Lawrence Lessig: Does the Electoral College Disenfranchize Voters?

I mean, it is a bad thing that the loser wins. I mean, that's just not the way an election is supposed to work. So that's happened twice in our lifetime. And it happened 100 years before that. And it's going to happen more frequently going forward. We can show that demographically. But that's not the real problem. The real problem is that in every election, the presidential candidates are focused on just 14 states, the battleground states, the purple states. And those 14 states are the only states that matter to those candidates. And what scholars have demonstrated is that presidents and campaigns bend themselves and their policies to make those states happy. And those states don't represent America. They're older, they're whiter, their industry is kind of 19th century industry. There are seven and a half times the number of people in America working in solar energy as mine coal. But you never hear about solar energy in a presidential campaign because those people live in California and Texas. They don't matter to the presidential election. What you hear about is coal mining because the 50,000 coal miners left in America happen to live in these battleground states. So this is just a product of the way the electoral college, the way states count their votes to allocate their electors, something called the winner take all system. So all but two states say that the winner of the popular vote gets all of the electoral votes for that state. So in 2000 in Florida, George Bush won that state based on a stopped recount by 531 votes. He got all the electoral college votes in that state even though he just barely won that state. And so winner take all is what makes it so that it doesn't make sense for anybody to pay any attention to any of the non-battleground states and spend all of your time in the battleground states. And 99% of campaign spending was in 14 states. 99. 99%. 95% of time. But the only reason they were not 99% in those battleground states is the other 5% they were in New York and California raising money. So this is a system designed to give power to these battleground states. And then you say, well, why? Is it something the Constitution requires? And the answer to that is absolutely not. The Constitution does not say how the states will allocate their electors. And indeed, when states started adopting this winner take all system, many thought it was an outraged perversion of the constitutional design. So Jefferson was outraged. But then he said, well, if some states are going to do it, then all states have to do it. Because if you're a state that allocates all of your electors to the winner, you're going to have more power than your neighboring state that only gets half the electors to the winner. So very quickly there was a race to the bottom, and that's kind of where it stuck. And so the question is now what we can do about it. Well, there are two big reform efforts out there. One of them is called the National Popular Vote Compact. I mean, I should say, you can imagine amending the Constitution, but it takes three fourths of the states to change the Constitution, and three fourths of the states are not going to agree with abolishing the Electoral College. So this is not going to happen anytime soon through the Constitution. But there are two ways without amending the Constitution we could fix this problem. One, the National Popular Vote Compact is basically states who say, look, we're going to pledge our electors to the winner of the National Popular Vote. So the state looks at who won the National Popular Vote and then picks the slate of electors from their state with the party of the person who won the National Popular Vote. So in a state like New York, if the Republican won the National Popular Vote, even though most people in New York are Democratic, they would allocate their electors to the Republican, vice versa, in Texas. That's the way that system would work. And I personally like this system because I believe in the idea of one person, one vote. Everybody's vote is an American citizen for the American president. Should be equal. It shouldn't matter that you're having to live in Wyoming versus Pennsylvania versus New York. But there are people who are worried about this because they fear that it'll become a kind of flyover democracy. But the only places that candidates will care about will be places like LA or New York or Chicago. I actually don't think that's right, but I get the understanding. I think they're wrong about the way the campaigns work, but I understand why they're anxious about it. So then that leads to the alternative solution, which is something my group, EqualsCitizens.us, is litigating this right now. Which is trying to declare this winner take all system violates the constitution because it basically says that if you're a Republican in California, your vote never matters. If you're a Democrat in Texas, your vote never matters because we just count your vote up and then we throw it away because we allocate all the electors to the dominant party in your state. And so we've got, David Boyes is our chief litigator. We've got a case in California, Texas, South Carolina, and Massachusetts asking the courts to declare winner take all unconstitutional and instead say that electors have to be allocated proportionally. So if you get 40% of the vote in the state, you get 40% of the electors. If you get 50%, you get 50% of the electors. And what that would do overnight is it would make every state in the nation competitive. Like there'd be a reason for a Democrat to go to Texas because you're not going to get all the electoral votes. You're not going to get half the electoral votes, but you'll get 40%, maybe 45%, and that could matter. Or a Republican would go to California because you're not going to get all the votes in California, but you're going to get a lot. There are a lot of Republicans in California. So this change would immediately make every state in play. But unlike the national popular vote alternative, there are many people who look at this and say this would be better because small states would still have a pretty important role, like an elector is an elector. And if I can get it from Arizona, I'm going to care about Arizona. If I can get it from Arkansas, I'll care about Arkansas. So it's not going to just be the big states or the big population centers. It's going to be every state. And so if we can get a court to say this violates the Constitution, then you could have states forced to allocate their electors proportionally. And if they did that, then the problem that you identified at the start, which I think is the problem, could be solved overnight. You would no longer have these battleground states deciding everything. You'd have a president who cares about getting elected by all of America, and that would be an incredible improvement. That seems like in and of itself would be a game changer. If they could do that, that would change a lot. But one of the things that you said, you said you don't think that it's possible that we would ever vote out the electoral college. But is there support for the electoral college? Is there a good argument for it? So there is support for the idea that every state have a role. And there's a support for the idea that small states get a kind of thumb on the scale, which is what the electoral college does. So there is some support. But most people, you know, 70% of people don't like the idea that the president is not chosen from the majority of voters voting. So most people would oppose it. But the point is to change the constitution, you need the state legislatures or state conventions to agree with the change. And what many states, at least 13 states, I fear, would say is that, you know, we actually win more under this system than we lose. So we're not going to change the system. And so unless you get like some overwhelmingly popular movement to support it, or again, you know, you can imagine a presidential candidate who kind of made fixing this part of the democracy part of the plan to, I don't see how you're going to build a political movement to get there. Another way of putting it is, you know, this National Popular Vote Compact, which is going around state to state and getting states to join right now has about 100. And so the way this works is that when the equivalent of 270 electoral votes have been committed, then the compact kicks in. So when they get to 270, the problem goes, you know, the problem of this electoral college goes away because at 270, according to the plan, the winner of the popular vote wins the electoral college. They right now have 172 electors pledged. Right? So they have less than 100 more to go. But the problem is they've got to convince states to join the compact. And they're kind of, they kind of hit this red wall now because many Republicans think the only way to win the presidency is through the electoral college now. So many state legislatures. Why do they believe that? I think many Republicans just think that their great benefit is from the electoral college. It's not surprising because the battleground states are primarily Republican and because the base number of Republican states is so high, right? Because you know, these small rural states get disproportionately more electors than states like California. So, you know, Wyoming gets three electors disproportionately in terms of the population. Right? So they like the system as it is. And you know, you look back and you say, well, they got George Bush even though he didn't win the national vote and they got Donald Trump even though he didn't win the national vote. It's not hard to understand why they're there. I think, again, I don't think they're right about this. You know, in 2004, if 50,000 votes had switched to John Kerry in Ohio, then John Kerry would have won the electoral college but lost the popular vote. And if that had happened in 2004, I think the electoral college would be dead today. Really? Because a Republican won in 2000, a Democrat won in 2004, people would say, this system's just crazy. We got to get rid of this system. But now people think, well, Republicans benefit from this. So I'm a Republican, I'm going to block the change. And if that's true, then it's never going to happen at a constitutional level because the Constitution requires three fourths of the states to support the reform. And the reinforcement of that is that Donald Trump won without having the popular vote. Yeah. So, of course, there's no hypocrisy that touches this president. But you remember in 2012, when there was a moment for about 10 minutes when the national media was reporting that Romney was going to win the popular vote but Barack Obama was going to be elected by the electoral college, Trump started tweeting vigorously about how this is a denial of democracy. We have to march on Washington to end this banana republic-like system because the electoral is the worst possible thing in the world. And of course, after 2016, he had different views about the election college.