discourse in the schools that there's something wrong with islam, we shouldn't be talking about islam. which is also impacting how kids are feeling in schools. >> if all you hear is the crusades of 9/11. >> exactly. that's the only historical fact you need to be aware of. >> i think it's important that you mentioned the overall climate for students. and one thing that i always try to remind folks is that when we talk about anti-muslim hate crimes, what we've seen in the past year, you know, just to give it a date, since the attacks in paris we started mapping on a map hate crimes all across the country. and at one point we had 50% of those attacks were against houses of worship. what i tried to remind folks is this is where students, young children go on their weekends

for, you know, koran lessons. this is where they go to have potlucks with their families and family friends. this is where they go for spiritual enlightenment, for prayer. this is their safe space that they go to. after the paris attacks we had mosques smeared in feces, we had mosques that were fire bombed. we've seen two different attacks that were thwarted where they were malitia type attacks with 16 weapons and thousands of bullets being found in someone's home. they were planning a columbine attack in a house op worship. so we have to keep in mind that when their community centers are attacked, how that makes them feel even if they go to school, maybe their classmates aren't saying to them but they're already feeling that something is wrong, something is different.

why would my worship service be attacked. why is saturday school canceled? it's canceled because somebody was going to shoot it. we have to keep in mind the real environment created for children. >> brenda, can you share some of the strategies that you embedded in the dear colleague letter, suggestions that you had in. >> so the dear colleague letter actually came from the two secretaries -- >> not the dear -- >> oh, the letter we sent. our approach to the letter was to describe the environment for students. so we highlighted a number of examples, both of peer-to-peer bullying and instances -- there was a teacher in texas who created what do you need to know that said things like 38% of muslims think you should be executed if you decide you don't want to be muslim any more.

we tried to highlight the multifaceted complex issues. we talked about hate crimes as well. and then being true lawyers we subtly put in there by the way obligation is to provide a safe and healthy environment for students to learn in and then we attached the resources. that was the approach we took to say hey, administrators, this is a real climate across the country. we had considered sending it to individual states with, you know, instances of bullying in each state but we were like, this is really a national problem, regardless if something has happened in the state or not. this is an overall national climate. >> i do think one of the strategies is to, when you mention the facts, just by a show of hands, a third of the muslims in this country are what

ethnicity? >> african-american. >> south asia. >> what do you say? >> african-american. a third of the muslims in the country are african-american. it's estimated that 10% of the africans that migrated to this county were africans as well. african muslims who came through this country through one of the most horrific holocausts of slavery. so 10%, a third of the muslims in this country are african-americans. it's a narrative that we never hear because going back to the facts about muslims, we want to make sure that everyone has the perception of muslim otherness, of being foreign terrorists who are coming to this country to do nothing but bad to us. i do that that fact statement becomes critical, going back to how do we create cultures within schools that inclusive. i do want to return to social media. within the legal context it does create a very different legal

framework when we talk about trying to regulate private speech in that social network. has anyone been work in this area of social media and bullying? suzanne, you? you're smiling. >> i'm smiling because it's a constant. we know our law covers bullying whether it's physical, social emotional, verbal or happening electronically. so we cover it. the difference between having a great policy and actually making sure it's implemented is a very long road, i have to tell you. but we have it on paper and that's a start. but i do -- my hats off to the people who wrote it. they thought about a lot of things. the social media piece is interesting again. and i just want to say, it does work somewhat differently with youth than it does with adults. we again see that most kids who are targeted on social media are also targeted in real life.

it's very rarely disconnected. so what that means is that it's not that the social media is a problem, it is a 24/7:00 that they don't get away from. old fashioned bullying, you got away from when you left school. they're sort of under that feeling at any time. but a lot of social media, actually the responsibility of how kids use social media, their access to social media goes back to parents. i have to remind parents. i did a lot of parent talks. the schools did not give your kids those phones. they don't issue those. we do. i as a parent gave my kids their first phones. how we talk to kids about how to use them, how to stay safe with them, what they should be used for is really part and parcel. we have to work with our schools on this stuff. but it's a really much more complicated conversation. right now all we have is sort of the input of we know when

something goes really wrong and social media has a piece to it. we're trying to figure out how to punish that piece and that's really all we've been able to accomplish so far on that. but we need to step back and think about it in a much larger context. social media is, as you mentioned, i can't keep up on what app or what my kids are doing. my kids are in college. i'm not going to try. but i know it's an extension of who they are. part of their personality is in their social media profile. and i can't stop that. i need to help them become good digital citizens, help them understand the consequences of behavior, help them understand how to be safe themselves. there's a lot of things they need to be thinking about because we're not going to stop social media from happening. >> one thing that i'll add there, and this is something that we did a few years ago, not related to bullying but we did a report called click here to end

hate. and it was an effort for -- we do a lot of work with social media companies. muslim advocates is based in san francisco, in the bay area. and you know, what that report highlights is, you know, what you do if you feel that, you know, there's hate speech, how to report it and what to do and where to click and how long should you wait for a response. and there have been several instances where in the past year alone where there will be -- there was a picture of a woman wearing a hijab in a walmart parking lot. somebody took a picture and wrote hateful comments about her. it was flying around. turned out to be a meme. she didn't know about it. somebody pointed it out to her. isn't that you. somebody had taken that photo of her. with our relationship with the social media companies were able to not just click here and have

it taken down, we went straight to the social media companies and got it taken down right away. there are also ways to combat that once it's out there and that's what we try to do because sometimes it's not fast enough. we see how quickly these things spread like wildfire, hundreds of thousands of shares quite quickly. we've been trying to navigate that as well. >> is that something that parents could easily -- >> the report. it's not -- and i can certainly share the report with you. it's not something that's specific to bullying or specific to anything in particular. but there are these variety of categories, i'm embarrassed to say i only know how to use facebook. there are so many others out there. when you click on the drop down, i don't like this post because and there's different categories for it. we're working on the categories, particularly if it's hate

speech, or it's my picture and i didn't ask for it to be up. getting them to take swift action on those. >> a lot of this is emerging as an issue. so you know, a couple of weeks ago we were just talking about this, to brenda's point, right before the panel that there was a young boy who was beaten up, who was bullied and had quite really, you know, sort of physical harm done to him. it wasn't just verbal bullying. and i feel like with that story going viral, with other stories like it going viral, a lot of studying -- so to the point of are there studies, is there data. i think there's a lot more studies that are being done now of the ptsd, of the -- you know, what is the psychological impact to your point of seeing these images, seeing the stories on

social media. and how that's impacting -- and so i think that, you know, facebook and twitter and other social media platforms are coming out trying to be, sort of cool saying we're seeing that this is a problem. but it's sad that it's happening after, you know, these sort of horrible acts have occurred. and i think that it also begs a larger question, and i'm definitely not going to field this. i'm going to toss it to my right. this issue of sort of free speech and chilling free speech. in the bullying context it may be easier for people to understand because children are children and there's different standards. whereas, you know, we're seeing a spike in hate speech amongst adults which is leading to hate crimes. so just to reference for you guys, there's a center for the center of hate and extremism out of the california state university and they just issued a study a couple of days ago on -- they did a recent 20-state

study of hate crimes. and i won't -- it's a little political. but after a very widely known political candidate tweeted something at 1:47 p.m. on december 2nd after the san bernardino attacks, they saw that there was an 87.5% increase in hate crimes against muslims in a five-day period. which this attorney, his nape is robert levin, is citing -- brian levin, excuse me. he is citing that he believes there a direct correlation between that tweet going viral and the impact on hate crimes. but he also says this is an emerging issue. the university is going to be a lot more detailed study on what that nexus is. we're talking about bullying but then we're talking about killing free speech and social media. i think it's a really

complicated legal question. >> did you want to add anything? >> you want me to try to handle that? so there are two bodies of law to think about in that context, and the courts have recognized. one is liable and slander. if you say something untrue about somebody and it harms them, you can be sued and they can recover damages for that. and if they're a public figure the standard is much higher and it's more complicated to succeed in securing damages. it's a pretty unsatisfying remedy because the court won't restrain the speech prior to it being made, the court will give you money afterwards, after litigation and a long process and what have you. the second, to what extent can you criminalize the kind of speech that causes harm. and the courts have been extremely reluctant to --

because of the first amendment, because of the difficulty of trying to wade into the area of trying to understand when someone's speech has a damaging effect in a nonlibelous kind of way on the hearer of that speech. and the court is really focused in on those -- when one speaks that one does it in a way that creates a threat. so you can't -- you're not permitted to threaten to harm someone else. the laws recognize that there's an injury that occurs to you just by being fearful that someone is going to hurt you. so if you -- it's called truth read doctrine. if somebody says something online or to you in person or writes you a letter and a reasonable person reading that would believe that that person is going to carry out that threat in some way or another,

and you subjectively believe that that person may carry out that threat, then that could be criminalized and it's also subject to liability in civil proceedings. we were talking earlier, i litigated -- i personally didn't litigate it, but the team of folks i was working with litigated the issue in a slightly different context. we represented a doctor who provided abortion services in topeka, kansas. and one of the anti-abortion activists sent her a letter that says, you know, you should be careful going forward because, you know, you should look under your car every day because there may be a bomb placed -- she never said i'm going to put a bomb under your car. but she says you should be careful and look under your car every day, there may be a bomb and you should pray for your redemption and what have you because you never know what's going to happen. >> the court originally threw out the case. saying its not a true threat. her defense is i was being a

christian woman because i was warning her that there may be some risk to her. the woman who wrote the letter to the doctor also was good friends with scott roeder, and he is serving life for murdering an abortion doctor in topeka, kansas. she visits him every week. the doctor knew this. the court of appeals said under those circumstances any reasonable person could see there may be a basis for which would be fearful that the threat would be carried out, whether she intended to carry it out or not is irrelevant. whether or not a reasonable person reading the letter, knowing the circumstances it might be carried out. and the doctor had a subjective belief that it could be carried out. that was a true threat. so in these circumstances where somebody is encouraging violence in a way that you -- a reasonably objective person may

saw the violence could be carried out and the receiver of that worry that it the violence could be carried out against them, that's that's under the law. that's the extent of the law. in circumstances where there is a specific target in a specific sort of threat, it doesn't have to say i am going to do this to you. it doesn't have to say i am going to do this for you. it is a reasonable objective basis for doing that. and that's where the courts have bumped up against the first amendment and where they're sort of drawn the analysis. >> i want to shift a little bit. i think we've been spending some time talking about protections for students whom are being bullied, having represented students who were alleged to be bullying, and school systems suspending them and attempting to expend and suspend them. how should we be balancing this? we keep talking about children.

i think we forget that part of the equation. suzanne? >> i would -- i will jump in here because the old-fashioned method of addressing bullies in school is you find the bully and punish the bully and that meant suspension and pushing kids out the door. i will tell you that is not only remarkably an infective strategy for addressing bullying, it has done a trem plen douse part to increase the school to prison pipeline. we've pushed back very hard in the work that we're doing in the city to actually not be in the discipline frame but but in a public health frame. and we know from the research that really what makes a difference for kids is that you change the behavior of the kid who's being aggressive. and kids are being aggressive for an unmet need. there's an underlying reason they're behaving that way. it could be honest to god many many different underlying reasons they're behaving that way. one could be they're watching too much political coverage and they're hearing the words and mimicking them.

there could be more serious reasons why they're acting that way. we're pushing back saying with the kid that's being the aggressor, let's find out what's going on and change the behavior. that's really working around, you know, developmentally, that looks different with little kids, versus middle school and versus high school kids. empathy is good across the spectrum. we know now from the research that we've done a tremendously bad job in addressing the kids who have been targeted and they are the repercussions whether they know it -- i don't disagree with you that it can have harm even if you're not categorizing it as harm. we've done very little to attach our kids' safety and belonging in that school building or where ever it is so they start thinking it is about them and they start seeing themselves as the person that will always be

os stra sized or the person that won't belong until we break that cycle, they're actually at much higher risk for all kinds of dangerous behaviors going forward. that's where our energy really should be, in changing behavior, because we are talking about kids and i will -- i do not believe in criminalizing behavior of kids. i really do think we need to think in a developmental framework when we're talking about it. it is their job to push boundaries. it is their job to figure out where they belong and who their peer groups are, and what these things mean. we need to model appropriate behavior, teach them not just tell them what to do. but we also need to be spending a whole lot more time around our kids who are being targeted because we've left them out of the equation in all of the suspensions that we did. >> so i want to make sure that we have adequate time for questions. so i'd like to take this moment to open the floor for questions

if anyone has any questions. yes, if you could stand for us, please. >> hi. thank you all very much. everyone is really helpful. as a mom of younger children and as a lawyer, it's great for me to know about the remedies and what i can do. but ultimately my goal is preventing harm, not going to court, right? like to seek a remedy. so i was just wondering -- for me with the current political climate, part of me is this is our new normal and i have to internalize that because no matter who wins the election, this climate is not going to change overnight. so what are the strategies you discuss with parents to make sure my kids are confident and strong so that -- i can't ignore that it's going to happen because it likely will. i'm lucky to be in a public charter school that's diverse. but what are the things that you guys are working with parents 0en the ground to say you know

what? i'm going to make sure may kids are really strong and if this does happen it kind of rolls off of their back. >> we learned a lot back in the day from the gay rights movement, to be perfectly honest. right after prop 8 happened the level of aggression against our lgbt kids were really strong in california and across the country. and i think that some of the strategies were to really go out there actually and use social media on the other side. everything from the it gets better campaign to taking the bull by the horns and saying no, that's actually not our reality and we're going to create our own reality and our reality is going to look different. and we really do want to -- i think we have to think about those things. you know, as a parent, i don't want our kids to inherit this mess we presently have here.

and i think that there is -- there's a lot of connection that it can actually happen through social media. we saw this again, you know, rural kids isolated from larger communities can come together on the internet in a way they didn't have in real life. certainly for lgbt. so where we flipped the script on people and raised up in a powerful way can be some op the things that we could start thinking about right away to be doing. >> i would add -- and i appreciate your question on so many levels because, you know, i do this work day in and day out and then i have twin 7-year-olds that i worry about every day. the irony is certainly there. but one thing i'll say is that i certainly think that we can't assume that the school is aware of the fear that you have about

your child. so that's in part why we encourage parent to take our letter and share it with their pins pal or the vice principal or with the teacher themselves to let them know these are things that i'm concerned about. my kids, they're in second grade. they come home and talk about the election all of the time. they have conversations on the playground who they're going to vote for. i tell them, you're seven. you can't vote just yet. but for me it's allowed me the opportunity to have healthy conversations with my children, people can choose, we're in a democracy, you get to vote where we're going to dinner. but it gives me the opportunity as a parent to have these conversations with my children. but in part because of the climate, it wasn't until i went in and spoke to the teacher and the principal -- even though they don't have a problem. you know they haven't been bullied or anything. but letting them know that i as a parent at the school am concerned about. and i want to let you know this is the climate, most of them already know depending on where you live. i have a child in this school

that i want to make sure you're aware of the environment and some of the different ways it may manifest itself. now on the flip side, there are some other organizations that are doing really great work in terms of improving cultural competencies in schools, making sure that teachers and administrators have this greater cultural competency and are aware of what does it mean to be muslim, what are the statistics, muslim aren't all immigrant communities, they are diverse, the statistics range between 3 and 6 million. you may have one in your school. they may have a name like brenda or whatever it may be. it's something that is a really great effort. and you know, there are ways to bring those kinds of conversations to schools. and then one last thing i'll add is i met this amazing 16-year-old who has started a program at her high school in montgomery county.

it's called seek kid to kid. and what she's done is she has, because of the confusion because people didn't understand the difference between sikhs and muslim. what does it mean to be sikh, how is it different from muslim. they created a whole program around it and they talk to other students and student groups. and they talk to students and student groups. as your children get older, there are opportunities for them to own their own narrative, right? we raise them while they're young to be proud of who they are. and then you see that. seeing this 16-year-old girl start this organization to increase cultural competency, i'm sure you've met her, it was quite inspiring. and i hope -- maybe there are similar efforts by young muslim students in public schools as well. i want to share there are things you can do as a parent, there are resources that can come to your school for teachers and administrators and then encouraging our high school kids

to shape their own narratives as well. >> really quickly, i want to answer the question in a very different way. i think that -- karamah is an educational organization and we work with different marginalized groups within the muslim community, mostly women. a lot of our work is on gender equity, which is, you know, a little bit of a different -- you know, bullying is one issue of marginalization and patriarchy is another. one of the incredible tools of empowering muslim women is through knowledge of islam. what's the root of what is happening is islam is being vilified, islam is being torn down. and as proud muslims who are proud of their faith, i feel like we have to counter the narrative for our children at home so that, you know, these

voices are so loud, but i think there can be much more emphasis placed on creating a strong identity, which is not only in religious teaching of doctrine of practice and rituals which is all very important. but for example, civic engagement, it's the time for voting right now. i find it incredibly powerful for a muslim woman that the first group that ever voted in islamic history is a group of woman. that's a story that our children should be hearing. the idea of civic engagement from a religious perspective should also be a part of our kitchen table conversations in muslim families so we're countering some of what -- we're not going to able to stop what kids are hearing on the news, we're not going to be able to stop what they're getting in social media. this idea of really teaching islam and its just and equitable sort of scholarship that's being done, you can check out the website -- shameless plugs all throughout this.

but i think it's really -- i personally have found that that's been so transformative in the gender context for people who are like we don't know we had these rights. what we don't want to do is create a generation of kids who are saying i'm not out as an muslim because i'm embarrassed of being muslim or i'm scared of being muslim. instead we want to give tools for parents to be teaching kids about the legacy of islam and what to be proud of. >> question, could you stand please? thank you. >> hi. thanks for coming and helping us learn more. i'm a government paralegal. i've worked with attorneys for nine years. some things that attorneys tend to work with is hypotheticals.

for all of the panelists i want to give you guys two hypotheticals that are similar but related and i would love for the panelists to react to it. how about that? so i want you guys to imagine any public school and i want you to imagine three students kadeesha, a young muslim, any age, ali, background immigrant american born whatever and then think about bill, nonmuslim student in the same context. i was really moved by you guys' comments about whether or not kids have internalized and absorbed muslims are terrorists so it's okay for me to be called a terrorist. i want you guys to think about kadeesha being called that and being emotionally affected by it. and i want you to think about ali being called that and ali

being yeah like whatever, just like your cousin was. it's no big deal. everyone calls muslims terrorists these days. then think about bill, not muslim, not understanding the same background and just sort of feeling like why is kadeesha so upset. i don't get it. i would love to hear you think about and talk about what happens in our community where you have these two muslim kids and they're interacting with each other in the schools or in the muslim community outside the school and one kid thinks it's no big deal, another kid is emotionally affected by it. what i'm trying to get at is empathy building and emotional intelligence skills and how this is going to affect muslim youth. the other hypothetical -- flash forward 20 years, all of the

kids are 20 years old, they're in the workplace, they've had this situation, i'm 20 years older, i'm still in the workforce and i would love to have you guy think about what all of this will do for people my age, people their age 20 years in the future as members of the workforce and as employees. it's a lot. i'm not worried. you guys can handle it. >> suzanne, i think you touched on this a little bit -- >> it's wonderful hypothetical and it happens every day. and i've seen it with lots of different sub groups of kids. and one of the great parts about my job is i do focus groups with youth all of the time to talk about what's -- what's affecting them. i think that it does again default back to kadeesha needs to be told it's unacceptable and she needs to be validated and she needs to be, she needs to be

assured that the kids aren't allowed to keep saying that. so we really do need to address it. but we also need to pull back. what's going on in the school -- jonathan you said it best -- that makes it okay that this happens. we need to make it socially unacceptable. there are consequences for how we talk about things. the difference for me i don't want to criminalize it and i don't want to assume that i know what the consequences for everything is. i really do want us to be thinking about -- we seem to be going in cycles where we'll think about one particular subgroup at a time instead of stepping back saying how do we create a place where everybody, whether you -- maybe bill has some issues. i don't actually know. how do we create a language and consistency around that where everybody's individuality is actually validated.

and that's a much harder piece of the work but i do -- i listened to the same panel and that young girl is awesome. and i hope we all get to vote for her some day. everything about her was phenomenal. but the fact of the matter is that she's again in that position of recreating the wheel where, you know, this week it's this subgroup and this week it's that subgroup. when do we step back and help ourselves see that i can't predict who it's going to be but i can promise you there's a very small native american population here in d.c. but that football team really does undermine a lot of kids safety and security. i want that addressed at the same time. that pulling back to me is how do we really help all three of those kids go forward saying, yeah, that might have happened but that was not right and that's not the environment i want to have going forward. >> i'm going to jump in and try

to deal a little bit with both of the last two questions. i don't have -- i have the privilege of not having to have that conversation with my kid. but i have a different special obligation because i have that privilege -- >> what kind of privilege is that, jonathan? say it. >> the old white guy privilege? >> there you go. the thing i love about him, he acknowledges his white privilege and uses it for good. >> well, i make mistakes just like everybody else. but -- so -- and you know, there is -- so there is an obligation that i then have of modelling the behavior so that bill sees somebody who says that's not okay. so bill understands through the experience of seeing somebody say what happened is not okay. and i sort of -- i'm going to test -- push back on the premise because i don't think -- i don't

remember the name of the boy. >> ali. >> ali. he may not think he's being harmed by it, he may not even believe he's being harmed. he's being harmed. right. so having some -- my obligation then as a parent is for my daughter to see that i don't stand -- people do bad things. it's easy to silent about it and not intervene and try to make a difference because there's consequences to trying to, you know, some of my privilege i have to give up and i have to, you know, expand that privilege on things. and for my daughter to see that i do that and build in her to be a human being that will do that as well i think is a critical piece of change. it is something that i think we all have to think about. and i thought of it in the context of the debates. we're not saying the names. one of the candidates said

something really horrible -- people saw guns and stuff and this counter factual kind of statement, and then the other one said -- didn't actually dispute the facts although she should have but went on to say something that was extraordinary because it was the progressive answer which was we need to build relationships into the muslim community so that we have better intelligence and all of that sort of stuff. dylan roof walked into an african-american church in charleston, south carolina and nobody said why didn't the white community and tell us that dillon roof was going to do that. it's the sense of unreality about what a community is and what it means and how people are and that there's difference in the separation and stuff that you're talking about. and so -- and it was sort of -- i was watching the debates alone. my wife and daughter refused to watch the debates because it made them crazy.

i started yelling at my computer but i realized there is nothing else i could figure out to do. that's the stuff that's on me in this room. it's too bad there are not many people like me sitting here in this room tonight because that's who we need to be talking to. i have an obligation -- as dr. carmichael said, white people should be talking to white people not black people about racism. that's important for us to remember. >> i think the only thing i would add to this is sort of a more sort of anecdotal story about my sister. because she is the 20 years later. we grew up in a small town outside of detroit. in the '80s she was on a school trip. this is when there was a spate of hijackings to airplanes, and they were going to florida on a plane. and the chaperones joked around, you know, oh, is your uncle going to, you know, hijack the plane?

and this was on the way to their school trip. and you know, when i look back, my parents' response to that was, we packed up. we moved to ann arbor, which is a much more progressive -- so, i grew up in a bubble. my sister did not. so, she spent her first, you know, all the way through seventh grade growing up in an environment where she was the only muslim, the only person of color in her entire school, the entire elementary school. and she grew up in a very different environment than i did. and it's funny now when we talk about these things, because you know, she grew up in an environment where she didn't feel empowered to say something, right, because she was the only one. she didn't have allies. she didn't have classmates that were there supporting her and helping her sort of get through things. and my experience was very different. i grew up in a bubble where even to this day, you know, and maybe because of social media, my elementary school friends and high school friends are so supportive and what can i do.

i have a friend who teaches now in guatemala who e-mailed me, asking me, what can i talk to my students about, you know, anti-muslim bullying in students and what happens in america, right? and that's kind of the true power of, you know, just being in completely different circumstances within our own family. and you know, my sister doesn't have that. you know, her high school friends are not, you know, maybe one or two of them are still her friends on social media, but you know, have very different views about muslims and islam. you know, so, i think you're absolutely right in terms of thinking about what happens then and what impacts them 20 years later. and i think if you don't do something earlier on, engaging with, you know, the families, talking with students, creating a culture of inclusivity and appreciation for diversity at a young age and a culture that

fosters empathy, what you end up with is 20 years later the same people holding those same views. and i think that's really the tragic part of it, so. >> i think we have time for one more question? yes. could you stand up, please? thank you. >> so, my name's teri thompson. i am a school and divinity student at the howard university. >> you know. >> i'm also a lawyer, so i'm going to say i agree, lawyers don't have the answers. like to believe that the faith community has some, but right now i don't think that they know what the tools are, and i'd like to hear some discussion about from an interfaith perspective, what are some of the things that the faith community can do, kind of from a more general perspective in helping to eradicate some of this.

>> i'm going to let the panel answer this, but i definitely want to piggyback on something that i should mention that i thought was really right on target, this idea of teaching children and girls in particular about how our rights are embodied in islam. and i mention that, because i reverted to islam when i was in my late 20s. and part of, you know -- i hate to intellectualize -- i always hate to intellectualize my religious journey, but part of my attraction was i was amazed as a feminist about the rights that the religion bestowed on women, i mean, women in 1890s were just getting the right to own property in new york. islam in 7th century arabia was giving women the right to own property. so i do think from the faith-based community, doing exactly what i should mention, teaching and perpetuating and instilling the gender-equitable

principles of islam and for other faith-based communities, understanding those commonalities that we often talk about when we do interfaith dialogue and interfaith kind of programs. but let me pass that question on to our panelists. >> i was just going to -- and i always appreciate the question about interfaith efforts, because that's really one area where i have seen where those interfaith relationships are built before hate crimes happen to see how communities come together, communities of faith come together. and really, for the overall, you know, everything in communities, you know, not just interfaith issues, but you know, broader sort of social issues within a community that can be resolved through, you know, communities coming together. but one thing i wanted to add is that in recent months, every single time there's been a hate crime against a house of

worship, almost always the first people to show up are interfaith partners. a mosque was vandalized last week in new jersey. before prayers the next day, you know, interfaith partners were there scrubbing off the hateful rhetoric, you know. and we've seen time and time again where there are armed protests that take place outside of mosques. the first people that are standing there hand in hand to protect, you know, young children going to pray or protect the congregants that are going in to pray are interfaith partners standing there saying this is not what our community stands for. and that really shows a true symbol for muslim communities that, you know, this is not what america stands for. and so, in moments where it's easy to feel as low as possible when you come to your mosque and you find feces smeared all over it, when you see the community come together, and in large part, it's interfaith communities that will come the next day, clean with you and

tell you this is not who we are. that's really, you know, it's truly beautiful, and that truly gives hope after such, you know, tragic attacks. >> so, i love this idea -- unless someone wanted to add -- i love this idea -- i know it sounds very kumbaya, but ending on this concept of hope. so, if we can end there and please give our amazing panelists a round of applause. [ applause ] i do have a few announcements that i'd like to make. those of you who are not familiar, we invite you to become members. conveniently, we are here and prepared to take your membership applications. i also want to take a moment to ask -- shannon, could you stand for a moment? so, these are two of the founding members of the capital area muslim bar association. we are very fortunate that they had this vision to pull us back together so that we can begin to

address the issues that we are seeing that are so prevalent in the muslim community. so, i thank you both for your vision and your work. [ applause ] we have a few upcoming events. on november 3rd, we have an election and opportunity to meet some of our amazing board candidates. please go to our website so you can see all the events we have going on. november 14th, minority flight: why women of color are leaving law firms and how to turn the tide. that's co-sponsored with the women's bar association. we have fliers out front that lists some of our other upcoming events. again, i encourage you to get involved. courtney dunn, thank you again for your involvement with the american bar association. thank you all for coming. we appreciate you. [ applause ]

c-span, where history unfolds daily. in 1979, c-span was created as a public service by america's cable television companies. and is brought to you today by your cable or satellite providers. a live look at the u.s. capitol where the senate remeans in session. they have until midnight tonight bypassing a temporary spending bill that was approved earlier this week by the house. west virginia senator, joe manchin saying it doesn't go far enough to provide health care benefits to 16,000 coal miners. they expire april 28th, which would be the next deadline for another spending measure, should this pass. the house has finished all lj l -- legislative for the week, so any changes to the spending bill

would require the house to come back into session for another vote on the bill. right now, you can watch the senate live, on c-span 2. follow the transition of government on c-span. as president-elect trump selects his cabinet and the republicans and democrats prepare for the next congress, we'll take you to key events as they happen, without interruption. watch live, on c-span. watch on demand at c-span.org or listen on the free c-span radio app. president-elect trump continues his thank you tour today, with a visit to grand rapids, michigan. it is one of several stops in states that won him the electoral vote in november. watch his rally live, 7:00 p.m. eastern, on c-span. michigan representative, john connieriers and other democrats lawmakers held a forum

on capitol hill, after the most recent results of the presidential election. this is just over two hours. the committee will come to order. good afternoon. i want to begin by thanking the members as well as the panelists, all of whom are present for participating in today's forum on the electoral college. we're holding this panel because recent elections and public sentiment have made it clear that there are serious problems with the present system for

electing our president and vice-president. we begin with the fact that hillary clinton received more than 2.5 million more popular votes than donald donald trump. the largest divergent between the popular and electoral votes in our nation's history. this constitutes the very definition of anti-democratic in my view. under our current system, the votes of millions of people in non-swing states are effectively lost when they vote for the candidate who loses their state because all of that state's electoral votes will be given to the other candidate. this is why members of congress over three years -- over the years have introduced more than 700 proposals, 700 proposals, to

eliminate the electoral college. this is why 11 states accounting for 164 electoral votes have entered an interstate compact to cast their electoral votes for the popular vote winner. and legislation to enter the compact has been passed by at least one legislative chamber in five more states. and this is why a recent gallup poll showed more than 60% of the voters support direct popular election for president. we also must face up to the cold reality that the electoral college is rooted in slavery. and here's how that works out.

as professor amar explains to us, slave states opposed direct elections for the president because in a direct election system, the north would outnumber the south who many slaves could not vote. but the electoral college instead let each southern state count its slaves although with a two-fifths discount. they accounted for three-fifths of a person in computing share of the overall count. now, the arguments in defense of the electoral college on the other hand are in my view somewhat ana charonistic. electoral college defenders say that it serves to check the passions of ordinary voters. yet the framers did not account for the rise of political

parties when creating the electoral college. in fact, the electoral college today serves to aggravate those passions with most of our citizens told that they're living in either a red or a blue state rather than part of a single indivisible union. helps protect small population states in rural areas from domination by large population states in urban areas. in fact, under our current system, candidates overlook most states, large and small. and instead focus most of their time, it seems to me, campaigning in only a few of the so-called swing states. it has also been argued that the

electoral college serves to correct poor decisions by voters at a time when they were relatively ill informed because of nationwide communications were poor, literacy rates were low and the nation's political system was undeveloped. today, of course we live in an era of instant mass communication. high literacy rates. and a robust and sophisticated political system. most importantly, i want everyone in this room to understand that today's forum is not an isolated event. rather it is part of an ongoing process that could lead to change and reform. whether that change will come through a constitutional

amendment, an agreement between the states comprising 270 or more electoral college votes, or a subsequent interstate compact approved by congress. i cannot say and probably none of us can. each of these options presents important political legal questions. and i look forward to exploring them with you today. but i can say the change only comes when we have discussions such as today when states experiment and take action. and when the people become directly engaged. as a member who cares very deeply about the future of our democracy and the principles of one person, one vote, i very much intend to remain engaged in

this move -- in moving this issue forward. and i hope that all of you will join me in that activity. i want to now recognize, i think the distinguished gentleman from new york, mr. jerrold nadler, who has worked on these and other constitutional questions quite diligently. >> thank you, mr. chairman. i am pleased to join this forum on the electoral college in the future of american democracy and to hear from our distinguished panelists. i believe we must move away from the electoral college as it currently operates system guarantees the winner of the popular vote actually becomes the president of the united states. it shouldn't really be considered a radical idea. this is a matter of crucial importance to our democracy. and the good news, it's considered elementary in every

other democratic country in the world. only here is it novel. the good news is that there are practical steps we can all take in our own states that could reform the electoral college and make a real difference in how the president is selected. as you know, the popular vote different from the electoral college vote in just three times in the 19th century. the last time then was in 1888. the electoral college did not differ from the popular vote again until 2000. 112 years when it didn't make a difference. so we as a nation got complac t complacent. we figured it was a relic but didn't matter. vice president al gore won the popular votes by about 5,040, but lost in the supreme court and awarded florida's votes to then-governor george bush by 537 votes. this year just 16 years later hillary clinton won the popular vote by 2.5 million votes.

2.5 million votes, and counting. but lost in the electoral college. the electoral college seems to be getting more disconnected from the popular vote. we didn't have to worry about it for 112 years and suddenly twice in 16 years and 2.5 million vote difference we are getting dangerously less democratic with a small d. it is time we got rid of the distorting influence of the electoral college on the popular will. some proponents of the electoral college argue that it is necessary to protect smaller states by giving them an outsized influence. however, the small states already protected inso far as they need protection by having outside influence in the united states senate. by each state guaranteed two votes. wyoming was 600,000 people has the same two senators as california with i think 39 -- i don't know, 25, whatever, how many million. there are 53 seats, probably about 35 million people. and they don't need extra protection in the electoral college as well.

in addition, the difference between the population of the small states and the large states today is much bigger now than it was when the constitution was written. we've gotten to the point where about 20% of the population of the united states can elect a majority of the united states senate. that's ample protection for the small states. we must also remember that the electoral college was designed to enhance the power of slave states. the southern states although they gave absolutely no rights obviously to slaves had their slaves counted as three-fifths of a person when it came to determining voting representation in the house. and therefore in the electoral college. that motive although obviously no longer operative should not influence anything today. the other reason the electoral college was created was to protect us from democracy itself as well as from poor communications. the founders feared direct democracy. today we don't believe we need protection from democracy. and we are to move to a system that elects the president by popular vote. obviously, asking states that are benefitted by the electoral

college to vote three-quarters, two-thirds in the senate and house and three-quarters legislatures is to ask a lot. but we don't have to do that. we have the national popular vote initiative. i was proud to play a role in ensuring that new york state a few years ago joined the initiative. and i think it makes sense to continue to pursue this method to render the electoral college moot. this method is an interstate compact and states with 270 more electoral votes agree that once 270 votes worth of states ratify that their electoral votes will be awarded to the winner of the national popular vote. this seems to me the way to go. whatever it takes, it's time to move past the electoral college and empower the voters, all the voters in this country to choose our president. let me say one thing a little off this. president-elect trump said that -- well, or maybe it was on his behalf, i think he said it himself, when it was pointed out

he didn't have a mandate, that he got 2.5 million votes fewer than hillary clinton, he said, oh, if it were the popular vote i would have won the popular vote because i would have campaigned differently, i would have gone to some of the bigger states. he may be correct. obviously, if the rules of the game were changed, campaigning would change. and maybe that would have overturned that 2.5 million votes and maybe not. that's unknowable. but the fact is that's what ought to happen. that's what ought to happen. the majority ought to rule in this country as in every other country, as in every other democratic country. i cannot think of any real or practical reason any longer to keep the electoral college, so i hope we'll proceed with reform. and i commend the chairman for taking initiative to call this hearing. i yield back. >> thank you so much. i'd like now to call on the distinguished gentleman from tennessee, the ranking member on the subcommittee on the

constitution steve cohen. >> thank you, mr. chair. and thank you for calling this hearing. it's important that we discuss these issues particularly as we look upon this past election. and the coming vote of the electoral college. i have introduced recently hj rez 104 which would amend -- on the electoral college and call for direct election. it is hard for people to fathom that at such a large plurality, 2.5 million people voted for one candidate and she is not the president. since i introduced my resolution, i have had quite a bit of comment on facebook, on twitter and with letters to the editor. it is amazing that most of the people that have responded have been against the proposal and that they consider these are most of the people who supported

the candidate who was the p populist and going to drain the swamp, but in their arguments they argue that allowing direct election would be the tyranny of the majority. and that you would let the rabble rule. well, it's ironic that their presidential candidate was kind of just the opposite. he was for the common man. he was for draining the swamp. and he was for changing things in that regard. the tyranny of the majority they talk about is kind of hard to fathom. and oftentimes in our courts give us these rights although sometimes the bill of rights does and sometimes the congress does, and legislatures, but mostly it's the supreme court that protects minorities from the tyranny of the majority. and yet most of these folks that respond to me, and i check them out pretty close before i give them a bruce willis audios, they are not for most of those supreme court decisions that protect minorities from the

tyranny of the majority. so people seem to take their arguments based on the outcome. and i'm not pleased with the outcome. but i do know that intellectually the electoral college is an akronistic provision. it might have served well in the late 17 and 1800s, and while the founding fathers, all spelled with capital fs and wonderful gentlemen and i think the world of jefferson, he and the other founding fathers were not perfect. and they did have the three-fifths compromise. they did deal with slavery being a legal institution in this country and chose not to repeal it. they didn't give women the right to vote. and they didn't give people the right to elect directly united states senators. they believed in their power and that there was an ars tock ri si, most groups they don't like to see it changed.

so they make it difficult to amend the constitution. and while they made it difficult, and this would be a difficult process to achieve through constitutional amendment, jefferson said, i am not an advocate for frequent changes in laws and institutions, but laws and institutions must go hand in hand with the progress of the human mind. as that becomes more developed, new lightened, new discoveries made and manners and opinions change, with the change of circumstances, stugs must advance also to keep pace with the times. we might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their bar barous ancestors. so they did understand it, but they made it very difficult. very difficult. mr. nadler talks about the process where states could get together and had their candidates' electors pledge to support who won the national vote. another thing states could do is to have the electors be by

congressional districts. because when you have the electors by congressional, that would make it a little bit more democratic. it would make it better and make candidates come to your state. they argue now that small states would be ferreted out and you would have new york and california decide everything. well, i think most of these people that write this don't want new york and california people to have any say whatsoever. but they're americans. even if they live on a coast. and even if they live in two of our greatest states, they're still americans and their vote should count the same as somebody in south dakota or wyoming or montana. and none of the presidential candidates kbo go to those small states. in reality all of the campaigning is done in those battleground states, which are not small states. and where do they have their rallies? in pennsylvania, virginia, florida and ohio, the big ten. not the small states. i yield back the balance of my time. >> okay. there isn't much balance left. >> i learned that from you, jackson lee. >> i am pleased now to recognize

the distinguished gentleman from virginia, bobby scott. >> thank you, mr. chairman. and thank you for calling this. this is, i think, a very timely issue as there's been a lot of discussion about the electoral college since the electoral college went one way and the popular vote went the other. i think the discussion needs to be there are a couple of kind of anomalies, one is this faithless elector. i think we ought to just talk about whether or not we're going to score by winning states or by a state popular vote. can be taken care of independently. but i've been little disturbed by just the fixation on the mathematical curiosity that you could win the electoral vote and lose the popular vote. of course if it's close there's a good chance one will go one way and one the other, but if you've already set the rules as you're winning by state, then that ought to be what you are considering. i mean, you could win the world

series. you could lose the first three games 10-0 and win the next four 1-0, you've been outscored 30-4 and still win the world series. so nobody thinks there's anything curious about that because you're winning -- you won four games. and so i think we'd rather than fixate -- being fixated on the mathematical curiosity that you could win one and lose the other, i think we ought to look at what happened if you went to a straight popular vote and how that would change things and whether or not that would be good or bad. one of the things i would point out that might not be a good thing is trying to do a national recount in a very close election. it's my understanding that during the florida recount in new york and texas they found boxes of uncounted votes. well, wasn't enough to change the direction, but if that was the national recount, you'd have to count those empty boxes. you can imagine a very partisan

secretary of state certifying the election results where more votes were counted than they had registered people. now, what are you -- exactly how are you going to consider that? election laws are not the same all over the country. but one of the things about the electoral college is it requires you to get support in a state weighted basis in more than -- in a majority of the states, weighted by population. a regional candidate doesn't have much of a chance. you could run up the score in one area. it doesn't help you because you've got to get support -- you actually have to win states in a majority of the states. what affect would a straight popular vote have on regional candidates and third party candidates on the idea that you could win on a plurality possibly without winning any states? so very few states. i think one the congressional election i would take issue with my friend from tennessee, you

could win virginia, pennsylvania, ohio, michigan and florida, win all those states, and end up with a substantial deficit on congressional districts just because of gerrymandering. we're not electing our president based on gerrymandered congressional districts. i hope we wouldn't go there, but generally how would campaigns be different? friend from new york mentioned mr. trump said he could have won the popular vote because he would have campaigned differently if that's how the score would be. he would have in states where he has a huge majority he would have just spent time running up the score and possibly change the election. is that a good change or a bad change? so rather than just recite the mathematical curiosity that you could win one and lose the other, i'd hope the panelists will tell us how the campaigns would be different and whether or not the difference is a good thing or another. toipt thank all of our witnesses for being with us today, especially my freshman roommate

from college, professor kessar. thank you. >> you're welcome. and thank you. we're asking the members of the panel to reduce their introductory comments to two or three minutes because it keeps getting larger and larger. next is zoe lofgren. >> thank you, mr. chairman. unfortunately i'm going to have to leave in a few minutes, but i think this is a very important discussion. coming from california i'm mindful that the votes of my constituents count one-third as compared to a wyoming resident. and looking ahead for the stability of our democracy, i don't think that is a sustainable model. that my constituents will be ruled by people whose votes

count three times as much as theirs. that is aggravated by disparity in taxation where california, for example, pays more than it gets in services from the federal government whereas some of the smaller states whose votes count three times as much as my constituents actually are net recipients of federal tax dollars. you know, this is barely sustainable today, but if you look 50 years in advance where the bigger states are getting bigger and the little states are losing population, i don't think we can sustain our american democracy by having the majority ruled by the minority. and so the question is how to fix this since the constitution is written in such a way that it's almost impossible to amend. there are two things that i think i hope the panel will address and i will get a full

report. one is dr. koez interstate compact idea and whether the compact can avoid interference by the house of representatives in the senate. and the second is the issue of the constitutional convention. we are three states away from calling for a constitutional convention. it's something i've always been opposed to. you cannot limit the subject matter to a single subject, the balanced budget amendment. but i'll say because of for the second time in 16 years the people, the american voters elected did not in fact become president, rational people, not the fringe, are now talking about whether states could be separated from the u.s., whether we should have a constitutional convention. and i think as time goes on that is apt to become more the case unless we here can figure an answer to preventing the

majority from being ruled by the minority. and i thank you, mr. chairman. >> i thank you, ma'am. i'd like now to recognize the gentleman from rhode island, mr. david cicilline. >> thank you, mr. chairman. and thank you for convening this forum on this very important subject. and i particularly want to welcome our very distinguished witnesses who have studied and written extensively on the subject of the electoral college. and welcome you and thank you for being here and being part of this discussion and particularly to welcome our newest colleague, jimmy rascon, who i know has done extensive thinking on this and writing and we look forward to hearing his comments of course. i'm proud to say that rhode island is a participant of the national popular vote compact to ensure that participant states pledge their electoral votes to the candidates who win the national popular vote as congressman lofgren just referenced. so i'm proud to be from a state

that recognizes the importance of this. what i think is troubling for so many americans is, you know, we recognize this basic fundamental principle of democracy, and that is the right of citizens to elect their own leaders. and of course implicit within that is an understanding that every vote must be counted, that no one's vote will count more than another person's vote. these are sort of basic principles of democracy. and of course the electoral college distorts that in so many ways. and so i think one of the things i find particularly challenging is it's very hard to explain this to young people who don't quite understand why it is that all this stuff they've learned about with one person, one vote and everyone's vote counting equally why that actually doesn't -- is not actually the way that we elect our president. and then we have examples in our lifetime of people who have won the popular vote or choice of majority of americans does not become president. this is very challenging to explain to folks. i think it becomes even more

difficult when we think about our work internationally. you know, we do a lot of work to promote democracy and governance and to be an example to the world in a variety of different ways, and it's hard to explain that we in fact in our own country don't have a system which allows people's votes to be counted equally in electing our own president. so i think this has really serious -- raises very serious concerns in the long term legitimacy of our own democracy if we don't elect our own president by one person, one vote. but i think it also impacts the work we attempt to do, the good work we attempt to do around the world. i thank you again, mr. chairman, the opportunity to discuss and welcome the panelists and thank you for the work you're all doing. i yield back. >> thank you, mr. cicilline. i now turn to mr. hank johnson. >> thank you, mr. chairman. i want to thank take this

opportunity to discuss and i want to welcome the panelists and i thank you for the work you are doing. i want to thank you for this hearing. this is the first one that's occurred since 1997, so it's been about 20 years since congress has addressed this issue with a hearing. and since that time we've had two instances where suicide for president have been elected based on the electoral vote after having failed to garner the majority of the popular vote. prior to that, it was over 176-year period between 1824 and the year 2000 that produced three such anomalies. and so it appears that time, the process of time, technological advancement, all of these things are playing into the acceleration of this phenomenon where the people go to the

polls, vote and then their popular vote does not translate into victory for the candidate that they voted for. this is anti-democratic. it's hurting our democracy. people expect more. people expect direct representation. that's a fundamental principle that people expect. not a whole lot of people pay a lot of attention to the electoral college system. particularly since back in 20 -- or back in 1913, the constitution was amended so that we could have direct elections of united states senators. if we had not passed that amendment, people would -- this would be unacceptable. as it is unacceptable as more people come up -- come to the notion -- or come to the conclusion that their popular vote did not produce the winner

in the presidential election. so it's time for us to get to work to change this system so that the people's will is achieved. and that is for them to be able to depend on their popular vote to win an election. and so i am looking forward to the comments of the panelists. and with that i will yield back. >> thank you, mr. johnson. incidentally, everyone on this panel is a member of the judiciary committee with the exception of mr. gene green of texas. oh, bobby scott is an ex-member. yes.

he's here by virtue of his very -- yes, emeritus is the word i'm thinking of right now. thank you so much. i am now going to turn to the gentle lady from california, miss judy chu. >> well, i want to thank ranking member conyers for holding this important forum on the electoral college. in my home state of california, the popular vote dramatically went for secretary clinton, while some ballots are still being counted leaving opportunity for the gap to widen even further, recent vote tallies show that clinton received nearly 8.7 million votes to trump's 4.4 million. so the difference comes out to 4.2 million votes in hillary clinton's favor. what does it say about the electoral process and the legitimacy of the election results when one of the world's largest centers of economic activity and innovation and one

of the country's most pop yu list and diverse states, california, favors the losing candidate by a margin almost equal to the amount received by the winning candidate? obviously something has to be done about this electoral college. and i look forward to hearing from the panelists what can be done to change it, what is feasible, a constitutional amendment or the national popular vote interstate compact. we need change. and i look forward to hearing from all the panelists on your thoughts regarding this subject. >> thank you very much, judy. we now turn to the gentleman from texas, mr. gene green. >> thank you, mr. chairman. thank you for allowing me to speak even though i'm not even an emeritus of the committee. but i do hold a law license. thank you for having this hearing. my name is gene green, i represent a very urban district

in houston, texas. and my colleague, congressman lee and i are neighbors in houston. i have the honor of representing a district that's about 76% predominantly hispanic, in our community mexican american, northeast and south side houston. our common complaint at home is that my vote when we talk about people voting, your vote counts. well, it doesn't count in our district for president. hillary clinton carried our district over 70%. and yet no matter how many more people we turned out would not make a difference in the electoral votes from texas. and that's the frustrating. this is not the first time i've introduced this resolution. after 2000 i introduced it in over a number of years and hopefully i was hoping this wouldn't happen again, but we see what's happened. that's what's frustrating. last month secretary clinton and senator kaine received 72% of the vote in our district.

43% statewide making closest race for vice president and president in texas in 20 years, nevertheless 100% of those votes texas electoral votes all 38 went to donald trump and governor pence. naturally secretary clinton is currently leading mr. trump by 2.7 million, but mr. trump is expected to receive 306 electoral votes. i don't hold out hope that there will be any change in that. and that's why i think the electoral college is outlived its usefulness. we know the history of it. there were a lot of compromises just like we do every day here in congress that may not last for 100 years, much less 200-plus. and nowadays i think we ought to be able to have people's vote counted whether in urban houston or urban new york or even central valley california that may be predominantly republican. that's why i think the abolishment of the electoral college is if we can trust the people to vote for members of

the house by majority, we changed it instead of our state legislators selecting our u.s. senators, we changed it where it will be a majority vote 1913. i think we can trust the people with electing the majority who would vote -- who would elect president of the united states. and, mr. chairman, i'll submit my full statement into the record. but i just appreciate the time today. >> thank you, sir. and now we have the distinguished gentle lady from texas, miss sheila jackson lee, pleased to recognize her. >> mr. chairman, thank you so very much. i thank you for your courage for holding this hearing and for those of you who are present, as well as i'd like to mention the congressional progressive caucus because we are joined together. as my colleague from texas said, voices can be extinguished and our silence to the electoral

college structure which i join with a number of voices in asking for its abolishment, let me also say that i will be calling for official hearings both in the house and senate. i hope there will be sufficient courage to go ahead and address what i think is an indictment on a democratic system of which the world looks to the united states for its integrity. i would offer two examples that elections have consequences. one of which of course is the most famous with rutherford b. hayes and samuel tildon, 1988, samuel tildon outpolling rutherford b. hayes. and of course we know that was the compromise of which fell on the backs of freed slaves who were at that time going through the reconstruction period. and what happened is that the south rose again. and the oppression of african-american freed men and women was turned upsidedown.

we lived a life of horror into the early 1900s because of that compromise. elections have consequences. in addition, as we see today in an election where a headline now reads, if i might, indicate that headline hillary clinton's margin is about to surpass all the trump votes in 12 states combined. but the real idea is if you would are the consequences. we now see a seeking of a waiver of a standing rule about the utilization of the military and civilian leadership being shoved on to the floor of the house. we see the threat of the repeal of the affordable care act. we see the potential for cuts in medicare and medicaid. i hope in your discussion that you will think of these things as i close, to explore the history, purpose -- can there be

order, please? to explore the history, purpose and continued utility of the electoral college. and to address the question of whether this comports with the rule of law and our constitutional framework of equality for all in the bill of rights. and i would equally want to hear from the witnesses, if i could, to reflect on the national popular vote interstate compact versus a constitutional process. i'm excited about the compact. i think it's a winnable one. but we want to do it in a way that embraces americans regardless of their party affiliation. the shoe is on one foot in 2016. it can always be on another foot at another time. let me also acknowledge, professor congressman raskin, and thank you for your leadership.

with that, i yield back. >> thank you for your brevity. i appreciate it. we also want to acknowledge and welcome jan of illinois, but we're going to move to our many witnesses who have been very patient with us. we are asking you to limit your own remarks to three minutes. and we're going to begin with professor jamie raskin, a constitutional law professor and one who seeks to join the house judiciary committee as soon as possible. and we welcome you here, professor raskin. >> thank you, ranking member -- >> turn on your mike. >> you spilled my secret to the whole world here, but, yes, it would be a great honor to join

you there. and hello to the distinguished members of the judiciary committee. i see three basic problems with the way presidential elections are conducted today. the first is that the campaigns themselves are not democratic. as congressman cohen was saying. the second is that the institutions are not republican. and the third is that the results are not ma jortarian or pluraltarian, if we can coin the word. there's a practical solution underway as congresswoman jackson lee says, the national popular vote agreement, and it arises not surprisingly from a movement of the people in the states. let me start with this. the campaigns are not democratic in character. think about what democracy means from the standpoint of your district. one person, one vote, all votes count equally, and the person who gets the most votes wins. that's how we elect governors. that's how we elect u.s. senators, council members,

mayors, everybody. except for the president of the united states. and some have said, well, if we do it the way we elect governors and senators, then some people are not going to get any attention in the process. can you imagine running for governor in your state and saying i'm only going to go to two or three of the eight congressional districts in my state. i'm not going to campaign in the others. it just doesn't make sense. but our presidential campaigns are different. consider 2016. there were never more than a dozen states in play, meaning the people living in 38 states, the vast majority of us, never saw any competitive campaigning in our states. we belong to the ignored and forgotten group of backdrop americans whose political interests and desires are taken for granted in campaigns. people living in three of the country's four largest states, texas safe red, california and new york safe blue are bypassed completely. no rallies, no barn storming

speeches, no tv ads, no field offices, no campaigning except for fund raising events to harvest money to export to other states. that's not only undemocratic, it's bizarre. aha, you say, the electoral college must then work brilliantly for the small states if not for the big ones. nope. in 2016 in our most recent five elections, 12 of the 13 smallest states, those with only three or four electors have been total fly-over country. hillary clinton did not spend any time, money or resources contesting the small red states of north dakota, south dakota, montana, alaska, idaho or wyoming. and donald trump expended zero resources competing for the votes of americans living in the small blue states of rhode island, delaware, vermont, hawaii or the district of columbia. of the 13 smallest states, only new hampshire, already blessed by its primacy in the primaries attracts campaign visits and budgets in field offices and so on. all told the dozen smallest states in the country have about the same population as ohio.

and because of the two senatorial bonus electors, they actually have 40 electors compared to ohio's 18. but while the presidential candidates spend tens of millions of dollars and tens of thousands of staff hours in ohio, they spend essentially zero resources and time fighting in any of the small states except for new hampshire because it happens to have a rough equivalent si of democrats and republicans. the candidates don't go to big states or small states. they go to swing states. and within that lucky band of states they go to the big ones. fully two-thirds of the events staged by the clinton and trump tickets in this year took place in only six states, florida, north carolina, virginia, pennsylvania, ohio and michigan. amazingly almost every single appearance and event by the campaigns happened in just 12 states. so the vast majority of americans were simply left on the sidelines. and this has a predictable effect on voter turnout. in 2012, for example, the swing states saw nine points higher voter turnout than the safe

states did. which makes sense because the reason that people go to vote is because someone gets them to go vote. you're about to gavel me, mr. chairman. okay. i wanted to respond to some things that congressman scott asked. but let me just say this about the national popular vote plan, if i can. this is the way that major institutional political changes have happened in our country. the states do it first. so we had the problem. another undemocratic filtering institution in our country which was state legislatures appointing u.s. senators. and the way that we dealt with that was the state legislatures said we're going to delegate it to the people to decide. and enough of them did it that it built the momentum for a constitutional amendment. i believe that if we were more than halfway there in terms of the national popular vote plan, when we get there we will do it for one or two rounds. it will be very clear that it works. and then we will go ahead and amend the constitution to abolish the electoral college. thank you very much for your patience.

>> thank you very much, professor, member of congress jamie raskin. our next witness is from yale university, teaches constitutional law, clerked for stephen breyer, now a justice, but he clerked for him in 1984 when he was a judge. he's won awards from american bar association and has been cited in over 30 cases before the united states supreme court. welcome professor amar. >> thank you, mr. chair, it's an honor to be here. i think it was mentioned that there was a hearing on the electoral college in 1997, and i remember testifying at that hearing. and expressing some skepticism about the electoral college. and i remember representative

scott, especially some skepticism about my skepticism. so here we are again. and we've had two presidential elections in the meantime and represent iative scott, i warne you. no. in fact, i don't believe that the current electoral college has a partisan skew. indeed, one of the things to be said on behalf of reform is that it's not a partisan measure. in 2001, i posted something on the internet that was sort of a fantasy, a dream about how we could have direct election as a practical matter without constitutional amendment, which is very difficult. and that was a prototype, an early prototype of what became the national popular vote interstate compact. i share jamie's view that at best the national popular interstate compact is a weigh station toward what would be a more permanent solution which

would be a federal constitutional amendment. i think that analogy that was just made to how states improvise direct election of senators before the constitution was formerly amended to codify that work around is just the right one. and that's the way to think about the national popular vote interstate compact. i actually think that that reform movement of which, and i was sort of in an early proponent kind of, does have some technical problems with it. and if we could talk about what those are. and it's not, i think -- so it would require some legislative fixes. but why should we do any of that? why should we try to move towards something like that? and i think the idea that's been expressed so well by so many here is an idea of one person, one vote, it's a deep idea that everyone's vote counts equally. and that therefore everyone is a swing voter.

whether you're an urban voter in houston, texas, or rural voter in the central valley of california, whether you're in a swing state or not a swing state, everyone is a swing voter. and everyone's an equal voter. that's the great democratic idea. and it's not just an idea that's true of countries around the world. it's a deeply american idea because as jamie mentioned that's how we pick every governor in america, a governor is a mini-president. and in 48 of the states they have four-year terms, elected independent of the legislature, not like prime ministers. they have veto pens, pardon pens, they become presidents or a presidential candidate, and we have a one person, one vote idea for them. we don't have a problem with purely regional candidates, we don't have a third party problem. we don't have a recount problem. we don't use congressional districts or legislative districts. it works for every governor. it could work in america. and thank you very much, mr.

chair. >> thank you very much, sir. we now turn to our next important witness author of six books, professor of law -- professor jack rakove, we welcome you as a pulitzer prize winner. >> thank you, mr. chairman. i would like to make three basic points about the origin and evolution of the electoral college and say something briefly about having a national popular vote by interstate compact. first, we should not give the framers of the constitution more credit than they deserve for cobbling together the electoral college near the end of their deliberations. we do need to cut them some slack. there was no precedent available in their political science for a national republican executive.

more important, the framers adopted the electoral college not because it seemed the most attractive alternative available, but because it was the least unattractive alternative available. there were decisive objections against allowing either the people of congress to make the primary choice. the framers assumed that the people voting at large were often scatter their votes among an array of favorite candidates making a decisive choice impossible. if the legislature had the power of election that would deprive the president of the political independence the framers wish to give the executive. unless he was restricted to a single term, which they opposed. the appeal of the presidential elector system was it replicated decisions framers already reached. combined in the first round of voting with the equal state vote in the second contingent round that many framers expected would often occur. but on the crucial question determining who the electors would be, how they would be appointed and even whether their votes could be legally bound, the framers essentially defaulted the entire problem to

the states. second, as soon as contested elections began, which they did in 1776, the shortcomings of the framers expectations had become present. in 1776 and again in 1800 when john adams and thomas jefferson were rival candidates it would have been decisive. moreover, once contested elections began, the pretense that the electors would act as an independent disinterested citizens immediately evaporated. they always were and ever will be creatures of their parties. and as political parties learned how to control electors, they also began experimenting for rules of their appointment. between 1776 and 1800 a number of states altered their rules solely from calculations of partisan advantage. the result was the development of the winner take all statewide system which treats every state as a political unit even as we know in florida in 2000 that its electorate is divided into nearly equal political halves. thus, in the third place the

original history of the origins and evolution of the electoral college is not something we need to admire or feel bound to obey. i join with many other critics in the standard criticisms of our current system. it violates the fundamental rule that every vote should have the same weight wherever it is cast. i also believe that the existence of the battleground states is essentially a demographic accident. as many members have said our culture would be better served if both parties had incentives to turn out their voters in every state. but there are two additional criticisms or perspectives that merit further attention. first, the last three presidencies have all suffered serious crises of legitimacy. and there's no question that the looming presidency of donald trump will share the same fate. there are multiple explanations for these attacks on the legitimacy of presidential authority, but the recurring speck tor of country divided into red and blue states a sense of national division. significant plurality in truly national election would not

wholly solve this problem but certainly help to mitigate it. second, any attempt to confront the inequities of the system has to be able to think critically about its relationship to the federal system. there's no question that the presidential election game does reflect the existence of the states as autonomous political communities. but reflecting that status is not the same thing as protecting it. existence of the federal system is somehow dependent on this retention, federalism is already adequately both by the division of authority between the national government of the states and by the members of both house of congress play in representing their constituents' interests. our scheme of presidential election adds nothing to these mechanisms and advocates for popular election didn't make that case. finally, if i could make this point briefly and this is something i'd actually love to hear the committee explain to me, i do not understand how the national popular vote based on a state-based initiative, a state-based compact can possibly escape the compact clause of

article 1 section 10, once you're there you're going to be back to article 5 amendment. so i want to insist if you want to deal with this issue, there's no choice but going the article 5 route and coming up with the strategy for doing it. thank you very much. and apologize for taking perhaps a few more seconds than i deserved. >> you're very welcome, professor rakove. our next witness is professor alexander keyssar, whose book was cited by both the american historical association and the historical society and was a finalist for the pulitzer prize award. and we're welcome -- we're fortunate to welcome you to this committee for this discussion, sir. >> thank you, mr. chairman.

oops. it's certainly a pleasure and honor to be here. and i take the liberty of calling the attention of the members to a forthcoming book i have with the apt title "why do we still have the electoral college." i want to use my few minutes to say some things a little differently than my colleagues have said, not to repeat or i very much endorse the case that many of the members have made about the need to abolish the electoral college and replace it with a national popular vote in one way or another. i think the cases are made very soundly. i would add one small piece of arithmetic to this unless we think they're very rare incidents when the gap between popular and electoral votes can happen. on 17 other occasions in addition to the five which we've mentioned, 17 occasions when 75,000 votes or fewer turning would have produced the same

outcome of the loser of the popular vote winning the election. it's not such a rare event. that said, let me make a few other points on separate issues. first, yes, it is very difficult to amend the constitution. and, yes, the electoral college has been extremely unpopular. i think it's now close to 1,000 amendment resolutions have been introduced into congress. but we should remember that on seven occasions, on seven occasions, such a resolution was approved by one branch of congress. and on two occasions in 1821 and in 1970 it was approved by one branch of congress and lost by only a whisker in the other branch. so this is not an insurmountable task. the reasons why this is never quite happened are many and

complicated, but let me mention two. one is that on numerous occasions the perceived partisan interests of members of congress and elsewhere have triumphed over not only the public interests but over their own previously articulated views. and notably, on a number of these occasions, and i can go into this, it turns out that their perceived partisan interests were mistaken or very short lived. they got it wrong. and it was proved wrong in a short period of time. also, i want to mention that it's not simply the case that the electoral college was conceived in the world of slavery, but that the politics of race and sexual conflict have been absolutely instrumental in preserving the electoral college over our history. make one more point and then a comment about the national popular vote interstate compact.

one other point, it is frequently invoked by opponents of reform that the obstacle is the small states, the small states will never go along with change. in fact, there is precious little evidence to support that view. the statistical evidence does not support it. two of the leading advocates of national popular vote in the mid 20th century were john pastori of rhode island and william langer of the very small state of north dakota. on the national popular vote interstate compact, i agree with my colleagues here intending to see it as a weigh station. one of my concerns is that i think an interstate compact such as the one drawn up is inherently unstable because states can withdraw from it. as written they cannot withdraw within six months before an election, but they can withdraw from it. which could lead to precisely the kind of instability and

gamesmanship which bedevilled the operation of the electoral college and the allocation of electors between the 1790s and the early 1830s when states gamed the system depending on their partisan interests. thank you very much. >> thank you very much, professor keyssar. our next witness is representative bob thorpe of the arizona house. and we welcome him here. he was one of the first witnesses to come this aftern n afternoon. and he's received numerous awards and has authored a book on the constitution entitled "reclaim liberty." welcome, sir, to this hearing. >> thank you very much, mr. chairman and members. i am -- let me move this back. i am representative -- state representative bob thorpe, i serve as the chairman of house

committee on education and higher education in government. and i'm honored to address your committee and to lend a state perspective to this discussion. in 2016 i was one of 154 republican legislators to sponsor the national popular vote interstate compact. this bill helped solve problems with the way the candidates campaign for president and how they govern after being elected is consistent with the principles of federalism and preserves the states' authority to award electors. federal action to change or eliminate the electoral system is unwise and appropriate and most likely impossible to achieve as it would require two-thirds of congress or the states to propose an amendment to the u.s. constitution and then three-quarter of the states to ratify it. that said, article 2, section 1 of the constitution, grants the state legislatures the authority to address shortcomings within the current system. far too many american voters are left on the political sidelines

when we elect the president of the united states. is atrocious 94% of the presidential campaign 2016 occurred in just 12 of our states while 38 states were largely taken for 38 states wer largely taken for granted. typically, battleground states have much greater political influence. this distorts federal policy, can cause problems both during the campaign and when governing. mr. trump won a clear victory under the system's current rules. but he did so in part by making the same kind of promise every candidate makes, he promised to keep his hands off social security and medicare for the battleground state and voters in florida. he also offered proek nift policies to flip democrat voters in pennsylvania and michigan. these promises helped him to win. but they were narrowly crafted to meet the needs of specific groups and places, not the good of the nation as a whole.

arizona's 11 electoral votes cannot couldn't on the disproportionate influence of battleground state voters, yet, a voter from arizona or any other state should be valued as much by our president as a voter from florida or ohio. during the last five presidential elections, the ten smallest states received no campaign events during the general election and the lead up to the 2012 presidential campaign, the battleground state of ohio received 48 visits alone. ohio has the same number of people as those ten small states combined. why should ohio get that much more attention than the small states? state driven reforms like the national popular vote compact give small states an active voice in rural interests permanent promise during presidential elections. state based reforms and compacts such as the national popular vote compact are better -- better use for ee lech tors than current state based winners take

all. the constitution provide the states with the authority to change the way the electors are awarded, and states like massachusetts have used this authority 13 times. it would be wrong for congress to strip away koconstitutionall granted authority from the states. the national compact achieves three important goals, preserves the state power to a word lech tors and allow the legislators to continue to place federal checks on the president. it guarantees that the president -- presidency to the candidate who wins the most popular vote in the 50 states and district of columbia. and it makes every voter in every state equal and lit callie relevant during the presidential elections. electoral college is not broken. however the way it functions with nearly every state using winner-take-all rules is problematic. for future elections the states, not congress, have the ability to make every vote in every state matter. and thank you. mr. chairman, could i have just

five more seconds? >> how about four? >> four will do it. if i can give a personal perspective on the state of arizona where we only have 17% of our land in private ownership. if i can repeat that. compared to the eastern states, arizona only has 17% of our land. so what does that mean. it means greatly reduced property tax, but also representation here in this body and representation when it comes to electoral votes, so in comparison to the eastern states, the western states have a huge problem being equally treated when it comes to presidential elections, and it comes to just educating our kids. thank you very much, mr. chairman. >> your point is well taken. but i notice you exceeded the time allotted by at least three seconds. thank you very much, sir. i now turn to a representative,

a state representative who worked formerly for congressman bernie sanders and he served four terms in the vermont legislature and sits on the board of national popular vote incorporated. welcome to our panel. >> thank you mr. chair and members. and i'm proud to tell you that i am about to take a seat in the vermont state senate, so it was a good election. >> congratulations. >> thank you. i have been involved in national popular vote for a long time, including participating in the legal drafting of the original compact as it stands and also much of the research that went into every vote equal book that explains the state based path to a national popular vote. it is my interest in change which has left me supporting the

electoral college, but deeply critical of the winner-take-all rule, which is in fact the state law that produces the red, blue map that we are so familiar with. as you know, and has been well tried, i won't say it here, constitution does give states exclusive power and my written testimony covers a lot of ground, but i will try to use my time to cover points that have not been made and try to answer some of the questions that members have brought up. one point in addition to all of the aborations in a presidential election which favors so few states and such a small portion of our country, we've not covered governance, but in fact, sitting in the white house, presidents who are interested in reelection or in getting their own party's successor into office do place an enormous preference on the battleground states. i think this is important. if you look at disaster declaration, battleground states

get more disaster declaration, they get them faster and get more money when they get them. they get more child left behind waivers, battleground states get more visits from a presidential cabinet. so i think that the per vegs goes well beyond election data. i think coming from vermont, others here have mentioned the small state myth that small states benefit in an electoral college as it works today and i would echo that. i do want to talk about this idea if we, under a popular vote for president, we would see new york, chicago and l.a. or the big urban centers control the election. that is complete mythology. one-sixth of our country lives in urban centers, one-sixth lives in rural parts of the country, two-thirds are suburban and ex urban. and we can look, we don't have to guess, we can look at how presidential campaigns happen today in battleground states,

states where every vote is equal and the person with the most votes win. let's look at ohio in 2012, it received a great bulk, almost 30% of the campaign happened in ohio. the four biggest cities account for 54% of ohio's population, they enjoyed 52% of the campaign rallies. the seven metro areas, which account for about 23% of the straight state, enjoyed -- the 53 rural counties count for # 25% of the population and got indeed 25% of the campaign events. we can see that campaigns will reflect exactly the structure of where the population lives. nobody will be left out when it is about margins every where. in my state, if you want to get involved in a presidential

election, you get in your car and drive to new hampshire. we will not be the center of attention in rhode island or very monlt, but the grassroots will have a role to play, we'll talk to the neighbors and have a discussion and try to eke out another thousand votes for our preferred candidate to make up for the margins where he or she is behind. quickly, it's been mentioned we should consider a congressional district system. firstly, the problem with that is a couple fold. we would trade battleground states for some 20 battleground districts. if you could magically have it everywhere. there is no reason why it would necessarily spread because the more states that came on board with a district system would in fact advantage the remaining winner-take-all states. this is sort of a self halting reform. faithful slek tors were quickly mentioned. they always rear their heads, nerve change the outcome of an election. states do have power to remove

them from the process. we talked about recounts, we see it today and see it right now. you cannot effectively have a recount under our current system. this is an area where congress does have power because you have authority over the count and there are proposals that come forward that would improve that. we should not pretend under a popular vote a recount would be impossible where today it's not workable. let me say the compact clause. national popular vote is an inner state compact and has a precondition before it takes effect of passing states that hold the majority of electors. there is a very active debate about whether or not our compact requires approval of congress. in fact case law and most recent being us steel in 1978, it's very consistent that case law suggests that unless an inner state compact infringes on federal authority, there would be no need for congressional

approval. so we believe that the inner state compact vote is only obviously taking advantage of state power. the supreme court called this a plenary -- we don't believe as it stands it needs approval. however if a court rules that it does require congressional approval, we would be coming to congress seeking approval at a time when states representing 270 electors, therefore a majority of the country and majority of congress have enacted this bill, and presumably we look forward to working with you to get approval. i will leave it there and i thank the members for their time. >> thank you very much, sir. our last person, thomas neal is a specialist with the congressional research service. he will not give an opening statement, but is available as a rece