishing the College
and switching to a direct vote.
It's important to remember,
this was a bipartisan project
that over the years won the
support of President Nixon, Bob
Dole, George Bush Senior.
And in 1969, as was
pointed out earlier,
the amendment passed the
House overwhelmingly.
I think the vote was 339 to 70.
And it had the support
of dozens of states--
state legislatures.
And it seemed like it might
have a real chance in the Senate
until it was filibustered
to death by three
southern segregationists who
still had not come to terms
with the civil rights movement.
For reasons that I
struggle to understand,
this story, which I also
recount in the book,
has disappeared down the
American memory hole.
I talked to people who
were fully sentient humans
at the time of this-- when
this happened in 1969 and '70--
and into the early '70s.
And virtually, all of them
have completely forgotten it.
What stands out for me about
that moment was the way
that Senator Bayh
managed to pull together,
this National Coalition.
And I should also say,
as was pointed out
in an earlier panel, I think--
at least in my book--
I give short shrift to
[? Manny ?] [? Celler. ?] I
would love to know more.
Just from what I
was hearing today,
he sounds like a much more
interesting and important
character in all of this
than I had realized.
So I apologize, retrospectively.
But this was something
that Guy said, and I think,
was so important in
just this last panel,
which is the value and the
importance of articulating
the ideal of political
equality as a way
to break through our
current polarization
and the current barriers
between the parties.
Just how important
that is, I think
Birch Bayh really did that.
He gave a speech.
He was initially a national
popular vote skeptic.
And after several months of
holding hearings on the matter
he came around.
He had a conversion.
He gives this really remarkable
speech on May 18, 1966,
and it's worth--
I commend it to you-- it's worth
looking up and reading in full.
It's not long.
It's probably not
even 1,000 pages long.
Is shorter than what
I'm saying right here.
And it's one of
the most, I think,
beautifully spoken
and articulate
and comprehensive
advocacy arguments
in favor of the popular
vote that I've ever read.
And what he really does
is he weaves together
the threads of that democratic
evolution that America's
expanding democracy from
the elimination of property
requirements to
the enfranchisement
of black people, and the
enfranchisement of women,
direct vote of senators.
Then we have the one person,
one vote ruling in the 1960s,
the abolition of the poll
tax, the Civil Rights
Act, the Voting Rights Act.
He pulls it all
together in the service
of explaining why a
direct vote for president
was the next natural
step in that process.
There was no way to
really oppose it other
than to have a filibuster,
which is essentially
a temper tantrum.
In the book I write--
the way I described
this is I say,
"Maybe this is the real
American exceptionalism.
Our nation was conceived out
of the audacious world changing
idea of universal
human equality.
And though it was born in a
snarl of prejudice, mistrust,
and exclusion, it harbored
in its DNA, the code
to express more faithfully the
true meaning of its founding
principles.
Over multiple generations and
thanks to the tireless work
and bloody sacrifices of
millions of Americans--
some powerful, but most just
regular people who wanted to be
treated the same
as everyone else--
that code has been unlocked
and those principles slowly but
surely have found expression."
And I really think that idea--
the idea of vindicating the
principle of political equality
as Guy mentioned, is really
at the heart of all of this
and could be the thing
that pushes us forward.
By the end of Bahy's effort--
his primary effort,
which was in 1970--
more than 80% of the country
was in favor of a popular vote
for president.
So now, here we
are 50 years later,
and instead of an
amendment on the table
we have this interstate
compact as well as
many of the other ideas that
have been floated today.
It's a way--
interesting full circle
that we've come from trying
to rewrite the Constitution
to trying to work within it.
Of course, the battle is
more polarized right now,
but that's--
I don't think that's
a reason to back down.
Last night, we were
talking about the fragility
of this particular moment,
as authoritarianism
and disinformation and
incalculable amounts of money
in politics are
operating together
to pose an existential threat
to constitutional democracy here
and around the world.
I can't speak for what
happens in other countries,
but here, presidents elected
by the American people
as a whole with
all votes counting
and all votes mattering
equally, and the winner being
the person who gets
the most I think
would be one of the
most important things
we could do to buttress our
own constitutional democracy.
I'm not sure what the path
to a national popular vote
will look like in the end.
And I'm even less
certain after today
or how long it will
take us to get there
or how many more
obstacles and setbacks
we'll face along the way.
But I do feel sure
that these core values
of both political
equality and majority rule
will be the lights guiding
us along that path.
Thanks.
[APPLAUSE]
