Skip to main content

tv   Public Affairs Events  CSPAN  December 13, 2016 2:00am-4:01am EST

2:00 am
and when the people become directly engaged. as a member who cares very deeply about the future of our democracy and the principles of one person, one vote, i very much intend to remain engaged in this move -- in moving this issue forward. and i hope that all of you will join me in that activity. i want to now recognize, i think the distinguished gentleman from new york, mr. jerrold nadler, who has worked on these and other constitutional questions quite diligently. >> thank you, mr. chairman. i am pleased to join this forum on the electoral college in the future of american democracy and to hear from our distinguished panelists. i believe we must move away from
2:01 am
the electoral college as it currently operates system guarantees the winner of the popular vote actually becomes the president of the united states. it shouldn't really be considered a radical idea. this is a matter of crucial importance to our democracy. and the good news, it's considered elementary in every other democratic country in the world. only here is it novel. the good news is that there are practical steps we can all take in our own states that could reform the electoral college and make a real difference in how the president is selected. as you know, the popular vote different from the electoral college vote in just three times in the 19th century. the last time then was in 1888. the electoral college did not differ from the popular vote again until 2000. 112 years when it didn't make a difference. so we as a nation got complacent. we figured it was a relic but didn't matter. vice president al gore won the
2:02 am
popular votes by about 540,000, but lost in the supreme court and awarded florida's votes to then-governor george bush by 537 votes. this year just 16 years later hillary clinton won the popular vote by 2.5 million votes. 2.5 million votes, and counting. but lost in the electoral college. the electoral college seems to be getting more disconnected from the popular vote. we didn't have to worry about it for 112 years and suddenly twice in 16 years and 2.5 million vote difference we are getting dangerously less democratic with a small d. it is time we got rid of the distorting influence of the electoral college on the popular will. some proponents of the electoral college argue that it is necessary to protect smaller states by giving them an outsized influence. however, the small states already protected inso far as they need protection by having outside influence in the united states senate. by each state guaranteed two votes. wyoming was 600,000 people has the same two senators as
2:03 am
california with i think 39 -- i don't know, 25, whatever, how many million. there are 53 seats, probably about 35 million people. and they don't need extra protection in the electoral college as well. in addition, the difference between the population of the small states and the large states today is much bigger now than it was when the constitution was written. we've gotten to the point where about 20% of the population of the united states can elect a majority of the united states senate. that's ample protection for the small states. we must also remember that the electoral college was designed to enhance the power of slave states. the southern states although they gave absolutely no rights obviously to slaves had their slaves counted as three-fifths of a person when it came to determining voting representation in the house. and therefore in the electoral college. that motive although obviously no longer operative should not influence anything today. the other reason the electoral college was created was to protect us from democracy itself
2:04 am
as well as from poor communications. the founders feared direct democracy. today we don't believe we need protection from democracy. and we are to move to a system that elects the president by popular vote. obviously, asking states that are benefitted by the electoral college to vote three-quarters, two-thirds in the senate and house and three-quarters legislatures is to ask a lot. but we don't have to do that. we have the national popular vote initiative. i was proud to play a role in ensuring that new york state a few years ago joined the initiative. and i think it makes sense to continue to pursue this method to render the electoral college moot. this method is an interstate compact and states with 270 or more electoral votes agree that once 270 votes worth of states ratify that their electoral votes will be awarded to the winner of the national popular vote. this seems to me the way to go. whatever it takes, it's time to move past the electoral college
2:05 am
and empower the voters, all the voters in this country to choose our president. let me say one thing a little off this. president-elect trump said that -- well, or maybe it was on his behalf, i think he said it himself, when it was pointed out he didn't have a mandate, that he got 2.5 million votes fewer than hillary clinton, he said, oh, if it were the popular vote i would have won the popular vote because i would have campaigned differently, i would have gone to some of the bigger states. he may be correct. obviously, if the rules of the game were changed, campaigning would change. and maybe that would have overturned that 2.5 million votes and maybe not. that's unknowable. but the fact is that's what ought to happen. that's what ought to happen. the majority ought to rule in this country as in every other country, as in every other democratic country. i cannot think of any real or practical reason any longer to keep the electoral college, so i hope we'll proceed with reform.
2:06 am
and i commend the chairman for taking initiative to call this hearing. i yield back. >> thank you so much. i'd like now to call on the distinguished gentleman from tennessee, the ranking member on the subcommittee on the constitution steve cohen. >> thank you, mr. chair. and thank you for calling this hearing. it's important that we discuss these issues particularly as we look upon this past election. and the coming vote of the electoral college. i have introduced recently hj res 104 which would amend -- on the electoral college and call for direct election. it is hard for people to fathom that at such a large plurality, 2.5 million people voted for one candidate and she is not the
2:07 am
president. since i introduced my resolution, i have had quite a bit of comment on facebook, on twitter and with letters to the editor. it is amazing that most of the people that have responded have been against the proposal and that they consider these are most of the people who supported the candidate who was the populist and going to drain the swamp, but in their arguments they argue that allowing direct election would be the tyranny of the majority. and that you would let the rabble rule. well, it's ironic that their presidential candidate was kind of just the opposite. he was for the common man. he was for draining the swamp. and he was for changing things in that regard. the tyranny of the majority they talk about is kind of hard to fathom. and oftentimes in our courts give us these rights although sometimes the bill of rights does and sometimes the congress does, and legislatures, but mostly it's the supreme court that protects minorities from the tyranny of the majority.
2:08 am
and yet most of these folks that respond to me, and i check them out pretty close before i give them a bruce willis audios, they are not for most of those supreme court decisions that protect minorities from the tyranny of the majority. so people seem to take their arguments based on the outcome. and i'm not pleased with the outcome. but i do know that intellectually the electoral college is an anachronistic provision. it might have served well in the
2:09 am
late 17 and 1800s, and while the founding fathers, all spelled with capital fs and wonderful gentlemen and i think the world of jefferson, he and the other founding fathers were not perfect. and they did have the three-fifths compromise. they did deal with slavery being a legal institution in this country and chose not to repeal it. they didn't give women the right to vote. and they didn't give people the right to elect directly united states senators. they believed in their power and that there was an ars tock ri si, most groups they don't like to see it changed. so they make it difficult to amend the constitution. and while they made it difficult, and this would be a difficult process to achieve through constitutional amendment, jefferson said, i am not an advocate for frequent changes in laws and institutions, but laws and institutions must go hand in hand with the progress of the human mind. as that becomes more developed, new lightened, new discoveries made and manners and opinions change, with the change of circumstances, situations must advance also to keep pace with
2:10 am
the times. we might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors. so they did understand it, but they made it very difficult. very difficult. mr. nadler talks about the process where states could get together and had their candidates' electors pledge to support who won the national vote. another thing states could do is to have the electors be by congressional districts. because when you have the electors by congressional, that would make it a little bit more democratic. it would make it better and make candidates come to your state. they argue now that small states would be ferreted out and you would have new york and california decide everything. well, i think most of these people that write this don't want new york and california people to have any say whatsoever. but they're americans. even if they live on a coast. and even if they live in two of our greatest states, they're still americans and their vote should count the same as somebody in south dakota or wyoming or montana. and none of the presidential candidates go to those small states. in reality all of the campaigning is done in those battleground states, which are not small states.
2:11 am
and where do they have their rallies? in pennsylvania, virginia, florida and ohio, the big ten. not the small states. i yield back the balance of my time. >> okay. there isn't much balance left. >> i learned that from you, jackson lee. >> i am pleased now to recognize the distinguished gentleman from virginia, bobby scott. >> thank you, mr. chairman. and thank you for calling this. this is, i think, a very timely issue as there's been a lot of discussion about the electoral college since the electoral college went one way and the popular vote went the other. i think the discussion needs to be there are a couple of kind of anomalies, one is this faithless elector. i think we ought to just talk about whether or not we're going to score by winning states or by a state popular vote. can be taken care of independently. but i've been little disturbed by just the fixation on the
2:12 am
mathematical curiosity that you could win the electoral vote and lose the popular vote. of course if it's close there's a good chance one will go one way and one the other, but if you've already set the rules as you're winning by state, then that ought to be what you are considering. i mean, you could win the world series. you could lose the first three games 10-0 and win the next four 1-0, you've been outscored 30-4 and still win the world series. so nobody thinks there's anything curious about that because you're winning -- you won four games. and so i think we'd rather than fixate -- being fixated on the mathematical curiosity that you could win one and lose the other, i think we ought to look at what happened if you went to a straight popular vote and how that would change things and whether or not that would be good or bad. one of the things i would point out that might not be a good thing is trying to do a national recount in a very close election. it's my understanding that during the florida recount in new york and texas they found
2:13 am
boxes of uncounted votes. well, wasn't enough to change the direction, but if that was the national recount, you'd have to count those empty boxes. you can imagine a very partisan secretary of state certifying the election results where more votes were counted than they had registered people. now, what are you -- exactly how are you going to consider that? election laws are not the same all over the country. but one of the things about the electoral college is it requires you to get support in a state weighted basis in more than -- in a majority of the states, weighted by population. a regional candidate doesn't have much of a chance. you could run up the score in one area. it doesn't help you because you've got to get support -- you actually have to win states in a majority of the states. what affect would a straight popular vote have on regional candidates and third party
2:14 am
candidates on the idea that you could win on a plurality possibly without winning any states? so very few states. i think one the congressional election i would take issue with my friend from tennessee, you could win virginia, pennsylvania, ohio, michigan and florida, win all those states, and end up with a substantial deficit on congressional districts just because of gerrymandering. we're not electing our president based on gerrymandered congressional districts. i hope we wouldn't go there, but generally how would campaigns be different? friend from new york mentioned mr. trump said he could have won the popular vote because he would have campaigned differently if that's how the score would be. he would have in states where he has a huge majority he would have just spent time running up the score and possibly change the election. is that a good change or a bad change? so rather than just recite the
2:15 am
mathematical curiosity that you could win one and lose the other, i'd hope the panelists will tell us how the campaigns would be different and whether or not the difference is a good thing or another. i want to thank all of our witnesses for being with us today, especially my freshman roommate from college, professor kessar. thank you. >> you're welcome. and thank you. we're asking the members of the panel to reduce their introductory comments to two or three minutes because it keeps getting larger and larger. next is zoe lofgren of california. >> thank you, mr. chairman. unfortunately i'm going to have to leave in a few minutes, but i think this is a very important discussion. coming from california i'm mindful that the votes of my constituents count one-third as
2:16 am
compared to a wyoming resident. and looking ahead for the stability of our democracy, i don't think that is a sustainable model. that my constituents will be ruled by people whose votes count three times as much as theirs. that is aggravated by disparity in taxation where california, for example, pays more than it gets in services from the federal government whereas some of the smaller states whose votes count three times as much as my constituents actually are net recipients of federal tax dollars. you know, this is barely sustainable today, but if you look 50 years in advance where the bigger states are getting bigger and the little states are losing population, i don't think we can sustain our american democracy by having the majority ruled by the minority.
2:17 am
and so the question is how to fix this since the constitution is written in such a way that it's almost impossible to amend. there are two things that i think i hope the panel will address and i will get a full report. one is dr. koez's interstate compact idea and whether the compact can avoid interference by the house of representatives in the senate. and the second is the issue of the constitutional convention. we are three states away from calling for a constitutional convention. it's something i've always been opposed to. you cannot limit the subject matter to a single subject, the balanced budget amendment. but i'll say because of for the second time in 16 years the people, the american voters
2:18 am
elected did not in fact become president, rational people, not the fringe, are now talking about whether states could be separated from the u.s., whether we should have a constitutional convention. and i think as time goes on that is apt to become more the case unless we here can figure an answer to preventing the majority from being ruled by the minority. and i thank you, mr. chairman. >> i thank you, ma'am. i'd like now to recognize the gentleman from rhode island, mr. david cicilline. >> thank you, mr. chairman. and thank you for convening this forum on this very important subject. and i particularly want to welcome our very distinguished witnesses who have studied and written extensively on the subject of the electoral college. and welcome you and thank you for being here and being part of this discussion and particularly to welcome our newest colleague, jimmy rascon, who i know has done extensive thinking on this and writing and we look forward to hearing his comments of course. i'm proud to say that rhode
2:19 am
island is a participant of the national popular vote compact to ensure that participant states pledge their electoral votes to the candidates who win the national popular vote as congressman lofgren just referenced. so i'm proud to be from a state that recognizes the importance of this. what i think is troubling for so many americans is, you know, we recognize this basic fundamental principle of democracy, and that is the right of citizens to elect their own leaders. and of course implicit within that is an understanding that every vote must be counted, that no one's vote will count more than another person's vote. these are sort of basic principles of democracy. and of course the electoral college distorts that in so many ways. and so i think one of the things i find particularly challenging is it's very hard to explain this to young people who don't quite understand why it is that all this stuff they've learned about with one person, one vote and everyone's vote counting equally why that actually doesn't -- is not actually the way that we elect our president. and then we have examples in our
2:20 am
lifetime of people who have won the popular vote or choice of majority of americans does not become president. this is very challenging to explain to folks. i think it becomes even more difficult when we think about our work internationally. you know, we do a lot of work to promote democracy and governance and to be an example to the world in a variety of different ways, and it's hard to explain that we in fact in our own country don't have a system which allows people's votes to be counted equally in electing our own president. so i think this has really serious -- raises very serious concerns in the long term legitimacy of our own democracy if we don't elect our own president by one person, one vote. but i think it also impacts the work we attempt to do, the good work we attempt to do around the world. i thank you again, mr. chairman, the opportunity to discuss and welcome the panelists and thank you for the work you're all doing. i yield back. >> thank you, mr. cicilline.
2:21 am
i now turn to the gentleman from georgia, mr. hank johnson. >> thank you, mr. chairman. i want to thank take this opportunity to discuss and i want to welcome the panelists and i thank you for the work you are doing. i want to thank you for this hearing. this is the first one that's occurred since 1997, so it's been about 20 years since congress has addressed this issue with a hearing. and since that time we've had two instances where suicide for president have been elected based on the electoral vote after having failed to garner the majority of the popular vote. prior to that, it was over 176-year period between 1824 and the year 2000 that produced three such anomalies. and so it appears that time, the
2:22 am
process of time, technological advancement, all of these things are playing into the acceleration of this phenomenon where the people go to the polls, vote and then their popular vote does not translate into victory for the candidate that they voted for. this is anti-democratic. it's hurting our democracy. people expect more. people expect direct representation. that's a fundamental principle that people expect. not a whole lot of people pay a lot of attention to the electoral college system. particularly since back in 20 -- or back in 1913, the constitution was amended so that we could have direct elections of united states senators. if we had not passed that
2:23 am
amendment, people would -- this would be unacceptable. as it is unacceptable as more people come up -- come to the notion -- or come to the conclusion that their popular vote did not produce the winner in the presidential election. so it's time for us to get to work to change this system so that the people's will is achieved. and that is for them to be able to depend on their popular vote to win an election. and so i am looking forward to the comments of the panelists. and with that i will yield back. >> thank you, mr. johnson. incidentally, everyone on this panel is a member of the
2:24 am
judiciary committee with the exception of mr. gene green of texas. oh, bobby scott is an ex-member. yes. he's here by virtue of his very -- yes, emeritus is the word i'm thinking of right now. thank you so much. i am now going to turn to the gentle lady from california, miss judy chu. >> well, i want to thank ranking member conyers for holding this important forum on the electoral college. in my home state of california, the popular vote dramatically went for secretary clinton, while some ballots are still being counted leaving opportunity for the gap to widen even further, recent vote tallies show that clinton received nearly 8.7 million votes to trump's 4.4 million.
2:25 am
so the difference comes out to 4.2 million votes in hillary clinton's favor. what does it say about the electoral process and the legitimacy of the election results when one of the world's largest centers of economic activity and innovation and one of the country's most pop yu list and diverse states, california, favors the losing candidate by a margin almost equal to the amount received by the winning candidate? obviously something has to be done about this electoral college. and i look forward to hearing from the panelists what can be done to change it, what is feasible, a constitutional amendment or the national popular vote interstate compact. we need change. and i look forward to hearing from all the panelists on your thoughts regarding this subject. >> thank you very much, judy. we now turn to the gentleman from texas, mr. gene green.
2:26 am
>> thank you, mr. chairman. thank you for allowing me to speak even though i'm not even an emeritus of the committee. but i do hold a law license. thank you for having this hearing. my name is gene green, i represent a very urban district in houston, texas. and my colleague, congressman lee and i are neighbors in houston. i have the honor of representing a district that's about 76% predominantly hispanic, in our community mexican-american, northeast and south side houston. our common complaint at home is that my vote when we talk about people voting, your vote counts. well, it doesn't count in our district for president. hillary clinton carried our district over 70%. and yet no matter how many more people we turned out would not make a difference in the electoral votes from texas. and that's the frustrating. this is not the first time i've introduced this resolution.
2:27 am
after 2000 i introduced it in over a number of years and hopefully i was hoping this wouldn't happen again, but we see what's happened. that's what's frustrating. last month secretary clinton and senator kaine received 72% of the vote in our district. 43% statewide making closest race for vice president and president in texas in 20 years, nevertheless 100% of those votes texas electoral votes all 38 went to donald trump and governor pence. naturally secretary clinton is currently leading mr. trump by 2.7 million, but mr. trump is expected to receive 306 electoral votes. i don't hold out hope that there will be any change in that. and that's why i think the electoral college is outlived its usefulness. we know the history of it. there were a lot of compromises just like we do every day here in congress that may not last for 100 years, much less 200-plus. and nowadays i think we ought to
2:28 am
be able to have people's vote counted whether in urban houston or urban new york or even central valley california that may be predominantly republican. that's why i think the abolishment of the electoral college is if we can trust the people to vote for members of the house by majority, we changed it instead of our state legislators selecting our u.s. senators, we changed it where it will be a majority vote 1913. i think we can trust the people with electing the majority who would vote -- who would elect president of the united states. and, mr. chairman, i'll submit my full statement into the record. but i just appreciate the time today. >> thank you, sir. and now we have the distinguished gentle lady from texas, miss sheila jackson lee, pleased to recognize her. >> mr. chairman, thank you so very much. i thank you for your courage for holding this hearing and for
2:29 am
those of you who are present, as well as i'd like to mention the congressional progressive caucus because we are joined together. as my colleague from texas said, voices can be extinguished and our silence to the electoral college structure which i join with a number of voices in asking for its abolishment, let me also say that i will be calling for official hearings both in the house and senate. i hope there will be sufficient courage to go ahead and address what i think is an indictment on a democratic system of which the world looks to the united states for its integrity. i would offer two examples that elections have consequences. one of which of course is the most famous with rutherford b. hayes and samuel tildon, 1988, samuel tildon outpolling rutherford b. hayes.
2:30 am
and of course we know that was the compromise of which fell on the backs of freed slaves who were at that time going through the reconstruction period. and what happened is that the south rose again. and the oppression of african-american freed men and women was turned upsidedown. we lived a life of horror into the early 1900s because of that compromise. elections have consequences. in addition, as we see today in an election where a headline now reads, if i might, indicate that headline hillary clinton's margin is about to surpass all the trump votes in 12 states combined. but the real idea is if you would are the consequences. we now see a seeking of a waiver of a standing rule about the utilization of the military and civilian leadership being shoved on to the floor of the house.
2:31 am
we see the threat of the repeal of the affordable care act. we see the potential for cuts in medicare and medicaid. i hope in your discussion that you will think of these things as i close, to explore the history, purpose -- can there be order, please? to explore the history, purpose and continued utility of the electoral college. and to address the question of whether this comports with the rule of law and our constitutional framework of equality for all in the bill of rights. and i would equally want to hear from the witnesses, if i could, to reflect on the national popular vote interstate compact versus a constitutional process. i'm excited about the compact. i think it's a winnable one. but we want to do it in a way
2:32 am
that embraces americans regardless of their party affiliation. the shoe is on one foot in 2016. it can always be on another foot at another time. let me also acknowledge, professor congressman raskin, and thank you for your leadership. with that, i yield back. >> thank you for your brevity. i appreciate it. we also want to acknowledge and welcome jan of illinois, but we're going to move to our many witnesses who have been very patient with us. we are asking you to limit your own remarks to three minutes. and we're going to begin with professor jamie raskin, a constitutional law professor and one who seeks to join the house judiciary committee as soon as possible.
2:33 am
and we welcome you here, professor raskin. >> thank you, ranking member -- >> turn on your mike. >> you spilled my secret to the whole world here, but, yes, it would be a great honor to join you there. and hello to the distinguished members of the judiciary committee. i see three basic problems with the way presidential elections are conducted today. the first is that the campaigns themselves are not democratic. as congressman cohen was saying. the second is that the institutions are not republican. and the third is that the results are not majoritarian or pluraltarian, if we can coin the word. there's a practical solution underway as congresswoman jackson lee says, the national popular vote agreement, and it arises not surprisingly from a
2:34 am
movement of the people in the states. let me start with this. the campaigns are not democratic in character. think about what democracy means from the standpoint of your district. one person, one vote, all votes count equally, and the person who gets the most votes wins. that's how we elect governors. that's how we elect u.s. senators, council members, mayors, everybody. except for the president of the united states. and some have said, well, if we do it the way we elect governors and senators, then some people are not going to get any attention in the process. can you imagine running for governor in your state and saying i'm only going to go to two or three of the eight congressional districts in my state. i'm not going to campaign in the others. it just doesn't make sense. but our presidential campaigns are different. consider 2016. there were never more than a dozen states in play, meaning the people living in 38 states, the vast majority of us, never saw any competitive campaigning in our states. we belong to the ignored and forgotten group of backdrop americans whose political
2:35 am
interests and desires are taken for granted in campaigns. people living in three of the country's four largest states, texas safe red, california and new york safe blue are bypassed completely. no rallies, no barn storming speeches, no tv ads, no field offices, no campaigning except for fund raising events to harvest money to export to other states. that's not only undemocratic, it's bizarre. aha, you say, the electoral college must then work brilliantly for the small states if not for the big ones. nope. in 2016 in our most recent five elections, 12 of the 13 smallest states, those with only three or four electors have been total fly-over country. hillary clinton did not spend any time, money or resources contesting the small red states of north dakota, south dakota, montana, alaska, idaho or wyoming. and donald trump expended zero resources competing for the votes of americans living in the small blue states of rhode island, delaware, vermont, hawaii or the district of columbia.
2:36 am
of the 13 smallest states, only new hampshire, already blessed by its primacy in the primaries attracts campaign visits and budgets in field offices and so on. all told the dozen smallest states in the country have about the same population as ohio. and because of the two senatorial bonus electors, they actually have 40 electors compared to ohio's 18. but while the presidential candidates spend tens of millions of dollars and tens of thousands of staff hours in ohio, they spend essentially zero resources and time fighting in any of the small states except for new hampshire because it happens to have a rough equivalency of democrats and republicans. the candidates don't go to big states or small states. they go to swing states. and within that lucky band of states they go to the big ones. fully two-thirds of the events staged by the clinton and trump tickets in this year took place in only six states, florida, north carolina, virginia, pennsylvania, ohio and michigan. amazingly almost every single appearance and event by the campaigns happened in just 12 states.
2:37 am
so the vast majority of americans were simply left on the sidelines. and this has a predictable effect on voter turnout. in 2012, for example, the swing states saw nine points higher voter turnout than the safe states did. which makes sense because the reason that people go to vote is because someone gets them to go vote. you're about to gavel me, mr. chairman. okay. i wanted to respond to some things that congressman scott asked. but let me just say this about the national popular vote plan, if i can. this is the way that major institutional political changes have happened in our country. the states do it first. so we had the problem. another undemocratic filtering institution in our country which was state legislatures appointing u.s. senators. and the way that we dealt with that was the state legislatures said we're going to delegate it to the people to decide. and enough of them did it that it built the momentum for a constitutional amendment.
2:38 am
i believe that if we were more than halfway there in terms of the national popular vote plan, when we get there we will do it for one or two rounds. it will be very clear that it works. and then we will go ahead and amend the constitution to abolish the electoral college. thank you very much for your patience. >> thank you very much, professor, member of congress jamie raskin. our next witness is from yale university, teaches constitutional law, clerked for stephen breyer, now a justice, but he clerked for him in 1984 when he was a judge. he's won awards from american bar association and has been cited in over 30 cases before the united states supreme court. welcome professor amar.
2:39 am
>> thank you, mr. chair, it's an honor to be here. i think it was mentioned that there was a hearing on the electoral college in 1997, and i remember testifying at that hearing. and expressing some skepticism about the electoral college. and i remember representative scott, especially some skepticism about my skepticism. so here we are again. and we've had two presidential elections in the meantime and representative scott, i warned you. no. in fact, i don't believe that the current electoral college has a partisan skew. indeed, one of the things to be said on behalf of reform is that it's not a partisan measure. in 2001, i posted something on the internet that was sort of a fantasy, a dream about how we could have direct election as a practical matter without constitutional amendment, which is very difficult.
2:40 am
and that was a prototype, an early prototype of what became the national popular vote interstate compact. i share jamie's view that at best the national popular interstate compact is a weigh station toward what would be a more permanent solution which would be a federal constitutional amendment. i think that analogy that was just made to how states improvise direct election of senators before the constitution was formerly amended to codify that work around is just the right one. and that's the way to think about the national popular vote interstate compact. i actually think that that reform movement of which, and i was sort of in an early proponent kind of, does have some technical problems with it. and if we could talk about what those are. and it's not, i think -- so it would require some legislative fixes. but why should we do any of that?
2:41 am
why should we try to move towards something like that? and i think the idea that's been expressed so well by so many here is an idea of one person, one vote, it's a deep idea that everyone's vote counts equally. and that therefore everyone is a swing voter. whether you're an urban voter in houston, texas, or rural voter in the central valley of california, whether you're in a swing state or not a swing state, everyone is a swing voter. and everyone's an equal voter. that's the great democratic idea. and it's not just an idea that's true of countries around the world. it's a deeply american idea because as jamie mentioned that's how we pick every governor in america, a governor is a mini-president. and in 48 of the states they have four-year terms, elected independent of the legislature, not like prime ministers. they have veto pens, pardon pens, they become presidents or a presidential candidate, and we have a one person, one vote idea
2:42 am
for them. we don't have a problem with purely regional candidates, we don't have a third party problem. we don't have a recount problem. we don't use congressional districts or legislative districts. it works for every governor. it could work in america. and thank you very much, mr. chair. >> thank you very much, sir. we now turn to our next important witness author of six books, professor of law -- professor jack rakove, we welcome you as a pulitzer prize winner. >> thank you, mr. chairman. i would like to make three basic points about the origin and evolution of the electoral college and say something briefly about having a national popular vote by interstate compact. first, we should not give the
2:43 am
>> near the end of their deliberations. and political science for a national republican executive. the framers assume that the people were often among an array of candidates making a decisive choice impossible. that would deprive the president of the political independence the framers wish to give the executive unless it was a single material that they opposed. it replicated decisions the frailers had already reached. they combined in the first round
2:44 am
of voting with with the equal state vote and the second contingent round that many framers expected would often occur but on the crucial questions determining who they would be and how they would be appointed and whether they would be legally bound they defaulted the entire problem to the states. second, as soon as they began the short comers and the expectations became evident. had there been a popular election in 1796 and another and it would have been decisive. and disinterested citizens and immediately evaporated and always were and never would be creatures of their parties. we're not in control of individuals and began experimenting with the rules of that appointment. a number of states offered their
2:45 am
rules from the advantage. and even though it's in 2,000 and it's divided into nearly equal political halves. thus the original history and it's not something that we need to admire or feel bound to obey. i join with many other critics in the standard criticism of our current system. it violates the fundamental rule that every vote should have the same weight where ever it's cast and it's essentially a demographic accident. and it's the culture would be better served and turn out their voters and there's two critisisms that merit further attention. first the last three serious
2:46 am
legitimacy. and will say the same thing. there's multiple explanations for these attacks and the recurring speck to of a country contributes to a sense of national division. to be elected by truly and not wholly solve this problem but will help to mitigate it. second any attempt to control the system has to be able to think critically about his relationship to the federal system and does reflecting that status is not the same thing as protecting it. and the existence of the federal system is somehow dependent on it. it's already protected both by the division of authority between the national government and the states and by the roll that members of both play in represented their constituents interests. it adds nothing to these memorial service jumps and it
2:47 am
would be that case. and finally i'll make this place briefly. and and i do not understand how the national popular vote and escape the compact clause of article one section 10 and once you're there you're going to be back to article 5 amendment. so i want to insist if you want to deal with this issue there's no choice but to go with the article 5 and coming up with a strategy for doing that. thank you very much and i apologize for taking perhaps a few more seconds than i deserve. >> you're very welcome. our next witness is professor whose book was cited by the american historical association and the historical society and
2:48 am
it was the finalist and put ser prize award and we're welcome and we're fortunate to welcome you to this committee for this discussion. and take the liberty of the forth coming book i have with the ap titled why do we still have the electoral college. i want to say things differently than my colleagues have said not to repeat and i very much endorsed the case many of the members have made about the need to abollish the electoral college and replace it with one or another. and make it soundly and i would end one small piece of it and unless they think they're very
2:49 am
rare incidents when the gap can happen. on 17 other occasions when 75,000 votes or fewer would have produced the same outcome of the loser of the popular vote winning the election let me make a few other points on separate issues. it is very difficult to amend the constitution and the college has been extremely unpopular. now close to 1,000 amendment resolutions have been introduced to congress and on 7 occasions such a resolution was approved by one branch of congress and on
2:50 am
two occasions it was approved by one branch and lost by a whisker in the other branch. the reasons why this has never quite happened are many and complicated but the interest of members of congress have triumphed over not only the public interest and over their own previously articulated views they were mistaken or shot lived. they got it wrong or was proved wrong in a short period of time.
2:51 am
it's not just the case that it was perceived in slavery but that the policies of race and con flick have been instrumental to preserving the electoral college over our history. one more comment and that's the vote in the mid 20th century. on the national popular vote interstate compact i agree with my colleagues here intending to see it as a way station. one of my concerns is that i think an interstate compact such
2:52 am
as the ones run up is inherently unstable because states are with drawing from it. and between the 1790s and the states gained the system depending on their partisan interests. >> thank you very much. >> our next witness is representative and first witnesses to come this afternoon and has received a numerous awards and authored a book on
2:53 am
the constitution titled reclaim liberty. >> thank you very much mr. chairman and members. i am state representative bob thorpe. i serve as the chairman of house committee on education and higher education in government. i'm honored to address your committee and to lend a state perspective to this discussion. in 2016 i was one of 154 republican legislators to sponsor the national popular vote interstate compact. federal action to change or eliminate the system is impossible to achieve as it
2:54 am
would require 2-thirds of congress and oppose a amendment to the u.s. constitution and three quarters of the state to ratify it. that said it grants us state legislatures the authority to address shortcomings within the current system. far too many american voters are left on the political sidelines when we elect the president of the united states and battleground states have much greater political influence in states like arizona. and federal policy during the campaign and when government. mr. trump won clear victory under the system's current rules. they did so in part by making promises every candidate makes and promised to he keep his hands off social security and medicare for the battle ground state and voters in florida.
2:55 am
and it's not good for the nation as a whole. arizona's 11 electoral votes cannot counter that influence of background state voters. and should be valued as much by a president as a voter from florida or ohio. during the last five presidential elections the ten smallest states received no campaign events during the general election in the lead up to the 2012 presidential campaign the battleground state of ohio received 48 visits alone. ohio has the same number of people as those ten small states combin combined. state driven reforms gives small states an active voice in rural
2:56 am
interests a permanent promise during the presidential elections. state based reforms and compact are better use for arizona's electoras than current winners take all. and states used this authority 13 times. it would be wrong to strip away constitutionally granted authority from the states. and wins the most popular vote in all 50 statements and it makes every voter in every state equal and politically relevant during the presidential
2:57 am
elections. it is problematic. for future presidential elections the states and not congress have the ability to make every vote in every state matter. thank you and mr. chairman can i have just five more seconds? >> how about four. >> four will do it. if i can give a personal perspective on the state of arizona where we only have 17% of our land in private ownership. if i can repeat that compared to the eastern states arizona only has 17% of our land. so what does that mean? it means greatly reduced property tax but also representation in this body and when it becomes to electorate so in comparison to the eastern states. and one of the huge problems.
2:58 am
>> your point is well taken. i noticed you exceeded it by at least three seconds. >> thank you very much, sir. representative, estate representative and in four terms in the vermont legislature and sits on the board of national popular vote incorporated. welcome to our panel. >> thank you mr. chair and members and i'm proud to tell you that. >> congratulations. >> i have been involved for a
2:59 am
long time and where it stands. and explains a path to a popular vote. it's my interest in change which has left me supporting the electoral college but critical of the winner take all rule which is, in fact, the state law that produces the red-blue map that we are so familiar with. as you know it has been -- i won't say here but the constitution does give states exclusive power and my written system covers a lot of ground but i'll try to cover points that have not been made and try to answer some of the questions brought up. in addition to the aberrations in a presidential election which favors such few states and such a small portion of our country we have not covered governance
3:00 am
but sitting in the white house, president who is are interested in re-election or in getting their own party successor into office do place an enormous preference and this is important. battleground states get more disaster declaration and faster they get more no child left behind waivers. >> others here mention the myth that small states benefitted in the college as it works today and i would echo that but 1/6th
3:01 am
lives in rural part of the country and we can look. we don't have to guess. we can look at how presidential campaigns happen today in battleground states where every vote is equal and the person with the most votes win. let's look at ohio in 2012. it received a great -- almost 30% of the campaign happened in ohio they account for 54% of the population and enjoyed 52% of the campaign rallies enjoyed 23% of the campaign and the 53 rural counts account for 25% of the population and got, indeed, 25%
3:02 am
of the campaign events so we can see that campaigns will reflect exactly the structure of where the population lives nobody will be left out when it is about margins everywhere. you get in your car and drive to new hampshire. this is absurd but grass roots will have a role to play. we'll still you late the discussion and try to get another thousand votes for our preferred candidate to make up for the margin in states it's mentioned that we should consider a congressional district southern land. it's double fold. we would trade 12 battleground states for some 20 battleground districts if you could have it everywhere. but secondly there's no reason why it would necessarily spread because the more states that came on board with the district
3:03 am
system would advantage the remaining winner take allstates so this is sort of a self-halting reform and if we were worried about that states do have power to remove them from the process you cannot effectively have a recount. this is an area where congress does have power because you have authority and there are proposals that have come forward that would improve that but we should not pretend that a recount would be impossible or workable. it's not workable today. let me just say the compact clause. national popular vote is an interstate compact and has a precondition before it takes effect. there is an active debate about
3:04 am
whether or not it's very consistent that unless it infringes on federal authority there would be no need for congressional approval so we believe that the interstate compact and popular vote is only obviously taking advantage of state power. however we would be coming to congress seeking approval at a time when states represented 270 electors have enacted this bill and presumably we look forward to working with you.
3:05 am
>> thank you very much sir. our last person, thomas neil is a specialist with with the congressional research service and he is available as a resource to answer any member's questions that may arise so with that we want to begin brief questioning by the members of the panel and it's my pleasure to recognize first representative bobby scott of virginia. >> thank you mr. chairman. as i said in my opening comments most of the comments, virtually all of the comments are based on the curiosity that in an close election the electoral college and popular vote may not agree. if that's what you count just like in the world series you can get outscored but still win.
3:06 am
we heard a lot about the swing states. if -- one thing about a swing state is it assumes that you have in the bag enough to get close to 270 and so you're going to spend your time on the last couple of states just like if the president is trying to get a bill passed when you get close to 218 in the house a hand full of members get all the attention. but that assumes you have enough to get you close. you have to have a majority -- you have to be able to carry states that amount to on a weighted basis 270 electoral votes half of the country and if you don't have that swing states don't have any meaning at all. the question that i asked is how things would change.
3:07 am
rather than trying to get from 49 to 51 in a swing state is that a good change or a bad change and what kind of different candidates would be elected. we heard recount. the idea that you're going to do a national recount is absurd. you're not going to be able to and you're going to have state secretaries of state that you don't trust any further than you can throw them coming up with numbers that are just not credible and what are you going to do in that situation? different states have different election laws. but campaigning strategy, how would it differ on a straight popular vote and is that change good or bad and what kind of candidates would get elected? finally a regional candidate if you have a candidate that's strong in one region running against two or three people strong in their region, you
3:08 am
don't have that now because if your a regional candidate you don't have a credible shot at 270. >> that's not just the curiosity that you can win one and lose the other. >> would you like our witnesses to respond? >> ask questions and i think we'll give answers hopefully to the questions. >> i turn now to the distinguished gentle lady from texas. sheila jackson lee. >> it's a tough fight but worthwhile fight and has to be
3:09 am
done and their capacity to elect the leader of the nation at that time. one thing that i wasn't sure what you were saying but i do want to correct if you had an interpretation that i said that the electoral college was born out of slavery, no it was not started in 1888 but it was started before that. there was hayes and tildon and by the compromise of mr. hayes getting to be the leader of the free world the south received a bonus of removing the union
3:10 am
soldiers and the one that protected the southern opportunities for free slaves that were then governs and s senators and congress people and my analysis was that elections have consequences. consequences of the individual that will asend to the office will be major cuts in medicare and medicaid and a tax system that will break the backs of most working americans and elimination of the affordable care act. seemingly ignoring conflict of interest and looking to undermine laws that had a separation of military and civilian. i wanted to make sure that i clarified that i didn't associate the electoral college
3:11 am
to slavery but one thing i did want to ask, do i have it correctly? it was -- i want to what we might desire 5 or 10, 15 years from now it would be counted and we have to accept it and i would be interested more importantly the value of a campaign. they'll always try to get around doing work but i think you have a greater chance if you rely on the popular vote for candidates
3:12 am
to say i'm going to try to get the vote the only way to do it is the amendment. if you have done some work about the fractures of the potential impact and meaning that states could gain the system i would be interested and the last point is i want to acknowledge a young man who just had a press conference on one nation one vote. we should think about young people. he has taken his frustration and put it into a nonprofit and how you can dousing the hopes and dreams of the younger generation that are literal and you help elect a president or someone or
3:13 am
not. that's going to be the larger population of voters. what are we telling them that despite whether numbers are up or down those that voted heavily weighted their vote so as the new voters come into the voting process we're going to have an answer if we are going to continue to encourage them to be part of the democracy and i welcome your thoughts on those points. i yield back. >> thank you so much. >> i turn to the distinguished chairman from georgia mr. hank johnson. >> i'd like to know from the professor the answer to this question. to what extent did the history of slavery shake the development of the college and were there any other historical conditions,
3:14 am
political concerns or interests that motivated the framers to establish. and do those concerns still exist. >> thank you, sir. is there someone going to respond to this? >> everyone starting with their next witness. >> i'll try to engage all of them. candidates will campaign differently. my claim is look to the states.
3:15 am
we have governs of big states and diverse states that have big cities and states called california and texas and i don't think they have campaigned in ways that should make us anxious about using that template mar e marbly. now there's recounts in states. california is a big state. you have to answer a recount i share representative scotts concern that a national recount raises issues. in 2,000 it was clear who won the popular vote. and yet we had to do recounts in 3 different sates. florida, new mexico and new hampshire so actually under the current, let's take the most recent election, it's clear who
3:16 am
won nationally. it's actually less than completely clear who won in michigan or pennsylvania. in recent history the national has been clear and states have been clear and we have had recount problems and here's where i agree with representative scott completely. if you have a national popular vote you'll need a national recount southern land and oversight and you cannot leave it to the secretaries of the different states and that's going to require congressional oversight whether or not the compact strictly speaking rekwiers congressional oversight under the clause of the constitution a system will not work without congressional oversight because states that
3:17 am
are not in the compact may try to game it in all sorts of ways. they may not participate in recounts. they may not -- they may come in and out as he mentioned so you're going to need national oversight and i say that to you all with due respect as one of two people who actually -- whose brain child that national popular vote interstate compact was. this merged from two ideas independently of dean and professor robert bentley and yours truly in 2001 and when i saw the promise of it but there are these technical problems and the system will not work without congressional oversight which will require national recount possibiliti
3:18 am
possibilities. i'm delighted we have them testifying. in 2004 john kerry could have had more popularity in ohio. 60,000 votes changes hands in ohio. he wins the electoral college by losing the national popular vote by 3 million. i don't think there's a partisan screw today. that's why i was joking earlier. there's not but this would be if we went to congressional districts and state proportionality. that would skew the system to the republican party in ways that i could go into right now. we don't have them in california and texas and pennsylvania. we do have them for the electoral college. we have them more for the
3:19 am
electoral college. and even if you can't win nationally you can be a spoiler and throw things into the house of representatives and change the outcome and be the king maker so we have a bigger problem with them than we have for governors. one point even though the question wasn't addressed to me the role that slavery played is not merely with the founding after two elections many which he ran against a northerner adam and the southern won the south both times and the northerner won the north both times and it was amended without votes
3:20 am
created by slavery. they win that with 13 extra votes. my friend is maybe shaking his head but i can show you that that's what every adams supporter says including people in this house that said we were robbed but the biggest one is not created at philadelphia that's the 12th amendment system and there's a whole book on it called negro president and it's not well-known actually just how large a role slavery played in the early elections the chairman
3:21 am
has come into the panel and we welcome him. he has been here before during this hearing and if he wanted to make any observations we welcome hill at this time. >> i came today to listen. this is a subject that i have a lot of interest in. people are stopping me on the
3:22 am
streets wanting to know about this thing called the electoral college. they never heard of it before some of them say. i don't know where they were in bush versus gore. but many people do not understand the electoral college and we have to have a very robust debate now in this country about whether or not it's wise to continue with the system or whether he we want to move and gravitate toward the popular vote. i don't have an appropriate answer so i look forward to hearing as much as i can today. thank you very much. >> thank you, sir. let's continue with the rest of the panel.
3:23 am
if i wanted to imagine the most likely change in our system if we had a national popular vote by my way of thinking done by article 5 amendment rather than an unstable interstate compact i assume if the parties were competitive nationally which i believe they would continue to be that they would at that point had a strong incentive to turn out their votes where ever their votes were. so they wouldn't just be hanging out in new york and bay area and chicago and so on they would have to come up with a variety of strategies. that's going to be more easy in the future than in the past and
3:24 am
i think in maximizing public interest in the election and not having this feeling that i'm in a majority or red state or blue state or whatever. i think i agree that instead of thinking about how would you recount individual states. if you had a national popular vote there would be only one constituent sy. and under the time phrases and management clause in the constitution congress has the authority to intervene and determine how elections were to be conducted. it would be the classic example of this and possesses the authority to determine what is the one best method of collecting votes and i guess you
3:25 am
want to have it. instead of this system you would have a basis for nationalizing the bases on which americans vote. that's nuts but i think that would be a net public good. it's certainly an important factor in the original construction of the electoral college.
3:26 am
it was part of a set of compromises as the frailers ran out of time and they, you know, and they built upon the whole compromises that they made previously but the tricky part in this and where i take issue with it is once you realize that the electoral college is there for manipulation and that on a state by state basis you can write and rewrite the rules is there is a whole set of rule changes. you have to take into account all the other rule changes going on. there was no one model and the reason i'm very skeptical is if
3:27 am
you compare the results what actually happened to state congressional districts the republican victory was so dramatic they reversed a lopsided margin and that's the best index and if you go on that index it's the best marker of what popular sentiment was at a time when there were a variety of procedures and while the slavery factor was important it's not determining in the way the professor suggests.
3:28 am
it was in 1816 that a proposal for a national popular vote was first introduced in congress. exactly 200 years ago. it was dismissed from consideration actually in part of what it will do to the slave states. you would see it in a lot of places and it's reasonable to think we would have national election rules. that would have been -- i realize in some quarters that would be controversial but i think you would get national uniformity of election rules and i do not regard those as a bad
3:29 am
thi thing. >> we might end up with more across the nation and that would be something to consider and finally in response to congressman johnson's question about what were the other considerations going on in the minds in addition to slavery let me just say two things in response to that, one is that there was this concern that a national election, which madison supported by the way, the national election would just not
3:30 am
be feasible and it would be hard to get candidates and that's certainly not an objection which obtains today i mean back then they didn't even have youtube so in all the discussions that take place as they are going back and forth and trying to figure out how to choose a president and they keep changing their minds there's never a concept that the people have a right to vote is never invoked. it's never mentioned. >> original intent is not
3:31 am
something that we have relied on here. >> the words the right to vote now appeared five times in the constitution. the 14th amendment section 2 and 15th amendment and 24th amendment and 26th amendment. it's because of slavery and race i feel and all sorts of stuff that the founders could not acknowledge that. they didn't have anything in the original constitutions that the persons are equal. only the states are equal in the senate when you look for words like equal and rights to vote you won't find them in the original constitution but i promise you today when you look at your constitution and here i get to pull out my copy in honor of kaiser khan and tell you today the words right to vote appear not once but five times and equal appears there as well. >> mr. chairman could i refresh the panelist memory on that the
3:32 am
electoral college has consequences and screws it to the extent that they decide whether or not reconstruction survives. it decides whether or not we have a massive change in how health care is done and medicare is done and secondarily the point made about the strength of a compact it shall i think you made the point and if you have voters literal in their thinking how do you engage them in the understanding of this fix tour called the electoral college. i would appreciate if the remaining three panelists would respond to those questions or at least include those in your answers.
3:33 am
>> in response to congresswoman lee's comments i wanted to let you know that in arizona and arizona house we passed the national popular vote in the house bipartisanly. 20 republicans and 20 democrats which i think was one of your questions a little bit earlier. >> when you look at states like california republican voters are disenfranchised and i would say
3:34 am
that they are the votes cast. the votes didn't mean anything because none were awarded. i'd like to remind members that the way that our system of governance, we are a republic of course and our representative from our government. you are representatives here in washington that when you think about it our house members are elected directly, originally our senators were enacted and our framers of the constitution had different thoughts in mind when it came to how different people were being selected and of course our legislators are selecting electors to represent the will of the states when it comes to the electoral college.
3:35 am
and different parts of the government to see if they made sense and i'm not trying to be judgmental or anything but congress you voice some concerns about how the electoral behaves and works. it's been around a long time. they could have mustered up the
3:36 am
2-thirds to pass them at any time or any point and especially after the civil war if the electoral college and that system was deemed to be somehow biased certainly after the civil war this is something that should have been looked upon and yet i think we only really talk about it when we run into a situation like we do in 2016. >> i had a few comments. >> yes by all means. >> i'll start by taking a crack at the question around particularly how do we explain our system to young people and registering voters was difficult
3:37 am
and often cases it was this feeling that my vote doesn't matter or we would rub into students from pennsylvania or new hampshire. they would say i'm from pennsylvania i must vote there. so an oddity of our system. i think also others have asked what would a campaign, national popular vote campaign look like and we are so fixed on winning state x and y and that red and blue map but if you are talking about getting the most votes in the country it's no longer of particular interest to win. it is of intense interest to run up margins in the states where you're going to win and minimize losses in the states where you cannot prevail. in 2012 they spent in new
3:38 am
hampshire and not any any maine or connecticut ohri ri that would change. that would presumably be some kind of spreading out of the resources throughout new england and in a state like ver montd we tlifr delivered the highest percentage of any state for president obama in his election and re-election. you could not go to democratic headquaters and get it. 80 miles from my house across in new hampshire and deliberately shut out at least 35 to 38 states. in 2004 running up to george w. bush's re-election the white house and campaign admitted they had been polling for two years in 18 states so that that era 32 states were not even of interest to their opinions. this is how shut out we are.
3:39 am
under a popular vote it becomes absolutely about margins everywhere and you would try to minimize places where you have been losing. and by 2% or 20%. you lost the same. if people are worried about recounts you ought to be worried about them today. they are far more prevalent today and a much bigger problem today. prior to this election we had five accounts and therefore called into question results of our election. and after all if there is ten of us in this room and we vote on something we're far more likely to tie than if there are a thousand of us many this room. when you expand the franchise so
3:40 am
that you treat every vote equal out of 130 odd million votes the chances of a very close election go down. we're carving the country up into 51 little pools and as we saw in 2,000 there was a big question of who prevailed in florida in 2000. there was zero question in that election who had the most votes in the country so as we grow the chance of a recount is very diminished. congress does have authority to create uniform rules. states themselves have rules around the recounts but it is a bigger problem. it's a bigger likelihood of having problems today and it's a
3:41 am
bigger irritant under winner take all than national popular vote. if you go the route where states are changing their state laws. to some that's a great advantage if there is some type of unanticipated outcome not of the election itself but of the process well of course it's easier than have we amended the constitution. much easier to change state law back but they would have a hard time saying we have to back away from the system where someone wins the election and go back to the old winner take all system that's part of the constitution. it creates great deal of stability through state action but to some segment of
3:42 am
particularly my conservative colleagues in states they very much favor keeping this power within the states and they like that it's a benefit that people could decide to change their mind back out of a popular vote. >> did you want to say something at this point? >> we look at the three fifths rule if you look back and drill down into the constitutional convention that was part for the house of representatives and direct taxization and it is arguable that along with a great compromise, the connecticut compromise that set up the hous
3:43 am
representatives, without the three-fifths compromise, it was more by extension. because as one of the other panelists pointed out very ackley, late in the conversation, the electoral college was the best they could get. and it was something everyone could agree on. secondly, with another historical reference with respect to representative jackson lee, the hayes-tilden event was arguably one of the great tragedies in american history. if you look at the progress of participation and self-governance by african americans in the south after the civil war, there certainly seemed to have been reached a kind of modus vivendi. the experts didn't like it, but they worked with the african american office holders. and the hayes-tilden compromise withdrew federal troops who had
3:44 am
enforced federal rights from the former states of the former confederacy. and it also essentially gave a blank check to jim crow for another 70 or 80 years. so i think your point is well taken, ma'am. with respect to the mpv, i thought one of the more interesting points made here today was the possibility that the popular vote initiative could be a halfway house, which might ultimately lead to direct popular election through constitutional amendment, which the panelists suggested was probably the ultimately the best goal. another interesting point is the -- i watched over the years with respect to proposed amendments that deal with the electoral college. there has been an increasing interest among members, there was an increasing interest. mr. green was always very active in this. that would enhance the authority of the united states government through its authority over the
3:45 am
times, places and manner of holding elections, and some of the other panelists mentioned this here today as well. it is something that the states might complain about, but on the other hand, if it were to -- if there were to be a federal, greater federal role in the way our elections are administered, conducted and perhaps financed, the states might not be arguably might not be so unhappy with that. and finally, the -- that might also, you would really need, i think this was pointed out by the other panelists, if you are going to have a national recount, you are going to have to have some manner of doing it on a uniform basis across the country. because there are 50 different statutes on the books in the states right now and it's very difficult to do that. finally, with respect to constitutional amendment for direct popular election, constitutional amendments as was said earlier is difficult to get
3:46 am
through. my experience from studying the amendment process is either amendments are either the result of a long building up of public support until it becomes obvious that they're national majority is in favor of it or it can be the result of a catalyzing event, such as with respect to the 25th amendment, the assassination of president kennedy. both of these factors are very helpful. and the third factor is the attention and support of members of congress and the leadership in congress. now, for many years i used to say that if we ever had a so-called misfire, that there would probably be action in congress to push for a constitutional amendment. well, we had one in 2000. congress did respond. it was through the help america vote act, which i don't think i heard mention here today and that was very useful legislation to provide improved and enhanced
3:47 am
federal standards and grants in aid to the states to improve their election administration procedures and particularly their hardware. so there has been work on this in congress and it's a possibility, i can't speculate, that this catalyzing event here that we have seen may lead to further developments. so i just made one comment. >> mr. scott? >> thank you. on this recount, one of the things about a state recount, if you have a recount, you would assume that both sides are going to be well represented. if you have a national recount in each state, you may not, in fact, have both sides well represented and you might have different election laws. same day registration, if you are running up the vote, the election laws can be extremely helpful, that's why one of the things that you have suggested is there has to be national standards. which would eliminate the voter
3:48 am
suppression laws that some states enact. but i would hope that we would get that straight before we go to a popular vote so you wouldn't have some states doing their own recounts, changing their election laws to allow same day registration and everything else, no counting, no certifying results that are absurd on their face and we're faced with having to accept that or i don't know what you would do. but if we had the federal mechanism in place first, then i think you would have something that makes sense. one -- couple of other things. we haven't heard -- i haven't heard any comment about whether or not running up the score in one state would produce a better president than in the close states trying to get from 49 to 51. which would produce the better
3:49 am
candidate, particularly if it's a swing state where you have to get -- you have to cover half the country. you got to get to 270. you could get a popular vote running up the score in a region and holding your own in the rest and, which is actually better. and finally, one of the things that could be helpful in this is if you had a runoff. if you have a bunch of candidates getting 25%, 30%, whether or not you would have a runoff, and would the cutoff be 50% or something lower. any comments? >> on those three questions, first, you are absolutely right, representative, that we are going to need national standards, not just for the recount, but for the count and in effect for voting, because in an electoral college world, the states actually don't have a
3:50 am
particular incentive to make it easy to vote. you get the same number of electoral votes in 1910 whether you let women vote or not, where as in a direct election you double your clout, if you let women vote. so in a direct election world, it is true, and it is a concern and i tried to address it as i thought through the ideas that became the national popular vote interstate compact. you need national over sight, because california might say hey, let's let 17-year-olds vote. and texas says hey, let's let 16-year-old vote. and arkansas says let's let dogs vote. you are going to need -- and this is a good thing, not a bad thing, to have a national law that you all would draft implementing a national right to vote because the founders didn't
3:51 am
have that phrase "right to vote" in the constitution. now now have it five times. and the deep idea that all votes are counted equally and no voter is more valuable than any other voter, whether in a swing state or not swing state or urban or exurban or rural, that deep idea will not be vindicated if you count votes completely but have completely different rules about who can vote and how they can vote. so you're going to need that up-front, whether it's require order not by article -- by the intrastate compact clause. it's what will make the system actually work. and it's to be admired, and other countries do it. as to whether it's better to have candidates who try to rack up votes in their bases or just appeal to swing -- that is basically the same issue frankly that exists in states. we could just count -- we could say swing counties rather than swing states. do you try to, in california, rack up the vote, you know, in
3:52 am
urban areas, or do you try to instead have a different kind of appeal where you might not rack up as many votes there but you will lose fewer votes in anti-urban areas, and my claim is we have many states that are quite diverse and they're dig. and they look like america, whether we call them ohio or pennsylvania or california or texas, and our governors are just fine with one person, one vote, uniform standards. but the system will change if we move to that and we can't fully predict all the changes. what we can say is we can look at governors, i don't think they're a bad model. and we can look at the rest of the world. because no one else has the electoral college. no state and no international counterpart. and that system seems to work pretty well for those places. >> chairman? >> yes. >> i want to put something in
3:53 am
the record. you have been very indulgent with your time and get a quick yes or no. mr. chairman, i said at the beginning i think this has been a rewarding and instructive, constructive and particularly intellectually grounded in the constitution and otherwise hearing. and i believe it is important now that we're on i think our fifth popular vote, if i have the count right, popular vote conflict between electoral college, that we have official, important, and ongoing hearings on the question of presidential elections, which include the electoral college in the house and senate. can i just get a quick yes or no from each -- >> amen. >> sure. >> you need to be verbal. down to the end? each? >> congressional research service will support congress whatever decision you make.
3:54 am
>> i know you will. i forgot your limitations, but thank you forria that. mr. chairman, i have a letter asking for those hearings. thank you. >> you want to put it in the record. >> yes, sir, i would like to do so. that's unanimous consent. i yield back. thank you, gentlemen. >> is there some other comment that we want to hear from before we close down? >> mr. chairman? >> okay. >> i would like to make a very brief comment about the interstate compact and notion of a weigh station. there are two different ways of thinking about a weigh station. one is where you see it, you get it and move to an amendment. my own view is to think of the compact as a way of mobilizing political support for changing the system and that if you got very close then that could be channeled in for amendment. >> okay. yes, sir? >> mr. chairman, and with regard to representative scott's
3:55 am
comment, i understood it, yeah, you made a comment to the effect of, do we end up with a better candidate at the end? well, you look at this particular election cycle starting with 17 republican candidates, and i think we had four democratic candidates. and it's really through that primary process that a party chooses a candidate. of course, it's a party-based process. and so the one thing i would voice is i'm a -- i consider myself a federalist and a constitutionalist and i would be concerned that right now we have a u.s. justice department that can at times be very overreaching when it comes to stamping down the states and not necessarily treating us as sovereigns when it comes to our election laws and how we have our elections. goodness, if the state of arizona has a policy that disenfranchises individuals or
3:56 am
groups based upon any criteria, you know, it's going to make headline news, and we're not going to be able to move forward with that. we're going to be dealt with accordingly. so the last thing i would want to see is the federal government take away more of our sovereignty at the state level to run our business when it comes to elections. that we don't need to be micromanaged. and if there are grievances from individuals or groups because they feel that we're being unfair, then those need to be brought out in the light of day and if we are making mistakes, whether accidentally or on purpose, we need to, you know, correct those mistakes. thank you very much. >> mr. pearson, did you want to close this down? >> i'd be honored to, sir. >> all right. >> one final comment in regard to representative scott's deep concern about the differentiation between state laws, particularly under
3:57 am
national popular vote. this is the system today and we live with those results today. and i would argue they have a very deep impact today. in fact, outsized influence today than they would under national popular vote. surely we would agree florida's use of the chad ballot in 2000 had enormous implications that the rest of the country had to live with. sunday voting in ohio or lack thereof has a major influence on our elections. voter i.d. laws in wisconsin is going to ripple through the future of our country. when we routinely have a system that comes down to 5 to 12 battleground states and we live under the variation of those states' laws, we are going to already see an outsized influence over the variation in state law. when you lump everybody together, i would argue it minimizes the impact of that variation. >> mr. scott? >> we've had comments that the
3:58 am
electoral college doesn't exist anywhere else. actually, it exists in the city of richmond, virginia, where your elected mayor by carrying 5 of 9 wards. >> on that note, i want to thank the panelists for an excellent discussion. there were seven of you initially, but this has worked out well. i also congratulate not only my colleagues but my colleagues who were able to stay with us throughout the entire discussion. ms. lee and mr. scott, i thank you very much for being here today for your contributions. and with that, i declare this hearing adjourned. >> thank you. >> very good. >> thank you.
3:59 am
c-span's "washington journal" live every day with news and policy issues that impact you.
4:00 am
coming up tuesday, governance study senior fellow from the brookings institution and author elaine kaymark on her book about why presidents succeed and fail. then indianapolis star reporter tony cook and tim alberta of the national review about the role president-elect mike pence will play in the trump administration, and a look back on the indiana governor's work in his home state and his years as a member of congress. be sure to watch c-span's "washington journal," beginning live at 7:00 a.m. eastern tuesday morning. join the discussion. tuesday, the american bar association holds an all-day event on the future of health care and legislative policy developments. we'll hear from lawyers, administrators, and blue cross/blue shield representatives. it starts live at 8:30 a.m. eastern on c-span3. also tuesday, a discussion on the world oil outlook with

7 Views

info Stream Only

Uploaded by TV Archive on