It is also better from an equal protection perspective. He said there is nothing not democratic about the system. The Supreme Court has expressly said that a winner take all system like this, which basically resolves the allocation of delegates at an 1963im level, like in footnote 12, the court expressly which is that system, basically Electoral College at the state level, is a system for counting the votes of the minority for the purpose of discarding those votes. Whathat was a violation of equality would require. This alternative would eliminate that problem. Givethis would do is everybody more power relative to the current stump which gives power to the Supreme Court instead. In the end the only argument we are going to have each are that my alternative would biased in favor of the small states, whereas the current alternative bias is in favor of the big states. I can tell you many on the right would be surprised because many on the right think the Current System bias is in favor of the small states. Im glad we are in agreement that that is not what happened. But i just deny the empirical claim. There is no basis for expecting the relatively small number of votes from the small states would create a systematic advantage for those states relative to others, especially when you consider the cost of campaigning in different states. It might be, but there is 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 a president. Why is that burden not enough on my side . Lets tinker and figure out something that could be better. I appreciate that and i also apologize if i had been unclear. Hat from which we picked out the names of swing states and safe states and declared only the swing states could any ever have influence, i would agree with you. I think that is a bad system and it would bias the system in all the ways you describe. But there is no hat. The reason why states are swing states is because the people 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 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 266,000 in as many, or one third to get an extra electoral vote in wyoming. Because they are different and they do not show up as much, 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. 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 an exactly even balance. It is a clutch. It is a compromise. So it 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 statebased 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 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 was hayes tilden, where tilden reportedly got 3 more than hayes. So whether he actually got 3 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, 3 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 might 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. Prof. Lessig 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 age which is substantially different, but also the kind of industry that they are interested in. So if the president is supposed to be a National Officer, that is why that book by reeves and kriner is called the particular president. Theyre supposed to be a National Officer 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 in what the future of the United States would look at. So it is a pretty bad selection of this subset of the United States 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 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 votes. It eliminates it not completely because of the design of a thumb on the scale that gives wyoming three Electoral College 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 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 mushes out the influence of states by turning into very small fractions here and there . And i think that the administrations arguments against a fractional vote are Strong Enough 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 ok, 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 turn out 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 them. They just dont exceed the number of people who disagree with them in their state. And 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 their vote. Thats why theyre counting them. Judge rao i think it is probably a good time to move to some questions. Please wait for the microphone. My questions are mostly for professor lessig. The United States 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 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 together. And that prevents secession. And i regard secession as a total failure of the american constitutional and national project. Second, one of the Great Electoral of the college is that it always produces a winner on election day. You always know by midnight or 2 00 in the morning whos won in the Electoral College. With a National Popular 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 county would discover 360 george w. Bush. Another county would discover 570 for al gore. And back and forth it would go. We could go from election day to Inauguration Day without really knowing who won the popular vote, because partisan Election Officials in the 50 states would find votes that we might not otherwise find. The Electoral College 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 one, section 10. No state shall 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 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. Prof. Lessig 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, id have to insist that that benefit needs to be justified against the cost, which is to tell new york republicans or California Republicans or Texas Democrats 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 still is an important argument left unsaid. 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. Prof. Sachs so if i could speak to two points there, first on the compact clause, the Supreme Court 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 vote compact says you cant withdraw from this agreement 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 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. And i think thats classically the case with the National Popular 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 appoint, 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 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. Then it makes sense to say that, yes, it is unfair for a California Republican or a Texas Democrat 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. Lessig lets just be clear about one thing there. Again, the point in gray is it is not ok that in the interim step along the way to ch