Building Democracy Back Better with Sam Wang

This podcast is part of the Democracy Group. This is Larry Lessig. This is another episode of Another Way. And this time we're going to talk to a neuroscientist. Now you might wonder, what does a neuroscientist have to do with the problems we've been discussing? And today we're going to talk about the challenge of passing HR1. And the answer is neuroscience doesn't have much to do with it, but it turns out that one of the leading figures in the reform movement for politics is a neuroscientist at Princeton, a professor of neuroscience at Princeton, but he is also the leader of something called the Princeton Election Consortium, which has a gerrymandering project in it and has been focused on the challenge of bringing empirical analysis to the problems of elections. And so he's been running the Princeton Election Consortium since the early 2000s, I think it's 2004, and they've been studying and advising states about gerrymandering and other election related issues. And he has been instrumental in crafting solutions to the problems of representative districts and making those districts more representative rather than simply partisan. In 2021, he committed the Princeton Election Consortium to the project of building democracy back better, not fearing the trademark action that Biden might bring it back bring against him. But maybe that's because he's trying to support the project of the president to build back better. So he wants to build democracy back better. And today we're going to talk to him about two problems that we've talked about many times, gerrymandering and the Electoral college. Stay tuned. Sam, thank you so much for talking with us. So we've been following the progress of democracy reform on this podcast. You've been at the center of democracy reform for more than 16 years, I take it, given the history of the work of your center at Princeton. But let's start with gerrymandering, which has been a focus of your work for many years. Why should we worry about gerrymandering? Why is this an issue that should be at the top? Because it's your view it should be at the top of anybody's concern about how to make a system fair.

In our peculiar system of, of representation, we have these single member districts where by tradition and by law, at several levels of government, we have individuals who represent us in these specific territories, Congressional districts, legislative districts, even things like school districts, because we have this peculiar system of representation. I mean, maybe not that peculiar. It has the additional feature that the lines are drawn by legislators in most cases. And so that means that legislators can. Can have say over who their constituents are. The reason we should care about this is that that quirk of legislators controlling their own line drawing introduces a weird bug in the system where they have more power over who's in the legislature or in Congress than we do as voters. Just to give you a sense of it, we worry a lot about having an accurate census count, which is, of course, essential in drawing districts and allocating how many members of Congress each state gets and so on. So an accurate census is very important. But in fact, line drawing can have consequences for representation that are much larger. It's possible, for instance, for a congressional delegation, say in Pennsylvania, to be anywhere from 13, five in one direction to something like 10 or 11, to, say, 11 to seven in the other direction. And that is something like a third of the delegation that's just at the mercy of whoever draws the line. So that's representation. Then there's an even more fundamental principle, which is of responsiveness, which is to say that we expect our representatives to be responsive to our needs, to our anger, to our requests, to the risk of being turfed out of office. And that responsiveness of individual legislators to. To voters is basically destroyed by gerrymandering, where no matter what party you belong to, if you are drawn into a safe district, then you are insulated from voters, and that's irrespective of party. And so for these two reasons, representation and responsiveness, gerrymandering is the soft underbelly of all our democracy.

So let's focus on the second one for a second. So the argument is safe seats destroy responsiveness, because why does a congressperson care, either care about the Republican or the Democrat doesn't matter. In a safe seat, what percentage do you consider safe seats right now?

Well, these days, for the last 20 years, we've had unprecedented levels of polarization where the issue stands that the two parties are quite far from one another.

And.

And that means that voters are pretty reliable in their habits, even if they say they're independent voters are pretty reliable Democratic voters or Republican voters, even if they're not registered that way. And I would say that any district that is, let's say, whose margin between, let's say Biden and Trump in the presidential election is eight points or closer, I would call a competitive seat. And if it's more than eight points, I mean, that's not very much. Right. What I'm saying is that if A district is 5446, it's borderline not competitive, and a 5545 district is not competitive because of how polarized we are these days.

So because we're polarized, that means we're not going to respond or be open to responding to the other side. So that means we're just locked in regardless of exactly the strength of our own candidates.

Yeah, there's lock in at several levels. There's individual voter lock in. And the reason is likely that there's just not that much reason to vote with the other side. Because for some reason now more than perhaps ever, our attitudes about race, our attitudes about social programs, our attitudes about guns and abortion, and even now, actually, oddly, vaccination, all these different views are correlated with one another so that there's less and less common ground with the opposing party, less and less reason to compromise. And as a result, it's just easy to tell which party you like better. And that polarization leaves very little room for hopping over the fence.

Yeah, so the identity you become, this is almost an identity issue. And who can vote against one's own identity? But then imagine, let's take a completely safe seat, Democratic district, or we could say the same on the other side, but let's start with Democratic. And you're a congressperson in the safe seat, Democratic district. Are you afraid of no one?

The one you're afraid of is you're afraid of a primary challenger. You are afraid of being taken down by members of your own party. So for instance, when Alexandra Ocasio Cortez came up, she was an unknown challenger and much to many people's surprise, she was able to take down a veteran many year congressman. And so he was quite surprised by being defeated by this upstart. Likewise, Eric Cantor, a majority leader on the Republican side in the House, was taken down a few years ago by an unknown who was regarded as a fringe figure, David Bratt. And so what you fear in a safe district is you fear challenges within your party. And that's a primary election in most districts, in nearly all districts in which the people who you have to face are the most loyal members of your own party and you never have to face voters of the other party, you never have to be concerned about them.

So by most loyal, do we mean most extreme or what is most loyal in this context?

I meant it just in a literal sense, most likely to turn out in the election, in the primary election. So what I meant was people who are in most states there are exceptions and the exceptions are super interesting. In most states it's people who are registered to the party because primaries are often closed to independents and members of the opposing party. It's people who are the most likely to vote in the primary often, but not always. That's going to include people who are more ideologically oriented than the general population. It's not necessarily the case that they are, let's say, I have to be careful here. The way I'd put it is that they are the ones who are the highest information, the most attentive to politics and the most willing to go out and vote. And those are primary voters.

And so these primary voters, then you're describing them as most committed. I'm trying to get a sense of whether you also think that they are furthest out on the spectrum for their party or not necessarily furthest, but to the extent that they're engaged, they're more conservative on the Republican Party, more liberal or progressive on the Democratic Party than the median Democrat or median Republican.

Well, I'm hedging because I think it depends on the district. I'll give you an example. If you look at the vote to certify the electoral votes in January in the most recent presidential election, if you look in Pennsylvania, in Michigan, and I believe in Ohio Republicans, Fisher, the ones who are in pretty safe districts, like let's say the districts that are 55 to 65% Republican, those members of Congress tended to vote to certify the electoral votes. If you look at representatives who are in districts that were more extreme, say 65% or more Republicans, so like really deep red districts, those districts were more likely to vote, to overturn the electoral votes and to basically disrupt the conduct of the presidential election. So it's going to depend on the district a bit. I It appears to be the case that when there are lots of Republicans in a district, there is more of a tendency to for, you know, obviously to state the obvious more, the district is willing to do something like that, which is a pretty extreme move in my view. And the representatives recognize that they are not in any particular danger if they take that point of view. So I don't I think the political science evidence is that they're not necessarily more partisan than the general population of members of their party who don't vote. But they're just the only they're the ones, they only have to worry about members of their own party. And I and so I'm backing off a little bit from them being particularly different. But I will say that it is true that primary voters are they're high information, they're likely to turn out and to back up to a Broader point, they're the pivotal voters. And so now if you're an incumbent in a deep red or deep blue district, the pivotal voter who you have to please is different from the median voter in the district. And so we have a situation where the pivot point is pretty far from the middle of the district.

Yeah. I mean, you can imagine many of those who voted on January 6 not to certify the results of the Electoral College vote, which, as people in this, listening to this podcast know, I believe had absolutely no basis in law. This was not even. There's just not a question to it. There was just no plausible ground on which not to vote to certify those results. But the people who did it did it because they were terrified of a primary challenge by a Trump Republican. Right. So that is much more plausible, plausibly, something they should fear in a really strongly Republican district. Right, yeah.

And they, you know, to. One interesting feature, I would say, of what scholars have called elite polarization is that this voter anger has successfully been translated under current voting rules into elite polarization, where voters feel this way. Lots of voters in these deep red districts felt strongly about this and didn't care about the law. And so these people are. Well, it's the House of Representatives, and they're being representative of their constituents. Now, I'm under the impression that the founders didn't really quite mean it for the House to be that representative. But anyway, that's how representative they are, and they've been in recent months and years, pretty reflective of their constituents in a very direct manner.

Okay, so one point, the point we've been focusing on so far is that to the extent you have a House of Representatives that has been gerrymandered to have maximal number of safe seats, and those safe seats are occupied by the most engaged voter from each party, whether they happen to be at the partisan extreme or not the most engaged voter, that means you've got a House that is. You know, members are constantly looking over their shoulder for a threat from an even more extreme member of their own party. So they're sensitive not to the median. Right. They're sensitive to. To the extremes, which seems counterintuitive in a representative democracy where we want the representative to worry about their constituents, not just the fraction of their constituents who might be more extreme and challenge them in a primary election.

That's right, yeah. Just the this and these things, I would say, didn't matter as much before when there were incentives and when there were incentives for members to work across the aisle from one Another. And you could imagine members of either party being interested in voting rights or civil rights or other rights or other social policies. But when that incentive is gone, then it creates a situation in which the polarization collides with these mechanisms, and then you end up with this crisis that's been building over the last 20 years or so.

Right. Okay, now let's go back to the first point you were making about the significance of the ability to draw these districts and the. And the variance that it can produce within particular states. And we've seen the dramatic examples of this in Pennsylvania and North Carolina. People argue about whether Maryland is really gerrymandered or not. But the point is, this is a hugely important decision from the perspective of whether the majority in a state is actually represented as the majority in the House of Representatives. You refer in the writing on the Princeton Gerrymandering Project's refer to the great gerrymander of 2012, which some people on this podcast have heard me talk to Dave Daly about that a little bit. But let's put the historical context out there first before we turn to what we fear might be the great gerrymander of 2022.

Well, 2012 was a pretty unusual year for redistricting because there was a wave election in 2010 in which Republicans were newly catapulted to power in state houses around the country. And I would characterize the situation in 2010 as one in which there was, as they say in the police procedurals, there was means, motive, and opportunity. And so the means is technology to draw aggressive lines. The motive, which is this polarization that we've been talking about for the last few minutes, and then this wave election in 2010 in which there was the opportunity to draw lots and lots of gerrymanders. You mentioned Maryland. Democrats were in control there. That was, I would say, if one wants to be aggressive about these things, that was a bright spot for them. The tendency of Democrats is to draw single districts that are safe for individual incumbents. And I think that's partly. Honestly, I think that's partly because of the coalitional nature of the Democrats, where they want to draw single districts that are safe for their incumbents. In the meantime, Republicans had lots of opportunities in 2010 to draw gerrymanders. And the tendency of Republicans, at least in 2000 and again in 2010, was to draw, let's call them representational gerrymanders, partisan gerrymanders, where they maximize the number of members of their own team. And that requires more artistry. So it requires more. It's a little Bit more technological because you have to be able to not only draw a safe district, but draw it to just the right level of safety. You have to draw your own districts to be pretty safe. 55, 45. And you take your opponents and stuff them into districts where they're super safe. 75, 25. And so those super safe districts, your opponents are now packed into a few districts, and that's how you get a larger team, at least in terms of elected legislators. And in 2012, it happened over and over again. It happened in Ohio, Michigan, Pennsylvania, Wisconsin, North Carolina, Ohio. It happened in many, many states. And that led to a pretty significant representational distortion. And it's really the largest distortion in modern times. It's only been about 60 years that we've required congressional districts to be of equal population as per Supreme Court decisions. And in that whole era, I would say that 2012 was really the biggest distortion in the entire period.

Okay, so I don't want to quiz you, but can you give us a sense of the kind of distortions we saw?

Well, let's see. Pennsylvania is a quintessentially Purple State. Votes 50, 50. You might expect it to be, say, nine Democrats, nine Republicans, maybe because of the way Democrats are packed into the cities. You might expect, say, 10 Republicans, eight Democrats. What actually happened was 13, five, where the delegation was 13 Republicans, five Democrats. Similarly in North Carolina, that's a state with 13 members of Congress, and there, again, it's a 50, 50 state. But the delegation was not seven, six, it was nine, four. And then in the next election, 10 to three. And so it's another case in which, in that case, let's say about three seats were picked up by the people in charge. So it's really in purple states that the gains are greatest, because it's in purple states that things could go either way because it's about equally divided and you gain the most. One reason it's hard to judge a gerrymander in Maryland is that Maryland's a pretty reliably Democratic state. And so it's just. There's just less to gain when you're in a strongly partisan state.

Yeah. Okay. So all of that happened, though, in a context where the Supreme Court was not yet clear about whether there was such a thing as an unconstitutional political gerrymander. Right. Now, that question has been answered in the interim. The Supreme Court in the Ruto case has said that the Supreme Court's just not going to have anything to do with judging the constitutionality of a gerrymander. So as we come into 2022, the technology is better, the motive is as strong, maybe stronger. The potential constraint of the court is gone. So what might we expect coming out of this next? Let's also make sure we're clear. The Republicans have gained control over a significant number of state legislatures. So what do we expect might come out of this 2022 gerrymandering?

Well, let me preface this by saying that my wife accuses me of being an optimist. And so I'm going to say I'm optimistic that it won't be as bad as last time, because it was just so darn bad last time. And the reason for that is that there's two reasons. One is the opportunities are fewer. And so since that time, there's been a lot of voter anger. There's been a lot of response on the voter side. And so it's less possible to do in Ohio because Ohio now has constitutional provisions in the state constitution against gerrymandering. Michigan and Virginia now have independent or quasi independent commissions that take the power out of the legislator's hands. Wisconsin and Pennsylvania have split party government where the governor is a Democrat in both cases. And the legislatures are controlled by Republicans, in part because of gerrymandering, in large part because of gerrymandering. And so the opportunities are fewer than before. And I'm going to say there's a silver lining in the Ruchot decision, in the Supreme Court decision, and that's that if you look at the decision, Chief Justice Roberts spent a lot of ink saying bad things about gerrymandering and even kind of, I don't know, like maybe I'm just reading tea leaves, but kind of spending more time than necessary talking about how bad partisan gerrymandering is, but then turfing it off to the states. And the optimist to me says, oh, good, we don't have to waste time trying to please Justice Kennedy or Kavanaugh or what have you. We are done with the federal route. And the reason that's important is that lawsuits can take forever to play out. And so people who commit this offense can make it through most of a decade and harvest the benefits of the gerrymander. And we don't have to worry about what's on Justice Kennedy's mind anymore. We can just go straight for the state by state remedy. And so because of changes in state laws, because of a couple of states where state courts might be sympathetic, and because, frankly, citizens are more engaged in this topic than before, I think the offense is going to be less bad than it was 10 years ago. I'm actually pretty confident that it's going to be less bad than 10 years ago.

Okay, but then what's the net net? I mean the New York Times in an article surveying experts said that simply from redrawing districts, the majority that the House, the Democrats have in the House could be flipped. You in your own article about this said there's a serious chance that the majority will flip in 2022, attributing it to the gerrymandering. Do you think that through the gerrymandering alone we could see the districts drawn in a way that achieves minority majority status, meaning Republicans have less votes than Democrats, but Republicans nonetheless have more seats in the House?

Well, I admit that you have burst my bubble. So I would say yes to that. Remember that control of the House is really very closely determined right now. I believe that the Democratic majority only has a six seat margin over the Republicans at the moment. So they really have not very or 12 vote margin. I believe a flip of 6 seats is enough to, to change control. And so the things that are changing right now are there's reapportionment. We just had a census. Sunbelt states are going to pick up seats. Northern and eastern states will lose seats and net that's going to lead to Democrats losing a few seats. It's hard to say exactly how many, but I'd say that's going to be a net loss of about three seats for Democrats. And then you're right, there are a few states where offenses can be committed. I would say the states that I'm watching the most closely are again, North Carolina because the governor has no say in redistricting there. Florida, Texas, maybe Georgia. So these are states where there's still a risk of an offense, a partisan offense. And so it's easy to imagine a handful of seats being picked up at least for a few years until courts can step in. And so yeah, there's a substantial risk that that by itself will be enough to cause change in control of Congress. And so I would say firstly, there's an awful lot of work to do to try to mitigate that harm before it happens. Sorry, prevent the harm, I guess. And secondly, if anyone's a close watcher of policy, I would say I think Democrats are In the about one, I don't know, call it 1/5 of the way into a two year window of having relative control over the House, the Senate and the presidency. And nobody should be planning on that continuing after 2022.

Yeah. So let's talk about federal policy. I mean, you said we now don't have to worry about Justice Kennedy's thinking anymore. It's clear the Court is not going to do anything. So therefore we can think about the states. But in addition to the states, obviously one thing on the table, one really important thing on the table is HR1, which has an enormously important, I think, and that's my question to you, effort at eliminating gerrymandering. Obviously, they can only do it for Congress because it's under Congress's Article 1, Section 4 power, but at least for congressional districts, eliminating or trying to eliminate the partisan gerrymander. So to the extent you, you feel confident about that, what do you think about the HR1 opportunity and how important do you think it would be to avoiding a repeat of 2012 in this regard?

HR1's provisions are absolutely essential. The way I would put it is that I think that we get passionate, and I think rightly so, about the individual right to vote, whether it be mail in voting, voter ID, and other forms of ways of manipulating the ability of individuals to vote. But as I said before, redistricting is this later point in the pipeline where even if everybody registered to vote, their votes could be largely rendered powerless by aggressive redistricting. And so one really nice thing about HR1 is it's got a whole title in it, or a subtitle rather, that is specifically about congressional redistricting. And it does a few things. It sets up commissions, which, as you say, are under Congress's power to establish. It sets up commissions to oversee congressional redistricting. It sets up rules, so not only processes, but also sets up rules to say that states have to follow uniform rules to not favor or disfavor one political party or another, to protect the political effectiveness of communities of color, to elect representatives of their choice, and to keep towns, neighborhoods, and other areas together where possible. So it puts in standards and it puts in processes. And taken together, this can really, if it makes it into law this year, which is of course, on the minds of a lot of people who watch civil rights and voting rights, if it makes it into law, this can, at a stroke, put a heavy, heavy dent in congressional gerrymandering.

And so let's just emphasize what that means. I mean, one of the features, or you could say bugs, of our whole system of representative democracy is that we are precariously majoritarian in the sense that it doesn't really necessarily translate between getting the most votes and getting the most power. That's true. Obviously, in the Senate, it's true in the House because of gerrymandering. It's true in the presidency because of the way the Electoral College works. And to the extent that we imagine 2022 to be an election that follows both the efforts to gerrymander and the vote suppression bills that are passing, you know, being considered and passed through the states, there's a real opportunity that in the House at least, there would be an entrenched minoritarian government in the sense that we can clearly see that the Democrats get more votes, but we don't get more seats because the institutions of elections have been structured to mean the winner isn't the person who gets the most votes. And once we start down that path in a world where the Supreme Court has kind of thrown up its hands and says it's not our job to police here, it's hard to see how the ordinary democratic process works out if the winner isn't actually the majoritarian winner in our system. How long before we become Iraq or Rwanda or whatever? Pick your minoritarian favorite. To that extent, when you say this is absolutely critical, I think everybody needs to wake up to the fact that if we don't pass this now, there's an extraordinarily important risk we face that we will veer down this path of minoritarianism and obviously weaken the capacity of America to feel like an effective democracy.

Democracy, yeah, I think that's right. I think that there's this circumstance where we've got this terrible polarization. We've also got this divide between rural and urban communities in America where one party currently, it's like a golf handicap or it's like, it's, it's like a spread when you're wagering on something. Not that I'm accusing you of wagering on anything, but it's like a 2 to 4 point spread where one party can lose the popular vote by 2 points to 4 points, still have a decent shot of gaining the presidency, can lose the national vote for Senate seats by again, two to four points. And gerrymandering can take that kind of geographical advantage and blow it up to more like a seven or eight point advantage. And that's a pretty large advantage. And so that's how big the advantage was in 2012. And yeah, one can imagine that this is a significant problem. I would say that the answer at some level is both HR1 and also I think local governance, where we have to start thinking in terms of how people can affect their governments locally in each of these states. In Ohio, in Florida, in North Carolina, in Pennsylvania, and whether that be through state legislatures, through state courts, I would say that people should think of this is going to maybe bend people's minds a little bit. But the phrase states rights might need to get turned on its head where states rights used to be invoked to hold back civil rights. But maybe one should think about federalism as also being helpful in providing a second layer of addressing these problems. But back to your point. Yeah. This is a critical moment in our democracy where I think addressing these problems actively is really essential in maintaining any way for the majority to have its say. I mean, we're not talking about letting the minority have its say. We're now kind of in a regime where the majority has no clear route to having a say, which is kind of a weird situation to be in.

Yeah. I mean, you think about the fact that if the Senate filibuster rules are not changed, the only way the majority can assure that the majority has a say is if a supermajority can stand up and say, yes, the majority ought to have a say. But if you can't get a super majority on the side of majoritarianism, then we're going to have minoritarianism. Then we're going to have a system where the minority has this extraordinary advantage because of these accidents of our tradition.

Kind of a combination of minoritarianism and. And also paralysis. Right. Like you mentioned, the filibuster. And the filibuster creates this funny legislative zone of death where within a certain range of voting, nobody can get anything done. And so we have all these veto points in our democracy where the House can modify the Senate, the President can veto a bill, the Senate has this unique property of setting up, currently having a rule where it can veto itself. And there's just a zone of public opinion where under current polarized conditions, nothing can survive.

Yeah. I mean, what's astonishing about that. We could have a whole episode, maybe we will someday, about the filibuster. But what's astonishing about that is, of course, the filibuster was an accident. It wasn't intended. It was an accident of the ways the Senate rules got amended and the original history, of course, deployed in all sorts of terrible ways. But the original use of the filibuster actually required hard work. You know, Strom Thurmond actually had to stand in 1957 on the floor of the Senate and speak for more than 24 hours to stop the Civil Rights Bill of 1957 from proceeding. And when he got too tired, then it proceeded. But today, the way the rules are crafted. Nobody has to stand on the floor and say anything. Nobody has any obligation unless they want a grandstand like Ted Cruz did when he shut down the government in 2013. Instead, you just have the signal to the leader that you intend a filibuster. And that's it. The game's up until you can gather the votes, 60 votes to bring the motion forward. So, you know, when we see this debate out there about whether we should keep the filibuster, we should be clear what we're talking about is not black and white. You can talk about the right of somebody to stand on the floor of the Senate and continue to debate for as long as he or she wants. Okay, I think it's unnecessary, but maybe that's a good thing. But the idea that all you need to do is to send an email or a text to the majority leader that says, stop this bill that 75% of America supports, and that's it, it doesn't proceed. That's astonishing. Especially in an institution like the Senate, which is already wildly non majoritarian. I mean, you know, the representational gap. I did this calculation recently where if you looked in 1790, obviously the year the Constitution first goes into effect, states representing 26% of the population had the ability to block legislation by just a majority. When you look to 2010, that number was then 18% of the population. States representing 18% of the population would have the ability to block a majority. But when you include the gerrymander or the filibuster, in 2010, states representing 12% of America have the capacity to block Senate from passing legislation. And the idea that any system that would have that kind of block, not for serious constitutional reform, but for ordinary legislation, is either a vitacracy in Francis Fukuyama's sense, or just one that is destined to fail.

Well, I think the Founders had idealistic views that debate in the Senate would be conducted under conditions of actual debate and exchange of views. They had this view that factions would not arise, or at least they set up rules that didn't really quite allow for the power of a determined faction to go up the works. Here we are stuck with these rules where the Founders. I don't know how many people were there in the colonies at that time. I guess there were about 3 million people. So it was a country whose population was about the size of Brooklyn. And imagine, okay, white male landowners, and so a community the size of Brooklyn spread out over the east coast or the coast as it were at the time, and then only the landowners. And so Imagine only the shopkeepers of Brooklyn were setting the rules. And I don't know if the shopkeepers all know each other then and they don't have political parties yet, then of course you can resolve things by discussion. And so they had their rules. I mean, I don't know, they seem like reasonable rules for the time, but here we are with national media communication, partisan lines drawn up, ethnic diversity where people of color can vote, and we've got increasing diversity in the country. And so there's all kinds of pressures that, that create new pressure to find a way to govern that goes beyond anything they imagined. So that seems kind of tough.

Yeah, especially because the one thing they imagined would not happen is the most salient thing that has happened, which is partisan identity becoming the identity of individuals. I mean, the idea of this fractionated too polarized party system was anathema. And of course there's people like Lee Drotman and others have Lee Drutman's book Doom Loop. But others have evinced this point powerfully though. We look back on our history and imagine we've only ever had two parties, and sometimes we've had three, but essentially only two. We've never really had just two parties. Those two parties were themselves ideologically divided. So there's always been a shadow four party system. And in a four party system, nobody can presume to speak for the majority. So they all have to work together to try to figure out how they're going to get anything done. But in our current system, with this polarized two party system, we live in a world where one side believes it can win and then condemn the other side to Siberia and do whatever they want. But that only works for six months or nine months, and then we are stuck in stalemate or stuck in authoritarian presidentialism, which is of course the biggest, most dramatic change in the character of our government. Perhaps.

Well, as a, as a math oriented scientist, I mean, I run a neuroscience lab in my day job and constantly dealing with math and data. And this makes me think of us as falling on a single dimension of partisanship, where everybody's on an axis from far left to near left to moderate to right to far right. And there we are on a single axis. And that single axis of polarization makes it easy to choose up camps. But if we could somehow find a way to get off of that axis by fissuring, by not quite fomenting divisions, but by recognizing contrasts in one or both major parties, then that can get back to what you just said. Call it a four party system. I mean, honestly, at some level on the Republican side, I think we're seeing it in the form of a wing of the Republican Party, a pretty large wing that is willing to overturn constitutional mechanisms to get a more satisfactory presidential election outcome. And that's a. I mean it's not the Fisher I would have liked to see, but it is a fissure within the Republican party. And so it strikes me that things like that, I think in some sense there's a silver lining that it starts to show the possibilities of having more than just two parties.

Yeah, I mean, Democrats desperately want to see the Republicans divide. I think the hard principled question is should we also want the Democrats to divide? Because if we really do think, we do think that we would be better off if nobody thought they were a majority and they all had to work hard to craft a majority, wouldn't that be a better, more governable system?

How would one divide the Democrats? What would be the way in which they would. Fisher. In a way that, you know, follows cracks that may already be there?

Well, I think there is a kind of progressive, non progressive division. I mean I say that even though I myself consider myself a progressive and I very much support, you know, the Elizabeth Warren frame of progressivism. But you know, there are many Democrats who obviously are not. And so there is a division. And you know, I'm not eager to see it happen given I think the progress that's happening right now with this president. But I just wonder for the long term health of the Congress. You've been thinking in two other areas that we're not going to have time to talk about because I want to get to the Electoral College which is where we first met. But you've been working on ranked choice voting and open primaries. Those are two mechanisms that could facilitate this. It's multiplying the dimensions that exist within Congress rather than just having this simple binary which as many people have remarked produces this pathological inability to do anything.

Yeah, there are some good benefits of ranked choice voting. Defanging these pivotal voters, providing incentives for people to no longer trash one another. It feels like a solution that's reasonably well crafted to our current time of polarization and maybe even resolving differences if we end up with multi dimensional politics, as it were. So ranked choice voting does seem like, seems like a good time to do some more experiments with ranked choice voting under current circumstances.

Yeah. Okay, so before we leave gerrymandering, I'll just point to you've got two projects, openprecincts.org and representable.org, which are giving people, I take it, just tools they can use to play around and to model what fair districts would look like. Is that the objective there?

Kind of. I would say there's two major activities we have going in 2021 here at Princeton to try to help with representation. One broad category is bringing up standards of fairness. And as you say, it's at open precincts where we're archiving and setting up an open data base for use by anyone. And also@gerrymander.princetonedu. and the general idea there is to put the data in the service of citizens who want to, to know how fair or unfair their current map is, perhaps score a map. And so we're working with other organizations, we're actually having conversations with organizations such as Representus about how to turn these things into a dashboard that can be used to, just like your car dashboard, when you can look at your speedometer and see that you're going too fast, tell you how fair or unfair a map is. And we're hoping to automate that as much as possible and to turn it into a, a dashboard or even a report card, really make it as simple as possible. So that's one thing we're doing. Then there's this other thing we're doing which I'm really excited about. It's a student project and it's called representable.org and a bunch of computer science and other students here at Princeton, Kyle, Theo, Somia, Michaela, Olivia and others, they have created a tool to help citizens draw their own communities digitally and then create a database of communities that deserve to be represented in a unified manner. Upload that into a shared database and give it to redistrictors, whether it's legislators or commissions. Give it to them in a direct machine readable format to make it as easy as possible for them to respect those communities of interest. And that's, and that's basically crowdsourcing the question of who's a community. And we think that that has the possibility of really supercharging citizen input. And we're rolling it out in a number of states and I think we're hoping that representable.org is a tool that we hope anybody can use in the coming months because, you know, it's all hands on deck.

Okay, great, we will publish these and we'll push them, but let's shift to the topic that is the topic that draw us together originally, which is the question of the electoral college. So to the extent we own and identify precariously majoritarian institutions in our democracy. The one that's been most salient in people's minds, obviously, is the Electoral College and the way we elect the president. So when you think about where we are right now, as opposed to when we. What's the ideal solution? What do you think the right thing to be doing right now is? To avoid the kind of problem we saw in 2016, or came very close to seeing in 2020, I suppose, are we.

I'm tempted to suggest a massive subsidy program to move people to Wyoming.

A friend of mine suggested this, like, to South Dakota, too. And I thought it was silly originally, but when you look at the numbers, it's probably much cheaper than anything else that could happen.

Yeah. You know, I gotta say, the weird thing about politics, as you well know in your writings and your speeches, is just how darn expensive politics is where it costs a billion dollars to run a presidential campaign. And I gotta say, I don't know, like, we pour all this money into that. But there may be other things that are pretty cost effective, like pushing redistricting reform, which is something that costs like more like millions, or God help us, moving people to Wyoming. So, yeah, the Electoral College, I don't know. There's different fixes. First, stipulating that the main problem is when presidential elections are within 5 percentage points in terms of the popular vote, historically, there's about a 1 in 3 chance that the Electoral College is going to wig out and give the presidency to whoever gets fewer votes. And so. So any election that's closer than five points is a problem. So what are the solutions? Well, but let's be clear about something.

I mean, you've done the numbers and you're fearful that, in fact that probability is going to increase over time. This is not like an issue that happened and we're not going to see it again.

The way I would put it is this. For as long as we have close elections where the popular vote is within 5 points, the entire mechanism is intrinsically at risk of giving the presidency to whoever wins fewer votes. And I estimate that risk. We've estimated that risk at about one out of three. And so there's just this built in, unavoidable failure risk of awarding the presidency essentially semi at random in any kind of close election. And that under current rules, that is just not going away. Now, there are ways to mitigate it, and they are small. So I would say, honestly, one way to mitigate it would be to admit any state with substantial population. Honestly, statehood for Puerto Rico would probably slightly mitigate it. Although Puerto Ricans don't necessarily have to vote Democratic, they could vote Republican. There are some conservative aspects of Puerto Rico. So I would say admitting Puerto Rico would be kind of a like flight mitigation. Then there's reforms that I'm sure you have strong opinions about, things like finding ways to implement a national popular vote. And you've had some pretty innovative ideas on that front. And so a mechanism that allows the popular vote and the electoral vote to reflect each other more closely, things like the National Popular Vote Compact or more complicated ideas, I guess, decimal allocation of electors, that would be a more complicated idea. So that would be another route. I have to say. The realist in me says, why don't we wait a few years and wait for things to be a little bit less closely divided and then bring it up again when people aren't quite so angry about it. And I realize that's sort of a kicking the can down the road, but these days I've been thinking like that.

Yeah. Although when you think about the other legislative changes that are being considered, we could call them, for example, the faithless legislature laws which would empower legislatures to overturn the popular vote and allocate electors how they see fit. I mean, once again, we have this dynamic where the incentives are going to be to entrench a minority government unless we find a way to fix this.

Right. The big fire there that you're referring to, of course, is the idea that federal courts may find a new right, that state legislatures have to bypass their existing laws and bypass their governors even. I mean, the mind reels. Right, because we thought the big problem was an anti majoritarian presidential mechanism. And now there's this other monster that's walked into the room which is the possibility that legislatures can just wing it.

Yeah. I mean, and of course, in this last election, many very prominent people on the right were asserting that that was exactly the power of the legislature. And that's frankly what I was most fearful of. You know, they would convince Mike Pence to act on these theories and get him to kind of rule himself and Donald Trump into the presidency. And had that happened, I'm not sure it would have been the proud boys marching on the Capitol. It would have been quite terrifying if that had in fact played out.

A guy in my team, a gentleman on my team, Rick Ober. Rick. And I have. And Aaron Barden and I have looked into the precedents behind such a radical move strictly in the domain of redistricting, but more generally, the question of whether the Constitution allows state legislatures to go independent, to go rogue relative to the governor. And we hauled up a whole pile of precedents, at least in the redistricting domain, showing just how much would be upset if federal courts got interested in this question. It's a really pretty substantial disruption. So my hope is that even a conservatively minded, I should say so called, it's not really conserving anything, but let's say a Federalist Society inspired judge. Would such a person really want to go there? And I don't know. I feel like that's a pretty radical change. So it feels, feels extreme to me.

Yeah. So there have been two proposals for majoritarianism. One, you know, obviously the constitutional amendment to change the way electors are allocated is interesting, but let's just bracket that for a second. The two National Popular Vote related proposals are One, the National Popular Vote Compact, which obviously is I guess 196, and we'll get Virginia, so we'll get at 200 and something, and maybe Maine, but it's not really within striking distance to get to 270 unless we get some major Republican states to come along. The other one I wonder if you've thought about much, is coming out of work that Reid Hunt has supported with a make every vote count group, which is the idea of what they call the voters choice ballot. And so the voter's choice ballot, it says to voters it's kind of like ranked choice voting, but across the dimension of national popular vote. So it says like, who's your first choice? And so you vote Biden or you vote Trump. And then the next question is, if your first choice is not the winner of the national popular vote, would you like your choice to be the winner of the national popular vote? And so, you know, it doesn't actually require a majority in the state to vote that way. You know, it could be a small percentage, let's say 5% who say, yeah, I want Donald Trump, but what I really want is the person who's gonna represent the nation. So I'll say if Joe Biden's the winner of the national popular vote, I want Joe Biden to win. And so if that happens and you know, 5% go that way, that could be enough to take a swing state and swing it in favor of the majoritarian, the winner of the national popular vote. I wonder whether you've thought about that dynamic.

Given if it passes constitutional muster, which is your department, not mine, it has the effect of assigning a state's electors to the winner of the national popular vote. And so Therefore, it's like a unilateral version of the National Popular Vote Compact. So it removes the problem that it's no longer an agreement between states. So that's good. So that's an issue that removes. It creates a slight issue that you still have to have a way of determining the national Popular Vote. And there's no clear, there's no clear mechanism of that. So you need to have a way of doing that. But, you know, possible if we can, I don't know if we can, if we can calculate the, the market capitalization of Apple Incorporated, surely we can calculate the national popular Vote. I mean, gosh, is seems like it should be doable. So someone should be able to do that. I think it's clever. And I guess the question is, could one get it to fly in a swing state? Because all of these things, National Popular Vote Compact and likewise this voters choice initiative, the way that they have, their effects are in. Well, actually, no, not. Wait a minute, I take it back. The National Popular Vote compact requires a purple state to go along. But actually this has the advantage. Like imagine. I'll just give you an example. Imagine if Texas or California went along with it. I'm not super convinced that they would, but if they did, then that would be a game changer. I'll give you an example. This is just a hypothetical, just to stir the imagination. Imagine if California and Texas made this deal and nobody else did. That would be enough to get rid of, I think all but one of the cases in which the popular vote that the electoral College as it were, messed up in the history that California and Texas have been states, that one agreement would be enough to have solved, I believe nearly all the popular vote, electoral vote inversions.

And so it would be, let's be clear about this. So you're saying that if California and Texas struck a deal where they said we promise to go with the national popular vote if you promise to go with the national popular vote, that's it. There's no more problems.

I think it's weird because it's a strange hypothetical, but that would be enough to solve the popular vote, electoral vote problem. Now I don't think California and Texas would really. I'm just imagining Governor Newsom and Governor Abbott having a summit meeting and agreeing to that. It's not immediately firing my imagination, but that would be enough. And so this is just to put your hypothetical or really not so hypothetical, this voters choice initiative could hypothetically could potentially have a lot of power if it were passed in the right states and I guess one thing I'm curious about there is how successful will they be in getting it onto the ballot?

Yeah, it's a hard question, but, you know, with your Hypothetical, if Matthew McConaughey is the governor of Texas, who knows what could happen in a deal with California? But the thing I fear about all of this is it just feels too clever by half, you know, in the sense that imagine there were an election where it looked like under the traditional rules, the Republican was supposed to win, but under these rules, the. Either the Voters Choice rules or the National Popular Vote Compact, the Democrat would win. It seems like there would be an initial moment of kind of questioning the integrity of the process or, you know, whether this is really the person we should consider the winner in a way that I think no president would ever want to have to confront. I mean, you know, obviously George Bush and Donald Trump weren't troubled by the fact that they were not the majority winners in the popular vote, but at least they could say, look, this is the system, and the system means we're president. But when you've got these clever hacks to the system, I'm not sure. I mean, I'm for it. I want to do whatever we can to get the majoritarian president, but I'm a little worried that it's not stable. Especially imagine National Popular Vote Compact happened, and a Republican one in California was the reason why they got the electoral votes. I can imagine California very quickly would want to say, enough of this. Let's stop playing this game

made uniform or nearly uniform by Thomas Jefferson, where he basically wanted to stick it to. I guess he wanted to stick it to John Adams. And so he wanted to make sure there weren't any. What we would now call faithful selectors. And so he said we should all have winner take all. And so it's so ingrained in us that I think you're right. I think one could risk things like street violence and significant unrest. I mean, look how bad it was this time around. And the election was somewhat close, but not necessarily super close.

Yeah, there was no doubt who should have been declared winner. And still we had a marching in the capital.

Yeah, maybe it would be better, like. And this rewinds to what I was saying, which is that maybe what we need is to just get out of this tunnel we're in right now and shore up democracy, patch it up, address things that are obviously wrong, such as gerrymandering, find ways to clean up aspects of the system that are without seeming like we're committing some, you know, Some clever trick and then revisit this question. And you know, it's a terrible thing to say that maybe one might want to do is to stay cool and come back to the question in five, 10 years.

Yeah, well, I mean, passing HR1 would address a whole bunch of really critical problems, including changing the way campaigns are funded, which of course for me has been the passion for many years. It doesn't do anything about the Electoral College, so maybe that's the Strategy. Let's get HR1 passed and let's get a majoritarian democracy working in at least the congressional branch and then we'll come back to dealing with the presidential problem.

Yeah, I think I would say put out the part of the building that's on fire where the hose is closest.

Sam, thank you so much for this. This has been really great. And thank you again for your work, which has been incredibly important. You're a Renaissance man at a time when we need this kind of capacity. And I know what it's like to hold a full time job as a professor while also playing the role as a reformer. So I have enormous respect for what you've done.

Well, I thank you for your work and I don't know, for everything I've learned from you, both in person and also remotely through your writings and statements. I. It's a pleasure to spend time with you.

Great, thank you. That's our episode. Sam Wang is an extraordinary figure. You should follow him at the Princeton Election Consortium and the Princeton Gerrymandering Project and, and also his work in neuroscience, which is very important, especially for people worrying about how brains develop, namely parents. And he's got two books that are. I haven't read both books. I've read one book, so. One book, really great book about how to think about the development of the brain and his work at the center, which we will link. The two.org projects that he describes in this podcast on the website can begin to bring people into the project of understanding the challenge that gerrymandering presents and most importantly, understanding why it is so critical. You know, we fight so hard to make sure that there are absentee ballots or mail in ballots, or to make sure that everybody who shows up at a poll can. Can vote. And those are critically important. But the magnitude of the effect from gerrymandering compared to those effects is just unbelievable. Like you would not understand it until you did the numbers. And obviously that's what he has spent so much time doing. These podcasts are produced by equal citizens us. You can find us on the web at equalcitizens us anotherway. Please go to that page and give us feedback and ideas and places and questions we should be going and questions that we should be asking. I'm committed that throughout the arc of the consideration of HR1, we're going to continue to follow its progress. And though most are speaking skeptically about the chance to get through the Senate, I think this skepticism is wildly overblown. The gerrymander. The gerrymander, yeah, it is a gerrymander. The filibuster is, of course, not surmountable for HR1, but the filibuster is, it turns out, much more flexible in the arc of that rule. And I think we need to rally people to the cause of making it possible for democracy reform to pass, the filibuster notwithstanding, rather than folding and giving up and talking about the small changes, the tiny changes, the small board changes that would get us nothing. So you're going to hear me rant more about that. I just read a piece today that's driving me nuts on this question, but you're going to hear me rant about it later. That's not for today. Today this podcast is over and we will pick up next week with another episode of Another Way. Thanks for listening. This is Larry Lessig.