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0:01
Welcome to our conference, sponsored by the Harvard Journal of Law and Policy, on the Electoral College. I'm Larry Lessig and I begged to 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.
0:35
We're very happy to see such a diverse group of scholars about the ideas that we will talk about with the Electoral College. We're going to begin with Danielle Root, who's from the Center for American Progress to kick us off. 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]
1:06
Good morning. Good morning [inaudible]. Thank you. [LAUGHTER] 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,
1:44
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,
2:17
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. 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.
2:47
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 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,
3:18
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,
3:51
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
4:25
their respective representation in Congress, so that each state is guaranteed at least three electors. To win an election, a presidential candidate must simply when 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.
5:00
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.
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As such, the matter would be delegated to the US House of Representatives, which would ultimately decide who became president.
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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 asserted simply offered a practical solution to holding elections for national office during a time when reliable transportation and national periodicals were lacking.
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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
6:42
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,
7:15
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 three 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.
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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.
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Beyond these specific outcomes, the design of the Electoral College runs counter to the principle of one person, one vote. By granting voters and 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.
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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. [NOISE] Furthermore, the Electoral College is facing a reckoning with its racist origins.
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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 perpetuates 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,
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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,
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often against historically underrepresented groups. Well, everyday Americans harboring harmful prejudice does have glommed onto politicians who they believe share and reflect similar sentiment. The drastic rise in racist sentiment and hateful 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,
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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? [NOISE] 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
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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 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,
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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 an audit, potential fraud, or foreign, [NOISE] 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. Any state-by-state reform poses significant issues for partisans on one side or the other.
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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. [NOISE] I would like to once again, thank the Harvard Law & Policy Review for holding this conference.
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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] [BACKGROUND] We're going to move right to the first panel after I apologize [LAUGHTER] for the second time referring to the journal in the wrong frame. The Harvard Law & Policy Review and not the Harvard Journal for Law and Policy. [NOISE] I apologize for my ignorance, but my apologies long enough to get everyone up here.
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[LAUGHTER] Net you're going to start. Sure. Thank you. [NOISE] Can you all hear me out there? Good. I'm Net Foley and I'm going to moderate this panel and lead it off and try to keep the introductions really short. We've got two law professors on the panel, Fenita and myself. If you can read these signs, you see that Fenita is USC and I'm at Ohio State. We are both trained as lawyers, but we try to work in dabble in history is part of our scholarship on elections and electoral processes.
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We're really thrilled to have two of the most preeminent historians in America, Jack Rakoff and Sean Wilentz here who need no introduction. Jack have honorary law professor for his work on Madison, and the original intent of the constitution even won a Pulitzer Prize. I hope everybody knows Shaun's rise of American democracy, which won the Bancroft Prize. Recently, can I say I read your book, The Politicians and the Egalitarians, I listened to it on audible,
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[LAUGHTER] 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 lesson. I encourage you to have that book. [NOISE] Sam is a Renaissance man. He's at Princeton. [OVERLAPPING] No. I mean, everything. I'll going to say something about this. Is that the idea? [OVERLAPPING] Historian. He's trained as neuroscientists, but he's done incredible work in our field and the topic of gerrymandering,
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applying math and statistics. I'm just waiting for him to solve the impossibility of the Arrow's theorem and actually find a solution to that. When he does that, he will really have fixed the American democracy for all of us. The order which hopefully will be apparent based on the structure of a book I'm about to talk about will be Jack, Sean, Sam, and Fenita. But let me give you an overview because they've been kind enough to take a look at
16:17
a book that I've written that's coming out in December. The book has three parts. The first part is, why we have our current Electoral College. 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 by Congress in 1803 then ratified by the states in 1804 and time for Thomas Jefferson's re-election in 1804.
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When I went to law school, I was taught by my professors that the 12th Amendment was just the technical tweak. A fixer wasn't really important, there was nothing deeper 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.
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It was a re-negotiation of federalism and republicanism. Again, these are not household names that were in Congress at the time. It wasn't Hamilton and it wasn't Madison. But it was, if you will the Larry tribes and the Erwin Chemerinsky is of the day. People who wrote constitutional treatises on the Constitution and constitutional governance and jurisprudence is it existed then. The debates are much more extensive than the debates in Philadelphia at the founding,
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Madison himself acknowledged late in life that they hurried when they got to the topic of the Electoral College and Philadelphia. There are trying to get home at the end of my long hot summer and they didn't give it the attention it deserved. You can tell that by looking at the historical record of 1787 and then comparing it to the historical record of 1803. To understand the difference between these two electoral colleges, the easiest way to do is to think about the image of
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what the legitimate authentic winner that each system had in mind. The original Electoral College had George Washington in mind as the right winner. What that was, was a consensus president. A president who would rise above party, above factions, above interest group politics to govern the nature. They designed a system for that purpose. Again, we all know from the Federalist Papers they hope to avoid permanent two-party conflict and have a divide and conquer strategy to
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the problem of faction through separation of powers and other instruments of constitutional architecture that obviously 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 and 1800s. We know what it's today to live in a world of intense polarized hyper-partisanship. They were living in that world. In 1800s in and 1796,
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it wasn't exactly the same as our system but it was the original idea of avoiding to party conflict had obviously failed. The key point is that when they rewrote the Electoral College and the 12th amendment, they had in mind the inevitability of two-party conflict. The key idea was that the majority party should prevail. Their image of an authentic winner is Thomas Jefferson. That's why I call it the Jeffersonian and electoral college because it is a different beast.
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Their point is that there's two parties as the Jeffersonian Party and the opponents, the Federalist party. There's never going to be consensus again [LAUGHTER]. 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. When 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 is abandoned.
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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 and majority of states in the house. They thought majority winners would win at the state level. Because they were combining and re-thinking, putting together republican form of government Republican elections and federalism.
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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 when they thought he had one authentically in 1800 and almost been deprived of it. They wanted to assure that he would win again properly and the system would work is that they intended to two. In 1804 was he would accumulate and electoral college majority. By amassing state-based majority's,
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he would be the majority preferred candidate in enough states to produce this federal majority. In fact, Jefferson and Madison themselves changed the rules. 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. Their vision was this idea of a compound majority winner.
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That's again, they were a party trying to achieve at parties and 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 posts Reynolds versus Simms 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.
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They were aware that states could a point electors by popular vote. They knew that states like Massachusetts and New Hampshire assured that in a popular vote for electors, that there will be a run-offs. This is something I didn't realize until I did the research for the book because states didn't want to just let somebody being elected or with a mere plurality. You needed to have a run-off, whether it was in the form of a popular run-off or a legislative run-off because they
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thought that legislatures could reflect majority sentiment.
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Moving now to Part 2 of the book, what is happening 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. This is a somewhat of a messy, complicated story, and it takes place in the Jacksonian era, 1824 and. 1844, and Professor Willis is going to talk about the 1844 election which is, I think, one of the most poorly understood consequential election in American history,
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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 and the appointment of their electors. You can see this most by focusing on New York, which was a big state and the pivotal swing state of the era. There was a fascinating debate that takes place in the New York State Legislature on the eve of the 1824 election,
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where one side is clinging and they prevail for awhile, but they ultimately lose after Jackson comes to power. But prior to 1824, the old guard, essentially, and some guy named arise a flag. 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.
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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.
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He is in fact a majority winner under the Jeffersonian ideals, but the philosophies of the times change. Unfortunately, it's 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. This has great significance for the first time in the election of 1844. I'll let Shaun go into the details of that. It's a fascinating story.
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I think the question to ask is relevant to it, is is 1844 the first time we see a third party candidate affect the result between the two main contenders? Like Ralph Nader in 2000, was there a Ralph Nader affecting the election of 1844? If so, what did they react to that 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, he didn't go to the house,
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but they didn't see him as an authentic winter because of what happened in the state of New York with his plurality-only victory. 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 wins in the states to achieve an electoral college majority. It's rarely that we've had elections that affect the outcome. But there are these ones that we really need to examine closely.
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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 hope 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. The unfortunate reality of where we are today
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is we have a 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 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,
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but not in a way that was coherently designed or properly developed. I need to run my comments shorts so we can get reactions for other people. A couple of key takeaways on this exam, they talk a way that's relevant. The pathology that exists now has become more acute in the last quarter century and has the potential between even more so. This is a nonpartisan point, because 1992 Bill Clinton, 2000 George W Bush, and 2016 Donald Trump were all candidates who can only get
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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 under 40%. It's because of Ross Perot. Now, was Ross Perot a spoiler? Was Ross Perot like Ralph Nader, that political scientists can debate that. The key point is,
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we don't know for sure and it's a factor in 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 2000s, 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 just in a Marcia,
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the Libertarian Party or Lincoln Chaffey, Libertarian Party nominee or Michael Bloomberg decides to re-enter the race, or Tulsi, Gabriella 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.
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But if the battleground states adopted a majority requirement, you cannot get all of a state's electoral votes unless you've crossed 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 main is 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,
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the mathematics of it will get you a genuine majority winner. But if you don't like that, you could do a regular old fashion runoff of a second vote like France does with its presidential elections. You just have a second run-off 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 2, because that's exactly what Massachusetts and New Hampshire did for a long time,
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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 the 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 votes.
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There are lots of different ways to do it, but any of those ways would avoid this schizophrenics pathology that we have in our current system. 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've needed to worry about hanging chads or butterfly ballots because you would have had an essentially a runoff between George W Bush and Al Gore,
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and I think it's pretty clear what would have happened there if mathematically, if only Michigan and Florida had done this before 2016, then the question is, who would have won the runoff in those two states between Hillary Clinton and Donald Trump? If Clinton had won those runoff, so I don't know that she would have been, if she hadn't, she would have achieved an electoral college majority, not Donald Trump. What happens at the state level? This choice between plurality versus
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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.
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Well, we could give them a round of applause. [LAUGHTER] [APPLAUSE] This is a fascinating book. It raises questions, I think, that many of us have thought serious about throughout our college, have not taken sufficiently seriously to this point. It encourages, and perhaps even forces one to rethink some of the underlying premises that we've brought to the analysis. I think our job here, Harry, I hope this is okay with you is we should offer some set of reflections
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based on our own particular commitments minor mostly to the late 18th century, very early 19th century period. Then perhaps offer some general reflections on Ned's overall thesis. I think that gave a very up summary which allows us in fact to cut to the chase pretty quickly and get some sub sequence out there. Then leave plenty of time for debate. I want to just restate or read a single sentence [NOISE] which I think encapsulates Ned's basic position, I didn't write down the page number,
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but it's right up there in the introduction. What Ned wants is a distinctive majority winner suitable for a federal republic. I want to emphasize that phrase, suitable for a federal republic because I want to come back and criticize that consumption at the end of my remarks. A compound majority in which a majority voting Electoral College itself is achieved by securing a majority vote in the states to create the electoral college majority. It's a little formulaic,
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but I think it captures the essential argument. First off, I think that 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_1, is really the first stage. To me, the Electoral College Debate are always about a post Washington world. Long as Washington wants to be president it doesn't matter what rules you out. You'll always get the same result.
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That's, I think Federalists supporters like Alexander Hamilton, Gouverneur Morris, and other Washington's friends, Madison as well, would have been committed in their proposition. The first thing you realize about that is as soon as you have a contested election in 1796, and if you don't know what Jeff Paisley, P-A-I-S-L-E-Y, Jeff Paisley's recent book on this is really a great illumination. Even though Washington delays the announcement of his retirement as long as he can,
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and in a futile effort to subdue party conflict, as soon as he announces his retirement, both parties were highly mobilized to operate within the electro system. I think the first discovery they had is there were no independent electors in 1796, the partisan commitments dominated ab initio, from the beginning. I don't think he pays the adequate attention to the amount of partisan manipulation of a wiper rules that took place between 1796 and 1800.
36:28
You discuss it a bit. I actually thought there was more to say. But I liked the overall thesis of the book. I might add that I think it might pay more attention to how the winner take all the equilibrium was attained, I think more or less by the 1820s. What has become the dominant rule with the Nebraska and Maine being the default options. But those are just my preliminary remarks. Let me go back, I'm going to say something about the origins of electoral college.
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Something I've written about extensively in a variety of places, and every four years I go on my own mini campaign [LAUGHTER] 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 those will come up later. I'm just an article five constitutional amendment guy. Even Jimmy Carter once told me personally, 200 years from now, we'll still have the Electoral College,
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in its current form. The deepest oracle point I want to make is that I think it's important to understand the limitations of 1787. In the fundamental limitation affecting the framers of the Constitution was that there was no model available for the National republican Executive, it's always lowercase r. The national republican executive they wanted to create the dominant models of executive power available in the 18th century, rather monarchical or ministerial in nature.
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Then 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, Bard Bayland who I hoped to see yesterday, but circumstances intervened. Knows well that the idea of ministerial government it'd also been rejected. From the get-go. I think we need to cut the frame or some slack and I say this not as an apologist for what they were doing,
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but I think we need to cut them some slack by realizing in 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, Patcher Alexandra Bickle, and other commentaries. The Supreme Court was not the granddaddy of judicial review was not the greatest innovation. The idea of having a National Republican executive was.
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The presidency is actually the single most dynamic institution in the American constitutional system and the question of how it'd be selected, therefore pose in its own way. The most decisive challenge. The extension is, which I think is critical to understand, is the Electoral College and again, that phrase is anachronistic. It comes into use only, and we use it all the time. Why not here? Shorthand, but I think Alex says it's late 19th, early 20th century linguistic. We must have innovation.
39:21
It's important to understand that there 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 too critical defects. One is the regional one which Madison advanced but then
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abandoned that if you actually have a national popular election in a single constituency, which is what a true national population would entail, what's called United States of America. That there will be a regional bias against the South because only citizens would vote and the whole question of the racial composition South therefore would be regional disadvantage. That's an important objection, I don't think is most important one, the decisive objection to my way of thinking is the idea,
40:16
not that the electrode would Cantor after a demagogue. Let's try to think of a random example whose might come into mind. Not too hard these days, is rather more of the problem of having an uninformed electorate that would be inclined to favorites on voting. That if you want a popular election, you probably would need some runoff. Maybe in a proud of throat Pro, or French or Brazilian model, but certainly I think difficult to conceive. It says this information problem.
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You assume a lot of favorite son candidates and meal swipe. Madison says that proposed the Electoral College that everyone's second vote would actually be the collective first of all, population doesn't work. The other obvious alternatives they have Congressional Election that solves the information problem. By definition, you cannot. Some people might quibble with this today. But by definition, you can't have a more informed electorate than the national legislature to get there,
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you have to be reasonably sophisticated political problems. I think there's also a theory of ambition which assignments there 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, you want the president be constitutionally and politically independent of the executive. What's to stop the president from becoming the totality of Congress and under conventional separation of
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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 have reiterated discussions. There are a couple of big cycles where we were where the framers work their way through this. It had the obvious invention. They have the attitude that had the obvious attraction. It's finally designed of combining the two. I don't want to use the word compromises here,
42:08
but the two great decisions, over-representation, worthy a popular vote with the Three-Fifths rule embedded in it, would be efficacious in the first round and in the second round should know majority of butane, which is George Mason said might happen 19 times out of 20 than the equal state vote would come to apply and other issues the framers simply default to the issue to the States. You wish they'd spend two or three more days working out something about the mode of election.
42:41
But instead that debt option was defaulted. Same legislatures maybe because they retired, wanted to go home, maybe because they really hadn't thought through. How the electoral system would operate. 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 your books like dads and Alex case Rs book which I guess is going off to the publisher. He says on Monday, you'll tell us more in the next session.
43:09
I think it's really important to be able to reconstitute the history of how the institution evolve. Those are my primary historical comments I want to make two substitute comments. [NOISE] Well, I'll make in passing. That 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.
43:37
I mean and I think we'd want to know more about who third party voters they actually are. They might well not turn out.
43:46
I mean obviously, they're voting out of dissatisfaction with the existing set of choices, so whether they're voters, whether we should have a 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 inserted elections to worry about this, so that's Objection 1. Objection 2 goes back to the idea of the federal republic
44:15
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 the existence or existing federal structure is not the same thing as saying it actually advances their principles of federalism, I mean necessarily we conduct elections according to a federal principle. That's fine, but it's how it would actually affects or promotes federalism.
44:46
To me, remains a deeply problematic statement. I would think at the national level of federalism is adequately protected by the existing modes of representation in Congress with or without centers being elected. The more fundamental point I want to make here is that attracts plane this should I negotiate not year-to-year with my students whenever I talk about this. Our electoral system does represent the belief that the size of its inverse sense that the size of
45:20
the state matters in terms of the sway you 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 if the ecosystem because it's the Torrey bump 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
45:51
the interests that has to be reconciled and go back to federal standard. Interestingly, it's big omission in Madison's theory. All the preferences we have, all the preferences which determined 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 have to be evenly divided in terms of the working distribution of preferences,
46:19
so I'm not convinced that the federal principle, I mean it is one of your concerns I think to abide by the logic of federalism. As I think about it, it's a trivial secondary really inconsequential issue. We take our interests with us. I mean I've lived in. I voted in Massachusetts, I voted Illinois, I voted in New York and I voted in California. I've got basically a pig state guy in a native cook county Democratic data for Chicago Cubs Fan and it's about three-quarters of my identity.
46:50
I suppose along with religious affiliation, but that's what determines how I voted wherever I live. If I move to Wyoming, God forbid. Tomorrow I prop and I visited it, so I've been there. I probably actually set the cerebral rosa. Why does Wyoming have two votes in the Senate? He couldn't give me an answer, but you guys stiff if you ever beat him. In any case, it just seems to me that the whole federal principle is a misconceived way to think about the problem,
47:16
except you want to have a feasible solution. I would have a national popular vote or DOT by Article Five Amendment. Thank you. [OVERLAPPING]. I second everything you just said Jack. Showing them the importance of federalism to the debate, we have to figure that out. That's where the court 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,
47:46
so I'm coming in as the historian of a 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 arguments, so let me explain why that is.
48:08
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 slave holders ploy to protect slavery. I'd like to commend you also because you say that the revised Electoral College ratified in
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1804 by the states was designed as a slave holders ploy to protect slavery either. I mean I just think that the documentary evidence on this is so crystal clear, but that's just not the case. It's not an apology for me. It's not an apology for the framers. There's nothing let alone happening like 3 and 4. It 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 1884 actually was.
49:08
I mean people forget that, people go back to the framers all the time talking about that Electoral College is 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 is elevated political theory, but it's pretty close in the house and in the Senate. It's really very strong on what the character this republic ought to be.
49:36
Should it be Democratic or not Democratic? And it's as good as if I was to give a undergraduates a debate to look at, that would be the one I think, and I agree that what the Jeffersonians are up to there, the Republicans are up to there is not simply to get Jefferson re-elected with which I really don't have to do anyway because they were going to win by a landslide in 1844, 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
50:07
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 is one little thing I want to add to it though which has to do with the character of the politics not just majority terrorism, 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,
50:34
one of the speeches in the Senate by a man named Samuel White who was a traditional, very conservative Delaware federalist if you know, but by 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 and paste with the humble than the exalted have a right to express their sentiments,
50:58
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 par rooms. That's where the great constitutional questions are to be settled. That's the fear that there's going to be this 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
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stake here too as the character of our politics, and I think you could stress that a little bit more. I mean in the book this big switch after breaking four or five where basically I won't go into the details, but the way in which we pick presidents and vice presidents has 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 messed that up according to the book by making
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plurality rather than the total absolute majority that basis we're giving electoral college votes in the state, so I think it's a little bit much to pin it on the Jacksonian 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?
52:17
And here I'm going to give you a little talk about the election of 1844. I know a burning question somebody even thinking about all the time the election of 1844, the bombshell of 1844 as I put it in a recent article. 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 to have Henry Clay. Running as a third party candidate in the North is not so fledgling.
52:51
It's the second time around abolitionist party, the Liberty Party. Which had nominated James G Birney for the presidency. These three people, Birney is not going to get any votes in the South. I don't even think he was on the ballot in the South, but he is going to get some boats in the North. The Whigs are thought of as less pro-slavery than the Democrats. If you're a anti-slavery person, you want to get Clay in rather than Polk. Except lawn companies, abolitionists were saying
53:23
both parties are corrupt because both parties have slaveholders in them. Both parties support slavery in effect, which is true. One of the problems with going against the Liberty Party people too much as I probably would have voted for Birney in 1844. But that's another matter. In the key state of New York peak swing state. Birney takes enough votes await supposedly from Clay to elect Polk to give hope New York's votes. Is that all clear?
53:56
It's ease the Ralph Nader 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 and that's the way it gets 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 the, more than just the numbers that we can up at elections, and there was much more going on in that vote. In New York then can be measured by the usual way.
54:28
It's true the Whigs. 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? They blame Birney in them and the people in New York. They all do that. Not Birney Sanders. Not Birney Sanders Sorry. [LAUGHTER] I forgot where I am. James G Birney. [LAUGHTER]. From now on for the next 10 minutes, he's the only Birney that exists. [LAUGHTER] [OVERLAPPING] The field of PIR. You're going to run on that, but
55:04
the point of the book is that in fact the wrong man got elected, because by Jeffersonian, by the standards of the, he is wrong guy maybe. The Whigs spot that they lost, they thought they're all Raymond selected. Pro Whigs Historians also jump on this and they love this. My friend Dan, how 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
55:35
slavery than the Democrats who were really the southern women, especially when nasty on slavery.
55:44
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. 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 app, the right nominee had gotten it, it wouldn't have been James K. Polk, would have been Martin Van Buren. that's not like an exciting alternative necessarily.
56:17
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 before,
56:45
but John C Calhoun will not let that happen. That has to be brought into the story for all 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 a nomination in Baltimore, I think was in Baltimore in 1844. They have ticked off. They don't go to the polls.
57:19
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 and here's where the Whigs don't look so good. The Whigs might have been relatively okay on the issue of slavery. They were not relatively okay on the issue of nativism. In 1844, nativism was at the center of New York State politics,
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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 dubious legality. Nevertheless, they're so angry at the Whigs that there's an outpouring of Irish votes and you can see it,
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the numbers are extraordinary. I haven't done the arithmetic to figure out if that's how decisive that was, but it was there. My point of all of that is simply to say that, John Quincy Adams actually reflects on all this and he says There are 1 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,
58:47
he talks about a whole bunch of things that are happening. Political outcomes are not as simple as looking at how the parties voted the vote and how 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 as fixing the Electoral College one way or another. I have agnostic and all this. I don't have a dog in this fight,
59:19
but that is not going to have the same effect if you ignore the larger political contexts and what's going on and that's just a cautionary note that I'd like to raise to everybody. In fact, if thinking about this issue. Okay. That's great. Thank you [APPLAUSE] Thank you.
59:45
Let's see. I'm fundamentally in my heart, a data guy and a scientist. I was told that I was going to be able to show slides [LAUGHTER]. 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. I'm going to be looking at them while I talk. Let's see. Let me make some general observations about the Electoral College and how these ideas look as originally framed in your book very ably.
1:00:24
Originally in the time, since that time and taking into account some of the things that you talked about but I wanted to take it in a slightly different direction. I wanted to see, interrogate your ideas as they collide with historical data and with modern conditions. As a numbers guy, I'm going to talk about some of these things 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's
1:00:53
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. I'm pretty strongly engaged in that. Jack votes in states that are not very competitive. In California, in Massachusetts and Wyoming, if he goes that direction,
1:01:23
all these are states where individual voters don't really matter that much. That's a reflection of the idea that the majority has no clear to reassert its will. I should say by the way that I think 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 vote, 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
1:01:55
[LAUGHTER] but my friends from the Dakotas have four senators. That would just be one example of how these mechanisms get baked in and entrenched minority rule get baked into the system. Today of course, we're talking about the presidency. Let me start from Ned's idea of the Jefferson's 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 and individual states.
1:02:28
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 talk about and view that wish through that lens. First let me list a few problems as I see it with the Electoral College. Again, I wanted to just interject here that I think of elections as being very nationalized. Because of communications. These favorite son effects,
1:03:03
favorite daughter effects are not no longer as strong as they used to be. I personally, viewing through a modern lens, see elections as being somewhat nationalized. With that said, here are some problems with the modern Electoral College. They're four of them, I'm going to mention. One is mismatch between popular vote on electoral vote. Another is failure to build broad-based coalitions. Third, susceptibility to interference and fourth disempowerment.
1:03:30
Disempowerment of voters in partisan leading states, which I touched upon a moment ago. I would say that this solution of requiring a majority vote and a majority of states partially addresses some of these. But not really all of them and I just personally take the position that somewhat complex solution isn't going to address all those problems. Now, in historical contexts, we've heard about elections going back to 1844 and earlier. The way I would characterize it as follows.
1:04:02
The reason that we're hearing about this problem now is that we're in an age of closely contested elections. The last time that in my view, the popular vote has failed There was a period of a lot of them, while a lot of them, several of them, Rutherford Hayes and Benjamin Harrison in the late 19th century during the first Gilded Age. That was a time of racial division, technological disruption, increasing inequality in deep partisanship. I hope that sounds familiar to you because now we live in
1:04:30
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. Of course, living in a time of racial division, technological disruption, increasing inequality in deep partisanship. Now one could ask, when would 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.
1:04:56
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. When 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 also in the first Gilded Age. Under those conditions,
1:05:25
about one or three electrons will go to the person who won fewer votes. That's really the problem. I think the thing that we're concerned about is that so certainly I agree with with Ned about that level of diagnosis. Now I want to point out that currently we already have a system in which some broad national consensus is necessary. I just want to use the Clinton versus Trump election as an example of that. For Hillary Clinton to have one more votes than Donald Trump in
1:05:52
the 2016 election required votes that she won in 41 states and the District of Columbia. 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, 41 states and DC, and the state that puts it over the top is Rhode Island. I think that there's already a mechanism in our age of communication
1:06:24
for requiring some national not quite consensus. But a national outpouring of support for one candidate. There's some issues having to do with battleground states. I'm not 100% sure that the 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 afford. Up to around 100,000 for Nixon versus Humphrey, Bush versus Kerry, and Trump versus Clinton.
1:06:59
That's about how many votes it takes to flip the Electoral College. Had we 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, 3 million votes. That's how many votes would need to be flipped to reverse the popular plurality or
1:07:24
majority of George W Bush versus John Kerry or Hillary Clinton versus Donald Trump. 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.
1:07:42
Another problem that we have to think about when thinking about modern conditions and practical issues is this battleground state phenomenon. You expressed the wish of wanting a particular reform and battleground states. I should point out the battleground states change over time. Unless you're in Ohio, you're not assured of being a battleground State. We lost that status it's all Wisconsin. Well, but the thing [inaudible] but that's this here.
1:08:06
I think that, I think that if one wants a practical reform, we 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 the way to fix close elections. Examples of problems are that currently major candidates ignore all but a few states. The Dakota's did not get visited in 2016, Idaho did not get visited.
1:08:36
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 and 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,
1:09:04
the rate of voting is lower. This percolates to disempowerment a specific communities. We've heard about non-white communities who don't get empowered. Other communities also get dis-empowered, a white community that doesn't get very much power as Mormons. If you calculate the power of individual votes over the presidential outcome, in terms of probability. Mormons have about one eighth of the power of Americans on average. Mormons, Puerto Ricans, various people of color That disempowerment,
1:09:35
I think does not necessarily get fixed. My take on this is that, 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. We can see that experiments starting to play out that has the advantage of something that can start
1:10:06
in the laboratories of the states and then percolate from state to state. 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. 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 we're in close elections. No one factor matters yet every factor matters.
1:10:38
We can always point to individual hypotheticals as being well, the election would have turned out differently had we done that. I think that it's easy to go down into the spiral of wanting to fix smaller and smaller things. Just the scientist in me wants to pop back up to how about find out who got more votes? That would be my somewhat boneheaded [LAUGHTER] suggestion. [APPLAUSE] Thank you so much. I'm very happy to be here and be a part of such a distinguished panel.
1:11:19
I feel compelled to verify that Sam's slides are fantastic. [LAUGHTER] Also that Jack [LAUGHTER] mentioned that he's from Chicago, and so I have to say he did not vote in all of those states at the same time. [LAUGHTER] For my comments, I want to focus on the extent to which the 12th amendment changed our understanding of what republicanism requires. I mean why this matters in thinking about the normative implications of Knits Book
1:11:49
which SE only other law professor on the panel you have to think about the normative. The guarantee clause impose a republican form of government and 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 the state systems. Republicanism was essentially held out as the ideal, but it was ill-defined during the founding period.
1:12:13
There has never been a consistent and enduring definition of republicanism. Plato wants to find a republic as "a well-ordered community" rule by "guardians who in their whole life show the greatest eagerness to do what it's for the good of their country, and the greatest repugnance to do what is against their interests." Aristotle and Cicero simply viewed any government that works for the good of the whole as a republic.
1:12:35
Later writers like Montesquieu would adopt a definition of republicanism that can encompass a monarchy and aristocracy or 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 hereditary class of rulers but with provided few specifics.
1:13:00
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 Republican as a "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 limited time or during good behavior. He concluded that "it is essential for such a government that it'd be derived from the great body
1:13:27
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 minus power to the rank of Republicans and claim for their government the honorable title of a republic. Madison was not alone in thinking that republicanism acquitted to some form of majority rule. There was almost universal agreement that in addition to
1:13:50
obligating the federal government to come to the aid of safe space and rebellion, the guarantee clause required this stays in franchise some portion of their population. But republicanism, historical connection to monarchy live many opponents of the Constitution to question this new government that the founding generation sought to create. Writing under the pseudonym the Colombian patriot, one such opponent referred to a Republic as a "many-headed monster,
1:14:13
" that democratic branch with the features of aristocracy and the extravagance of nobility pervade in the minds of many of the candidates for office. While the Colombian patriot would insist that a republic was contrary to 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
1:14:36
separation of powers will prevent any attempts to establish a monarchy in either the states or the federal government. From debates over the scope of the Guarantee Clause want to steal 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
1:15:02
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
1:15:28
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,
1:15:54
either through the voter select this, the legislature that should choose 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 and Republican principles, the voters. In important ways, we the people was actually we the voters. Clarifying which majority matters,
1:16:20
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 majority's 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, it is clear that the system is ill-equipped to deal with third-party spoilers. Instead envisioning a winter that emerged from one of the two major parties,
1:16:45
because it will be easier for that individual to a massive support that the Jeffersonian experiment envisioned. The elections of 1844, 1884, maybe 1992, definitely 2000, now possibly 2016, the president who will emerge as the winner would not have been victorious, but for the presence of third-party spoilers and increased political polarization. Stay at the Jeffersonian ideal was that President has had the stamp of legitimacy that comes with being a preference of the majority in this space
1:17:15
responsible for his or her electoral college win. Oftentimes this 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. Nancy bookshelves, that parties are not just responsible for conveying the choices of a subset of the electorate.
1:17:40
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 have wide support, by 1803, this was certainly not the case. The 12th amendment clarify the meaning of republicanism embraced in 1787 sentiment on a type of voter focus majority rule that was facilitated through the two major parties,
1:18:07
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 majorityarianism. One of which I hate, I'n 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.
1:18:33
The Supreme Court has recognized this as a legitimate state interests and the 12th amendment seem 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 majorityarianism that undergirds our system of republican government, and that's history of the 12th amendment seems to suggest that this is the case, then it makes no sense to ever treat these indices as
1:18:57
private associations that have constitutional rights like people, I love this idea. The Supreme Court has found that political parties have 1st Amendment rights. But arguably this reading of the 12th amendment provides stronger support for the white primary case which struggled 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
1:19:21
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 and other situations, including California Democratic Party versus Jones, in which you found, 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.
1:19:44
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?
1:20:10
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 electrodes 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 Ned's proposed changes, the two major parties remain the vehicles through which we translate majoritarianism.
1:20:37
Put into the side the need to expand the universe of voters who comprise the majority. Issue that naturally follows if we accept and majoritarianism means a majority of the voters. We should as Ned shows, update the Electoral College to better reflect this majorities hearing and 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
1:21:03
the options that voters had to a binary choice. Further cementing the two major parties and new electoral scheme. Thank you.
1:21:16
That's great. What I thought we'd do is if I take a few minutes just to 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 in Q&A. 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 with Jack with the idea of the federalism or
1:21:48
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. I'm an Article 5 guy like you are and don't think the compact is the right way to do it.
1:22:12
Just to be clear about that normative first preference. 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's this 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,
1:22:45
but they did develop so re-calibrate the system towards its own purposes. 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 can say more about that, but I think that's the basic point there. Shaun, 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 absolutely true.
1:23:19
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? It was James Bernie a spoiler in 1814. 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. We do not have a system that can tell us what the electorate really wanted
1:23:55
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, significant could be even 3%, 5%, if it's making a difference in the kinds of close races that Sam is talking about. Just to think about this psychologically now, everybody in this room probably remembers the national freak out that occurred when the idea was that Starbucks CEO Howard Schultz was thinking about running.
1:24:29
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 choices. That's the insight that we should keep and not freak out should exist, even if he out of the goodness of his heart says, I'm not going to do it this time because other people might not have the goodness of their heart. Again, as I understand the current environment, the Libertarian Party is flirting with the idea of
1:25:06
nominating either Lincoln Chaffey perform our governor and senator from an island, former democrat, former republican, and former independent, [LAUGHTER] 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 Republicans, red team versus blue team, what the libertarians do.
1:25:37
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. 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 rank choice voted out. I'm trying to figure out how much agreement, and I appreciate all your points, but I think we're even more in sync then you perhaps agree in,
1:26:14
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 that would be consistent with the original understanding of the 12th amendment. Actually, Madison himself toyed with a proto version of a rank system in the 1880s when he was observing anomalous that had developed,
1:26:44
he didn't have a fully formed system of ranked-choice voting like main is 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 why 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,
1:27:16
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. Therefore, we can defeat the federalism and the electoral college through this surrogate alternative mechanism, which Jack and I don't want to do.
1:27:46
But even if you think you could do that and get away with it, it doesn't solve the Howard Schultz freak-out situation. Because if you're really concerned that the entry of somebody like Howard Schultz in a race could destabilize disequilibrium that race, that is true under our current plurality winner-take-all all at the state level or under the National Popular Vote Compact. Because what we can't do without an Article 5 amendment unfortunately,
1:28:14
is Mary ranked choice voting with a uniform national electorate. I wish we could do it, but mechanically we can't do it because to do and full national ranked ballot, you need ranking ballots in all 50 states to get a full national rankings. If only the compact states decide to adopt ranked choice voting, you're not getting a full national rankings. The National Popular Vote Compact plan that's under consideration calls for a plurality winner.
1:28:42
That does not solve the Howard Schultz or the third-party dynamic problems. People should be aware of that as they think about alternatives. Finally Fenita, absolutely brilliant. I really want us to take a lot of time to think about what you say. But I loved 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,
1:29:13
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 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 of elections as a result of how parties work with primary elections as they're currently conducted. That's in part a feature of what I think is
1:29:40
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 and 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,
1:30:07
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. I think the legacy of 2016, again, I think nonpartisan point. I just think it's observational that there were pathologies occurring in the intraparty competition for the nomination, as well as pathologists that were occurring in the general election. Thank you all.
1:30:41
Anybody want to add comments, react to each other, talk amongst yourselves before we go to the Q&A? 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 we have in mind, somewhat different, but I think it still happens as it is when the Israelis went to having
1:31:12
a direct election of Prime Minister, I think it was back in the lab. Forget the exact dates, maybe back in the '90s, somebody else might know. But one perceived consequence was that it actually contributed to the destabilization of both Likud and Labor Party, made the Israeli political matrix more difficult. In fact, if you multiply the options on this basis, would that be helpful or inimical to the overall health of our political system?
1:31:43
Great question. Let's leave it as a question for subsequent panels perhaps to address in. But I do think all change has consequences. Often unintended. 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.
1:32:17
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. I think that roughly speaking, this Jeffersonian thing is a level to see whether things have gotten out of whack. Let me just describe how the framework I think about, when I think about all the ideas that you all have suggested.
1:32:44
My take on it is that one might want to match the reform to the problem. In practically speaking, if you want to get that reform to happen, to use events to drive single state reforms. An example would be, libertarians are going to nominate Lincoln Chaffey, which seems somewhat had not occurred to me until you said it, but alright. [LAUGHTER] Sure. Where is he now? [NOISE] But okay, fine. Whatever they do, then use that to push for reform in an individual state.
1:33:13
Channel your inner Federalist put on your reformist Federalist hat and 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. That might be good. 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 and partisan states and
1:33:43
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. At least in my mind and I'm glad to be corrected, I think that each of these problems have specific fixes and you wouldn't want to go taking your level and try to hammer things in and screws with a level. I think one might want to be a little bit
1:34:12
Engineering about thinking about what reform fixes, which problem? Anybody else, or should we go to the audience? Go to the audience. Go to the audience. In the back?
1:34:29
My comment slash question. It's mostly direct, it seems that a lot of the paradigm that most of the speakers have approached it through. But especially as we're falling, is in regards to the two-party system being the original founder's intention and how do we make that work. But I don't see any reason why we need to stick to their original intention. The two-party system has become a situation wherein entrenched interests of big corporations and whatnot know, they get to win.
1:35:05
They only have to place two events to win. The whole terminology of spoilers and whatnot. Ranked-choice voting as Sam Wang said. That's a good potential and we're fixing the problems. But we don't actually even know if there are spoilers. We know that the term spoiler makes a lot of people go, well, it's true they're not going, man, I got to vote for the lesser of two evils. But if it was a popular vote, you get a Ross Perot got 19.4% of the vote.
1:35:37
Next time he got less than 2% because everyone said I can't waste by boiling on spoiling. You didn't get a single college, but if it was a national popular vote the next time you buy one. I'm not saying that would've been a good or bad thing, but people would have said, there's a shot, I'm not wasting my vote. I guess we, we discussed two things, well, most of the Electoral College, which I don't see why popular vote can't handle that. We've got the issue of spoiler.
1:36:08
I don't see basically what Sam Wang said, but I don't even understand why 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 to say. They only have lesser of two evils. They don't get to actually say what they care about. Thank you. Let me see if I can take a quick crack at that and see if anybody else wants to chime in. I think the election of 1912 is particularly instructive in this regard.
1:36:38
Recognizing the caution that sometimes reforms have unintended consequences. I do think one can tentatively predict that adopted ranked-choice voting, either state-by-state or through an amendment at the average. National level would open up the space, as Jack suggested for 3rd parties and independence to be more robust. Because for so I think for example, Michael Bloomberg would have entered the race in 2016 if ranked-choice voting had been in place.
1:37:08
I think he has wanted to think about ending their race, but he didn't want to be a spoiler and he didn't turn out the way you want it because he helped Hillary Clinton would win. He thought by withholding his role, but he thought that if he entered the race, he just give it to Trump. If you put ranked choice voting in the mix, you're likely to see more people, potentially more parties come in to try to compete in the first stage process.
1:37:32
I think again, looking at France and other countries that do to round systems for presidential elections would support that empirical prediction. But the reason why I mentioned 1912, Teddy Roosevelt ran as a third party candidate, his Bull Moose candidacy of the Progressive Party. This was after he'd been president. Remember he anointed Taft as his successor. Taft was the incumbent president in the 1912 election. Roosevelt didn't like the fact that Taft was more conservative than he anticipated.
1:38:06
Roosevelt was turning more progressive and so he tried to get the nomination of the Republican Party away from his protege Taft. The Republican stuck with Taft. Roosevelt bolted from the party and ran as a 3rd candidate. Roosevelt actually did better than Taft. Wilson only wins in 1912 because of this three-way split. In fact, if there had been a national ranked choice ballot, it's likely Roosevelt would have prevailed Taft would have
1:38:40
been dropped out is the way the ranked choice voting mechanisms work. Most of the task votes would have gotten, they would have 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 3rd parties are independent to genuine chance. Now sometimes they may not make it to the second round as it were, and they'll just fall by the wayside.
1:39:07
But if they are like Roosevelt or perhaps Ross Perot, they might actually end up winning. Addition. Even if whoever does win, we still have the original count of what the actual populous kingdom. Let me describe some consequences of natural experiments that we're doing as species with weakening of two-party system. Let's see. 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, reactor fuel that spill
1:39:45
out of the vessel and it's all over the place and they go voting for Trump and stuff. Parties are weaker now. That means that 40% of Republican primary voters end up supporting Trump. That's an interesting phenomenon that's out of step with party leaders. That's an example, 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 two-party system is in some sense what's happening in the UK
1:40:10
where there is division of opinion and they as nation seemed 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. Boy, that's really working out well for them [LAUGHTER]. 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 in and throwing it out.
1:40:40
I think that one should, generally speaking, take a little care before wanting to toss something out the window. Got a lot of questions. We had happened. Sam. Two quick observations. First, I would encourage those who are loyal people here not to overlook for news argument, this idea of reading the 12th Amendment as constraint done First Amendment [inaudible] is one of those creative. Constitutional argues that burden on top is great.
1:41:13
Other observation, we tend to forget that parties and people respond to incentives. The incentives condition, how people behave in the electoral arena. We can say, because of the Electoral College, 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 distortion in our politics. The Electoral College sets up the threshold question in
1:41:45
a small number of battleground states and Sam slides demonstrate this very well, both in terms of turnout and in terms of how the candidate in the election. I often ask my students, do you recall what the issue was in 2000s in the presidential election? Because that was a determinative moment in our politics. Supreme Court came in all that. That was the year that the Time Magazine proclaim the year of the shark because there were two deaths in Florida.
1:42:16
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. That's number 1 and 2 in terms of seniors citizens as a percentage of the population. 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. When we talk about critiques of the Electoral College,
1:42:53
I think it's important to push back on deeper questions of the responsiveness of our elected leaders to conditions of particular sentiment and what parts of the population get engaged. Watching the clock. 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. Thank you co-panelists [APPLAUSE]
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