2000 Vermont gubernatorial election

Transcription

- My name's Eric, I'm the president of Georgetown Law Students for Democratic Reform. We're excited to be hosting this debate with the Georgetown Federalist Society, on a very critical topic, how we elect U.S. presidents, and I'm gonna let our expert speakers tell you a lot more about that, but I just wanted to briefly introduce our moderator, Professor Paul Smith, he is the resident election law expert here at Georgetown. Distinguished career in a public practice in numerous electoral cases of the Supreme Court. - Most of which I lost. (audience laughing) - Including the recent Wisconsin (cough drowns out speaker) case (mumbles) this last fall you probably thought about. He's the VP of the Litigation and Strategy at the Campaign Legal Center and we're very happy to have him here. So please give him and our debaters a round of applause, and let's get started. (audience applauding) - Thank you, Eric. Let me introduce our speakers briefly, we are really lucky to have both of them here. To the further left, Congressman Jamie Raskin of the 8th district in Maryland. He was elected to the House in 2016, so he's kinda new. Previously served three terms as state senator in the Maryland General Assembly, where he's also the Senate Majority Whip. And for more than 25 years, Congressman Raskin's also been professor of Constitutional Law at American University, Washington College of Law. And he is a long-time advocate for electoral and campaign finance reform. Including having served on the board of FairVote and is a strong supporter of the National Popular Vote Interstate Compact, which we're gonna hear more about in this conversation. Trent England is the executive vice president at the Oklahoma Council of Public Affairs, a state-based public policy research organization that analyzes issues from the perspective of limited government, individual liberty, and free market economy. Mister England directs both the Center for the Constitution and Freedom and the Save Our States project. He is also the David and Ann Brown Distinguished Fellow for the Advancement of Liberty as well as an adjunct fellow of the Freedom Foundation, and he is a strong supporter of the electoral college, which is why he's here. So, let me start things off. With the congressman, since he's a congressman, you know. We've had the Electoral College Congressman for now 229 years, or whatever it may be. And what's so bad about it, why should we do something about it? - Well, the first thing I gotta say is that, well, first, thank you for having me, I'm delighted to be here, and thanks to the Students for Democratic Reform, and also to the Federalist Society for putting it together. The National Popular Vote plan does not abolish the Electoral College. It changes the way we're using the Electoral College to advance a national popular vote. If you consult your Constitutions, you'll see that in Article II, Section one, the states are given what the Supreme Court has described as exclusive and absolute plenary power to decide how to award their electors. And in the last few centuries, states have used everything from awarding electors by Congressional district, to, which a couple of states still do today, mainly in Nebraska. To doing it by specially appointed presidential districts, which a lot used to do to naming specific people in state law as the electors to the system that most states use today, which is winner take all. But it's up to the legislatures to do it and the Supreme Court re-emphasized that as recently as 2000 in Bush versus Gore. So, the National Popular Vote campaign starts with that insight, that it's up to the legislature side to do it. And we say that we're gonna appoint our electors according to who wins the national popular vote, not who wins the vote in our state. And I'm proud that I was the first state legislator to introduce this in the state of Maryland, which became the first state to pass the National Popular Vote Agreement, the Interstate Compact, they're now about a dozen states on it, and the District of Columbia, we're more than halfway there in terms of getting to 270 electors, which of course is the number you need to win in a presidential contest and the Electoral College and that activates the compact. Why do we need to do it? Well, I've got a whole little presentation about that, should I wait to give it to you? - Yeah, go for it. - Or should I go for it? Basically. - You each have a little bit of chunk of time up front here to state your positions. - Okay. The problems I think are both intuitive and obvious, but then, also quite subtle and complex. Let's start with the intuitive and obvious ones. Our elections are not democratic. They don't choose the candidate who wins most votes. We don't guarantee a majority vote winner. We don't even guarantee a plurality vote winner. Because of the way that the elections are designed, so in two of our last five elections, the popular vote loser, George W. Bush in 2000, and Donald Trump in 2016, has prevailed in the Electoral College, so we don't have a democratic system for electing the president, which comes as quite a shock to maybe a majority of the American people who think that we've got one, and certainly, when you ask people, do you wanna use an electoral college system, state-based electors? Or do you wanna just have the person who gets the most votes win? Overwhelming majority say, in every poll, that they want to have a national popular vote plan. Now think about it. This is how we elect governors, this is how we elect U.S. senators, this is how we elect U.S. representatives, it's how we elect mayors, council members, everybody's elected that way. Think of it this way, which is the way that the founders invited us to think of it, like Thomas Jefferson, who always said, "Think anew." If you were to set up presidential elections today, would you have a national popular vote for president? Or would you come up with something like the Electoral College vote system? And I daresay the vast majority of people would say, let's just do it the way we do everything else, whoever gets the most votes wins. One person, one vote, every vote counts, and every vote counts equally, everywhere in the country. Well, what's the effect of not doing it that way? Well, there are bizarre perversities that arise within our system. In 2016, 95% of campaign resources and campaign visits went to a dozen states. And 2/3 of the resources went to six states. Florida, Virginia, North Carolina, Ohio, Pennsylvania, and Michigan, you know what the swing states are. As millennials, you make your decisions about where to register to vote based on the electoral college in your state, and the closeness of the election, people understand exactly how the system works if they're politically engaged and sophisticated. But in the vast majority of the country, there's no presidential election. So, think of our four biggest states, New York, Florida, Texas, and California. Three of the four are safe blue or red states, so there's no presidential election to speak of in New York. There's no presidential election to speak of in California. Everybody knows those two states are blue. There's no presidential election to speak of in Texas, everybody knows it's red. Only Florida, one out of the four top states, has a real competitive election, where the resources the campaigns are put in to set up offices, to have door knocking, to have campaigning TV ads and so on, and it's a total shut down and flyover territory in other places. So you say, aha! It works the way the founders wanted it to work. It works for the small states. Not at all. If you look at the dozen smallest states, 11 of the 12 are themselves flyover territory. So think about Rhode Island or Delaware or the District of Columbia or Hawaii, small blue states. They're ignored by the Democrats, they're ignored by the Republicans because if you think like a campaign strategist, you gotta put your resources where the real election is happening. Similarly, North Dakota, South Dakota, Montana, Idaho, flyover red states. Neither party goes to compete there. That's true of most of the states in the country and it's true of most American people. We're just bypassed by the election. I'm from Maryland, a blue state, and proudly so. I chaired the Obama campaign in 2008 as a state senator in Montgomery County, which has a million people in it. We could not get campaign lawn signs in Montgomery County from the campaign. They said, "No, we're sending everything to Virginia. "You send all your volunteers to Virginia "and you send all your money to Virginia." And it's not because they had contempt for Maryland. It's not because they wanted to undernourish our campaign organizations and our campaign activity, although that was the clear result of it. It was because of the strategic necessity to go to the swing states. And that's a tiny minority of the states. And that's the way the system works. And it's just bizarre and perverse and nobody would set it up that way. In fact, we spend millions or tens of millions of dollars teaching other countries about how to write a constitution, how to set up elections. One thing we never export is the electoral college. No other country would ever say, oh yeah, let's do our elections the way you do your presidential elections in America. It just doesn't happen. This is an artifact, it is a relic. And I can get into the history if you're interested. But it's not working for us anymore. It invites strategic mischief and corruption at the state level, which it very clearly did in 2000. As in Florida where the Bush campaign chair doubled as the state election supervisor, Katherine Harris, and managed to oversee strategic vote suppression from the beginning of the campaign to the end of the campaign. And if you can settle an election in Florida by 537 votes, which they did, out of tens of millions cast, you get all the electors in the state. That also escalates the possibility and the invitation, the moral hazard of strategic mischief from abroad now. In 2016, Vladimir Putin showed himself to be extremely savvy about how our electoral college works. And the Russian trolls tried to get into 21 state election computer systems. As far as we know, unsuccessfully, but they tried to hack in. If you can hack in to one or two states, you could decide the entire election because of the way that it works. As opposed to having a real national election where the chances of a tie or an election being settled by a few hundred votes is almost nil. And mathematicians can explain to you why that's the case. So, basically, this system is obsolete. It's creaky, it's vulnerable, it's inefficient, it's un-Democratic, it's un-Republican. Sometimes they say, this is the great wisdom of the founders. They wanted to deliberate about who should be president. It doesn't work like that, right? No electors deliberate, in fact, most states have laws against deliberation. They're saying, you've gotta vote automatically, robotically for whichever state electoral delegation you're put on and so you've gotta vote for whoever wins in that state. So, it's explicitly opposed to deliberation. And let me just, final point, is that the way that democratic change has taken place in America. And it's always in a democratic direction if you look at our Constitution, right? So you look at the 13th Amendment abolishing slavery, the 14th Amendment equal protection. 15th Amendment extends voting rights regardless of race. The 17th Amendment shifted mode of election of U.S. senators from the legislatures to the people. The 19th Amendment gives us woman suffrage. 23rd Amendment gives people in D.C. the right to participate in presidential elections. 24th Amendment abolishes the poll tax. 26th Amendment lowers the voting age to 18. All of them are opening democracy up and they're replacing indirect filters that were put into the original Constitution. And it is almost always by state legislative action first. Like what we're doing with the National Popular Vote, it bubbles up from the states. People say, this is ridiculous, what's going on? For example, in the 17th Amendment, direct election of U.S. senators before it got into the Constitution in the 17th Amendment, was done by the way of state legislators saying, we will be bound by the popular vote in the states. And that's essentially what we're doing in the National Popular Vote Campaign. We're saying the state legislators will be bound to give their electors to whoever wins in the nationwide vote. It's not ideal, because it's never ideal because it's messy trying to replace a really broken and corrupted system like this. I think that once we have one or two election cycles like that, we will then be able to force Congress to go ahead and to amend the Constitution. It'll be sent out to the states and it'll be passed unanimously or overwhelming by the states. And we've got Democratic and Republican support, including Newt Gingrich, who has spoken out for it. It's passed mostly in blue states so far, but a number of Republican held state legislative chambers have passed it, including the New York Senate, the Oklahoma House and a number of other Republican. We've got bipartisan support across. - [Paul] Including Oklahoma apparently. - Yeah. And let me close with Donald Trump quotes. 'Cause (audience laughing) Donald Trump said. Let me just read you, he said, this was in 2012 when he believed, wrongly, but he did believe that Romney was about to lose to, that Romney was gonna win in the popular vote but lose in the Electoral College vote and he wrote or he tweeted, "The Electoral College is a disaster for democracy. "A total sham and a travesty "that makes us the laughingstock of the world." And on that point, I do agree with Donald Trump. (audience laughing) - Thank you, Congressman. Mister England, you have a lot to respond to there, so I guess we'll give you the floor. - I do and I'm glad to see Donald Trump support to that side of the table. (audience laughing) That's okay with me. - [Paul] I think that was rhetorical. (audience laughing) - So, yeah, I wanna respond to a few things, but I wanna talk just at the very beginning about how to think about the Electoral College, just how to think about an electoral system because I think sometimes we make a lot of assumptions, and frankly, I mean a couple of things that were stated just simply aren't true, I think helps to walk me into that. There are other countries that use electoral colleges, there are other countries that use systems that are maybe even more counterintuitive according to the rationale just described to select their chief executive. They're called parliamentary systems. India, which if you wanna look around the world and look for nations with large, diverse populations, a lot of risks of regionalism, India has, you know what they have? They have an electoral college, actually call it that. Other countries have multi-step selections of their chief executive that actually have been found, I think maybe both of us were at an MIT conference where they talked about elections a few years ago and one of the points some of those researchers have identified is that systems like France, depending on how you look at it, there are different ways to think about electoral legitimacy. But multi-stage direct election schemes actually oftentimes have less legitimacy because of that first step weeding out candidates who would have won had they made it to the final round, if you will, relative to the electoral college. So it's not even obvious that this is some outlier, actually it's obvious this isn't some outlier, right? Parliamentary systems as I mentioned are found all around the world. And when we talk about a national executive and we talk about representing a large and diverse nation, right, we're talking about something that is obviously inherently more complicated than a state legislative district or even a governor's race. So I wanna put that out there first. Secondly, this whole law school exists because we don't make decisions in the United States simply based on public opinion polls. Right? And I daresay that there's not a single person in this room who thinks that every provision of the Bill of Rights should be subject to majority will, right? That is one of the things that we value as Americans is majority will. And is our electoral process, it's not the only thing. And I often, I'll tell people, people will say, "Oh the Electoral College is not perfectly democratic." Say look, if you're upset about that, let me show you some things in the Constitution that aren't just imperfectly democratic, let me show you some things in the Constitution that say to majorities, you can never do this and you can never do that and of course, it starts in the Bill of Rights. Well, it starts before the Bill of Rights. But it's explicit in the Bill of Rights. Right? We don't say that majority will is the only thing we value as Americans, so there must be some other ways to think about a presidential election process. And I'm gonna suggest a couple of these. One of 'em I already alluded to. That is legitimacy. That is perceptions of legitimacy and also how many people actually buy into and support the winner of the election. And as I say, it is obviously when you just go and ask people, how should we run elections in the United States? Right, people tend to just have this idea about maybe how they work or how they should work. But when you dive into public opinion polling, you dive into how elections work, not just in the United States, but in other places. It is not obvious, right, that Electoral College is this outlier, there are a lot of people, majorities of people in many cases, who are upset with the way their systems work in places, like France and places like Britain and places like India. So, other questions. Fundamentally, does it work? Does it work, is it stable, does it function? I wanna come back to that with a historical story when I close. Finally, incentives. What are the incentives created by the electoral system? And by the way, I'm not gonna sit here and tell you that the Electoral College is perfect with regard to any of these. Right, I tend to agree with Winston Churchill when it comes to the idea of elections in general. He said, "Democracy is the worst way to run a government "except that every other way that's been tried "is even worse," right? There's no perfect system, I think sometimes it's easy to say, well, the Electoral College some people don't like it and people disagree with it and there's been fraud and there's been this and there's been that. Well, those things happen, fraud happens in county commissioner races. Fraud happens in state legislative races, right? The idea that fraud is something unique to the Electoral College, obviously, is just flat wrong. But what are the incentives that an electoral system creates? And when we think about national politics, one of the challenges of the Electoral College is that it's been so successful. The incentives created by the Electoral College have been so successful. I'll talk about regionalism, right, and one of the great concerns of the founders, read George Washington's farewell address. That was his big concern, right, it was regionalism. And people don't, I'll throw this out, nowadays people say, "Well, we don't have that." So why don't we have that? It's sort of counterintuitive. We used to have a lot of regionalism. I mean a lot of really nasty regional politics in the United States. Why is we don't have that anymore? And let me give you one historical example of how this played out. That goes directly to the Electoral College. I mean I'd love to hear if somebody has some other explanation for this. But think about, I don't have to have electoral maps for post Civil War American politics, right? Everybody knows. Democratic party, very strong in the South. Republican party, strong in the North, not as strong as the Democrats were in the South, but dominant in the North, right? This was the party divide post Civil War in the United States. And long story short, there were two elections where the Electoral College came into play in the obvious way. Obviously the incentives it creates are effective to some degree in every election. But 1876, the Democrats almost win. Historians have looked back at that and say, some people say, "Oh, it's a corrupt bargain." Historians have looked back at that and said, actually, the Electoral College swung the election away from the person who committed fraud, away from the party that committed fraud. If you don't want the fraudster to win, it was a right winner election, not a wrong winner election. 1888, however, when historians look at that, they see Grover Cleveland losing reelection in 1888 because even though he won the most raw popular votes, he did not win the geographically distributed majority that the Electoral College requires. What was the effect of that? People will say, "Wrong winner election." "Bad for legitimacy." "Wrong winner election." What was the effect of that? The Democrats in that election got 84% in South Carolina, over 70% in four other southern states. Right. The Democratic party coalition in 1888 is very easy to understand. Right? It was a coalition built around the deep South, cranking out popular votes in the deep South. Suppressing minority votes and suppressing Republican votes in the deep South. And I'm not saying this to make a partisan point 'cause obviously, a lot of things have changed since then. But that was how they got a raw popular vote majority. And it didn't work. The Electoral College said that doesn't work. Cranking out votes in South Carolina and in Georgia and Florida, that's not enough. You have to have better geographical distribution than that. Somehow this political party that was very regional, that could've won popular vote elections based on that regional strength had to do something really strange. Had to reach out to northern Catholics in particular. Right, that's really weird. Right, that's actually, when you think about who is supporting the Democratic party in the South in the 1880s, that's actually very counterintuitive. Why would they do that, right? Well, they notice that the Republicans were lazy, the Republicans said, we've got this thing locked down, and so we can be bigots to these new immigrants from places like Ireland and places like Italy in the North. And the Democrats said, look we'd love to keep our 84% in South Carolina, but look, we can lose. We can lose 10%, 20%, right, from the extreme if we can pick up enough votes in the North and in some of these new western states to win elections. The Electoral College creates incentive, right, that force parties not just to (mumbles) up as much intensity as they can in their strongest areas, but forces the kind of fifty state strategy that former DNC chairman talked about. I think is good for our country. And is at least something that you should weigh in the balance against all of the rhetoric about how, well, you know, we should just have a raw vote system and wouldn't that be more straightforward. I've got a lot more things to say, but National Popular Vote Interstate Compact specifically I think I'll hold that off because I suspect we'll get to that. - Right. - A lot of risks inherent in that way of trying to address things. - [Paul] We'll definitely get to that. - But, yeah, I'll leave it there. - So just so I understand it. I get the incentive not to just get all your votes from South Carolina, or in this case, it would be California. But what is the perception of legitimacy that comes from the Electoral College. - Well, so. - Seems so counterintuitive. - The test, I mean there are different ways to think of legitimacy, right? How many people are sort of happy with the election outcome? How many people voted for the winner? How many people supported the winner at the beginning? I think that was the test that where the Electoral College tended to do better than systems like the French system. - As compared to a national popular vote system, it's. - Well, the French system is a national popular vote system, right. - Yeah, I know. - And the problem there is when you have a bunch of, and parliamentary systems all have this, but, if, I mean, what's funny is people don't think about prime minister elections even in this way because it's so obviously undemocratic. Right? That people get away saying, well, we're an outlier around the world all the other countries do it this other way, because they forget that every prime minister is elected through a system that's clearly less representative of popular will than - In England. - It's a parliamentary system but we don't have a parliamentary system. - Yeah. - And that was rejected by our founders. - Well, it. - We have a president. - But it's misleading to say. - Well. - That we're an outlier when most of these other countries that we think of as functioning democracies around the world are parliamentary. - Of those countries who elect presidents we're an outlier in using electoral college rather than a direct popular vote. And again, I would challenge you to find one country that has written a constitution over the last several decades with American help that has adopted an electoral college system. - Well, India's a little older than that. - It is much older than that. Can I respond to some of this historical stuff? - I think the historical stuff's real interesting. - Yeah. - I think it would be good to get a response. - Yeah, okay. Well, let's grab the bull by the horns. The history of the Electoral College is completely intertwined with slavery and race. And the Three-Fifths Compromise plays the central role here. And if you haven't studied this in your Com Law classes tell your Com Law professors you need to spend some time with it. The Southern states took the position at the Constitutional Convention that the African American slaves should count 100% for purposes of reapportionment. Now they didn't want them to count for anything else, they didn't wanna give them the right to vote or to run for office, but they said they should count 100% that way they would inflate the power of the Southern congressional delegations. The anti-slavery Northerners said this is ridiculous. You don't allow them to vote, you're not gonna allow them to run for office. Why should they count at all? And after going back and forth they arrived at the Three-Fifths Compromise which was based on a figure that was actually in the Articles of Confederation with respect to taxation. But they came up with the Three-Fifths Compromise. What was the effect of that? The effect of it was basically to take a million slaves in the South and to count them, 600,000 of them, for the purposes of increasing the congressional delegations from Virginia, North Carolina, Georgia, Mississippi, Alabama, and so on, through the southern states. There were more than a dozen new representatives elected in 1800, the first census that took place after the Constitution was developed and they got going. Okay. This is why, as you know the Electoral College follows the number of representatives you have. So if you get a dozen extra representatives from the southern states, that's a dozen extra electors that go to the southern states. This is why Thomas Jefferson was called, was the so-called negro president because his critics said that he was elected on the power of the slave representation in the southern states. And there's a book of that title by Garry Wills, which is all about the Three-Fifths Compromise, okay. Four out of our five first presidents were slave masters from Virginia who brought slaves with them into the White House. Seven out of our first 10 presidents were slave masters who brought slaves with them into the presidency. The Electoral College has always had this Dixie accent to it, this kind of Southern accent, even after the Civil War. Even in the 20th century a number of Southerners when the Democratic Party began to move left on civil rights, a number of Southern Democrats left the Democratic party and ran as Independents, like Strom Thurmond, like George Wallace, like Harry Byrd from Virginia, in order to send a very sharp signal to the Democratic party about what the cost would be politically if they didn't keep that Electoral College coalition intact. Now, your whole presentation, of course, was based on the historical, I already, the two sides have flipped. Today, of course, the solid South is a Republican phenomenon. Now, the Democrats have been able to eat into it in Virginia and a couple of other states. But basically the Deep South from the Confederacy remains together in the party of white supremacy, which is the party of the president today, of Donald Trump. Okay, so they just switched sides which is all that you were explaining in your discussion a bit. Legitimacy, I think it's had very little legitimacy at all. I mean why do you think Donald Trump has been talking from the very first day about how there were five million people who voted illegally? He understands intuitively, instinctively, it's not a legitimate result, which is why he had to say, there were millions of people who voted mysteriously and somehow got Hillary Clinton three million more votes than he got in the presidential election. So I think everybody senses that a minority vote winner, or a majority vote loser who becomes president starts off at a huge disadvantage in terms of legitimacy. And oftentimes takes the country in directions the country doesn't wanna go. Like George W. Bush did in the Iraq war or Donald Trump and his party did in trying to repeal Affordable Care Act So. - So, what's your response to the argument? Which I think bears response that if we didn't have the Electoral College, the Democratic party would basically just rack up votes in California and New York. - Can I make? - And stop trying to represent North Carolina, South Carolina. - I want everybody to think of this question like a political campaigner. If you were a campaign manager, okay? Has anybody here ever managed a campaign? Where did you manage campaigns? - [Audience Member] South Carolina. - South Carolina, okay. Was it a statewide campaign? - Yeah. - Oh, for governor or? - [Audience Member] Oh, no, no, I'm sorry. It was representative for state (mumbles). - Okay. Did anybody ever manage a statewide campaign? Well, let's go back to South Carolina. If you were managing a gubernatorial campaign in South Carolina, wouldn't you say, let's figure out. Are you Republican or Democrat or? - [Audience Member] I am a Republican. - Okay, if you were trying to figure out where to go get votes, wouldn't you say, we're just gonna go to the counties that are majority Republican? Or would you say, let's go find all the Republican votes we can and let's try to campaign among the Independents and Democrats too? And of course, everybody understands that's how you run for statewide office. When you're in California, you don't say, I'm just gonna campaign in the two biggest cities, L.A. or San Francisco and write off the other 50% of the state. The state I know best is Maryland. You'd be crazy if you thought you were gonna run for governor of Maryland as a Democrat and say, "I'm just gonna go to Baltimore and Montgomery County, "and Prince George's County." Or, I'm just gonna run as a Republican and I'm gonna go to the eastern shore in western Maryland, and I'm gonna, I mean it just doesn't work like that. Do you know what I mean? So, I challenge the premise that any campaign manager or candidate would do anything other than go out and try to get votes everyplace the best they can. Now, if there's limited resources there will be a proportionate allocation of the money. But we've got eight congressional districts in Maryland and both parties would have every incentive to go and try to get votes in each one of them. - Okay, let's let Mister England respond. - Pollsters and consultants make millions of dollars on statewide races trying to figure out where to spend marginal campaign dollars and it's not, obviously, a question of if there are limited resources, there always are limited resources. And I mean, it's sort of hard to understand why pollsters and consultants make so much money on these statewide races in places like California, but also places like Maryland, if they're not really doing anything other than just telling the candidate where the population base is. Obviously, there's a little more going on even in these direct election systems. - Will you yield so I can respond to that? - Hang on. - Okay. - Let me get back to the history. Look the historical argument seems to come down to this, between what I said, what Representative Raskin said, is, think of it this way, right. If you had a political system set up somewhere on some island by some vicious, racist bastard and you go there 20 years or 200 years later and you look at how that system's functioning. Would you ask the question, was the guy who set this up a vicious, racist bastard or would you ask the question, is this system producing results that are better for equality or not? But look, you would ask the later question, right? You would not say, well, actually this system has produced this growing, I mean, we heard about this expansion of democratic rights in the United States of America under this system where we had the Electoral College and everything's wonderful and we talk about expanding democratic rights and all of this. And we've got a Bill of Rights written by, actually the same people who designed the Electoral College, and the Electoral College is actually just based on Congress. So if we're concerned about the Three-Fifths Compromise and all that, we should go back and look at Congress before we look at the Electoral College. But I think just, again back to how we think about these questions. I love the Electoral College because it takes me to these kind of, how do we actually evaluate this, right? Do we care more about the fact that Thomas Jefferson was a racist and a slave owner or do we care more about the fact that the reason why the Democratic party became the party of F.D.R. and the party of J.F.K. is because of incentives built into the system by the Electoral College. Thomas Jefferson didn't understand that. I'm glad he didn't, I'm okay with that. But we can understand that now. We don't have to go back and sort of be so fascinated with the American founding that we miss the bigger picture of what has happened since then. I think when you look at what's happened since then and the incentives created by the Electoral College, the system at least makes a lot more sense than the kind of ad hominem approach to. - Could I ask a question back, Professor Smith, just about the targeting race? - [Paul] Be my guest. - Well, what I'm saying is that under national popular vote there will be an allocation of resources proportionate to where the votes are. And in fact, one of the dramatic things that's taking place today is that you get 10% higher turnout in swing states than you get in safe states, where there's no campaigning, there's no offices set up, there's no TV ads, and so on. But there's huge turnout in Ohio and Florida, but much less so in California or Texas or New York 'cause nobody's telling you to go vote and nobody's organizing you, right? So there's proportional allocation and where is it? It goes to the states that just by coincidence happen to have relatively equal numbers of Democrats and Republicans, okay? That's where the targeting goes. Under a national popular vote plan, the targeting will go to where all the voters are. So everybody's part of it, every vote will count equally. The Republicans will have to go to California and try to build the Republican party and that'll be good for political competitiveness in California. The Democrats will go to Texas to look for votes there and to try to, if they get an extra 100,000, 200,000 votes there, even if they lose in Texas, those votes still count for the overall total. - So what you're saying is that there's an incentive to go to a red state for the Democrats, even if they don't get over the 50% line, but if they can get 30 or 40% that's valuable. - Yeah, but also, the Republicans take Texas for granted like the Democrats take California or Maryland for granted. We had no visits from either Republicans or Democrats in the entire state of Maryland, five million people. I'm not saying we're as big as California or we're as big as Florida, but we're big enough to have somebody come there and talk to us about what we're concerned with. The FairVote book, which you should check out, called "Every Vote Equal" talks about some of the policy distortions that take place because of the focus on the swing states and the way that there's a huge amount of federal resources that are channeled before presidential elections into Florida, in Ohio, in order to move them. And you get distortions in the right wing Cuban vote in Florida because it's a swing constituency within a swing state, and so a lot of people, Democrats and Republicans go and pander to them, even if they're representing a position that's a tiny minority in terms of what the rest of the country feels. - [Paul] Alright, so Mister England, you can respond to that. But let me ask you another question as well. What do you say to the fact that the Electoral College has worked tolerably well, 'cause most of the time it follows popular vote and then we have this kind of bizarre random exceptions which happen, 13,000 vote margins in one state or another. That's what makes the thing seem so bizarre, that it, people don't pay any attention to it until you have this essentially accidental crack up every. - Well, see. - [Paul] Sometimes, it's starting to happen more often, of course. - I mean I disagree with a little bit of the premise of the question. - That's fair. - For this reason, right. Well, I mean the problem is the incentives in the Electoral College operate in every election. But we only see, and the Electoral College decides every election, right, every election is decided by the Electoral College outcome, it's just that usually the popular vote outcome is the same. And I mean you go back to, you go back to 2000, people have said this, obviously after this last election and I think it laughable. But after the 2000 election Karl Rove said, and I think this is probably true, but impossible to prove the counter factual, that if the rules had been different, they would've ran a different campaign. - Sure. - They would've won the most popular vote, right, I mean that's obviously at least possible. - Give him the chance to do it. - If not, but that's, again, the question is, right. - Yeah. - What are those incentives that we only wind up talking about when we see this contrast, we see this difference. - Do you care that the election takes place in, at most a dozen states and usually six states. - Yeah, let me talk about that because. - [Paul] 'Cause that's important, yeah. - I mean, it is important, but again it's misleading. I have read the National Popular Vote Interstate Compact material on this targeting the swing states. And what's so funny to me, and about the whole conversation around it is, what's a swing state? A swing state's a state that tends to be politically evenly divided, right? Well, what does that mean you have in swing states? That means you have, you tend to have more swing congressional districts, potentially. You certainly have swing U.S. Senate seats, in many cases at least, right? And there's a lot more going on in our electoral system than just the presidential election and. - So you mean they're like little laboratories for the whole country? - Well. - Instead of having direct democracy, everybody vote, those states are like a proxy. - Well, I'm not defend, I'm just pointing it out. I'm just pointing out. - Oh. - There's something a little bit disingenuous about saying, the Electoral College is the reason for pork. Right? Obviously there are a lot of things going on there. I mean you and I would probably agree on things like gerrymandering that are, I think much more corrosive to our system. I'm sorry. - It's the same problem. - Yeah, well, it's related to why elections have become so close. We have much better technology, micro-targeting, and just the way campaigns are run today. But look, the fact is, I've run for office, much less successfully than you have. But campaigns are always making decisions, I mean, other than the very smallest. Look, this is part of why I'm a conservative, I'm a localist, subsidiary, federalism, push the power down, right? Because ultimately when you push the power up the whole idea of representation becomes very fuzzy and almost spiritual rather than actual in my opinion. But, the reality is that campaigns are always making decisions about who to talk to. I mean I was told, yeah, the reason you lost that election, one of the times that I ran was 'cause you tried to, I just literally told this. You tried to treat every voter equally. You didn't focus on the people who, you could've told, you could've hired a better consultant to tell you, you should focus on these people and ignore all these people, right? And this is the standard reason why first time candidates get shellacked is because they don't understand that. They wanna live in this world where I just talk to everybody, I just treat everybody equally, and that's how you lose elections, right? The fact is if you abolish the Electoral College under any system you will get a shuffling of the deck when it comes to things like pork, when it comes to which voters get focused on. You will shuffle that all up. You will not have the same political map, but you will still have a political map and it won't just be this smooth purple map of the whole country. That's not how elections work, right? That's not why Karl Rove and David Plouffe and all those guys make a lot of money, right? They make money micro-targeting Americans whether it's a presidential race or a gubernatorial race. And I just, I worry, I guess I feel like that's not the right conversation, right? There's a legitimate debate, Electoral College or not. But that's a false promise. That if you do away with it you'll have what we have in Congress, right? You'll have swing areas of the country. You're still gonna have a lot of people left behind because they. - Let me ask a different question. - Limited resources. - To change the subject a little bit. I think a lot of people have the assumption that the reason we have an Electoral College was that they were supposed to a bulwark against popular will and that they were supposed to deliberate in some way and decide that the person chosen by the majority was bad. Is there any historical validity to that at all? - That is what they assumed. - Well. - And not what they did from the very first election. - Okay if you reconstruct what was taking place back in the 18th century. First of all, there was no right to vote in the Constitution. It was not government of the people, by the people and for the people as our last great Republican would come to describe it as. It was a slave republic of white male property owners in most places. It didn't even make sense to talk about a popular vote. And they wanted to make sure that every part of the country got to participate the way it could. Now there were proposals for state legislatures electing the president. There were proposals for members of Congress electing the president. And then they ended up using the Electoral College system allowing the legislatures to come up with it in order to incorporate whatever the values of the state were. And we're remaining faithful to that purpose at this point. We're saying, let's have the state legislatures get together using their powers both to create an interstate agreement and to appoint electors as they see fit in order to say, we're beyond this and let's try a real national popular vote election. So, the curious thing is that the way it's practiced today, winner take all in the states, only three states did in the first presidential election that took place after 1789. Most states were either using the main Nebraska system, make congressional districts or they set up special presidential districts. So there's some myth out there that this is the way it's gotta be done. It's not even being done that way today, much less historically. - Right. - There's been tremendous variety. - [Paul] Do you want to comment on that? - Well, I mean just two things on the history. One is that the legislature does have the power to award the electoral votes, but if you look at the language in Article II. The electors belong to the state, right, as a polity, right, the people of the state. And then the legislature is empowered to decide how to represent them with the electors. In every system that's every been used has been ostensibly to represent the political will of that state. National Popular Vote Interstate Compact would be the first time the language in Article II has been interpreted to allow the legislature to explicitly ignore the political will of the state, whose electors they are and award those electors based on something extrinsic to the state. - [Paul] Right, but they don't have to have an election, right? - Right, that's true, but if the legislators are. - If ignoring the political will of the state is the way that it's worked most of the time. It's worked by, a lot of states used to just appoint electors, wise elders who would decide when the Constitution first was written. The first several elections there were particular people who were named electors. The fact that we've gone to majority vote in most states today, of the state is gray. But there's nothing that binds the state legislature not to say, we will be bound to choose the Electoral College slate that was pledged to the winner of the national election. - Well, it is though, even when legislatures directly appoint electors that ostensibly is representing, if there was two stage election process, right, the political will of that state. NPV is still, it's not just a different thing on that spectrum, right, it's a totally different, we're going to do something extrinsic. - That's argument that was made against states before the passage of the 17th Amendment saying, we're gonna have a popular election for U.S. senator and we'll be bound by the result. - Yeah. - Which is what the state legislatures did. People said, you can't do that, you've gotta use your expertise as state legislatures to pick the senator for the people and the Supreme Court said, no, that's, there's no problem. - So, say the National Popular Vote thing works and you get over 270. Are there, how many lawsuits are gonna be filed the next day to prevent that. What do you see as the risks to this system from operating and going forward? - You know, hey, this is America. These guys know people can come up with. - [Paul] That's what we're training them to do here. - That's right, so this is part of the solution then. Look, there are lawsuits under the current system. We saw Bush versus Gore which demonstrated the profound problems and inadequacies of the system. And we've seen the vulnerabilities as recently as 2016 of now cyberinvasion and sabotage being a possibility. So there's real problems in our elections. I'm for a national electoral commission, the kind that exists in Canada or in Mexico to make sure that we don't have political actors in charge of our elections, but we've got independent, non-partisan body doing it. But having said that, I think that this is great fertile material for law review articles for those of you interested in it, but I think there are answers to any complaint that anybody can make that this somehow defies either the founder's design or the structural design of the Constitution. And it really doesn't. And it is the way historically that we've made our way to more democratic processes in the country. - And do you have, aside from the fact that you think it doesn't reflect the original idea that each state's supposed to have a separate political will, is there something else wrong with this that makes it not workable? - Well, I mean I do think that it requires the consent of Congress because it does, it is directly relevant to federal office and how a federal official is selected. So I think a lot of the arguments made about how compact laws, jurisprudence, I think don't come to bear on this. But I mean obviously, there is jurisprudence all over the place on compact laws. I do think that issue of just whether there are any boundaries at all on the state legislature disregarding the will of the people, I think that's an issue there. But I don't, setting that aside, I think that the greater concern here, and this is an area where we're just gonna disagree, 'cause you'll probably like this scenario. But the reality is the country we live in today, right, when you have a presidential election under this system, if it's at all close, and yeah, as we learned from Twitter, close is a relative thing. What you're gonna have is, you're gonna have whoever loses, right, say Bernie Sanders becomes president in 2020, right. You're gonna have people in Texas watching a certain cable news channel that's saying, we've heard reports that in Los Angeles and Chicago there's the potential that there were tens of thousands or hundreds of thousands or however many votes you need, right, to pull the election into contention or the other way around. Donald Trump wins reelection and you've got people watching another cable news network, saying, we've heard that this happened in Texas or this happened in Oklahoma or whatever. The problem is, right, the system we have today as imperfect as it is, swing states tend to be states where you have the most political accountability by virtue of the fact that you have the closest thing to political parity, right? That you have less political accountability where you have one party control, you tend to see more. I used to work on election fraud and this is something most of the people who talk about election fraud get totally wrong. Most election fraud happens in places in one party control in primaries. It doesn't happen in these closely, yeah, anyhow. Another topic, right? - Another topic, yes. - But the problem is, right, you would have people say, well, what's my redress? How do I know this election is fair, right? And the only thing to do is to go to the politicians in Washington, D.C., as happened in 1876, and luckily that sort of worked out relatively well. And I mean the fraud didn't swing the election and any other negative effects. But look, you wanna make the presidency more important. You wanna give political power, more political power of election administration to Washington, D.C. This would create a powerful incentive to do that. I know some people think that's a great thing. I tend, again, I think subsidiary, decentralization, I think that's a safer way to respond to the Russians making it so they can hack one system. - Let me interrupt, let's sort of talk about the elephant in the room and then we'll open it up for questions. I think a lot of people, maybe some in this room, a lot of people around the country think that this has turned into a debate between liberals and conservatives, between Democrats and Republicans because the Electoral College is perceived as, in the current demographic environment, political environment in the country, more likely to elect a minority president who's a Republican than a Democrat. Let me ask you, do you think that's actually empirically true and if so, is that what's really going on here? - So I think that if you take a snapshot of politics right now, I think that's true. I think. - Is there a reason for that? - I think there is. Although let me, the point of caution here. Democrats in 2000, I think 2004. - Four. - Four. - It almost happened in reverse. - Colorado. - Yeah. - Right, in Ohio gone 200,000 votes. - Exactly. And Democrats said, we want to put on the ballot in Colorado a measure, I think after the 2004 or during 2004, to make Colorado's electoral vote proportional because they said, we're never gonna win Colorado, but we at least should get just shy of 50% because we keep getting close there. And of course, they lost. But the next election that would've affected was 2008 when Barack Obama won Colorado. Right, so, partisans are always, they're always fighting the last war, the last election, right? And they're always thinking they can game the system. I think what Republicans have tried to do in places like Michigan and Pennsylvania to jury rig the election system there to their benefit, I think is disgraceful. It also. - Why would it favor in general Republicans in the current environment? - Look, a part of the American founding was agrarianism, especially among the Jeffersonians, right. And there was, I think a recognition that the tendency of political power is that it flows into the cities, right. And the cities tend to be, you go back, we talk about Athens, the great democracy of Athens where the people lived in the city were so excited 'cause they got to go and vote on the hill and they got to survive off of all these slaves in the hoi polloi who lived round and about the city, right. And that was the tendency in the ancient world and even the tendency in the modern world. And we have a constitution designed to try to prevent that, create incentives against it. And it just happens today in American politics, right, that Democrats tend to be more powerful in urban centers and Republicans tend to draw a lot of their support from rural and suburban kind of ex-urban areas. And I mean I think that will change over time. But I do think that has just the, and then you gotta go into individual states and the way it works out in individual states, that has produced a momentary benefit for the Republicans, could flip around. - You know, I guess I have to say, I don't really understand how that's true. But you seem to agree with him, so why don't you tell us. - Well, first of all, there's nothing guaranteed about our particular party system that would suggest that one party's gonna get more votes than the other in the popular vote. In fact when I. - We're pretty strong pattern in one direction. - Well, and I'm gonna suggest why but let me just say as a matter of principle, it shouldn't make any difference. And when I introduced National Popular Vote legislation in Maryland, I was in my caucus and all these senators were coming up to me and saying, "Come on, really, who's this gonna help? "Them or us?" And I'm like, it's gonna help whoever gets the most votes. That's it. You can't jury rig that. Now at a time when one party is identified with a shrinking demographic and another party is identified with expanding demographic groups, immigrant groups, groups that have been traditionally excluded and so on, then you can see that a party, that that party is gonna be more interested in a popular election and the other party is gonna be more interested in figuring out how you jury rig the Electoral College to its favor. And that's basically I think why a lot of Republicans despite the fact that a majority of Republicans support the national popular vote when you do a poll. - Right. - And despite the fact that a lot of prominent Republicans are on its side, still a lot of the strategists are saying, let's stick with what we've got rather than try to. - Do you think that the that perception of disadvantage to the Democrats and advantage to the Republicans is going to make it tough to get any more states to sign on? - No, I think again, Donald Trump is a great example. He's somebody who says, we should just have a popular election. - He said that when he thought a Republican was gonna lose the Electoral College. - But I think he, in his inimitable way, he kind of speaks for people who are gonna bring kind of a fresh look at politics and just say it doesn't make any sense to have this system. And he's said repeatedly, whoever gets the most votes wins. I mean the thing about agrarianism, the Supreme Court addressed that back in Reynolds versus Sims and Wesberry versus Sanders, when it determined the principle one person, one vote in congressional elections and state legislative elections. And it said, legislators don't represent trees and acres or counties, they represent people. And people are gonna be the essence of what democracy is. So all we're trying to do is follow through on the one person, one vote cases to say we should have one person, one vote for the president. I mean sometimes when I debate people about this, they say, well, what about the U.S. senate 'cause the U.S. senate is way malapportioned. California gets the same number of senators as Idaho or Vermont. And I think that that's a stronger argument. But of course, the Senate is a deliberative institution. At least you're getting deliberation out of it. We only have one president. So why does it make sense ever to elect a president who's gonna represent the minority of views of Americans as opposed to the majority of the people. It just doesn't make sense. If we're gonna have a president, that president should be elected the way we elect governors, U.S. senators, mayors, members of Congress, whoever gets the most votes wins. - [Paul] I have a lot more questions, but let me let you guys participate. You've been very anxiously trying to get a question here. So why don't we start with you. - [Bobby] I'm Bobby Lawrence and I'm a candidate for the United States Senate in Pennsylvania. And I have one particular scenario that I want to lay out and I need everybody in the room to understand this. The dangers of the National Popular Vote movement. Let's say that everybody here lives in California. California's gonna vote for the Democrat. By and large your votes go to the Democrat, that's historically accurate. Now, a Republican is the national popular vote winner. That means that the 55 electoral votes that you have will be cast for the Republican, even though the majority of your state voted for the Democrat. The National Popular Vote compact assigns the power to the national popular vote winner to commending your state and remove your elected delegates and replace them with someone who will vote for the national popular vote winner. This is a double edged sword. It effects both Republicans and Democrats. The challenges that the Congressman wishes and the problems that he's laid out are accurate. How we address it, I am 180 degrees opposed to what he says. How we address it is by not winner take all states. We address is by apportionment. A number of counties, if you look at California, the number of counties, the number of cities, a portion is where it's at, not winner take all. That's the way to get more power back to your vote. - [Paul] Are you saying you would do it by congressional district, is that what you're saying? - [Bobby] The way that it is, the way that it is set up in the founding documents is that the state legislatures assign. Now, the people in the state have to lobby their state legislators to make their electoral delegates proportional to the popular vote within the state. That's the way to come to the outcome that the congressman wants. So I'm gonna ask you this folks. Are you okay with you voting one way and having all your electoral delegate votes go another way? - Alright. - Since your state. - That's something you ought to respond to, Congressman. - Yeah, that's an awesome question. - Thank you sir. Let's let the Congressman respond. - Thank you and good luck on your campaign. - [Bobby] Well, thank you. And the challenge you laid out, I agree with. - Yeah. - The way we get to solving it I just don't agree with. - Alright and let me tell you why I dissent from what you just articulated. You said how would the people of California feel if their 55 Electoral College votes, say for Hillary Clinton, were completely overridden and Donald Trump becomes president. It just happened. Despite the fact that they gave their 55. - Sir, with all due respect. - Wait, well let me finish my point. - Let him finish. - Let me finish my point. You'll get used to this in debates. You gotta listen to your opponent. Not only. - [Bobby] (mumbles) this. - That not, you've gotta listen regardless of what you think. - [Bobby] That's why we have politicians. - [Paul] Alright, come on. - 55 Electoral College votes in California were appointed for Hillary and a majority of Americans wanted Hillary and they lost it, okay? So would they be willing to trade that system for a system where the winner of the national popular vote wins, i.e. Hillary beats Trump in 2016, for a system where all of the electors go to the winner, of course, they would. That's just like the changing of the guard. Who cares whether you cast your 55 electors and you lose? What they want is to be able to have the popular will expressed. I don't think the people of California are saying, "Well, we think that our candidate "should become president even if "everybody else in America votes for the other candidate." They're not saying that. They're saying, we think that the winner of the national popular vote should win. And I was amazed at the anti-California propaganda I heard from Republicans around the country after the election saying, "Oh, well, "those millions of votes could've just been in California. "And who cares about them and they're all Democrats." Basically the Republicans are just surrendering California. I mean that's an amazing and kind of undemocratic, maybe even unpatriotic way to think about another state which is part of the United States. Basically, I've heard this argument before, it's sort of the "don't blame me, I'm from x thing "and our electors went in a futile way, another column." Nobody cares about that. What people want is for the winner to win the election. - [Paul] So, there are a lot of half measures out there that you could do along the lines of what the future senator suggested. - Could I address that? - Which is to see. - The congressional, perhaps the worst proposal of all. - [Paul] That's what I was going for. - The worst of all is to allocate electors by congressional districts. And all you gotta think about is the gerrymandering, okay? Because if you could gerrymander Congress the way that the GOP exists behind a wall of gerrymandered districts, which is why we've gotta build a big blue tidal wave in 2018 to overcome that wall. But that will translate into the Electoral College because now they're able to gerrymander the presidential election even worse than it's gerrymandered now. Ohio today has the same population as the dozen smallest states, okay? But those states have an additional, I think it's 18 or 20 electors over Ohio because of the two senator bonus you get for the Electoral College. It's your number of representatives plus the two senators. So the dozen smallest states have the same population as Ohio but they get about 20 more electors than Ohio does. - True. - That. - And it seems like the worse thing you could do is do it by congressional district not consistently. I mean, obviously. - Yeah. - [Paul] It'd be terrible if you did it to the whole country. But if you only do it in states that tend to vote blue, which is what they're. - Yeah. - [Paul] Trying to do a couple years ago. - Well, Jefferson addressed that. - That would be really. - Jefferson addressed that specifically. - But of course, some of those states, at least one of those, wait, two of those states went for Trump, right. I mean that's what's really funny about this. Colorado, the Democrats tried to manipulate it and it would've hurt them. Republicans have tried to manipulate Pennsylvania. - Michigan. - And Michigan. - Let's take the manipulation out. - Florida flipped around and hurt them, right? - Let's just have an election. Let's just have an election, that's all we're saying. - [Paul] What would you think about his suggestion which is all the states basically cast it proportional to the popular vote in the state. - Have an interstate compact for proportional. - So, well let's see. All the problems still exist then. One, the loser in the national popular vote could still win, even if you did it proportionately within each state. - Be unlikely though. - Well. - [Paul] 'Cause it would be pretty closely matched in the popular vote. - If what you're trying to get at is that, why don't we just do it? - Well, fair. - In other words. I've seen these proposals where somebody will get 8.376589 electors from a state, and another will get 4.33. - It's just the same thing as a popular vote then. - I mean, yeah, if we wanna do a popular vote let's do a popular vote. - With incentive on 'em. - Right, with incentive. Alright, you in the back and then we'll come over to (mumbles). - [Audience Member] (mumbles) - No, no, no, we're moving on to the next guy here, sorry. - Oh, I'm sorry. - [Audience Member] Congressman Raskin, thank you so much for coming out. I thought you made some really fine points. I'm not certain that the incentives for campaign strategy is one of them though. So under the current system if you're a campaign strategist you're probably looking at the function of three variables. How many people you get to come out who would otherwise sit on their couch. How many people that are on the fence that you could move over. And then the electoral size, the electoral cut of the pie, which is roughly proportional to the popular vote. So if you change that third variable, I'm not certain the incentive structure would change all that much if you're a campaign strategist. So for instance, it's still ill advised to go to New York 'cause they're solidly blue and very politically active. It's still ill advised. - All of New York? - [Audience Member] Well, I mean upstate New York is not better if you're a campaign strategist than Michigan, Pennsylvania, Ohio. I'm not certain the incentives would change all that much under that system and even if they did, why would that necessarily be a good thing? - Well, again, I'm a candidate, not a campaign manager. It'd be interesting to call some campaign managers in and say, what would you do differently in a general election if we had a national popular vote? But I can guarantee you, they will not say, let's spend all of our time in Florida and Ohio and North Carolina and Virginia and ignore 46 states. There's just no way. The Republicans would never say, let's ignore all of California, not just the Pelosi Democrats in San Francisco, but everybody in Orange County in Southern California. And the Democrats would never say, let's ignore Texas completely. There's lots, Democrats were governors and U.S. senators from Texas. In fact one way we revive real competition in the country is to move to a national popular vote. Because what happens is that the parties begin to pull the plug on particular states because they've gotta focus their resources in these randomly assigned swing states instead of developing and nurturing organization everywhere. That's why when I first introduced the NPV in Maryland, the first people to get behind it were Republicans saying, we're completely bypassed and ignored in our state. Because they know we're gonna lose, so they say, well, even if we get an extra 100,000 or 200,000 votes, what difference does it make? But in a national popular vote system, it would be a big deal. - [Paul] Right, okay. - [Audience Member] Would there be concentration in the Rust Belt, though? 'Cause people who voted (mumbles) more sensitive to change and. - Yeah. I mean I love your question because what it suggests is that the calculation is gonna change in every election and people will have different theories and they'll see what works, right? And I think every (mumbles) agree, I mean one thing I've not really heard from you, Trent, is a strong defense of the random assortment of swing states where all the resources go and the abandonment of the rest of the country. I guess you were sort of saying that you thought that they were more representative of the rest of the country. They're kind of a barometer. Is that your argument or? - No, that's not what I. I mean you do have higher political accountability, right? Closer parity, I mean any political system that's closer to 50, 50 versus 90, 10, right? The 50, 50 system is likely to have better accountability. I think that's, I mean I've lived in, now I live in a hard red state. I've lived in California. - You do. - I've lived in Washington state. I've lived in Virginia, right, and I think. - I mean Florida has very little accountability. I mean their elections are a mess. You can barely get your votes counted. So I mean. - But they had Democrats running the county election, Republicans running the state. Democrats dominated the state supreme court. - You had a competition between two corrupt groups. - Right. - I mean. - But from both parties. - I don't know. That feels like grasping at straws to me. - [Paul] Let's put in another question here. Our Republican friend here, Gil. (chuckling) - [Gil] That was fun, wasn't it? - [Paul] Yeah. (audience laughing) - So yeah, I guess everyone. - No more secrets around here. (audience laughing) - [Gil] I'm not a fan of the Electoral College actually at all and my question is for you Mister England. I don't understand what the big deal is. What's, I think you've tried to answer the question before and I'd like for you to, for simple minds like myself, what is the big deal of just getting rid of the Electoral College and going to a popular vote like he's talking about. It seems to me being simple, it's fair, it's easy, maybe even more Republican since you're conservative minded, you said maybe more conservatives in states like California and New York and those big blue states would come out because they would feel, well, my vote actually matters now. What's the big, oh my gosh, we can't do this because of this reason. I haven't caught that yet. - So. The Electoral College, I mean there are several things. One is I think that incentive that operate, and this is, I do get disturbed when I hear folks representing the national popular vote, very involved in the movement saying, you know, we've never actually sat down and thought about how this would change our election system. We can poke holes at the Electoral College. And we don't like this and we don't like that, and I agree with them on some of those things. But we've never actually sat down and war gamed out, done this sort of Federalist papers type analysis. What if we change that, what are the new things we don't like? Obviously any system's gonna be imperfect, right. Anybody asks you for any change, the burden of proof is on them. And that's an obvious process to go through. I think that over time, right, it makes regionalism and radicalism somewhat more likely in our politics, right. We have a, I mean I think arguably the last two presidents have been probably further at the ends of the political spectrum in opposite directions, right. And one person saying people who claim to God, guns, or whatever the line was, right. And the other person saying, yeah, I want those votes. And yet still we don't have really regionalism, right. We still have people going to the Rust Belt and that kind of relatively. - Wait, you don't think we have a red state, blue state divide in America under the Electoral College system? If you run for president today, now this is serious business. When you run for president today, what you're doing is saying, I'm gonna get these red states, I'm gonna take them for granted and I'm gonna go for these narrow band of purple states. Or I'm going for these blue states, I'm gonna take them for granted, and this narrow band of purple states. That is all about regionalism. I mean it just strikes me as comical that the argument you would come up against the national vote is regionalism when this whole system is based on regionalism and regional allocation of the Electoral College. - It's based on states. But states are not regionalism the same, I mean again, that's why I give the 19th century story, right. Which is again it's true, it's sort of obvious, right. I mean the powerful incentives built into the system for the Democratic party to say, we don't, we'll let the extreme elements in our party leave us so that we can reach out to people who've been left behind by the other party. I mean that incentive is in play in all these elections. And it's not just about the presidency. It's about what those incentives are that trickle down in the system. I think those are good things, right? I think you lose, well, clearly, you completely lose those incentives in a direct election scheme. You also lose the effect that, I mean today, and there's a downside to this, for sure, but there's an upside, of the fact that states are like watertight compartments in an ocean liner when it comes to elections. States administer their own elections. States are able to experiment with election administration within the bounds of federal civil rights laws. Some states vote entirely by mail, some states vote mostly at the polls. Equal protection laws do not lap over or equal protection does not lap over state boundaries. You go into NPV and you create a need for, I think, a national election administration, more centralization, more control of presidential, by presidential appointees of future presidential election. I actually think that's very frightening. I mean I don't, I'm not a progressive. I don't think that history just always gets better. Actually look at the beginning of the 19th century and we actually became less democratic from the Constitutional period into the 1840s, right. That's actually not, it's not true that the story just always goes in one direction. I think we can actually make mistakes and I don't wanna do that. - [Paul] We have a question over here. - [Audience Member] (mumbles) since I was born. I'm not quite sure I guess ultimately what is the best presidential system, but I'm more concerned not with what's up with campaigns, not with what's up with candidates, but what's up with voters. This whole we the people thing. I ran in Bayonne, New Jersey as a Republican. I was in the Democrat's spot on the ticket. But because people do this, I don't know, label voting, I beat the mayor of Bayonne. (laughing) Scary. I mean, what can we do in a voting system to make people think more (mumbles). I think it's kind of disingenuous to say you campaign only one place, especially with the internet and things like that, that the responsibility on the voter to find out what's going on. It's not all on the campaign, it's not all on the party. And I think that if we start doing that we stop having me going into a race and being (mumbles). - Okay. Alright. - Well, I think it's an awesome point. I mean, what the system owes the people is an electoral process that makes everybody's vote meaningful and valuable. We can't guarantee they're gonna get motivated and go out do it. That's what parties are for. That's what organizations are for. But what we have now is a structure which systematically demobilizes and demoralizes large numbers of voters. And by the way, in Texas, it's not just hundreds of thousands of Democrats who don't turn out. It's hundreds, thousands Republicans who also know their vote isn't really needed anymore. And it's the same thing with Democrats in California. They're like, well, we know we're blue, why do we need to turnout? I mean, hundreds of millions of dollars are spent in every election. Everybody's gotta vote, do your civic duty, patriotic duty, and still we end up with 55 or 60% of the people voting. Why? It's built into the system. Let's have a system where every vote really does count. And I betcha we're gonna see dramatic increases in the number of people going out to vote. Of all parties and Independents and people from left to right, north to south. National popular vote has been passed in California, in New York, in Vermont, in Hawaii. I mean it's picked up tremendous support around the country. And there's just so much going on it's hard to get people to focus on structural change, but that's why. For me it was worth it to come out and talk to you guys because what we need is the young people, especially those who are in law school and college who are studying this stuff to take up the cause. Because we really can move this and make it happen. We're more than halfway there now. - I mean that just can't be right because I mean, turnout has been trending down. We've had periods of very high turnout in this country with an Electoral College. We've had periods of very low turnout in this country with an Electoral College. And when you look at the states that traditionally have the highest turnout, some of them happen to be swing states in some recent elections, but a lot of them don't. They have cultures of civic participation. New England states have tended to be, Maine and New Hampshire whether they're a swing state in that election or not have tended to have extremely high participation rates, right. I just. - But do you agree that there's about a 10 point difference between the swing states and the safe states? I mean I can send you the stuff. - Pretty true on that. - Or would it change your view if you were to learn that? - Well that's, I've looked at some of that research. That's not exact, when you actually disaggregate the states and look at, I mean, there's clearly some more things going on. You have swing. - Fundamentally not a value for you that everybody participate. And I think it is a value that everybody participate, that we get everybody involved. So we've gotta set the incentives up in such a way that everybody's got an incentive to go and vote. - I will say it this way. I would prefer a system where everybody participates, but I don't think voting is a self-esteem exercise for the pollist. I think that what's valuable even about elections, right, and this goes back to my very first point about the Bill of Rights, right? We do not value majority will in this country uber alles. Right, that is not an American value, it's not a constitutional value, it's not taught in this law school. There are other things that we also value. Look, I mean if people who are racist are too lazy to get out and vote, I think that's great. I have no problem with that, I don't want them to turnout and vote. Right, I mean I actually. - What if they stop other people from voting? - Well, and I have a huge problem with that. Right, so. - Well, that's been the American history, not the racist not being politically engaged, but they use their political power to stifle. - But see now you're agreeing with me, right, which is that look, it's not just about majority rule over all, there are other things which are valuable. - But I agree with that. If you look at the Constitution, there are lots of values that are expressed. And one of the values expressed in the Bill of Rights is the protection of individual freedom. And (mumbles) absolutely right. But when you look at elections, everything from the way the Supreme Court counts its votes, to how we generally pass legislation in the House and the Senate. I understand there's exceptions for treaties and impeachment and so on. But in general, the majority prevails in elections across the country. That's how we elect mayors and governors and senators. And the fact that you're pretending it's something else strikes me as off point. - That's not the most, I mean what's the most important election in the U.S. Senate and the U.S. House of Representatives? It's selection of leadership, right? And is that based on, right, I mean that is a. - And that's a majority vote. - It's a majority vote of the people who are seated. It doesn't, it's a two step election process. It's exactly like the Electoral College, right? When people sit down in the House of Representatives, they don't say, well, I won by 60% and you won by 55%, so we're gonna weight our votes that way, right? The Speaker of the House is elected through a two step process, like the Electoral College. Majority leader of the Senate through a two step process, like the Electoral College, right. I mean every majority vote in the House and the Senate is scheduled by leadership or selected through a system just like the Electoral College. Again I can understand why people have problems with that, but it calls up a deeper question than let's just tinker with the Electoral College through an interstate compact. - The president of the United States, I think, at least in the public imagination, is someone who represents the people of the country. And they even say about Trump despite the fact that he clearly lost the popular vote, that he's the president of the people. They don't say he's the president of the Electoral College. So I think we gotta go one way or the other. I mean, either we put him back in his place or any president back in his or her place and say, all they represent is the Electoral College or if they wanna be president of the people, they should go and run in the popular vote. - Let me bring up another practical question that keys off the point you made very early on, Congressman about how it makes a Florida recount catastrophe less likely. And the point you made about how the majority vote rule would kind of create a hydraulic pressure toward a national administration of the electoral system. One argument that I've seen made against a popular vote system is in the unlikely event we do have a very close national election, then every single precinct around the country has to be recounted and you have this disparate group of abusive, corrupt people around the country looking for votes to try to, so that. - But that's not right. - Their states can be. - There would still be state election laws and there would only be recounts if it's activated under state election law. But look at what the difference is. So take 2000. - But if it's less than 1% than everywhere in the country would be active. - Well, but then that's true today. If you had a 1% result in 50 states today, you'd have 50 recounts automatically. - But this doesn't have to be in every state. Just the total has to be 1%. - Well, right, but that's my point, okay. So if you go back to 2000, it was a 537 vote difference in Florida which determined the election. Had the Florida supreme court had its way, and there'd been a real recount, remember then was shut down by the Supreme Court's decision in Bush versus Gore, it might've gone the other way. It could've been 500 votes for Gore instead of 500 votes for Bush and that would've decided the election. If you went to the national popular vote, Gore beat Bush by around 600,000 votes. So it is a law of electoral arithmetic that when you broaden the pool, you are extremely unlikely to get ties and one vote differences like we just saw in that state legislative race in Virginia. Where you get a tie. So it doesn't make it impossible, but there's a number which is like one over 48,000 or something like that that you get something like a tie and you would. - I mean a question is, what is a tie? In a national vote, you might make an argument that 50,000 is a tie. That people would start recounting everywhere in the country. - But that's not how the national popular vote works. Because the minute, all of the states will certify to the national vote count commission what their state vote was under state law which is what they do now. Once it's certified, the votes are tabulated and added up. And even it's close as an election goes for president, like 600,000 in 2000 which I think was the closest we've had, closer than 2016 which was three million for Hillary. Then you wouldn't, it would not automatically trigger any recount. It would have to be a recount in a state if that remained their state law that it was so close. And maybe you shift a few hundred this way or that. - But this is one of the flaws in national popular vote. I mean not to say it's not fixable, but is a challenge of trying to this through an interstate compact, which is. I mean the flip side of that is you could have an election where the winner is clear, but the margin in the state .2%, and so under state law it triggers an automatic recount as if that state's electoral, if that state's intrinsic vote was relevant, right. Obviously that's not a feature of this system. That's something that would have to change. - It's not definitive, it's relevant, but it's not decisive. - But and the flip side too, right, I mean if you have an election, we've had, I think, the closest president election was just under 11,000 votes. And that goes back a ways. - That was a long time ago. (laughing) - But we've had, I think 1960 was the closest in kind of the modern era. We've had elections that are close. Obviously there seem to be more allegations of fraud today than there probably were 20 or 30 years ago. - Oh no. - Okay. (laughing) There are a lot of allegations of fraud. Well, I mean, this latest one, five million votes, seemed to kind of take the cake. But right. - That was just a joke. - And he won. - But look, there are a lot of things in election administration that NPV does not change, that would need the change. One of the realities of elections is that states issue Certificates of Ascertainment that actually are their official statement of the popular vote results. That would be operative under NPV, but they're not necessary under the system today. They really should be completed by the time the Electoral College meets in a state. But that doesn't happen. Somebody who's doing some preliminary research on this told me about a dozen states do that in time for the last election. I mean there's a lot of mechanics behind the scene that NPV, like recounts, like the Certificates of Ascertainment. Right, I mean the way this would work is you would have 51 state and D.C. election officials who would be certifying the national popular vote total based on their Certificates of Ascertainment sent from the other 50 jurisdictions. And I mean again, what happens when you have a big outcry in Texas, people saying, you can't accept that from Illinois because we say something on the TV that said something's corrupted going on there. Or people in Maryland say, you better not accept that Certificate of Ascertainment for Texas, 'cause we saw that there was some vote suppression there. Right? I mean there's a, partly because this is not a Constitutional amendment, this does not actually remake the system, It leaves the Electoral College and overlays it with something trying to produce exactly sort of opposite result. Yeah, there are a lot of challenges. - Let me squeeze in one more question here. You've been patient. - Okay. Representative Raskin you mentioned earlier the Electoral College might pervert areas like policy considerations like the Cuban embargo has been persistent for 60 years because of (mumbles). What about other structures that we use to select the president like the primary schedule. The fact that Iowa votes first seems to leave us with the corn subsidy or are you also in favor of cleaning? - Yes, I'm totally with you on that. I think that we should alternate and take turns being first. I don't see why Iowa and New Hampshire, which happen to be demographically very unusual states should always be the ones that do the winnowing out for the rest of the country? Why don't we take turns doing it? - [Audience Member] Why not just go at once? - Well, I'm up for that too. All of which is to say, none of this is written in the Constitution, much less in the Bible, much less in people's hearts. We can experiment with the way we're doing it, so we get a more responsive and transparent and accountable system. I mean it's really, I mean New Hampshire gets to be both the first primary and it also happens to be the only one of 12 small states that's a swing state. So they really get disproportionate attention. And more power to them. But I think some other small states would like to have the same opportunity. - [Audience Member] So you are a member of your party have you been asking the Democratic National Committee to broker some kind of truce with the GOP to schedule state primary elections together? Like you have been pushing legislation for the national popular vote. - As a member of Congress, I don't think I've done anything about that yet, but as a member of the board of FairVote, I've been pushing that for a long time. And I definitely will do that. But I think that the national popular vote, I think you're making an excellent point, which is the national popular vote will lead to people trying to talk about how do we modernize our elections. I mean we're way behind the rest of the world. We're way behind Canada and Mexico which have these national electoral commissions. All we've got is the Federal Election Commission which is broken and dysfunctional and only deals with campaign finance. - Or the Election Assistance Commission that does very little. (laughing) - Or the Election Assistance Commission which my friends in the GOP have voted to defund. - Right. - And to get rid of. They wanna turn the clock back at a time that we really need to be investing in the electronic security of our elections. - Right. - So I'm glad we can end on something where we kind of sorta mostly agree, which is, and which should be mentioned in this context. I mean a lot of the problems that people recognize in presidential elections come from the nominating process. They don't come from the Electoral College. And I would suggest a slightly different solution. Having actually gone to New Hampshire and campaigned as a volunteer for a presidential candidate 18 years ago. There is something very beautiful about that process, taking some of our most self-important politicians and forcing them to wander around in Dunkin' Donuts in very cold weather. I like that a lot actually. And again, I talked about smallness, right. I think the better solution, maybe we can build agreement on this, would be to simply have a process that starts with the smallest population states and works its way up. Because I force maximize the amount of retail politics that goes on. - Early on. - In selecting the president, rather than doing it randomly. I mean that actually if you think about it mathematically, it maximizes the likelihood of every state having a role, right, because the big states have the most opportunity to have a role if you make them go last, right, they still. I think that's a solution, but I'm glad. - Well, one caveat to that. - Yeah. - Is that the smallest population states are not necessarily the most demographically representative states. And Iowa and New Hampshire are good examples of that. I think they've got among the smallest African American populations. - Right. - In the country, maybe a little bit better with the Latino or Asian American population, but not much. - Yeah. - And certainly nothing like what the national average would be. So, that's another thing that we've just sort of kind of lunged into or just kind of accidentally or adventitiously embarked upon. It doesn't have to be that way. And the framers themselves were adamant about this. Jefferson said he deplored the sanctimonious reverence with which some people treat the original design of the people who happen to be founders. And he said instead of availing themselves of their own experience, the people who wrote the Constitution and set up the the original institutions, were just like us except they didn't have the benefit of the experiences that we have. We know more than they do about our history and we can make things a lot better. - Okay, on that note, I think we have to cut this off. But let's thank our two wonderful speakers. (audience applauding) Really appreciate it. Thank you all for coming. - Excellent work. - Thanks a lot. - [Audience Member] There's a reception upstairs in the floor atrium for about 45 minutes to an hour.