The Electoral College, National Popular Vote, and the Presidential Election

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Lawyer 2 Lawyer: Law News and Legal Topics

The Electoral College, National Popular Vote, and the Presidential Election

10/28/2016

Trent England: Probably the Electoral College is the only reason why real racist vote suppression after the Civil War didn’t succeed in stealing the White House in 1876. It’s a dramatic story and it’s hard to understand how without the Electoral College that fraud would have been contained in a way that Congress could have ultimately dealt with it as they did.

John R. Koza: So we’re sitting here today in 2016 with one of the most interesting and consequential presidential elections, perhaps in history and three quarters of the country is totally irrelevant in making the decisions to who the President will be, and that’s the biggest single problem with the state-by-state winner-take-all system is that it concentrates power in an accidental handful of states.

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J. Craig Williams: Hi, this is Craig Williams coming to you from Southern California. I write a legal blog called “May It Please the Court”. My co-host Bob Ambrogi is away on business today.

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Well, today, we are going to be the Electoral College and it has become somewhat of a controversial talking point as it does every presidential election when it comes to figuring out who’s going to be our next President.

Under the Electoral College you have to have 270 out of 538 electoral votes. Some have praised the Electoral College citing its creation by our founding fathers used to minimize the risks of corruption, regionalism, and backroom politics, while others have produced legislation to abolish the Electoral College in its entirety in favor of electing our president through a national popular vote.

So today on ‘Lawyer 2 Lawyer’ we will take a look at the history of the Electoral College. We will discuss the Electoral College versus the National Popular Vote and the great debate over whether the Electoral College is still viable, especially during this presidential election.

So to help us do that, today we have a great lineup for you. Our first guest is Trent England. He is the Vice President for Strategic Initiatives at the Oklahoma Council of Public Affairs, where he is also the David and Ann Brown Distinguished Fellow for the Advancement of Liberty, and he also directs the Center for the Constitution & Freedom and the Save Our States project. Save Our States is a project of the Oklahoma Council of Public Affairs. And Trent is also a host of a radio program, ‘The Trent England Show’, which is on 7 to 9 a.m. every weekday on Oklahoma’s AM 1640 The Eagle.

Welcome to the show, Trent.

Trent England: Yeah. Thanks for having me here. It’s a great topic to talk about, especially timely right now.

J. Craig Williams: Thank you. And our next guest is Dr. John Koza. Dr. Koza is the lead author of the book ‘Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote’, and he is also the originator of the National Popular Vote Legislation. National Popular Vote Inc. is a non-profit corporation whose specific purpose is to study, analyze and educate the public regarding its proposal to implement a nationwide popular election of the President of the United States. Back in 1966, John published a board game involving the Electoral College strategy. And welcome to the show, John.

Dr. John R. Koza: Well, thank you, Craig.

J. Craig Williams: Well, I wonder if anybody in this presidential election has played your game, but why don’t you give us kind of an overview of how the Electoral College has gotten into our society and how we use it, and what it’s supposed to do?

Dr. John R. Koza: Well, the Constitution establishes the Electoral College and it gives each state a certain number of electoral votes, primarily based on population plus two additional votes for each state senators. The states in turn have the power to determine how the electoral votes are awarded to particular presidential candidate, and that creates the question that is currently in front of a number of state legislatures which is whether the method of choosing the presidential electors should be changed to a nationwide election of all 50 states versus the current state-by-state method.

J. Craig Williams: Trent, how do the electors get chosen?

(00:05:00)

Trent England: Well, this is where people do oftentimes get very confused about how this process works, because the electors — one of the most important points is electors are actual people who get elected to a real office called Elector. And so, before a presidential election one of the things that state political parties do at their state convention, so not at the national republican convention or the national democratic convention but at the state political party conventions, they actually nominate a slate of people to serve as their states’ electors if their party’s nominee wins the most votes in that state. At least that’s how it works in 48 of the states plus the District of Columbia; Maine and Nebraska do it slightly differently.

So when we vote for president we talk about voting for president. We are really voting for this slate of electors and I live in Oklahoma, the polling suggests that the Republican ticket is likely to win here in Oklahoma, and that means that Oklahoma will actually elect this group of people, these seven individuals as Oklahoma’s electors who will then in December actually cast our state’s electoral votes for president.

So a lot of people kind of know the basics but they don’t realize this is a real office. These are real people, and the people who get elected on Election Day it’s not actually the President and the Vice President, it’s actually these electors who then cast the official ballots in December to be opened and tabulated in Congress in January.

Everyone will know what the result is likely to be, bring very unusual on election night, but you still have this process, these checks and balances and safety valves even after Election Day through this Electoral College process.

J. Craig Williams: Well, John, many lawyers look to the history of how legislation got enacted, what was the Founding Fathers’ purposes behind putting the Electoral College into the Constitution, why did they put it there?

Dr. John R. Koza: Well, the Founding Fathers put it there because they thought the electors would be aristocratic luminaries in their local area and that they would sort of exercise personal judgment as to who the best candidate could be. And that worked fine in the first two elections when there was no contest and George Washington was everybody’s choice unanimously. But by the third election it was actually a contest between Jefferson and Adams and both political parties nominated electors who were pledged in advance to vote for Jefferson or Adams if the respective elector got elected.

So starting with our third presidential election, the presidential electors have more or less become rubberstamps for the political party, and as Trent correctly points out the political parties each nominate electors seven in the case of Oklahoma, seven people, seven republicans and seven democrats are nominated. And then according to State Law one of those two slates of electors becomes Oklahoma’s electors when the Electoral College meet on December 19th.

J. Craig Williams: And what obligation, Trent, do these electors have to follow the National Popular Vote, can they actually decide as the Founding Fathers intended for it to pick the right candidate?

Trent England: Well, so there are some legal questions there and there are some practical prudential political questions there, and one of the live issues with the Electoral College is the question of whether — it’s not the national popular vote but the state popular vote that determines who gets elected. There’s a question about other states can, many states have passed statutes that claim to control how those electors vote.

Back in 1976, just for example, Ronald Reagan had almost defeated Gerald Ford for the Republican nomination. Ford was the sitting president and Reagan ran this insurgent campaign, of course, Ford wins at the convention and then loses to Jimmy Carter and yet republicans won Washington State and so the Republican electors reelected there one of them as a way to sort of suggest maybe who should be the Republican nominee in 1980 didn’t cast his electoral vote for Gerald Ford, he cast it for Ronald Reagan. And this is the — the so-called faithless elector — a lot of states since that time, including Oklahoma, have passed laws that say it’s actually a crime. If any elector tries to do that, tries to cast a vote for someone other than their party’s nominee, I think that those laws are unconstitutional, because I believe the original intent of the Electoral College is absolutely clear. I think, John still showed a little bit the founders’ purposes here.

(00:10:04)

Yes, they thought that the electors would have the ability to exercise judgment to prevent maybe someone like an Aaron Burr who is a great politician as it happens, but most of the people who knew him well also thought he was a complete charlatan and dangerous to the Republic, and they didn’t say that the Electoral College would help to weed out people like that, maybe keep them from running even in the first place, but I do think that electors have a constitutional right to vote their conscience.

Now the practical problem is, the Electoral College never meet in one place at one time. The founders wanted them to be very independent and they didn’t want some kind of a bargain. It’s why Congress doesn’t elect the President, they thought about that, but they said, look, the President is going to have to work with Congress. We don’t want bargaining involved in presidential elections. We want temporary body that’s looking just at who the next executive should be.

In December they meet in state capitals, so you have 51 meetings of each state’s electors which it’s not as if they can sit down and deliberate together, however, there are some safety valves that I think still exists. I actually think in this election it’s surprising, it’s great that we are having this conversation. I think a lot of Americans don’t realize – there are questions about both candidates. You could have a group of electors say we think that our party made a mistake, we think if our party convention met today, they wouldn’t nominate this person. We want to do something to maybe elevate the vice presidential nominee and say, we don’t want to override the will of the people, but we think that we should put our party’s vice presidential nominee, we should cast our electoral votes for that person for President. That’s the kind of thing, and actually I think the situation many Americans believe we’re in today in 2016, it is exactly why we have the Electoral College and why I think electors do have that latitude.

There are only just layers of layers of prudence on top of the legal questions and maybe we’ll get to some of those. I’m not suggesting electors necessarily should do any of that, but I do think we should recognize that they could and that’s part of why we have this system.

J. Craig Williams: John, what risks do the Electoral College present for a “rigged” election as some of the candidates have claimed in this election?

Dr. John R. Koza: Well, because the 48 states award all their electoral votes to the candidate who gets the most votes inside each state. There’s only a handful of states that actually matter in presidential elections. So for example, in this election over 50% of the campaign activities in four states, which is Florida, Pennsylvania, Ohio and North Carolina, and if you go into those four states, because they are closely divided battleground states, a few hundred or a few thousand votes could determine how their entire block of electoral votes gets cast.

So if there is fraud in any one of those four states it could very well change the outcome of the national election for President. So fraud is particularly important in the closely divided battleground states and that would be a particular risk if you’re concerned about fraud.

J. Craig Williams: Is that one of the problems that we experienced in Bush versus Gore and the hanging chad or how did the Electoral College plan to that issue? I thought the courts decided how those votes turned out.

Trent England: Well, you had the election there where the entire state’s electoral votes which were the electoral votes that in fact elected George W. Bush dependent on 537 votes. Now, if there had been fraud in that election and people argue back and forth whether there was, but if there had been fraud it was entirely possible that 500 votes could have been stolen somewhere in Florida and hence determined the occupant of the White House for four years.

There’s a really important other side to that coin though, which is in election we talk about the issue in that state or the issue in we talked about 1876, we talk about the issues in South Carolina and in Florida, in Louisiana and they are contained in those states, and I think that, well, John is right. Obviously as the election goes on, it becomes more-and-more clear, although right now, I checked this morning the Real Clear Politics Electoral Map lists ten states as toss-ups and another 15 states is only leaning one way or the other.

So I think that the battleground in this election has widened considerably, and I suspect when we actually get the final reports from the 2016 election, we will see that the campaign’s spending is actually broadened out quite a bit from some of our other recent presidential elections.

(00:15:04)

But the Electoral College turns each state into the equivalent of watertight compartments, an ocean liner, if you have fraud but also mistakes, I mean the hanging chad questions. Electoral questions about confusing ballot, they’re always contained in that. I do a lot of – I mean let’s face it, there are Republican diehards who think that the dead rise and vote in Chicago, in every election and there are Democrat diehards who think that that the Koch Brothers and maybe some officials in Texas or Florida or wherever are manipulating these voting machines and trying to steal elections. What is helpful especially legally, I think, and particularly for lawyers you know where the issue is, you know the law, the state law that applies, and you also know that if there is a question about a polling place in Chicago or a polling place in Oklahoma, you know that at most it is going to cancel out the vote of somebody else in that state and you also know the law that applies, you know the court to go to and you know that the problem is isolated in one jurisdiction, and I think especially when you go back to post Civil War 1876, 1884, 1888, you see how that may have actually saved — especially in 1876 probably the Electoral College is the only reason why real racist vote suppression after the Civil War didn’t succeed in stealing the White House in 1876. It’s a dramatic story and it’s hard to understand how without the Electoral College that fraud would have been contained in a way that Congress could have ultimately dealt with it as they did.

J. Craig Williams: Well we need to take a quick break but we’re going to come back to that 1876 story right afterward. We are going to hear a quick message from our sponsor.

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Welcome back to ‘Lawyer 2 Lawyer’. I am Craig Williams, my co-host Bob Ambrogi is off today. Speaking with us is Trent England, the Director of the Save Our States project and Dr. John R. Koza, the originator of the National Popular Vote Legislation and the inventor of the Electoral College Board Game.

Well, Trent, right before the break we were talking about the 1876 story and why don’t you relate that to our listeners so they can understand the significance of how the Electoral College plays a role in American politics and in American elections?

Trent England: Absolutely. Thanks for that, because I do think going back to history is, it’s the greatest way to understand how all this works, especially you go back after the Civil War, we think we are divided today, right, we were divided at that point regionally, bitterly, and this was the most significant challenge I think our country has ever faced is could we ever really come back from the Civil War and part of the story of 1876 is how we actually began to do that as a country.

So in 1876, as people would imagine, people deserve to know the history, there were right after the Civil War, there were a lot of Union troops in the South, the freed slaves were allowed to vote, they were — actually, they were freed slaves, African-Americans who were elected to office in the South right after the Civil War because of the on-the-ground presence of troops protecting people’s civil rights but that wasn’t going to last forever, and as that began to go away, there were real efforts, successfully effective efforts at vote suppression and what happens in 1876 and you kind of imagine a map, that the intensity in the South in favor of what at that time that the Democrats not connecting that to any political parties today, but the intensity in favor of the Democratic Party in the South and even the intertwining in that politics of radical violent groups like the Ku Klux Klan there was real vote suppression that went on.

And so, there was a question in the 1876 election, there was a dispute over the slates of electors in Louisiana, Florida and South Carolina, there was also was kind of a side dispute over one elector in the State of Oregon but that was a different matter. And what people said was, they said, we know that the states claim, that those three states claim that the Democrats won these narrow elections in these states but we believe those elections were rigged.

(00:20:08)

And congress actually was faced with from those three states competing elector slates, the state sent their democratic elector. Well, sent their democratic votes, electoral votes to Congress, but the Republicans in those states actually sent to Congress their own votes and said we think this is illegitimate, they laid out their case.

Now a lot of people remember 1876 for what’s called the corrupt bargain because there was politics — there’s always politics, but in the end the Democrats’ annual children who appears to have won the most popular votes, although many historians look back and say that probably is only the case because of vote suppression, but Samuel Tilden didn’t win. The Congress looked at it they said we’re going to count the other electoral votes and Rutherford B. Hayes won the presidency, and again only because of the state-by-state nature and the postscript of that is that in the wake of that election Grover Cleveland actually becomes in 1884 the first Democrat to win the White House and the way they start to do it is the democratic party on a national level says, wait a second, we don’t need to win 84% in South Carolina, we don’t need these huge majorities, frankly we don’t need the clan, we don’t need the most radical elements of our coalition.

What we need is to make inroads in the north and those republicans are actually, they think they have such a lock on Massachusetts and Rhode Island and some of these states that that they turn their nose up at these new Catholic immigrants from Europe, we’re going to go, we the National Democratic Party, we’re going to reach out to these Catholic immigrants in northern cities, bring them into our coalition and even if that alienates our most radical supporters in the South, doesn’t matter, the Electoral College cares about that 50% plus 1, not 85%-90%.

J. Craig Williams: Trent, let me interrupt you for just a second because I want to throw that explanation over to John for a moment and ask how the 1876 scenario plays into the current election?

John R. Koza: Well first of all trans history is quite at odds with what credible historians normally say, but the important thing is not what Trent thinks happened in 1876, but what happens today and what happens today is that the presidential campaign is focused on a small handful of states, for example, in this campaign 90% of the campaign events and money will be spent in 11 states more than half will be spent in four states, with the result that the vast majority of the United States is politically irrelevant in the presidential election.

So we’re sitting here today in 2016 with one of the most interesting and consequential presidential elections perhaps in history and three quarters of the country is totally irrelevant in making the decision as to who the president will be, and that’s the biggest single problem with the state-by-state winner-take-all system is that it concentrates power in an accidental handful of states that happen to be very close and leaves all the other states, such as Oklahoma where Trent lives and California where I live, and 30 some other states completely irrelevant in the campaign.

J. Craig Williams: How does your proposed legislation change that?

John R. Koza: Our legislation says, that the candidate who gets the most popular votes in all 50 states should become president, and the way it implements that is that the states have the power under the Constitution under Article 2 to decide how they award their electoral votes and so far 11 states with 165 electoral votes have passed laws saying that they will award their electoral votes in the future based on the popular vote in all 50 states and our national popular vote legislation won’t take effect until it’s ratified by states having 270 electoral votes that creates a pool of electoral votes 270 enough to elect the President, and that entire pool of electoral votes will be given to the party that won the National Popular Vote in all 50 states. We do hope it will be in effect by 2020 and it will make every person in the United States politically relevant in electing the president.

J. Craig Williams: Trent, how do you see that?

Trent England: Well, the problem with John’s proposal is — there’s several and one is simply it’s completely without historical precedent. States have awarded electors in a variety of different ways, but always based on something intrinsic to their state, and in fact we know — we know with certainty that the original intent of the framers of the Constitution and the founding generation was they wanted states represented in this process.

(00:25:06)

And so, if the State of Oklahoma said we’re going to give away our electors based on the election result from other states, I mean, especially when Los Angeles County has nearly as many voters as we have in the entire State of Oklahoma. So the idea that we would give away our electors based on something extrinsic to our state, something it doesn’t represent the political will of the people of the State, I think it is constitutionally questionable, that’s my view. I understand John has a different view and it’s an open question what the courts would do with that.

But more problematic are just some of his assertions about the way the campaign actually works. We had every candidate, at least every serious candidate that was in the presidential campaign last year starting out come through Oklahoma. We have television ads that we have seen in Oklahoma for presidential candidates, we have billboards here in Oklahoma. I was driving through Arkansas and Tennessee the other day and saw some advertising there.

The idea that Americans aren’t relevant because they happen to live in a state where so many of the people have already made up their mind one way or the other; Senate races are that way, gubernatorial races are that way, congressional districts are. I wish John and I could get together and work on redistricting because that’s where you really have a lot of Americans sidelined, and it’s also an area where I think there is a fix that is less legally dubious than the National Popular Vote Interstate Compact.

But the reality is, Americans vote in presidential elections the fact that one state happens to be really close one year and happens to not be close four years later. Utah is a swing state this year. We have this — arguably about 25 states according to the real pure politics poll averages where it’s within striking distance for either side. I don’t think Americans are irrelevant in the process as John likes to portray and I also think that’s what we’re concerned about let’s talk about congressional district, so talk about the Senate and gubernatorial, if that’s true in all sorts of cases nothing you need to the Electoral College at all.

J. Craig Williams Excellent points all gentlemen and worthy of some good debate and perhaps a solid court case to wrap it all up. But it’s just about time to reach the end of our program, so we’d like to invite both of you to share your final thoughts at this point along with your contact information so our listeners can reach out to you and perhaps start a new national plan on redistricting as Trent suggests because that certainly is a problem. So, John, I will throw it over to you first.

Dr. John R. Koza: Well, we think the current system electing the president is completely broken and unfair. It makes people’s votes unequal, it makes most people’s votes irrelevant in the presidential election and it can easily be affixed. Supreme Court has already ruled that the choice of method of choosing a state presidential elector solely a state decision, the plenary power of the state legislature and they specifically ruled against Trent’s theory that historical precedent has anything to do with it because they unanimously decided that the fact that a proposed method hasn’t been used in the past is not a reason why it can’t be used in the future.

So our system is based soundly on state’s constitutional right to award their electors and we think electing presidential electors on the basis of which candidate gets the most popular votes in all 50 states is by far the best way to do it. Our group is called National Popular Vote and our website is  HYPERLINK “http://www.nationalpopularvote.com” www.nationalpopularvote.com.

J. Craig Williams: Great. Thank you very much, and Trent, we would like to also give you the same opportunity, and I don’t know, if you have the opportunity as well may be you can talk a little bit about federalism since that’s also part of this issue.

Trent England: Well, absolutely, thank you. The Electoral College is one of the pillars of constitutional federalism in our Constitution, and I think it’s actually ironic that there’s been a lot of talk about federalism lately and on the left and the right different theories of states, but a lot of interest in using states and subsidiarity or localism, the Electoral College is part of that, it’s why state laws for the most part within a framework created by the Constitution and some federal civil rights guarantees, but state laws actually dictate the process of elections, state and in many cases really local officials and volunteers run presidential elections. There’s no presidential appointee or executive branch agency in Washington, DC in charge of running our election.

I think that if John’s plan was to go forward I think we would see even more concerns about election rigging about national power, about questionable practices in Chicago, canceling out the results of voters in Oklahoma or vice versa.

(00:30:13)

I think the Electoral College, Alexander Hamilton said, “If it be not perfect it is at least excellent.” And I think that the history really is important. I do encourage people, go back, read about 1876, 1888, these are sometimes portrayed as failures of the Electoral College, they are really its greatest successes, folks can read my take on it, but just read the history, it’s intriguing at least, but they can read what I’ve written on this topic at  HYPERLINK “http://www.saveourstates.com” saveourstates.com.

Save Our States is a project of the Oklahoma Council of Public Affairs. People can contact me through their website  HYPERLINK “http://www.ocpathink.org” ocpathink.org and follow me on twitter where I talk about this and federalism and other related topics @trentengland on Twitter.

So thank you so much for hosting this program today. I think this is a great debate for Americans to have and I think it actually offers maybe a little bit of hope in a presidential election that has a lot of us a little bit frustrated.

Dr. John R. Koza: Yes, thank you, Craig.

J. Craig Williams: And thank you Trent. With us today has been Trent England, Director of the Save Our States project and Dr. John Koza, the originator of the National Popular Vote Legislation.

Well, that wraps it up for this week’s ‘Lawyer 2 Lawyer’. Thanks for listening, this is Craig Williams, join us next time for another great legal topic. Remember, when you want legal think ‘Lawyer 2 Lawyer’.

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