history unfolds daily. 1979, c-span was created as a public service bike cable television and is brought to you by your cable or satellite provider. scholars discuss using the electoral college first the popular don't the claremont institute organized the discussion as part of the american political science association's annual meeting in san francisco. it is an hour and a half. thomas: good morning, everyone. i think it is about time to start now. my name is thomas tacoma, i am a doctoral student. i am the chair of this morning's panel, the electoral college, time to reevaluate? thank you for coming out at 8:00 a.m. on saturday. thank you also to the claremont

institute for sponsoring our panel discussion. our speakers today are david frisk, resident fellow at the alexander hamilton institute, adam carrington, assistant professor of politics at hillsdale college, and michael uhlmann, a senior fellow at the claremont institute. we will have 20 minutes for each speaker to deliver his remarks. then we will open up to questions and general discussion. and one note, if you do have a question, please bring it to the microphone in the center so you can be on camera. i think we are being recorded by c-span this morning. and without any further ado, david first. david: thanks to all of you for coming out this early morning. i will be defending the electoral college. and equally important, when we

are talking about a major change, discussing the dangers of any -- really a common to almost any plans for alternatives. there always has to be an alternative. it seems to me that there are certain advantages to the electoral college, which have been stated by its defenders over the years, which have more staying power than others, and less dependent on the course of history or where we are right now. one of those i think, an argument made by judith best in the mid-1970's in a prominent book defending the electoral college was that the -- having a so-called direct election mandate, that is a president who is always guaranteed to represent, at least at first --

keep that in mind -- a plurality of the people, would have a greater moral claim against the legislative branch than they do under the electoral college system. this was in the 1970's, days of concern over the imperial presidency. i don't think that argument, even if it had some merit back then, is all that powerful now. i think the arguments -- i could give other examples if we have time -- i think the most powerful arguments for retaining the electoral college are, first, its requirement for a more geographically distributed majority, or plurality, or

coalition. the danger of a president elected largely by a couple of sections, whether we are talking about -- most likely by -- a bicoastal president under a direct vote system, conceivably one who depends on his metro areas. how you define them are not always so clear. but we have -- we face the very real prospect that, if the electoral college were to be abolished, a president elected by the two coasts, which of course are blue, they are democratic. or major metro areas, same story. so i am -- i am quite sympathetic to -- and, again, i see a lot of staying power, a permanent i would say -- a

permanence in judith best's argument that we have the creation of political majorities that are cross-sections, not sections of the nation. and a cross-section is much better, a geographical cross-section. the other argument that remains powerful and hard to answer is that you have to guarantee or do your best to guarantee against the election by popular vote, a candidate who has much less support than any other presidential candidate has had, somebody in the low 30's. so you have to have some kind of

screening mechanism to ensure the ultimate winner is at least in the 40's. well, if you have a runoff, you end up with the majority, but you end up with a rather strange majority potentially. it's so often been proposed that the way you prevent an extreme minority president against someone with only a third of the support, but everybody else has less, is you have a 40% rule, something in that neighborhood, if someone does not cost that threshold in the election, there is a runoff. i am pretty well persuaded by the argument that this does incentivize not only some third-party candidacies, but more third party candidacies in a given year, an imitation of that when a third-party

candidate enters, others get into it as well. and you could easily end up with a runoff between two candidates who have significant support, to be sure, among the public. and intense support, but are really do not, are basically factional, marginal candidates in terms of public opinion. i do not want to use overly loaded words like extreme candidates, but that is also something that might well be truly extreme. so you could easily have a choice in a runoff between two extreme candidates, both of whom had a substantial number of votes, but who the majority of the country really is opposed to. and therefore you are left,

everybody who chose to vote in the runoff is left with a choice of two people they really don't like. an intensification, quite possibly, of the lesser two evils' experience that people have always had in presidential elections under our current system. but it would potentially, in some elections, be more obviously a lesser of two evils kind of situation. the argument also that this direct vote, particularly if there is a runoff involved, would badly weaken parties by turning the initial vote, in which you do not become president unless you cross the 40% threshold, turning it into a national primary. which would be what -- it would replace the party conventions. now, party conventions are not

what they were back in the 1970's or late 1960's when the electoral college was a hot issue after the 1968 election. national conventions, as we all know, they are now tv shows, social media shows, whatever. the argument that there is a deliberate process in them leading up to the convention, that is somehow represents a bargaining process and a moderating process is no longer that persuasive. but i do think that there remains a serious danger of badly weakening parties and incentivizing factional, extreme, whatever you want to call them, candidacies in presidential elections in a direct vote system. and, so that is something i think we have to be quite wary of.

i would like to say a few words about this whole concept of one person/one vote, and the supposed evils of what is sometimes called a runner-up, like trump last time or george w. bush in 2000. the person who clearly got the second-most popular votes, not the most votes, becoming president. this is happened twice in the last 16 years and both times it was a candidate of the same party. back in the 1970's, when this was debated, at least some of the people involved in defending the electoral college said, well, it hasn't happened since 1888. it is no longer mope possibility. so you have to take serious account of the fact that there have been two minority winners, losers of the popular vote, in

the last decade and a half, both of the same party. i think however that we should, as defenders of the electoral college, those of us who do defend the electoral college, although obligated to take account of those recently related developments and frankly the pain on the other side, the puzzlement, the how-can-this-be, i do think we have to take those things seriously. on the other hand, i think defenders of the electoral college should not shy away from questioning the extent to which we, as a people or participants in public discourse, value simple majoritarianism.

arguments about a vote counting -- a ohioan's vote or the floridian's vote valued more is hard to distinguish from arguments that your vote as a californian in a governor race or a senate race if you are in the minority party, that is not really count either. and because of the sheer number of other votes that your vote is pooled with. in a country of this size, even in a district election for the house of representatives, your vote counts more than another if you live in a competitive district. look, the truth is the

individual vote just doesn't matter that much under any system. it is absolutely swamped by other votes. so i think you have to look at other questions, such as the ones i've raised. yes, there is some difference between a candidate receiving -- what was it, hillary clinton got 48% and donald trump got 46% or just a shade under 46%, yes, that is less than hillary clinton got. how important is the difference? or is it just, that is life, too bad, it happens.

the fact is he got a great many votes. one thing that is easily overlooked in this, the popular vote, even under a system, is nonetheless counted and it therefore has a degree of moral weight. certainly for many of us, i would say it does for me a little bit, in our public discourse. everybody is aware, i think, that hillary clinton won more votes than donald trump. i think there was a general awareness that gore won more votes than george w. bush. it is politically significant, although not constitutionally significant, who wins the popular vote -- it is a significant factor, it is politically valuable for the winner of the presidential race to have won the popular vote and not just be legally qualified

for the presidency by winning the electoral vote. so i think the purpose of moving to a direct vote is already served. at one time in my life i did a fair amount of grassroots political work in california. and of course people would say, my vote doesn't count. there is no way our candidate is going to win california. and i would say, for political reasons, it is best for the winner to win the popular vote. and for that, a vote in california is just as good as vote in ohio. in the interest of time, i think i will probably stop there, but i would again in carriage anyone who has -- again encourage anyone who is involved in discussions of the electoral college -- it is not an easy thing to justify.

i suppose the advice would also go equally for opponents of the electoral college, who not only have to get an amendment through congress, but get it approved by three fourths of the state. it is not like it would happen in the near future. but nonetheless, they want to make the best argument they can, i think, on both sides. it would be best to focus on the weightiest arguments in the news. -- in those ones i said at the beginning that have the most permanent importance, as opposed to the more contingent arguments, or arguments whose significance is more speculative in nature.

the determinants of who becomes president -- is it so bad that the presidency in a truly close election, let's say ohio and florida, it is kind of a ballgame, is that so bad? because of that, because of their record as swing states, tipping point states, they are diverse, cross-sections. no state is a perfect cross-section. but think about the role of the iowa caucus and new hampshire primaries. those are states that are less representative of the united

states as a whole, demographically, then ohio and florida or other states that you could throw in. nonetheless, i think even egregiously white to some people's taste, ohio and new hampshire can be defended as outsize players in the presidential nominating process, because one, they have civic traditions, and partly because of that they have developed traditions of closely scrutinizing candidates. they are small enough to require retail politicking, which i think is a useful test of some aspects of presidential leadership, and also some aspects of one's likely quality,

or lack thereof, as a national nominee. so we have to look at the whole picture. we cannot be too quick to exceed, to acquiesce in simple majoritarianism, the idea of everyone's vote counting equally. there is one thing that i would get into if we had more time and i am sure it will be addressed at some point this morning, do you really want to create a national administration of elections by creating a truly national election for the first time? that opens up a can of worms. there is a great unknown there. so i think i will leave it at that for now. thank you for your time. [applause]

adam: i would like to thank you all for coming out this morning. i would begin by saying -- friends, americans, apsa attendees, lend me your ears. i come to bury the electoral college, not to praise it. the electoral college is an honorable institution. you see, unlike mark anthony -- marc antony, i will not seek to ultimately resurrect that -- unlike julius caesar, what i come to bury is not dead. the electoral college is very much alive. instead, to bury i must defeat, in turn i must slay. i seek to do so through three arguments targeted at three

audiences regarding the electoral college. first, to the elites and originalists, that it does not operate as originally intended. to pragmatists, it does not deliver on justifications apologists give. and third, two populists and it does not, conform to the populism and nationalism that supporters of our president hold dear. let me begin to the elites and originals. the electors would choose the president based on their own judgment. why would they do so, instead of having a popular election? it is not as if it was unheard of in the constitutional convention, it was argued for, which i will talk about later. the reasons had to do with setting up an aristocratic-like institution, with aristocratic-like qualities.

and they would be better having this kind of institution for several reasons. if we draw on hamilton's 68.ment in for one thing, this would be a complicated inquiry, many persons to sift through, many factors to take into account. and if these persons -- and in these persons, unlike the population in general, would be the most likely to process the information requisite. they would be most likely to know the person and situation. they would be the most wise, the most likely to possess the discernment requisite. in other words, they would have the moral and intellectual virtues, above and beyond what the common populace would have, to make these kind of determinations, to refine and in large with the public opinion would do on its own. they would be in the best

situation, "they would be acting under circumstances favorable to deliberation," meaning they would be able to work together, to discuss and refine their own choice. therefore, uplifting reason, not passion. refining their opinion as it was a refinement of the people's. this is, i think from the perspective of the federalists, a republican aware of its own weaknesses, with checks from other regime types, something we have lost in the discussion of the mixed regime. that does not mean that we have a mixed regime. but understanding what comes from those other types. so what is the situation? very different. it is a series of popular votes with the electoral college rubberstamping those votes. you could argue that the political parties took that role

over, the work of julius caesar. the party would choose the two over, the work of julius caesar. candidates that would be voted on by the electoral college. and by the people. martin van buren, that being his great innovation and contribution, lasting contribution to american politics. this would allow for the same kind of refinement, or at least similar i would say, by the founders' perspective, inferior. that is not true now. party conventions are beauty pageants. where is it decided? where do we decide who is going to be the candidate? primaries. they decide, which are themselves popular votes. they played to the same issues that the federalists warned about.

so if the electoral college isn't doing remotely close to its intended purpose, which is to refine selection more than a popular vote, while still giving popular participation, what remains is the underlying point -- popular choice. shouldn't we be honest and scrap the no longer working edifice going with the underlying principle of popular vote? isn't this scaffolding for a wrong building? by the way, we could change this without amendments. the states are allowed to allocate their electoral votes however they want. they could say if the national league wins the world series this year, the votes will go to a republican. if punxsutawney phil does not see his shadow, electoral votes will go to the democrat. there is nothing in the constitution stopping that, there are other factors, i promise, but nothing stopping

this is the constitution. so there for the originalists and elitists. how about to the pragmatists? this is where i would say it does not help in the replacement for alternative justifications apologists give. we hear another justification -- one is it gives a mandate to govern, it can create a larger majority among electoral votes then popular votes as far as what a popular vote lead would be. it gives greater legitimacy, allowing for more effective governance. but this would be seen as begging the question. let's take another sports hypothetical. a basketball game between myself and one of my colleagues, pick any of them. the rules, every shot i make is worth four points.

every shot my colleague makes is worth two. those are the rules and we both agree. could i win that game? i hope. i certainly have a very good chance. the fact is, even if i made less shots, barely less shots, i could rack up a commanding lead on the scoreboard. if we were tied, i would double him up. right? you see the problem. it is with the rules themselves. many would still find my win illegitimate. the real test of who should win it who can make more of the same kinds of shots. why would that not be the case for the electoral college? if the truest standard is the consent of individuals in casting their votes, then how would the electoral college in the legitimacy of a

closed popular vote? -- close, popular vote? in fact, hillary clinton won by 3 million votes almost. i don't see how that is much larger of a majority than the electoral college victory that president trump won. we heard this, it will get candidates to pay attention to rural areas. and i agree that they should appear but let's take -- should. but let's take candidate visits as a marker. in the final two months, in the state of pennsylvania, 72% of trump and clinton visits to pennsylvania where to philadelphia or pittsburgh. 72%. in michigan, where i come from, all of the visit went to grand rapids or the detroit area. what matters are media markets, which are based in metro areas. even the appeal to rural voters is made in that way, and i don't

see how a popular vote would not still require you to try to get out rural voters, nationally. so that is what i would say to the pragmatists. to the populists and trump supporters, i am sure that there are a number here, were thankful that the electoral college was in operation this past election. sure, it meant donald trump became president. if you really are a trump-ion you should oppose the electoral -- trumpian, you should oppose the electoral college. the electoral college is anti-populist in its roots. i gave reasons in federal '68, but really i believe those lead to a bowing of elitism. for example, the popular vote, what was said by those in the constitutional convention.

eldridge jerry said, "a popular election in this case is radically vicious. the ignorance of the people would put it in the power of men dispersed through the union and acting in concert to delude them into any appointment" i use this twice. "the people are uninformed and would be misled by a few designing men." george mason, "it is a natural trigger for the choice of proper character of chief magistrate to the people as it would to refer a trial of colors to a blind man." "they would be led by a few active and designing men." in summary, people are stupid, ignorant, vicious, and they will choose people of like demerits. contrast this to the voters of a

popular vote in the constitutional convention. james wilson for example, "an election of the first magistrate by the people at large is convenient and a successful." morris, "if the people should elect, they will never fail to prefer some man of distinguished character or services. some man that might speak of continental reputation." sure, these popular vote defenders compromised, but we did on slavery as well. i am not equating them, but fore is a precedent compromising on issues that were wrong. now, we can make the union more perfect by following their original desire, not compromising with the elitists of 1787 or 2017. by the way, haven't we already moved toward eliminating these

kinds of compromises? besides eliminating the original purpose for the electoral college and making it itself more popular, we have the 17th amendment that no longer let's state legislators select, that allows the people to do so directly, a progressive populism of the times. and we did get amendment-level support for that change, and have had it for a century. it is now deeply ingrained its principle of populism ever deeper into the popular psyche. so we have that. it is anti-published in the way it operates today. that it undermines the principle of consent. the declaration of independence and places the emphasis on

the individual, the source of government's purpose is to protect individual rights, and the source of its power is the consent of those individuals. institution-like states exist to fulfill that end. but in the electoral college, we privilege the means at the extent -- expense of the end. we give power and status on the basis of being a state and in doing so, we dilute the consent of the governed, and by such we undermined the claim that their constitution makes on the equality among individuals. it creates elitism among individuals. to those who get more attention, whose will that we follow closer, this is the idea that in certain places, your vote is worth more in the electoral college than other places. sometimes vastly more, and we may say that, it is the good

states. it is wyoming, right? i say two things to that. one, factually, that is not completely correct. one of the highest benefits of this is the district of columbia, nearly three times the voting power of its popular vote. beyond that i would say, if you are satisfied with it merely because states you like get to vote, or get more power, then your problem with equality is merely that you don't get to be part of the elitist group. right? i would say that does not work. second, beyond being anti-populist, the popular vote is more nationalistic. it sees us as a country. it decides as a country. and of course, this desire comes first from a worry about sectional division, that goes back to the beginning of our

founding. doesn't a state-based election still do this? we have the language now that we are in a cold civil war today, which shows sparks and heat. does not the electoral college perpetuate this war? red states versus blue states, states as a whole seen as one side, california versus west virginia. you can pull us back larger to regions, we are more able to definitively section off entire portions of the country against each other. south versus east coast. mountain states versus the west coast. and couldn't this enhance a kind of identity politics that would become more calcified in those regions. the fact is, the reality apart from the electoral college -- in many states, both candidates received over 40% of the vote.

even the worst states for each candidate, still the percentage was not minuscule. it was not like alabama post reconstruction for the republican party. california, worst state for trump. he got 33% of the vote. it was not like alabama post west virginia, hillary clinton still got over a fourth of the vote. the reality is, the popular vote might take these distinctions, the less partisanship, better into account. i would say along these lines, the anti-nationalism of the electoral college may contribute to a newer concern among populists, globalism. that locales identify possibly with people from other countries. is thatple of this

park, whenhow, south san francisco is under a cloud of smog. part of it is that someone is walking through in hazmat suit. san francisco is not really an american city, it is more european. that is what we want to avoid. i think the popular vote mitigates this problem. allow less balkanization. this, and finally on point, it is what donald trump wants. i quote from november 7, 2012. the electoral college is a disaster for democracy.

on this point i would say supporters of president trump , as a stand with him representation of his own and symbols, a statement of his own beliefs. in conclusion, thus stands my case against the electoral college. originalists,nd it bears no resemblance to the main intention of its creation. for pragmatists, those who care about what works, it does not clearly achieve the alternatives. mandatenot create a where the popular vote does not. it does not give more attention to rural areas i would argue. underminesnsent and individual quality, in favor of

states. it is not nationalistic. to return to market antony marki say, let it work. take what course thou wilt. for the electoral college is an honorable institution. thank you. >> good morning. thank you for coming out this early hour on this saturday morning. this will get you a high place in heaven. i should amend what was said in introducing me. i also have a day job, as a professor of government and politics at the

claremont graduate university. of which i am also proud. with that, let me proceed. the place to begin in understanding the electoral college is with the remarks that senator john f. kennedy made in 1956 in defending the electoral college in its conservative critiques. you cannot change the electoral college without changing an awful lot of other things in the political and constitutional system. he says, it is a sober -- a solar system you are dealing with here. he had in mind the relationship of political parties to geographic in the way in which the electoral vote is

distributed geographically. as a democrat, he was particularly worried about a system that would alter winner take all, because it was in the hands of the urban minorities at the time, so necessary to democratic votes and john f. kennedy. there is a larger solar system even beyond the one alluded to by john f. kennedy, the solar system of james madison's constitution of which the electoral college is apart. the classic indictment of the electoral vote system.

it began in the early 1820's. the most vocal critic at the time was jackon's pal thomas attacked the voting system as the result of an appeal between henry clay and adams, which contrary to the will of the people produced a presidency in adams's favor in 1824. as many as six states did not have any popular electoral provision for the election of the president. the system hadn't yet been fully democratized, which would occur under jackson over the next eight to 12 years. the democratic party, led by van

buren, secured the presidency for the democratic candidates by encouraging the idea of a winner take all. not ons a development anticipated by the framers. the unanticipated by the framers. the device of winner take all represents some of the virtues the framers sought to achieve by means of allowing electors. one could say this was an aristocratic element. there is another way to look at it. what its it you seek to achieve in putting a man in the office of

the presidency? it is the vices you seek to guard against. this is what people often fail to understand. one has to recall that eloquent sentiment voiced in the very first paragraph of the very first federalist paper, as to whether it was possible to establish a government from a reflection of choice, but whether men were forever destined in their constitutions to rely on accident versus force. it raises questions about the stability of the democracy characteristic of all political thought of the serious sort, until the 18th century, when the united states developed a system that would enhance and limit the vices of democracy. the electoral college has to be seen

in that context. as madison was points out, there is a tendency in democracy for the majority to turn in on itself, for the majority to a press the majority and produce the same debilitating results of what you would get in a dispositive tyranny. however you empower the majority and limit tyrannical tendencies is the central dilemma. this was a dilemma faced by a constitutional body that derived all of its power from popular sentiments. had you enhance -- how do you express those sentiments but not in a way that

enhances or in phthisis democratic sentiment to turn back on itself so it devours itself and destroys minority interest. thomas jefferson captured this perfectly. -- the will of the majority is to prevail, with that will to be rightful, it must be reasonable. the minority also possesses equal rights, to deny it would be tyranny. the majority would be less likely to tyrannize over minorities. his understanding of democracy is the proper understanding. it is simple, it is not simple, quantitative, majoritarianism the american

regime is dedicated to. a majoritarianism of the sort that will enhance the likelihood of a reasonable majorities, now and in the future. taken together, bicameralism, separation of powers, independent judiciary, representation distributed through a geographic system -- as madison said, this is a compound republic. the president is not the president of a regime of an undifferentiated home, but a regime that is a compound republic, of which the states are essential. if you want a president a product of

quantitative majority of -- quantitative majority quantitative majoritariansim, you can get an election by slightly disguised means. residential elections are the way to get it. the risk of demagogy in the democratic regime is an ever present danger, very significant with the 24/7 news media. certain to temperaments of a particular kind to wish to take an of large crowds -- advantage of large crowds contrary to the interests of people in ways that are understood.

the decisive question then at the founding and ever since is -- how best do you produce reasonable majorities, that simultaneously reflect a general sentiment of majoritariansim that are less likely to produce injurious consequences for those who don't accept that. general, winner-take-all accomplishes this by forcing candidates of the major parties to compete on the same stages.

it forces candidates to move toward the center. it tends to moderate their rhetoric. he said this forces that effect. one of the consequences is of a geographically distributed majority, such that the winner can claim, which represents the whole in a differentiated kind of way, quite different from representing the whole into stopping when you got to 50% plus one. nothing like a flat election has ever been tried in a regime of this size. if direct election says do what you want, if you try it in a country of this size, you are going to get demagogy.

a point worth mentioning, it is better than the alternatives, people of concerned disposition from time to time means that votes and be cast in accordance with congressional districts. there are big bad coasta s on

-- with the big bad coasts on either side. dealer portal votes would be divided in accordance with the split vote -- the electoral votes would be divided in accordance with the split vote. but a popular vote would not be guaranteed as they distributed the electoral votes generally. this is produced in the same way the congress of the united states produces that anomaly. if you make a case against the electoral college because of that disproportion, you must make the case against

the senate for the same reason. you must make the case against bicameralism. if you are a quantitative democrat, it is intolerable that there should not be a greater say in the house of representatives. we should have elections en masse, without great distinctions, all the way down to one national vote. and we will all sale merrily into the 21st century. seems to me that is not a desirable outcome but this is where the logic goes. one has to be careful about the

consequences in the light of what the alternatives might be. the most popular alternative to the electoral votes is the idea of direct election. can figure out how you limit the number of candidates. one of the virtues of winner it produces an incentive for the formation of third parties. winner take all tends to massively discourage them. in any given direct election system, there will be multiple candidates with an unproductive plurality system. and it will require one or more runoffs. again, this would not be too

-- again, this does not seem to be an improvement over the status quo. reform is not neutral. it has partisan and ideological effects. if you look closely at the conservative attachment to the district plan, or the embracing of the direct election with the national popular vote plan, these are partisan interests. god bless them one and all. they expect a change in the system to produce a result that is conducive to their ideological and partisan interests. there is no such thing as a neutral division of the presidential election system. they will seek to alter the system in a way that enhances

their particular interests. my final word, this compound madisonian republic. this seeks to create a majority and at the same time, limit its to radical purposes. at times, we exaggerate the importance of presidential elections. it would be nice if we could guarantee slam dunk electoral votes, that the electoral votes winner would be the popular vote winner. the explosion of state primaries which is a secondary issue. primaries make parties less powerful institutions in ways that they limit the kinds of nominees that run for office. it

is a problem reflected in the electoral vote system cast, and we had 2 misfires in 2000 and last year. the electoral vote winner was the popular vote loser. mrs. clinton's advantage in the popular vote was composed entirely of california and manhattan. --t is where her 3 million advantage was. this doesn't make her any more representative of the body politic. in some respects, this makes her less representative. i don't think you ought to be impressed by mere mathematics. one of the things that happened in this complicated madisonian

system -- this is a president for the time being, only. we need to remember that. thanks to mr. madison, federalism, and the separation of powers. this can limit the tendencies of the president who does not reflect the sense of the people. the presidential election is a freeze-frame in a very complicated motion picture. we decide we are going to cast a ballot for a particular person, with all the convoluted structures of governmental system. the movie does not end there but continues for the next four

years. whether it is donald trump, or clinton, or george bush, a president has to wrestle with all those other devices once in office, produced by the same people that produced the electoral vote system. he has to do so in a much more complicated and deliberate way. this is the beginning of the story, and not the end of it. to govern effectively and democratically, a president has to wrestle with those congressional constituencies, with varying public opinion polls.

this has happened quite frequently in recent years. if you look at what happened to bill clinton in 1994 and george bush in 2006, obama in 2010, this is the madisonian republic of the people expressing against an incumbent president, in complicated and infuriating way, but reflecting in a wonderful way the complicated character of what it means to be living in a reasonable, as opposed to quantitative majorities. thank you. [applause] >> thank you again to our panelists. we now have time for questions or discussions. if you have questions, please come to the microphone to ask them.

>> a question for professor carrington. an important point was raised on an area of agreement with you, the electoral is not accomplishing its original design, to directly refining the popular vote. the winner take all system has likely accomplished that by other means. i would be curious to hear your response. you used the 17th amendment as an example of success in tinkering with the structures, not a very good argument. the collateral damages that have resulted from that are pretty significant, playing into the point that this is a solar system. if you tinker with one aspect of it, the collateral effects may be unforeseen but permit -- but profound.

something similar like that. the one concern at the electoral college's skill provides and that i would like you to address is -- if we have a national popular vote with a close election like we had in florida, one of these things the electoral college now does is to confine the chaos to a small area, which allows us as the largest superpower in the world do have a transition of power without chaos eating perpetuated -- without chaos being perpetuated over months and months if not longer. if that had happened on a national popular vote, every precinct would be in the middle of recounts, and the ability to affect transition would be potentially catastrophic. does the electoral college perform a useful function in serving to avoid that risk? >> thank you.

i should probably say that i may be more like mark anthony to julius caesar on the electoral college. i was asked to do this as someone to make the argument against it. this needs to be made regardless of my opinion. it was kind of fun because it was almost easier to make the anti-electoral college argument. even the answer to your 17th amendment question, it really does come from a very fundamental premise about government. that fundamental premise -- one reason it is hard to make a case is that we don't like politics asay as soul formation but will reflection. we don't like the ideas that we might structure our institutions

to do things better than we would otherwise, we just want to -- we just want it to reflect us. the response -- that is not what government is supposed to do. to reflectsed popular will. one of the problems with the electoral college is the inability to accept that premise. you did make a practical point about if there were a close race or if florida happened everywhere. in some ways, the question of how close would it have to be, because al gore won by 500,000 votes. people don't always think

of proportions. if you said someone won by 500,000, would there be the legitimacy to pursue that? you have to have the contingency. what if out of 120 million votes it was 500? that is a legitimate concern and the response from the popular vote angle would be, if it really is true the popular vote is the most just, we have to deal with that contingency in the interest of justice. that is a good practical point. >> if i could add a comment to that. i had no idea how wise professor carrington was, in the selection of reading materials. the florida example is a good one,

in many respects about the sealing off of electoral difficulties. the difference in that election, you have to go to the third decimal place, to distinguish between the national vote for bush and gore. it is one of those statistical freaks that just happened. what it means is that either side could govern. and in some legitimate sense they could claim the sent to the people behind them. that is what happened. the reason why what the supreme court ended up doing there was excepted after 27 days was the closeness of the election and the general sense of the public that it was a complicated anomaly and this is about as fair a result edit -- as it is going to get. and that the issue was going to

be decided at the end of the day by a court of some kind, which proved its incompetence to the task set before it. in those 27 days, the supreme court stood back and showed the anomalies within the florida system and the unlikelihood anything better would come out of florida if all of the ballots were counted, very slowly by some local and corrupt regimes. the public accepted the result and it underscores the final point i made -- bush had to be careful about how he governed, because there was a cloud over his election. he had to prove he was a legitimate ruler of the nation. that happens so often we don't think about it. showed it in a very clear way. i would argue the same thing about trump, this encourages his opponents. you will get deep the

-- that is what you will get under direct election. >> especially after the comment that you made a moment ago -- i admire your pluck, but i would like to pile on a little more and raise a few other objections. these are points that ought to be made. you and the other professors all agree that the electoral college does not work remotely close to the

way the constitution contemplates. you are all quite mistaken. you would be correct if the the last word in thest word was constitution is the 12th amendment which was adopted in 1804 after presidential elections which were hotly contested in a manner which is pretty much the way the electoral college works today. they were party elections. it was a party contest in each state. the reason for the 12th amendment was that once the system had switched to that, which is what we still have, there was a glitch which led to

the attempted coup by ehrenberg after the 1800 election. there's a statement by jefferson , i think in a letter, in which he says, and he obviously doesn't like it, but he says, it looks like this is what we're going to have, and we have to fix the constitution to deal with it. i would say the constitution including the 12th amendment contemplates the electoral college just about the way it is working. plan,ational popular vote when you paraphrase article two flexibility or the power of the state, you paraphrased it in a way that almost everybody does and it is inaccurate. it is inaccurate in a way that is very relevant to this question. here's the actual language. each state shall appoint in such

manner as the legislature may ,irect, now i will paraphrase the allocated number of electors. the state of points. the manner in which the state of points is determined by the legislature. i submit that if the legislature said the pope can decide how our state's electoral vote is going -- that would not be a manner in which the state makes the appointment. if they said the queen of england shall do it, that is not the state appointing it. if they say the united nations will do it, that is not appointing it. if they save the majority of voters in our state, that is the state doing it. if they say the state

legislature, that is the state doing it. if they say the governor, that is probably the state doing it. but the national electorate is not. i believe this national popular vote plan is unconstitutional. i would like to add one practical point in addition to the one john eastman raised. this occurred to me after some incidents in the early 2000's, the most famous of which was the senator from new jersey who had won the democratic primary for reelection, got involved in a campaign finance scandal that led him or the party to think he couldn't win the election, so he -- i'mw and was replaced blanking on the former senator who was quite popular. >> harrison williams, wasn't it? >> lautenberg.

now, there was another wrinkle, it was too late under the new jersey statutes. fortunately, and i do believe it is better if each party has a candidate, the new jersey supreme court could be relied on to way the interests of the democratic party, so they let him on. but the point is this. you can have a situation after the nomination or the election in which something horrible emerges with respect to the nominee or the winner of the election. it could be a health thing. could be some kind of horrible scandal. >> sorry to interrupt. could you ask a question, please? >> will any of the panelists

comment -- but i would like to point out that the electoral college is ideally suited to deal with that situation, because the people are selected for their loyalty to that candidate. if they decide this person can't be the person, it will not be a coup d'etat. it is a political solution to a political problem that i think could not be improved on. >> there's a lot to respond to with that. i will cherish it. , if we are to say it works exactly now as it was intended because of the 12th amendment, and we take into account that political parties form almost immediately, although they were supposed to be the parties to end all parties. we were supposed to settle a regime level donate. it was van buren that envisioned permanent party distinction.

if that is the case, if it happened so quickly, how seriously are we to take federalist 68? was either hamilton utterly wrong in how it was going to work, was he being disingenuous? he was one of the guys that wanted a popular vote. that is one question i would ask related to that. appointments, it is something i would like to discuss more. maybe i'm missing it. in some ways, the legislature is acting for the state. that is something maybe i should talk more. aren't they acting for the state in designating how it would be done? i don't think my examples would ever happen. it,way i've understood those are massive political

constraints, not legal constraints. i could be missing it. i would love to talk about that more. as far as new jersey goes, to quote "hamilton," everything is legal in jersey. the fact that he was corrupt enough that that happened is really saying something. but yes you would need to have contingency plans for that kind of situation. >> i have nothing in particular on that, but i would like to make a couple of very quick responses to a couple points that adam made. wherebyetball analogy you have a very skewed rule that , evenhandicaps one player generating a commanding lead on the scoreboard for the winner who by any fair standard was not

the real winner of that basketball game, trump did boast -- i don't know if he still does, but he did, that he had a commanding electoral vote majority. as we know, by historical standards that is not really the case, but it was certainly larger than it might have been, larger than george w. bush in 2000. thate are aware by now that comfortable lead in electoral votes was the result of very narrow wins in three states, or if you count florida, in four states. i don't think that really does much for the debate. the other point about candidates paying muchot

attention to rural areas does seem to be true, but that is not the most important thing. that does not eliminate the argument, the powerful argument, for geographical distribution. it is not strictly speaking rural areas which are just not much of a population anymore. it is really regions of the country. byt is what i mean at least saying that the electoral college is valuable in part for its very strong tendency to require something more than regionally based majorities or bicoastal majorities. i think that is much less desirable than winning a set of states around the country and that will vary from election to election.

representing a significant geographical slice of the country does have some value. that is an independent reality. it is not just a matter of rural voters, and it is not just a matter of whether they campaign among rural voters. what is most important is whether rural voters and flyover guaranteed a- are significant role, which they may not be in the future if we ever get to a direct popular vote. i didn't say anything particularly about the constitutionality of the national popular vote plan. my sympathies are sort of in your direction. it isrger point is that an invitation to litigation that will go on until the end of time. andght even suit up again

involve in it. about theyou refer to nature of the power of the state legislatures under the constitution is nothing compared to the chief mechanical device of the national popular vote plan that would force states to cast all their electoral votes for the national popular vote winner. imagine in 2004, the state of new york or the state of california having to cast their electoral votes in favor of george bush, who in that year won the popular vote. i'm ready to suit up. we can be in business for the rest of our days. >> thank you. good morning. i wanted to drill in a little bit on this issue of district

allocation of electoral college ands, and knowing the main nebraska situation, what would the 2016 and 2000 elections have looked like if that had been ?pplied across 50 states , after other issue was the november 8 election, there emerged a not-so-subtle media electorsfor faithless to vote a different way to what happened,to what had and this seemed to gain a lot of attention, and it was quite such as for candidates bernie sanders, john kasich, from different states,

washington, hawaii, texas -- looking to the future, the concept of faithless electors, it is regarded as an anomaly, i understand all that, but the possibility does exist that something could happen that would deviate from all that has gone before. i wanted to perhaps here some views with regards to that. >> first, i haven't done the math, but i'm all but sure that it would have been a larger electoral college margin if everyone did the district level voting that maine and nebraska do. i think romney would have won the 2012 election if that had happened. don't quote me on that, but i'm pretty sure i saw that. because there are so many 80-20 democratic districts and so many 55-45 republican districts.

even if you had no gerrymandering, republicans would probably still hold a majority in the house because of that. loveless electors, i would that supreme court case if someone got prosecuted for being a faithless elector. there are a number of states that say you legally have to follow your state. it would be a great constitutional test of what do we think the intent of the electoral college is constitutionally. could you tell a faithless elector that he was being faithless given federalist 68 or not? how much is it really on top of 50 popular votes or 51? and i would say very quickly in response, my basketball analogy goes back to what i said before. what do you think the rules are? if you believe that we are not supposed to play fair, fair is

not equal votes, fair is to allow for ultimately popular consent, but to stack and channel the way that popular consent is manifest in such a way that it is toward justice, that really the end of government is the most important -- basicallynsent the consent is a subset of justice. i don't know that we've made or convinced enough of the american people of that argument. >> quick comment on the district plan. a gratuitous assumption on the part of its proponents has always been that it would tilt the presidential table more in a conservative direction. in recent years, the argument greatvived a bit by that conservative mischief maker grover norquist for the same reason.

i think generally that is true, but something you have to bear in mind is whether the voter casting his ballot would have the same mind in casting the ballot for the president. if you assume an identity, then you will get this conservative result of the presidency. i'm not sure in the long run that would be the case. i think people feel differently when they elect presidents. there's no way of guaranteeing the popular vote winner would be the electoral vote winner because of the anomaly in the distribution of electoral votes. i think we have time for one final question. >> my name is eli and i'm an associate professor at college of the redwoods. , wepoint i wanted to make have been encouraging democracy around the world, and as a

result of encouraging democracy we've had themd, end up having voting, but if we tell them you should set up some kind of system like an electoral college, or you set up a democracy, but if they end up setting something like an electoral college, would we not say you are not really having a real democracy? it might look like something else. it might just try to keep a monarch or a dictator in power because of the way they set it up, even though technically they are having a vote of the people, but somehow their formulations up with a different result. what i'm getting at is, aren't we basically looking at other countries and telling them, set up a democracy, but if they try to do something like our electoral college, would we not

say that is not a true democracy, because your formula is not a good formula? i would say yes, we probably would. i don't know if we lack the knowledge of our own founding and convictions or we lack the courage of them. often when we have to push democracies, and the wisdom of that is its own question, but we have pushed them in ways that don't reflect our system. i think it is having a darker view of human nature and a higher view of the ends of government and how we should direct popular will toward that is something that we've lost the art of trying to construct and have lost the knowledge of how it was constructed for us. >> it is a nice question two end on. it underscores my point about

the difference between qualitative and quantitative majority. if you want to set up a democratic regime in any serious sense, you have to guard against the likelihood that the majority isn't going to devour the minority. we have a long, sad history of democratic regimes that don't produce the results that protect everyone, but only the results that protect the majority interest. that problem has always been the anomaly and the difficulty of democratic regimes from the time of the ancients until the late 1800s. we can thank the authors of the constitution for elaborating that distinction and showing the difference between mere democracy and reasonable democracy. democracies protect everyone's

rights, not just the rights of the majority. that is what we ought to be instructing as best we can. keep your majority's reasonable. that requires some mechanical devices. >> i think that concludes our time. thank you to the panel. [applause] >> all this week, washington journal is featuring authors of key books published during the year. join us for conversations with authors about their popular books. coming up this morning, author henry olson. tuesday, ken stern with "republican like me."

on wednesday, angela j davis with her book "policing the black man." thursday, cliff stearns with his book, "life in the marble palace." war,iday, digital world islamist extremists, and the fight for cyber supremacy. on saturday, jessica bruder with her book, surviving america in the 21st century. sunday, "the gatekeepers." washington journal's authors series all this week at 8:00 a.m. eastern on c-span, c-span.org, and c-span radio. time at the white house looking at this year's holiday decorations and the lighting of the national christma