Live Election (and Beyond!) Special

This podcast is part of the Democracy group. Welcome to Another Way. I am Jason Harrow, executive director and chief counsel of Equal Citizens. So today we've got a special episode for you. We've just completed 10 detailed, wonderful, nerdy, geeky episodes about how to elect a president. And we wanted to talk with some friends and supporters and really anybody who wanted to join us on Zoom about the election, but also looking beyond the election at reform, because we may, we just may have a remarkable opportunity for fundamental democracy reform. So starting immediately following this historic election. So what you're about to hear is a discussion with me, Larry Lessig, the founder of Equal Citizens, and Adam Eichen, the campaign's manager of Equal Citizens, along with several dozen supporters via Zoom. It was conducted on the Friday before the election. We're sorry that the sound quality is Zoom quality, but of course, that's the only way to have a meeting these days. So enjoy it. Thank you for your support. We really, really appreciate it. You can check us out at equalcitizens.us/ another way. And we are ready. As you'll hear in this podcast, we are ready for reform following this election. Enough politics. Let's talk policy. Okay, here's the episode.

Joining us, my name is Adam Eichen. I'm the campaigns manager for Equal Citizens. This is a really important conversation. It's one far too few are having right now, and we hope that it is totally irrelevant around next week. But we're really excited to have this conversation now, and thank you all for joining us and being supportive of Equal Citizens.

Yes. So here's the format. We're going to spotlight the three of us for the moment, and we'll just give five minutes each on what we're thinking about, and then we're going to invite discussion. And we had a couple of questions already submitted. We can go to those. You can put questions in the chat as well. And if you do have a question in the chat, please say whether you would like to come on by video and have a conversation with us, which will be really fun, or we can just read it off in the chat and we can do it that way as well. Either one works for us. We're not forcing you to come up, but we do want to want to talk to a bunch of folks. There's some friendly faces and folks we know and some that we're just meeting and we welcome everybody to it. So while I get it set up, Larry, you're the founder of Equal Citizens. You've been thinking about these issues. You teach constitutional law. You're teaching a class about the upcoming election. We're four days away. What's on top of mind right now?

Well, I think everybody's hoping that everything we've been working on for the last couple weeks in this course and at Equal Citizens to explain what might happen in the time between the election and the time that the Congress finally votes turns out not to be anything that we should have had to worry about. If this election is a clear result, if there's a clear winner in the first couple days after this election, where there's no ambiguity about whether it's so close that there's any question about how different electoral votes might be cast, then everything we're going to talk about in the next couple minutes will be interesting, academic in the best possible sense. But what we've been working on and we've launched in this podcast, which I think now has five episodes up, and it will have 10 episodes up by Election Day, is to think through all the particular problems that might happen that we've not really been trained to think about. Because in our way of in our experience of the way the Electoral College works, the worst that's happened so far has been the struggles, for example, around Bush v. Gore in 2000 and the inverted elections in 2000 and 2016. And while that fight might be replicated, what we actually have been focusing on is the fight that might break out not so much in the courts, but in Congress, as Congress has to decide how the electoral votes get counted. The reason that's an important fight to consider is that we've seen talk on at least one side of these campaigns about trying to get legislatures to select alternative slates of electors and then send those alternative slates to Congress and try to get those counted rather than the slates that would presumptively come from the results of the election. That talk has a number of possible sources of authority. One source of authority is actually statutory. There's a statute that gives the legislature the ability to appoint a slate or have a procedure for an alternative slate if the election fails. Fails, it could be constitutional. There's a kind of weird power that's being attributed to the legislature. Under Article 2, we call it a superpower, or in our sometimes it's a super duper power. But it's a power of the legislature to act independently of constraints that the state might impose on the legislature, or certainly in independent of its earlier decisions about whether to commit the election to the people or not. And then obviously, in the context of the pandemic, just this fear that the questions raised about the process will lead to lots of cynicism or skepticism about the results that will embolden legislatures to step forward and suggest alternative slates. The reason this is a problem is that the procedure for dealing with alternative slates or multiple slates is a procedure that was established in 1887 in the Electoral Count act and has never really been tested. There's never really been an election where it's mattered since it was set up. But the last time it was needed was the election of 1876, where four states sent multiple slates of electors. That process almost led to a second Civil War. The 1887 statute was to deal with that problem. We haven't had to face it, but if we have to face it in this election cycle, I think many of us are fearful I'm going to end with this point. But this is the point that I think underlies everything. Everybody who's looked at the way we select a president recognizes that it's an old and creaky and flawed system. But when both sides act in good faith, we've been able to make it work. Some think Nixon in 1960 could have challenged the results, but stepped back from that challenge and allowed his defeat to be registered. Certainly al Gore in 2000 refused to continue the fight in Congress because he believed this was better for the nation. For him to step back after the Supreme Court made his decision. Those types of acts and a Congress that wants to apply the rules the way the rules were meant when written into law, I think has allowed the system to work. Our fear is that if there isn't good faith, if either house in this process behaves in a purely political way, interpreting rules of law as if they were just political opportunities, it's not quite clear how this ever settles or what the settlement for. This is our hope in this podcast and in the work that we've been doing to spread the story about what could happen is in a sense, to inoculate the process by giving people information to understand what this fight is about before it actually breaks out and. And maybe then be better prepared to actually think about how to deal with it. And I said this was the last point, but here's really the last point. I think in 2000, we weren't ready for 2000. I think in retrospect, there were many obvious moves that were not made. And one of those moves we can talk about, but it's an issue that we're trying to press right now, is in 1960 was actually the last time that multiple slates of electors went to Congress. Two slates came from the state of Hawaii. Hawaii originally counted their votes and saw Richard Nixon was the winner by about 150 votes. There was a slate of electors certified by the governor for Richard Nixon. Then they did a recount. And a month later, at the end of December, it turned out John Kennedy had won the results. There was another slate of electors that the governor certified. The recount went all the way till the end of December, which means it went after the Electoral College was supposed to vote. But what actually happened was that both slates of electors voted on the day that electors were supposed to vote. When the governor certified the new slate on January 4th and then put it on a plane so it could fly to Congress and arrive by January 6th, this new slate claimed that it was a slate of electors who had actually voted on the day they were supposed to vote. That new slate meant that John Kennedy got the electors from Hawaii, not Richard Nixon. Richard Nixon was the vice President, the president of the Senate. He opened the electors, the slates from Hawaii. He recognized there were two slates. He said he would recognize and count the Kennedy slate without intending to establish a precedent. But I think one thing we ought to be talking about right now is the precedent that that actually did establish, whether Nixon wanted it to or not. Because we ought to make clear that there's a way to allow the count and the recount to happen all the way up until January 6, while preserving the opportunity for either result to actually be counted in Congress because the electors have voted on the day the electors should have voted. That's what happened in 1960. If this count gets drawn out, we ought to be encouraging people to think like that rather than thinking in the way Bush v. Gore spoke, as if everything needs to be resolved six days before the electors are supposed to vote. There's no reason to rush this, and we need to begin to spread the understanding to support that. So let me stop with that. And

yeah, no lots there, Larry. And again, there was a lot there. For folks listening, I invite, if you've got questions or thoughts or reactions, put them in the chat. We're going to do a little circle. I'll do a couple minutes. Adam will do a couple minutes, and then we'll invite people up to the spotlight or answer questions in chat. I think, Larry, I'm thinking certainly along similar lines. You talked about a system working that is premised on good faith. I think in addition to that concept of good faith, bad faith and political power, I've also been thinking a lot about rule of law, right? And people are talking, have talked throughout the Trump presidency about rule of law and what it means. And it is certainly facing its greatest test here. But I am usually the optimistic one. For the podcast listeners who have been listening to our miniseries, I like to end the episodes with at least some reason for optimism. And I think the reason for optimism here is that so far, the center has has mostly held in the face of some really unique threats to the rule of law. I don't think anyone would think that Mitch McConnell and Donald Trump and some others have played in good faith with the norms that we cherish about the Constitution. But I also don't think that the rule of law has given way. I don't think that we can consider ourselves in the equivalent of a deeply corrupted state or a failed state in on the order of China or Cuba or something like that, where the rule of law is simply the leaders win. We have seen the state courts, we have seen state actors. We have seen the House of Representatives and even occasionally the Senate. We've seen Supreme Court justices, we've seen state supreme courts uphold the rule of law in the face of some pretty unprecedented threats. And I think that means that as I look at it, Donald Trump and Mitch McConnell and others who may or may not wish to try something really unprecedented that many people are scared of, are going to have to try and fit it within that framework. They're going to have to make arguments that are not just I win because I have the power. And so I think it's important for us to understand what those arguments are. And as we've been discussing, we've been laying out, I mean, you all know, if you've been listening and trust me, we're only halfway through the miniseries, folks. We've done like five hours. There's like six hours to come because the last one went an hour and a half or so. There's a lot to talk through and there's a lot of sort of tit for tat. But I think as we talk them through, we've concluded that not many of them can really pass that rule of law test. And it will really take an extraordinary breakdown, an extraordinary amount of hardball in anything but a very, very close election or a legitimately, let's call it legitimately an election that some on this call, because I see who's in the audience live through Bush v. Gore and an election like that, or the Al Franken 2008 Senate race that hung on 400 votes in Minnesota. If they're tough. It's a tough slogan. But I am confident that the system can at least be attentive to rule of law and will make the Trump folks or those who would want to steal an election make arguments within the rule of law framework. And if that's true, I'm somewhat optimistic that the people's voices will be heard here. It's not a guarantee. This is a creaky, creaky system. As Larry said, it was designed in a rush in the last days of the convention. It was not designed with perfect logical consistency. And it's only gotten worse. You know, as people who follow equal citizens know, we've challenged winner take all in the states, which is not even part of the original design or intent of the Constitution. It's just a another layer on top. And these pieces were never designed by an original creator to fit well together. And they don't fit well together. So there are holes. But I'm hopeful that the system can sort of plug the holes. We'll go through those in the podcast. If you haven't listened, we've got more to come over this week and then we'll see. We'll be keeping up to date on our Twitter feed, Facebook feed, emergency podcasts if need be, Larry, to see what's going on. So that's what I'm thinking about right now. Again, just rule of law. I'm curious, folks. Reaction. I'm going to turn the mic over to Adam Iken, our campaigns manager, who, unlike me and Larry, is not like, you know, steeped in legal codes in the law school. He can bring a more common sense, campaign centric view. So what are you thinking about, Adam? And then again, we'll get to Q and A. Yeah.

And full disclosure, as Jason said, I'm not a constitutional law professor and not a constitutional scholar. And so I rely on my two colleagues here to explain it in very simple terms to me. And you know, I obviously share a lot of anxiety about the next week. I doom scrolling on Twitter, just like I think the rest of us are. But what I've been thinking a lot about, and this is kind of sidestepping a bit about the kind of potential crisis that could come, is the ways in which people's perception of the Electoral college has very radically changed in the last year. Especially, especially, especially in the last month or so. And that's gonna have ramifications whether we like it or not. Although I think it is going to be a positive transition in the next year. Plus, ahead of how people see this as JC said creaky system that was kind of sloppily put together back in the day. And there's no question that there's been lots of attempts to reform it in the past. And I think that there will be more opportunity to do so depending upon what happens next week and when all the votes are eventually counted. And there are many ways that we could potentially reform it. National Popular Vote is a great example. Proportional allocation of electoral votes on a fractional scale. You know, the list goes on. And that's something that at Equal Citizens we're thinking a lot about, about how we can try and find a better way or another way to elect the president. And so all of this discussion, all of this anxiety, assuming we get to the other side of it where there is not a constitutional crisis and we do elect the legitimately elected president, there will be new space to potentially rethink some of these systems that are potentially failing before our eyes. You know, I mean, just the simple fact of people being shocked that the candidate that's up between 8 and 11 points in the national polls, it would even be close in the Electoral College. I mean, we've seen it before that, you know, the Electoral College doesn't necessarily mean the popular vote winner, but the extreme disparity of potentially a popular vote split, an electoral vote split, an unprecedented proportion, is going to, you know, for lack of a better expression, radicalize a number, a lot of people, potentially millions of people, about this antiquated system that many have never really thought much about before. So this is perspective thinking. But you know, Jason, I want to reclaim a bit my title as the chief optimist of equal citizens, that, you know, I think that if we do get through the next week or two weeks or whatever it is, or as Larry said, a month until all votes are counted, there is going to be a real moment of reform, not just for the Electoral College, but also as we see as more and more state courts are striking down voting pro voter laws, as legislatures are failing to allow for accurate counts or our accurate processing, rather like in Pennsylvania where they refuse to allow for pre processing, a whole new space is going to open up as people begin to realize that what was once an arcane issue of voter suppression, of gerrymandering, of these intricacies of the Electoral College are now at the forefront and have reached the point of a potential crisis. And it's going to make our job as advocates much, much easier to potentially address these things. So in fairness, let's get through the next week, but after that, assuming things go well, assuming the legal minds of Jason, Larry and many others across the country get us through, I just want to make a plea that all of you on this call, we're going to need your help in the months and years ahead to bring our democracy to a place where it's never been. So as scary as this moment is, I do have a sense of optimism about where we could go from this crisis.

Yeah, that's right. And indeed, I see we have several folks hanging out with us that are actively working on this issue, including Dr. John Koza of National Popular Vote and Reid Hunt of making every vote count. And that is clearly it's on the ballot in Colorado National Popular Vote in just five days, which is critical. It's on our mind certainly going forward as well. And this has highlighted. So I'm going to open up to thoughts and questions in the chat. As I said, if people have them type the question directly or just say I would like the mic. But since no one has yet put a question in the chat, I will start it off with a question we received by email from Grant Ellis. And Grant, I'm not sure if you're going to listen to this by way of podcast or if you're here live, but Larry, this is a question for you and it really piggybacks on exactly what you were talking about earlier. But Grant wants to know about the response here. So he asks how should modern liberal democracies respond to a bad faith usurpation of civil or governmental institutions by anti democratic forces who are only seeking to preserve their own power and with little or no regard to constitutional safeguards? So I guess he's getting at what's the response here? And then I see Reid Hunt has a question and I'll throw it to Reid after this.

Well, I think the response has got to be decentralized. I think the most important thing to do is to wake up everybody to what this problem is and not to allow it to be decided inside of Washington alone. So there needs to be, So there needs to be pressure on members of Congress in their districts, state legislatures, governors, to do the right thing. And we have to build awareness about this complexity so that people feel like they can engage and know what they're talking about. And that's part of what we're doing. Again, we hope more than anything that on Wednesday, next week we realize all of this has been for nothing. There's no reason to worry about any of this. But I think we've got to build a peaceful movement of recognition and, and Protest for principles that we thought were core ideas of America for many, many years. And the idea that we're here wondering about whether we have to yield to this kind of authoritarian pressure is astonishing. But I think the decentralized understanding is the only way we're going to resist it.

Yeah, that makes sense. And before going to Reid's question, I'll just add, we have a decentralized system, right. So the response is going to BE we're having 51 separate elections, so the response is going to have to be decentralized, local, and pushing back there to get every vote counted and ensure that each of those systems works. There is no one person that can save us on either side. I think that's, you know, that means we can't have one person come in and save us against these threats. But also, hopefully, it means one person can't. Can't bring the whole system down. Okay, so the first thing very quickly,

Jason, just very quickly, people will take to the streets. I mean, that's inevitable. The question is just how many people and how effectively we organize that. If there is some sort of attempt to stop the count, it will be incumbent upon. Upon citizens to protect their democracy.

Yeah, that's right. So Reid Hunt has the next question in the chat. Reid, nod your head if you want to ask it and introduce yourself. Yes. Okay, so let me unmute you and bring you into the spotlight here, and we'll get our first audience participation. And then we've got. I'll just flag in the chat. We have Mike and Carla after that. So I have Reid asked to unmute you, and I think you can now speak. And let me add you to the spotlight and introduce yourself and be a part of this conversation. It's great to see you.

So I'm Reid Hunt. I guess my specific. I'm somebody who always needs a new self definition. So I guess for this, I'm the CEO and co founder of Making Every Vote Count, which was founded nearly four years ago because Larry called up and said, why don't we get an injunction against the electoral college meeting? The next thing you know, I'm running this nonprofit. Thank you, Larry.

In any case,

folks, I would just like to make a very brief observation and then ask a question for all of you or any of you to comment on. And then I'm going to conclude with a threat. Okay, so the observation is the election that we're witnessing right now I think is already monumental disaster as compared to any democratic process. The role of money, the fact that the probabilities are that, you know, 30,000, 50,000 votes in certain precincts could actually determine the outcome. You know, the extreme, extremely high, anything over 5% to me is extremely high probability that the national vote loser by a multimillion margin could still win the Electoral College. The fact that the Republican and Democratic party are divided by race in a way that we haven't seen since the 1860s, I mean, it's just. It is a disaster. And if Biden wins, it'll be because he got so many votes that he overcame all the disastrous features.

Right.

It isn't, because that will prove that it's really a great system. Okay, that's my observation, and I don't think I've said anything particularly controversial unless Justice Barrett is on the call, in which case everything is controversial. Okay, now I'll get to number two. There's a lot of talk about how the first three bills that need to be introduced on January 4th by the Biden administration into a Democratic Senate, into a Democratic House. I don't have any scenario for anything other than that. So that's my assumption. The first three are, number one, a monumental Covid bill with the expectation that we'll be running at 200,000 infections per day at that time, but that we might be within reach of a vaccine. And yet, on the other hand, no nation has ever been able to vaccinate every 330 million people in a few weeks. So one will be a Covid bill, one will be an economic stimulus bill that includes infrastructure and climate change elements, and the third will be a democracy bill. I think that there are tremendous constituencies for the first two and not for the third. I so love and honor all you guys. And I am just saying this third, be the constituency, create the constituency. It's so woefully academic as a constituency right now. Woefully meaning great to have all the thoughts. But it's not really a grassroots constituency, the democracy bills constituency. And it's really, really hard to get people who are elected to office to believe that the way that they got elected needs to be changed. So I'm just saying, is a very big thing. But, you know, I'm one person that thinks there does have to be a democracy bill. And I said I would conclude with the threat. The threat is this. I'm going to email you my outline that making every vote count already did for what's in the bill. I'm going to email that to you, Larry, and you, Jason. You can amend it, you can reject it, you can write a completely different one. But I am just urging that you be in that business meaning figuring out from soup to nuts what ought to be in that democracy bill. And so I'm submitting to you professors this little essay here that is just an outline whatever you at the end of my intervention and thank you.

Yeah. So I'm happy to take that challenge. Reid I actually think our greatest opportunity opportunity is the aspiration of Nancy Pelosi to make her mark on this democracy through H R1. And I think what's going to happen after this election is that people are going to see that that's not actually enough. But I think we need to recognize that's an extraordinary amount. HR1 would be the most important package of democracy reform passed by Congress since the Voting Rights act of 1965. Public funding for the for congressional elections, gerrymandering reform, the disclosure, the DISCLOSE act, extraordinary voting registration, restoration of really important protections for ethics and violations and the list goes on and on and on. It would be everything that we have been fighting for. But now we see a whole bunch of other things we need to reform, which is the stuff around this process for selecting the president. I actually think she is absolutely committed to making that past the House. She just last week gave a press conference where she said that's going to be number one. HR1 will be number one. Then the question is whether Chuck Schumer as majority leader will carry it through the Senate and the president has promised to sign it or that's a little optimistic. The person I hope will be president has promised to sign it. I think that there is a movement but the reason we're here is that for the last 20 years this has been slowly building to the place where now it is almost obvious to everyone that it's essential when what you know, four years ago it was hard to get even in the Democratic Party the candidates to identify fundamental reform as the thing that had to happen first in this election cycle and citizens United States represent U.S. and equal citizens went around to every one of the major candidates running for office and we got every single major Democrat to commit to fundamental reform in the first six months of their administration. And Joe Biden's one of those. So I agree with you. This has to be one of the first three. And I think we absolutely have to fight to get there. And that's why I started by saying we've got to look beyond the abyss that's right in you front of I mean the abyss is terrifying. The fear of what might happen in the next two months is really overwhelming. But if we get through this, the opportunity for what we can do in the next year is really extraordinary. Something that even I, who I've been fighting in this for the last 12 years, wouldn't have imagined possible. So I think we have to do it. I think we will do it if, in fact, we get through this next couple months.

Yeah. Adam, as campaigns manager, you've been following HR1. You wrote a book about some of this. Do you want to add anything to that?

Yeah, I mean, look, organizing around democracy reform is unbelievably difficult. It's incredibly difficult because, Reid, as you say, it's very heady and very much an intellectual process, or at least it has been for a long time. But again, as these crises become more and more salient for the public, the spaces of organizing and coalition building have exploded. I mean, I think of someone like Katie Fahey in Michigan, who in 2018, well, starting in 2016, right after the 2016 election, got a group of people together and basically formed a nonpartisan movement to end gerrymandering. And there are very few things as wonky as gerrymandering, especially circa 2016.

What about ranked choice voting?

And especially in ranked choice voting in Maine? I mean, the list goes on and on. There are a number of great books about this where groups of citizens have come together, starting from this place of a very heady intellectual, kind of hard to grasp and organize around concept, and really translating that into this real nonpartisan movement, as Larry would say, based on. On love, love of country, love of democracy, an organizing that just eschews, hates, and avoids it at all costs. And what you see across the country is these ballot initiatives, these movements, these organizations have succeeded in an increasing fashion. In 2016, in the same election Trump won, you had, I think, 16 or 15 ballot initiatives around democracy reform win. In 2018, it was like 21, 22 significant ones, including in Florida, arguably one of the most significant voting rights expansions that was then gutted later on in the next legislative cycle, restoring voting rights for those convicted of felonies. And in 2020, there should have been more. But as you know, there are a bunch on the ballot now, including here in Massachusetts, for ranked choice voting. And so all that is to say is it is incredibly difficult, but we're making so much progress. But again, it comes up to us and what we want to do to expand that movement, how we want to bring in all of our personal networks, all our organizational networks, all the people and friends and family that we know and how to talk about issues that they care about and then relate them back to democracy reform because ultimately it always comes back to bread and butter issues. And what, you know, Larry, is the best doing this about why, you know, you can't get health care reform without first fixing money in politics. And so I think that I share, I share the kind of the, the angst about the difficulty, but I'm also pushed forward in my, again, least sense of possibility that there are folks across the country who are doing remarkable work in this respect.

Yeah, I know I promised that Mike would get the next question, but that's about the constitutional crisis stuff. We're going to skip over that and stay on the topic of reform. So, Carla, you had a question about the Electoral College. Nod your head if you'd like to come on the spotlight and say it. Or, or give me a no. If you just want me to read the question. Yes. Okay, great. So, Carla, you're in the spotlight. I think you are not muted. So introduce yourself. Nice to see you. And what's on top of your mind? So if we were to get rid of the Electoral College, how would voting work in this country? Because it's not a parliamentary system. So how would you rejig the whole thing? And this is to Larry Lessig.

Well, I mean, you know, the expert in the National Popular Vote compact is in our room right now, John Koza, who has done extraordinary work to move that compact forward. And Reid Hunt has also taken up that charge with make every vote count. That idea would be a pretty straightforward way to make every vote in this country equal, because every state will, every state within the compact would commit to pledge their electoral votes to the winner of the national popular vote when those states added together constitute a majority of the electoral votes. So when they get to 270, that would produce a system where we know that the winner of the national popular vote wins the Electoral College as well. It's not going to happen this election cycle, obviously. But I actually think that after this election cycle, even if Texas is just purple and Georgia is just purple, it will slowly dawn on the Republican Party that the future of the current system is not a future that they can prevail with. That if Texas goes blue under the current system the way it is right now, it's going to be very hard to imagine another Republican elected. And I actually fear that, that the biggest resisters to reform at that point would be the Democratic Party, who thinks, wow, now we've got a lock in for the Democratic candidate, given the large swing that Texas would constitute. So I Think that after this election we're going to have an enormous opportunity to really talk about important ways to make the electoral system a system everybody feels like is a one person, one vote system. We've launched a project to try to facilitate a discussion around that in a really unprecedented way. This weekend we'll have an alpha version of it, but beginning in January with the Stanford center for Deliberative Democracy, we're using a platform they've developed to facilitate virtual deliberation around topics that as AI moderated deliberation. And our objective is to achieve tens of thousands of people who've deliberated about this question of the Electoral College in a slow and sophisticated enough way that they can unpack the issues and understand how change could actually happen. Our view is that that's going to reveal a very strong consensus around the idea of getting us to a conception like a one person, one vote system for electing our president. And that that fact that it's supported in such a fundamental and broad based way by ordinary people will make the movement and make the politicians listen to it much, much more possible.

Yeah. On that theme, Chris Mason, who just unmuted himself, has, has another Electoral college related question. So Chris, you are in the spotlight. Introduce yourself. Carla didn't introduce stuff, that's okay. But Chris, say a few words about who you are.

Hi, Chris Mason from Washington State and I volunteer with Fairville Washington. So advocating for ranked choice voting, watching the situation in Maine with the fact that they will be using ranked choice voting for allocating their electors and the fact that they allocate electors on a congressional district basis as well as one at large for their state and wondering about that as a incremental solution to roll that out into states versus what Larry Lestig has mentioned many times of the fractional assignment of electors so that we can actually simulate a popular vote. So just that was my idea.

So my own view is I would love to get to the national popular vote directly and quickly. And so that's my first choice. And I don't want to suggest by saying anything beyond that that that's not my first choice, that's my first choice. But if we talk about stuff beyond that, if that's not, if that's not on the table right now, I wouldn't support the idea of this interim step of dividing of everybody adopting the Main and Nebraska system. And the reason for that is congressional districts are gerrymandered. If you started allocating electors on a congressional district basis, you would have your own a new one person, one vote. Problem, because these gerrymandered districts would then be representing the election of the President in a way that wouldn't in any sense be reflective of the actual underlying vote. My view is if you're going to go for something other than national popular vote, which again is, I think the thing we should be pushing for, then the closest, the second best, and it's still a second best, but the second best is national, is a proportional allocation of electors at the state level, at a fractional level. So if you get 35% of the votes in a state, you get 35% precisely of the electors, the electoral votes in that state. And that would not be one person, one vote, because still Wyoming would have significantly more power per citizen than California would because Wyoming's per person electoral votes are higher than California. But the interesting feature about the smaller states that would be benefited by retaining the current system is that the smaller states are evenly divided between Democratic and Republican states. The bottom 10 states are five red, five blue. It wouldn't be one person, one vote, but it wouldn't be a partisan advantage to it. But the thing that the proportional allocation gets you and national popular vote gets you is a solution to the core problem with the Electoral College. People think the core problem with the electoral college is 2016 or 2000 when the loser wins. That's a problem. That's not the most important problem. The most important problem doesn't happen once every 20 years. It happens in every single election. And that problem is that because of winner take all, the only states that matter are swing states. The only states the candidates care about are swing states. And so swing states basically pick our president. But swing states don't represent America. The demographics of swing states are the. They're older, they're whiter, their industry is not the industry of Texas and California. And so the idea that we would outsource the selection of our president to this subset of America that doesn't even represent America is crazy. And we have to find a way to fix that problem if we're going to get a president who actually thinks about how do I persuade people from Kentucky and from California and from New York and from Pennsylvania, and either of these two changes, national popular vote or proportional allocation at a fractional level would get us there. But I still think national popular vote is something we could get there, get to right away. And I think that's something we should be pushing for.

Yeah. And I'll just point out Suzie in the chat says, hear, hear. I'll offer a second here, here, here. Here Squared. And I will also just flag since many of your podcast listeners, I had a conversation with Dr. Koza about this topic about national popular vote, which is on the ballot in Colorado. It's gonna appear in the feed imminently. It's edited, it's ready to go. So look for that if you want more details on what's happening in Colorado on this important issue, literally on Tuesday or culminating on Tuesday, because they have predominantly vote by mail elections. So I do wanna move on from electoral college stuff though, because the next couple of questions go back to what we were talking about before Larry and Adam with regard to HR1 and democracy reform and seeing beyond this abyss that you talked about and Eric, who does not necessarily want to be in the spotlight, I have proxy to read his question. Eric points out, rightly, that Joe Biden was one of the last of the Democratic candidates to sign on to a Democracy first pledge. I'll add that as compared to some other candidates, he seemed to be talking about it somewhat less and initially on his website, it wasn't super well developed. It's become better developed. But he wants to know, does that give you pause about the commitment here?

You know, I mean, I was originally skeptical for exactly that reason, but then I started reading about the early Joe Biden. You know, what's so striking about Joe Biden is when he first went to the Senate, he gives and the Senate, you know, Congress is considering public funding proposals and limiting campaign proposals. He gives incredible testimony about how nobody will will trust Congress until they believe that Congress is making the decisions Congress is making for the right reasons, not because of the money. And he wanted to. And he was pushing for public funding even back then. Now I think that there's. The reality is it seemed so impossible to imagine getting public funding into the 1990s or the 2000s, that maybe it wasn't the thing that was most pressing for him. But I believe him when he says he will sign this bill. Indeed, it would be crazy if he didn't sign this bill. So the point is people have to recognize the thing that must happen is Congress must pass this bill and Congress has the leaders who have committed to it. Nancy Pelosi wants to be able to retire and say, the thing I did. I'm not saying she's gonna retire right now, but when she retires, she needs to be able to say, the thing I did was to save a America's democracy. And you know, some people think it's a little bit odd because she's such an important fundraiser for the Democratic Party, and she certainly is. But I know, I've spent time talking to her about this. I know that however much she believes she needs to do what she can under the existing system to make it possible for the Democratic Party to succeed. She desperately, honestly, I think, wants to make it so that we don't have this system anymore. And so I think that's the reason I'm confident, I think she will pass it in the House. And if she passes it in the House, Chuck Schumer has promised in the Senate, and if that happens, then I have no doubt that Joe Biden will sign.

And Adam, you've been on the ground for a long time. Is there energy and optimism about Joe Biden among a lot of grassroots reformers, even if he wasn't necessarily the first choice in this race?

Yeah, I mean, I think that there was a lot of skepticism. I mean, as Larry said, I mean, there was tremendous skepticism because he just would not talk about it. I mean, you mentioned, I mean, I basically came, you know, listed every single thing when, you know, for equal citizens we would live, tweet these debates. And I was chronicling every single moment democracy reform came up. And only in very rare circumstances would Joe Biden mention it. And often in a kind of incomprehensible way that didn't really relate to policy. And so it was very skeptical, very, very concerned. But things have changed. I mean, it just objectively, like I said before, you just cannot, as a, you know, as someone looking at national elections and what's going on this cycle, you know, be comfortable with the status quo. There is no future for the Democratic Party unless there is, you know, federal reform of voter registration laws through automatic voter registration, same day voter registration laws, you know, things like pre processing and now a whole slew of ways in which the system has broken down on a state by state level. Same with gerrymandering reform. The Democrats were asleep at the wheel in 2010 and they were out of power for almost a decade because of it. The likelihood that people at the top of the Democratic Party, including Joe Biden, now, even if he didn't talk about it a lot during the primary, to don't see that is kind of, it's not a reality anymore. But again, things are really changing now. But you know, that doesn't mean that the bill that's going to be passed in March of next year, if all things go well in terms of having a pro reformer House and Senate and president, that that bill will be the bill that John Sarbanes introduced in the beginning of 2019, that's not the case. Right. There's going to be horse trading and I have no idea what's going to be, you know, what's going to end up passing or what will be in the final bill. We don't know that. But all I do know is, is that we have an amazing framework for that bill, as Larry said, and an amazing framework for other bills. And what's going to allow us to keep the core provisions of HR1 intact is through public pressure. So the game isn't over after election day if the results are electing a pro reformer Congress and president. The only way that the final bill that makes it even makes it to Joe Biden's desk if he's elected again is a massive campaign of public pressure from interest groups across the spectrum. So both Republican or conservative leaning and liberal leaning groups, as well as issue based groups. I mean, that's the one thing that we didn't talk about earlier. It's not just a bunch of white older lawyers, no offense to older white lawyers on this call, but the democracy reform space is much more diversified than it's ever been. And it's also including groups like the Sierra Club, Greenpeace Laboratory, you know, racial justice groups, the naacp, et cetera, et cetera. That is kind of this movement of movements, this umbrella of groups that recognize that core principle that Larry said that, you know, Larry always says this, and I use it a lot, is that democracy reform may not be the most important issue, although maybe right now it is in this particular moment, but it's certainly the first issue. And so as more and more groups realize it, you know, we can't put our, you know, take our feet off the pedal there. We have to kind of keep going and keep advocating so that the best bill possible makes it to his desk. And I agree, if that's the case, he'll sign it.

Yeah, that's right. And of course, the other consideration is that we are living through extraordinary times that we weren't last year during the primary. Right. Joe Biden has learned things about what the other party is doing and what people on the ground are experiencing and they are reacting to violation of their voting rights and the inequalities of the system. And that's undeniable. And also we can see from his team and the messaging around it. Right. You know, he's clearly relying on some folks who get it. And so I certainly am optimistic there. That said, as our friend Evan points out in the chat, Larry and I won't go to him as a spotlight because his video is off. He does point out that, you know, it's not going to be smooth. Adam, you alluded to this. And so Evan wants to know what do you see are the biggest political obstacles under a Biden presidency and the shape of Congress. Right. And again, we have to guess a little bit what Congress looks like. I think anything, any real progress here requires at least 50 Democratic senators. But there might be different obstacles depending on how big that majority is. And I don't know. What else do you see?

Well, I actually think the strategy is going to be different from what Adam was describing. I actually think what they're going to do is try to pass exactly HR1 because they've got the commitment to pass HR1 and if they start doing horse trading on what HR1 is, then things can unravel. Now, I don't think HR1 is perfect. I think there's more things to talk about and more things to add. And HR4 is another thing they've committed to and I think that's going to be part of it. I also think the public funding component is needs to be more ambitious. You know, when you think about what, what is the strongest resistance that will come to this from our side, from people who are in general pro democracy reformers, the strongest resistance will be that the core public funding mechanism of HR1, which is small dollar matching funding, so that small contributions get matched six to one. That funding mechanism exacerbates polarization. And the argument is that small dollar contributors tend to be the most extreme. And the fact that you're multiplying the extreme contributors means what you're doing is exacerbating the pressures of polarization inside the politics. I'm convinced my research says that's not true. But the point is we need to find a more diverse strategy for public funding that can resist that. And the alternative to the small dollar matching is a type of public funding that got a lot of support in this last election cycle. Andrew Yang went right out of the bat in April of 2019 talking about vouchers. He said he would give $100 of democracy dollar to every voter. Kirsten Gillibrand during her run talked about $200 per federal raise. So that would be $600 in aggregate if you had a president, Senate and congressional race going on. And by the end, Bernie Sanders in a town hall that we conducted with him and Zephyr Teachout in New Hampshire, Bernie Sanders became a credibly strong supporter for vouchers, gave one of the most passionate and persuasive arguments in favor of vouchers over matching funds. Not that he. He's against matching funds, but he thinks it would be much more important transformation. And I think that was an important moment in understanding, like, what the opportunities here are. And the reason that's important is that if we had matching, if we had vouchers, then most of the voucher money would be held by people who are not at the political extremes. Because what we know is it's only about 10% of America that sits at the political extremes. And if most of the money is sitting not at the extremes, but with people who have different views about different issues and can be persuaded to think about who they ought to be supporting, then that might tend to dampen the dynamic towards the extremes. And so I'm not convinced that we can get HR1 to include a massive voucher program like Seattle on steroids for the nation. But I do think we can get HR1 to allow a much more ambitious pilot program, especially if we allow it to be privately funded. That would allow us to be able to say, you know, here's a very significant experiment we've done that demonstrates that this alternative of public funding is actually much more empowering and much less polarizing. And I think if we could show that, it would help us move it forward. But the immediate thing is they take that bill, exactly that bill, and they pass exactly that bill, and and then we're moving.

I don't often find myself being more pessimistic than you, Larry, so I'm glad to see that to you and I, if that's what happens, you know, we all still have to organize, but that's definitely the future that I would want because I echo, Larry. We can definitely improve the bill, but that would be remarkable if, you know, if we could get that bill an up or down vote, you know, in early next year.

Yeah.

I mean, I'll just add when we say specific text, I think an obstacle, Evan, in response to the question would be if anything touching court reform or court expansion or judicial ethics or anything like that is in there, I'm confident the Democrats will keep that separate. Indeed, Biden has already announced the separate committee to study Supreme Court reform. That would be a real obstacle. But I think Democrats are going to avoid that. And I do think that folks like us, like you all on this call advocates are going to have to take what exists with a fine tooth comb and realize that it's going to be looked at by a very conservative U.S. supreme Court and every line of it needs to be written so that the constitutional authority for every single provision is very, very clear and alternatives are there in case things get struck down. So that would be another obstacle. Evan, I think we can do it. I think the bill was already written in response to Supreme Court decisions that have gutted some of Congress's prior attempts to do things like regulate campaign finance. So it's already a response there. But that is an obstacle and it needs to be looked at super duper closely by everyone involved and I'm confident it will. So okay, we've got a couple of more questions. I want to do a couple more questions about reform and then we'll go back to the question I said would be the second question about the upcoming election. And then because we're coming up on 7 o' clock on the east coast, we'll wind down in a few. So if anyone has any last minute questions, put them in the chat. The two related questions about ranked choice voting, Larry and Adam, and both of you are real experts here. So Eric points out that ranked choice voting is, can be a countervailing force to polarization from matching funds. So I'm curious your thoughts about pairing RCV and some of these other reforms. And then we had a question submitted by email that I'll put on the table because it's related. A podcast listener named Damian wants to know about other methods other than ranked choice voting. Like if approval voting or score voting or star voting. Adam, maybe maybe you know about some of these, how they would interact with proposed reforms, whether they are a little not getting as much momentum and so maybe shouldn't be the focus or whether we should be really experimental here, especially if the Democrats take a lot of power.

So I'll take the first part of that and a little bit of the second. I do think ranked choice voting can have a moderating effect. I think the more interesting effect it has is to, is to encourage ideas, new ideas to be brought into the political system. I mean think about, you know, Andrew Yang's proposal of UBI in the, in the Democratic primary before the pandemic made it seem like an obvious idea. I mean, you know, in the days when it was like a crazy idea. But Andrew Yang pushed it very hard. If there had been ranked choice voting in that context, many of the other Democratic candidates would have had a more serious reason to take Andrew Yang seriously and his ideas seriously because they would be looking not just for first place votes from people in the primary, but also Andrew Yang's second place votes or third place votes. And so I think that it's a mechanism for encouraging innovation and bringing innovation into. Into the system. But the thing it does, and this relates to the second, the second part of that question, is somebody in. Carla, who has been running ranked choice voting here in Massachusetts after succeeding in getting it passed in Maine, reported one of her volunteers, once said, the great thing about ranked choice voting is at least the person who gets elected is somebody everybody can live with in the sense that everybody who elect, who got them to 50% percent at least had them as somebody they liked.

Right.

So the point is, it begins to focus us on a majority candidate that the majority of us actually want. I live in the congressional district that. That was Joe Kennedy's district, and he obviously stepped aside so he could run for Senate. There were nine candidates in the Democratic primary. The person who won got 23% of the vote. And, you know, obviously that means that. That the person who won finds it hard to be able to say that he actually is speaking for the majority of the people in this primary. But we could have a system, and we will, I think when ranked choice wins in Massachusetts, we will have a system that allows us to be sure that the person who won is actually somebody who the majority at least has something to do with. And I am all for these other experiments. I think we should have lots of experiments, but the experiment should be towards the end of finding candidates who can speak for a majority of the people they're supposed to represent. Because that principle of majoritarianism, which was at the core, it's why we have a 270 requirement in the Electoral College. And I think it's a good requirement. It's a requirement to make sure that candidates speak for the majority of the population and try to speak for that majority, as opposed to parliamentary systems where it's very easy to imagine parties that are aiming really at the tiny a slice of the public. And I just don't think those in the long run can knit together a nation as effectively as majority parties and majority candidates can. And I'm all for every innovation that tries to get us to that.

I certainly echo Larry's, you know, speaking highly of ranked voting and of course, of Kara McCormick, who and the whole, you know, team in Massachusetts right now who are working their butts off to pass this, this ballot initiative here. It's really remarkable. I mean, we talked about movements. I mean, it's really a remarkable movement that they put together that was four years in the making. This isn't something that people woke up one day and all of a sudden it was on the ballot and, you know, it might pass. This was, you know, blood, sweat and tears of activists who are putting, you know, their lives on hold to try and reform our democracy. The only thing I'll just say about the, you know, other modes, alternatives of ranked choice voting is just that, you know, what you don't ever want is for, for there to be infighting. And so, you know, the, when there's momentum for something like ranked choice voting, it's incumbent upon all of us, even if there's one that mathematically might, you might prefer to support the reform that is gaining momentum. And I think that we oftentimes may get bogged down if there's something that you may technically disagree with. So I echo Larry on that as well. But you know, there's just so much great stuff happening on this question of trying to ensure a majority. And so fingers crossed for next week, something definitely for us all to be watching.

Yeah. So related to that perfectly. I'm actually going to switch the last question here because I want to continue our equal citizens tradition of ending on an optimistic note. I really love this conversation. Looking beyond next Tuesday, right? So much has been said about Tuesday. And again for folks listening, we have many more hours to come in our podcast feed, another way about about what could go wrong on November 3rd and in the weeks beyond. But it is so critical to have this conversation about what comes next. And there is so much optimism there. And so Mike Fitzpatrick, another longtime equal citizen supporter, wants to know, going back to electoral college, tell us a little bit about the need for a national popular vote and its interaction with some of the things we were just talking about, including the two party system, the primary system. Mike wants to know how it interacts with governor's elections and whether every election would really be in play. So I just want to throw it to you, Larry, to explore a little more of what this optimistic world looks like. And how much does the primary system need to be reformed as well? I think that's a really interesting topic to sort of end on.

Well, I think there's no silver bullet. There are lots of reforms that are necessary, primary reforms. Reform is high on that list. I actually read the first part of Mike's question to be a really important point that people miss when they think about national popular vote. You know, the standard resistance to national popular vote says it will create a flyover democracy. The candidates will only ever worry about New York, maybe Chicago, like only the coasts and Los Angeles and Silicon Valley. And that's it and the easiest way to say see why that's just not true is to think about how elections happen in states for governor. Because in states like Pennsylvania, which obviously has two very large population centers, Pittsburgh and Philadelphia, if the flyover theory were true, what you'd expect is that candidates running for governor in Pennsylvania would spend all their time in Pittsburgh and Philadelphia and that the place I grew up, Williamsport or, or Erie, Pennsylvania, or Scranton, where Joe Biden is from, would be ignored. But when you look at the actual data of where candidates campaign and John Koza has been, data support has been providing this data and it's very informative. If you look at this data, you find that candidates, when they run for governor, run everywhere. They try to persuade everybody and that their actual time spent is pretty proportional. Proportional to the number of people that are in the place that they're campaigning. And so the actual campaigns of actual governors running in actual comparable circumstances to what National Popular Vote looks like belies the claim that we would not have a president who would be caring about getting a vote everywhere. We'd have presidents trying to get votes everywhere, just like we have. Just like we have in the context of governors. So. So that's again why I think National Popular Vote makes sense. And it's the thing, it's certainly the first thing that I support and I want to have this hope that we get to the place that this is feasible and something we can actually accomplish.

Yeah, I would echo that. And Mike, we can certainly follow up offline with some more details. I mean, I think that the issue of the two party system is so ingrained in our current system. I think ranked choice voting will certainly help break it. I think people are attentive to primary reform. I mean, it seems so long ago that the Iowa caucuses and New Hampshire primary were held pre pandemic, but there was a lot of criticism that they weren't representative of the full electorate and the like. So I think that's on people's radar. But there are a few reforms that are really attainable right now that includes National Popular Vote and it's a vast improvement. And I'll just echo Larry's point. HR1 is a dream. As of a decade ago, it's not perfect and we can imagine many other things when it comes to creating our perfect democracy. But National Popular Vote is similar to HR1. It gets us so much of what we want and it's just critical. We're rooting for it in Colorado and we'll be working to reform the college afterwards. Okay, so that's our optimistic end to this live show hangout discussion. It was great to spotlight many of you. It was great to talk with you in the chat as well. Of course, you can find more of our discussions in the Another Way podcast feed and at equalcitizens us Anotherway we will be. We've got lots more content between now and election day. And Larry, I'll let you get the last word, but I assume that if we need to, we'll just keep podcasting every day or keep doing something every day to keep people up to date. But I'll let Larry, you wrap it up here.

No, I don't have many words. I'm hopeful and optimistic that a week from now we'll be breathing a big sigh of relief and we can start thinking and planning for everything we know we have to do in the first year of this next administration. So thank you, Jason, and thank you, Adam, and thank you, everybody who joined this conversation and for your support of Equal Citizens and share the podcast. Spread it. Because if the darkness happens, we need to inoculate the system, especially thinking people in the system, against the crazy talk, which is. Which is so common in at least one side of this debate. So thank you so much for showing up and we'll keep on fighting.

Indeed. See everybody. Bye, Adam. Bye, Larry.

Thank you, everyone.

Bye. Thank you.