Thank you to the Federalist Society for hosting this debate at its annual faculty conference. Im delighted to be here with two distinguished scholars to moderate this debate on the question should the Electoral College be as you are aware, the constitution establishes an Electoral College for choosing the president meeting in their respective states, the electors vote by ballot for the president and Vice President. Alexander hamilton wrote in federalist 68 that the Electoral College will provide a practicable obstacle 2 intrigue and corruption, he said that it would impose capable discernment for deliberation over the selection of the president. Hamilton thought the system best designed to vent, and disorder. As we head into the 2020 president ial election, debates about the Electoral College once again emerge over the desired voting of our constitutions method. This debate is an important one about our republic and about our constitutional form of government. It raises questions of civil, what are the values to be promoted in a democratic republic . In a federalist form of government . What precisely does the constitution require electors, of electors, and how far can states regular what their electors do . How do concepts of Voting Rights such as one man, one vote impact these questions . In addition to the requirements and political principles, debates over the college are invariably about practical concerns. What are the consequences of the college for Political Parties and campaignfinance . For democratic accountability . For correction, for promoting the values of a Constitutional Republic . For our debate we have two scholars who i will briefly introduce. Debating in the affirmative we have lawrence who is the professor of law and leadership at harvard law school. He is the offer author of many books on the topics of government, and flexural property. His recent scholarship has focused on political and other forms of corruption. He ran for president in 2016 and he is the founder of equal citizens, a nonprofit with a seemingly Simple Mission to fix democracy by establishing truly equal citizenship. Arguing in favor of the Electoral College is steven sacks 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 on the conspiracy where he is written about the Electoral College. Our pharma is simple, the professors will each give an Opening Statement which we will follow with some responses and discussion and then open it up to questions. As excited as you may be, we will not be putting the question to a popular vote. [laughter] with that, professor. Thank you so much and i am grateful to the Federalist Society for entertaining this debate, i hope it is more a discussion. You know in the middle of this president ial 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. What i want to do is move beyond of pyrotechnics of this populist question and focus on what i think is a really hard and important question we need to resolve. Im going to propose a solution that i do not believe anybody should oppose. At least on principle. To get to that solution im going to go through three steps, i am going to talk about what it is, what the Electoral College is. Not that you do not know what it is, but the critical elements i think we have to keep in focus, second then, 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 import 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. States in the senate idea that they are running the state and the cap elation is determined to determine who gets the Electoral College votes for that state. Number two, it is essentially winner take all in the states. Essentially maine and nebraska have a partially winner take all system. Under a winner take all 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 number three, it is all your riven elect tour driven. If you get 270 electors, you win the contest, but it is electors driven that in the sense that electors are people and they play a critically Important Role in deciding how those votes get cast. It is important when you think about these elements to identify which of them is actually in the constitution. Plainly, the statebased character of the Electoral College is in the constitution, that is it design area did winner take all is not in the constitution. Winner take all developed just after the jacksonian. Period to be the default way in which electors would be allocated. There is a race to the bottom or top pending on how you conceive of it. When it first started, jefferson was completely outraged that this is the way electors would be allocated but it was an innovation the state imposed on the structure the framers gave us. And number three, it really is elect tour driven elector driven. I am a little conflicted on this question, i am the lead counsel in a pair of cases that the Supreme Court will decide whether to grant on friday. They are two cases which address the question whether electors can be legally bound to vote the way the state wants them to vote. The 10th circuit wrote a 120 page opinion saying no they cannot be bound, the washington Supreme Court concluded that yes they could be bound. I think it is obvious i am going to even say here in the Federalist Society it should be obviously clear that electors cannot be bound by law, they are constitutionally free. They are constitutionally free, because the state has the power to appoint, the power to appoint does not carry with it the power to control performance of the office to which you are appointed. Just ask any president when he were or possibly sunday she reflect on what Supreme Court justices they have appointed, do. And number two, 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 discussion. 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, you have said they exercise 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 penalized somebody for exercising fender federal function the way the state does not want them . The answer is no, not since mcculloch. Since the electors are quote electors, electors are in the sense free and this is a critical element of the design the framers have given us that we must continue to reckon with today. These three elements can be judged independently and here is how i judge them. The factor 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 has been reported that there was him according articles from the times which have been denied but i am going to report what has been said, leading up to that election, the George Bush Campaign thought 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 given the current context of our democracy, that would be an extremely difficult thing for the nation to accept. The second feature, that it is winner take all i think is really awful in a way that i want to describe. The third feature, im going to get in trouble with my liberal friends, but the third feature that it is state based is in my view is good enough for government work. It is a design feature, not flaw and i want to describe a solution that does not try to take that away. The fact that this is constitutionally compelled means that if you wanted to fix the problem of elector freedom, it is going to require Something Like an amendment. I want to start by focusing on the winner take all feature because i think that is the core to understanding the problem with the current scheme. There is an obvious logic to winner take all, a political logic. The political logic is the only states that matter in a winner take all system are the socalled swing states. Those of america thinks that this is the country that elect our president , but of course it is this country that elect our president. The socalled swing states of america. In 2016, 90 5 of candidate appearances were in these 14 states. 99 of campaign spending. The thing about those swing states as they are not small states, they are not rural states, they are not slave states, they are not specially intended states. They are swing states meaning they are sufficiently purple to be states that could go either way. The logic of campaigning is you only waste your money in places where the result could go either way. 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 winner take all in the swing states, it was not what they were conceiving of. And number two, the swingers do not represent america. They are older, they are whiter you hear about coal miners because they are throughout the swing states. What this means is that the entity electing our president is not representative of america. Which means in this sense, its an unrepresentative 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. Ok. So, how would you fix this . Well if these are the elements that need to be fixed, the easiest fix is something called the National Vote compact. It is 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 winner take all problem. 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 it 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 10 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. So the intuition here is pretty clear. If the state of montana votes 35. 4 for the democrat, which is what they did in 2016, then the democrat would get 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 proportionally between the two 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 is on 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. Ergo not really appropriate for an ergo, but every debate needs an ergo somewhere in it. 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 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 it, if the electoral freedom problem crates a strong motive. If the Supreme Court declares that electors are free to actually address the problem and fix it, i get that is a big if. But if we need to fix it, then we should fix this too. 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, to 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, 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 laid down. Following that framework we have adopted a system of popular elections statebystate. And i think the most important thing to remember about the Electoral College is that it is statebystate, as martin diamond stated nearly 40 years ago