Monday, December 13, 2004

As required by the Constitution, the president of the United States is elected not by the national popular vote but by the vote of the Electoral College. In the Electoral College, each state receives as many votes as it has members of Congress. Because every state has two senators and is guaranteed at least one House member, votes of small states count more heavily than votes of large states. Has the Electoral College served the nation well? Or should it be abolished and replaced by a system in which every vote counts the same? Peter Robinson speaks with Jack Rakove and Tara Ross

Recorded on Monday, December 13, 2004

Peter Robinson: Today on Uncommon Knowledge: Is it time to vote out the Electoral College?

Announcer: Funding for this program is provided by the John M. Olin Foundation.


Peter Robinson: Welcome to Uncommon Knowledge, I'm Peter Robinson. Our show today: the case for and the case against the Electoral College. A brief reminder of your junior high civics. For these two hundred and some years now, the President of the United States has not been elected by a national popular vote but by the Electoral College, an institution in which each state receives the same number of votes as it has representatives in Congress. Each state, large or small, therefore receives two votes for its members of the Senate plus the same number of votes as it has members of the House of Representatives. Under this system, votes for president cast in small states, Wyoming for example, count more heavily than votes for president cast in big states, California, New York or Texas. The question: has the Electoral College served the nation well or should the Electoral College be abolished and replaced with a system under which every vote counts the same?

Joining us today, two guests: Jack Rakove is a professor of history and political science at Stanford University. He's also the author of the Pulitzer Prize-winning book Original Meanings: Ideas in Politics and the Making of the Constitution. Tara Ross is the author of the new book entitled Enlightened Democracy: The Case for the Electoral College.

Title: The Electoral College's Excellent Adventure

Peter Robinson: Brief commentary on the way we select our presidents. "The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system which has escaped without severe censure. I venture somewhat further and hesitate not to affirm that if the manner of it be not perfect, at least it is excellent," Alexander Hamilton. Would you agree with Hamilton that the way we choose presidents is indeed excellent? Tara?

Tara Ross: Agree completely.

Peter Robinson: Jack?

Jack Rakove: Disagree significantly.

Peter Robinson: With Hamilton?

Jack Rakove: Well, I'm a Madisonian, so it's easy.

Peter Robinson: All right. What would the electors think--what were the founders thinking when they gave us such a peculiar system as the Electoral College? Jack?

Jack Rakove: They were thinking mostly about the problems that would arise if you had a popular election with a single national constituency on the one hand or an election by congress on the other. And so they--the basic reason they adopt the Electoral College is not that they had any great confidence it would work as such--but they had fewer objections against it than the other votes of election that they were considering.

Peter Robinson: It was a compromise with which they were--Alexander Hamilton is typical or atypical? He was quite happy with the compromise, at least on the strength of that quotation.

Jack Rakove: What's interesting to think about Hamilton is that as soon as you start having contested elections in 1796 and 1800, he comes up with all kinds of schemes to manipulate the electoral system for intensely partisan considerations, particularly because of his deep animosity, his deep distress with John Adams.

Peter Robinson: Tara? You want to tell us the founders liked their work or had nobler aims in mind? Jack is slightly dismissive in his description.

Tara Ross: I disagree with Jack a bit. Alexander Hamilton was typical, I think, of the founders who did not see much need to discuss this at the constitutional--at the conventions ratifying the constitution. They thought the system was a good compromise between the large and the small states and I think it was. The small states, if there had been a direct national election; they would have been outvoted constantly by the large states. Legislative selection was the other idea that was discussed at great length. And that would have left the president, as they said, a tool of the legislature. And it would have undermined their separation of powers--goals that they were going for.

Peter Robinson: Okay. Now let's talk for a moment about the way this thing has actually worked for this two and some centuries. I quote you Jack, "Rather than view the electoral system as a well conceived element within the overall constitutional design, we can recognize that it represented a highly experimental leap into political uncertainty." So the question is how did the experiment work and I want to quote you once again. "The electoral scheme of 1787 was obsolete by 1800."

Jack Rakove: Let's start with the problem of why not have the president elected by the people. The assumption in 1787 was that in a post-George Washington world, you would never have national characters, the term they used, sufficiently well known to overcome the kind of favorite son bias of the highly decentralized electorate. But the one thing we know is as soon as Washington announces his retirement for the presidency in the summer of 1796, we already get two highly mobilized, fairly disciplined political campaigns going, one supporting John Adams as the Federalist candidate, the other supporting Thomas Jefferson as the Democrat-Republican candidate. And, in fact, the nation could have made an effective choice between those two candidates. So the Framers' reasons for doubting the popular election would work--that's back in 1787--the Framers' reasons for thinking the popular election would not work are proved to be obsolete as soon as you have a contested election in 1796.

Peter Robinson: In the sense that both of these people, Adams and Jefferson running in 1800, were national enough figures so that people in Massachusetts could form an adequate opinion of Jefferson. People in Virginia could form an adequate opinion of Adams. It would have sorted itself out.

Jack Rakove: And you have a party apparatus that already is working very hard to kind of form working coalitions to support…

Peter Robinson: National coalitions?

Jack Rakove: Right. National coalitions--to support one candidate or the other.

Peter Robinson: Okay. Tara, what do you think about that election of 1800?

Tara Ross: Now I--my point of view is that the Electoral College has adapted really well. The 1800 election was one tweak that occurred on the way when the Twelfth Amendment was adopted a couple years later to separate the voting for president and vice president. I think the rise of the political parties has strengthened the system, the rise of the two-party system, the winner-take-all system, popular votes in each of the states. These are all changes that have occurred over time.

Peter Robinson: Let's continue to explore how well the Electoral College has worked in actual practice.

Title: This Is Not a Popularity Contest

Peter Robinson: How many times in American history has the Electoral College given us as president, the candidate who lost the popular vote? That's four times?

Tara Ross: Two indisputably.

Peter Robinson: Two indisputably.

Tara Ross: Yes.

Peter Robinson: 2000 and--no, no.

Tara Ross: 1888 and 2000.

Peter Robinson: 1888 and 2000. Oh John Quincy Adams didn't lose the popular vote to Andrew Jackson? I thought he…

Tara Ross: I say indisputably because not all states were conducting popular elections at that time. Andrew Jackson won the--a plurality of the recorded popular vote but lots of states did not.

Peter Robinson: Oh I see. Okay, so it's two indisputably, maybe a third…

Jack Rakove: Let's say, the most interesting one actually is 1960 when Richard Nixon in fact had the popular plurality over John F. Kennedy. Because in reporting the national popular vote, the two slates of Democratic electors, one of which was anti-Kennedy, were amalgamated in the reporting as both Democratic votes. So if you take away the anti-Kennedy Democratic electors who wound up voting for Harry Byrd, you know, the old Senator from Virginia in 1960--if you subtract those from Kennedy's national popular vote count which it makes a lot of sense to do because if those Alabamans were voting against John Kennedy, Richard Nixon actually had the--had a narrow plurality in 1960.

Peter Robinson: Let's run through the arguments in favor of the Electoral College before letting Jack open up this big attack on the Electoral College. Federalism--why does the Electoral College tend to enhance American Federalism?

Tara Ross: I think the 1888 election in which the popular…

Peter Robinson: 1888 is who?

Tara Ross: Grover Cleveland and Benjamin Harrison. Grover Cleveland lost or lost the Electoral College but won the popular vote.

Peter Robinson: Right.

Tara Ross: And he came back four years later and he won the election. He learned from the mistakes that he made in 1888 and those mistakes were that he focused too much on one region of the country; the southern region of the country. And he recognized what it is that the Electoral College wants people to do and that's to reach out to a wide variety of people across the nation and that's what our state by state voting process does for us.

Peter Robinson: You write, Tara, "as the system stands today," that is to say, with the Electoral College, "presidential candidates have no incentive to pull large margins in any one state. They therefore tour the nation seeking to build a national coalition." But they don't really tour the nation do they? Last presidential campaign, 2004, comes down to Florida, Pennsylvania, Ohio, a handful of other battleground states, California, New York and Texas were so clearly locked up for particular candidates that those three of the four biggest states in the country got scarcely any visits at all. Right? Okay so…

Tara Ross: Sure. That appears true if you focus on one election in isolation. If you look at states' histories of votings, I would contend that actually my original statement is true. It encourages national coalition building. Maybe this year Ohio and Pennsylvania are the--and Florida are the ones that are in play. However, other states, they swing. When they--and they become swing states or they become no longer safe or maybe swing states become safe. Over time it changes. West Virginia…

Peter Robinson: West Virginia--right, go ahead.

Tara Ross: …used to vote Democrat. Now it's voting re--vote Republican twice in a row. It's considered a swing state. And Texas used to be Democratic. Now it's Republican. California was Republican, now it's Democratic. If you look--again, after the 1800's, after reconstruction, the divide wasn't bicoastal with the middle section that's all red. It was north and south. It changes over time.

Peter Robinson: This is an intriguing argument for her to make to you as a historian because over time then you get the national emphasis.

Jack Rakove: Actually a lot of people have argued that the current electoral map is exactly the opposite of the 1896 map. The current situation you know, so the parties have strong regional bases. The Republicans and the big L I described, the Democrats, you know, on the coast and in the industrial northeast. And if we assume the national competition is pretty evenly balanced which I think on the whole it is. The Republicans have the advantage which in some ways, the Electoral College multiplies, you know, because the real coefficient--it favors the Republicans in terms of the current alignment. Then what we're likely to look at I think for the indefinite future, barring another major realignment, is a pattern of campaigning very much like 2000--2004, which most states will remain out of play in that the presidential election, which should be the one truly national election we have, in which the president election will repeatedly focus on a relatively small number of states and in which people living in California, New York, Texas, you know, many small states, as well as many large states, will feel in a sense disenfranchised, not that they've lost their vote or not that their electoral votes don't count in the end but they don't feel part of the campaign once the primary season is over.

Peter Robinson: On to another argument in favor of the Electoral College--moderation and compromise.

Title: Everything in Moderation

Peter Robinson: I quote to you George Will, Jack. "America's constitutional system aims not merely for majority rule but for rule by certain kinds of majorities." Nice little turn there wouldn't you say? "It aims for majorities suited to moderate, consensual government of a heterogeneous continental nation with myriad regional and other diversities." You can't just put together a coalition if you're a republican of let's say Christian Evangelicals, the so-called Christian right nationally. You have to go into a state and maybe you can build a base Christian Evangelicals in this state but you have to reach out to this group, this group. If you're a Democrat, you can't just take labor unions and liberals and build that across the nation. It forces you to go state by state and put together different kinds of coalitions moderating what might otherwise be an extremist influence on the parties.

Jack Rakove: This doesn't seem to describe where we are in terms of our political parties. Everybody knows the political parties have become much more ideological and much more polarized over the last generation. And there are a lot of ways to explain this. So, you know, there's not much evidence from how the political parties as a whole are operating. Since they're no longer democrat conservatives or republican liberals, the parties themselves have become too polarized for that kind of ideological, you know, coalition building really to describe the current state of American politics.

Tara Ross: I'm sorry. I'm going to go back to the 1880's again but I think…

Jack Rakove: Yeah, why don't we talk about the twenty-first century? Why should we talk about…

Peter Robinson: You're the historian. Close with her on the nineteenth century.

Go ahead.

Tara Ross: 1880's and today are very analogous. We had popular vote loser presidents in each of those times. We had electoral maps that appeared the same election after election for at least two or three elections in a row each time. And in each instance, I believe that the Electoral College will encourage the parties to come together and to work with people who are not like themselves. And that's a great benefit of the Electoral College. In the 1880's, north and south who had these huge differences--Civil War reconstruction, very emotional time for many people--they had to come together because the electoral map was so divided nobody could be guaranteed victory unless they learned how to reach out to people that were not like themselves.

Jack Rakove: And that's a good point because…

Tara Ross: …and that's happening today.

Jack Rakove: …because coming together in the late nineteenth century also involves the massive disfranchisement of African American voters throughout--in the post reconstruction south. I mean, that's one of the most critical developments that takes place as part of the kind of party dealing that's going on in the late nineteenth century. There will be a horrible example, you know, of any kind of principle, any kind of democratic principle that you'd want to build on today, especially with the allegations about interesting efforts to kind of make it more difficult for African Americans to vote in Florida…

Tara Ross: I don't think that's what I'm saying at all. That's a gross mischaracterization of what I just said.

Peter Robinson: Go ahead. Let it…

Tara Ross: What I said is that the Electoral College map was so divided that you have to reach out to somebody across the aisle from yourself. Another example of how this is promoting moderation of compromise that is healthy for our country, I think--if you're watching the Democrats after this election--they've lost two elections in a row, virtually the same electoral map. They realize that they have to reach out to other voters not like themselves. Pro-life Democrats are becoming much more vocal.

Peter Robinson: Next, Tara's last argument in favor of the Electoral College.

Title: Margin Calls

Peter Robinson: Let me quote you Tara and then you explain yourself. The argument here is that the Electoral College promotes stability and certainty. "The Electoral College system," quoting you Tara Ross, "when combined with the winner take all rule tends to magnify the margin of victory giving the victor a certain and demonstrable election outcome." Explain yourself.

Tara Ross: Because of the winner-take-all system, you end up with a higher percentage of electoral votes than you did popular vote. The electoral margin I think over the past century or so has been most--it's usually two hundred votes or more that the elect--that the president wins by even though the popular vote margin is usually less than ten percent.

Peter Robinson: Now here's the other--another point. Also this one that I derived from your George Will. The election of 2000 was the sixth in which the popular vote margin was less than one percent. Consider 1960 in which--I made these notes before you brought out this point about the anti-Kennedy democrats--John Kennedy wins in the popular vote as conventionally construed in 1960 by 119,000 votes which is just the margin by which George W. Bush won Ohio alone in 2000--and 4 rather. So in 1960, if we'd had a single national election and Nixon had demanded a recount, instead of under the Electoral College say in 2000, it was contained in one state, 1960, it would have overturned results in thousands of precincts or at least caused trouble in thousands of the nations 170,000 precincts. You've got--you're asking for trouble by electing presidents on a national basis.

Jack Rakove: You know, I think the best answer to that is to think about everything we've learned about what a--how our voting system actually operates. The lesson was more vivid in 2000 to be sure than it was in 2004 but we still know that there are lots and lots of glitches in the way in which we vote and in the different segments of the population are more likely to disfranchise in terms of having their votes, you know, counted and counted accurately. It seems to me one of the great advantages of having a national popular at large election was that you would thereby be able at one--you know, at one fell swoop to adopt the one best system of voting which in technical terms would be most likely to, you know, to produce, you know, the highest levels of accuracy in terms of counting.

Peter Robinson: But you'd still have the occasional very close vote.

Jack Rakove: That's why you want to--that's why you want to have the--well look, we were in turmoil in 2000. So…

Tara Ross: Two things. One is the Electoral College isolates the problem to one or a handful of states. In 2000, it was Florida. In 2004, it was Ohio. Second that we have…

Peter Robinson: In 1960, it would have been Texas and Illinois probably.

Tara Ross: Sure. In--second, if we had a direct national election, a national vote, it would become very easy to steal votes now in places such as let's say Texas, where republicans run their machinery. And it would suddenly matter. Today if you don't…

Peter Robinson: She says speaking as a woman from Texas.

Tara Ross: I say, speaking as a woman from Texas…

Peter Robinson: You're maligning your own state, which you're allowed to do. Go ahead.

Tara Ross: Today it doesn't matter because if you steal votes in Texas, the Republican, as you said, is going to win anyway. It doesn't matter. There's a disincentive to steal votes in places where it's easy to steal votes. In places where it's hard to steal votes, it might matter but it's much more difficult to steal them there. If you open up to a nationwide, it suddenly becomes easy to steal votes and it--the election would be a huge mess and you'd be recounting all over the country.

Peter Robinson: And now the fundamental argument against the Electoral College--it just isn't fair.

Title: More Bank for the Buckaroo

Peter Robinson: Population of California, 35,484,000--divide that by the state's 55 electors and you get one elector for every 645,000 people. Population of Wyoming, 499,000. Divide that by Wyoming's three electors and you get one elector for every 166,000 people or a presidential vote cast in Wyoming counts almost four times as much in the Electoral College as a vote cast in California.

Tara Ross: The system works great. It gives minority groups the ability to make themselves heard--minority political interests--whether they be small states or, in some instances, it works out perhaps to say the Jewish consistency in New York--minority political interests have an opportunity to have a magnified voice from time to time. However, they don't have so much power that they can win as long as the majority is reasonable. When the majority is acting reasonably, it will get votes across the nation and it will win.

Peter Robinson: Jack?

Jack Rakove: The fact remains is as, you know, as your ratios demonstrate, that one of the fundamental problems with the Electoral College is if you believe as a matter of principle, as I do, that one person, one vote should be the basic rule of the modern democracy and that there are sufficient exemptions from that already in the form of the senate where, you know, which is beyond the amendment part of the constitution, then it seems to me the argument for, you know, minority rights becomes much more problematic. We'd rather have any vote count equally wherever it is cast.

Peter Robinson: Jack, where do you derive the principle of one person, one vote?

Jack Rakove: Well I derive it I think from the same principle that James--moved James Madison 1787 to say that in the final analysis, the popular vote was the best way to do it, that all citizens are equal. Madison is very explicit on this point and it's one reason, for example, we have the time, manner of place clause in, you know, which allows congress to overrule state legislative regulations of elections for the House of Representatives. And Madison justifies it by saying, in effect by saying, you know, we have to worry about gerrymandering by creating districts of an equal size.

Peter Robinson: Right. So what--I'm trying to get a grip on your argument here. Your argument is that there's a kind of…

Jack Rakove: My argument is all citizens are equal. And when we're voting for…

Peter Robinson: And that…

Jack Rakove: …the one national office, the vote of every citizen should count the same wherever it's cast.

Peter Robinson: And that Congress had to make some unsavory compromises in order to make the system work and, for example, the three-fifths rule and the--and indeed putting up with slavery. And that as the nation grow, we can more fully embrace what was true and just and noble back at the time and that we now have reached a point at which we can do away with the Electoral College, which was--that's your position?

Jack Rakove: Right.

Peter Robinson: Okay. Answer that one.

Tara Ross: Let's say for argument's sake that some of the founders went into the constitutional convention with the idea that one person, one vote, should be the standard. Other delegates felt equally as strongly about one state, one vote should be the standard. Rhode Island didn't send delegates at all because they didn't think it would be respected. Delaware was on--their delegates were only authorized to vote for one state, one vote. The Constitution at the end was a compromise between all these conflicting interests and everybody thought it was a good plan. James Madison signed onto it. He wrote the Federalist Papers in defense of ratification of this constitution.

Peter Robinson: Last topic: reforming or replacing the Electoral College.

Title: Goodbye Rules of Tuesday

Peter Robinson: Jack, you give us your reform. How would you reform the Electoral College?

Jack Rakove: I would have a single national constituency.

Peter Robinson: Right.

Jack Rakove: I think one would have to worry about--one obviously has to worry about what--how much of a plurality would you want to have to have the respectively elected president. So whether you wet--you'd want to set a threshold at forty percent or forty-five percent or you might want to have run-off provisions. So you might--so if, in fact, you wind up with three or four parties, which I actually think is highly unlikely but you have to think about the contingencies, then you would have a basis for, you know, for, you know, for having, you know, having a second election two weeks later, the way the French, you know, sometimes do, in order to make sure that the president elected office has a respectable plu--at least plurality or hopefully majority in the vote.

Peter Robinson: Okay. Single national electorate, I'm quoting something you wrote. You're actually a little looser there than you were in what the place--single national electorate, forty-five percent of the vote on the first round or capture an outright majority in a run-off between the two highest finalists within two weeks of the initial election. How's that for a constitutional amendment?

Tara Ross: I think that sounds horrible. I think if we have…

Peter Robinson: How would things--let's put it--let me ask you both to imagine this. How would 2004--the election of 2004--have been different under the Jack Rakove set of rules.

Jack Rakove: Well it would have been the same outcome because, you know…

Peter Robinson: Bush won by…

Jack Rakove: …because Bush would have won in both cases.

Peter Robinson: How would they have campaigned differently?

Jack Rakove: Ah, how would they have campaigned--oh, oh, how would the campaign…

Peter Robinson: Yes, yes.

Jack Rakove: Well the campaigns would have to be national. Both parties would have an incentive to turn out their votes wherever their votes were cast. Republicans would have a much greater incentive to turn out their votes in the mountain west and in the old confederacy. Democrats would have the same incentive in the northeast. I mean, the parties have--at the moment, the candidates and campaigns have no incentive to try to turn out the vote or even to carry the campaign to non-competitive states.

Peter Robinson: In 2004 under the Rakove system, the Democrats would have had just as fierce a get out the vote effort in California and the Republicans just as fierce a get out the vote effort in Texas as both parties had in Ohio.

Jack Rakove: Yeah, it turned out in California actually declined--the--which is amazing. From 2000-2004, if you were--several hundred thousand fewer votes were cast in the 2004 election in California than was the case in 2000.

Peter Robinson: Because everybody just said ho-hum.

Jack Rakove: Because everybody knew what the result was.

Peter Robinson: Kerry was going to carry the state. All right.

Tara Ross: The principle mistake that Electoral College opponents make is they say if you take the Electoral College out of the system, nothing else will change. He says George Bush still would have won. No, George Bush would not have won for multiple reasons. One is as you mentioned campaign strategies would change. George Bush would go to Texas. John Kerry would go to--actually he wouldn't even go to Texas--he'd go to Dallas and Houston. If you live in El Paso, forget it. If you're John Kerry, you go to Los Angeles and San Francisco. Why would you go anywhere else? Moreover, other third party candidates would have incentives to join the race. Nader would get a ton more votes. George Bush would not have gotten fifty-one percent of the vote. I daresay over time, more and more candidates would enter and we'd pretty much never get a forty-five percent cutoff--we'd never hit that forty-five percent cutoff. We'd end up…

Peter Robinson: Speaking of highly experimental leaps into political uncertainty, she's accusing you of trying to foist just such an experimental leap upon us with the Rakove reform. We're running out of time so let me ask you this. How would you get your reform enacted?

Jack Rakove: Well I think you'd have to have a serious intelligent debate, not unlike the one I hope we've had--you know, notwithstanding the somewhat, you know, nature of my rhetoric. I mean, I do think you have to dis--you have to try to discuss the issue intelligently. I think among other things, you have to explain to small state voters because they--because under the rules for constitutional amendment, they have the greatest potential for blocking an amendment. Why, in fact, the principle of one person, one vote, A is the best principle and B, will really not affect their interest proper…

Peter Robinson: And do you see the prospect for such a national conversation or education? I mean, is there interest in…

Jack Rakove: Yeah, I think so but in part because I mean, out of the last two elections, I think Americans in general are, you know, much more aware of these phenomenon of the concentrated highly focused campaign in the sense of political, not disfranchised in a literal sense but political disengagement.

Tara Ross: If we want to implement one person, one vote, we have to get rid of the Senate too and nobody wants to do that.

Jack Rakove: Okay, but we can't get rid of the Senate because it's constitutionally prohibited…

Tara Ross: That's true.

Jack Rakove: …for all intents and purposes.

Tara Ross: That is true.

Jack Rakove: We can amend the Electoral College.

Tara Ross: But that…

Peter Robinson: Last question. Alas, it's television. We have to bring it to a close. Former President Jimmy Carter, I quote, "I would predict," James Earl Carter said, "that 200 years from now we will still have the Electoral College." Will we?

Jack Rakove: Well, Jimmy Carter said that to me personally.

Peter Robinson: And what did you say back?

Jack Rakove: Well I think I--if I had the chance to pursue the conversation, I'd say exactly what I just said, that that's true if we don't talk about it. If we talk about it and think serious about the arguments for and against, then I think we can understand why the kinds of defenses that Tara's offered here, as much as I respect her ability to defend them, really are fallacious.

Peter Robinson: Two hundred years from now?

Tara Ross: Sure, but I think it's important for the American people to understand the benefits of the system they have in place.

Peter Robinson: Tara Ross, Jack Rakove, thank you very much.

Peter Robinson: I'm Peter Robinson for Uncommon Knowledge. Thank you for joining us.