MODERATOR: Good afternoon.
First of all, let me apologize for the delay.
Today, we're going to have a briefing on the
Electoral College.
Our briefer is Thomas Neale, who is a specialist
in American national government at Congressional
Research Service, the Library of Congress.
And here's Tom.
MR.
NEALE: And good afternoon, ladies and gentlemen.
As Miriam said, my name is Tom Neale.
I'm with the Congressional Research Service
at the Library of Congress.
Our department works exclusively for the members
and committees of Congress, and we produce
nonpartisan, unbiased, and accurate policy
analysis information retrieval on all levels
for the members and committees of Congress,
and exclusively for the members and committees
of Congress.
And having said that, I want to let you know
that I'm appearing today as an elections analyst
and what you hear from me should not be interpreted
to be the findings, holdings, or assertions
of the Congressional Research Service.
So with that in mind, let's proceed.
What about the Electoral College?
It's almost unique in the world today.
Let me ask - the first question that may come
to your mind is: Why do we have an Electoral
College?
Remember, the United States Constitution is
the oldest written constitution in the world.
It was drafted in the 18th century.
And as a result, it has perhaps fewer of the
mass democratic features that you would expect
from a constitution that derived, after - say,
after the French Revolution or in the 20th
century.
What our Constitutional Convention was trying
to get was a system that guaranteed the separation
of powers, and checks and balances that kept
the presidency free from undue influence,
particularly with respect to its elections,
from Congress, and three, gave the states
a role in the presidential election.
To this day, Americans vote for president
in two capacities: as U.S. citizens, and to
a certain extent, as citizens of the states
in which they reside, because that is how
the electoral votes are put together, and
that is how you win a majority in the Electoral
College.
The Constitution - the Constitutional Convention
decided this was the best compromise because
it included these principles.
It did not initially include any provision
that the people would vote in a presidential
election.
The electors would vote, and it was left to
the states how they would choose their electors.
This power is retained by the states today,
but all the states delegate that power to
the citizens.
So your - when Americans go to the polls on
election day, they are voting for, actually,
electors for president and vice president.
And who are these electors?
Well, they can be anybody, except a person
who is a member of Congress or any person
who is - holds an office of - in trust or
profit under the United States.
So Ms. Rider and I cannot serve as presidential
electors, but almost anybody else could.
In practice, they tend to be party officials,
state governors, prominent party people holding
- that do not hold positions in the federal
government.
How are they chosen?
Each party in each state nominates a slate
of electors.
You never see their - in very few exceptions
do you ever see their names on the ballot.
When Americans go to the polls, it says, "Electors
for Barack Obama and Joseph Biden," or "Electors
for George Romney and Paul Ryan."
But they are - so they are, in fact, voting
for these electors.
How many electors and how are they allocated?
I'm sure you know that.
The formula is each state receives a total
number of electoral votes equal to the combined
total of its House and Senate delegations.
Now, the reason we have the Senate delegations
included is because one of those compromises
from the Constitutional Convention to give
the states - the less populous states a modest
advantage compared to the more populous states.
So today you have - the range runs from California,
obviously our most populous state, which has
55 electoral votes because it has 53 representatives
and two senators, to a number of states like
Wyoming, Alaska, Delaware, Vermont, Montana,
the Dakotas, that have three electoral votes.
They have one because they have one member
in the House of Representatives, and the additional
two for Congress.
And these electoral votes are awarded in most
states on what we call the winner-take-all
or general ticket basis.
That is, the voters vote for the whole slate
of candidates.
And this causes some distortions.
For instance, in California in recent years,
the Republicans can reliably take anywhere
from 40 to 45 percent of the popular vote,
but they get no electoral votes because the
Democrats have a strong grip on California,
and a number of other states, too.
I picked California simply because it's the
most populous state.
There are two exceptions to that rule, and
that is called the district system, which
is practiced in Maine and Nebraska.
Now this harkens back to the fact that the
states actually have a lot of independent
authority about how they do - they delegate
their electoral votes.
It's a little complicated, but in these states
that have the district plan, the voters go
to the polls, one vote for president and vice
president, but the votes are counted in two
different ways.
They are counted statewide, and the statewide
winner wins those two electoral votes that
reflect their senators.
And then the votes are counted in each congressional
district, and the winner in each congressional
district gets an electoral vote.
So you have a situation like we did in Nebraska
in 2008, where Barack Obama and Joe Biden
won the First Congressional District, which
includes Lincoln, the largest city in the
state, and the McCain-Palin ticket won the
Second and Third, which are more rural and
more Republican.
So under the district - but they also - McCain-Palin
also won the statewide vote.
So under the district formula, they won one
vote for each of their two congressional districts,
plus the two votes for the statewide, which
gave them four.
President Obama and Vice President Biden won
one for the one congressional district that
they did win.
Another question you might ask: Why do we
have - why has this system endured as long
as it has?
Well, first of all, it's worked pretty well.
More than 50 presidential elections that we've
had, particularly since the ratification of
the 12th Amendment in 1804, which I won't
go into unless you ask me to, we've had a
pretty good record, 47 of 51.
This should make it 48 of 52 if everything
works out, which is not bad in the greater
scheme of things.
It's not perfect.
Secondly, and perhaps equally important, if
not more important, the Constitution of the
United States is not easily amended.
In order to have an amendment, the most widely
used of the two methods is that you must have
an amendment proposed and approved by a two-thirds
majority of the members of our two houses
of Congress, and then - that is not sufficient
in and of itself - then the amendment is sent
forward to the states, and the states must
- three-fourths of the states, and that's
38 of the current number of states - I don't
think we're going to be adding any anytime
soon - must ratify it.
Now - and to make it even more difficult,
Congress has, for the past hundred years,
whenever they have proposed an amendment,
they have attached a seven-year deadline to
it.
So those three conditions make it difficult
to amend the Constitution.
And there's another more practical matter:
Congress has a limited amount of time and
energy to deal with these issues.
And they simply have - don't choose to deliberate
on it if it's not absolutely important.
And that's because there are many competing
demands on their time and energy.
In the year 2000, as you will recall, Vice
President Gore actually won more popular votes
nationwide, but fewer electoral votes nationwide.
And skipping over for a moment the question
of who won Florida, which I'm not going to
- it's a settled issue - the fact of the matter
is that President Bush won the election because
of winning the bare majority of electoral
votes necessary.
And at that time, if you had asked me and
I was doing this same job - and I may even
have been in this same room discussing the
same issue 12 years ago - if you had asked
me, well, if there is an Electoral College
misfire, won't Congress move quickly to propose
a constitutional amendment, and I would have
said yes, I think they will.
But they didn't.
And the reason for that is that they chose
instead to concentrate on the Help America
Vote Act - HAVA - which provided established
standards - new standards - technical standards,
technological standards - for the - for voting,
particularly electronic voting hardware in
the states, and also provided a program of
grants to the states to help them modernize
their voting systems so that we could move
forward in that area and make the recording
of votes more complete and accurate and timely.
For instance, as late as the year 2000, 10
percent of the people in the United States
actually voted by paper ballot, which I know
in many parts of the world, that is pro forma
- that's the standard operating procedure,
but not, you would think, in this country.
So let's move onto a timeline, which we are
fast approaching the end of at this point.
As you know, November 6th, Tuesday after the
first Monday in November is presidential election
day.
And that day was chosen in - many, many years
ago for a number of different reasons.
It was - Tuesday was not on a on Monday, and
in a rural republic that was very religious,
nobody worked or travelled on Sunday.
So this gave people who had to walk or ride
their horses or wagon or whatever, gave them
a full day to get to the polling place, the
voting station in their county.
It also was in November, which was the right
time window for the expiration of the presidential
term.
You had to hold your election sometime - certain
amount of time before the expiration of the
term.
It was also good to hold it in November because
the harvest had been collected and the farmers
had some spare time on their hands.
And also in the northern states in November,
the roads are clear and dry, you haven't had
major snowfall, there's no mud, it's easier
to travel.
So these are some of the arcane reasons that
led us to establish our election day on Tuesday
after the first Monday in November.
Once the election - the voters have cast their
ballots, the Electoral College will then meet.
And they meet this year on the - December
17th to cast their votes.
They meet separately.
They do not meet in one place.
And there's a reason for that that also goes
back to the Constitutional Convention, because
the members of the Constitutional Convention
were afraid that if the electors all met in
one place, that there would be a lot of opportunities
for political bargaining and intrigue.
So they deliberately chose to require the
electors to meet in their respective state
capitals.
There is one date before that, December 11th,
which most of us had never heard of before
the year 2000, the so-called safe harbor date.
And you may want to keep that in mind in the
event that there is a very close election,
as there was in 2000.
The safe harbor date is the date set by federal
law when the states, if they have procedures
in place to decide contested ballots, and
if they have made a decision using those procedures,
that decision is final.
And that was the date that Florida was bumping
up against in the year 2000.
So December 17th, the electors vote.
It's - it happens in the state capitals, usually
in the state capitol building.
Some of the states make a big public ceremony
of it.
Some of the others, they just meet, cast their
votes, and leave.
The results are forwarded to Washington to
various officials, including the administrator
of General Services, who runs the National
Archives; the secretary of the Senate; the
clerk of the House; the judge of the federal
district court for Washington; and the judge
of the federal district court for the district
in which they meet.
And then, according to law - by law - on January
6th, the Congress meets in joint session - one
of these rare joint sessions - to count the
electoral votes.
Now, January 6th falls on a Sunday this year,
so it is very likely that Congress will postpone
it to Monday, January 7th.
Most of the time, these electoral vote counting
sessions are pro forma and very routine.
However, sometimes you can have high drama.
In the year 2000, members of Congress sought
to file a complaint about the electoral vote
from Florida, as you may recall, claiming
that it was irregularly given.
However, they did not have the required - they
did not meet the requirements for that, so
Congress could not consider the objection.
In 2004, it happened again, and this time
they did meet the requirements.
And when you do have a contested vote in which
the petition has been properly submitted,
the two houses then have to break, meet separately,
two hours' debate, take a vote, go back and
announce their decision.
And if the two houses vote to exclude those
electoral votes, then they - those particular
ones that are in contention, then they are
out.
They are out.
So this is something to think that you might
want to be aware of as we approach this period.
And if it's a very tight election, if there
are charges of electoral irregularities in
any of the states, you might be on the lookout
for contests to the electoral vote count.
And then, of course, January 20th, the president's
term expires, and the new president is inaugurated,
so we have a fairly - if it were to come to
contest in the House of Representatives, we
have 13 days, roughly, to decide what to do.
So it's a fairly compressed window of time,
and depending on how the election turns out,
we will see whether it moves smoothly, which
we all hope it will, or whether there will
be a political controversy.
What are the some of the worst things that
can happen under the Electoral College system?
As I mentioned before, the so-called misfire,
in which one candidate, or set of candidates,
wins the Electoral College vote but loses
the popular vote.
And this has happened under the current system
three times: in 1867 with great political
consequence for our country, in 1888 with
no political consequence for our country,
and in the year 2000 with a lot of political
strife that grew out of the Bush-Gore case
in Florida.
I'll mention just 1876 because it appeared
that the Republicans might lose to the Democrats
in the 1876 presidential election.
And there were contested electoral votes,
and an electoral commission was considering
which side to give them to, award them to.
And the Democrats and - there was a lot of
talk, particularly in the southern parts of
the United States, which had been under federal
occupation since the Civil War, about civil
disturbances in the event these electoral
votes were rewarded to the Republicans.
So meeting behind closed doors, the political
leaders made an agreement whereby the - the
Great Compromise of 1877, whereby the Democrats
acceded to the commission's award of the electoral
votes to the Republicans and therefore Rutherford
B. Hayes became - a Republican, became the
President, in return for which the Republicans
agreed to end Reconstruction in the south,
which meant the withdrawal of federal troops,
which had been enforcing civil and voting
rights for our newly enfranchised African
Americans.
And with the end of Reconstruction came a
90 year period in which blacks lost most of
their civil and all of their political rights
in much of the south.
So it's a very important election in our history.
In 1888, nothing happened.
They just said, "Oh.
That's the way it goes sometimes."
2000 kind of fell in between, I think.
What's another contingency that we can look
at?
We may look at - we don't see them very often
- we call them faithless electors.
Remember, these are real people, and they
actually mark the names of the candidates
they are committed to down on a paper ballot.
Faithless electors are electors who vote against
the candidates to whom they're pledged.
There haven't been many; there have only been
nine since 1900.
Some of the instances are amusing.
In the year 2004, an elector in the state
of Minnesota decided - and this was the year
- this was an elector who had been elected
for Senator Kerry and Senator Edwards, and
this elector decided - and we don't know who
it was, because they did it by secret ballot
- that - the elector thought they were both
pretty good, so this elector voted for Kerry
for president, and for Edwards for president.
In 1988 when the Democratic ticket included
Mike Dukakis of Massachusetts and Lloyd Benson
of Texas, one elector decided that - and it
was a lady we know, because she talked about
it - she said she didn't care much for Dukakis,
so she voted for Benson for President and
Dukakis for Vice President.
Now 26 of the states do have either laws or
party rules on the books saying you can't
do this, and if they find out in advance of
the date on which the electoral votes are
cast, they can fire the elector and bring
in a replacement.
But once the - 24 states make - have no provision
for this.
But once the electoral vote is cast, this
is a decision that would come - it could come
before the courts, and we don't know how the
courts would decide, because it's never happened
in American history.
And let me suggest that if we're looking at
scenarios - let's say if we had a very close
election, and the electoral votes were counted
in Congress and we found that there had been
a - several faithless electors that changed
the results of the presidential election from
what had been anticipated, how do you deal
with that?
And what sort of timeframe do you have?
Thirteen days.
Another contingency that has been talked about
this time, and probably with greater likelihood,
but - although still a very distant likelihood
of eventuality - is the concept of an Electoral
College tie.
Now there are 538 electors.
It is possible tie at 269 each.
If you - CNN and ABC News have both developed
five or six different scenarios of putting
the states together to see how that works,
and - so it could be done.
And what happens then, if there's no majority
in the Electoral College or if there is a
tie in the Electoral College, the election
goes to the House of Representatives where
each state casts a single vote, and the Vice
President is elected in the Senate where each
senator casts a single vote.
So these are some of the eventualities that
come about from this system.
Just briefly - I'm not going to try to handicap
the race for you at this time, but I would
recommend - and you probably are very well
aware of it - I think Real Clear Politics
- and this is an unsolicited endorsement - has
a very good - they do a - they average the
polls, so they get a nationwide average.
And there are a lot of other great polls out
there, too; this is not the only one.
But they do it, and they also - their website
is very clear and easy to understand.
So that is a place that a lot of people look
for advice.
But as I say, there are a lot of really good
sources out there as well.
Touching briefly on just the Congressional
elections: It looks very close.
It doesn't - at this point - and I don't want
to handicap the election, but there doesn't
look to be so there will be much change in
either one.
But now, if you have any questions on the
Electoral College?
MODERATOR: Wait for the mike.
QUESTION: Thank you very much.
My name is Gregory Mercy.
I'm a reporter for Televisa News Network,
from Mexico.
I would like to know more about the electors.
We know they are maybe prominent politicians
or people who help the party to do some things.
But do they gather at some point, do they
receive any training?
Do they - I mean, how do they prepare them?
How do they know what to do, or how do they
engage in the activities?
And also, can you tell that this presidential
election is as a number of separate national
elections conducted by the states but with
a national result?
MR.
NEALE: With respect to the electors, most
of the states send their electors very precise
instructions on where to report, when to report,
and what they should do.
Also, since the electors are nominated by
their political parties, the party and - it's
either by party committees or by party conventions,
and it usually happens May through June.
They are chosen for their political experience
and their political loyalty and they do, again,
receive instruction from the state officials.
The officer who usually conducts this in the
states is - each state has an officer called
the Secretary of State, or some cases, the
Chief of the Elections Division, in some cases
it's the Lieutenant Governor.
But they - the Electoral College sessions
in the states are usually conducted by these
officials.
And the second part of your question?
QUESTION: Can you tell that maybe this is
- I don't know how to detail --
MR.
NEALE: It's a federal end - yes.
Yeah, it's a national and a federal election.
QUESTION: Yeah, I know, but what I mean is
the states are running the election, so this
has - these are like state elections with
a federal consequence --
MR.
NEALE: Yes, up to a point.
The states actually manage the election system.
And as you know, when you vote for federal
elections, but also always state and local
government officials who are up for election.
However, the federal government does have
- constitutionally have the authority over
times, places, and manner of elections to
the Senate and House of Representatives, which
they have chosen to exercise somewhat more
in recent years.
For instance, the Voting Rights Act, which
you're all familiar with, was a federal - using
their constitutional power.
Both under that provision and under the 14th
Amendment, the federal government outlawed
and instituted procedures to make sure that
the states could not discrimination in their
voting procedures.
Now, in addition to that, since the Help America
Vote Act, the states must also meet fairly
stringent conditions set by - established
by the federal government on their - the machinery
with which they record their votes.
You have - we still have punch cards.
We still have some lever machines.
But most of it is now computerized with - you
mark the little spot and put your ballot in
and it's automatically recorded.
So the federal government does - although
the states do have that authority, the federal
government does have the potential authority
to regulate how the states conduct their elections.
And it has, when it has needed to, stepped
in to do so.
And an interesting point here, the states
in the United States are always complaining
about - with all due respect to the state
governments, they're always complaining about
the federal government imposing mandates that
cost them money.
Well, when the Help America Vote Act was passed,
Congress made sure that the states received
grants to help them develop these improvements
to their voting systems so they did not have
to bear the cost alone.
QUESTION: Thank you so much.
My name is Ben Bangoura with (inaudible).com
and (inaudible).
I would like to know what your founding fathers
had in mind when they crafted the Electoral
College and what (inaudible).
And also (inaudible) Maine and Nebraska, where
- why their law (inaudible) different from
the (inaudible)?
MR.
NEALE: Well, at the convention - actually,
even direct popular elections of President
was considered the constitutional convention,
but only one state approved it.
It was such an unusual idea in 1787 to have
direct election.
Even in this country where you - we had a
pretty large voting population, there were
serious constraints of income and status.
You had to be a free man, a white man, you
had to have a certain level of property.
So we're dealing with a mindset that's very
different from our own so far as democratic
participation is concerned.
But as I say, they did want to have the states
very much involved.
They did not want to have Congress involved.
They did not want the President to be answerable
to Congress for his election or reelection.
They wanted the President to be more independent.
And that is - fits with the idea of the convention
that we would have the three independent branches
of government, and that there would be a series
- division of - separation of powers and a
system of checks and balances, whereby none
of them could exercise dominance over the
other.
QUESTION: Hi, Deborah Ackel, Abu Dhabi TV.
This is a little bit off the Electoral College,
but could you speak a little bit about voter
ID laws and the influence of the Supreme Court
on the election?
MR.
NEALE: Voter ID laws are something that has
come up in the past in recent years, the concept
that a person would have to actually show
a photographic identification.
This is not true on the federal level.
This is essentially a state issue, and the
states - some of the states have instituted
these laws and many of them have been challenged.
And as you can - as you know, some of them
have been stayed, some of them in their execution.
Others, I think, may have gone further than
that.
But it's a matter before the courts, and different
sides of the argument have different views
on it, really.
It's politically a very sensitive issue at
this point.
QUESTION: (Inaudible.)
Sir, what are the reasons for Electoral College
and there are some reasons begin?
So who would (inaudible)?
Well, first of all, are you for change or
for the (inaudible)?
Or still United States (inaudible)?
MR.
NEALE: Well, I think, as a dedicated servant
of the United States Congress, and of course
the American people, that I should withhold
my personal judgment.
But there are arguments on both sides; you're
absolutely right.
One of my favorite ways of looking at the
Electoral College: There was a Greek poet
whose name escapes me right now who said famously
- and I'm sure many of you have heard this
- that the hedgehog - no, the fox knows many
things.
The hedgehog knows one big thing.
Now, direct popular election in this country
is the hedgehog; it's one big thing.
The people rule, the majority rule, so it's
a very strong majoritarian argument in favor
of having a single vote across country.
In fact, there's an interesting movement underway
now called the National Popular Vote Movement
that is seeking an NPV; you can Google it
and find out about their program.
What they want to do is have the states come
together - not in the federal aegis but by
themselves - and adopt an interstate compact
whereby they would agree that no matter what
their votes were - how the popular vote was
cast, that they would choose as electors the
electors for the winning candidate nationwide.
So this is a way of getting - would be a way
of getting around the constitution without
having to do - legally without having to do
a constitutional amendment.
Now there are also legal arguments that are
raised against that as well.
On the other side of the coin with respect
to the Electoral College, it is - and you
will see in my report, its advocates say it
is an important part of guaranteeing the stability
of the two-party system, and by that I mean
the broad-based two-party system, although
we are somewhat more programmatic than we
have been in the past.
The Democrats are more - the centrism is a
little changed.
The two parties are moving in slightly different
directions.
But it's also considered to be by these people
a pillar of federalism.
If we have - our Senate is apportioned on
the concept of state equality.
The Electoral College is apportioned on the
concept that the states are sub-national,
but in their own right sovereign political
communities in which the citizens participate
both - as I said earlier - citizens of the
state in which they vote and also citizens
of the United States.
So you have two competing philosophies there,
and I think they both offer a great deal,
and both can be very passionate in their advocacy.
MODERATOR: Right here.
QUESTION: Hello.
Melisa Cabo with the news agency of Argentina,
Telam news agency.
I would like you to talk a little bit more
about the - this system, the Electoral College,
and the polls, how it works.
Because if the electorals are the one who
elect the president, how the polls - what's
the role of the polls here in this system?
MR.
NEALE: Now you're referring to the public
opinion, survey research, right.
Well, the polls reflect - there are two kinds
of polls, and there's the nationwide average,
which we tend to look at.
And that's - that gives you a photo of national
opinion.
But it is arguable that, although that is
a valuable reference, the more important polls
are those that are conducted in the individual
states, because it is the individual states
where the election is decided.
So I think that they also certainly - the
survey research and the polls have a great
deal of influence on the way in which the
presidential candidates and their campaign
organizations and the national party organizations
plan and conduct their campaigns.
If they say, for instance - recently, there's
been - there have been polls that suggested
that Governor Romney is closing the gap in
Ohio, which is one of the most important of
the battleground states.
And so the - you can be sure that the Romney
campaign and the Republican National Committee
have poured monetary resources into there
for television time and for phone banks and
for get-out-the-vote - the ground game, as
you know.
And they probably - the schedules of the candidates
are extraordinarily fluid these last few weeks
so that they can be deployed wherever they
are needed, wherever you see an opening.
All of a sudden, Pennsylvania may be in play,
and so there's - neither Governor Romney nor
Congressman Ryan has been in Pennsylvania
in months, and I wouldn't be surprised if
you see one or both of them there, especially
in parts of the state that might appear to
be more favorable to them.
So they do have an influence, and there's
- finally, there's another influence that
just occurred to me, that they may have an
influence on the minds of the people who look
at the polls and maybe say, "Well, gee whiz,
it's going to Obama, maybe I should vote for
Obama," or "Well, look at that, Romney seems
to be coming back from the dead.
Maybe I should consider voting for Romney."
So I think that's another way in which survey
research can influence the campaign.
MODERATOR: Right here.
QUESTION: Hi, thank you.
My name is Sylvia Pisani.
I am also from Argentina, from the newspaper
La Nacion.
Thank you for all your information.
We have a problem here, and for - I particularly
have a problem, which is the headline.
And the headline is, for me, on the night
of November the 6th.
And I'm dreaming about it and I'm - (laughter)
- having nightmares with it, because everything
could be okay if we have a clear election.
But if the election is tied, the result is
tied, everybody's going to show how this is
going to be reflected in the college.
They are going to say 260-something or two
- so imagine the worst, because we have - I
know I won't be able to call you then that
night.
(Laughter.)
So imagine the worst, that the election is
really tight, and they say 269 to 269, you
know?
Wolf Blitzer and everybody, hey, we have here
different.
So we start to think in the Congress, no?
Because the president is going to be elected
by the House of - they are tight, yeah?
If we have that scenario, what have to do?
MR.
NEALE: Well, first let me say, sure.
Let's say we have 269 electors chosen for
President Obama and Vice President Biden,
and 269 for Governor Romney and Congressman
Ryan.
I've been talking earlier about the electors
as independent agents.
And there is a very strong body of opinion
that suggests that although you can replace
an elector before he or she votes, that you
cannot change their vote after they have voted.
So what's to keep one elector in one state
from saying this can't go to the House of
Representatives; I'm going to step forward
and change my vote and instead vote for the
popular vote winner, to cut the Gordian knot,
as it were, to save the country from contention
election?
Or what if the same elector says, well, I'm
going to vote for the - for my party?
That doesn't work; sorry about that.
But this is the way around it.
If it does go to 269 to 269, then there are
other factors to be considered.
The states - there may be states where there
is a very tight race, and we could see a replay
in one or more states of the activity you
will recall in Florida.
You know the hanging chads and the reexamining
the results vote by vote by vote, although
hopefully, after 12 years of effort, which
Congress has pushed very hard, to improve
the accuracy and speed and inviolability of
our voting process, of our voting systems,
that we would not have the same degree of
sloppiness that they did in certain parts
of Florida, with all due respect to Florida,
in the year 2000, that we hope that wouldn't
happen again.
But there might be changes in the results
from state recounts.
There might be a change in electoral votes,
as I said just a moment ago, from a particular
elector.
If indeed Congress votes to approve a 269-269
split, we at least would have the advantage
of knowing in advance, at least a month in
advance, and they would be able to plan for
it.
And we'd move into the contingent election
phase, which is another act in a three-act
or a four-act play, which presents an entirely
different series of assumptions and possibilities
because the Constitution simply says that
each state - that they shall vote by ballot,
paper - the states will vote by ballot, and
that they will do that to the exclusion of
all other business, which means that if we
do have a contingent election of the president
in the House, the state delegations would
cast their votes on paper and they could do
no other business, although they could adjourn
to go home at night.
So - but the rest of that is an undiscovered
country.
For instance, California has 53 House members.
They cast one vote.
Wyoming has one House member.
Wyoming casts one vote in the contingent election
process.
Wait, there's more.
When the state - what if you have a state
with an equal number of - even number of electors?
What if they split 50/50?
How do they cast their vote, their single
vote in the contingent election process?
You see there are - forgive me for sounding
glib, but there are many contingencies in
the contingent election process.
And the last - the most recent reference point
for us is 1825, 187 years ago.
So Congress would have its work cut out if
we were to go to a contingent election.
Personally, I don't think it's going to happen.
It could.
And it makes a wonderful scenario for what
if and alternative future novels and things
of that sort.
There have been plenty of them written on
this subject.
QUESTION: Thank you (inaudible).
MR.
NEALE: Certainly.
MODERATOR: Right here.
Right there.
QUESTION: Thank you.
Silvia Ayuso with the German Press Agency.
It's related to this last question.
First one thought.
I mean, with what you said that one elector
could decide to vote in a different way than
he's supposed to, isn't that, with all due
respect to the electoral system, every system
has its flaws, but that's putting maybe the
position of millions of people in one person,
which would be - wouldn't be that considered
somehow dangerous?
And second, I'm not sure I understand, in
case of a tie, what this says that in the
House each state delegation casts a single
vote.
You explained a little bit, but I'm confused.
We are not talking -are we talking about the
electoral votes or the Congress --
MR.
NEALE: The Electoral College exists very briefly.
The electors are elected.
They meet under - on November 6th.
They meet in the states separately from - December
17th.
They vote; they disappear.
The Electoral College disappears for another
four years.
So they have no continuing existence.
With the contingent election process, the
way - the 12th Amendment provides that the
president is elected in the House of Representatives.
But in this case, each state as an entity,
as a unit, casts one vote.
So that means that in states where you have
more than one representative - and that's
most of them - the representatives will have
to vote internally, in an internal caucus,
in a huddle, if you will, to determine how
their vote should be cast.
And the question is should it be majority?
Should it be plurality?
What if someone wants to abstain?
And these are rules - these are contingencies
that would have to be decided in the House
of Representatives prior to this session.
And as I say, we do have an old - very old
precedent from 1825 by which we can at least
look to see what Congress has done in the
past.
MODERATOR: The last question, right there.
Right there.
QUESTION: I'm Arundhati Mukherjee from India.
I'd like to know as it appears that Electoral
College votes are more important than popular
votes, does that reduce the spirit of democracy?
And the second part of my question is: If
the Electoral College is so important and
the voters don't know who are the electors,
is it an obstacle to transparency in the electoral
system?
MR.
NEALE: That's a very interesting point.
The - at one point in the past, people - the
ballots were printed with the names of the
elector candidates on them.
I remember when I was a young man and I lived
in Washington but voted in the State of New
York, which is my native state, I voted on
a paper ballot and I knew who my presidential
elector candidates were.
This is not done anymore.
And one of the reasons, of course, with this
is that voting machines, either the old fashioned
lever kind, which are analog, or the new systems
which are all digital, it's very difficult
to, say for instance in the State of California
to list the names of 53 people.
So each one of the 8 or 9 or 10 political
organizations that has a place on the ballot
in that state, depending on how many gain
ballot access.
The answer to your question is that from a
very, very early time in this country, electors
have been seen not to be independent agents,
which is what the Founding Fathers thought
they would be.
You see, there was no political community
in the United States in 1787.
We had 13 colonies scattered up.
It took two months to travel by land from
Boston to Georgia.
And they felt that - and there was no national
press - they felt that the people themselves,
the voters, would probably not have the sophistication
to be able to discern national issues or national
characters.
So they would vote for the electors, who would
be the landholders, the best and the brightest,
the merchants, the bankers, and these people
would make a disinterested selection.
Well, it broke down almost immediately because
even at that point in 1787 there was a drive
towards democraticzation, the frontier drive
in America, as you will, and people said I
don't - and very early, in the early 19th
century, one elector - can't remember the
name of the state or the elector or the person
who said this, but an elector voted against
instructions, and he said, "I don't choose
them to think; I choose them to act."
So it is our tradition and has been for two
centuries that the electors are the agents
of the people, and they do the people's will.
So - but we still have the constitutional
provision that suggests - and again, we don't
know whether this would stand up in court
because it's never been decided in court,
that the electors are actually fundamentally
still free agents.
Now, as I mentioned earlier, if you're an
elector candidate for Democrats in a certain
state and you say I'm actually - I'm telling
you, I'm voting for Romney, the state party
in 26 states has the authority to take you
off the ballot and substitute someone.
But as I said earlier, once again, once they've
voted, it's - we're entering - it's an undiscovered
country.
It's new territory.
Philosophically, if we, again, if we deal
in pure reason, yes, there's - you can - it
can be said, as you noted, that having an
indirect election of the president with these
intermediate actors may cast some doubt on
the - if you're looking for something pure
about the process, you really want something
that is simple, logical, and rational, but
let me suggest that the United States Constitution,
although it comes from the 18th century, which
was - these were all men of The Enlightenment.
They all knew their Enlightenment philosophers,
but it is a - and it is an enlightened document,
but it is filled - the Constitution is filled,
replete with odd little compromises and odd
little provisions, some of which we have stripped
out because they needed to be stripped out,
like the three-fifths provision and the slave
trade and things like that, some at great
cost to ourselves.
But it is - it's a very complicated - it's
a simple - it's a short document.
I believe it's probably the shortest written
Constitution of any nation today, but it's
a very complicated one.
And so here again, choose between the one
big thing or the multitude of little things
that maybe gives you the same value in the
long run.
MODERATOR: Thank you very much for coming
to this briefing.
(Applause.)
MR.
NEALE: Thank you.
