Professor Ned Foley on the Electoral College [06-20-19]

This is Larry Lessig, and this is the third season of the podcast Another Way. In this episode, we're going to speak about what may be the unspeakable institution in our democratic process, the Electoral College. As we've outlined for this session season of the podcast, Another Way, we're going to be talking about reform for our democratic processes and talking a lot to candidates. And for those candidates who will not talk to us, we will talk about the candidates. But in addition to the candidates, we're going to take the opportunity to talk to experts on various corners of this general field of democracy reform. And we will be talking to people about gerrymandering, about funding of campaigns, about vote suppression. And today we're going to be talking to one of the nation's experts on the Electoral College. So Ned Foley is a professor of law at Moretz College of Law at the Ohio State in Columbus, Ohio. He runs the Election Law center there. He's one of my favorite professors addressing the question of electoral law. And he has done enormously important work over the past couple years addressing the question of a struggle over determining who is the winner of a particular race. In 2016, he published a wonderful book, Ballot Battles, which describes the history of disputed elections. But the book we'll be talking about today is coming out in the fall of 2019. It's called presidential Elections, A Majority Rule, and it's telling the story of the history of the Electoral College. Okay, so in our way of thinking about the project of reform, which this season of the podcast Another way is subtitled POTUS 1, in our conception of reform, we should be thinking about how we can or should, and those are two different questions. Reform the Electoral College. What is the way to make sure the Electoral College can serve the ends of a democracy, especially the kind of democracy that the framers of our Constitution intended? And so there are lots of particular proposals out there, from amending the Constitution to eliminating it, to adopting something called the National Popular Vote Compact, which we will have an episode to talk about, to getting the Supreme Court to tell states that they have to allocate their electors proportionally, which is a proposal which is at the core of litigation that equal citizens is involved with. But the range of alternatives should be informed by some understanding of where we came from. What was the assumption behind the framers, not just of the original Electoral College, but the Electoral College that we live with, the one that was given to us by the 12th Amendment to the Constitution? And that's the core focus of what this episode is about. As we Talk to Ned Foley. As I said before, each of these episodes is in a spiritual sense brought to you by different reform organizations around the country. They're not technically giving us any money for this, but I'm keen to give them the attention they deserve. This episode is brought to you by Represent Us, which is America's leading right left anti corruption group. They bring conservatives and progressives together to fix America's corrupt political system so the government works for everyday Americans and their family, not just a handful of of special interests and billionaires. Represent Us strategy has been used throughout American history to create massive, lasting change. They have been enormously successful in the last election cycle, helping to corral an extraordinary range of state based movements that originated not necessarily just with them, but they helped champion, brought about more electoral reform in 2018 than in any election in the history of America. So you can learn more and I hope you will follow up at their website, Represent Us and you can join locally their anti corruption movement or you can join the efforts that they're pushing nationally to make anti corruption a central part of the political debate. So with that, we'll turn now to the podcast with Ned Foley. So welcome. Welcome, Ned. Thank you so much for agreeing to be part of this podcast.

Delighted to be here, Larry. Thanks so much.

So you come to this from a context of being one of the world's experts on election law. You wrote a really fantastic book in 2016 called Ballot Battles, which was struggling with the history of the struggles in elections in the United States. And the book that I'm hoping we get a chance to really understand in this conversation is a book that's coming out in the fall called Presidential Elections and Majority Rule, published by Oxford. And I've had the privilege of reading it and so I'm really eager to talk about it in that book. The first really important idea that I'd love for you to help everyone understand is the sense in which we have had actually two electoral colleges. There was an electoral college that the framers gave us and then an Electoral college that the 12th amendment created. So why don't we begin there. Tell us a little bit about what those two colleges were and how you see them as different.

Sure. Thanks. And you're right, that's sort of a key point of the book. And I should say I went into this book project as a history project not knowing exactly what I would find out. And I think my own understanding of just how different these two electoral colleges are and were is a result of the research that I did. It wasn't a preconception going into the project. And I indeed remember learning in law school and maybe even in college that, you know, the Founders gave us the Electoral College. And I remember one teacher saying that the 12th Amendment was just a merely minor tweak that basically left the Electoral College that the Founders gave us intact. But just for this one minor edit, and that's it.

Turns out your professor was wrong here.

Yeah, well. Or hadn't done the same research that I. I don't think that person was the only person. I think that's kind of a received wisdom or a shared. I mean, how many Americans really know what the 12th amendment is or have heard of it that everybody's sort of heard of the Electoral College. And again, we sort of think it came from the original convention in Philadelphia. I don't think many people have a different conception, but the prevailing wisdom in this case is inaccurate. And there really are these two different Electoral Colleges. And I think the best way to understand that is the different image of an authentic or legitimate winner as conceived by the different architects. So in Philadelphia, at the original convention, they definitely had in mind George Washington as the image of the kind of winner that they wanted. And indeed, their handiwork produced that winner. And what's important about that image is it's an image based on the notion of consensus. The idea that the Electoral College and the particular mechanism that they chose would produce a consensus choice. Somebody above party, not belonging to one political party, fighting against the other, a national figure, and very much, again, a consensus figure.

So this is like a Tom Hanks conception of a president.

Exactly right. And it worked for a couple elections. I mean, it worked for only the two elections that Washington won. And after that, the idea that we could get presidents by consensus broke down, and we began to get intense party competition between the Federalists on the one side, and John Adams was their candidate versus Thomas Jefferson. And on the other side, the Jefferson Party went by different names, sometimes actually called the Jeffersonians, sometimes called the Democratic Republicans, but it was definitely two different groups.

So Jefferson and Adams first conflict, or they fight against each other in 1796, right?

Correct.

Jefferson has to serve as Adams vice president under the rules of the first Electoral College, Correct?

Correct. And they already start to see that the architecture at the convention doesn't meet the new reality of party competition. And Jefferson, the runner up becoming vice president is an example of that. There are other aspects in which the system is breaking down, but that's one aspect of it. But they already have the sense that Electors in 1796 People who want to be electors are promising that they will either vote for Adams or vote for Jefferson. That they're not going to engage in this so called deliberation and have an independent idea. They're already announcing party loyalty and pledging to do what the party wants them to do. So that happens in the third election fairly early on. And then there's a rematch between these two candidates in 1800, which has this huge constitutional debacle that we can talk about. But the upshot of that is the Jeffersonians, who prevail in 1800 both in congressional elections. So they control the Senate and the House by super majorities enough to write a constitutional amendment and get it adopted by 2/3 votes in each house and send it to the states. They have a new image in mind and their image is now Thomas Jefferson as the proper kind of winner for from their redesigned electoral college. They know that it's going to be a partisan fight between Team A and Team B and they want the correct team to win. And by correct in this context, they mean that the majority team should defeat the minority team. There's not going to be consensus. So if it's going to be us versus them, the prevailing party should be the dominant party, not the minority party.

Right. Now that conception is very important. We're going to talk a lot about that in a second. But I want to make sure people realize the incredible story that 1800 was. Because if you have even a high school or college education about American history, you might know that there was technically a tie in 1800. But I think most people have no conception of exactly what that tie was about. So why don't you tell that story a little bit so we just have a sense of how close we were to banana Republic in 1800.

Yeah, it is, it is really a fascinating story on so many different levels. We might have had another. Well, or like the first Civil War, right? I mean, the militias were summoned in Virginia and Pennsylvania by the Jeffersonians because the governors of those states were alive with Jefferson. And they were really afraid that the Federalists would steal the election from their perspective and they weren't going to let it be stolen. And so they sent out the troops to defend what they thought was the rightful victory. So now, thankfully there was no bloodshed and it didn't come to that, but it might have. And it was the first election that called for the peaceful transfer of power from a previously dominant party, namely the Federalists, to the now newly dominant party, the Jeffersonians. So I mean, it was, it was touch and go there for a while. But it does end up, not in bloodshed, not in a coup or anything like that, but it does ending up with a peaceful transfer of power and Jefferson writing and then delivering an inauguration address that intends to try to heal the country as best as possible. But to sell some of the details of the story, there is this tie vote not between Jefferson and his opponent Adams, but between Jefferson and his own running mate, Aaron Burr. Because again, the defective mechanism of the original Constitution called for the electors casting two votes that have equal status. And the theory there was electors would tend to vote 11 of their ballots for a local favorite, but then they'd vote their second ballot for a consensus person. If it wasn't going to be George Washington down the road, it might be some other national figure. So that's why they wanted originally they wanted these two equal votes, so that maybe the second vote would emerge as the nationally dominant vote. But once you get party competition between team A and Team B, Team 2 equally equivalent votes only causes problems because each partisan elector wants to cast one vote for their top of the ticket candidate, Jefferson, if they're of that party. And then they want to cast their second vote for Aaron Burr, who the party is designating as the person to be vice president. And so then Jefferson and Burr both get the same number of votes and the system can't handle it. Now if.

Yeah, so they expected, right, as the Federalists actually did it, that one delegate for the Federalists would hold his vote back. And it was of course only his back then. So that the vice president would get one vote less than the winner. And that worked for Adams, but it didn't work for Jefferson.

Correct. And it worked on both sides in 1796. They sort of anticipated the need to do this in 1796. So it wasn't like this was a brand new problem in 1800. But the Jeffersonian party kind of screwed up the mechanics of how to deal with the situation in 1800. And it would have been a non problem if Burr had been an honorable guy and sort of said, oh, I know for sure that Jefferson's supposed to be the president and I'll just acquiesce in that. But Burr was enough of a conniver that he thought maybe he could do a deal with the Federalists as less objectionable. Again, we can get into the details of that. So it becomes a problem as a matter of constitutional law and the rules of the system because Burr doesn't acquiesce in the role that he's supposed to play.

Yeah. So of course the guy who shoots Hamilton and then would later go on to basically wage treasonous war against the United States. It's no surprise that here too he, he turns out to be the conniving person that he is introduced to us in the Hamilton musical. But this part of the history.

Can I just say one more word about Hamilton has an important role to play in resolving the dispute. Because once there is this official tie between Jefferson and Burr, under the Constitution it goes to the House of Representatives to decide who. You know how to break the tie. And it's the lame duck outgoing House. Under this rule that each state gets one vote and the outgoing House is controlled by the Federalists because they had been the dominant party. The new House will be Jeffersonian in composition. So the lame duck Federalists are in a position to choose between of Jefferson and Burr. And there is some thought that maybe Burr would be more acceptable to them. And that's why Burr wants to try to play that game for a little while. And Hamilton is actually an important figure as a leading Federalist. And Hamilton does not like Jefferson at all. They have a falling out during the Washington years. Two terms of George Washington, even though they had been in the cabinet together. In any event, Hamilton ultimately tells the members of his own Federalist Party as. But you know, yes, Jefferson is a Jacobin in favor of the French Revolution and I don't like his ideas and principles. But at least he has ideas and principles. Burr has none. He just is a self serving. He's only in it for himself. And so as between the two, I'd rather have a president whose principles I don't like than a president who has no principles at all.

Yeah, it's an amazing moment. And of course. So Jefferson becomes president.

Correct.

Jefferson, he thinks of that election as he describes it as significant a revolution in the history of America as was 1776. Because it's very much about creating the idea of a real democracy where it's not just the elites, it's everybody. Not as much as of course Jackson would later. But it's a real expression of the democratic values that Jefferson believes he stands for.

Yes. And whether revolution is the right word or not, I think that gets at the notion that this is pivotal or transformative. And the 12th Amendment becomes the constitutional embodiment of this. I think we have a new Constitution after the debacle of 1800 and the 12th amendment that is of philosophical consequence, not merely this minor technical tweak.

Right.

And although the 12th amendment isn't written with a preface that alludes to the philosophy. It is an instantiation or embodiment of this new democratic philosophy that has prevailed. They want to embody it in their new mechanism that they create.

Right. So the technical thing that it does, the boring bit, but the bit that's in the actual text of the Constitution, is to just make it so that when you are as an elector voting, you're going to vote one ballot for the president and one ballot for the vice president, so you could never have a conflict that created the crisis in 1800 again.

Exactly right. And it does that. Most importantly, it does change the rules for when an election could go to the House of Representatives. The original Constitution said, if there is no majority winner of the electoral votes, the top five candidates go to the House. They cut that back to three because they wanted fewer elections to go to the House and again, make it more a reflection of what they thought as the popular sentiment. But that leads to, I think, a point that we want to discuss, which is, given that their vision was a president like Jefferson, and they were both looking backwards to 1800 to avoid that problem, but also ahead to Jefferson's reelection in 1804, now, again, he would have to win it. But they knew he was going to run again, and it wasn't like they were trying to rig the system for his benefit. But they were saying, how do we design a system that reflects the values that we think Jefferson's presidency is supposed to value? So what's a good system to produce the right kind of democratic winner and for a federal republic that they knew the United States still was? They wanted the candidate that gets a majority of electoral votes to get that majority by being dominant in the states that make that electoral college majority. So again, they envision a world of two parties fighting state by state. The Federalists are still dominant in New England, but only really dominant in New England. And there's really interesting discussions about can New England go its own? In fact, there's a secessionist movement because the New England Federalists hate Jefferson so much, they think about just leaving the country after 1800. Thankfully, they don't do that. And the Jeffersonians in Congress say, no, we're the United States. And if our guy wins properly through this system, then he deserves to be the president of the whole country. And that's because his party, and he's the dominant candidate, his party is the dominant party in enough states to make this federal majority in the Electoral College.

So this is the majority of the majority system. You get a majority in enough states to then get a majority in the Electoral College.

Correct. And that's the vision. That's the new vision that replaces this consensus idea. There's going to be a winner and a loser, one side's going to be unhappy. But what counts as legitimate in this system, in the American system, which is a federal system. And for hour after hour that's now reflected page after page, you have the members of the Jeffersonian party in both the Senate and the House as they explain this new system that's going to be written into the 12th amendment. They use the term republican form of government. They use that term more frequently than the word democracy. But what they had the notion that this should be a government of the people, by the people and for the people. So a Republican chief executive, or they often use the phrase chief magistrate, the person who sits in the chair of the chief magistrate should have an authentic Republican victory. And that authentic Republican victory in the Federal Republic will come from this compound majority, this national majority created by an accumulation of state based majorities.

And so in this picture, majority assumes that you're going to have two candidates rather than three or four candidates. Because if there are three or four candidates, then you would have a plurality, but you wouldn't in probability have a majority. Right?

Correct. In 1803, when in Congress they are writing the 12th Amendment, they are not anticipating third parties and fourth parties in any organized way. They are now living in a world of purely two party competition, us versus them, Federalists versus Jeffersonians. And they, and they don't anticipate the need to think about what becomes on the scene, sort of in the 1840s in particular, where you get like the Free Soil Party or the Abolitionist Party, that can really affect the operation of the system. It's enough for them that they've gone from the world they had hoped to avoid what they organized parties. They knew that there were going to be factions, but they had hoped, or the authors of the Constitution in Philadelphia, as the Federalist Papers reflect, they hoped that the mechanism of separation of powers and checks and balances would cause factions to be very fluid and never coalescing into organized, ongoing, permanent parties, as it were. And that that was how the architecture was supposed to keep interest groups in check, by having such a large multiplicity of them. None of them would ever become dominant as a, you know, so that you wouldn't see a majority party dominating over a minority party. But interestingly, you know, Madison, one of the authors of the Federalist Papers by 1792, is writing essays explaining why he now thinks a two party world is inevitable because there's going to be one party that's going to be the party of the creditor class and the bankers. That's the Federalist Party. This is the result over the fight over the national bank that Hamilton was in favor of. And then there's going to be the other party that's more the party of the debtors, the farmers, not the bankers. And Madison and Jefferson are aligning themselves with that second party, which they sort of call themselves Republicans more than anything else. And then Hamilton and Adams and others are aligning themselves with the Federalists. And so there's been a big transformation, but it's only to a world of two parties. They do not anticipate yet another transformation where a third party might make a difference.

Okay, so I want to go deeper on this majority and majority point, but I want to make sure that people understand one fact about this history that's a little obscure to us today. We take it for granted today that what happens when we select a president is that there's a popular election and then the electors are chosen on the basis of the results of that popular election in all but two states. The winner of the popular vote in a state, even by a plurality, gets all of the electoral college votes in the state. But at this time, it's not yet settled that electors are handed out according to popular elections. Right. Legislatures still have a very significant role in that choice.

Correct. And this is the Achilles heel of the 12th Amendment. Because when they were doing all these other changes and they were sort of reconceptualizing what they wanted, they didn't feel the need to constrain the way in which the states would select among different options about how to appoint electors. They were familiar with states choosing different options because by the time they write the 12th amendment in 1803, there have been four different presidential elections. And the states have been quite active in experimenting with different options. Some states, as you indicate, have the system where the legislature just directly appoints electors themselves and doesn't have a popular vote. But other states are experimenting with different forms of popular votes. Some doing it on the basis of district systems, some doing it on statewide systems, some doing it on hybrid systems. There's quite a bit of creativity in this. And one thing again that I did not not realize before undertaking this research is that at least a couple of states were experimenting with runoff mechanisms in the context of a popular vote for the electors.

Because yes, New Hampshire's a great example here.

Exactly right. And they experiment with two different types of runoffs, including another second popular vote. In other words, if you're trying to be an elector in New Hampshire to represent, say, the Federalist Party, but you don't get a majority under New Hampshire law, there's going to be a runoff between you and your main competitor to make sure that the elector is chosen by the popular will based on a majority, not merely a plurality. And New Hampshire keeps that runoff, or a version of the runoff, well into the 19th century. So when the Jeffersonians write the 12th amendment, they're aware of these experiments and the fact that states do different things. But the one thing that they don't account for, particularly because they don't envision third parties, is the idea that states would turn over their mechanism of appointing electors to a minority party, not a dominant party. And there's one very important reason historically for understanding this. Precisely because states were experimenting and changing their rules, by 1803, it was received wisdom that states would choose a method that reflected the dominant party within the state. Right. I mean, so you saw Virginia switching its rules to reflect the desire of the Jeffersonians. They did this in 1800.

The.

This happened in Massachusetts. In other words, when a party becomes dominant, they pick an electoral method that they think best serves the need of that dominant party. So it just. They couldn't fathom the idea that states would choose an electoral method that would allow a minority party to control the electoral votes of a state, because they were trying to use. Each party wanted to control the electoral votes in order to maximize the chance that that party would prevail in the presidential election. The Jeffersonians were doing this in 1800. The Federalists were doing this. So the idea that the party would kind of abdicate that opportunity just wasn't part of the mix of what they were considering.

That'd be kind of presidential malpractice.

Yeah, exactly. Exactly. So the one feature of the original system that they didn't. They didn't think they needed to, was the provision of the Constitution that says states can choose their method of appointing electors. Because the Jeffersonians, having engaged in this practice, thought that states would choose whatever method reflected the will of the majority within that state.

So why didn't the Framers just simply embrace something like a national popular vote or. Or a system that more directly tied the result to the views of the actual citizens of the. Or the white male citizens whose property who would be voting in elections?

Yeah, So I guess you have to ask that question or answer it in two stages, because, again, the founders in Philadelphia in 1787, thought about that and rejected it. And we can certainly discuss that. But it's just as important to ask why, when making the changes that they did, didn't the Jeffersonians just adopt the national popular vote? Because since they were redesigning the system and thinking quite philosophically, why didn't they then make the move to a national popular vote? So I think it's important to address that question in two stages, both in 1787 and then again in 1803.

Yeah, I mean, in 1787, this is the history I'm more familiar with. Obviously it's not so much that anybody or that most people are against the idea of democracy. They just don't even understand how it could work at a time when it takes weeks or months to get from one part of the country to another part of the country. There's no telecommunications infrastructure. How would you run an election that would produce information that the public could use to actually vote on a presidential candidate when you didn't have an infrastructure for distributing the information they would need? So, like, George Mason is opposed to the idea of the vote, but he makes it very clear he's opposed because the mechanism of the time would not make it so the public could actually understand enough to make an informed judgment. Is that similar to what happens at the 12th Amendment? Or what. Or how is it rediscussed after this new conception of majoritarianism is at the center of the design?

Yeah. So I think something different is going on. I think you absolutely correctly describe what's happening in 1787. And just to add to that point, they think that there are going to be too many candidates. Right. There might be 15 different candidates, all, you know, up and down the eastern seaboard, as it were. And how would you winnow the field down? People in Georgia would know the people from Massachusetts and vice versa. So they just thought you couldn't do it successfully by 1803. That's not the primary concern. Instead the concern is because 1800 was such a debacle and because the existing system didn't fit the new philosophy, they felt it was an absolute imperative to have a new system by the 1804 election. So there was a practical component to this as well as a philosophical component. They didn't want to miss the opportunity. And they had had debates in 1801 and 1802 in which they explored a variety of options, including again, district based systems and forcing states to use districts instead of statewide popular vote or statewide appointment of elections, because they thought maybe that would be more equivalent to popular will. But they couldn't get anything adopted in the first two years of Jefferson's first term. But then the Jeffersonians added strength in both the Senate and the House. And at the point where they now had just enough, if only Jeffersonians voted for the proposed constitutional amendment, they'd have just enough votes to send it to the states under Article 5, but without really a vote to spare. So they didn't want to go so far back to the drawing board where they'd lose members of their coalition. So I think that's important to say that. But also, they philosophically didn't believe in the idea of one monolithic national electorate. The philosophical discussion that goes on at great length in 1803 is how to marry the idea of federalism with the idea of republicanism. Those are the two fundamental values of the Constitution, republicanism. But they already have that at the state level in Virginia or wherever. But it is going to be a federal system. But they have to renegotiate that marriage, if you will, because the way in which those two values got combined in the original Constitution has now broken down. They don't want to abandon either fundamental principle. They want to renegotiate. They want to reconstruct the Union. I mean, I know we use the term Reconstruction for after the Civil War, but they sort of feel like they need to reconstruct the Constitution after the debacle of 1800, but they don't want to abandon on their premise. So the idea of a single national popular vote for the chief magistrate of a federal republic would be contrary to their acceptance of federalism. That's why they want a compound majority and not a simple majority, because they genuinely believe that the national president should reflect the separate sovereignty of the states as distinct sovereign states. They don't want one monolithic electorate. And they're quite clear about that as part of their philosophical commitments.

This is a really important point that it's hard for us to remember because we think of ourselves as citizens of the United States first, and maybe citizens of Massachusetts or citizens of Ohio or citizens of Virginia second. There's a very famous moment when Daniel Webster stands on the floor of Congress and he says, I speak to you today not as a man from Massachusetts, not as a Northern man, but as an American. And it's quite startling. It's like imagining Ted Cruz standing on the floor of the Senate and saying, I speak to you not as a Texan or not as an American, but as a citizen of the world. Right. It's Just that it's that level of like crazy at the time. And that is because exactly as you're describing, the nation is really thinking of itself as separate states or separate regions that have different dynamics and different values that are trying to weave themselves together into this federal republic. And it would be hard for them to think in a way that it's easy for us today to think of us as citizens of the United States altogether, picking our president. It does make sense that this is going to be a federal republic structure or a Republican federal structure.

Right? That's exactly right. And that's why I think it's important to remember that in 1803 when they're discussing this, to think about that secessionist movement of the New England Federalists. Because it's just that how low, if you will, the commitment to the Union is that you could imagine the New Englanders saying, if we don't like what's happening in our federal government, we'll just up and leave. Connecticut and Connecticut had some of the leaders of this, we're just going to go our own separate way. And another piece to that to remember, remember one of the things that they're so upset about is the Louisiana Purchase. I mean, the idea that we would think of the Louisiana Purchase as a bad idea or as an unconstitutional idea sort of seems very strange to us. But the Federalists were really worried that Jefferson, by buying the Louisiana Purchase, was going to completely change the character of the Federal Union. In a way, the Federalists were less interested in slavery. I mean, Jeffersonians weren't all wonderful people. They were slaveholders. There's a lot of their conception of democracy was not our conception of democracy. We have to remember all of that. And one of the reasons why, I mean, until we get the south seceding in 1861 after Lincoln's election, a lot of abolitionists and a lot of the anti slavery folks were leaders of the idea of secessionists because they didn't want to be part of a union that believed in slavery.

So it's a kind of Brexit, but for exit, New England exit, that's being contemplated. And I think that again suggests the difference in the time because in Europe right now, I mean, the, you know, obviously people in Britain, many people in Britain don't think of themselves tied to Europe. The idea of electing a president of Europe would be a bizarre notion because of that separation. And you can certainly see how the fear that Jeffersonians populating the whole of the United States through the Louisiana Purchase is going to lead to a nation that doesn't look at all like the nation that the New Englanders thought they were signing up for when they, you know, got the constitution ratified in 1789.

Right? No, that's exactly right. That's a very good way to think about it. And of course, you know, we having lived after the Civil War and Reconstruction and the New Deal and Roosevelt and the Great Society, I mean, And World War II, I mean, it is so hard to put ourselves back into what it would have been like in 1802 or 1803, when that allegiance to Virginia or to Massachusetts was more dominant than one's allegiance to the. To the federal system.

Yeah. Okay. One other part of this history that I want to make sure that was clear is this a very idea of what the electors are. So you describe, for example, in New Hampshire, if you running for an elector didn't win the majority in the state, then there was a runoff or a separate system for determining who the electors were going to be. These electors would appear with their name alone on the ballot, or would they appear as a federalist, or would they appear as a candidate pledged to a particular candidate for president?

Yes. So this is complicated, and of course, it varies a little bit state to state, because all of this is happening at the state level. In the states. When we as Americans vote today, we vote on what's now come to be known as the Australian ballot, because the Australian invented it, where the government prints a ballot with the names of the candidates and so forth. That doesn't happen in America until the late 19th century century. And instead parties printed tickets of the candidates that they wanted their supporters to vote. And then they would hand out the party tickets to supporters, and voters would. Would stick the tickets into ballot boxes. So the parties could kind of put on the. On the ticket information, pictures or, you know, information that they would want to. They'd have, obviously have to put enough information for the official government counters to count the votes. So they would have to include the names of the electors that were associated with that party. But they could and they did. If you go back and look at some of the images of early tickets that parties printed, they would say, here's a list of 10 names. Let's say these are the Jeffersonians who are going to support Jefferson. So There'd be the 10 different names, but they would. They would make it clear that they were individuals who were members of the party and associated with the Republican cause and the Jeffersonian ticket, as it were. It wasn't a formal relationship written into law, but there was an understanding of the voters that when they supported an elector, that they were actually supporting the candidate. And the electors were supposed to do that. And again, that happened by 1796. 6 as an informal arrangement and becomes pretty well settled. So the idea that electors were these independent agents, that disappears very quickly.

So the notion that they were independent agents disappears. But did the electors always vote as they, in this sense were pledged? There's no formal legal pledge, but as they were pledged in the context of their election?

No. I mean, we get this notion of faithless electors happening. There are some examples of this early in the 19th century. But in thinking about 1796 and in 1800, the two partisan fights before they write the 12th amendment, interestingly enough, there's no. In fact, there's too little defections. Right. That's what we talked about. The debacle of 1800 was the Jeffersonians were too efficient at having their electors toe the party line, and so they did not. The problem on their mind was not the problem of an elector failing to do what the party wants them to do in the sense of voting for the party's candidate. That's that. Yeah, that emerges later on.

But in the 1800 election, when Jefferson ties with Burr, that's not because the electors didn't feel free to throw away one of the votes. I think there's recent work I just had read that shows pretty conclusively it was Aaron Burr conspiring with electors to create a crisis. So in a sense revealing that they had the freedom to do what they wanted to do and then acting on that to create a crisis rather than avoid a crisis.

Yeah, I agree. I think there are different ways to understand Burr's role and his relationship to the electors and how faithful Burr was, or not faithful he was to Jefferson and as a party and so forth. I do think that's a rich and interesting story. I think there's no doubt that as a. I said, I mean, certainly the authors of the 12th Amendment do not make any formal change to the constitutional rule that does seem to let electors do whatever they want. There's no pledging mechanism or enforcement of pledging mechanism written into the 12th amendment. And insofar as the Philadelphia Convention originally conceived of electors as independent, I think that's accurate and that's discussed by Hamilton in the Federalist Papers. There's no formal repudiation of that aspect of the original design. But I do think the correct understanding of what the Jeffersonians expected when they wrote the 12th amendment and they reconceived of the Electoral colleges, I think their expectation was that electors were going to toe the party line and that they no longer expected electors to be independent. The flavor of the debates, and again, they're very extensive, is that the electoral college is supposed to be a mechanism of translating popular will. I mean, that may seem iron today to supporters of national popular vote who think of the electoral college as contrary to democracy and popular will. But the authors of the 12th Amendment thought that their redesigned electoral college was in fact going to be a well developed and efficient mechanism for translating popular will, understood in this compound majority way that reflected federalism. But they, they didn't see it as a barrier to popular government. They thought of it as an instrument of implementing popular government as they saw it.

Sure, although they're a little trapped by their choice of words. You know, they embrace the 1787 language of elector, which of course the Constitution uses just twice, once referring to presidential electors and the other referring to what we could think of as legislative electors or otherwise known as voters. But built into that idea is a sense of independence, a sense that you have a certain judgment better for this image of translating the popular will into the choice of the electoral college would have been if they changed it from elector to delegate or agent, that sort of made it clear that they were to be doing something other than what they themselves want to do. They're to be doing something that flows from either the vote of the people in the state or the choice of the legislature.

Well, absolutely true. No, it's absolutely clear that what's ironic is having lived through 1800 and trying to redesign a system that would work from their perspective, they actually did a bad job in guaranteeing that the new system would work according to plan. And the most important way is that is their failure to account for the development of third parties and extra candidates and letting states choose their method of appointment. Another way, arguably is the fact that they left in place the capacity for electors to be independent. So I agree completely that they were not as good architects as they thought they were or wanted to be. But I think that points a little bit different from trying to figure out what it is that they wanted to achieve. And I don't think they wanted to achieve independent electors. I think they wanted to achieve electors who would be faithful to the will of the party because they thought themselves as members of this so called Republican party, as the vanguard of good government of democracy. So they would want the electors to do the right thing.

Yeah, no, that's very important. Now. I mean, you say they didn't Do a good job. What's so striking about your book is that this notion, this notion of the majority, of the majority, which once I read it in your book, it seemed to make sense of a lot of what they built. That actually works pretty consistently for most of the history of presidential elections. You've got a. Literally a handful of cases where it's clearly didn't work, and a bunch of cases where it's ambiguous whether it worked or not. But in a whole bunch of cases, even cases we would be surprised of, like the election of Lincoln in 1860, it's certainly working the way they intended. The majority. The majority. And so, you know, it's, it's not perfect, but maybe it's good enough for government work.

No, thank you. That's. I mean, I think you're accurately capturing what is interesting about the history after the adoption of the 12th Amendment. I think if it had been a complete failure again and again and again, we would have seen even greater pressure, especially early on, to get rid of it or change it or do something different. But the fact that it works according to plan most of the time kind of lets the air out of the balloon of reform, so to speak. Right. I mean, there's not that much urgency to change if it's doing pretty much what it's supposed to do. Now, it turns out that the times where it's mistaken are particularly problematic in a couple of instances in terms of the flow of history. And I think for reasons that we can discuss, it's increasingly likely not to work. I think what's remarkable is that there's a stretch from 1910 to 1992, so an 80 year period for most of the 20th century, it works okay, so that allows the American public, especially as we go through World War II and we go through the Depression and the New Deal and the Great Society and Walter Cronkite, the development of television. And we sort of come of age as a country, as it were, with the system basically functioning according to expectations. What I think is quite scary is that when you look at 1992 and 2000 and then 2016, we see three elections in a short period of time in recent history where there are reasons to think that it's not working properly. So the degree to which the system malfunctions I think is becoming more acute now.

Okay, so let's be clear though, about what malfunction means. You've got three categories of presidential elections. One, where it's working, where it's clear that it's a majority of the Majority. One where it's clearly not working, where the candidate who's ultimately selected as president is not the majority of the majority. And then a third category of cases where we just don't have the data to know whether in fact it's a majority of the majority.

Right, yeah. Or one way in which I put it in the book is that there's some that in terms of pure mathematical calculation, it's looking like a result doesn't conform to the Jeffersonian design. So take Reagan's victory in 1980 is a good example of this. Because of John Anderson as an independent third party type candidate, it turns out that Reagan wins a bunch of states with plurality votes, not majority votes. So Reagan actually gets his electoral college majority by accumulating state based pluralities. And so that you could say, well, that's not how the system's supposed to work. So you could try to classify that as a malfunction. But I think that's not really an accurate understanding of what's going on. Because if you sort of. Again, unless we have perfect political science, we can't know this for sure. But I think we can be pretty confident that if there have been runoffs between, between just Jimmy Carter and Ronald Reagan in 1980, without John Anderson in the picture, Reagan would still be winning those states that he won the pluralities in with strong majorities. So it's kind of a no harm, no foul. It's not a clear cut collapse or aberration of the system. It's sort of limping along, as you say, good enough for government work. It's getting the same result that a perfectly designed Jeffersonian system would have also gotten. So there are a bunch of elections that fall into that category, like 1980, but they are hardly examples of the system going haywire.

Okay, so the examples you think of as clearly examples of the system going haywire, obviously 2000 is one of those. You're not sure that 2016 is one of those.

Correct. Because the only way you could conclude that 2016 was haywire is if you could be confident that Hillary Clinton would have won runoffs in enough states. And I don't think we have the political science data to prove that. It's interesting to think about. There were seven states that Trump won, won all the electoral votes of those states with less than 50% of the popular vote, with only pluralities, including Florida, North Carolina and Arizona being interesting. But the three most interesting are the ones that people often talk about, Pennsylvania, Michigan and Wisconsin. And what we just don't know is what would have happened if it had only been Hillary Clinton and Donald Trump. Trump, if Hillary Clinton would have won either regular runoffs or instant runoff voting in those three states, that would have given her an Electoral College majority. And with that counterfactual in mind, then that would have meant that Donald Trump's victory was contrary to a compound majority of majorities. And it would have meant that the system malfunctioned in the same way as 2000 did. But we don't know that. Whereas if it turned out that Trump would have won runoffs in those states, then it would be more like the Ross Perot situation, where most political scientists think that Ross Perot didn't spoil the election for George H.W. bush, that Clinton would have won anyway. Now, George H.W. bush didn't think that, and other Republicans think that Perot was a spoiler like Ralph Nader was. But that's, you know, that's debatable. And I think John Anderson was definitely not a spoiler. We just don't know about 2016, bottom line.

Okay, so we don't know about 2016. We do know about 2000. What are the other cases we're absolutely sure about?

So, 1844, which again, I never learned about 1844 in my high school history, but it turns out this is a monumentally consequential election that changes the course of American history and then world history, because it's. Of the two main candidates, one is James Polk, the eventual winner, who's a Jacksonian Democrat who believes in Manifest Destiny. And he runs on a platform of we're taking Texas whether Mexico wants us to or not. And in fact, we're going to go west because Manifest Destiny and we're taking California. And if we have to go to war against Mexico, we're going to war against Mexico. Henry Clay is his main opponent of the so called Whig Party at the time. And Clay's attitude is no, America should only expand peacefully if we can negotiate a good deal with Mexico to get Texas. I'm fine taking Texas and same thing with Carolina. But we're a Democratic republic. We don't conquer. We're not a conquering people, a conquering nation. We don't take territory by force. So that's the main fight of 1844. And it turns out that New York is the swing state at the time. And it turns out that there is a third party candidate. One of the first times a third party candidate is consequential. And the third party candidate is a guy named James Bernie, who I had never Heard of before, working on this book and, and if somebody taught me this in history, I forgot it. But Bernie is an abolitionist and he runs on a ticket of the so called Liberty Party, sometimes called the Abolitionist Party. And it's clear that Bernie is a spoiler, particularly in New York. And the reason why we know this is because it's clear to absolutely everybody in the country that Henry Clay is much less pro slavery than Polk. James Polk is pro slavery. The reason why he wants to take Texas and California and Manifest Destiny and all that is to have expansion for the sake of slavery. He makes no bones about that. Whereas Henry Clay as a Whig is more moderate. He's not an abolitionist, but he thinks that slavery, he's like where Abraham Lincoln is at this period of time. They think slavery is going to die a natural death if it doesn't get expanded. And so they're very much against expansion. That would give more air for slavery to breathe, so to speak. And so to most Americans, Henry Clay is an anti slavery candidate compared to polka. He's just not abolitionist pure the way Bernie is. And the only reason why Polk wins New York and therefore the only reason why Polk wins the electoral College is because Bernie is a third party factor that is in essence siphoning off anti slavery votes from the main anti slavery candidate, Clay. It's absolutely clear that most Bernie supporters, there are, not many of them, but enough of them, would definitely favor Clay over Polk. But you know, it's like if you're Ralph Nader, yes, Al Gore is more environmentalist and more pro consumer than George Bush is, but he's not as pure as Ralph Nader is. I mean, it's the exact same dynamic.

Yeah, so that's the tragedy there, of course, is that this suggests that we might have avoided the Civil War if Clay had won and he had allowed slavery to die its natural death.

Exactly. That's why it is one of the most consequential elections in American history. Maybe could have avoided the Civil War. Some very well known historians talk about that and again, change sort of the character of the nature of the republic. We might have become less of an imperialist power if we hadn't had that sort of imperialist part of our DNA develop. With the Mexican War, which was a war of choice, we were the aggressors, not a war of necessity. So it's, you know, it's hugely consequential. And what's interesting. So it's interesting on multiple levels, but what's interesting as a constitutional law person is the pressure immediately thinks of this as an accident that the system did go haywire. They see that. They think it was not designed to have a third party candidate like Bernie be a factor in this way and lead to a result that was inauthentic. Even some of Polk's own supporters kind of acknowledged that he didn't win the way you were supposed to win. So it is the first aberration or malfunction of the system, and it's a big one.

Okay, I want to get around to, like, where we are today with this, but let's just make sure we have on the board the other clear examples of failure. So Polk is one. The election of 2000 of George W. Bush is another. What are the other clear failures?

Yeah, the only other absolutely clear failure in the same way is 1884 because of the same third party dynamic, but it's not nearly as consequential. And the reason why I think 1844 with Polk versus Clay is like 2000 Bush and Gore is because again, we don't know for sure what would have happened with the war in Iraq if Gore had been president instead of Bush. But we can imagine that the choice between Bush versus Gore in 2000 turned out to be much more consequential than maybe some voters thought at the time in terms of taking the country to war in Iraq and other aspects of government policy. Whereas I think the nature of politics and the nature of the candidates in 1884 was not as big a deal. But 1844 is a pivotal moment in history and we sort of get the wrong result in terms of what the system is supposed to do. And I think 2000 also turns out to be a pivotal moment in history that gives us the wrong result. That's not a partisan point. It's just a point about how the system was supposed to produce compound majority winners. And 2000 definitely malfunctioned in that way. But I think the fact that there have been so few absolutely clear aberrations like that again, goes back to the point about why the system hasn't been changed.

Okay, so. But now we're facing a reality where the opportunity of third party candidates is greater because parties control less and the channels of attention are broader and the demographics of the nation are such that the dynamic of the electoral college is going to produce closer victories going forward than it did during the golden period of 1912 to 1992. So the chance of the failure of the original design seems to be going up. Is that your view too?

Yes, I think that's exactly right. And again, one way to visualize this, and I want to make this point in a way that is nonpartisan, because it's just an analysis of how the voting mechanism works, is to think about the possibility that Howard Schultz, the former CEO of Search Starbucks, might enter the 2020 race and again, conceivably could produce a dynamic similar to 2000 or similar to 1844, namely that, again, let's just say this is speculative and not political science proof. But just imagine a scenario where we have Trump running for reelection, we have a Democratic nominee, and then we have Howard Schultz as a third party candidate. And it's pretty clear that people view Shultz's relationship to the two other candidates the way Ralph Nader was in relationship to Bush and Gore in 2000, or the way that Bernie was in relationship to Polk and clay back in 1844. In other words, Schultz voters would not be voting for Trump Trump, they'd only be voting for the Democrat if they had an instant runoff ballot, for example, a ranked choice ballot, or there was a runoff. And so it is conceivable, we don't know for sure, that we could have another pivotal election that doesn't conform to the expectations of the system in the way that these other ones were malfunctions in the way that we've been talking about.

Yeah. So, I mean, it's clear he's a real threat. But even if it weren't him, you could imagine, like in 2000, if there were more substantial third party candidates and fourth, you know, third party candidates on both the left and the right, the way there was in 2000, then the chance for what's really this plurality presidency, or a presidency that clearly violates the compound majority principle of Jefferson is just a much greater risk than we've seen it before.

Exactly. Exactly. Right. And again, even though we can't know for sure what happened in 2016, meaning, you know, what role did Gary Johnson as the Libertarian candidate play or Jill Stein as the Green Party candidate play? We do know that Trump only got an Electoral College majority with plurality victories, and so it at least has that kind of question mark status associated with it.

Right. So this is a podcast that's really directing a public to the question of what should we be doing? How should we be improving the system? A bunch of our questions are going to be directly to candidates for president, like, what will you promise to do once you're president? But you've actually been advocating steps that we could be taking right now to avoid the kind of catastrophe, not necessarily the Catastrophe. Catastrophe of electing one candidate or another, but the catastrophe of not electing a candidate who has this claim to being a majority candidate of the nation. And there are obvious things that states could do right now to avoid that chance. So one of them is something that we're going to be talking about in much greater depth, but something called ranked choice voting or instant runoff voting. Why don't you tell us a little bit about what you imagine could happen that would avoid this catastrophe?

Sure. Thanks. Yes, because this project is historical in nature, but it's designed to also be forward looking. And there is a way to make the system conform to the Jeffersonian vision behind the 12th amendment. Meaning if the goal is this compound majority of majorities and we've deviated from that at the state level, states themselves can change state law to bring them back into alignment with this principle. And there are different ways that they can do that. So one way to do it is to do what, as we were talking about before, what New Hampshire was doing in the beginning, if you hold an actual runoff, you will produce a majority winner at the state level. It's complicated. You know, it costs money to hold a runoff. I'm not saying that that's the best mechanism, but it is a mechanism that would conform to the principle of compound majority of majorities because you'd have a runoff between your top two candidates and the winner of the runoff would be a majority winner. You could do. You could kind of have a preliminary vote that would make the normal November election look like a runoff. So for example, around Labor Day, late August, early September, you could have all your candidates who are running for president, Libertarian Green Party, Reform Party, Independents, Howard Schultz, whoever, they would all be on the August or September ballot. But the only two that would make it to the November ballot, the regular ballot, would be the top two finalists. And that would.

So this part of your proposal, I've never really understood why you push. I mean, I get it, but I don't understand why you push it. Because there's such an obvious alternative to this, which is real and vital in at least places like Maine right now, and that you also promote. So let's focus on that a little bit because I think it's more likely to imagine that than it is to imagine the idea of creating another election.

Sure. I mean, and I think, and I, you know, personally do favor the ranked choice voting option. I do think it is worth at least mentioning that the fact that there is a menu of options is consistent with the federalism component of what the 12th Amendment was after that, they did want states to have some flexibility and choice to how to be, to realize the vision. But I agree with you that as a practical matter and as a matter of modern policy, the best mechanism is in November to have a ballot where the voters can rank their options. And so, again, there are different ways to do it. But say that you could rank up to three choices. So if you like going back to the 2016 ballot, for example, if you like Gary Johnson best, you would rank him first. But if you want to, and you can do it in a way that gives voters options, they you don't have to have a second choice. We'll still count your first choice if you want to abstain, but we're giving you the option to list somebody as your second choice. So you could put Trump as your second choice, or you could put Clinton as your second choice or Jill Stein as your second choice. That's the ranked choice ballot. And modern computers can calculate a majority winner based on this extra information that voters provide.

Yeah. So one simple way to do that, and again, we're going to have a whole hour on this, so I don't want to go too deep into it, but one simple way to do that is to say, okay, if your first choice doesn't win, we throw away your first choice vote, and then we count your second choice vote. And if your second choice vote doesn't win, then we throw away your second choice and we count your third choice. But the point is you're winnowing it down until you get to the candidate who is the majority candidate in the sense that the candidate that a majority of the voting population is at least okay with, which is a pretty important concept in the idea of democracy.

No, absolutely correct. And, you know, again, think about 2000. You know, Ralph Nader's your first choice, but if Gore was your second choice, you get to indicate that.

Right. So if you look at a state like Florida where George bush wins by 500 some votes and Ralph Nader gets close to 100,000 votes, it's pretty hard to imagine that if you'd given the Florida voters a chance to rank their choices, that Al Gore wouldn't have easily prevailed in that state. And not only the Iraq war would be maybe not a war, but we probably would have had climate change legislation, which, of course, is an idea which today seems so partisanly divided, but at that stage, it was still not a deeply partisan issue.

Right, right, right, right. No, I think, but I think you put your finger on the key point that if the idea of majorities finding a majority preference among multiple alternatives is a key idea of democracy, and it was to the Jeffersonians, then ranked choice ballots is a really good way to do it. And on this point, I think it is worth emphasizing that the Jeffersonians made a conscious choice of preferring majority results to plurality results. It wasn't that they were unaware of this. Again, they were a little defective in their implementation, but they definitely wanted a president to get that majority of electoral college votes. The plurality of electoral votes was not enough, otherwise it would would go to the House of Representatives. And in thinking about what made you kind of a legitimate winner at the state level, again, they talked about the notion of majority preference at the state level. So I do think even if ranked choice ballots are a modern invention, it's a modern invention in keeping with the philosophical commitments that they had in mind. Right.

And so the state of Maine has adopted ranked choice voting and selected the first member of Congress chosen by ranked choice voting in 2018. But you've proposed that particular states like Ohio or Michigan could adopt this alternative right now and in 2020 have a choice that was determined by the ranked choice of the voters and not a choice that was determined by the plurality system. And if it did that, we would at least be more confident, significantly more confident, given how important those states are, that the President of the United States would represent the majority of the United States, not just the happenstance of this badly misfiring electoral college.

Exactly right. And that's the key point. Each state now has the constitutional authority to do this on its own. You don't need a constitutional amendment. You don't need an interstate compact. And as if only Florida had adopted this reform before 2000, that would have changed the result and would have produced a result that is consistent with the compound majority idea in the same way that Ronald Reagan's victory in 1980 was. In other words, even if the system wasn't an absolutely perfectly designed version of this idea, it would have produced the result that a perfectly designed version would have produced. In other words, if ranked choice voting had been used in Florida in 2000 and Gore had won under that, then we would have said the outcome conformed to the Jeffersonian vision in precisely the same way that Ronald Reagan's victory in 1980 conformed to the Jeffersonian vision. It would not have been a malfunction result.

And so what I really love about this argument is that so often you hear people defending the current system and saying the current system is what the framers gave us. So Just love it or leave it, or love it or amend it. But the point is, it's the current system. But what you're saying is actually the current system is embedding a preference for the majority of, of the majority, which we've just badly implemented because we've allowed third party candidates to have the opportunity to distort that result. And we adopted a different way of counting the votes. We could restore the framing value of assuring that the President was a candidate who represented the majority. The majority.

Absolutely correct. And that this, this allowing these plurality results as a result of third parties, that's a development that occurs after the 12th Amendment. It's not part of the original 12th Amendment vision. It doesn't really. Again, the 1844 malfunction doesn't happen until that election, and the state laws that allow that to happen don't really reach fruition until after Andrew Jackson. So it wasn't. So if we want to run elections according to the way the 12th Amendment's authors thought it should run, we'd build in these majority requirements at the state level. And so, yes, keeping the current system is not keeping what was originally intended.

Right. And so we've promised in these podcasts that every podcast would end with request for you to take some steps or the opportunity to take some steps to help make the system better. If you go to our website, Equal Citizens Us, under the Ranked Choice voting tab, you're going to see places where you can reach out to try to carry into effect what Ned is talking about. He has a wonderful piece in Politico, right, Ned, that describes the history and describes this proposed result. And we're going to be doing our part to try to push this idea along because there's just no excuse, given the technology we have right now and the experience in states like Maine, for us not to adopt it immediately so that at least 2020 produces a president who the majority of America likes and that Jefferson would like because it's consistent with the Jeffersonian system.

System, you know, that's exactly right. And, and, and because some states are pivotal, I mean, it would be great for all states to adopt it. But a state like Michigan, for example, that used the power of the initiative and referendum process to, to address the problem of gerrymandering could use that same reform mechanism to achieve this reform goal. In this context, Florida could do that too.

Right? This podcast is going to include an interview with the extraordinary Katie Fahey, who was a 20 something year old woman who after 2016 made a Facebook post that promised that Said, I'm interested in working on gerrymandering. Let me know if you are interested too. And a consequence of that was a 4,000 person volunteer force that collected 400,000 signatures that eventually got a ballot measure to end partisan gerrymandering in Michigan. So Michigan is pivotal and Michigan has the kind of people who can make change happen. So I think this is a fantastic idea for that. I want to ask one last question, which is a little politically difficult. I know it's politically difficult given my friends and people I respect and what they're fighting for. But I think it's important to flag the way in which what you've described as the Jeffersonian system or the majority of the majority system has a really important built in tension with the modern push for something called the national popular vote. We're going to have a special episode about the national popular vote. So we're not going to go deeply into the mechanics of that right now, but I'd just love you to give us your sense of, like, what's the gap between what would be the system if we had ranked choice voting with the current electoral college versus what people are pushing, which is basically that the electors in the states committing to the compact vote for the candidate who wins the national popular vote. What's wrong with that?

So, two points. First, if we could have a constitutional amendment to move to a national popular vote that produced a majority winner of the national popular vote, I would be in favor of that as a matter of sort of normative first principles as to how to improve American democracy long, long term. But that's the goal of a constitutional amendment. This project, what we've been talking about on this podcast, is about making the system that we have now, the Jeffersonian system, the 12th Amendment being faithful to its own preconceptions. And as we talked about, one of its foundational principles is this idea of federalism and that states are separate states, sovereign states. I think we've moved as a country beyond that. I'm more of a nationalist in my own personal commitments than the Jeffersonians were. But I think the architecture of the 12th Amendment called for each state acting as a separate state as part of this compound majority system. And obviously a monolithic national popular vote is, is just different from that. So that's point number one. Point number two, though, is be careful what you wish for, because a national popular vote without a majority requirement could give you a national popular winner who gets 37% of the vote, 38, whatever. And again, without trying to make a partisan point, just in terms of the mathematics of democracy, if in 2020, again, you have three candidates, Donald Trump, a Democrat, and Howard Schultz as an independent, depending on how much of the vote Howard Schultz might manage to get, you know, it could be that Donald Trump is a plurality winner of the national popular vote with, say, 43%. The Democrat could get 42%. I think if my math is correct, Howard Schultz might get 15%. And yet we'd be pretty but ranked choice voting. If those Schultz voters would have ranked the Democrats second, we could see the Democrat is really the majority preferred candidate compared to Trump. But allowing a plurality victory would give you a result that the majority doesn't want. I mean, if 43% vote for candidate A, but 57% hate candidate A, they just split their 57% two different ways. Giving the election to the 43% winner is not a very good vision of democracy, in my judgment. And it also doesn't conform to the majority vision of the 12th Amendment. So.

Right. These are two very different points, but I think we should make sure they're clear. One point is the general point that you've identified that we didn't build a mechanism into the system to guarantee that the winner of an election is actually the majority winner of the election. We have a system where the plurality winner is the winner too. And that creates the dynamic where the person governing or the party governing doesn't actually represent the majority of the nation, which is a weird idea in the context of a democracy. That's point one. But point two, equally important, I think, when you imagine the litigation that will ultimately confront the National Popular Vote Project, is that if the Supreme Court reads your book, which I hope they do, I hope many people read your book and give it a plug again. Presidential elections and majority rule. If they read that book and they take from that book the idea that a embedded principle maybe not stated, but an embedded principle is that you aggregate majorities state by state. That's the way you get to the national result. They might find a constitutional problem with the idea of Texas saying, we're going to allocate our votes according to how the nation as a whole votes. They might think that's actually contrary to the presupposition of the Jeffersonian system. And therefore, if you want that system, amend the Constitution, but without an amendment, you can't create it through this simple hack. Is that your concern as well?

Yes. I mean, yes, you state that very well. I do think there is at least a risk. It's not inevitable, but I do think there is a risk that the Supreme Court could say that the compact idea is just too antithetical to a foundational principle. Both in the original electoral it's one thing that both the original Electoral College and the 12th Amendment had in common, which was this notion that presidents were going to be chosen by accumulating state based results rather than having a monolithic national result. And that as creative and innovative as the compact idea is, it sort of undermines the differentnesses or the individuality of states and their building block role. I don't think it's inevitable to interpret the Constitution to lead to that kind of invalidation, but I do think it's a risk.

Yeah. I mean, well, nothing's inevitable in the Supreme Court.

Fair enough.

But I do think I didn't see any problem with the National Popular Vote Compact before I read your book and I like the National Popular Vote Compact. I'm a supporter. But I have some anxiety after your book that I think that we need to think about more. Ned, I'm grateful for the almost hour and a half that you've given us, and this has been incredibly helpful to understand the backstory to this central part of the process of electing the President of the United States. And I'm hopeful that many, many people pick up presidential elections and majority rule and learn a little bit more about this. But thank you for the public service you're providing and helping the world to understand this part of our history better.

Well, thank you very much, Larry, for this opportunity to talk to you. I've enjoyed this conversation immensely and I really appreciate it.

So that's the end of this episode of the podcast. Another Way this is the third season, subtitled POTUS 1, focusing on the reform that America's democracy needs. We will be asking presidential candidates for their views about that reform. Hopefully we'll be talking to them directly on this podcast. If we don't get a chance to talk to them directly, we will certainly be talking about them and the proposals that they have advanced. The next candidate who will be on our show is Beto o', Rourke, and I am eager to talk to him about his really exciting proposals for addressing the question of voter enfranchisement, and I'm hopeful we can push him in some directions about the other issues that are important in democracy reform. You can find this podcast at citizens us on that page. You can also give us feedback and ideas and your thoughts about this podcast and how we could do it better. We're in this business for the purpose of fixing America's democracy As soon as that's done, we can go back to our ordinary lives. This is Larry Lessig. Thanks so much for listening. Stay tuned for the next episode of Another Way.