LARRY LESSIG: So welcome
to our conference sponsored
by the Harvard Journal
of Law and Policy
on the electoral college.
I'm Larry Lessig and I
begged the Harvard Journal
to do this conference, and
they did the best favor
possible by having an
extraordinary leader, Margaret,
who took it over and did
absolutely everything
without any input from me.
It's the perfect delegation.
I admire greatly
their skill because I
wouldn't have been able to
do anything close to what
they've done here.
So we're very happy to see such
a diverse group of scholars
about the ideas that
we will talk about
with the electoral
college, and we're
going to begin with
Danielle Root, who's
from the Center for American
Progress, to kick us off.
And at the end, we will have
a similar wrapping up outside
of the context of the panels
that will be presented.
So Danielle, I'd love to
invite you to come forward.
[APPLAUSE]
DANIELLE ROOT: Good morning.
Thank you.
First, I want to thank Harvard
Law School and especially
the Harvard Law
and Policy Review
for holding this very important
event on an issue that is
so critical to our democracy.
The outcomes of the 2000 and
2016 presidential elections
have raised public
awareness and criticism
of the electoral college
to a level rarely enjoyed
by similarly arcane
institutions.
While past efforts to reform the
electoral college have failed,
reform advocates
have good reason
to believe that the
time is now ripe
for real systematic change.
But it's important to
recognize that the issues being
raised today--
and which will be debated and
explored at this conference--
have long been the subject of
debate in the United States,
beginning with the founding
fathers and up through today.
At various points since
the nation's founding,
lawmakers and advocates
have questioned
the democratic legitimacy
of the electoral college,
calling for reform and in some
cases, for its elimination.
Particularly over
the last century,
new ideas such as the
National Popular Vote Compact,
have gained new
prominence in the debate.
And, in fact, we have a whole
panel dedicated to this idea
later this afternoon.
Today the electoral college
has become a regular topic
of conversation within
communities across the country,
in the halls of Congress, and
on the presidential campaign
trail.
Politicians from both
parties do everything
they can to win under
the current rules,
while accusing reformers
and traditionalists alike
of naked partisanship.
For their part,
scholars and historians
disagree over the institution's
soundness, as well as
the practicality and wisdom
of continuing to rely
on it for future elections.
And everyday Americans
who increasingly
feel that their votes and voices
do not matter in our elections
grapple to understand how
the electoral college impacts
their power as voters.
The questions being asked
by politicians, scholars,
and the American people about
the validity and fairness
of the electoral college
are central to determining
its future place
in our democracy.
Key among them are why was
the electoral college created
in the first place, and what
was its envisioned purpose?
What impact does the
electoral college
have on the health and
integrity of US elections?
And what risks does it pose
to democratic stability?
Finally, is there a right
way to go about reforming
the electoral college?
Do we go for small scale
change, eliminate it entirely,
or leave the process as is?
The US constitution
ascribes a unique process
for electing the president
of the United States.
Via the electoral
college, the president
is not elected
through popular vote,
but rather by state electors who
are apportioned to the states
according to their respective
representation in Congress
so that each state is guaranteed
at least three electors.
To win an election, a
presidential candidate
must simply win a majority of
votes in the electoral college.
Today that means
270 of 538 votes.
But why was this system
created in the first place?
Like many issues related
to the electoral college,
the question has been
vigorously debated,
including by the
framers themselves,
and ultimately, there
wasn't truly any one reason.
In part, the electoral
college was born out
of a need to placate
small and large states who
disagreed over equal and
proportional democracy.
But it was also a
compromise between those
who thought the president
should be elected
by the people and those who
believed he or she should
be elected by Congress.
In fact, many framers believed--
and perhaps even hoped--
that the electoral
college would often
fail to reach majority consensus
on presidential candidates.
As such, the matter
would be delegated
to the US House of
Representatives,
which would ultimately
decide who became president.
This theory begs the question of
whether the framers envisioned
the electoral college playing
any significant role at all
in our electoral process.
Others argue the electoral
college reflects the framers'
distrust in the American
people's ability
to make informed
political decisions,
while still others
assert it simply offered
a practical solution to holding
elections for national office
during a time when
reliable transportation
and national periodicals
were lacking.
Finally, we cannot ignore
the very real and still very
relevant debate about race
and power that birthed
the electoral college
and our system
of federal representation.
At the time of its creation,
the electoral college
was directly interwoven with the
infamous Three Fifths clause,
allocating outsized
power to slave holding
states that considered
African-Americans property.
And while slavery has ended,
the electoral college still
tends to award greater
influence to states
that are predominantly white
at the expense of those
with more diverse populations.
In reality, the
framers' motivation
behind creating the
electoral college
is likely some combination
of all of the above.
Yet despite disagreement
over how and why
the electoral
college came to be,
most experts agree
that the intent
was that the president
would reflect
the preferences of the
majority of American voters.
But as we know, this is not how
things have always panned out,
with real consequences for
public faith in our elections.
The 2016 election was
the most recent example
of discrepancies between
the US popular vote
and the electoral college,
wherein presidential candidate
Hillary Clinton received
nearly 3 million
more votes nationwide than
now-president Donald Trump.
Yet because of vote allocations
within the electoral college,
she ultimately lost
the presidency.
But 2016 was not the first
time mismatched election
results occurred.
Since the nation's founding,
the electoral college
has caused four other
presidents to ascend
into office despite having
lost the popular vote.
Such anomalies have now
occurred in two of the last five
presidential elections.
Soon such occurrences may not
be considered anomalies at all.
A recent study from
the University of Texas
suggests that in
future close elections,
the less popular
presidential candidate
has a 45% chance of winning
the electoral college and thus
the presidency.
Beyond these specific
outcomes, the design
of the electoral
college runs counter
to the principle of
one person, one vote
by granting voters in
smaller, less populated states
significantly more voting
power and influence
over electoral
outcomes than voters
in large, more populous states.
Because of how the electoral
college is apportioned,
voters in Wyoming currently have
three times more voting power
in presidential elections
than voters in California.
The electoral college
may also be contributing
to rising disillusionment
among American voters
and their belief that
their votes don't matter.
This is because of what's often
referred to as the 50% plus one
rule, and wasted votes.
This problem is particularly
poignant for voters
in deep blue or deep red states,
where one candidate can easily
win with minimal investment
by his or her campaigns.
Furthermore, the
electoral college
is facing a reckoning
with its racist origins.
As jurisdictions
across the country
tear down Confederate
statutes and do away
with celebrating Columbus
Day in favor of recognition
of the first peoples, do we
cut against our own credibility
as a country that
values equality
if we fail to dismantle
processes born out of
and that perpetuate
structural racism?
But the electoral college
is not without merit.
These debates would not
have lingered for so long
if the case were so
clearly one-sided.
At least in theory,
the electoral college
does offer a certain
layer of protection
against the so-called
democratic mob.
So far, we as a nation have
been lucky to experience
an upward trajectory in regard
to human and civil rights
and the implementation of
positive democratic norms.
But over the last three
years alone, we've
seen a rise in
xenophobic rhetoric
and dangerous shows of
American exceptionalism.
White supremacy groups
have been emboldened
to carry out violent attacks,
often against historically
underrepresented groups, while
everyday Americans harboring
harmful prejudices
have glommed on
to politicians whom
they believe share
and reflect similar sentiment.
The drastic rise
in racist sentiment
and hate-filled
behavior witnessed
over the last few years
does raise questions
over the coming political
and societal trajectory
of the country.
In such a situation,
could an electoral college
made up of calmer,
more tolerant electors
serve to hold back
our worst impulses?
Perhaps the most powerful
argument against reform
is the uncertainty of how
reform would actually play out.
In other words, is
there a risk of the cure
being worse than the disease?
Because a
constitutional amendment
is nothing short of
impossible today,
any reform must derive
from the states.
With that in mind, should
states enter into agreements
to dedicate all of
their electoral votes
to the winner of the
national popular vote,
or should they simply
alter their own practices
by making their electoral
board votes proportional
to state vote counts?
They could also follow in the
footsteps of Maine and Nebraska
and assign electors
specific districts dictating
how they must cast their votes.
None of these options
are a panacea.
If you thought recounts in one
or two states a year were bad,
imagine the logistical
nightmare of trying
to recount a razor-thin
national popular vote.
Apportioning electors
to the states
through the electoral
college also
makes it easier to
isolate and audit
potential fraud or foreign
or domestic cyber attacks.
Under the current system,
one state's failure
to secure its infrastructure
does not necessarily
compromise our electoral
system as a whole,
and any state by state reform
poses significant issues
for partisans on one
side or the other.
A state that
unilaterally decides
to apportion its electors
between multiple candidates
dilutes the strength
of the plurality party.
Thus, perhaps the option of
doing nothing at all with
hopes that the system
corrects itself
is our most viable way forward.
All of which to say is that
today's event on the utility
and future of the
electoral college
is both essential
and extremely timely.
I would like to once again
thank the Harvard Law and Policy
Review for holding
this conference.
I would also like to thank in
advance the other panelists
and speakers for sharing their
insight and expertise today,
and all of you for
your attention.
Thank you.
[APPLAUSE]
LARRY LESSIG: So we're going to
move right to the first panel
after I apologize,
for the second time,
referring to the journal
in the wrong frame.
The Review, the Harvard
Law and Policy Review,
not the Harvard Journal
for Law and Policy.
I apologize for my ignorance,
but my apology's long enough
to get everyone up here.
Welcome.
[LAUGHTER]
So I assume, Ned, that
you're going to start.
NED FOLEY: Sure.
LARRY LESSIG: OK, thank you.
NED FOLEY: Can you all
hear me OK out there?
Good, all right.
I'm Ned Foley, and I'm going
to kind of moderate this panel
and lead it off and try to keep
the introductions really short.
We've got two law professors on
the panel, Franita and myself.
If you can read these signs,
you see that Franita is at USC
and I'm at Ohio State.
We are both trained
as lawyers but we
try to work and
dabble in history
as part of our
scholarship on elections
and electoral processes.
So we're really
thrilled to have two
of the most preeminent
historians in America,
Jack Rakove and Sean Wilentz
here, who need no introduction.
Jack's a honorary law professor
for his work on Madison
and the original intent
of the Constitution,
having won a Pulitzer Prize.
And I hope everybody
knows Sean's Rise
of American Democracy, which
won the Bancroft Prize.
And I've recently-- can I say I
read your book, The Politicians
and the Egalitarians?
listened to it on Audible,
and I recommend audible.com
because you can
multiply the number
of books you can read in a year
just by listening to someone.
It was actually a great
listen, so I encourage you to--
SEAN WILENTZ: Thank you.
NED FOLEY: --have that book.
And then Sam's a
Renaissance man.
He's at Princeton.
He's trained as a--
SAM WANG: You mean
not a law professor.
NED FOLEY: No, I
mean everything.
[INTERPOSING VOICES]
SAM WANG: You gotta
say something about me,
is that the idea?
NED FOLEY: No, no, no.
SAM WANG: Not a historian.
NED FOLEY: He's trained
as a neuroscientist,
but he's done incredible
work in our field
on the topic of gerrymandering,
applying math and statistics.
And I'm just waiting for him
to solve the impossibility
of the [INAUDIBLE]
theorem and actually
find a solution to that.
And when he does
that, he will really
have fixed American
democracy for all of us.
So the order, which
hopefully will be apparent
based on the structure of the
book I'm about to talk about,
will be Jack, Sean,
Sam, and Franita.
But let me give you an
overview because they've
been kind enough to
take a look at a book
that I've written that's
coming out in December.
And the book has three parts.
The first part is why we have
our current electoral college.
And the key point is that
our electoral college is not
the electoral college that
was adopted in the summer
of Philadelphia in 1787.
That was the first
electoral college.
But it was replaced by the
second electoral college,
adopted first by
Congress in 1803,
then ratified by
the states in 1804
in time for Thomas Jefferson's
re-election in 1804.
When I went to law school, I
was taught by my professors
that the 12th Amendment was
just a technical tweak, a fix,
it wasn't really important.
There was nothing deep or
philosophical about it.
That is not true.
Having now gone through
the records of the Congress
that drafted the
12th Amendment, it
was a rich, robust,
thorough debate
about the fundamental
philosophical principles
of American democracy
after four experiences
of the first system.
And so it was a renegotiation
of federalism and republicanism.
And again, these are
not household names that
were in Congress at the time.
So it wasn't Hamilton
and it wasn't Madison.
But it was, if you
will, the Larry Tribes
and the Ern Chemerinskys
of the day, people
who wrote constitutional
treatises on the Constitution
and constitutional
governance and jurisprudence
as it existed then.
The debates are
much more extensive
than the debates in
Philadelphia at the founding.
Madison himself
acknowledged late in life
that they hurried when
they got to the topic
of the electoral
college in Philadelphia,
and they were kind
of trying to get home
at the end of a long hot
summer, and they didn't give it
the attention it deserved.
And you can sort of
tell that by looking
at the historical
record of 1787 and then
comparing it to the
historical record of 1803.
So to understand the
difference between these two
electoral colleges,
the easiest way to do
is to think about
the image of what
the legitimate, authentic winner
that each system had in mind.
So the original
electoral college
had George Washington in mind
as the right kind of winner.
And what that was, was
a consensus president,
a president who would rise
above party, above factions,
above interest group politics,
to govern the nature.
And they designed a
system for that purpose.
Again, we all know from
the Federalist Papers,
they hoped to avoid
permanent two party conflict
and have a divide
and conquer strategy
to the problem of faction
through separation of powers
and other instruments of
constitutional architecture.
That obviously failed.
Failed very quickly.
By 1792 Madison is
writing why he's
a member of a political party
and we need political parties.
By 1796 we get an intensely
partisan two party conflict
that gets replicated with
great calamity in 1800.
And we know what it's
like today to live
in a world of intense
polarized hyperpartisanship.
They were living in that
world in 1800 and 1796.
It wasn't exactly the
same as our system.
But it was-- the original
idea of avoiding two party
conflict had obviously failed.
And the key point is
that when they rewrote
the electoral college
in the 12th Amendment,
they had in mind the
inevitability of two party
conflict.
And the key idea was that the
majority party should prevail.
So their image of an authentic
winner is Thomas Jefferson.
That's why I call it the
Jeffersonian electoral college,
because it is a different beast.
And their point is that
there's two parties.
There's the Jeffersonian
party and the opponents,
the Federalist party.
And there's never going
to be consensus again,
and at least the majority
party should prevail.
The chief executive
of the United States
should not belong to
the minority party.
But it's also important that--
so we have to distinguish
between majority
rule, above 50%, versus
plurality winners.
As we'll get to later on, the
defect of our current system,
which has abandoned the
Jeffersonian vision,
is that we can now have
plurality winners that
replicate the phenomenon
of minority rule.
That's not what they wanted.
They believed in
majority rule, you
have to have a majority
of electoral votes to win.
If not a majority of
electoral votes, a majority
of states in the House.
They thought majority winners
would win at the state level.
And they because they were
combining and rethinking,
putting together a republican
form of government, republican
elections, and
federalism, they didn't
want just a monolithic
national majority winner.
They wanted a federal majority
winner, or a compound majority
winner.
The way Thomas Jefferson was
going to authentically win--
they thought he had won
authentically in 1800
and almost been deprived of it.
They wanted to assure that
he would win again properly
and the system would work as
they intended it to in 1804--
was he would accumulate an
electoral college majority
by amassing
state-based majorities.
He would be the
majority-preferred candidate
in enough states to produce
this federal majority.
And in fact,
Jefferson and Madison
himself changed the rules for
how Virginia appointed electors
in 1800, because they knew
that states had the power
to assure that the winner of
the state's electoral votes
would reflect majority point
of view, not minority point
of view within the state.
So their vision was this idea
of a compound majority winner.
And again, they
were a party trying
to achieve a party's
goal, but they also
had philosophical views as to
what they wanted to achieve.
Now obviously their
conception of democracy
was not our one person, one
vote, post Reynolds vs. Sims,
post 19th Amendment
suffrage for everybody,
but they had a conception
of republican government
electoral choice
where they wanted
the majority of the electors
to win at the state level
and at the federal level.
They were aware that states
could appoint electors
by popular vote and they knew
that states like Massachusetts
and New Hampshire assured that
in a popular vote for electors,
that there would be runoffs.
This is something
I didn't realize
until I did the
research for the book,
because states didn't
want to just let
somebody be an elector
with a mere plurality.
You needed to have
a runoff, whether it
was in the form of a popular
runoff or a legislative runoff,
because they thought
that legislatures could
reflect majority sentiment.
So moving now to part two
of the book, what's happened
is there's a second
story, which is
we've abandoned this
majority rule principle that
was built into
the 12th Amendment
and the Jeffersonian
vision there.
And this is somewhat of a
messy, complicated story.
And it sort of takes place
in the Jacksonian era
between 1824 and 1844.
Professor Wilentz is going
to talk about the 1844
election, which is, I think
one of the most poorly
understood consequential
election in American history.
I certainly in high school
never learned about.
This was James Polk versus
Henry Clay, for those
of you who are keeping track.
But the point was
that states started
to abandon this conception
of majority rule
at the state level in the
appointment of their electors.
And you can see this
most by focusing
on New York, which was a big
state and the pivotal swing
state of the era.
And there's a
fascinating debate that
takes place in
the New York State
legislature on the eve
of the 1824 election,
where one side is clinging,
and they prevail for a while,
but they ultimately lose
after Jackson comes to power.
But prior to 1824, the
old guard, essentially,
and some guy named [INAUDIBLE]
I had never heard of him,
but he's a leader of the
state legislature in New York.
And he's explaining why
there's different ways
to achieve majority
choice at the state level.
Again, it could be a
legislative runoff,
it could be a popular runoff, it
could be a districting system.
But the one thing you
don't want because it would
be inconsistent with
the 12th Amendment
and the republican,
Jeffersonian vision, is you
do not want a statewide
plurality winner
to capture all of a
state's electoral votes,
because that would let minority
control of the state outcome
and be inappropriate.
That view prevails going into
the election of 1824, which,
you may remember, is
a four-way split that
ends up going to the
House of Representatives.
Jackson comes back
with a vengeance.
He is, in fact,
the majority winner
under the Jeffersonian
ideals, but the philosophies
of the times change.
And unfortunately, it's
kind of a messy story,
that Jackson himself says he
believes in majority rule.
But what gets put in
place at the state level
is plurality winner
take all, where
you can win all of a
state's electoral votes
with under 50% of
the popular vote.
And this has great
significance for the first time
in the election of 1844.
I'll let Sean go into
the details of that.
It's a fascinating story.
I think the question to ask
that's relevant to it is,
is 1844 the first time we see
a third party candidate affect
the result between the
two main contenders, kind
of like Ralph Nader in 2000?
Was there a Ralph Nader
affecting the election of 1844,
and if so, what
did they react to?
There's a chapter in my book
that goes into the surprise
that people felt when Polk
won in the way that he did,
and they called him a minority
president even though he
won the electoral college.
Didn't go to the House,
but they didn't see him
as an authentic
winner because of what
happened in the
state of New York,
with his plurality only victory.
And the good news is
that for the most part,
the system has
produced winners that
fit the original
Jeffersonian vision,
meaning candidates do
accumulate their state
wins with majority--
[PHONE RINGING]
--wins in the states to achieve
an electoral college majority.
So it's rarely that we've
had elections that--
thank you-- that
affect the outcome.
But there are these ones that we
really need to examine closely.
And the key
philosophical point here
to keep in mind is a system
designed for two party
competition, the
12th Amendment, can't
handle the presence
of third parties
and independent candidates.
It doesn't know what to do.
And they didn't
design it that way.
The first system
hoped no parties, just
George Washington.
The second system thinks
there will be team A, team B,
and the majority team should
win over the minority team.
And the unfortunate reality
of where we are today
is we have a kind of
national schizophrenia
where we're neither an authentic
two party system that is really
just team red and
team blue, because we
do have third, fourth,
fifth candidates
that can affect the system.
But we're not also an
authentic multi-party system,
because we have a
kind of schizophrenia.
And it's because of the
mismatch between the design
of the 12th Amendment, which
calls for two party elections,
and what happens at
the state level, which
allows for additional
candidates,
but not in a way that was
coherently designed or properly
developed.
I need to run my
comments short so we can
get reactions for other people.
A couple of key
takeaways on this.
And I think Sam may talk
a way that's relevant.
The pathology that
exists now has
become more acute in
the last quarter century
and has the potential
to be even more so.
Because 199-- and this
is a non-partisan point--
because 1992, Bill Clinton,
2000, George W Bush, and 2016,
Donald Trump, were
all candidates
who can only get an electoral
college majority by winning
state-based pluralities.
Bill Clinton in '92
won only one state
with a majority of
the popular vote,
his home state of Arkansas
and the District of Columbia.
Every other state that
he wins, he's under 50%.
Sometimes he's under 40%.
It's because of Ross Perot.
Now was Ross Perot a spoiler?
Was Ross Perot like Ralph Nader?
The political scientists
can debate that.
The key point is we
don't know for sure.
And it's a factor,
and our system
can't handle a Ross Perot.
It can't handle a Jill Stein.
It can't handle a Gary Johnson.
Trump's electoral college
win is with sub-50%
wins in seven states.
We all know about
Ralph Nader in 2000,
so I don't need to
go into the details.
And this could happen again.
If you were watching
the news yesterday,
people are worried that there's
going to be another third party
candidate, whether it's Justin
Amash, or the Libertarian
Party, or Lincoln Chafee, the
Libertarian Party nominee,
or Michael Bloomberg decides
to re-enter the race, or Tulsi
Gabbard, or yada yada yada.
We do not have a system that
matches the sense of two party
competition with the
reality that there
may be multiple
candidates on the ballot.
What's the solution?
The solution is for states--
you don't need a
constitutional amendment,
you don't need a
multi-state compact.
What you need is
the pivotal states--
be nice if all the
states did this,
but if the battleground states
adopted a majority requirement,
meaning you cannot get all of a
state's electoral votes unless
you cross the 50% threshold
of the popular vote,
that would solve the problem.
There's different specific
ways of doing that.
My own preference is
ranked choice voting,
like Maine has just adopted
for presidential electors,
because ranked choice
voting is an instant runoff.
So that if you have a third,
fourth, fifth candidate
on the ballot, the
mathematics of it
will get you a genuine
majority winner.
But if you don't
like that, you could
do a regular, old fashioned
runoff of a second vote,
like France does with its
presidential elections.
You just have a second
runoff a few weeks later.
It would be, logistically, a
little messy in our system.
But it's not infeasible, and
it's certainly constitutionally
permissible for states
to do under Article Two,
because that's exactly
what Massachusetts and New
Hampshire did for
a long, long time,
well into the middle
of the 19th century.
Other states did it as well.
You could have a
version designed
for the presidential system of
the so-called top two primary,
that California uses
and Washington state
uses for gubernatorial
and other elections.
You could do something called
conditional winner take
all, where you get all of the
electoral votes from a state
if you reach 50% or more, but
if no candidate is above 50%
then you do statewide
proportionality
division of the electoral vote.
So there are lots of
different ways to do it.
But any of those
ways would avoid
this kind of
schizophrenic pathology
that we have in
our current system.
And just think about
how consequential
it would be if just a
couple of states did this.
If only Florida had adopted
this reform prior to 2000,
never would have needed to
worry about hanging chads
or butterfly
ballots, because you
would have had essentially a
runoff between George W Bush
and Al Gore, and I think
it's pretty clear what
would have happened there.
Mathematically, if only Michigan
and Florida had done this
before 2016, then
the question is,
who would have won the
runoffs in those two
states between Hillary
Clinton and Donald Trump?
If Clinton had won
those runoffs--
I don't know that she
would have, but if she had,
then she would have achieved an
electoral college majority, not
Donald Trump.
So what happens at the
state level, this choice
between plurality
versus majority,
is absolutely crucial
to the functioning
of the electoral college.
The current system
is not functioning
because of the subsequent
introduction of plurality
winner take all that
occurred after 1824,
and that was not part
of the original vision
of the 12th Amendment.
That's the essence of the book.
JACK RACOVE: Well, we could give
him a round of applause for--
[APPLAUSE]
So this is a fascinating book.
It raises questions, I
think, that many of us
have thought serious about
the electoral college,
have not taken sufficiently
seriously to this point.
And so it encourages,
perhaps even forces one
to rethink some of the
underlying premises
that we brought to the analysis.
I think our job here, Larry--
I hope this is OK with
you-- is we should offer
some sort of
reflections based on
our own particular commitments.
Mine are mostly to
the late 18th century,
very early 19th century period.
And then perhaps offer
some general reflections
on Ned's overall thesis.
And I think Ned gave a
very apt summary, which
allows us, in effect, to cut
to the chase pretty quickly,
and get some substantive
points out there, than we've
plenty of time for debate.
So I want to just
restate or read
a single sentence, which
I think encapsulates Ned's
basic position, comes--
didn't write down
the page number,
but it's right up there
in the introduction.
So what Ned wants is "A
distinctive kind of majority
winner suitable for
a federal republic"--
and I want to
emphasize that phrase
"suitable for a
federal republic"
because I want to go back
and criticize that conception
at the end of my remarks--
"a compound majority
in which a majority
vote in the electoral
college itself
is achieved by
securing a majority
vote in the states that
created the electoral college
majority."
It's a little formulaic,
but I think it captures
the essential argument.
So first off, I think Ned
has done a terrific job
by saying we need to
distinguish more clearly
the pre-1803, 1804 regime
from its predecessor.
I would quibble with
the idea that selecting
George Washington is
actually T sub one,
is really the first stage.
To me, the electoral
college debates were always
about a post-Washington world.
So long as Washington
wants to be president,
it doesn't matter
what rules you have.
You'll always get
the same result.
And I think federal supporters
like Alexander Hamilton,
Gouverneur Morris, and other
of Washington's friends--
Madison as well--
would have been
committed to that proposition.
And the first thing
you realize about that
is as soon as you have a
contested election in 1796
and if you don't
know, Jeff Pasley--
P-A-S-L-E-Y-- Jeff Pasley's
recent book on this
is really a great illumination.
Even though Washington
delays the announcement
of his retirement
as long he can,
in a kind of futile effort
to subdue party conflict,
as soon as he announces
his retirement
both parties were highly
mobilized to operate
within the electoral system.
And I think the first discovery
to that is I don't think--
there were no independent
electors in 1796.
The partisan commitments
dominated ab initio
from the beginning.
And I think that also,
although he discusses,
I don't think he pays
adequate attention
to the amount of partisan
manipulation of electoral rules
that took place
between 1796 and 1800.
You discuss it a bit.
I actually thought
there was more to say.
OK, but I like the overall
thesis of the book.
I might add that I think it
might pay more attention to how
the winner take all
equilibrium was attained,
I think, more or
less by the 1820s.
It has become the dominant
rule with Nebraska and Maine
being the default options.
But those are just my
preliminary remarks.
Let me go back.
I want to say something
about the origins
of the electoral
college, something
I've written about extensively
in a variety of places.
And every four years.
I go on my own mini campaign
for a national popular vote.
Not to be done through
the compact, which
I know we'll discuss this
afternoon, which I think
is a fatally flawed idea
for a variety of reasons.
I think this will
a come up later.
I'm just an Article Five
constitutional amendment guy,
even though Jimmy Carter
once told me personally,
it 200 years from
now we'll still
have the electoral college
in its current form.
So the deep historical
point I want to make
is that I think it's
important to understand
the limitations of 1787.
And the fundamental limitation
affecting the framers
of the Constitution was that
there was no model available
for the kind of national
republican executive--
it's always lowercase r--
the kind of national
republican executive
they wanted to create.
The dominant models
of executive power
available in the
18th century were
either monarchical or
ministerial in nature.
And the framers of
the Constitution
had rejected both as
matters of principle.
Monarchy, obviously, was out
for some obvious reasons.
But those who know the work
of my mentor, [INAUDIBLE],,
who I hoped to see yesterday,
but circumstances intervened--
know as well that the idea
of ministerial government,
it also had been rejected.
So from the get
go, I think we need
to cut the framers some slack.
And I say this not
as an apologist
for what they were
doing, but I think
we need to cut them some slack
by realizing and appreciating
the difficulty of what it was
they were trying to achieve.
They're just-- of all the
institutions the framers
created--
I think it's
important to say this
in law school surrounding--
it was not the Supreme Court,
you know, [INAUDIBLE] Alexander
Bickel and other commentaries.
The Supreme Court was not--
and the idea of
judicial review--
was not the greatest innovation.
The idea of having a national
republican executive was.
The presidency is actually the
single most dynamic institution
in the American
constitutional system,
and the question of how
it be selected, therefore,
posed in its own way the
most decisive challenge.
The extension of
this, which I think
is critical to understand,
is the electoral college--
and again, that phrase
is anachronistic.
It comes into use only in-- but
yeah, we use it all the time.
So why not here as a shorthand?
But I think Alex, says it's
kind of late 19th, early
20th century
linguistic innovation.
It's important to
understand that was not
adopted as the most attractive
alternative available,
but as the least unattractive.
In other words,
it was not adopted
on the basis of its merits.
It was just adopted on the
basis of its superiority
to the other obvious modes
of electing a president.
There are two other
obvious modes.
One would be to have
popular election.
That suffers two
critical defects.
One is the regional one, which
Madison advanced but then
abandoned, that if you actually
have a national popular
election in a
single constituency,
which is what a true national
population would entail--
let's call it the United
States of America--
that there would be a regional
bias against the South,
because only citizens would
vote and the whole question
of the racial
composition of the South,
therefore, would be
regional disadvantage.
That's an important objection.
I don't think it's the
most important one.
The decisive objection
to my way of thinking,
is the idea not that the
electorate would canter after
a demagogue-- let's try to think
of a random example who might
come into mind--
not too hard these days--
is rather more the problem of
having an uninformed electorate
that would be inclined
to favorites on voting,
so that if you wanted
a popular election,
you probably would need round of
runoffs, you know, maybe a kind
of proto-French Brazilian model.
But something, I think,
difficult to conceive.
So in a sense, there's a
kind of information problem.
You still have a lot of
favorite son candidates.
And that's why
Madison says, apropos
of the electoral college,
that everyone's second vote
would actually be the
collective first vote.
The popular election
doesn't work.
The obvious alternative is to
have a congressional election.
That solves the
information problem.
By definition, you cannot--
I mean some people may
quibble with this today-- but
by definition, you can't have
a more informed electorate
than the national legislature.
I mean, to get there you
have to be reasonably
sophisticated politically.
The problem is, I
think there's also
a theory of ambition,
which in some extent,
may have been unique to the
presidency in 18th century
terms, that the best
incentive to good behavior
would be the promise
of re-election.
And if you had a
congressional election
and you want the president
be constitutionally
and politically independent
of the executive, what's
to stop the president from
becoming the toady of Congress?
And under a kind of
conventional separation
of powers thinking, circa 1787,
1788, that wouldn't be good.
The electoral college
succeeds by default.
It does so at the very
end of the convention,
after what Madison
called tedious
of reiterated discussions.
There are a couple big
cycles where the framers
worked their way through this.
It had the obvious
attraction as finally
designed of combining the two--
I don't like to use the
word compromises here,
but the two great decisions
over representation,
where a popular vote with the
three fifths rule embedded
in it would be efficacious
in the first round,
and the second round, should
no majority be attained,
which as George Mason said,
might happen 19 times out
of 20, then the equal state
vote would come to apply.
On other issues, the framers
simply defaulted the issue
to the states.
I mean, you'd kind
of wish they'd
spent two or three more
days working out something
about the mode of election.
But instead that
option was defaulted
to state legislatures.
Maybe because they were
tired and wanted to go home,
may because they
really hadn't thought
through how the electoral
system would operate.
So I think it's important
to have this in mind
when we consider the whole
history of this institution.
And I think it's, again, what
makes books like Ned's and Alex
Keyssar's book, which I
guess is going to to off
to the publisher,
he says, on Monday.
He'll tell us more
in the next session.
So I think it's
really important to be
able to reconstitute the history
of how the institution evolved.
Those are my primary
historical comments.
I want to make two
substantive comments.
One, I'll make in passing.
Ned makes a great point
about the importance
of getting majorities.
I'm not sure I'm
convinced of it.
I'm not sure that I
think the third party
effect in selective states
is important as he makes out.
And I think we'd want to know
more about who third party
voters actually are.
They might well not turn out.
I mean, obviously
they're voting out
of dissatisfaction with the
existing set of choices.
So whether the vote is whether
we should have redistribution,
to me that's an open question.
And I think your concern is
with more episodic events
as opposed to the systemic
flaws of the electoral college
as it's currently constituted.
I mean, it's legitimate
in certain elections
to worry about this.
So that's objection number one.
Objection number two
goes back to the idea
of the federal republic,
which, it seems to me
is essential to your argument.
And I'm very
skeptical about this.
I mean, it's often said
that by definition we
have a state-based system.
But to say that the presidential
election system represents
our existing federal
structure is not
the same thing as saying
it actually advances
the principles of federalism.
I mean, necessarily we
conduct elections according
to a federal principle.
That's fine, you know.
But know how it actually
affects or promotes federalism,
to me, remains a deeply
problematic statement.
I would think at the
national level federalism
is adequately protected
by the existing
modes of representation
in Congress,
with or without
senators being elected.
The more fundamental point I
want to make here is that--
I tried explaining this,
you know, [INAUDIBLE]
year to year with my students,
whenever I talk about this.
Our electoral system
does represent
the belief that the size of--
in a kind of inverse sense--
that the size of a state
matters in terms of
the sway it should have
in the presidential system.
But we never vote on
the basis of the size
of the state in which we
live except when we're
voting on rules of voting.
Size makes no difference.
I mean, so the electoral
system, because it's
a [INAUDIBLE] necessarily,
to some extent,
is a function of size.
Size makes no difference
in how we actually vote.
It is not what
Madison would regard
as one of the interests
that has to be reconciled.
Go back to federal
[INAUDIBLE] interestingly,
it's big omission
in Madison's theory.
All the preferences we
have, all the preferences
which determine
how citizens vote,
are essentially
individualistic in nature.
Now those preferences are
distributed differently
across the states.
Some states are
competitive because, just
as a matter of
circumstance, they
happen to be evenly divided
in terms of the working
distribution of preferences.
So I'm not convinced that
the federal principle--
I mean, it is one
of your concerns,
I think, to kind of abide
by the logic of federalism,
as I think about it, it's a kind
of trivial secondary, really
inconsequential issue.
We take our interests with us.
I mean, I've voted
in Massachusetts,
I've voted in Illinois,
I've voted in New York,
and I vote in California.
I'm basically a big
state guy in a--
[LAUGHTER]
I'm a native Cook County
Democrat, a native Chicago Cubs
fan-- that's about three
quarters of my identity,
I suppose along with
religious affiliation.
But that's what
determines how I vote.
Wherever I live, if I moved to
Wyoming, god forbid, tomorrow--
and I visited it,
so I've been there--
I'd probably-- I actually
said to Senator Barrasso,
why does Wyoming have
two votes in the Senate?
He couldn't give me an answer,
but the guy's kind of stiff,
if you ever meet him.
In any case, it
just seems me that
the whole federal principle
is a misconceived way
to think about the
problem, except you
won't have a feasible solution.
I would have a national
popular vote achieved
by Article Five amendment.
Thank you.
NED FOLEY: Thank you, Jack.
[APPLAUSE]
SEAN WILENTZ: OK, I second
everything you just said, Jack.
[INAUDIBLE] the importance
of federalism to the debate,
we have to figure that out.
That's the cord that
often gets ignored.
I disagree a little bit about
Madison and regionalism.
I'm not so sure that that's
important at all, in fact.
So I'm coming in as the
historian of the slightly
later period, going on to the
middle of the 19th century,
and my historical reflections
on what you have to say,
because I think history in some
ways bears out your argument,
in some ways it
complicates your argument,
and in some ways it actually
works against your argument.
So let me explain why that is.
First of all, I want to
commend you for something
that you don't do in the book.
It's not often that
you get to do that,
but I'm happy to do it.
But it might raise some hackles.
Because you do not say--
you do not buy the argument that
the original electoral college
was designed by the framers
as a slaveholder's ploy
to protect slavery.
I'd like to commend
you also because you
say that the revised
electoral college, ratified
in 1804 by the states, was
designed as a slaveholder's
ploy to protect slavery either.
I mean, I just think that the
documentary evidence on this
is so crystal clear
that's just not the case.
It's not an apology for slavery.
It's not an apology
for the framers.
It's nothing, let alone what
happened in [INAUDIBLE]..
It's just not true.
So I commend you on just
staying away from all of that.
And I think the important
point that you make,
from my standpoint, is how
important what happened
in 1803, 1804 actually was.
I mean, people forget that.
People go back to the
framers all the time,
talk about that
electoral college.
It's not the electoral
college we have.
That's very important.
Also important, I think,
is how you bring out--
and I commend you to
read this chapter of it--
the seriousness of the debate.
I mean we don't always think
of congressional debates,
as elevated political
theory, but it's
pretty close in the
House and in the Senate.
It's really very strong on what
the character of this republic
ought to be.
Should it be democratic
or not democratic?
And it's as good a--
if I was to give undergraduates
a debate to look at,
that would be the one, I think.
And I agree that what the
Jeffersonians are up to, that
the republicans are up to there
is not simply to get Jefferson
re-elected, which I
really have to do anyway,
because they were going to
win by a landslide in 1804,
so they're--
but it had to do with the
idea of majority rule.
They really did want to do that.
And so it's possible to see
the 12th Amendment in that way.
And as having not only--
I mean, it's partisan
but it's also principled.
People don't often think
that you can be both,
they were in 1803, 1804.
There's one little thing I
want to add to it, though,
which has to do with the
character of the politics.
Not just majoritarianism, but
the character of the politics
that they were envisaging
and what the federalists
were so scared of.
And it comes out
of a speech, one
of the speeches in
the Senate by a man
named Samuel White, who was a
traditional, very conservative,
Delaware federalist.
If you know about
Delaware federalism,
you know what I'm talking about.
But he said during
the debate, "ours
is a country of politicians,
a country of politicians,
and from the nature
of our government
must continue to be
so, in a place where
the humbled and the
exalted have a right
to express their sentiments."
But what he's worried about
is that these decisions
are going to be made
by partisan politicians
abroad in the country.
In private circles.
In caucus, in clubs, in
coffee houses, in bar rooms.
That's where the great
constitutional questions
are to be settled.
That's the fear,
that there's going
to be this kind of
democratic style of politics
as well as the
majoritarian politics.
And the Jeffersonians
don't mind that so much.
I mean, not all of them like it,
but they don't mind it as much.
And that's at
stake here, too, is
the character of our politics.
And I think you could stress
that a little bit more.
In the book this big
switch after 1804 or 1805,
where basically--
I won't go into the
details, but the way
in which we pick presidents
and vice presidents is changed,
you do it together,
not separately, it's
going to make it
much more likely
that you're going
to have a party
competition for the presidency.
The Jacksonians kind of messed
that up, according to the book,
by making plurality rather than
absolute majority of the basis
for giving electoral
college votes in the states.
I think it's a little
bit much to pin it
on the Jacksonians
broadly construed.
I mean, Andrew Jackson
didn't believe in all that.
He had a whole other
way of doing it.
So a little bit
more fuzzing up, I
would do in all of that in
terms of the politics of it.
But the real question is, how
did this work out in practice?
And here I'm going to
give you a little talk
about the election of 1844.
I know a burning
question, something
you've been thinking about all
the time, the election of 1844,
the bombshell of 1844, as I
put it in a recent article.
All right.
So what happened in 1844?
In 1844 the Democrats
nominate James K Polk
after a very
contentious convention,
and the Whigs
nominate Henry Clay
as they had expected
nominate Henry Clay.
Running as a third party
candidate in the north is
the not so fledgling-- it's
their second time around--
abolitionist party,
the Liberty Party,
which had nominated James G
Birney for the presidency.
So these three people--
I mean, Birney's not going to
get any votes in the South.
I don't think he's on
the ballot in the South.
But he is going to get
some votes in the North.
The Whigs are thought of as less
pro-slavery than the Democrats.
So if you're a kind of
anti-slavery person,
kind of, you kind of want to
get Clay in rather than Polk.
Except along come these
abolitionists, who
are saying both parties are
corrupt, because both parties
have slaveholders in them.
Both parties support
slavery, in effect.
Which is true.
Which is true.
And one of the problems with
going against the Liberty Party
people too much is
I probably would
have voted for Birney in 1844.
But that's another matter.
In the key state of New
York, big swing state,
Birney takes enough votes
away, supposedly, from Clay
to elect Polk, to give
Polk New York's votes.
OK, is that all clear?
He's the Ralph Nader, sort of.
It looks like the
Ralph Nader in Florida.
There's no butterfly ballot.
There's no Pat Buchanan,
hold that aside.
Birney looks like Nader.
All right.
And that's the way it's
written about a lot.
Except-- and this is the
point I really want to make--
is that presidential politics
are more than just elections,
and they're more
than just the numbers
that we count up at elections.
And there was much more going
on in that vote in New York
than can be measured
by in the usual way.
I mean, it's true the
Whigs were ticked off.
Everybody from Clay
to Abraham Lincoln.
They're all angry.
They lost the election.
Who do we blame for this?
And they blame Birney and
the people in New York.
They all do that.
NED FOLEY: Not Bernie Sanders.
SEAN WILENTZ: Not
Bernie Sanders, Sorry.
I forgot where I am.
Right.
James G Birney.
[LAUGHTER]
B-I-R-N-E-Y. From now on,
for the next 10 minutes,
he's the only
Bernie that exists.
[LAUGHTER]
SAM WANG: Feel the B-I-R-N.
SEAN WILENTZ: Feel
the B-I-R-N. How
are you going to run on that?
And so the point of the
book is that, in fact,
the wrong man got elected,
because by Jeffersonian--
by the standards of the--
OK, you get the wrong guy.
OK, maybe.
The Whigs thought that.
You know, they lost.
They thought the
wrong man was elected.
Pro-Whig historians also jump
on this and they love this.
My friend Dan Howe loves this.
Why?
Because it makes the
Whigs look really good,
because they were the
more abolitionist party.
Which is not untrue.
Which is true.
But they lost because they
were better on slavery
than the Democrats,
who were really--
the Southern wing especially
were nasty on slavery.
OK, all right.
Sort of.
I just want to caution
everybody in thinking
about the electoral
college today--
I'm talking historically, but
in thinking about all of this--
not to ignore the
broader context of how
politics is actually operating.
And here's the
example from 1844.
James K Polk was
the nominee in 1844,
but he shouldn't have been.
If there was a real-- if the
right nominee had gotten it,
it wouldn't have
been James K Polk.
It would have been
Martin Van Buren.
I mean, that's not an exciting
alternative, necessarily.
But John C Calhoun basically
screwed Martin Van Buren
out of the nomination.
I won't go into all the details.
And the reason was
that Martin Van
Buren had come out against the
immediate annexation of Texas.
That was the key issue
in that election,
the immediate
annexation of Texas.
Clay was against it.
Van Buren came out
against it, too.
This was the quote, quote,
"anti-slavery" view.
You might have had three
anti-slavery people running
as president in 1844,
but John C Calhoun
would not let that happen.
That has to be brought into the
story for all kinds of reasons.
For one reason,
Van Buren was very
popular in the state of New
York because it was his state.
He ran the politics
of the state of New
York for a very long time.
His faction in New
York state politics,
they were called
the barn burners
and they had been screwed out
of the nomination in Baltimore--
I think it was in
Baltimore-- in 1844.
They're ticked off.
They don't go to the polls.
So it's not just Birney who's
taking votes away from Clay.
It's that lots of people are
not going to be turning up
for Polk in quite the same way.
You have to balance
those things out.
That's a part of the story
that has to be there.
More than that, here's where
the Whigs don't look so good.
The Whigs might have
been relatively OK
on the issue of slavery.
They were not relatively OK
on the issue of nativism.
And in 1844, nativism was at
the center of New York state
politics, particularly
in New York City,
where the nativists were
working out a Whig alliance.
And Henry Clay keeps
writing letters, saying,
what are they doing in New York?
They're going to cost me
the election because they're
coming out as nativists.
What the Democrats do is they
bring thousands of Irish voters
to the polls in New York City.
Now some of them may have
been of dubious legality,
nevertheless, they're
so angry at the Whigs
that there's an
outpouring of Irish votes.
And you can see it.
The numbers are extraordinary.
I haven't done the arithmetic
to figure out if that's
how decisive that was.
But it was there.
So my point of all that
is simply to say that--
John Quincy Adams actually
reflects on all of this,
and he says there are a
million reasons why Clay lost,
and Birney was one of them,
but he was not the only one.
He talks about the dotage of
Andrew Jackson and he talks
about--
who got Polk the
nomination, in part.
He talks about the nativists.
He talks about a whole bunch
of things that are happening.
So it's not as simple as--
political outcomes aren't
as simple as looking
at how the parties voted,
the vote and how it lands up
with the electoral college.
That's my only caution, in
thinking about the present
and the future, is that maybe
politics are bigger than what
we are talking about, and that
we cannot imagine that fixing
the electoral college
one way or another--
and I am sort of
agnostic in all this.
I don't have a
dog in this fight.
But that is not going to
have the same kind of effect
if you ignore the
larger political context
and what's going on.
And that's just
a cautionary note
that I'd like to
raise to everybody,
in fact, in thinking
about this issue.
OK?
[APPLAUSE]
NED FOLEY: Thank you.
SAM WANG: OK.
So let's see.
I'm fundamentally, in my heart,
a data guy and a scientist.
I was told I was going to
be able to show slides.
[LAUGHTER]
And if you'd like to see
the slides that I was going
to show, you are welcome to
go to election.princeton.edu,
where I've posted them
for your enjoyment.
And I'm going to be looking
at them while I talk.
Let's see.
So let me make some
general observations
about the electoral
college and how
these ideas m as
originally framed
in your book very
ably, originally,
in the time since
that time, and taking
into account some of the
things that you talked about.
But I want to take it in
slightly different direction.
I want to interrogate
your ideas as they
collide with historical data
and with modern conditions.
And as a numbers guy, I'm
going to talk about some
of these things that you
mentioned in your book
in those contexts.
Let me just make
some general points.
The reason that we're, of
course, here today, I think,
is that there is no clear
way for the majority to exert
its will in American politics.
The smallest of these
offenses, in some ways,
is the House of Representatives,
which partisan gerrymandering
has distorted
somewhat, but there
are mechanisms to start moving
that towards more equity.
And I'm pretty strongly
engaged in that.
Jack votes in states that are
not very competitive, and so
in California, in
Massachusetts, in Wyoming,
if he goes that direction--
all these are states where
individual voters don't really
matter that much.
And so that's a
reflection of the idea
that the majority has no
clear way to exert its will.
I should say, by the way, that
if I understand my history
correctly-- and in
front of historians,
I should be careful--
all those rectangular
states were
carved up to give one party
as many senators as possible.
Why do we have two Dakotas?
I love my friends
from the Dakotas,
but I think one Dakota
would be sufficient.
[LAUGHTER]
But my friends from the
Dakotas have four senators.
And that would be one example of
how these mechanisms get baked
in, right, entrenched minority
rule get baked into the system.
And today, of course, we're
talking about the presidency.
Let me start from Ned's idea
of this Jeffersonian rule
of wanting majority
rule, wanting a majority
in individual states.
I think that I would give
that pretty good marks
for a diagnostic
for both failure
to achieve a majority
in individual states.
Also the third party threat.
But I would characterize
it a little bit
as a diagnostic, and perhaps
a bit of a nostalgic wish
for majority rule.
Let me talk about
some problems posed
by the electoral
college and view that
wish through that lens.
So first, let me
list a few problems,
as I see it, with the
electoral college.
Again, I want to
just interject here
that I think of elections as
being very nationalized because
of communications.
These favorite son effects,
favorite daughter effects
are no longer as strong
as they used to be.
And so I personally, viewing
through a modern lens,
see elections as being
somewhat nationalized.
So with that said,
here are some problems
with the modern electoral
college, therefore,
that I'm going to mention.
One is mismatch between popular
vote and electoral vote.
Another is failure to build
broad based coalitions.
Third, susceptibility
to interference.
And forth,
disempowerment of voters
in partisan-leaning
states, which
I touched upon a moment ago.
And I would say that this
solution of requiring
a majority vote in
a majority of states
partially addresses
some of these,
but not really all of them.
And I just personally
take the position
that a somewhat complex
solution isn't going
to address all those problems.
Now, in historical
context, we've
heard about elections going
back to 1844 and earlier.
The way I would characterize
it is as follows.
The reason that we're
hearing about this problem
now is that we are in an age
of closely contested elections.
So the last time
that, in my view,
the popular vote has failed--
there was a period
of a lot of them--
well, a lot of them,
several of them--
Rutherford Hayes and
Benjamin Harrison
in the late 19th century
during the first Gilded Age.
And that was a time
of racial division,
technological disruption,
increasing inequality,
and deep partisanship.
And I hope that sounds
familiar to you,
because now we live in a
time of modern elections
that are very close.
By close I mean
the popular vote is
within about three
percentage points or less.
That's happened repeatedly
in the last five elections.
And we, of course,
live in a time
of racial division,
technological disruption,
increasing inequality,
and deep partisanship.
Now one could ask
when have we not lived
in a time of racial
division, but I
would say that those issues
have come to the foreground
as voting rights
come under threat.
If one looks at these
things mathematically,
the popular vote winner--
if one does modeling
of these things--
the time when the
popular vote fails us
is when elections are within
about three percentage points,
in terms of the popular vote.
And when the popular vote is
within three percentage points
between the major
candidates, as it
was between Hillary
Clinton and Donald Trump,
between Al Gore
and George W Bush,
and also in the
first Gilded Age,
under those conditions
about one in three elections
will go to the person
who won fewer votes.
And so that's
really the problem.
And so I think the thing that
we're concerned about is that.
So certainly I agree with Ned
about that level of diagnosis.
Now I want to point
out that currently,
we already have
a system in which
some kind of broad national
consensus is necessary.
And I just want to use
the Clinton versus Trump
election as an example of that.
For Hillary Clinton
to have won more votes
than Donald Trump
in the 2016 election
required votes that
she won in 41 states
and the District of Columbia.
And so she won plenty of
votes in California, New York,
Florida, and Texas, but there
were dozens of other states
that were necessary in order
to have more people vote
for her than for Donald Trump.
It was necessary to win states,
down to little Rhode Island.
So 41 states and DC, and
the state that puts her
over the top is Rhode Island.
So I think that there's
already a mechanism
in our age of
communication for requiring
some kind of national
not quite consensus,
but a national outpouring of
support for one candidate.
There's some issues having to
do with battleground states,
and I'm not 100% sure
that a Jeffersonian rule
would actually address those.
An example is
vulnerability to hacking.
Currently it takes as few as 600
votes flipped in Bush v. Gore,
9,000 in 1976 between Carter
and Ford, up to around 100,000
for Nixon versus Humphrey,
Bush versus Kerry, and Trump
versus Clinton.
That's about how
many votes it takes
to flip the electoral college.
Had we a national popular vote--
and this is just the nerdy,
simple solution of counting
votes and finding out who wins
more votes than the other--
that number of
votes can be small.
It can be 100,000, as
in Kennedy versus Nixon,
but it also would require up
to, say, three million votes.
That's how many votes
would need to be
flipped to reverse the popular
plurality or majority of George
W Bush versus John Kerry or
Hillary Clinton versus Donald
Trump.
So I think a national
popular vote has
the advantage of simplicity.
We can get into the
technology of it a little bit,
but I really do think that it
has less of a rococo nature.
So another problem
that we have to think
about when thinking about modern
conditions and practical issues
is this battleground
state phenomenon.
You expressed a wish of
wanting particular reform
in battleground states.
I should point out that
battleground states
change over time.
Unless you're in Ohio
you're not assured
of being a battleground state.
NED FOLEY: We've
lost that status.
It's all up in Wisconsin.
SAM WANG: Well but
that's this year.
And so I think that if one
wants a practical reform,
one should think a little
bit about how to achieve it,
given the fact that
conditions are probably
going to be
nationalized elections
for the foreseeable future.
Battleground states may change.
What we're really looking for
is a way to fix close elections.
So examples of problems are
that currently major candidates
ignore all but a few states.
The Dakotas did not
get visited in 2016.
Idaho did not get visited.
Wyoming did not get visited.
California got visited once.
Massachusetts did
not get visited.
This is all during the
general election campaign.
Who did get visited?
North Carolina, 55 times.
Ohio, 48 times.
Florida, 71 times.
Pennsylvania, 54 times.
Wisconsin was actually
not recognized so much
as being a central battleground.
So visited all a
total of 14 times.
Ignored citizens
don't participate.
In battleground states, the
rate of voting is higher.
In states that are not
competitive, the rate of voting
is lower.
This percolates
to disempowerment
of specific communities.
We've heard about
nonwhite communities
who don't get empowered.
Other communities
also get disempowered.
A white community that doesn't
get very much power is Mormons.
If you calculate the
power of individual votes
over the presidential outcome
in terms of probability,
Mormons have about one eighth
the power of Americans,
on average.
So Mormons, Puerto Ricans,
various people of color.
That disempowerment, I think,
does not necessarily get fixed.
So my take on this
is that it seems
like this desire for a
Jeffersonian approach
doesn't entirely translate
well to a practical policy.
My take on this
is that one could
think about practical forms
built upon the National Popular
Vote Compact, upon
experiments currently being
done with ranked choice voting,
so we can see that experiment
starting to play out.
That has the
advantage of something
that can start in the
laboratories of the states
and then percolate
from state to state.
So I think there are ways
to approach this problem.
I think the Jeffersonian
rule, let's call it,
is an excellent
diagnostic, but not
necessarily a good prescription
for going to the future.
And just to point out, back
to Sean's point about 1844.
I should say that
one of the problems
right now is that we
are in a situation where
in close elections,
no one factor matters,
yet every factor matters.
And so we can always point
to individual hypotheticals
as being, well, the
election would turn out
differently had we done that.
And I think that
it's easy to go down
into a spiral of wanting to
fix smaller and smaller things.
And just the scientist in
me wants to pop back up to,
how about find out
who got more votes?
And so that would be my
somewhat boneheaded suggestion.
[LAUGHTER]
[APPLAUSE]
NED FOLEY: Franita?
FRANITA TOLSON:
Thank you so much.
I'm very happy to be
here, and be a part
of such a distinguished panel.
I feel compelled to verify that
Sam's slides are fantastic.
[LAUGHTER]
And also that Jack mentioned
that he's from Chicago.
And so I have to say
he did not vote in all
those states at the same time.
[LAUGHTER]
So for my comments,
I want to focus
on the extent to which
the 12th Amendment changed
our understanding of what
republicanism requires.
And then why this
matters in thinking
about the normative
implications of Ned's book,
which as the only other
law professor on the panel,
you have to think
about the normative.
The guarantee clause imposed a
republican form of government
on the states, and as such,
has significant implications
for the construction of not
only state political systems,
but the federal system, as well,
since part of its structure
was derivative of
these state systems.
Republicanism was essentially
held out as the ideal,
but was ill-defined during
the founding period.
There has never been a
consistent and enduring
definition of republicanism.
Plato once define a
republic as, quote,
"a well-ordered
community", ruled by,
quote, "guardians who
in their whole lives
show the greatest
eagerness to do
what is for the good
of their country,
and the greatest
repugnance to do what
is against their interests."
Aristotle and Cicero
similarly viewed
any government that
works for the good
of the whole as a republic.
Later writers like
Montesquieu would
adopt a definition
of republicanism
that could encompass a monarchy,
an aristocracy, or a democracy,
provided that the ruling class
acts on behalf of the majority.
Like the political
theorists from whom
they drew inspiration, Madison
and the other founding fathers
were not pressed to
develop a clear definition
of republicanism,
seeking only to rule out
a monarchy or a hereditary
class of rulers,
but provided few specifics.
Generally speaking,
this generation
treated the concept as
unnecessary of explanation
and ingrained in the psyche
of the young republic.
In the Federalist 39,
Madison described a republic
as a, quote, "government which
derives its powers directly
or indirectly from the
great body of the people,
and is administered by
officers holding their offices
during pleasure, for a limited
time, or during good behavior."
He concluded that, quote, "it is
essential for such a government
that it be derived from the
great body of the society,
and not from an inconsiderable
proportion or favorite class
of it, otherwise a handful
of tyrannical nobles,
exercising their oppressions by
a delegation of their powers,
might aspire to the
rank of republicans
and claim for their
government the honorable title
of a republic."
Madison was not
alone in thinking
that republicanism equated to
some form of majority rule.
There was almost
universal agreement
that in addition to obligating
the federal government to come
to the aid of states
facing rebellion,
the guarantee clause
required that states
enfranchise some portion
of their population.
But republicanism's historical
connection to monarchy
led many opponents
of the Constitution
to question this new government
that the founding generation
sought to create.
Writing under the pseudonym
the Columbian Patriot,
one such opponent referred
to a republic as a, quote,
"many-headed monster, that
democratic branch with
the features of aristocracy,
and the strategies of nobility
pervading the minds of many
of the candidates for office."
While the Columbian
Patriot would
insist that a
republic was contrary
to the fundamental principle
of free government,
those who would later govern
the new nation under the party
label Federalist sought to
build a government in which
the diffusion of power
through structural principles
like federalism and
separation of powers
would prevent any
attempts to establish
a monarchy in either the states
or the federal government.
From debates over the scope
of the guarantee clause,
one can distill that
republicanism promoted
a type of majority rule that
required elected officials
to first, act virtuously,
second, for the good
of the whole, and
third, periodically
stand for election to be
held account for any misdeeds
by some portion
of the population.
The requirement of at
least nominal participation
by the people likely
precluded the establishment
of a monarchy,
dictatorship, aristocracy,
or permanent military rule, even
if through valid majority vote.
With the 12th Amendment,
however, one no longer
had to distill the
principles of republicanism
underlying our
system of government.
The amendment made
it more explicit.
The amendment, if
Ned is right that it
was meant to prevent a situation
in which the president emerges
with less than 50% of the
vote in any state that
is crucial to his or her
electoral college win,
it clarified the majoritarianism
that had been alluded
to in our founding documents.
In 1787, it was clear that
majoritarianism did not
have to reflect the preferences
of the national majority,
but the 12th Amendment
clarified that it did not
have to reflect the majority
of the state either,
just the will of the
majority of the voters.
Majoritarianism
required the president
to garner the support of those
who held the political power
in the state, either through
the voter-selected state
legislature that chose
electors, or through electors
selected by voters directly.
Requiring the president
to be a preference
of a compound
majority of majorities
illustrated which people
actually mattered for purposes
of defining the majoritarianism
inherent in republican
principles-- the voters.
In important ways,
"we the people"
was actually "we the voters".
In clarifying which
majority matters,
Ned's book shows that
the Jeffersonians,
through the 12th
Amendment, assumed
that the best way to ensure
that the president is
the preference of a compound
majority of majorities
is through the vehicle
of political parties.
Not only were parties the way to
gauge which candidates enjoyed
majority support among
voters in a particular state,
Ned is clear that the system
is ill-equipped to deal
with third party spoilers,
instead envisioning
a winner that emerged from
one of the two major parties
because it would be
easier for that individual
to amass the support
that the Jeffersonian
experiment envisioned.
In the elections of 1844, 1884,
maybe 1992, definitely 2000,
and possibly 2016,
the president who
emerged as the winner would
not have been victorious
but for the presence
of third party
spoilers and increased
political polarization.
Instead the
Jeffersonian ideal was
that presidents have the
stamp of legitimacy that
comes with being a
preference of the majority
in the states responsible for
his or her electoral college
win.
And oftentimes the structure was
undermined because the system
cannot accommodate third party
spoilers who siphoned away
votes from the candidate
who was the obvious
Jeffersonian choice, and would
otherwise reach this threshold.
Notably, the obvious
Jeffersonian choice was always
a major party candidate.
Ned's book shows
that parties are not
just responsible for
conveying the choices
of a subset of the electorate.
The 12th Amendment
created a structure
designed to facilitate the
ability of the major party
with the most support
to choose the president.
Even if parties were not
fully formed at the founding,
and republicanism was
a nascent idea that
nonetheless had wide
support, by 1803
this was certainly not the case.
The 12th Amendment clarified
the meaning of republicanism
embraced in 1787, centered
on a type of voter
focused majority rule that was
facilitated through the two
major parties, and that
conflated majoritarianism
with major party preferences.
This was a huge change from
a constitution which was,
at least initially, anti-party.
There are a couple of normative
implications of this notion
of political party as a
proxy for majoritarianism--
one which I hate, if
I'm being honest--
and the other I am
more receptive to.
First, perhaps
there is something
to the idea of states
being able to legislate
in the interests of protecting
the two party system.
The Supreme Court has recognized
this as a legitimate state
interest, and the 12th
Amendment seemed to be crafted
with something similar in mind.
I hate this idea.
[LAUGHTER]
However, and more
importantly in my view,
if parties are our
best translation
of the majoritarianism
that undergirds our system
of republican government--
and Ned's history
of the 12th Amendment seems to
suggest that this is the case--
then it makes no
sense to ever treat
these entities as
private associations
that have constitutional
rights like people.
I love this idea.
The Supreme Court has found that
political parties have First
Amendment rights, but
arguably, this reading
of the 12th Amendment
provides stronger support
for the white
primary cases, which
struggle to create a
framework that will prevent
political parties from
excluding otherwise
qualified individuals from their
primaries on the basis of race.
The struggle emerged because
it was difficult for the court
to conceptualize the party as a
constitutional actor equivalent
to the state.
This conceptual
difficulty actually
made it possible for the
court to conceive of parties
as private actors
in other situations,
including California Democratic
Party vs. Jones, in which it
found that the blanket primary
violated the First Amendment
rights of political
parties by forcing them
to associate with
individuals whose views were
hostile to the parties.
But if parties are
the primary way
to express the majoritarianism
of the republic,
and the 12th
Amendment was adopted
with that understanding,
then it makes no sense
to give parties carte
blanche to exclude as if they
are private
individuals exercising
their right not to associate.
The 12th Amendment
makes it clear
that they are, for all
intents and purposes,
government actors
subject to both
the restrictions and the
benefits of the Constitution.
Is this a reason to
keep the current system?
No, for all the reasons that
Ned details in his book.
But Ned's majority vote
requirement in particular
would address some of
the concerns raised
by the allocation of
electors in a way that
is contrary to the
will of the voters,
or that results in the election
of a non-majority-preferred
candidate, a
distinct possibility
in the current system.
But even with these
proposed changes,
the two major parties remain
the vehicles through which
we translate majoritarianism.
Putting to the side the need to
expand the universe of voters
who comprise the majority, an
issue that naturally follows
if we accept that
majoritarianism means
a majority of the voters--
we should, as Ned shows,
update the electoral college
to better reflect its
majoritarian foundations.
But the case law should also
reflect that political parties
are important
constitutional actors who
facilitate the levers
of political power
in this country.
Ned's normative suggestion
would further reduce the options
that voters have to a
binary choice, further
cementing the two major party
in the electoral scheme.
Thank you.
[APPLAUSE]
NED FOLEY: That was great.
So what I thought we'd do
is I'd take a few minutes,
just to kind of react to
some things that were said--
hopefully very few--
then give the panelists a
chance to react to my reactions
if they'd like to, and
then open it up so that we
can get some input and Q&A.
So real quick, and I probably
won't get to all the things
that would be worth saying.
Thank you all, by the
way, for these very
important and valuable comments.
Starting, Jack, with
the idea of federalism
or to the extent to which
the electoral college should
reflect federalism principles.
My own normative preference,
just to be clear,
would be a
constitutional amendment
to replace the electoral
college with some form
of national popular vote,
based on a majority winner, not
a plurality winner.
And I'm an Article
Five guy like you
are, and don't think the compact
is the right way to do it.
So just to be clear
about that sort
of normative first preference.
So the whole point
of the book is not
to argue what would be the
best system in a utopian world.
The point of the book is to
try to understand the system we
actually have, why there is
this kind of disequilibrium,
or schizophrenia
within the system,
try to understand its own
normative premises and values,
and then recalibrate the system
to avoid these anomalies that
developed later on, even though
Andrew Jackson didn't agree
with them, but they
did develop, and so
recalibrate the system
towards its own purposes.
So I don't accept--
I'm less of a
Federalist believer
than the authors of
the 12th Amendment.
But that's the system
that they gave us.
I think we could
say more about that.
But I think that's
the basic point there.
Sean, I completely
take your point
about the messiness
of history in general,
of 1844 in particular, of the
move in the Jacksonian period
that wasn't Jackson
himself and all that.
I think that's
all absolute true.
For the point of
the present, I think
the critical thing
to keep in mind
is not to have a
definitive answer.
Was Ralph Nader a spoiler
in 2000, yes or no?
Was the combination
of Gary Johnson
and Jill Stein a spoiler
in 2016, yes or no?
Was James Birney
a spoiler in 1844?
The point is that not
knowing the answer to that
is a problem.
We ought to have definitive
winners that authentically
speak for the electorate.
And we do not have a
system that can tell us
what the electorate really
wanted when there are
significant third party
or independent candidates,
and significance in this sense
isn't Teddy Roosevelt in 1912
or Ross Perot in 1992.
Significance could
be even 3%, 5%,
if it's making a difference
in the kinds of close races
that Sam is talking about.
And so just to think about
this psychologically now,
everybody in this room probably
remembers the national freakout
that occurred when the idea
was that Starbucks CEO Howard
Schultz was thinking
about running.
Because people instantly
process the possibility
that his presence in the
race might have an effect
and mess up what would otherwise
be an up or down two party
choice.
That's the insight
that we should keep.
And that freakout
should exist, even
if he, out of the goodness
of his heart says,
oh, I'm not going
to do it this time.
Because other people
might not have
the goodness of their heart.
And again, just thinking,
as I understand the current
environment, the Libertarian
party is flirting with the idea
of nominating either
Lincoln Chafee,
a former governor and
senator from Rhode Island--
former Democrat,
former Republican,
former independent--
or Justin Amash, former
Republican Tea Party
conservative from Michigan.
The Libertarian
Party has only a half
a million members
nationwide, but where
they choose their
own nominee could
have a significant impact.
It makes a difference to the
fight between the Democrats
and the Republicans, red
team versus blue team,
what the Libertarians do.
The system should be
able to handle that.
The Libertarians should
allow a place in existence,
and it shouldn't be a problem
that we just can't handle.
So that's kind of-- so we
don't need to know for sure
whether spoilers are spoilers.
We just need a system that's
capable of handling it.
That brings me to Sam and
the national popular vote
and the ranked choice voting.
And I'm trying to figure out
how much agreement-- and I
appreciate all your points.
But I think we're even more in
sync than you perhaps agree,
if you believe that
ranked choice voting is
an experiment that states should
take as methods for appointing
their electors.
Because that is one obvious
prescriptive outcome
for the Jeffersonian analysis.
It would be consistent with
the original understanding
of the 12th Amendment.
Actually, Madison himself
toyed with a proto version
of a ranked system in the
1820s when he was observing
anomalies that had developed.
He didn't have a fully formed
system of ranked choice voting
like Maine has now adopted.
But that concept
would be consistent
with the Jeffersonian
vision and it
would be a really good thing if
states experimented with that.
But here's where
I think all of you
who are trying to think what
we should do going forward.
It is true that a state-based
adoption of ranked choice
voting cannot solve
the battleground
problem that Sam's pointed out.
Insofar as our system has
federalism built into it,
whether we like
it or not, you are
going to have the problem
that voters in California
and Wyoming are not
going to be part
of one single national count.
It's going to be
divvied up state
by state with that structure.
Even if you think that
the interstate compact is
feasible to adopt, that the
Supreme Court would accept it,
and so therefore, we
can kind of defeat
the federalism of
the electoral college
through this surrogate
alternative mechanism, which
Jack and I don't want to do--
but even if you think you could
do that and get away with it,
it doesn't solve the Howard
Schultz freakout situation.
Because if you're really
concerned that the entry
of somebody like Howard Schultz
in a race could destabilize,
disequilibrium the
race, that is true
under our current
plurality winner
take all at the state level or
under the National Popular Vote
Compact.
Because what we can't do without
an Article Five amendment,
unfortunately, is marry
ranked choice voting
with a uniform
national electorate.
I wish we could do
it, but mechanically,
we can't do it because to do
a full national ranked ballot,
you need ranking
ballots in all 50 states
to get a full national ranking.
So if only the
compact states decide
to adopt ranked
choice voting, you're
not getting a full
national ranking.
So the National
Popular Vote Compact
plan that's under consideration
calls for a plurality winner.
And that does not solve
the Howard Schultz
or the third party
dynamic problem.
So people should
be aware of that
as they think
about alternatives.
Finally, Franita,
absolutely brilliant.
I really want to
take a lot of time
to think about what you say.
But I love the fact
that you're bringing
into the discussion California
Democratic Party versus Jones
and the constitutional
status of political parties.
Because as important as
fixing the electoral college
is-- and it's hugely important,
because the presidency is
important-- for the
overall concerns
of our democratic governance
in the future, for reasons
that Sam said, if we're
sort of prioritizing reform,
I would put at the
top of the list fixing
the polarization that exists
with respect to US senate
elections and other
kinds pf elections
as a result of how parties
work with primary elections
as they're currently conducted.
And that's in part a
feature of what I think
is an incorrect and
overly simplistic
analysis of the role of the
parties in the California
Democratic Party versus Jones.
There's a new anthology
that Cambridge
is publishing about the
party primary process,
that I've got a chapter in.
It builds on the book.
And I won't go into
the details here.
But I think that should
be the next cutting
edge, because whatever we
do, whether it's through
ranked choice
voting or whatever,
we are going to have
to try to figure out
the pathologies of
internal competition
within parties in the
primary stage of the election
and how that relates
to pathologies that
exist in the general election.
And I think the legacy of 2016--
again, nonpartisan point, I
just think it's observational--
that there were pop
pathologies occurring
in the intraparty competition
for the nomination,
as well as pathologies
that were occurring
in the general election.
So thank you.
Anybody want to add comments,
react to each other,
talk amongst yourselves
before we go to the A&A?
JACK RACOVE: Briefly, I have
not thought about this deeply.
But I wonder, if you
move comprehensively
towards ranked choice voting,
whether that would contribute
to the further dissolution
of political parties
because people could vote
their first preference.
I think the one example I have
in mind, somewhat different,
but I thin is still
apposite, is when
the Israelis went to
having a direct election
of a prime minister.
I think it was back in the--
forget the exact dates,
maybe back in the '90s?
Somebody else may know.
But one perceived consequence
was that it actually
contributed to the
destabilization I think,
of both Likud and
the Labor Party
and made the Israeli political
matrix more difficult.
So in fact, if you multiply
the options on this basis,
would that be a
positive, would that
be helpful or inimical
to the overall health
of our political system?
NED FOLEY: Yeah it's
a great question.
Let's sort of leave it as a
question for subsequent panels,
perhaps, to address.
But I do think all
change has consequences.
JACK RACOVE: Often unintended.
NED FOLEY: Yeah.
SAM WANG: Yeah, in regard to
the Israeli election system.
I believe that the
specific mechanism that
leads to the
fragmentation in Israel
is the proportional
representation
system with a threshold.
And to my knowledge, there is
strategic voting on the part
of Israeli voters--
unusually strategic--
but the fundamental
core mechanism
there is the PR mechanism.
Let me put on the
engineer hat for a second
and say that my general
reaction to our desire
to fix these things
with one solution
is that sometimes
you need a hammer,
sometimes you need
a screwdriver,
and sometimes you need a level.
And I think that,
roughly speaking,
this Jeffersonian
thing is a level
to see whether things
have gotten out of whack.
And let me just
describe the framework
I think about when I
think about all the ideas
that you all have suggested.
My take on it is that
one might want to match
the reform to the problem.
And practically
speaking, if you want
to get that reform to
happen, to use events
to drive single state reforms.
An example would
be, OK, libertarians
are going to nominate Lincoln
Chafee, which seems somewhat--
had not occurred to me until you
said it, but all right, sure.
[LAUGHTER]
Where is he now?
But OK, fine,
whatever they do, then
use that to push for a reform
in an individual state.
Channel your inner
federalist, put
on your reformist
federalist hat, and so
use that to motivate people
in a particular state.
If Justin Amash gets
nominated, then I
think a bunch of
red state voters
might get a new interest
in ranked choice voting.
And so that might be good.
And so the idea would be to
use events to drive reform.
If I'm understanding
correctly, I
think spoiler effects
can be addressed
by ranked choice voting.
Disempowerment of voters
in partisan states
and also election
security can be
addressed by national popular
vote, say, through the compact.
Difficulty with recounts
can be addressed
through better election
security and standardization
of counting methods.
And so, at least in my mind--
and I am glad to be corrected--
I think that each of these
problems have specific fixes.
And you wouldn't want
to go taking a level
and try to, like, hammer
things in, and screw
in screws with a level.
I think one might want
to be a little bit
engineery about
thinking about what
reform fixes which problem.
NED FOLEY: Anybody else, or
should we go to the audience?
Let's go to the audience.
In the back.
AUDIENCE: So my comment
slash question is mostly
directed at Edward Foley.
It seems that a of the paradigm
that most of the speakers
approached this through,
but especially Edward Foley,
is in regards to
the two party system
being the original
founders' intention
and how do we make that work.
But I don't see
any reason why we
need to stick to their
original intention
if the two party system has
become a situation where
entrenched interests of big
corporations and whatnot
know they get to
win if they only
have to place two bets to win.
So the whole terminology
of spoilers and whatnot,
ranked choice voting,
as Sam Wang said,
has a good potential for
fixing the problem of spoilers.
But we don't actually even
know if there's spoilers.
We know that the term
spoiler makes a lot of people
go, well, it's true
they're not going to win.
I got to vote for the
lesser of two evils.
But if there was a
popular vote, you
get a Ross Perot who
got 19.4% of the vote,
next time he got less than
2% because everyone said,
I can't waste my
vote on a spoiler.
He didn't get a single
electoral college vote.
But if it was a
national popular vote,
next time he might have won.
I'm not saying that would
have been a good or bad thing,
but people would have
said, there's a shot.
I'm not wasting my vote.
So I guess we
discussed two things.
One was the electoral
college [INAUDIBLE],,
which I don't see why popular
vote can't handle that.
We've got the issue of
spoiler, I don't see--
basically what Sam Wang said.
But I don't even
understand why we want--
we should be happy that the
two party system is weakened,
because currently the two
party system is a system where
the voters don't get a say.
They only have OK,
lesser of two evils.
They don't get to actually
say when they care about it.
NED FOLEY: Thank you.
Let me see if I can take
a quick crack at that
and see if anybody
else wants to chime in.
So I think the election in 1912
is particularly instructive
in this regard, recognizing the
caution that sometimes reforms
have unintended consequences.
I do think one can tentatively
predict that adopting ranked
choice voting, either state by
state or through an amendment
at the national level,
would open up the space,
as Jack suggested, for third
parties and independents to be
more robust.
So I think, for example,
Michael Bloomberg
would have entered
the race in 2016
if ranked choice voting
had been in place.
I think he has wanted to
think about entering the race,
but he didn't want
to be a spoiler
and it didn't turn out the
way he wanted because he hoped
Hillary Clinton would win.
So he thought by
withholding his role--
but he thought that
if he entered the race
he'd just give it to Trump.
So if you put ranked
choice voting in the mix,
you're likely to see
more people, potentially
more parties, kind of
come in to try to compete
in the first stage process.
I think, again, looking at
France and other countries that
do two round systems for
presidential elections
would support that
empirical prediction.
But the reason why
I mention 1912,
Teddy Roosevelt ran as
a third party candidate,
you know, his Bull Moose
candidacy of the Progressive
Party.
This was after he'd
been president.
Remember, he anointed
Taft as his successor,
and Taft was the incumbent
president in the 1912 election.
And Roosevelt
didn't like the fact
that Taft was more conservative
than he anticipated.
Roosevelt was turning
more progressive,
and so he tried to get the
nomination of the Republican
Party away from
his protege Taft.
The Republicans stuck with Taft.
Roosevelt bolted from the party
and ran as a third candidate.
Roosevelt actually
did better than Taft.
Woodrow Wilson only
wins in 1912 because
of this three-way split.
And in fact, if there had been
a national ranked choice ballot,
it's likely Roosevelt
would have prevailed,
as he probably
would have gotten--
Taft would have been
dropped out, is the way
the ranked choice
voting mechanisms work.
And most of Taft's
votes would have gone--
they would've gone to Wilson.
They might have abstained, and
this is somewhat of a guess.
But that confirms the point that
ranked choice voting is a way
to unlock a two party duopoly
and give third parties
or independents
a genuine chance.
Now sometimes they may not
make it to the second round,
as it were, and they'll
just fall by the wayside.
But if they are like Roosevelt,
or perhaps Ross Perot,
they might actually
end up winning.
AUDIENCE: And in
addition, even whoever
does win, we still have
the original count of what
the actual populist [INAUDIBLE].
SAM WANG: Let me describe
some consequences
of natural
experiments that we're
doing as a species with
weakening of two party systems.
Let's see, so parties
in the United States
are weaker now because
of campaign finance
and also, because as we've
seen in the last few elections,
party voters kind
of like reactor fuel
that spill out of the vessel.
It's all over the place and they
go voting for Trump and stuff.
And so and so parties
are weaker now,
and so that means that 40%
of Republican primary voters
end up supporting Trump.
So that's an interesting
phenomenon that's out of step
with party leaders.
And so that's an example
of I hate the party
and so therefore, I
want to weaken it,
so let's let the
voters have a say.
Another example, weakening
of a two party system
is, in some sense,
what's happening
in the UK, where there is
division of opinion and they
as a nation seem
to be paralyzed.
And so they've kept
first past the post,
but they have a
weakened party system.
Israel has proportional
representation.
And so they have lots
and lots of parties,
and boy, that's really
working out well for them.
[LAUGHTER]
And so I think it's
natural to dislike
the fact that one is
forced to currently support
one of two major parties.
But one should be careful
about not liking a thing
and then breaking it
and throwing it out.
I think that one should,
generally speaking,
take a little care before
wanting to toss something
out the window.
NED FOLEY: We've got
a lot of questions.
Sam, do you want to--
AUDIENCE: So two
quick observations.
First, I would encourage those
who are law people here not
to overlook Franita's argument.
This idea of reading
the 12th Amendment
as a constraint on First
Amendment uber alles
is one of those creative
constitutional arguments
I've heard in a long time.
That's great.
Other observation.
We tend to forget that
parties and people respond
to incentives.
And so the incentives
condition how people
behave in the electoral arena.
We can say because of
the electoral college,
the vote came out this way.
And we can try to
match after the fact,
how the popular vote did and how
the electoral college vote did.
I don't think that's the biggest
distortions in our politics.
The electoral college sets
up the threshold question
in a small number of
battleground states.
And Sam's slides
demonstrate this very well,
both in terms of turnout and in
terms of how the candidates see
the elections.
So I often ask my
students, do you
recall what the
issue was in 2000
in the presidential election?
Because that was a determinative
moment in our politics,
Supreme Court came in, all that.
That was the year that
Time magazine proclaimed
the year of the
shark, because there
were two deaths in Florida.
That was the year that
the candidates ran
on the social security lockbox.
Why did they do that?
Because everybody
knew the election
was Pennsylvania and Florida.
And that's number
one and two in terms
of senior citizens as a
percentage of the population.
And so the distortion is not
just at the outcome level,
do we match the popular vote
to the electoral college.
The distortion is what part
of the population gets engaged
and over what issues.
And so when we talk
about critiques
of the electoral
college, I think
it's important to
push back on deeper
questions of the responsiveness
of our elected leaders
to conditions of
popular sentiment
and what parts of the
population get engaged.
NED FOLEY: So I'm
watching the clock.
I think technically
we've reached the limit.
But the good news is the
conversation doesn't end.
It only continues.
And I look forward to hearing
what the other panels say
and what Q&A brings
to those panels.
So thank you, co-panelists.
[APPLAUSE]
