Editor's note: This episode was released on November 4. Its transcript was provided by Jeremiah B. Leonard, to whom the SFRB is grateful.
The Electoral College is one of the most controversial institutions in American politics, having handed the presidency to two losers of the popular vote since 2000. While some call for the college's abolition, one man seeks to reform it. Who is he and what does he have in mind? Lawrence Lessig, one of our time's foremost public intellectuals about American jurisprudence, joins us on this week's episode of 'Cotto/Gottfried' to share his strategy for an electoral college more conducive to electoral returns. SEE more interviews HERE: http://www.sanfranciscoreviewofbooks....
COTTO: The electoral college holds a place of special controversy in American life, especially since the 2016 election, although one could also look back to the 2000 one. What should its future be? Lawrence Lessig is one our time’s most well-known public intellectuals on the subject of American law. He has a plan to reform the electoral college. What is he proposing, and what does it promise for the American future? He explains on this week’s episode of Cotto/Gottfried. I’m your cohost Joseph Ford Cotto, editor in chief of the San Francisco Review of Books. My cohost is Paul Gottfried, head of our editorial board.
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COTTO: The electoral college is subject to a great deal of controversy in America today for many different reasons. But it seems like most of the controversies center on the idea that it’s an outdated institution which does not represent Americans very well in the political process. Lawrence, you’ve written a good deal about this. What are your views on the electoral college generally?
LESSIG: Well, I think that people don’t understand what the real problem is. I think people are obsessed with, for example, the fact that it seems to elect minority presidents like Trump and Bush. And they’re not sufficiently focused on the fact that because states have adopted “winner take all” as their method for allocating electors, the focus of every presidential candidate — every election — is on the wish of these fourteen or so battleground states. And those states are just not representative of America. They’re smaller. Their population represents thirty-five percent of America. They’re older. They’re whiter. Their industry is kind of twentieth-century industry. So, it’s just not a representative group for America, and we shouldn’t have a president who is sucking up to that group in order to get elected president.
GOTTFRIED: I have the impression that Lawrence doesn’t like it because it’s not helpful in electing Democrats as presidents. I noticed the examples he gave were Republicans, and he obviously does not want republican presidents. If one gave me a half-hour I could defend the electoral college as useful in representing different parts of the country, expressing regional diversity, and not making the election dependent on blue coastal-states and the ethnic-minorities that live there. So, my question is can one argue against the electoral college without taking a strictly partisan position, as a progressive democrat or whatever? Because the way this question has been debated — how I have heard it debated — typically just reflects partisan motives. It doesn’t seem to move very far beyond that.
LESSIG: So, what’s striking about what you just said is it has no relationship to what I said. Because I started by saying, people are obsessed with the fact that it elects people like Donald Trump or George Bush — minority-elected presidents — but I don’t think that is the problem. The problem is not that it’s electing minority presidents — I think that is a problem — but that’s not the problem with the electoral college. The problem with the electoral college is it has focused America on battleground states. Again, that’s not a partisan point, that is a point about the nature of the representative group that has power in the system. Those battleground states are not small states. They are big states, and they don’t represent America, not because they are Democratic or Republican, they don’t represent America because the demographics of those states are not representative of America. So, this is not a partisan point at all. It’s a point about the effect of a system that the states have chosen, not in the electoral college — the constitution says nothing about this — it’s that states have chosen this system for allocating their electors that has this consequence of producing an unrepresentative president.
GOTTFRIED: I’m just — a problem with “unrepresentative president” because the founders of the country were very intent on making different sections of the country or having them reflected in the leadership of the country, that’s why you get two senators though the states do not necessarily have the same population or necessarily the same size. So, that what you really have is an attempt to balance off numbers with different sectional interests. And I can understand how we would change this, but of course we would be left with battleground states. It would simply be coastal states which would be able to determine the outcome of the election.
LESSIG: No — no, that’s not true. That’s just not true. So, again the point is this has nothing to do with the framer’s intent. The framers did not intend winner take all in the allocation of electors. Indeed, Jefferson was so outraged by the idea that he wrote extensively about how destructive it was. And from the very beginning of the republic the fight was for, actually, constitutional amendments that would force allocation by district. So, this is not about the framers. And the framers did not intend to have a system where these states that just happened to be battleground states because of the purpleness of the state would determine anything. This has nothing to do with what the framers said. So, if you want to talk about what the framers were talking about, then I agree with you. What the framers were talking about would not be national popular vote. Even though that’s something I personally would favor. What they’d be talking about is what I’m actually litigating for which is proportional allocation of electors by state. And if you allocated electors proportionately by state you would produce a system where first, every state was in play because candidates would be interested in getting electors from wherever they could get them. And secondly, small states would have an advantage over big states because per capita electoral college-votes in small states is bigger than in big states. So, if you want to talk about what the framers were talking about you ought to be agreeing with me not disagreeing with me by painting me as a partisan hack when I haven’t actually advocated anything democrats are even interested in supporting.
GOTTFRIED: You say you do favor the continuation of the electoral college you would just make the representation within those states more proportional. Or, that’s your fallback position because you said you really would like to have a national popular vote deciding the outcome of the election.
LESSIG: As a voter I would prefer that, but as a lawyer arguing in court about what the Constitution requires what I’m arguing four is a proportional allocation at the state level.
COTTO: Just to make things clear Lawrence, because I think your ideas are often misrepresented, you favor having a situation in which more or less each congressional district goes its own way in the electoral college, therefore being maximally representative of how Americans vote.
LESSIG: Well, actually you can’t use congressional districts. So, in the nineteenth century the push for district allocation began to fade by the middle part or the late part of the nineteenth century once gerrymandering became a dynamic in the way congressional districts were allocated. And by the late part of the nineteenth century the push was just for strict proportional allocation. So, you just allocated electors proportionately based on the vote within the state. And that’s the position that we are arguing for. Because that position actually assures that everybody has a representative voice in the election of the president. And it also produces a system where small states have more power than big states per capita.
GOTTFRIED: No no, I’m just listening with my usual attentiveness. Would you perhaps give us an historical explanation as to why the system that you propose — one in which there’s proportional representation within the states — gave way to a different kind of system. Is it because of the gerrymandering that occurred? Or began to occur at a certain point?
LESSIG: What happened was regionally some states started allocating “winner take all” as a way to inflate their power relative to other states. And as Jefferson wrote when that happened, if some states are going to allocate in the unit system or winner take all, it makes no sense for other states not to do the same thing because your effective power has been destroyed because a state that has the same population as you now effectively has twice the number of electoral votes for presidential candidates. So, there was a race to the bottom or a race to the top — however you want to conceive of it — that happened through the course of the nineteenth century and as that happened, many people were saying “this makes no sense for the election of the president as a whole. So, let’s require allocation by district.” And then when districts became gerrymandered they said “let’s not have allocation buy districts, let’s have proportional allocation.” But the push throughout the nineteenth century was that this was producing a system that wasn’t actually enabling the whole of the country to be represented in the choice of the president. And that’s the position that we have right now. We have a system that does not represent — look at the latest fight about offshore drilling. So, the president proposes new offshore drilling regulations. Florida gets an exemption almost within a week. New Jersey can’t even get a hearing on the question. And what’s the difference between New Jersey and Florida? The difference is New Jersey is not a battleground state. And that’s not anything the framers intended, that’s just the unintended consequence of allowing states to go to this unit rule or winner take all system.
GOTTFRIED: If your system were introduced only the proportional representation of electoral college, would there be a consistent correspondence between the popular vote the outcome of the popular vote — national popular vote — and the outcome of the electoral college? You would not get the disparity which occurred in the election of Trump?
LESSIG: So, nobody actually knows that. And the reason they don’t know it is we’ve never seen a national presidential election in modern times. So, you’ve got an election right now where in 2016 ninety nine percent — literally, that’s a real number — ninety nine percent of campaign spending was in fourteen states. If you had a national election, I don’t know exactly how the numbers come out — like, who votes where. But the probability, as long as you had states applying some cut off rule for allocation of their electors — maybe rank choice vote for the allocation of their electors — the probability is — in our litigation we’ve got expert evidence to support this — the probability is that the chance of this difference between the popular vote and the electoral college vote dropped dramatically. We think that there’s in close elections there is more than a thirty percent chance now of that deviation. Slightly more for Republicans than for Democrats. But you know, in 2004 if fifty thousand votes had shifted to John Kerry in Ohio, we would have had John Kerry as president and we would have had the end of the electoral college because between 2000 and 2004 the public would have seen this as a non-partisan issue. It’s just an issue about the way the system is now aggregating the preferences of the nation as a whole.
GOTTFRIED: Please, you go ahead and ask questions. I’ll just listen.
COTTO: Now Lawrence, the position you are advocating — once again, to be absolutely clear — is not abolishing the electoral college, but what you would like to see theoretically is a popular vote to decide presidential elections. Do you think that this perspective is feasible during the years ahead or do you think that the electoral college will remain the same, or do you think that your proposal will gain traction?
LESSIG: Well, we are litigating to get the principle from the supreme court that would entail proportional allocations at the state level. And we think that’s a pretty stable solution and if we got to that, I think that’s where things would sit. Because I think many people are afraid of this kind of fly-over democracy. Their fear is that we would have democracy chosen by who wins Illinois and New York and California, and that would be it. I’m not personally convinced of that, but I understand that’s where most people are. And so, what I’m actually pushing for is for this solution that I think is a relatively stable solution. The alternative to this solution — proportional allocation at the state level — that has a lot of support right now is the push for the national popular vote compact that would basically be an end run around the electoral college without amending the constitution. Because states would commit to pledging their electors to the winner of the national popular vote regardless of who won in their state, and that would effectively end anything, it would be the same as just having a national popular vote. That alternative right now of a hundred and seventy-two votes, electoral votes committed to it, when it gets to two-seventy it’s supposed to go into effect, it had no major red states support it yet. So, that’s the thick redline that has to be crossed if it’s going to be successful. But that’s the only plausible alternative out there. And people who talk about amending the constitution just don’t know what they’re talking about. There’s no chance of amending the constitution here.
GOTTFRIED: I suppose it’s a purely theoretical point or an academic point since Lawrence has no hope of moving toward a national popular vote in deciding national presidential elections, but I think that one of the things that in my view would not make it workable is that people in red states fear that those living in the blue states — the coastal states, Illinois etc — do not have the same stringent voting requirements. And if a state like California which has very, very loose voter identification procedures which is now moving to something like illegals being able to vote locally and so forth, their voting procedures are not acceptable to people in the red states. I think there would be profound distrust if there was an attempt to move toward a popular vote because as I said the red states do not trust the way the blue states carry out their elections, and I think they’re very much concerned about voter fraud, which I think would probably create the same problem if a Democrat were elected that way as the election of Trump has created for the other side.
LESSIG: So, I agree with you that under the current system as it is there would be enormous distrust. And so, yes. And I think it is completely appropriate for us to talk about ways that we can raise confidence about the integrity of the voting-registration system so that the people who are registered are actually citizens entitled to vote but the other side of that that all citizens entitled to vote are effectively registered. If that — I think that’s a really important area for reform and progress and I agree with you — until that’s done there’s going to be lots of resistance to national popular vote. But again, I think that’s why what we are pushing for right now is not national popular vote. What I am pushing for — litigating for — is proportional allocation at the state level.
COTTO: Do you think that the Supreme Court has any chance of ruling favorably toward you given its current composition and its seemingly likely composition during the years ahead? It looks like if there’s any change it would be in a more conservative direction.
LESSIG: If it’s framed as a — the problem with the system is it’s electing Republicans when it shouldn’t be … then the answer is no. And I think it’s even if it’s framed the problems with the system that there be a gap between electoral vote and … no. To understand the challenge is not about Trump. The challenge is a choice by the states which was not endorsed by the framers, never had any support in the constitutional convention which has the consequence of producing the president which is actually not representative of the nation and certainly has no special affinity for small states which was the thing the framers were aiming at. The question is, why not apply the standard that the court announced in Bush versus Gore to that system? And if they applied the standard they announced in Bush versus Gore which was one person one vote as applied to the presidential elections system, then there would be every reason in the world for them to say that the winner take all in the state level does not comport with that system and then let the states come back and say here’s what we think does comport with that system but at least we move in the direction of a presidential election where every state mattered — number one — and number two small states would have better representation than big states.
GOTTFRIED: No, I’m just listening to this. To me this is a novel idea about keeping the electoral college but trying to work toward proportional representation. I’m also delighted that there’s an attempt not to present this as something intended to keep Republicans from winning elections or something to prevent future Trumps from getting elected, but is framed as a strictly — what should we say — a strictly legal, constitutional issue. Could you please tell me why you think the smaller states are somehow being underrepresented in the present system? Which I think is what you’re suggesting.
LESSIG: Sure. So, if you look at the list of battleground states, and you look at where actually spending is, the spending in the battleground states are big states — Pennsylvania, Florida, Ohio, Michigan — these are all small state. States like New Hampshire and Iowa, depending on whether you’re going to count people or square miles — are small states. And they are accidentally swing states because they are just divided the way they are, but it’s not the systematic advantage to small states and you can see that just demographically if we run the numbers, to say — what it means to be a small state these are not representative of small states. So, this is just the consequence of winner take all, and framers by putting the thumb on the scale with small states by adding senators to representatives were producing a much more biased system toward small states than our current system does.
GOTTFRIED: Are you saying the small states are not being treated equally because not as much campaigning goes on there and there’s not as much money poured into the electoral campaigns, or is there some other sense in which these states are being [underrepresented].
LESSIG: Oh, I see. So, the point is — and there is substantial research now that’s demonstrating this — if you are not a small state, if you are not a swing state you have less opportunity in the legislative process and in the presidential election, presidential influence-game of gaining benefits relative to swing states. So, small states don’t have a special advantage and non-swing states have the same kind of disadvantage that all non-swing states do. But the particular point that I making about small states is that the current system is not benefiting small states and the current system is disadvantaging non-swing states.
COTTO: For the last question Lawrence, what do you think the biggest misconception about the electoral college is among the American public?
LESSIG: Well first, the biggest one is that this is what the framers meant. And that sometimes gets cashed out as it’s benefiting small states and that’s what they meant. I am so, first they didn’t mean this and secondly this doesn’t benefit small states. And so, once you see that this isn’t what they meant — they didn’t give us this system, the states gave us this system, and it’s not doing anybody who is supposed to be benefited any good — then why not move beyond it, or why not think about how to move beyond it? And let’s have a serious conversation about whether it should be national popular vote given all the problems that Paul has identified which I think are legitimate problems or it should be something that’s more of a hybrid between a system where every state’s in play and you have a benefit for small states relative to big states just because of the design of the allocation of the college.
COTTO: That was a great conversation. Thank you for joining us Lawrence and thank you for tuning in everyone. See you next week.