Transcripts For CSPAN Federalist Society Debate On The Elect

Thank you to the federal society for hosting this debate at. Im delighted to be here for the question, should the Electoral College be abrogated . Electoral college choosing a president. In their respective states electors choose wedding for president and Vice President. Electoral college would provide Vice President Alexander Hamilton wrote in federalist 68 that the Electoral College would provide a practicable obstacle to cabal intrigue and corruption. He said that it would interpose capable men of discernment for deliberation over the selection of the president. Moreover, hamilton thought the system best designed to prevent tumult and disorder. Debates about the Electoral College once again emerged over the desirability of our constitutions method for selecting the president. So this debate is an important one about our republic. And about our constitutional form of government. It raises questions of principle. What are the values to be promoted in a democratic republic . In a federalist form of government . What precisely does the constitution require of electors . And how far can states regulate what their electors do . How do concepts of voting rights, such as oneman onevote, impact these questions . In addition to the constitutional requirements, political principles debates over the Electoral College are invariably also about practical concerns for democratic accountability, for corruption, for promoting the values of a constitutional republic. For our debate today, we have two eminent scholars who i will just briefly introduce. Debating in the affirmative, we have lawrence lessig, the royal furman professor of law and leadership at harvard law school. Hes the author of many books and articles on government , intellectual property and technology. His recent scholarship has focused on political and other forms of corruption. Professor lessig ran for president in 2016. He is the founder of equal citizen, a nonprofit with a seemingly simple mission, to fix democracy by establishing truly equal citizenship. Arguing in favor of the Electoral College, is steven sachs, who is a professor of law at duke law school, where his research focuses on civil procedure, constitutional law, legal interpretation, and legal history. He is a regular blogger in the where he has written about the Electoral College. Our format today is simple. Professors lessig and sachs will each give an Opening Statement which we will follow with some responses and discussion, and then open it up to your questions. And as excited as you may all be for this debate, we will not be putting the question to a popular vote. [laughter] so with that, professor lessig. Prof. Lessig thank you so much, judge rao. And i am grateful to the Federalist Society for entertaining this debate. I hope it is more a discussion. You know that in the middle of this presideial campaign, we have had many candidates talk about the question of the Electoral College. It is surprising that this issue has attracted more heat than light. One of the only issues in the president ial campaign where that might be said. [laughter] so what i want to do is to move beyond the pyrotechnics of this populist question, and focus on what i think is a really hard and important question we need to resolve. I am going to propose a solution that i do not believe anybody should oppose, at least on principle. To get to that solution, i am going to go through three steps. I am going to talk about what the Electoral College is. Not that you dont know what it is. But the critical elements that i think we have to keep in focus. Second, what i think is wrong with it, given the characteristics that i have identified. And number three, how to fix it. So what is it . I think it is important to identify three critical structural elements that define the characteristics of the Electoral College. First, it is statebased, or at least states plus the district of columbia. Statebased, in the sense that the elections are run in the states. The calculation is to determine who gets the Electoral College votes for that state. Number two, it is essentially winnertakeall in the states. Essentially, maine and nebraska have a partially winnertakeall system. But under a winnertakeall system, if you get just one vote more than everybody else in that election, you get all of the Electoral College votes in that state. And then number three, it is elector driven. It is driven in the small sense that if you get two thousand two hundred and seventy electors, you win the contest. But it is electordriven, in the sense that electors are people. They play a critically Important Role in deciding how those votes get cast. Now, it is important when you think about these three elements, to identify which of them is actually in the constitution. Plainly, the statebased character of the Electoral College is in the constitution. Thats its design. But winnertakeall is not in the constitution. Winnertakeall developed just after the jacksonian period to be the default way in which electors would be allocated. There was a race to the bottom or race to the top, depending on how you conceive of it, as states began to adopt winnertakeall. When it first started, jefferson was completely outraged that this is the way electors would be allocated. But it was an innovation the states imposed on the structure the framers gave us. And number three, it really is elector driven, in a sense that i want to describe very briefly because im a little bit conflicted on this question. Im the lead counts in a pair of cases that the Supreme Court would decide whether to grant cert on friday or to adjust the to address the question whether electors can be legally bound to vote the way the state wants them to vote. In baca the tenth circuit wrote a 120 page opinion saying that no, they could not be bound. The washington Supreme Court an elected Supreme Court of course concluded that yes they could be bound. But i think it is obvious im going to even say here in the Federalist Society should be obviously clear that electors cannot be bound by law. They are constitutionally free theyre constitutionally free because while the state has the power to appoint the power to appoint does not carry with it the power to control the performance of the office to which you are appointed. Just ask any president when he or possibly some day she, reflects on what Supreme Court justices theyve appointed. The electors are quote electors. They are not agents or delegates or clerks they are people who like electors choosing who the representative or senator will be exercise a constitutional discretion. The Supreme Court has said they exercise they perform a federal function. If i had any courage i would write a brief in the Supreme Court that was one page long it would say youve said they exercised a federal function. Can a state control some entity exercising a federal function the answer is no since the supremacy clause has been part of our design. Can a state penalize somebody for exercising a federal function in the way the state doesnt want them to exercise the federal function the answer is no, not since mcculloch. So the point is electors are this is a critical element of the design the framers have given us. We must continue to reckon with today okay. So these three elements can be judged independently. And heres how i judge them. So the fact that electors are constitutionally free is potentially catastrophic in the current climate of our democracy. If we imagine a scenario like 2000 where a couple votes determined who was the president. And leading up to that election it is been reported by jesse , jesse wegman quoting articles from the times that have been denied and i do not want to assert the truth so im just going to report what was said. Leading up to that election, the George Bush Campaign thought that they would win the popular vote but lose the Electoral College. And they were developing the argument at that time for trying to persuade electors to vote with the popular vote and against the election. My view is that if in fact that happened, if two electors switch their vote, and switched the result of the election given the current idea current context of our democracy that would be an extremely difficult thing for the nation to accept. The second feature that it is winnertakeall i think is really awful in a way that i want to describe. And the third feature, im gonna get in trouble with my liberal friends, but the third feature that in a state based in my view is okay or at least lets say it is good enough for government work. It is a design feature and not a flaw. So im going to describe a solution that doesnt try to take that away okay. So the fact that this is constitutionally compelled means that if you wanted to fix the problem of elective freedom it is going to require Something Like an amendment. But i want to start by focusing on the winnertakeall feature because i think thats the core to understanding the problem with the current scheme. Okay. So whats wrong with winnertakeall . Theres an obvious logic to winnertakeall, a political logic. And the political logic is that the only states that matter in a winnertakeall system are the socalled swing states. So most of america thinks that this is the country that elects our president but of course it is this country that elects our president. The so called swing states of america, in 2016, 95 of candidate appearances were in these 14 states. 99 of Campaign Spending now the thing about those swing states is that they are not small states. They are notoasted slave states. They are not especially intended states. They are swing states, meaning theyre sufficiently purple to be states that could go either way. And the logic of campaigning is you only waste your money in places where the result could go either what now there are two important conclusions that follow from this logic of swing states. Number one is to recognize no framer ever planned or intended or thought about a system that would be controlled by winnertakeall in these swing it wasnt what they were states. Conceiving of when they design the Electoral College. And number two the swingers dont represent america theyre older theyre whiter their they are older. Their industry is kind of late 19th Century Industry there are seven. And a half times the number of americans working in solar energy as mine coal but you never hear about solar energy in a president ial election because those people live in texas. And in california you hear about coal mining because coal miners are throughout the swing states. So what this means is the entity electing our president is not representative of america which means in this sense it is an unrepresentative of president. And the logic of that fact drives the candidates to appeal to swing state america over the rest of america. This fantastic book by doug greiner and Andrew Reeves is an extraordinary empirical analysis of what happens in president ial politics and president ial administrations as they think about this dynamic. And what they show is that spending gets bent. And policies get bent. To benefit the swing states over the rest of the country who , that does not have the same power that the swing states do. In my view this is the problem , of the Electoral College. Not the one out of every nine president s problem that has produced president s who are not actually chosen by the majority of voters. Not the one out of nine problem. The every election problem. Because in every election the dynamics of this system drive the candidates to focus on an unrepresentative slice of america in order to get them elected as the president of america. Okay. So, how would you fix this . Well if these are the elements , that need to be fixed the easiest fix is something called thats a compact where when 270 electoral votes have agreed to this compact. They agree to pledge their electors to vote for the winner of the National Popular vote. That compact would solve the problem. Ke all because it would essentially be oneperson onevote. And everybody would have an incentive to campaign wherever they could get a vote. It is not any more important in swing states versus any other place. I think it likely solves the electoral freedom problem because it would guarantee that the winner has at least 270 electoral votes. And then they get whatever other electoral votes they would get from states that are not part of the compact creating enough of a buffer never to make it dangerous that one or two or three electors switching sides could actually affect the final result. But what the National Popular vote compact does is its surfaces the problem of a National Election run through statebased administrations because this count for the National Vote is being produced by 51 separate jurisdictions that have separate rules about who gets to vote or how they get to vote or what the techniques for voting are. So in my view, this system is constitutional. It is not clear in my view whether it is stable. We now see colorado trying to withdraw from the compact. But the compact as of right now if it needs 270 votes has 196 pledged and 113 in play. So it is a feasible possible what we could think of as the easiest fix. But what i want to do in the ten seconds ive got left is to kind of think beyond this obvious hack to what we could call the best fix or at least a politically possible fix that i think we all should be focused on. And the fix has two elements. The first is to say were going to keep the allocation of votes as it is. Every state gets the same number of votes as they have electors right now. So small states get a benefit over large states. But the second part which is kind of hard to include in a tweet, but here it is. This is a system that says the top two get the electoral votes allocated in a fractional proportional way at the state level. If the state of montana votes 35. 4 for the democrat which is what they did in 2016 then they democrat would get electoral 1. 062 votes and so on throughout the country. And the point is the dynamic that that would produce would mean that every state in a sense was in play. And candidates would have an incentive to be campaigning anywhere there was a vote. Every vote in the sense would count. So this solution you can imagine fixing in an amendment like this. The first part of that amendment would address the electoral freedom question. So it directs that electors would vote as state law directs. The second part would look like this. It is a little bit of a bear but it is not hard when you break it on. So the first part says it is not going to affect the current election or any election within 24 months of the amendment being considered. The second part says the electoral vote shall be divided the twoonally between persons receiving the most votes within the state as determined by the method of tallying votes chosen by the state. So a state could choose rankchoice voting as a way to figure out who the top two people are. Or it could just say the top two people, it is up to the state. And then finally with fractions calculated to all significant digits. So that means that essentially it is as if it were tallying the individual votes. This plainly fixes the electoral freedom problem because it , directs electors vote as state law directs. It solves practically the winnertakeall problem because it effectively makes every vote , matter, almost equally. Now small states keep an advantage yet it turns out that thats effectively politically neutral because small states are equal in a partisan sense between republicans democrats. Those bottom 10 states are five blue states and five red states. So even though the thumb isnt a scale to benefit them it is a benefit doesnt have a partisan valence to it. And finally it embraces the statebased model of the framing design because it allows each of , these states to run their elections however they want but they resolve it just at the question of the electoral votes as the electoral votes are concluded okay. So ergo. And it is not really appropriate for ago but every debate needs an ergo somewhere in it. [laughter] no one i think should oppose this kind of solution this is the lodge gossiped solution updated a little bit. No one because no one i think can defend the intended the intent of the existing system. The existing system was intended by nobody. It has no purpose relative to any democratic principle that one can articulate no one has defended its basis. And if were going to have to fix that. If the electoral freedom problem crates a strong motive. If the Supreme Court declares that electors are free to actually address the problem. It, i get that is a big if. But if we need to fix it then we too. Fix this we should create a representative president elected by all of america. And the question for my opponent is who could be against that . [laughter] [applause] judge rao professor sachs. Prof. Sachs thank you very much to the organizers for having us, professor lessig. And to judge rao and thank you to all of you for sharing your lunch time with us. I do oppose that. And im going to engage in the pyrotechnics that professor lessig warned about. I think the Electoral College is pretty good. I recognize thats a stirring proclamation. I know the folks in the back from cspan are glad they have cameras to record that someone thinks the Electoral College is pretty good, but i think it is good enough for government work. And it is good enough to be worth keeping now in defending the Electoral College<\/a> be abrogated . Electoral college choosing a president. In their respective states electors choose wedding for president and Vice President<\/a>. Electoral college would provide Vice President<\/a> Alexander Hamilton<\/a> wrote in federalist 68 that the Electoral College<\/a> would provide a practicable obstacle to cabal intrigue and corruption. He said that it would interpose capable men of discernment for deliberation over the selection of the president. Moreover, hamilton thought the system best designed to prevent tumult and disorder. Debates about the Electoral College<\/a> once again emerged over the desirability of our constitutions method for selecting the president. So this debate is an important one about our republic. And about our constitutional form of government. It raises questions of principle. What are the values to be promoted in a democratic republic . In a federalist form of government . What precisely does the constitution require of electors . And how far can states regulate what their electors do . How do concepts of voting rights, such as oneman onevote, impact these questions . In addition to the constitutional requirements, political principles debates over the Electoral College<\/a> are invariably also about practical concerns for democratic accountability, for corruption, for promoting the values of a constitutional republic. For our debate today, we have two eminent scholars who i will just briefly introduce. Debating in the affirmative, we have lawrence lessig, the royal furman professor of law and leadership at harvard law school. Hes the author of many books and articles on government , intellectual property and technology. His recent scholarship has focused on political and other forms of corruption. Professor lessig ran for president in 2016. He is the founder of equal citizen, a nonprofit with a seemingly simple mission, to fix democracy by establishing truly equal citizenship. Arguing in favor of the Electoral College<\/a>, is steven sachs, who is a professor of law at duke law school, where his research focuses on civil procedure, constitutional law, legal interpretation, and legal history. He is a regular blogger in the where he has written about the Electoral College<\/a>. Our format today is simple. Professors lessig and sachs will each give an Opening Statement<\/a> which we will follow with some responses and discussion, and then open it up to your questions. And as excited as you may all be for this debate, we will not be putting the question to a popular vote. [laughter] so with that, professor lessig. Prof. Lessig thank you so much, judge rao. And i am grateful to the Federalist Society<\/a> for entertaining this debate. I hope it is more a discussion. You know that in the middle of this presideial campaign, we have had many candidates talk about the question of the Electoral College<\/a>. It is surprising that this issue has attracted more heat than light. One of the only issues in the president ial campaign where that might be said. [laughter] so what i want to do is to move beyond the pyrotechnics of this populist question, and focus on what i think is a really hard and important question we need to resolve. I am going to propose a solution that i do not believe anybody should oppose, at least on principle. To get to that solution, i am going to go through three steps. I am going to talk about what the Electoral College<\/a> is. Not that you dont know what it is. But the critical elements that i think we have to keep in focus. Second, what i think is wrong with it, given the characteristics that i have identified. And number three, how to fix it. So what is it . I think it is important to identify three critical structural elements that define the characteristics of the Electoral College<\/a>. First, it is statebased, or at least states plus the district of columbia. Statebased, in the sense that the elections are run in the states. The calculation is to determine who gets the Electoral College<\/a> votes for that state. Number two, it is essentially winnertakeall in the states. Essentially, maine and nebraska have a partially winnertakeall system. But under a winnertakeall system, if you get just one vote more than everybody else in that election, you get all of the Electoral College<\/a> votes in that state. And then number three, it is elector driven. It is driven in the small sense that if you get two thousand two hundred and seventy electors, you win the contest. But it is electordriven, in the sense that electors are people. They play a critically Important Role<\/a> in deciding how those votes get cast. Now, it is important when you think about these three elements, to identify which of them is actually in the constitution. Plainly, the statebased character of the Electoral College<\/a> is in the constitution. Thats its design. But winnertakeall is not in the constitution. Winnertakeall developed just after the jacksonian period to be the default way in which electors would be allocated. There was a race to the bottom or race to the top, depending on how you conceive of it, as states began to adopt winnertakeall. When it first started, jefferson was completely outraged that this is the way electors would be allocated. But it was an innovation the states imposed on the structure the framers gave us. And number three, it really is elector driven, in a sense that i want to describe very briefly because im a little bit conflicted on this question. Im the lead counts in a pair of cases that the Supreme Court<\/a> would decide whether to grant cert on friday or to adjust the to address the question whether electors can be legally bound to vote the way the state wants them to vote. In baca the tenth circuit wrote a 120 page opinion saying that no, they could not be bound. The washington Supreme Court<\/a> an elected Supreme Court<\/a> of course concluded that yes they could be bound. But i think it is obvious im going to even say here in the Federalist Society<\/a> should be obviously clear that electors cannot be bound by law. They are constitutionally free theyre constitutionally free because while the state has the power to appoint the power to appoint does not carry with it the power to control the performance of the office to which you are appointed. Just ask any president when he or possibly some day she, reflects on what Supreme Court<\/a> justices theyve appointed. The electors are quote electors. They are not agents or delegates or clerks they are people who like electors choosing who the representative or senator will be exercise a constitutional discretion. The Supreme Court<\/a> has said they exercise they perform a federal function. If i had any courage i would write a brief in the Supreme Court<\/a> that was one page long it would say youve said they exercised a federal function. Can a state control some entity exercising a federal function the answer is no since the supremacy clause has been part of our design. Can a state penalize somebody for exercising a federal function in the way the state doesnt want them to exercise the federal function the answer is no, not since mcculloch. So the point is electors are this is a critical element of the design the framers have given us. We must continue to reckon with today okay. So these three elements can be judged independently. And heres how i judge them. So the fact that electors are constitutionally free is potentially catastrophic in the current climate of our democracy. If we imagine a scenario like 2000 where a couple votes determined who was the president. And leading up to that election it is been reported by jesse , jesse wegman quoting articles from the times that have been denied and i do not want to assert the truth so im just going to report what was said. Leading up to that election, the George Bush Campaign<\/a> thought that they would win the popular vote but lose the Electoral College<\/a>. And they were developing the argument at that time for trying to persuade electors to vote with the popular vote and against the election. My view is that if in fact that happened, if two electors switch their vote, and switched the result of the election given the current idea current context of our democracy that would be an extremely difficult thing for the nation to accept. The second feature that it is winnertakeall i think is really awful in a way that i want to describe. And the third feature, im gonna get in trouble with my liberal friends, but the third feature that in a state based in my view is okay or at least lets say it is good enough for government work. It is a design feature and not a flaw. So im going to describe a solution that doesnt try to take that away okay. So the fact that this is constitutionally compelled means that if you wanted to fix the problem of elective freedom it is going to require Something Like<\/a> an amendment. But i want to start by focusing on the winnertakeall feature because i think thats the core to understanding the problem with the current scheme. Okay. So whats wrong with winnertakeall . Theres an obvious logic to winnertakeall, a political logic. And the political logic is that the only states that matter in a winnertakeall system are the socalled swing states. So most of america thinks that this is the country that elects our president but of course it is this country that elects our president. The so called swing states of america, in 2016, 95 of candidate appearances were in these 14 states. 99 of Campaign Spending<\/a> now the thing about those swing states is that they are not small states. They are notoasted slave states. They are not especially intended states. They are swing states, meaning theyre sufficiently purple to be states that could go either way. And the logic of campaigning is you only waste your money in places where the result could go either what now there are two important conclusions that follow from this logic of swing states. Number one is to recognize no framer ever planned or intended or thought about a system that would be controlled by winnertakeall in these swing it wasnt what they were states. Conceiving of when they design the Electoral College<\/a>. And number two the swingers dont represent america theyre older theyre whiter their they are older. Their industry is kind of late 19th Century Industry<\/a> there are seven. And a half times the number of americans working in solar energy as mine coal but you never hear about solar energy in a president ial election because those people live in texas. And in california you hear about coal mining because coal miners are throughout the swing states. So what this means is the entity electing our president is not representative of america which means in this sense it is an unrepresentative of president. And the logic of that fact drives the candidates to appeal to swing state america over the rest of america. This fantastic book by doug greiner and Andrew Reeves<\/a> is an extraordinary empirical analysis of what happens in president ial politics and president ial administrations as they think about this dynamic. And what they show is that spending gets bent. And policies get bent. To benefit the swing states over the rest of the country who , that does not have the same power that the swing states do. In my view this is the problem , of the Electoral College<\/a>. Not the one out of every nine president s problem that has produced president s who are not actually chosen by the majority of voters. Not the one out of nine problem. The every election problem. Because in every election the dynamics of this system drive the candidates to focus on an unrepresentative slice of america in order to get them elected as the president of america. Okay. So, how would you fix this . Well if these are the elements , that need to be fixed the easiest fix is something called thats a compact where when 270 electoral votes have agreed to this compact. They agree to pledge their electors to vote for the winner of the National Popular<\/a> vote. That compact would solve the problem. Ke all because it would essentially be oneperson onevote. And everybody would have an incentive to campaign wherever they could get a vote. It is not any more important in swing states versus any other place. I think it likely solves the electoral freedom problem because it would guarantee that the winner has at least 270 electoral votes. And then they get whatever other electoral votes they would get from states that are not part of the compact creating enough of a buffer never to make it dangerous that one or two or three electors switching sides could actually affect the final result. But what the National Popular<\/a> vote compact does is its surfaces the problem of a National Election<\/a> run through statebased administrations because this count for the National Vote<\/a> is being produced by 51 separate jurisdictions that have separate rules about who gets to vote or how they get to vote or what the techniques for voting are. So in my view, this system is constitutional. It is not clear in my view whether it is stable. We now see colorado trying to withdraw from the compact. But the compact as of right now if it needs 270 votes has 196 pledged and 113 in play. So it is a feasible possible what we could think of as the easiest fix. But what i want to do in the ten seconds ive got left is to kind of think beyond this obvious hack to what we could call the best fix or at least a politically possible fix that i think we all should be focused on. And the fix has two elements. The first is to say were going to keep the allocation of votes as it is. Every state gets the same number of votes as they have electors right now. So small states get a benefit over large states. But the second part which is kind of hard to include in a tweet, but here it is. This is a system that says the top two get the electoral votes allocated in a fractional proportional way at the state level. If the state of montana votes 35. 4 for the democrat which is what they did in 2016 then they democrat would get electoral 1. 062 votes and so on throughout the country. And the point is the dynamic that that would produce would mean that every state in a sense was in play. And candidates would have an incentive to be campaigning anywhere there was a vote. Every vote in the sense would count. So this solution you can imagine fixing in an amendment like this. The first part of that amendment would address the electoral freedom question. So it directs that electors would vote as state law directs. The second part would look like this. It is a little bit of a bear but it is not hard when you break it on. So the first part says it is not going to affect the current election or any election within 24 months of the amendment being considered. The second part says the electoral vote shall be divided the twoonally between persons receiving the most votes within the state as determined by the method of tallying votes chosen by the state. So a state could choose rankchoice voting as a way to figure out who the top two people are. Or it could just say the top two people, it is up to the state. And then finally with fractions calculated to all significant digits. So that means that essentially it is as if it were tallying the individual votes. This plainly fixes the electoral freedom problem because it , directs electors vote as state law directs. It solves practically the winnertakeall problem because it effectively makes every vote , matter, almost equally. Now small states keep an advantage yet it turns out that thats effectively politically neutral because small states are equal in a partisan sense between republicans democrats. Those bottom 10 states are five blue states and five red states. So even though the thumb isnt a scale to benefit them it is a benefit doesnt have a partisan valence to it. And finally it embraces the statebased model of the framing design because it allows each of , these states to run their elections however they want but they resolve it just at the question of the electoral votes as the electoral votes are concluded okay. So ergo. And it is not really appropriate for ago but every debate needs an ergo somewhere in it. [laughter] no one i think should oppose this kind of solution this is the lodge gossiped solution updated a little bit. No one because no one i think can defend the intended the intent of the existing system. The existing system was intended by nobody. It has no purpose relative to any democratic principle that one can articulate no one has defended its basis. And if were going to have to fix that. If the electoral freedom problem crates a strong motive. If the Supreme Court<\/a> declares that electors are free to actually address the problem. It, i get that is a big if. But if we need to fix it then we too. Fix this we should create a representative president elected by all of america. And the question for my opponent is who could be against that . [laughter] [applause] judge rao professor sachs. Prof. Sachs thank you very much to the organizers for having us, professor lessig. And to judge rao and thank you to all of you for sharing your lunch time with us. I do oppose that. And im going to engage in the pyrotechnics that professor lessig warned about. I think the Electoral College<\/a> is pretty good. I recognize thats a stirring proclamation. I know the folks in the back from cspan are glad they have cameras to record that someone thinks the Electoral College<\/a> is pretty good, but i think it is good enough for government work. And it is good enough to be worth keeping now in defending the Electoral College<\/a> im going to be defending the modern system we actually have. It is not as professor lessig, noted with the framers had in mind. But it does follow the rules that the framers actually system of popular elections statebystate. And i think the most important thing to remember about the Electoral College<\/a> is that it is statebystate as martin diamond stated nearly 40 years ago. President ial elections are already just as democratic as they can be we already have one person one vote in the states elections are freely. And democratically contested in the states victory almost always goes democratically to the winner of the raw popular vote in the states. The label given to a direct popular election is something of a misnomer because the elections are already as directly popular as they can be in the states. Democracy is not the question for the Electoral College<\/a>. Federalism is. I see good reasons for keeping a partly federal partly national way of picking the president in a partly federal partly National Republic<\/a> the way we have. And i think those are good reasons for keeping the Electoral College<\/a>. So first ill explain why i think the Electoral College<\/a> is better than a National Popular<\/a> vote. Why i think it is better than the system professor lessig, proposes. And why i think it really does preserve something meaningful about the kind of democracy we have. So start off with the National Popular<\/a> vote. Why not just say one person one vote gets the most votes wins i think there are at least four problems with that. A nationwide popular vote would bring with it. And the danger of nationwide splinter parties let me say a little bit more about each of those. So nationwide recount. We have had over the course of our history i think two elections in which the Electoral College<\/a> vote was seriously disputed those are hayes tilden in 1876. And bush gore in 2000 over that same period weve had six elections where the National Popular<\/a> vote was within a one percent margin of victory. In 1880 garfield beat hancock by roughly 1800 votes, that was a margin of 0. 09 percent. Now i think anyone who lived through the florida 2000 experience cannot hear that without shuddering. If you imagine what would happen today if we had an election under a nationwide popular vote decided by 1800 votes across the entire country. You would have to have a recount in every polling place in america because every vote that is under counted or indeed over counted would affect somebodys total. That means it is just not very hard to pick up or unfortunately to suppress 2000 votes across of all of america. And yet thats what wed have to guard against. That brings us the worries of nationwide fraud regulations. So one feature of the Electoral College<\/a> is that it is somewhat cauterizes fraud, limits the incentive for fraud state like illinois or a deep red state. Limit that to for fraud where fraud is harder to conceal. State like illinois or a deep if you are n a red state like mississippi just doesnt matter whether your president ial vote margin is you know 20 25 30 . The electors are going to be the same either way the place where it actually matters of the purple states where by definition people are more divided. And the election could come out for either side. And those are the states where by virtue of being purple youre more likely to have officials from the other party in office able to look over your shoulder. And able to cry foul if something goes wrong. Now thats not an ironclad guarantee against fraud. But it does limit the for fraud compared to a world where any county sheriff or county election official anywhere in america can manipulate a vote thats going to affect the whole country. Now one way to prevent that kind of Election Fraud<\/a> is election nationwide election regulation. And i imagine you would have it in a system of a nationwide popular vote. But that can also choke off important variations across the states. So if youre going to have a nationwide popular vote you need a nationwide definition of who can vote. And what counts as a vote. New jersey gave the vote to women in 1776. Theres no way they could have gotten away with that in the National Popular<\/a> vote system because the other states would have objected to their having more influence on the total. Today the state wants to drop the voting age to 16 which i think is a terrible idea or if they want to drop the voting age to zero. And let parents cast their kids votes which i think is a terrific idea. [laughter] then they can just go ahead. And do it they dont have to ask anyones permission or if maine wants to adopt rankchoice voting as in fact they have for twenty twenty you vote for your first choice if they lose then your second choice but you cant do that in a nationwide popular vote system because it breaks the calculation of what counts as a popular vote. So if we had the National Popular<\/a> vote compact which i happen to think is not constitutional under the current regime id be happy to say more in the q a. And they just wouldnt know how to handle maine or they wouldnt know how to handle a state that expands the franchise. A fourth danger is that a of nationwide splinter parties. So the Current System<\/a> by having winnertakeall elections in lots of different districts to add up to a Single National<\/a> office tends to encourage big tent parties. It encourages a twoparty system. I think thats good because it encourages parties that in order to win everywhere have to win somewhere. It encourages parties that will be in government that have to govern. And succeed at governing in order to win by contrast a nationwide popular vote says that if you can get an intense 33 percent of the electorate thats fine. And you might win a sixway contest with a whole bunch of other parties. And you have no incentive to moderate. I think that would be very dangerous for the country as a whole. So how does this come and how does our criticism compare if it beats National Popular<\/a> vote what about professor classics proposal i think unfortunately proposal . I think unfortunately the fractional vote might have a lot of the downsides of the National Popular<\/a> vote but none of the upsides. It would have nationwide recounts because every would be you know adjusted a little bit for turnout. And for senators but basically every vote anywhere would contribute to the total and. So you have to have a nationwide recount in close election it would have all the nationwide fraud worries because you know alabama. And illinois would still have an incentive to run up the store even even corruptly youd still have the Splinter Party<\/a> worried or if youre limited it to top to necessarily support. So in utah in 2016 22 percent of the electorate voted for evan mcmullen. If you dropped him from the count and had to split the rest between trump and clinton you would have a distorted picture of how people in utah actually allocated their votes. And moreover it would create an enormous small state bias. So as professor lessig, noted winnertakeall gives large states an advantage that somewhat counterbalances the small state advantage from getting two senators each if every state had fractional voting you can get a lot more fractional votes with fewer voters by campaigning in small states. And exactly the kind of incentive for governance and subsidy and Everything Else<\/a> that you currently see is with swing states would still exist just focus on small states instead it would shift the bias in the system. And it wouldnt actually correct for it. I think the answer is yes. The nationwide system that we currently have is in fact democratic it does treat peoples votes equally, it treats them equally in the states. So you might say how can that be true if im a New Hampshire<\/a> voter . My vote just counts for more than a texas voter especially than the Texas Democrat<\/a> who might as well stay home but if you look at how other countries hand elections. And indeed how we have elections in our own house of representatives you see how thats not true i live in chapel hill, in North Carolina<\/a> chapel hill is a safe democratic district it is going to be a safe democratic district pretty much any way you draw a fair line does that mean that if i go to the poll and vote for the gop that my vote doesnt count not at all anymore that if my neighbor goes to the polls. And votes democratic both of us stayed home it wouldnt matter wouldnt affect who actually controls in our little election even though our little election is just part of what happens in the country as a whole the same is true for blue. And red states if a Texas Democrat<\/a> stays home or chapel hill republicans stays home it is exactly the same because their votes affect what the total is going to be in their election. We dont say that the house of representatives is illegitimate for using election districts any more than we should say that the presidency is illegitimate for using the Electoral College<\/a> or indeed that other countries are illegitimate. So if you look at canada Justin Trudeau<\/a> won a majority of parliamentary seats with less than the plurality of popular votes which went to the other party. We dont say hes illegitimate prime minister. They didnt have one big popular election, they had lots of little elections. Likewise in the uk people joke that the reason brexit is taking so long, they had a majority of parliamentary seats willing to endorse it thats a standard way thats a standard way of , governments doing business. And it is not something that we should see as deeply illegitimate or deeply wrongheaded with respect to america either. So why do we have these districts well the answer is that it allows for more representative government. It allows for greater influence by smaller interests over the whole. If you think about a city voicel election can have if you divided into districts then if you had just an atlarge election where everybody voted. And the smaller interest loss every time or when youre thinking about how diplomats put together you know powersharing arrangement for bosnia. They dont just say well heres the map of bosnia. Everyone who lives here gets one vote, good luck instead they , have various kinds of checks. And balances to make sure that no one interest overwhelms the others. And 51 percent of the vote doesnt turn into a hundred percent of the power. Thankfully the United States<\/a> is not bosnia but we do have a very large and a very diverse republic thats divided into partly selfgoverning communities that get to do on some topics what they want to without having to ask anyone elses permission. And in the same way the Electoral College<\/a> requires you to win those partly selfgoverning communities. It uses it to catalog rather than a sprint to determine whos the best athlete. Can the president win in a lot of different kind of contest among different selfgoverning communities . I think that really is an advantage there because it causes the National Government<\/a> to be a little bit more careful about stepping on state toes. People have to think how will this policy play in pennsylvania how will it play in colorado. And at the same time individuals have more influence you get to call your congressman or call your senator in a way that just saying call the Republican National<\/a> committee wouldnt really help you having districts helps individual people translate their preferences into government policy. Allowthis, why should we people from wyoming or people from New Hampshire<\/a> to have more influence. The answer is thats already how the system works if you look at the house. And you look at the senate if you want to pass a law you have to have not only people representing more than half the population behind you but also people representing more than half the states thats the way our partly federal partly National System<\/a> works. And the Electoral College<\/a> is just a reflection of that it is just a compromise between the federal. And National Aspects<\/a> of our system not everything that states want to do is necessarily good weve seen a lot of changes in state power over the last century some of them for , extremely good reasons but not all for good reasons. And if you think that theres anything to federalism if you think that especially federalism should be protected by political safeguards then you need some political safeguards. And the Electoral College<\/a> happens to be one of them the electric college might not be what any of us would come up with right now sitting down a drawing board or a Powerpoint Presentation<\/a> but the same is true about you know the state of new jersey you know who ordered that no one would sit down and draw the lines that 50 states happen to have. [laughter] theyre just what weve inherited. And what we happen to work. And there has to be a heavy burden of proof against a reform that would scrap the system we have in favor of one where the problems havent been fully thought of yet. And i think that the president s proposal or the nationwide popular vote proposal dont actually overcome that burden of proof. In our system if you want to become president you have to convince a number of states to back you. I think that that works in the system was partly federal partly national i think that it is good enough. And i think good enough is what we should really be after. Thank you. [applause] judge rao if you want to take a couple of minutes to respond . Prof. Lessig that is helpful because it is important to distinguish between the things we are disagreeing about and the things that we have no disagreement about at all. Im not advancing the argument in favor of National Popular<\/a> vote i should people would say ,. But thats not my purpose here. My purpose is instead to advance a modified version of the current Electoral College<\/a> which contrary to what youre suggesting retains all of the , things youve identified as the values of the Electoral College<\/a>. What i said and you know were , all in this period of grading exams. And learning how just how bad we are at explaining things to our students. So i accept full responsibility if this was not clear. But what what i said is that it is proportional allocation at the state level. So you decide how to allocate at the state level but there is a firewall between pennsylvania. And ohio because each of those states is deciding independently how theyre going to allocate their votes based on what the top two votegetters would be. You would properly identify the problem where for example in utah when you had a thirdparty candidate who if that thirdparty candidate was substantial could effect that results substantially. Thats why states like maine have experimented with rankchoice voting which would eliminate that in many cases that spoiler effect. And i would encourage as you are that kind of stay based innovation. The core point that im making is the Current System<\/a> of federalismbased Electoral College<\/a> determination im it fundamentally biases the system in a way that nobody ever expected or wanted or argued for. Minority of are a the United States<\/a>. The consequence of this system is that president s care about a minority of the United States<\/a> not about every part of the , country. So republicans in california just do not matter. You said everybody will think about how will it play well they only think about how will it play in 14 states in this election only in five states are they thinking about how it will play. So all im saying is lets have a federalist based system that gives them an incentive to think about how will it play everywhere . Because everywhere would matter if you have this proportional allocation at a fractional level of the Electoral College<\/a> vote. And that allocation is not just better democratically in the sense that it would give more in the country a voice in choosing who the president is. It is also better from an equal protection perspective. You said theres nothing not democratic about this structure of the system. In fact the Supreme Court<\/a> has expressly said that a winnertakeall system like this which basically resolves the allocation of delegates at an interim level kasich garrett gray versus sanders 1963 footnote 12 if you didnt get to footnote 12 in that case the court expressly said that the purpose that that system which is basically Electoral College<\/a> at the state level is a system for counting the votes of the minority for the purpose of discarding those votes. And that that was independently a violation in their conception of what equality oneperson onevote would require. This alternative would eliminate that problem because what this would do is give everybody more power relative to the Current System<\/a> which gives power to just those 14 states. So then in the end, the only argument that were gonna have on the facts it seems to me is your claim that my alternative would bias in favor of the small states, whereas the current alternative biases in favor of the big states. Now i can tell you that many on the right would be surprised because many on the right think that the Current System<\/a> bias is in favor of the small states. So im glad were in agreement that thats not in fact what happens. But i just deny the empirical claim theres no basis for expecting that the relatively small proportion of votes that are offered by the small states would create a systemic advantage for those small states relative to other states especially when you consider the cost of campaigning in different states. And the concentration in the opportunity of campaign it might be but theres no reason to believe it would be. So when you talk about burdens of proof we have a system that right now creates a substantial burden on the opportunity of a majority of americans to have an influence on the election of the president. Why isnt that burden enough on my side for saying lets tinker. And figure out something that could be better. Prof. Sachs im sorry, i appreciate that. And i too apologize if ive been unclear. If if there were a hat from which we picked out the names of swing states, and safe states. And just declared that only the swing states could ever have influence on the president ial election i would entirely agree with you. I think thats a bad system. And it would bias the system in all the ways that you describe. And we shouldnt do it but there is no hat the reason why a state is a swing state is because the people there actually disagree about who should be president. And the reason why a state is not a swing state and it is a safe state for one side or the other is that everyone there has already had their voice heard in saying we think the democrat or we think the republican ought to win. And the states change their composition. You know missouri used to be a swing state. Now it is not. North carolina used to not be a swing state. Now it is. States move around. And the very fact that they move around limits the possibility of any longterm political bias in favor of some interests over others by contrast in a world of fractional popular voting you would have a substantial interest in favor of small states. So i did this calculation not knowing that it would be it would be fractional but on their proposal to just have proportional voting but sort of integer voting by electoral vote you would need to convince an extra two hundred and sixty six thousand voters to get an extra vote in 2016 in new york you would have to convince an extra eighty two thousand voters or onethird as many to get an extra electoral vote in wyoming because turnout was different they just dont show up as much and so you can get more fractional votes by going to the small states than you can to the large states. So my claim is not that the large states are the ones ruling the roost of the Electoral College<\/a>. My claim is just their advantage in winnertakeall. And the small states advantage in having extra senators sort of counterbalances each other. Im not saying it comes to in exactly even balance. It is a clutch. It is a compromise. So winds up somewhere in the middle thats probably good enough. And in my view the argument for shifting to a system that yes would be state based in terms of proportions but would nonetheless have the impact that any voter manipulation anywhere affects the total everywhere because were calculating this out to like eight significant figures, you know were going to have a lot of digits behind the one and so were going to have influence from all states all over i think is actually worse for National Election<\/a> administration. And is not obviously more representative of the people as a whole. So if you look over the course of american history, the biggest discrepancy weve ever had between the popular vote and the Electoral College<\/a> was hayes tilden where tilden reportedly got three percent more than hayes. So whether he actually got three percent more is not totally clear there was a lot of election rigging on both sides. Especially in the south voting for tilden. But you know three percent is not that much. It is not like were talking about you know tiny minorities of the people ruling over the rest of us. And i think for that much of a discrepancy between how the popular vote come out and where the electoral vote would go i think to be honest it is just not worth trying to change. I think that having a system that allows states to choose by state is preferable to a system that tries to spread out the election across the entire country at a polling place by polling place manner. So really clear the point youre making that i want to make sure were distinguishing one part. So you say the states that are swing states are states where it is not yet resolved who would win that state. And thats why it is important to fight the contest in those states. So in that sense youre right. It seems to be an appropriate place to be conducting president ial elections. But the problem is the demographics of those people are substantially different from the demographics of the nation as a whole. Not just their color or their or their age which is substantially different but also the kind of industry that they are industry that they are interested in. So if the president is supposed officerthat is why that book by reeves and kriner is called the particular state. President. Theyre supposed to be a National Officer<\/a> thinking about the interests of the nation as a whole. This is a system that picks a minority of states who have a particular but not National Interest<\/a> in what the future of the United States<\/a> would look at. So it is a pretty bad selection of this subset of the United States<\/a> to select who the president would be now you described it as a quote compromise but thats my point theres no compromise. Nobody ever made a deal about this if the framers made a deal about this id be eager to hear their reasoning. But no deal was made. It is a kind of accidental consequence of a series of independent decisions that got us into what is in a suboptimal a place. And then finally i would agree with you the whole reason im talking about fractional those is that it eliminates this fractional votes is that it , eliminates this effect that you identify of the small number of votes in small states relative to big states to be able to swing an Electoral College<\/a> votes. It eliminates it not completely because of the design of a thumb on the scale that gives wyoming three Electoral College<\/a> votes when thats 66 times as powerful as what other states might have but it does a little bit. And to the extent we want to respect a framers choice there is a choice to give smaller states slightly more influence in the ultimate choice of the president than bigger states. And thats what this is solution to. Prof. Sachs so i take the point that the swing states dont necessarily reflect the country as a whole. But again the swing states are not predetermined. The swing states just end up swing states because everyone else has already voted. And those are the places that were unsure. So if the industries are different if swing states have a lot of coal it is only because thats where people are actually divided on the president ial election. So it is true that youre going to have you know the money. And the attention go to the go to the undecided voter often you might think that the undecided voter is not the person you want to be deciding the president ial election. But thats you know in any election thats how it is going to be. People are going to focus on the votes that are not yet won by either side. So the question is do we want a system which functions on a statebystate level that has the states interest as states taken strongly into account . Or do we want a system that sort of pushes out the influence of states by turning into very small fractions here. And i think that the the Administration Arguments<\/a> against a fractional vote are Strong Enough<\/a> to suggest that the statebystate system that weve just sort of lucked into that was not a product of design that is a product of evolution instead of a kludge between a lot of different interests pulling in a lot of different ways i think is a pretty good one. Prof. Lessig okay, but lets be clear one it is not the case that under both systems were only focused on the undecided votes. Because in the system im describing wed have a reason to turn out the people who are strongly committed one way or the other. Right now people in california like people in texas dont we know we can show they suppress the voting turnout because it doesnt really matter how theyre gonna vote. And they know that but if in fact it did matter then wed be working to not only persuade somebody to vote republican whos voting democrat or democrat voting republican wed also be eager to turnout people we know already support the candidate because that turnout would actually matter there. And those people would feel empowered because the system would be counting them just like it would be counting somebody from pennsylvania. Prof. Sachs so i think it really depends on what you think it means for the system to already be counting them. The system is counting level counting them. They just dont exceed the number of people who disagree with them in their state. And thats the thats the setup you have in any district election when im voting for congress in my district. Prof. Lessig yes thats great , versus sanders theyre counting them for the purpose of discarding nebo. Thats why theyre counting them. Judge rao i think it is probably a good time to move to some questions. The United States<\/a> is blessed by the fact that we are a 50 state federation. We are chopped up into a lot of different pieces. If we were a fourstate federation of the northeast the south the midwest and the west i think that either the northeast or the south would secede from that vetted raishin succeed from that federation in fairly short order. So i think the block of states , that you identify as purple states and that are undecided are the key states to keep the United States<\/a> together. And that prevents secession. And i regard secession is a total failure of the american constitution. One of the great advantages of one of the great advantages of the Electoral College<\/a> is that it second, always produces a winner on election you always know by midnight or 2 00 in the morning whos won in the Electoral College<\/a>. With a National Popular<\/a> vote the vote count could drag on for months as the florida vote count did in the year 2000 you know one county would discover 200 more votes for al gore another 364 georged discover bush. Another county would come discover 570 for al gore. And back and forth it would go. We could go from election day to Inauguration Day<\/a> without really knowing who won the popular vote because partisan Election Officials<\/a> in the 50 states would find votes that we might not otherwise find. The Electoral College<\/a> at least produces a winner nationwide. And thats a hugely valuable thing. And then finally, you talk about the compact among the states. And the agreement of the states if 270 electoral votes are allocated to award them to the winner of the popular mandate. Let me read you from article 1 section 10. No state shall with enter into any agreement or compact with another state that compact clause forbids compacts among the states, agreements among the states. The interstate compact to award electoral votes to the National Popular<\/a> vote winner is clearly an agreement or compact among the states. It has to be approved by congress in order for it to go into effect. And for in order for it to go into law. So, it is an extraordinary thing if it just so happens as i think the other stephen was emphasizing that the swing states are the glue that keeps the nation together. Otherwise we would have secession. That would be an amazing thing that in fact this string produced that result. Id love to understand the theory about why that would be true but again id have to say i id have to id have to insist that that benefit needs to be justified against the cost which is to tell new york republicans or California Republicans<\/a> or Texas Democrat<\/a>s that their views are not going to matter to the president as the president is trying to figure out how to win an election. So youre sacrificing something to gain something. Im skeptical youre gaining what youre describing but even if you were there there still is an important argument left youre right about the speed which is produced by winnertakeall relative to what im talking about. But the amendment that im describing says that the winner is determined as the states determined the amendment explicitly gives the states the procedure. And the procedure could include procedures for cutting off or deciding at a particular time what the allocation will be based on the votes that have been cast. So i dont particularly feel the urgent need to feed the medias news cycle of being able to decide by 9 07 exactly who the president is. I think a couple days or a couple weeks wouldnt be such a terrible thing in exchange for giving more people an opportunity to participate in the actual selection of our president. I mean i think thats the ultimate value that we ought to be pushing for. And finally as to the compact clause, way above my pay grade. Thats why im not defending or trying to engage in the compact. I will say that there are theres a substantial body of , literature especially from people on the right to suggest that the contact clause is dividing between certain things that require a concession of congress. And this is not one of them because of preexisting state authority versus those it would require concession of congress. And if it requires a concession of congress in order to be valid then congress should enact it. I mean if in fact the states want it congress can enact it but i know that theres a substantial dispute about whether every one of these types of agreements needs the consent of congress. And theres a strong argument that it doesnt. So if i could speak to two points there first on the compact clause the Supreme Court<\/a> has in my view under enforced the compact clause. But i think the even on it is under enforced version of the compact clause this still is a compact that would require congressional approval. And thats for two reasons. First unlike just a simple reciprocity rule where you know we recognize the bar membership from anybody who recognizes our bar membership it actually requires a meeting of the minds. You have to all agree at the same time for the statute to have any effect whatsoever. Not until youve got 270 electoral votes worth of states agreeing does it click. And the compact comes into effect thats one of the indicia of having a compact. The second thing is that it actually restricts a states ability to withdraw. So the National Popular<\/a> vote compact says you cant withdraw from this within six months of a president ial election. That is not the case for a bar reciprocity rule it requires an actual governing instrument that binds the states abilities to change their own law that is the definition of a compact over and above ordinary legislation by an individual state. And then, third, the Supreme Court<\/a> has identified as a reason to require congressional consent that it impinges on the federal structure of our union or aggregates the power of the Member States<\/a>. And i think thats classically the case with the National Popular<\/a> vote compact. The states with 270 electoral votes decide among themselves whos going to win the president ial election. And whatever the other states do is pretty much irrelevant that to me is what impacting the federal structure. And augmenting the power of those states means. If you know in the days before the 17th amendment if half the states agreed on which slate of senators they were all going to a point that would obviously give them control of the senate exclusively if everyone else though it obviously would be the kind of thing the compact clause was there to prevent. And i think the same is true of the National Popular<\/a> vote compact. Finally on one point responding to professor lessig. And i think this might help articulate some of our disagreement. It really depends on what you see as the polity thats voting for the president. If you see the polity as the entire you know citizen over 18 population of the United States<\/a>. Then it makes sense to say that yes, it is unfair for a California Republican<\/a> or a Texas Democrat<\/a> to have sort of no impact on the outcome. If you see the polity as a composite of 50 smaller politics or 51 with dc each of which is making its own decision about which way to go then the answer is not that you have no voice. The answer is just youve been outvoted. The people in your election went the other way. You had as much voice as anyone else did. And they disagreed with you. And i think there are perfectly good reasons for seeing our country as an assemblage of a whole lot of states for a whole lot of national purposes. The federal constitution binds the states in all sorts of ways. Thats a very good thing. But it doesnt necessarily mean that when picking the president is antidemocratic that we would vote by state. Prof. Sachs lets just be clear about one thing there again the point in gray is it is not okay that in the interim step along the way to choosing an officer you throw away votes because you happen not to have won that interim step. So thats precisely the conclusion of gray contrary to that. And one mans modus ponens deductive. I mean maybe maybe gray is wrong precisely for that reason if we were to admit canada as the 51st state as indeed the articles of confederation invited them to join but if we were to invite canada tomorrows the 51st state theyre big you know theyre the second largest country in the world. It would make sense that they would have some sort of internal districting system. And maybe our concept of equal protection as the court has applied. It is mistaken in that way okay. Judge rao another question. I have a question about the way the president sees himself in the president ial mandate as they call it. And given that both president obama and President Trump<\/a> both used twitter and with each coming president we seem to have an arms race in terms of the rhetorical presidency ratcheting up trying to connect with the people in a closer way, what do you think the effect of having a president seeing himself as even closer to the people, as the sole representative of the peoples will. What do you think would happen to that . Prof. Sachs under the modification prof. Lessig under the modification i am talking about . That is a great question. Know i start with a , skepticism about this trend the belief that this trend is not to be encouraged. Not so much because im skeptical about the capacity of people to understand these issues or reckon with these issues but i am skeptical about the capacity to understand them. And reckon them 24 hours a day seven days a week. [laughter] so i think in fact we need to figure out structural breaks pauses ways to sit and reflect more carefully. And the twitter based presidency is obviously resisting that. But to the extent it does have an effect i think it has an effect by including a wider range of americans in that conversation, would the what would the Republican Party<\/a> be like if republicans from california and new york mattered more than just the money that they give to the Republican Party<\/a> like what would that look like . I mean it would it be a different mix of interests that i think would direct how the party whatif would would behave. And the same thing with democrats from kentucky you know or democrats there are some i here or democrats from texas who would have a more significant role in what the Democratic Party<\/a> would think of. And again seems to me thats the presumptive baseline of what a representative system should pride to do give equal representation to everyone whos a citizen within the republic. Prof. Sachs so i think your question is getting it something important which is do we have the vision of the presidency as sort of the tribune of the people translating the popular will into law or do we have the mission of the presidency is sort of a chief magistrate you know overseeing a very complicated executive branch but in some sense of functionary within that . Im not sure to be honest that that it would have too much practical difference in that i do think a National Popular<\/a> vote would increase the sense of mandate. But not so much. I mean the president seems to be claiming the mandate even without a popular victory. So i dont know i dont know whether youd really see differences there you know during the convention for a lot of it they thought of even more indirect means of selecting the president like by having congress appoint the president. I dont know whether that would be a good idea people. Whether that would be a good idea. People seem relatively attached to the idea of popular elections that affect the presidency but i think that it would it would have some effect but maybe not a first order effect on if we switched from the Current System<\/a> to professor lessig, to a josh from the Current System<\/a>. Professor lessig, to a nationwide popular vote you identify i got this on you identify coal over solar but i wonder if you can name some other policies that you think have been distorted by the power of swing votes just concretely well again i would recommend the book which has a ton of examples for example around trade policy. Prof. Lessig so every president republican or democrat finds it really tempting to help the Steel Industry<\/a> in pennsylvania with no good reason. Coming up to an election cycle. In this Current Administration<\/a> i think one really clear example of that was after trump became president the offshore drilling lifted. Band was lifted. States like california and new jersey were very upset about that. States like florida were also excited about that. Florida got an exemption from that almost immediately. And california and new jersey are basically lost. Now whats the difference between california and new jersey and florida . It is floridas essential role in a president ial election. So if if if i didnt have the data that kriner and rees is providing this would be pure speculation. But i think we have good reason to believe seeing the way president ial campaigns function. And how spending gets directed that there is an effect. And if there is an effect then the question seems to me is what good reason is there to construct a system that produces the distortion when we could have a different system that would eliminate it . Prof. Sachs i think the question really need to ask is magnitude you know how large is the effect. And how persistent is the effect. So the baseline is were gonna have concentrated interests getting their way were gonna have sugar subsidies for florida ethanol subsidies for iowa. , and whoever knows what other kind of subsidies for everybody else. And were going to have that because the way the senate is set up. And the way the house is set up. And the question is how much more of it do we have because of the way the Electoral College<\/a> is set up. And how longterm is it. So given that states filter in. Swinglter in and out of state status, is that a first order problem with the with the way of selecting the president . Or is it a secondary problem i have not yet reviewed there broke though it sounds very interesting. And and id be curious as to as to the size of those effects. And whether they really are large enough to make us say you know what wed better revise the method of selecting. I think thats a great perspective because i think both olson and madison just to pick a figure here on the stage what imagine that concentrating the influence in these fourteen states or in this current cycle five states produces a greater risk of this kind of capture. And special interest driven agenda as opposed to diffusing the interest across the whole of the country which would produce the dynamic that would allow us to fight that special interest more effectively. Judge rao i could take the moderators prerogative. I have a question. It seems that a lot of this debate in the backandforth that youve been having there is a conflating of the the various principles that you think are served by the existing Electoral College<\/a> or by your proposal. And the empirical consequences of choosing that. And i guess im wondering and you know there seems to be a lot of disagreement about the empirics, what would happen by making such a change but im wondering how important you think the underlying principle is behind each of your proposals. Prof. Lessig well thats a great clarification because i i do. And i should insist more strongly i do think that the principal is the number one motivation here. We have a Representative Democracy<\/a>. And conservatives often say we dont have a democracy, youre right. Framers meant a republic by a republic they meant a Representative Democracy<\/a>. It is kind of built into the title a Representative Democracy<\/a> ought to be representative. And that means you should not be structuring the rules to make some people less represented than other people. Now nobody thinks that weve intentionally structured it like that. It is kind of accidentally walked back to our way into that place but the principle that says that when we have a president ial election everybody should feel equally empowered to participate in the election of the president of the United States<\/a> seems to be fundamental. And then the empirics a bolster this point we know that swing states have higher turnout than non swing states. So we know that the participation in the political process is affected by this rule what justification is there to. What justification is there to have a rule thats effectively suppressing participation in politics . Because obviously the participation matters more than for the president it would matter for other offices as well. And then the empirics around what happens in spending were in regulation theres also significant is again reinforcing the argument that we ought to go sustain the fundamental principle of representative equality. Prof. Sachs i think for me the the principles are part of the empirics in the following sense. When you say Something Like<\/a> the Electoral College<\/a> preserves a state interest in choosing the presidency. Presumably that matters because what happens is actually different. You know the Electoral College<\/a> was made for man not man for the Electoral College<\/a>. So if youre going to have a system that tries to protect state interest when you want to does it actually succeed in that effort . Judge rao to think that is the principle behind that . Prof. Sachs i think it is at least part of that effort. I think thats the reason why electors were designed to be picked by states. And not by i mean they didnt have many other mechanisms available in 1787 but they could have come up with one. And one reason that they didnt it was because they wanted the states to be able to speak in some sense as states it is the state legislatures that decide on the method of appointment of the electors those were the units of government they had. And again if you were assembling the eu today you would probably want a substantial amount of power to rest with the Member States<\/a> in shaping what the the Central Government<\/a> would look. That means it is not obvious that the principle of equal representation which i do recognize in which i do think has some value necessarily trumps the other worries that would be created by a move to a nationwide system or to a i want to raise a couple points. I published an article about inl and imagined problems campaignfinance reform. Thereal problems are recount problem. Many which could be close to mandatoryfall within recount laws. 1876l problem is fraud, and 18 88. It is likely the real winner would not have won in an isolated election. There has never been a faithless has decided this is just nuts that happens. So they met happens. Another imagined problem is this question portable power. Let me start with the coal thing. Here and do this. The top 10 cool producing states West Virginia<\/a> kentucky pennsylvania illinois montana texas indiana north dakota. And colorado only two of those could even remotely be called swing states i think in any way. The top 10 Clean Energy Job<\/a> states are texas illinois colorado and indiana. Notice that those four states are on both lists. Followed by california michigan iowa florida washington. And new york. So four of those states could be on the swing state list theres no reason if we just want to take that quick eyeball to think that the coal industry is somehow getting favored policy because it consists of swing states. And i think i have seen that in. And looked at the evidence on this in great detail i mean one example you choose a bad example, that sometimes happens. There is very little evidence it is a real problem. As opposed to a popular vote. In which you are pandering straight to the electorate nationwide to try to gin up popular votes. So i dont want to go on too long. And i dont really have a voice raising inflection question to end this with. Ill just ask you to comment on those thoughts. And whether in fact the problems suggested really are the problems we should be worried about. I will observe that i think it is 1832 but in fact faithless electors refused to support the Vice President<\/a> ial candidate throwing it into the senate. And then the senate had to vote to overcome the decision of the faithless electors. And i will say that youve seen both democrats and republicans recently advance a principle that faithless electors have a faith driven reason to deviate from their pledge in 2016. And in 2000. It is so far hypothetical. And my whole point is thats good that it is just been hypothetical. So far because im fearful that when the argument becomes Even Stronger<\/a> which after a 120 page opinion by judge mchugh. And the tenth circuit it seems that the argument is stronger this is a problem that could manifest itself more clearly. As to the empirics, yes the internet is great. It is also terrible because you know i dont know how you can dislodge the claims of a substantial empirical work through a simple list of two states to subject of states. So kriner and reeves point is not about you know coal there their point is a substantial consideration of a wide range of policies including trade policy. And industrial policy. And farm policy which they the evidence supports the claim that that policy is being driven by this dynamic precisely. So you might i think it is a fair thing to say how significant is it thats fine but it is not a madeup problem it is certainly real that this is a dynamic that affects president ial campaigns. And and the question is what justifies a system that produces that dynamic when we could have another system that would neutralize it in a very madisonian way. So i think the faithless elector problem it is hard for me to assess how big a problem it is in part based on the history. And also in part of sort of what purpose that serves. So if we were sitting out the drawing board today we probably wouldnt come up with human electors. That said who are these electors these electors typically in the states are people selected by the relevant political campaigns. You know it is the it is the Trump Campaign<\/a> of the Clinton Campaign<\/a> who give you the list of electors that theyre going to put in. So in what world would enough of them defect to sway the outcome . Probably a world where Something Else<\/a> really bad has happened you i am imagining you know a president has a psychotic break sometime between election day. And the day when the electors meet to vote or something. It is hard to get a sense of you know when would Party Loyalists<\/a> on moss abandon their candidate you know maybe only when Something Else<\/a> really wrong has already occurred. So it is a little hard to see how bad the situation would be. And how much we need to revise the system you know pass a constitutional amendment in order to forestall what seems to me a relatively low probability of that. Weve been discussing the extent to which the Electoral College<\/a> distorts policy in favor of swing states on particular issues like energy or trade. And im wondering if we step back from particulars and we look more broadly over a longer time period at progressive conservative how much is government policy swinging in one direction or another when the presidency passes from one party to the other. Does the Electoral College<\/a> incentivize president ial campaigns to be centrist . And to campaign to swing states in a more centrist way, and then to govern in a more centrist way . So i think it very well could. Obviously, this is an empirical question. It would depend a lot on the actual voting mechanisms. And sort of the actual voting patterns. So if what happens in pennsylvania is that there are just no centrists there. And there are a whole lot of you know uber republicans. And democrats. And just to turnout question then it wouldnt necessarily make a difference in terms of centrism of the government as a whole. I dont think thats the case though. I think that you have a lot of legitimately centrist people in legitimately centrist places. And that does provide some incentive to moderate. Thats not you know sort of absolute incentive to moderate you know under the fractional Voting System<\/a> i think youd also , see you know people would still want to pick up the suburbs everywhere. There would still be incentives to moderate there too but i do think the Electoral College<\/a> by requiring you to win somewhere in a place that already has a running government does encourage moderation. It also to some extent encourages sort of less overweening federal control because you have to worry about is there a state that will care a lot about this that we would be stepping on the toes of by doing this . The fact that the definition of a swing state is not fixed that you might create a new swing state by accident but doing by doing something thats really unpopular there means that you have some interest to take state interest qua state interests into account as opposed to you know political rate large. This is definitely diminished in sort of magnitude as the country has gotten more politically polarized. That doesnt necessarily mean that we should sort of poke the bear further. And sort of go further down that road. I do think were seeing a change in the dynamic of how politics happens in the last 40 years with this question. So in gerrymandering studies about gerrymandering you know theres theres been this long concern that gerrymandered districts would produce exactly the same kind of dynamic where your incentive would be to appeal to the base. And the non gerrymandered districts or districts that were swing districts would be or more moderating but in fact because turnout is 90 percent of the game it is become the case that the better strategy is to play to the base as strongly as you can to get them to turn out even though the district on the whole looks like it is a evenly divided district. And thats because evenly divided is not a measure of moderation, it is a measure of just how many republicans there are how Many Democrats<\/a> there are. And i think the same thing could be happening at the president ial level. We dont have at least ive not seen any good data about it i do want to add one bit though about to the empirical point about whether this is a problem we should worry about at least the faithless electors problem we do have good reason demographically to believe that well have more very close president ial elections in the future than we have had in the past. In the past we had long periods where there was huge margins in the Electoral College<\/a> which made the Electoral College<\/a> seem like it was a very stabilizing influence but the demographic analysis suggests the ones that have professor king at harvard for example suggests that when you look forward youre going to see many more very close Electoral College<\/a> elections. So you know seven i represent seven facelet quote quote unquote faithless electors. I think it is a bad title in 2016. If there had been two in 2000 there would have been a different result. There was an argument that was being bolstered to say that those two should follow the public the publics will versus , you know whatever happened to in the Electoral College<\/a>. I dont think we can say that that chance that that argument is going to be effective can be measured simply by looking whats happened in the past where theres been relatively few times when it would have mattered. And when the actual entitlement to make that decision has been challenged fundamentally by many people within the economy. John . Thank you. This has been a wonderful exchange. Im wondering if if either of you would reflect on how your arguments are modified augmented or changed if the number of electors had continued to increase as was originally proposed when with the first set of proposed constitutional amendments. Would the increase in the number of electors exacerbate the various concerns, moderate them, or have other effects on this debate that we should consider. So i think that given the nice analysis you made about the effect of whole number electors , the one thing we can say is if the number of electors went up substantially and you didnt fractionally allocate electors then the problem that stephen identified about the substantial benefit that small states have relative to large states because of the electors would be reduced. So you would have less of a distinct effect because of the whole number problem with electors. But from my perspective given the fractional allocation it doesnt matter whether theres 10 electors or 10,000 electors , it is fractionally allocated based on proportion of the total of the top two votegetters and. From the perspective im trying to advance it wouldnt matter but under the existing perspective maybe we would have given people more reason to think about an alternative to National Popular<\/a> winner take all. It is important to know historically you know theres been a big fight about winnertakeall throughout the 19th century. At first the push was to push for district based allocation. And then when district base d allocation became challenged because of gerrymandering there was a push for proportional allocation. And the proportional allocation hit exactly the problem stephan was talking about which is the whole number problem with proportional allocation this has never been settled in a you know a constitutional sense that people think that this system makes sense. And should be there forever. And i guess all im saying is now that we have a reason to think again about how to structure the Electoral College<\/a> to reduce the publics sense that it is increasingly undemocratic we ought to be pushing for a result that affirms a democratic character , at least that character of including a wider range of americans in the selection of who the president should be. So i certainly agree that if you double the size of the house which i think is an excellent idea for other reasons that would diminish the impact of getting two senators included in your electoral vote count. And unfortunately there may be one reason that we havent doubled the size of the house because small states dont want to lose those to this the effect of those two senators. I think that the point that the professor lessig makes about about wholenumber electors for as fractional is absolutely right. If youre going to do proportional allocation you really have to have a constitutional amendment to make it fractional because otherwise everything breaks. The number of apportionment paradoxes if youre curious about this you can go on the wikipedia page. And learn all about the the strange things that happen when youre trying to apportion small numbers of representatives would crop up tremendously if we were trying to do promote proportional representation for states with six or seven electoral votes. And in particular i think the top two problem would be very severe. So you would need to somehow figure out are we going to give proportional votes to Third Party Candidates<\/a> are we going to demand that you only get into the top two. Either way, there is no good solution there. Either youre very much distorting the proportional outcome from a particular district or you are encouraging the use of splinter parties i splinter parties. I think that the larger the house of representatives the larger the number of electors the the less these problems are salient. Every state had sixty electors if you wouldnt have to worry about them quite as much but given the system that we have now it very much is a problem. I just wanted to ask the reaction for most of the , elections which were talking about in one sense it didnt matter who won. And what i mean by that is obviously people felt very strong about who won one way or the other but in terms of the countrys really having somebody represent that really did want, it was so close you know i mean these elections are decided by infinitesimally small things in various different ways. So one question, is part of the is the concern that if you had something that turns one of these elections that was incredibly close that everybody , would suddenly feel it was totally illegitimate. And youd have almost revolution about it or is in some ways i guess im asking the question is it more important that you have a system where people are comfortable with the final result even if you dont like it. Heres the way it should work. My own concern is the recognition the majority of the country doesnt matter for the selection of the president , it is not just among us. Is a powerfulhis part of the rhetoric of the quote failure of the american republic. If the perception is we elect president s not by having a vote where everybody matters, the president who is elected under that system becomes weakened by that recognition. So i want to fight against the good argument in favor of that claim. Way tot pushing all the the other extreme. Say lets abolish the federal system lets just have National Popular<\/a> vote you know. Im trying to say lets try to adopt the federated system so it achieves the objective of everybody mattering. The other thing i am trying to avoid is what i do think would be destabilizing. The point is a good one, to ask how likely it is. If there were that kind of set , the vicen the Senate President<\/a> ial race. , i think there would be a substantial political cost. Gore. Ore than bush v bush v gore relied on principles that in some sense we all agreed with like equal protection. You might disagree about how the court deployed it but nobody was arguing whether equal protection was a value within our system. But if we announced tomorrow that these electors are free or in the course of a president ial election the electors are free and they get to change their vote i i think the resistance would be huge. So im trying to forestall that. So to forestall that i want to get two bites of the apple i want to forestall that. And also create a system that more regularly assures that the person who wins is the person who wins. And he or she wins by appealing to a wide range of americans. I think for the question is really good. So whats the failure mode of the system whats the worstcase scenario. And i think for for professor lessig, the worstcase scenario is faithless electors. And to a lesser extent the feeling of alienation from the electoral process. To my mind the faithless elector problem is small. And the feeling of alienation primarily rhetorical. You know, it is really hard to say who would have won the 2016 election which party would have won if we had had a popular vote. We know what actually happened in the vote we did have but in a world of you know standard National Popular<\/a> votes the primary system would probably work differently. You might have different candidates running. The Candidates Campaign<\/a> differently. Voters and what we now consider safe states act differently. And it is kind of like asking you know who would have won last years ncaa championship if you didnt have to dribble . You know it is just no theres no way of assessing of like re rerunning that. The completely different world of a National Popular<\/a> vote or indeed i think even a fractional proportional Voting System<\/a>. So to my mind the failure mode is not that people are alienated from the Government Policies<\/a> they see around them which i think most people dont even know. And you know are not really acting on in terms of that sense of alienation. The failure mode is the national recount. I think that thats the one where people would really think the election has been stolen the winner is we cant trust the illegitimate. Other side theyre engaging in all sorts of shenanigans. So we should, too. And you really have a breakdown of of civic. So to my mind the the electoral in political trust. So to my mind the the Electoral College<\/a> is the first barrier against that. And then the secondary worry is governments that disregard state interests in order to to pursue more general ones. And sometimes thats a good idea. And sometimes not. And i think the Electoral College<\/a> partly halfway good enough gets us to the consideration, the interest we want. So one really important agreement that i want to concede. Im told im not supposed to concede in a debate but here it is, a concession. If in fact we could demonstrate that this would increase substantially the risk of these kind of nightmare scenarios that have been raised by the question by the audience. And also by you i think that would be a great argument against it. I dont think that we have the basis for making that claim right now. The second point is youre absolutely right we have no way to know exactly how these campaigns would be run. People,e a couple of political scientists who did interesting work. A swedish professor who is the most advanced empirical analyst of american political president ial campaigns has actually done the modeling under National Popular<\/a> vote in proportional allocation at the fractional level. And under the existing system. And it is interesting how those things differ but we dont know. But that i think is an argument it is a kind of behind the veil of ignorance argument in favor , going back to your point about what is the principle weve got here. So im advancing a principle. And i dont know if it is gonna benefit republicans or democrats, i really dont. But if we had a system where we could say to people, everybody matters. And the empirical types like kriner. And reids would not be able to say we continue to have terrible farm policy. And we continue to have terrible import policy around steel because of this stupid system , that would make us all more confident in the political process. I except and appreciate your concession. I do think people would end up fighting over the you know and eighth significant figures and eighth significant figures seventh in a world where we had. 09 percent margin i think you would find a lot of election controversy even in the fractional system. And i think that fundamentally the worry that people are deprived with a voice is not accurate. The people do have a voice they , have their voice in the state. And i think theres a reason in a system like ours for the states to be the ones that matter. A question over here. I would be interested to hear from both of you, what you think would happen if we had something more like a popular election. Whether it is professor lessigs proposals. The role of swing voters versus base. Ultimately, who would get this alternative universe, which voters would be catered to. Like nationalre Interest Groups<\/a> . Particular types of single issue voters, etc. Your thoughts on that. Can we take the other question. And then well do a little lightning round. We just have a few minutes left. Thank you all for a really good conversation. My question stems from sort of it seems like an agreement that we dont have the system the framers intended even if were , operating under their legal rules. So im wondering it seems like the framers intended for the Electoral College<\/a> to be a mediator body that they intended it to be a group of wise elected men who could filter the will of the people. So you had the popular election which was the democratic element. The more aristocratic element , the wise electors. And then you would have the monarch element of the presidency. So you would have all three balance there. Is there any reason to think there was virtue to the idea of electors being more independent and giving in being you know select people from the electorate that could help choose the president. And exert their own independence. And is there any reason any way that we could have a system more like that and would there be any virtue in doing Something Like<\/a> that . So let me take the second question first. So my sense maybe im wrong about this but my sense is that theres no way in hell the world would accept right now the quote elites of the Electoral College<\/a> secondguessing what the people do when they vote. I just dont think that is possible. Was it ever a good idea i idea . I actually dont think the motivation so much about the elite but it was more about the practical problem of running a National Election<\/a> in a context where it takes months even to get information from one end to the other. And their expectation was that you would have lots of favorite son candidates. And you would have a mediating body eventually that would be the house that would fort be be forced to decide many of these cases because you just wouldnt be able to get to the majority candidate but the driving force and foleys new book on this is really fantastic , the driving conception especially after the 12th amendment was to drive towards a majoritarian president. One who was not a fractional 33 but really was somebody who could be thought of to represent the majority. The other part about this is you know it is really important to recognize that when the twelve weve had two Electoral College<\/a>s, the one the framers gave us and the one after the 12th amendment. Those are very different institutions they expected very different president s. The first Electoral College<\/a> expected George Washington<\/a> types. After the election of 1896 people realized there was no gonna be George Washington<\/a> types anymore. So then we had the really contested Political Party<\/a> president. Thats what the twelfth amendment tries to adjudicate but whats striking about the twelfth amendment is when the 12th amendment is debated we , have already had socalled faithless electors or weve had. We have already had independent judgment by electors. And it is quite clear that they dont think thats a problem to be salted solved. They dont talk about it they dont fix anything in the twelfth amendment to try to address this issue. So theyre still ratifying the idea that there needs to be this ultimate check or this opportunity to make that check. And and however compelling that was then i still feel that we , live in a time but it is hard to see that compelling now as to as to your question, it goes back to this question of do we anymore,ve moderates or do we have mixes of people on either extreme . Generally dont know the answer but we do have a range reason to include a wider range from a wider mix of america in the choice of the president. I would love to see the relatively extreme republicans from california and new york compete against the extreme republicans from string suit strings swing states. I would like to see democrats from kentucky arguing from democrats from massachusetts. That would be a more interesting representative Democratic Party<\/a> than the one we have now. I think these empirical questions are really important. I would agree. Are hard, especially about the future. I honestly do not know. And you know jfk in 1956 when he was in the senate. And they were arguing about this said if we if we adopted a different system the Electoral College<\/a> the whole solar system of government power would be affected. There would be knockon effects throughout the entire system. And i cannot predict for you precisely what those would be but i think the very fact that we cant predict is a good reason to hold off. You know simple systems have simple problems. And complicated systems have complicated problem. And we dont know what the complicated problems would be or how they would surface or what other sorts of measures we should take to prevent them if you look at the twelfth amendment they corrected a lot , of things but even though they separated voting for tickets with the president the Vice President<\/a> , they still allowed for a president and Vice President<\/a> from different parties if the president election goes. To the house. And the vp election goes to the senate you could get different answers. And that would be terrible. So i i would i would in general be skeptical of our ability to plan for problems that were not we are not thinking of yet. And i think thats one argument to stick with an existing system the devil we know. On the question of the aristocratic i think as a , practical matter agree with professor lessig, theres just some no support for that right now. If i were again designing the system you know the convention for a long time thought that congress would pick the president. I see some advantage in having the new incoming january 3rd congress which was not what they were working with if they were working with the outgoing lameduck congress. And they didnt want the president to be selected by a lame duck where they thought that people could be bribed. And people could be influenced in lots of ways. I dont take it would be so terrible if the new Incoming Congress<\/a> picked the president i think you might have had you know president paul ryan or president nancy pelosi. And i dont think that that would have been the worst thing for the republic but i think that right now not you know people like voting for the president so i dont think that channeling the popular element through the house of representatives has enough of a constituency. And i am told we are out of time. So if you could all join me in thanking our guests. [applause] you are watching cspan, you are in of government. Created by americas Cable Television<\/a> companies. Brought to you by your television providers. It is election day 2020. Our live coverage begins now. For the next 12 hours, we will hear from the candidates and you. Cspan. Your unfiltered view of politics. Thank you for joining us. Election night, 2020. Even though 100 million americans have voted early, there are millions of votes","publisher":{"@type":"Organization","name":"archive.org","logo":{"@type":"ImageObject","width":"800","height":"600","url":"\/\/ia601707.us.archive.org\/10\/items\/CSPAN_20201104_002400_Federalist_Society_Debate_on_the_Electoral_College\/CSPAN_20201104_002400_Federalist_Society_Debate_on_the_Electoral_College.thumbs\/CSPAN_20201104_002400_Federalist_Society_Debate_on_the_Electoral_College_000001.jpg"}},"autauthor":{"@type":"Organization"},"author":{"sameAs":"archive.org","name":"archive.org"}}],"coverageEndTime":"20240716T12:35:10+00:00"}