q&a. >> presidential historians, authors, and campaign advisors discuss the past, present, and future of presidential elections. hosted by the university of pennsylvania law journal and the national constitution center. >> all right friends, we have convened america's greatest scholars of the presidency for the future of presidential elections. we will have three panelists, i will lead a conversation with all of the scholars. please put your questions in the q&a box as we go along and i will introduce them as best i can as we talk. we will respond to them and keep this as direct as possible. let's begin with the first panel. the theoretical perspectives of

the electoral college. our scholars are the professor of law at the university of pennsylvania, the author of many articles on the founding, including james wilson and his role in the constitutional convention, his forthcoming book is the style of american law. he is the lawrence s rockefeller professor of sociology at the woodrow wilson school in the university center for human values at princeton. she is one of america's leading experts on comparative constitutional law, as well as one of the most dynamic guests on the we the people podcast that we have the privilege of hosting. we the people in american studies professor of political studies he is the author of many books including the pulitzer

prize winning original meetings politics and ideas in the makings of a constitution. kim and jack. welcome it is such an honor to have you here. i'm going to ask you to begin by setting the stage and telling us about the origins and theoretical perspectives about the electoral college. >> thank you so much. princeton renamed the woodrow wilson school. now we are the princeton school. obviously they are waiting for a donor. lovely to be here. the thing that is striking about the u.s. as it is not the only country in the world that has elections. it is the only country in the world that has something like the electoral college i'm not going to talk about that so much

time the u.s. runs an election, it has international election observers that check out our election procedures and they assessed us according to international standards. none of these reports mentioned the electoral college except to say that is how we do things. these international reports focus on a lot of other standards i want to focus on, just so we realize american elections don't end up at the top of the pack internationally. international observers talk about how we have a partisan election machinery. very few democracies in good standing turnover elections to people elected on partisan tickets. that came up this year when we wondered whether the michigan court of elections was going to certify the results, because the results could have split 2-2, republican and democrat. so suddenly, we see this is a very rickety structure. overall it works. it is an accident waiting to happen. this machinery is also

underfunded, so very often we got election technology that districts use that is way outdated and is hackable. there are still eight states with no paper trail for checking or doing any kind of audit or recount. weirdly in the u.s., we have no weirdly in the u.s., we have no also, system of automatically registering people to vote. and the fact, it is a struggle to register in a lot of places. in most democracies if you are a resident in good standing, you are automatically entitled to vote. at here, we put all kinds of hurdles in front of people to be able to register. the weirdest thing about our elections to foreign observers is that we run national elections for both presidential and the u.s. congress, according to 50 different rules and 50 different states, with some federal structure, but that federal structure is not detailed. some states you have mail-in voting or early voting or some states you need a 30-day residency or a 60-day residency

. in other words we have a , national election run by the states. that can be a virtue, decentralized, harder to hack, but it can be a vice because the right to vote is not equally realized across the country. that was to another problem. we have talked about voter disenfranchisement, so we have all kinds of ways once people struggle to get registered to vote, of having them not vote, either by showing voter id or or by doing purges to voter rolls by the way come all this has been upheld by the supreme court. we are also unusual in having our elections funded by private donors and particularly private donors who are not very transparent. we have an opaque and almost unregulated campaign-finance system. we also have a blurring of state and party which we saw a locked in this election. many states have rules limiting what incumbents can do to use their office for reelection.

this year, those rules went out the window, if we ever had them. and finally, we have a system in america of federal elections both for the presidency and the congress that are highly disproportionate. so we have a system in which, if , there is a 50/50 split, you you don't get a 50/50 split. we have of these winner take all districts. so the congress is likely to be way out of whack where public opinion is. that is true in the house, complicated by gerrymandering, but also true in the senate consider the senate. the six senators from california, texas and new york represent the same number of people as 62 senators from the smallest 31 states. so there is all kinds of ways in which our constitutional system enables minority rule and is highly disproportionate.

all those things get commented on by election observers when they observe us. and the electoral college, weird though it is, is way down the list of things we can do to improve our standing in international perspective. jeffrey: thank you for that fascinating putting of our system into international perspective. it is very interesting to learn about the ways we differ from international norms, and as you point out, the electoral college is not the most dramatic. next hear from bill you will, you are probably america's leading scholar of james wilson, the forgotten founder who not only conceived of the central idea of we the people of the united states as a whole have power, but also the unusual compromise of the electoral college. tell us about the electoral college and role of james

wilson. bill: the single most there are two questions there. i am glad kim decided not to talk about the electoral college. the single most interesting feature of the electoral college is that it doesn't exist. there is not an electoral college. i woke slain in a that is second. actually related to wilson. who, as you say he is either , blamed or credited or given responsibility for devising the electoral college. that is actually a mistake. let me in very broad brush terms walk through the principal steps at the constitutional convention that may explain what i think was going on. at the beginning of the convention, june 1, wilson reposes direct popular elections.

nobody wants to take him up on that. next day, he says, why don't we have a system of electors? and when i first started writing about wilson, i thought wilson was the deviser of the electoral college. actually, what he wanted was a system of indirect popular elections. he wanted to bypass the states. he wanted to divide the united states into district, have each district select an elector, and then the electors would elect the president. if you think about it, that avoids the big state-small state controversies. it also avoids the slavery issue. so his proposal really does not look like the final thing that gets ultimately called the electoral college. ok wilson, neither of his , proposals went anyplace.

the convention was stuck with the virginia plan. the virginia plan was, that congress elected president. they kicked things around, they have a long period in the middle of july when they are trying all kinds of schemes, everything you can think of, operably things you can't think of and at one point wilson, in exasperation, says, why don't we do this by lottery? ok that didn't get any place , either. they went back to the virginia plan. and then come something interesting happens in september, where the documentation is not terrific, but a somewhat obscure committee known as the committee on postponed parts comes back to the convention and they say, we've got this idea, we are going to use electors. everybody seems quite confused.

we talked about that, we rejected it and they said no, it is a compound system. we are going to have a system of presidential electors, and that is to take the decision out of the hands of congress because congress forms cabals. congress could be corrupted. we will have congress in as a backstop in place -- in case there is not a clear winner. we will have electors here is first. the interesting point. the electors were to be chosen by state legislatures. there is nothing in the constitution about popular election at all. of course there is a possibility , maybe state legislatures, out of the goodness of their hearts, they say why don't we have a popular election, but it is not required. in fact the first number of , elections, quite overwhelmingly they tilted toward let the state legislatures appoint electors directly. ok so why have electors at all?

,well the reason given everyone , seemed to have accepted was that this was to prevent cabals from forming. and the operative part of this ramshackle institution is that, we are going to make the electors vote on the same day in different states predict can't come together, they can't deliberate in a group. that wasn't an afterthought, that was the point. what it means is, it is not just that there is no collegial body you can call the electoral college, they were deliberately trying to prevent anything like such a deliberative body from forming because they are worried about cabals. now there is a complex , intellectual history about how terminology of the electoral college comes into play, it doesn't really get firmly settled until the 20th century.

people earlier, they talked about electoral colleges, various ways to speak about the presidential election, but that is a long way of saying kim is right, and also saying you can't blame james wilson. jeffrey: wonderful conclusion. you can't blame james wilson is a fine motto, and you can't credit him so much with the emphasis on popular sovereignty. interesting about the framers' concern about cabals and how they connected their fear of cabals to their fear of factions. jack, you are america's leading scholar of james madison. i would love to know how madison differed from wilson in his views about the electoral college. did he support the virginia plan

, which would have had election by the legislature. at one point, he seemed to support a national popular vote, but tell us about james madison and the election of the presidents. jack: the starting point about madison is that his view on the executive branch of the government was probably the least developed aspect of his constitutional theory going into the convention. even as the convention proceeded. it took madison a good decade into the late 1790's to come to grips with the political potential of the presidency, and to try to re-conceive what american politics should be like what you reckon with how strong an institution the president could become. it is more illustrative of a fundamental problem. when we talk about the electoral college, it is important to cut the framers some slack. it is important to recognize there was no precedent available

for the kind of institution they were committed to creating, a national, lowercase r republican executive, and the dominant models of power were either that article or ministerial. the government had been developing in principle since the early 18th century. i think for starters it is worth , noting that the convention was a process of tedious and reiterated discussions where the framers moved around and around before coming up with a proposal. so they had the committee on postponed parts, a wonderful and obscure name for a committee. the second point to be made is that as i read the debates the that bill was discussing, the

leading edge of them was none of the advantages different votes of the election would provide, whether a popular vote door congressional vote or a vote by electors, it was really the disadvantages. madison originally resisted the idea of a popular election. he knows if you have a popular election, there is only a single constituency. let's call it for reasons of convenience the united states. and according to the one person, one vote model, the problem with that is that you would have a big, adverse impact on the south, for whose interests madison spoke. so madison originally opposed it. but a tear to leaders, he thought popular elections, would not be so bad. but you can't sure voters at the local level within the state would know who the best

characters were, so it would be very hard to get a decisive result. you can solve that problem if you have a congressional election. by definition, members of congress -- today this is becoming a counterintuitive proposal but the definition of members of congress should be the best and most important part of your national political class treats or that might solve the problem you would have with a popular election. but the problem is, if you are committed to the idea of an independent executive the way wilson was, if you commit to the idea of a legislative election and you want the president to be constitutionally independent of congress, then you have to limit him to a single term. because otherwise he becomes a tool or toady or lackey of congress. we see this in the final debates on the committee of postponed parts report. it is tied in with the

complicated reason of why we wind up in a contingent election of having the vos cats not by senate but by the house, with each state having one vote. it is related to treaties. it is a complicated constitutional calculus. there are serious problems if you're committed to that notion of independence. i think the idea of having presidential electors became the default option. it wasn't that anyone had a clear idea how it was going to work, it wasn't that anyone had a great degree of confidence in who the electors would be. george mason says at one point, it might not even be of tertiary importance. we just have no idea, and i think the other part that is starting to loom ominously again is how the electors working to

be chosen by default by the states. for 40 years we had the basic default option of winner take all, statewide popular voting, so the electors chosen in the state would go to whoever has a plurality. the key thing here is that the framers did not really work out who the electors would be, i think just running out of time, they defaulted to that option. and this is becoming a scary possibility again because we don't know what forms of manipulation may arise. i just was reading another horror story about arizona this morning. a bill has been introduced to allow the state legislature to override a popular vote. i don't think it will enact, but it shows how much mischief can still arise at the state level. jeffrey: thank you for that, jack rakove.

so interesting to learn about madison's conceptions of presidential elections and the idea he is grappling with a solution and the fear people won't know the best candidates. so even if you want to popular vote, maybe congress would be better because the president would be in the thrall of congress and you would have the determinants of the electoral college as an uncertain compromise in order to grapple with getting the best candidate. absolutely fascinating. one round of concluding thoughts for this panel. kim, having heard bill and jack, does any other country have similarly unusual, historically specific efforts to avoid popular passions directly and choosing presidents because of concerns they won't choose the best president? other historical analogs of the electoral colleges alternative

to the popular vote. what other aspects of our system seem out of the ordinary in an international sense? kim: one of the ways to get a chief executive is to have the parliament of congress elect him, they call it a parliamentary systems per the best majority of democracies in the world are parliamentary systems in which the president is accountable to a legislature which can see what he is doing and also that the candidates better than we are doing at the moment. but there have been other efforts. certainly in france under the 1958 constitution, there was a public assembly of members of parliament and members of local government to elect the president. and that was abandoned within 10 years in favor of a popular election. so you see the old of the constitution, the more distrust there is of people at the newer the constitutions are, the more

there is direct, popular vote. what you see in the u.s. is the fact we are driving the model t of constitutions while the best of the world is driving the cars of the future that levitate and so on. a lot of weird features of our system are because it was designed before things that are now commonplace. jeffrey: illuminating the constitution drafting project, we convened people and to everyone's surprise, both the conservatives and progressives proposed replacing the electoral college with a national popular vote. or ranked choice voting. are they coming back to the original vision? is wilson's vision of the popular vote something else? bill: wilson himself would clearly have been on board. but the deeper point, something jack was saying needs to be

emphasized. there was a mythology, the framers came together in philadelphia and there was this miraculous moment where there was a brilliant, deeply theoretically conceived plan so that the electorate -- so that the electoral college with profound underlying thought. and that simply isn't true. there were stumbling throughout the summer time to figure out what they were going to do about this. they changed their minds, everybody. wilson changes his mind. madison changes his mind. they flip back and forth. they speculate and then say, the speculation is no good. they come up this final device, which, as i say what they are , trying to do is prevent cabals. ok, try to explain that. that is why we have the electoral college, they just got blank looks. and by the way, james madison is very clear on this point in his later correspondence. in 1823, he is asked about the

system of presidential elections and he says my friend, it was late in the day, we were all very tired, and the hurrying influence produced by fatigue and impatience, that is why you got that system. so, ok james madison, father of , the constitution, that is his view on what happened. there was no miracle. they were doing their best. they should be given all credit for doing their best, but they are not saying the electoral college was something that was profoundly thought through. take it up with medicine. jeffrey: thank you. jack, i'm going to ask you to take it up with madison on the final thoughts for this panel. we have seen the specter of medicine's worst nightmare. madison warned of all large assemblies, a character with passion who arrests the soul

from reason, and we have seen an armed mob marching on the capitol, storming the capitol. ben light of madison's concerns about cabals, today what he favor a direct popular vote or would want some other way for filtering the passions of the peoples of the best candidates could emerge? jack: i think if you look at the first decade and a half after the constitution went into effect, at least until the 12th amendment in 1804, the critical development was that you had to get to the first two resident that to get to the first two contested presidential elections

in 1796 and 1800. it does not matter what the rules are. whatever set of rules you apply, you get the same results, but as washington reveals his desire to finally go back, a couple things happened. the two parties were already well-organized in 1796. even though washington delayed his farewell address as long as he could partly to favor the the federalists and disadvantages republican opponents jefferson and madison , at their team. as soon as somebody new a presidential election would take place, two things happened. the first is that a popular vote would have worked. jefferson and adams were both known to the american public. i think that problem would have largely been solved.

the second thing was, all the electors were tools of the party. they were not independent voices. alexander hamilton despised john adams and tried to manipulate the federalist vote away from madison. madison announced a complicated scheme to cast a second vote for someone he favored supposedly to get it away from john adams. you can imagine the framers had that pure vision that bill was alluding to, and the fact is they did not. a non-fascist group of citizens, to use madison's phrase. for once it really mattered. we worried now about the problem with electors, and issue the supreme court looked out, an interesting issue by itself.

so still out there in history, there is this whole image that you have this independent distinguished body to avoid cabals, and it is even worse, that was a fear they had. so a popular election would have worked and the electors would have been essentially functionless. even more so once you get to the 12th amendment. jeffrey: thank you. never avoid the kabbalah but avoiding cabals is good. one of the friends in the chat, what is a cabal? it is a secret political clique or faction. and federalist 10, madison talks about any group, a majority or minority animated by passion rather than reason devoted to self interest rather than the common good. which begs the question, what is the common good?

we now turn to panel two. i invite all of you to join me. thank you so much, a superb discussion and thank you for the the light have spread. it is my great pleasure to introduce panel two. i will do that by noting that -- i just want to scroll down and make sure i have my bios right. which are right here. wonderful. i am now, i just am going to jump right in and say that -- where is everyone on this screen? we have ned foley and alex

♪ keyssar, and charles. i'm going to ask you to start. you and the constitution center have such amazing discussions about whether the election of 2020 was going to be unusual from a historic perspective. you have been writing such illuminating works about the historic perspective. tell us about how the election of 2020 compares to the most contested elections of the past, including 1800 and 1796, and in what ways was 2020 more extraordinary than any election? >> thank you, jeff. it is great to be back. yes, we have just lived through this amazingly searing election that culminated with the insurrection at the capitol.

and for that reason, we don't want to revisit that history as much as we need to and probably also don't want to think about 2024, can we just take a break? but i actually think we need to spend some time thinking about how what we just went through sets us up for the possibility of an even more difficult election in 2024, in part because of the fragmentation within the republican party that we watched over the last week or two, frankly since january 6. and let's put current events and the future in historical perspective by starting with the early years and the 12th amendment. because as jack told us importantly, our electoral college is the 12th amendment, which was put in place after the

development of two-party competition, which had emerged by 1796 and 1800. so the 12th amendment was built on the expectation that we would have two-party competition that we normally do have. but what that means is that our system has very great difficulty handling a third-party or multiparty elections. and that is what i fear may coming down the road next time, given the fragmentation of the republican party. no guarantees for that. it is still four years away, but we have to imagine the possibility of a three-way split between trump running again as the republican nominee, maybe kamala harris running to be president on the democratic side and then, and non-trumpian republican breaking from the

republican party because they can't tolerate any longer the fact that the republican party has become the party of trump, and offering a genuine third-party alternative. not a democrat, not a trumpian. it could be mitt romney again, given he is so anti-trump. it could be been sasse, it could be a number of figures, larry hogan. the point is, if we do see a three-way split, trump versus some other traditional republican versus a democrat, our system can't really handle that. and and the nature of polarization now and the ugliness of american politics now makes that fraught in a particular way. if we compare the current moment with previous periods in our history where we have had difficulty handling third parties. quickly, in the 1840's, that was

a period were significant third-party development occurred over the issue of slavery. for t third-party development occurred over the issue of slavery. you had the traditional fight between the democrats and the waves, but the liberty party in 1844, created a three split that the system could not handle. in that 1844 election may have sent us on the road to civil war, for reasons that we could discuss in q&a. in other period of third-party involvement was the 1880's and 1890's. what's interesting, as we compare that to today, grover cleveland wins in 1884, loses in 1888 and comes back and wins again in 1892. and we heard trump talking about

wanting to replicate what grover cleveland did, being a president to lost and comes back and wins again. interestingly enough grover , cleveland was never impeached once, let alone twice. he conceded defeat in 1888. in fact, he held the umbrella, it was raining, for harrison's inauguration, and unlike trump, who refused to go to biden's inauguration, cleveland was willing to hold harrison's umbrella as harrison gave his inaugural address to show that they could still be friends, despite their electoral competition. so if we have a rematch between trump and some democrat in four years, it won't be as friendly. so the historical parallels are perfect. and that is why as we come to our present era, we haven't fully come to grips with the fact that ever since ross perot was on the scene in 1992 and

ralph nader operated as something of a spoiler in 2000, and gary johnson and jill stein arguably were a factor for why trump wins the electoral college in 2016, our system is in a new era of potential destabilization, where it can't handle a third or fourth candidate. so we need to think really carefully about what our architecture and infrastructure is going into the next election. on the last panel you mentioned the idea of ranked choice voting and i do think ranked choice voting at the level of state choice, like maine has done to appoint its electors, is a way to handle this issue, for reasons we can discuss in q&a. thank you. jeffrey: thank you, ned foley, constitution law at ohio state

university and your new book is "presidential elections and majority rule." alex keyssar, matthew sterling professor of history and social policy at harvard, your book, the right to vote and contested history of democracy in the united states was named best history by the american historical society. help us put in historical perspective the difference between contested elections that are really close, but don't lead to great polarization or dispute, like the election of 1916, which was extraordinarily close. those are the kind ned discussed in the 1840's. and today, where polarization and other factors makes us especially vulnerable to extraordinary disruption. how can we distinguish between these different kinds of close

elections, and what kind of historical perspective would you put on the contested election of 2020? i think you are muted. there rico -- there we go. perfect. alex: thank you for inviting me. it is a pleasure to be here to join various friends and colleagues in these discussions. i am not sure -- what i would see as the difference between close elections that occur in periods of partisanship and close elections that occur in other periods. it is interesting that we live now in a world where we talk about a kind of venom between

the parties, and it's real, i agree with that, i am old enough to remember when a number of us used to talk about the republican and democratic parties as tweedledum and tweedledee, and quips about the soviet union, that the only difference between our political system and the soviet system was that we had two parties rather than one, but we only had one more than they had. i think that in 1916, there was a lot of noise, and the republican party is living with its own tensions, but that was not a period of acrid partisanship. the other election that comes to mind in that respect was the 2000 election, which was extremely close, as close as it could be. the margin of difference was smaller than the margin of error

of the technology, so we don't really know who won the 2000 election. but, in fact, what was really notable about it was how muted protests were, certainly if you compare to what just happened, which wasn't as close. there were some threats of violence during the counting in florida, but at the end of it all, not only did al gore say, you won and you presided over the senate, and he resided over the joint session of congress. but there was a kind of dispirited protest on inauguration day in the rain, but it was quite small. and i think behind that was a broader conviction, which turned out to be false, but a broader

conviction that it didn't matter too much whether al gore or george bush would become president. remember, george bush talked about a kinder, gentler america. i think it is a difference between the periods more than the elections themselves. and i share ned's apprehensions in the apprehensions of others, to extend my comments for a minute or two, i think that the 2020 election has exposed a variety of flaws built into our presidential election procedures. they have been there for a long time. they have been latent. they have been avoided because of our reliance on norms that you don't do that sort of thing. for example, the legislature does not choose electors by itself. but these norms are being cast

aside. there are a lot of weak points in the process. i would also underscore what was said earlier about the fact that we have a very bizarre electoral system where we let partisan institutions decide the outcome of elections, and there is no partisan intervention. so i see lots of sources of problems for 2024 and beyond in an atmosphere of such extreme partisanship that i think there is trouble ahead. jeffrey: thank you very much for that and for pointing us forward and asking us to think about the guard rails of democracy that need to be resurrected. in light of our recent -- alex: could you mention my book about the electoral college? jeffrey: i can, but you can do it better. why don't you say the title and everyone should get it.

alex: [laughter] it is called, "why do we still have the electoral college?" jeffrey: absolutely, of course. in the next panel will be drawing on your question and debating that question, thanks. charles, you are currently the professor of law at duke law school. just a few weeks ago harvard announced in july that you would join the harvard law faculty of harvard's charles hamilton institute for race and justice. congratulations. you are also currently working on a book about the past and future of voting rights. why don't you take us back and also forward? what can we learn from the history of voting rights about

the kind of structural flaws or challenges the 2020 election exposed that you think should be corrected? -- corrected in the future? charles: thank you for having me. i also want to build on the comments of my fellow amazing co-panelists as well as the , fabulous panel that came before, to think about some of the structural divisions we have in american democracy that takes us to today. we have a framework that divides voting rights and authority among and between the states and the federal government. we have a deeply polarized, partisan polarization. there is an expectation of one person, one vote in popular election. but within a framework of

elitist competition, where we rely upon the states, we rely upon partisans, as others have said, to make fundamental political decisions, and we also rely on courts to resolve fundamental political disputes. and, at the same time we have a , presidential election system that is fundamentally a popularity contest. so if you could get through the party primary, what is interesting to me about that is that anybody who has any popularity is being touted as, that person should run for president, whether or not they have held previous office before, whether or not they are qualified, whether or not they are competent. so our current presidential election system overlaid with different conceptions about democratic participation, overlaid with worries about polarization, overlaid with worries about partisanship, partisan administration, decentralization, without

true positive fundamental rights to guide our way without sufficient federal regulation to guide our way, it leads us to the current moment when and if there are distinctive pressures that are put upon the system. so, we just saw in 2020 distinctive pressures, the intensity of competition and the preference or temptation to bend the rules. jack mentioned earlier what is going on in arizona. one could also think about what may be going on in georgia, let's change voting rights rules to provide an advantage in the next election that is coming, because we now know georgia is deeply a battleground state and that the votes there are going to matter and it could be determinative for the next presidential election. so there is a temptation to change and bend the rules

to provide partisan advantage in the next election. given these pressures, we don't have a presidential selection system that is capable of responding to these types of challenges. really what we have are norms that serve as our guardrails. and if those norms are weakened , as we saw that they were in 2020, then that sets up deep clashes within our society, and within our framework, and it's not surprising and it leads to things like what we saw on january 6. your next panel will think about what we do next, but i want to point out structural contradictions within the system that we currently have. jeffrey: thank you very much indeed for noting, teeing up the discussion and noting both structural needs come as you suggest, the possibility of federal election supervision, as

well as buttressing norms which are necessary for the system to work. i think that would be a great focus for your final observations for this panel. ned, as you look to history, and in you studied so closely the election of 2020, if you had to propose resurrection of any guardrails, constitutional, legal or normative, to prevent a repeat of what we have just seen, what would those guardrails be? ned: i would love a constitutional amendment to get rid of the electoral college, but i don't see that as feasible in the short term, but see any urgency. as much as we need to work at presidential elections, i am also worried about senate elections and house elections for the reasons that kim was also.

the major urgencies in the national agenda is how to have a healthy, competitive system where at least the parties believe in the competition where, i play by the rules and believe in the spirit of the rules. one side is not doing that. i started to call this the rob portman problem. senator rob portman from my state decides he's not going to run for senate again because of the hyper polarization that is caused by the effect of primary elections interacting with our current system of general elections that knocks out the possibility of center-right candidates like rob portman, leaving you only with very far-right candidates and the left. alaska has a really interesting reform they adopted in november called top four with ranked choice voting. you have a nonpartisan primary

like california has, but instead of sending to candidates to the general election, he sent for to the general election and then you use ranked choice voting. there is something called the final five. i don't know if it's a magic number when you have five finalists or four finalists, i don't think they care about that. i think we should have laboratories of democracy experiment in ways to avoid the problems of polarization. so states that have ballot initiatives, like michigan. michigan just adopted gerrymandering reform to get a commission that will see how it works for the state of michigan. i think we need to look at a lot of things between now and 2022 and 2024 because we are in a crisis moment, and i would put the affect of party primaries and the fact there is this verb to be primaried, cutting out the middle of american politics is a concern. but if we think about

presidential elections, i think we have a big choice. and i know jessie on the next panel will talk about this. we have two problems with the current electoral college. one is the fact that it's not the national popular vote. so there is the idea of trying to use this compact to create a national popular vote without a constitutional amendment. the problem with that is, it could leave you with a plurality winter that could be less than 50% in a three-way race. like i was talking about. if the race next time is trump, romney, democrat, who wins the plurality, trump or the democrat? does romney pull more votes away from trump or more votes away from the democrat? what if the non-trump centrist is not romney but then sasse, does that affect the three-way split? we have not looked into this carefully enough. that is why i think we need to think creatively. can we have both a national popular vote and something like

ranked choice voting at the same time without a constitutional amendment? that is very difficult to do, but we need all hands on deck to figure out how to handle this incredibly urgent moment we are in. jeffrey: thank you for this concrete suggestions from ranked choice voting to away -- a way that national vote is structured. alex keyssar, if you were proposing reforms to strengthen the guardrails of democracy when it comes to voting in presidential elections, what would some of them be? alex: i guess i would start with something that i implied in my earlier comments. which is, i think we need to think very seriously about having some kind of new institution that serves as a neutral arbiter of elections. this idea came up very early in our nations history, and it

popped up again and was discussed at the time the infamous electoral count back of 1887 ended up being passed instead. particularly in this period of extreme polarization that we let partisan elections in the end be judged and certified bipartisan institutions is a very high-risk. that is one place i would put some energy into building a guardrail. we saw very clearly on january 6 what can happen when it is not present. i think we need strengthened guardrails, legislative guardrails, federal legislative guardrails to strengthen the right to vote, to do something

to restore some version of the voting rights act or update the voting rights act. the developments that michael panelists have mentioned about what is happening in arizona and georgia and in a number of other states, there are going to be serious efforts made to make it harder for people to vote. and i think the attack, there are already attacks to make mail-in voting our absentee voting more difficult. and that comes from the view that it is democrats and poor people and minorities taking advantage of that system. we are still involved in the fights we have been in since the 1990's, and arguably for our entire history, to try to protect the voting rights of many of our citizens. and that is the second place where i would put my emphasis on

guardrails. although i have to say, we should replace the electoral college, and i think we should do it with a constitutional amendment. and i think we have to have a serious discussion about strategies to advance that clause. jeffrey: thank you very much for those suggestions. the national constitution center is launching a guardrails in democracy initiative to collect the most thoughtful proposals from scholars and leaders of different perspectives about what kind of guardrails. these are phenomenal suggestions and we will return to them as it continues. charles, you introduced the discussion by pointing to the future and talking about the possibility of federal regulations of elections. if you had to identify

guardrails constitutional or statutory to increase the integrity of elections, what would they be? charles: i will make two points very quickly. one point probably flies under the radar which is, social sanctions and economic sanctions for those who violate norms, and legal sanctions for those who violate norms. we see for example, prominent lawyers who were making arguments that were way beyond the pale. we are not talking about arguments that are within the bounds are stretching the bounds of legal argumentation as to what a legitimate election would look like. we see law firms, we see social sanctions for that kind of behavior. i think these social sanctions are important and necessary. we are also seeing corporations not contributing campaign financing to candidates and elected officials who have

participated in serious norm violations. so i think those types of advocacy in favor of those kinds of sanctions are important. we have not mentioned a bill currently before the house, the college for the people act, trying to extensively rethink voting rights in this country, including campaign-finance. those types of broad voting reforms are absolutely necessary in lieu of a rethinking of the constitutional structure with an amendment on the electoral college. if we can't do that, congress can certainly pass legislation that addresses significant aspects of our voting systems, including shoring up voting rights. jeffrey: thank you for those important suggestions, including social sanctions, reminding us again guardrails are often

normative, as you initially said, and not always legal or constitutional. thank you ned foley, alex and charles for a wonderful and thought-provoking discussion. you have given us so much to think about and have very well teed up our final panel, i will introduce now. thanks to the three of you. let me have the pleasure of introducing our final panel, which will discuss prospects for the future of presidential elections. in alphabetical order, joel is founder and ceo of a strategy group and lead polling for president obama's 2008 and 2012 campaigns. matthew dowd is a political analyst for abc news, played leading roles in the elections of governor schwarzenegger in california and president george w. bush.

bradley smith as a professor of law at capitol university law school. he previously served on the federal elections commission, and is a contributor to the interactive constitution. and jesse is a member of the new york times editorial board and author of this superb book, i can endorse it because i read it and we held councils about it, let the people pick the president, the case for abolishing the electoral college. welcome to all of you. in the case for distilling your incredible learning, i would like to begin with a mini discussion debate between jesse bregman and brad smith about whether or not we should keep electoral college? you are among the best defenders and critics in the country and then i will ask joel and matthew about the question of polarization, radicalization of voters and what if anything can be done technologically, politically or legally to

lessen the dramatic polarization we saw. jesse, why don't we start you off. you and brad have debated this before. you have about four minutes if you can manage it, i know it is tough. why you think we should abolish the electoral college, but your -- give us your best arguments. jesse: i think we should switch to a national popular vote by whatever means. not because i think it is the best idea but because people of all political faiths throughout american history have thought it's the best idea. nearly 800 attempts throughout history to amend or abolish the college speak to that. it gets at this basic modern democratic notion that we value political equality, one person, one vote. and we value majority rule, the the person who gets the most votes wins. electoral college as it operates violates both of those. everybody gets that the moment

that their party suffers. what looks like a partisan debate is not true. republicans say they like it because they have happened to win to split elections in the last 20 years. what i really think is necessary to do here, my book says the case for abolishing electoral college, yet i write at length about the interstate compact which is not technically abolish the college. it uses the design of the college to achieve an effective national popular vote. here is what i will say. i think it is really important in this debate, and how we talk about it, to make sure people are understanding the stakes and what is going on, regular americans are. the way i we do this most directly is to say, we already have a national popular vote for president and we have had one, at least since 1876, and it almost every state before then. that means all eligible citizens have been able to cast their

ballot for president. technically they are voting for electors, but they think are voting for the president, since 1876 in every state. the only reason we do not measure the vote in that way, the national popular vote, is because of the statewide winner take all laws. it is those laws of the heart of the distortions caused by the way the electoral college functions today. when you talk to people about that and make people understand that, you find almost nobody supports it. people say yes, that is a terrible system, to erase all of the voters in the state who do not choose a candidate with the most vote? i think that is really something that gets to people. when you can emphasize that point, that, to me, is the crucial way into peoples consciousness about this problem. that national interstate compact targets that part of our constitution, that states decide how to award electors and they virtually all do it right winner take all. we can debate for hours about

whether the compact will survive. whether we'll get enough states to join it for it to become effective, whether there will be constitutional, or legal challenges to it that might eviscerated before can take effect. the bigger point is, what it is doing, this effort now 15 years old, is making people aware of the state winner take all distortion. that is valuable. the reason it is so offensive to people, was made aware of when i was working on the book, is nobody but votes for president based on the state he or she is in. people vote because of their political ideology, the personal history, because of the community they live in. they do not do it because that's the community that they live in. they do not care of out the state. they do not do it because of the

state that they live in. when people realize that is the reality of how people vote, the statewide winner take all will becomes indefensible. it is that we need to focus on to talk about steps forward to getting to a true popular vote for president, the way i think we should elect the one truly national office in the country. jeffrey: thank you very much for that concise case against electoral college. brad smith, since i've heard you do it very well before, can you make the most concise case you can in favor of the electoral college? what are the reasons for retaining it even though it now serves a different purpose than the original framers had in mind. perhaps you can also address jesse's point, would a national popular vote pass legal muster? and would you support other means of questioning a winner take all system and allowing multimember districts in the present election which might address some challenges he put on the table?

brad: four minutes. jeffrey: maybe five. you're all doing great. i am really impressed. we will in this great discussion. brad: let me start with a reminder. almost every advanced democracy provides a system in which the governments the executive officer can be elected even though the person's party got the second most votes, since world war ii that is happened more than once in the united kingdom, australia, japan, canada, new zealand. it happens in a most all of the world's advanced democracies. there is a reason for that. i am not impressed by the argument people feel if my candidate did not win the state our votes are erased, that's what elections do. the losers do not elect people. that is particularly true in any nation. again, like canada, the united kingdom. that elects people primarily in

single-member districts, where when you lose your foot is -- your vote is erased. people do care about margins of victory and democracy works in more ways than just aggregating vote. people do not say i'm going to vote because i'm a pennsylvanian, but they vote based on interests shaped by places they love. the interest of a state like wyoming are different than the interests of a state like florida, in a state like colorado. in all of these things vary from place to place. one thing the electoral college does is forces a national campaign. if you think about how president biden won, he had to go into traditional republican are closely divided states, arizona, georgia, and he had to win the state. if you took the electoral college out, it is true that those close elections in those tight states may have fostered

animosity and partisanship, if you took it out you would not need to go try to appeal to enough people in georgia or wisconsin to turn those now trump victories from 2016 into narrow biden victories in 2020. he has been a moderating influence on politics, one of the few good things we can defend once we start to concentrate on how do we improve our system? i do think the national popular vote, the combination jesse mentioned, would be something of a disaster. in part because you do not have a uniform system for counting ballots. some states might say we are going to lower the voting age to 16. a state from another party might say let's make it states might 15. start doing all kinds of things to gin up the vote, with the

most partisan states leading the way. and there are other problems. it should be a nonstarter for some of the constitutional issues are close. at the end i don't think states can gang up to deprive other states and voters of the rights they have under the constitution. that is something we will see about and there more important things we need to look at as we go forward. jeffrey: thank you very much for that and that concise answer, a triumph. joel, you let award-winning research and the polling program for president obama's 2008 and 2012 campaigns. in your experience, to what degree does the electoral college distort the nature of campaigning? does it focus all the attention of campaigns on a handful of swing states? joel: yes. jeffrey: more broadly, what concerns you most about what we learned from the 2020 election from online radicalization, people through disinformation, extreme polarization. what are the lessons you take from it we should be most

concerned about and attentive to? joel: since everyone else has been talking about the electoral college, let me start there, then i will come back to the other piece. i have to disagree with brad smith who has studied this from one vantage point. i can assure you that campaigning in arizona and georgia was not to guarantee biden's election, it was to make his opponent play defense and states he needs to win. if he had one he still would've been elected we only have one . we only have one national election every four years, for the president of united states. i have been skilled at working on campaigns, that target the right states and the right people, battleground states. 12 to 14 states is where the campaigning takes place. we have a third of the country lives in, the four largest states california, texas, florida, and new york. one third of the country live in those states and get virtually

no national campaigning, except for when the candidates are asking for money. this reflects the same distortion i think you mentioned earlier about the u.s. senate. if we truly want to be one country, we have to modernize our system. we have to not be so -- i don't think any of the founders strictly believed in strict constructionism and original intent. i have a lot of historians here so i may be getting out of my lane. they believed in the theory of disinterestedness, that those who would run for office would have property and wealth and be disinterested in serving for long times. we now have political figures, who are significantly interested in preserving their power. this does go beyond the issue of the electoral college. for us to say we are not going to campaign in four states that are the four largest in population, and among the largest and contributed to the

economy of the country as well. probably those states that have some of the most significant health interests and health care issues. they have disadvantaged populations. they are all among diverse states. yet, they are not going to get level of campaigning that say even your example of arizona, , that arizona got with 11 electoral vote. we have to be rational about the times we live in here. with the changes in media, with the consumption of really not having three television networks, like i am guessing a lot of us grew up with three television networks. some of us may be younger than that, i think, but we do not have a common conversation in america. if we cannot use our presidential elections to turn them into a national conversation, that is going to elect the most powerful person in our country and in our world, then i think we are really not being true in a way to what the founders would have anticipated

we would do. hamilton was a great preacher of this when he talked about things that are necessary. we cannot be rigid about not modernizing our democracy. a host of other things have been mentioned. as a practitioner i think getting back, particularly with a fractured media environment. and i was a journalist, so i'm an advocate of the first amendment. but i wonder whether we don't need a fairness doctrine as well, which we got rid of, because we are so fractured in our communication. and for the greatest power on earth to have a fractured national election, fractured media system, it is going to compound our political dissidents, and people's distaste for it. we have to find a way around it so our leaders are not fighting over small paragraphs but they are focused on the people they represent, all 330 million.

jeffrey: thank you for discussing the practical effects of the electoral college on defense campaigning. and thanks for putting on the table the possibility of reforms to our fractured media environment, which could be critical, and might address polarization problems. matthew, you also are distinguished political observer and have been working on the elections of governor schwarzenegger and president george w. bush. do you agree with joel or not about the incentives the electoral college gives to focus campaigning in the swing states? and your thoughts also about what reforms, legal technological, or other, might address this question of online polarization and radicalization? i think you are muted.

>> can i add one point while we're waiting for matthew? matthew: i am here. in all likelihood i would agree with joel. most practitioners, if you gave them truth serum, would agree. the system, i can have a debate, i can give you my viewpoint on the electoral college. but as a practitioner i think what we do is we play the game with the rules provided. the rules provided is an unrepresented presidential race. >> therefore you design a campaign based on an unrepresented base. the republicans know this and they have lost the national popular vote in seven of the

last eight, and in 2004 with bush, when i was the chief strategist on that campaign. bush came within 70,000 votes in ohio, of winning the popular vote but losing the electoral college in that race. what joel said, it is 14 or 15 states, i think it is less. i think what campaigns really focus on today is about 10 states. fundamentally 10 states. in some ways, it is eight states. in 2024 is likely to be less. i think the democratic campaign will not target florida, ohio, will not target iowa, in the 2024 presidential race, which reduces that to a large degree. what that means is if you have 10 states you are campaigning in to win the presidency, you , are ignoring 40 states. and you are ignoring 40 states, not only as joe said, california and texas and york, and new jersey. but you're also ignoring alaska and wyoming and idaho and mississippi and alabama.

so, in a national popular vote, and i have gained this out as probably joel has done, with other people, other smart campaign people. what you would end up doing in a national popular vote campaign, is concentrating on 40 states. it would not just be, i'm going to go to california, going to go to new york, going to go to texas. you would look at how do i win the popular vote in the country that looks at urban areas, suburban areas and rural areas, and what coalitions do i need to put together? what margins do i need to put together, to reduce that will but against me and to increase in areas that will vote for me? then i will go to swing areas around the country. you would campaigning california. a democrat would campaigning in texas. a republican would be campaigning in new york. it would totally change the conversation and the issues of importance. because right now, the issues of

importance that drive the conversations are reduced to a small group of states that have particular interests that my priest -- that might be separate from what the broad issue should or might be on the course of this. as a practitioner, and 2004, you design the campaign almost exclusively on a resource allocation and communication allocation that goes after the states you think. you count the red states in her column as a republican. you count the blue states in your column as a democrat, and you go after these states where you allocate most of your resources and time, and most importantly, the candidates voice in those particular states. after we lost the popular vote in 2000, and then we approached 2004, we looked at it in such a way we realized the legitimacy of a presidency is compromised when you win the electoral college and lose the popular vote.

so one thing we did was we knew we had to win the electoral college. but we also knew from advantage point, and we were thoughtful about this that we wanted to win the popular vote for the legitimacy of president bush and his reelection campaign, for many reasons. for me, we can argue over the theory of electoral college. the practical application of it is 80% or 85% of the country is left out of input, fundamental input, into who the leader of the country is. it is the way it works in practical politics. and now when you have a house in a senate that has been particularly partisan and polarized, who no longer stands up for their own power, who follows the president's abode, it forces every institution of government to follow the lead of a president who's elected, and basically 10 states.

so we don't have a national popular leader. we have a senate out of sync with where the country is and how senate seats are allocated in the country. and we have a house which is heavily gerrymandered in a polarized and divided environment. i don't call it a constitutional crisis, i call it constitutional rot, where we are today, which we are so far removed from one man, one voter, one woman, one vote in the sense of this country. and any sense of the country that represents the interests of the country as a whole. and i will agree with joel we have always had media environments that were partisan, but now we have access of technology. what we are doing is confirming people's worst bias. we are confirming people's worst prejudices. we now have a segment of the country, not small, who because of how they consume information, no longer believes in the

democratic institutions that all of us believe in. they believe in winning before they believe in what our constitutional rights are, or what those are. if you watch what happened to 2020, but for a few elected officials in a few states, this system in my view would have collapsed, but for a secretary of state in michigan, elected officials in wisconsin, some particular elected officials in pennsylvania, some people who stood up in georgia. if those five or six or seven people had been different people, and they could be different people in 2024, which is concerning. if they had not stood up and defended the system, we went about a system where what happened on january 6, what have been much worse because i think the house of representatives and senate, and all of those things, there would have been contested a lecturers in various -- contested electors in various states.

i don't think any time soon we will pass a constitutional amendment to get rid of the electoral college. so what can we do to take steps to make our system more responsive to the country as a whole? there are many things i'm sure we can talk about that i think we can do in order to fix that before we get rid of the electoral college. because i don't think in this polarized environment, that will happen. jeffrey: thank you very much for that powerful statement. he said 80% of the country is denied a voice in the election for president. and a kind of constitutional rot and we need to make our system responsive to the country. the one rule is we must end on time. we have five minutes left. each of you has time for one sentence essentially, one or sentences to answer the question two matthew just set up so well. if you had to name a single reform, legal, political, technological or normative, that

would make our system more responsive to we the people, in the spirit of james wilson, the founder so powerfully channeled. what would it be? i will ask each of you for one or two sentences. what single reform you would identify to make our system more responsive? and i will add, that has a chance of passing. jesse: i would call for mandatory voting. but i think that will be struck down right off the bat. [laughter] i will choose the next best thing which is automatic voter registration in all states. jeffrey: great, brad? brad: i think the big challenge facing us in elections. is in elections. prior to november, 70% of republicans indicated they thought there would be massive fraud almost as many democrats said they thought there be massive fraud. if trump narrowly won and might've stormed the capital,

you might see the same attacks on legitimacy. so we need to work on legitimacy. for a variety of reasons we don't have time to go into i , think a key element is not to make it harder to vote. improving registration and making it easier. but we should cut back on absentee ballots and early voting get back to the idea we have an election day where we come together as americans and think hard about what we wanted to two years or four years, a day in which we come together and celebrate democracy and stand together with neighbors at the polls where there is less concern about fraud. it has long been known and controversial to say up until 10 months ago there is fraud in , balance, put attention on restoring trust in results of elections. jeffrey: thank you for that. three minutes, joel? joel: i would try to pass a

constitutional amendment to require all states to have independent redistricting commissions. the fracturing of the country is worse with the most extreme gerrymandering because technology allows it in ways the founders could not have envisioned. that constitutional amendment to -- should require commissions to keep communities as whole as possible. i think we would get a much better sense of representation in congress from that. i think that would go a great way towards dealing with the day-to-day politics that are a total mess and washington, d.c. jeffrey: thank you for helping us come in right on time. last word, matthew? matthew: i'm going to second joel on independent registration and independent commissions and get rid of partisan gerrymandering. i would increase the size of the house of representatives, which can be passed by majority. all it needs is a majority. we have not increase the size of

the house of representatives since 1912 when it represented, one person represented 200,000 people, we now have one person representing 750,000 people. it would make the electoral college more representative. it would receive more representative votes for key states you would have to campaign in. i would do those things. we fundamentally have to think about what we do about the united states senate because it is unrepresentative. maybe the thing is, adding more and creating more states to make it more representative in the united states senate because today it not represent the country either. jeffrey: beautiful. right in on time, well done, everyone. thank you so much to our phenomenal panels, all three panels, for an illuminating and thoughtful, and thought-provoking discussion. we have tangible takeaways, resurrecting guardrails, the constitution center will collect and keep as part of the conversation. this great symposium will be

posted online as many of you have asked. it will be podcasted. so all of the light of our brilliant scholars and practitioners have spread can inspire the country and guide us forward. thanks to the university of pennsylvania journal of constitutional law. and bill ewald. in thank you for all of you, friends, for taking an hour and a half from the middle of your important workdays to educate yourselves about the u.s. constitution. thanks, again, and we look forward to seeing you again at another constitution center panel soon. >> thank you. >> goodbye. >> thank you. ♪ >> you're watching c-span, your unfiltered view of government. c-span was created by america's cable television companies in 1979. today, we are brought to you by these television companies provide cspan-2 viewers as a public service.

♪ >> washington journal, every day we take your calls live on the air on the news of the day, and we discussed policy issues that impact you. sunday morning, your reaction to the senate impeachment trial as the senate voted 57-43 to acquit former president trump of the article of impeachment brought by the u.s. house of representatives. tomorrow, share your opinion of the senate verdict during washington journal, live at 7:00 eastern. >> next, a discussion on the history of the senate filibuster and minority rights. new york university's brennan center for justice heard from former senate staffer on his new book "kill switch: the rise of the modern senate and the crippling of american democracy." this is 45 minutes. >>