The Electoral College

Topical episode! Special guest Jamelle Bouie tells Sarah and Mike about his problematic Founding Father faves and the bewildering institution they handed down to us. Digressions include '70s lapels, "Reversal of Fortune" and the Eurovision Song Contest. The filibuster rule and the three-fifths compromise receive bonus debunkings.

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Transcript

The Electoral College

Sarah:  The presidency isn't profitable enough. I'm going to go back to farming.

Mike: Welcome to You’re Wrong About, the podcast where everyone gets to be a real American. 

Sarah: Hmmm, I don't get it.

Mike: So much of this episode is going to depend on the idea that some people's votes should count for more than others, because they're real.

Sarah: Oh! The 30 Rock concept of real America. I get it.

Mike: Thank you. We got there eventually. I am Michael Hobbes, I'm a reporter for the Huffington Post. 

Sarah: I am Sarah Marshall. I'm working on a book about the Satanic Panic. And…

Mike: And, we have a special guest this week. One of our favorite writers. 

Jamelle: Should I go ahead and introduce myself then? 

Sarah: Oh yeah, go ahead. Sorry.

Jamelle: Okay. That's all right. I'm very bad at this part of every podcast.

Sarah: Us, too. That's why we just, we're like, and go…go. We’re not going to tell you.

Mike: We're just going to be silent for the next two hours, Jamelle. You just have to take it from here. 

Jamelle:: My name is Jamelle Bouie. I'm a columnist with the New York Times. 

Mike: One of the most enduring pleasures of doing the show is how many of our favorite writers have gotten in touch with us to say that they are listeners. And that is what Jamelle did a couple of weeks ago and we're delighted. 

Jamelle: I love the show. I've been listening, I think I discovered it like a lot of people at the beginning of COVID quarantine and everything. I was kind of adding new podcasts to the rotation, and a friend recommended yours and I promptly kind of just went through the back catalogs. And so I'm almost caught up. It's fun to have a podcast that’s basically targeted towards people in my exact age range, like early to mid-thirties. 

Sarah: So yeah, that's very weird sandwich position we're in. We're like, we're simultaneously the elders to one group, and the youngsters to another. Which I guess everyone goes through at one time in history or another, but it's annoying. So we're going to complain about it. 

Mike: Anxious, COVID millennials are our target demo. So thank you for being here. And today we are doing a topical episode on the electoral college. 

Sarah: This is our most topical episode ever because as we're recording this, Joe Biden won the election after they called the state of Pennsylvania 90 minutes ago.

Mike: Yes. So put yourself back into that emotional place. And that is where we are podcasting from. 

Jamelle: If you can't necessarily put yourself in that emotional place, then like imagine the end of Return of the Jedi pre-special edition where people were celebrating. That song, Yub Nub was playing. It's a good time. 

Sarah:  And it's also a little anticlimactic because you're like, oh, It's just a bunch of teddy bears. Like, I don't know how capable the teddy bears are of governing. I mean, I like them. That's beautiful. 

Mike: Yes. We’re coming to you live form Endor, and today we are talking about the electoral college. Yeah, Jamelle, just because we have some listeners who aren't in the United States, and this is a Baroque and confusing system to most humans generally, do you mind just walking us through what the electoral college is and how it works? 

Jamelle: Sure thing. I mean, it's worth saying from the jump that although you know we just talked about Biden winning, Sarah said that he won after Pennsylvania was announced. But at that time, Biden had already won the national popular vote by at least four and a half million votes. And that number is likely to expand to somewhere between 6 and 7 million people. And so, yeah, in other country Biden would have won on Tuesday when it was more than apparent that he had won the national popular vote right here. 

We have this system called the electoral college. And the way it works is that every state is given a number of electors. That number is based off of the number of senators that they have, which every state has two. And the number of representatives in the House of Representatives they have, which varies by population. To become President, you have to win a majority of electors.

Mike:  Basically, it's not just that the President has to win the most votes in America, they have to win the most votes in some number of states to get their electoral college votes. So the idea is that if any particular state is over 51%, all of those votes in a way are wasted. Because it's not one election, it's basically 50 separate elections.

Jamelle: Right. In theory, you can win an election with around 30% of the vote and still win a majority of electoral college votes, just because of the distribution of votes in population. It's also true that the Constitution doesn't actually specify how electors have to be chosen and distributed. And so it's theoretically possible that the states total in 270 all change their laws to say, we're going to give our electoral votes to the Republican or to the Democrat, regardless of what the voters say. 

Mike: What? So that's like an Air Bud situation. They're like, “Well, nothing in the rule book. I guess, you know, the golden retriever can play basketball.”

Jamelle: Right, pretty much. There's no other country that does this. There's no state that does this. At least not now. Prior to the Civil Rights Movement, many southern states did it, but they did it as a way to kind of prevent any candidate supported by the black population of their states from winning. And actually on the election day, the state of Mississippi finally got rid of its statewide electoral college system after 120 years in effect.

Mike: I didn't know that. Okay. 

Jamelle: Yeah. Actually it's insane. It's an insane thing that existed. 

Mike: So it’s basically this is a system specifically designed to disenfranchise certain people and make some votes count more than others. 

Jamelle: Right. So this is, and I think it's probably worth talking about the origins of the electoral college, because I think this is one thing where it's basically tied up in a lot of what I've been calling like the’ folk civics’ of America. The reason our systems are designed, which often have little or no relationship to the actual events behind the designing of the systems. If you look at textbooks from the fifties, the forties, the sixties, American government is spoken of in the sense that every part of it was designed for a purpose. The “fun thing” about the electoral college is that to the extent that American government was exquisitely designed, the one part that absolutely was not, was the electoral college. 

The best way to describe the process behind the electoral college was a bunch of very tired and kind of drunk politicians couldn't figure out a solution to one particular problem, and instead of spending any more time working on it they said, “Let's just go back to the bad idea someone else had before, mess around with it a little bit and go with that, because it's not going to matter anyway.”

Sarah: So it's like city planning in the Midwest, basically. They’re like, “Eh let’s put in some roundabouts.” So can you tell the story actually? Is this the end of a long cider drinking day? 

Jamelle: Among the folk civic things that people believe is that the constitutional convention of 1787 was this high-minded group of philosopher Kings. And some of the people there were very, very intelligent. James Madison, who I always refer to as like my problematic fave of the founding generation, because obviously he's a slave owner. I mean, it's sort of like, half of them are slave owners, and so you can't really bracket that. 

Sarah: Yeah. And people like Adams are profiteering off of the industry anyway. So no one gets to announce their cleanliness. 

Jamelle: Right, I just want to say that I find this period of American history so fascinating. And you have to just have to get past all of the mythology. Not just because it sort of obscures all the bad stuff, but it also obscures all the interesting, insane stuff. And it flattens the extent to which like these are actual living, human, breathing, people engaged in all sorts of activities.

Mike: Such as drinking cider at work.

Sarah: And having syphilis. Can you tell us a little bit about James Madison himself, as your problematic fave?

Jamelle: So Madison as sort of a parenthetical, there is one of the kind of most groundbreaking books in kind of a study of the early Republic, is a book called, American Slavery, American Freedom. And it's a study of the development of slavery in Virginia. The reason that you had so many luminaries of the revolutionary generation come out of Virginia, not just Washington and Jefferson and Madison, all these big names. The reason they come out of Virginia is that Virginians were the people in the colonies who had the most intimate knowledge of what slavery actually was. American notions of freedom are dialectically connected to actually having been developed by people who were slavers. 

Mike: Oh that's fucked. So like they've seen what the lack of freedom looks like, and that gives them a better conception of what freedom is. Like, this is what you lack. 

Jamelle: Right. 

Sarah: Whatever we're doing, it's the opposite of that, is what we want to experience. 

Mike: The George Costanza constitution, yes. 

Jamelle: So Madison is a slaveholder. He is from central Virginia. Montpelier, his home, is just down the street literally from Monticello. I live in Charlottesville, Virginia. Jefferson and Madison were lifelong friends. If Jefferson is kind of like the archetypal Virginian gentleman, sort of courtly and sophisticated, then Madison is sort of like the nerd linger of the group. You know, he can ride a horse, he knows how to farm, he knows technology and everything, but he kind of doesn't like to do any of that. Even more so than Jefferson, he kind of just likes to be in his books. At this time he would've been in his twenties, and so you’ve got to think of a lot of these people in the 1760s and seventies as being 20-somethings.

Sarah: And are they like the Bernie bros of their time? 

Jamelle: Kind of any designation of like hyper, enthusiastic, aggressive political guy, that's what they are. 

Sarah: So the point is that we know these people and we don't think of them as like mythological figures. We think of them as like, ah, that Marxist in that English class. Wow. He talked a lot. 

10:14 Jamelle: As a member of the Confederation Congress, Madison basically sees how American government just could not work, wasn't working. There was no majority rule. You had to have a super majority basically to do anything because it's just kind of hard to get everyone to agree to doing any one thing. What routinely happened is that some number of delegates would always fall just short of a super majority. They would have convinced some majority, but they could not convince nearly enough people.

Mike: I used to live in Denmark and there's a very strong unanimity culture in Denmark, where everyone has to agree to everything. So I remember we were doing a thing at work once where it was like once a month, we would have the staff meeting, and we were debating whether or not one staff member should be delegated to like, buy croissants and bagels for everybody. And some people wanted the system, and some people didn't, but we couldn't ever come to an agreement. Like we couldn't get everyone to agree to either yes bagels or no bagels. 

Sarah: And so the bagels walked free.

Mike: We literally spent nine months debating this, every meeting it would come up, they're like, okay, do you want to keep the bagel system or not keep the bagel system? And we would debate it every time and we would never get to unanimity. It was just like a metaphor for the way that you just waste time on everything.

Sarah: And you don't get bagels or croissants for nine months. Like you could have had nine months of croissants.

Mike: Exactly, and no one actually cares that much. You end up endlessly debating rather than just being like, you know, three people are not going to get their way on this one, sorry. But it also explains everything about European politics but go ahead.

Sarah: And Hamlet.

Jamelle: That's the Articles of Confederation as well.

Mike: So is the electoral college like something that they just sort of come up with on a whim?

Jamelle: So it's 1787, it's the Constitutional Convention. The Constitutional Convention was called earlier in the year because the current government, the Articles of Confederation, were not working. So that conventions called, it's kind of a bit of a scam. James Madison, he sells it as, “Hey, we just need to make some amendments to the articles to let us do these things for having an actual government that can just do things”. And he convinced most of the states other than Rhode Island to send delegates. And then when they all show up, Madison's like, “Now, while you're here, I have this detailed plan for a new government I’d like everyone to consider”.

Mike: So he basically does this, like the way that your friend invites you over to watch a movie, and then at the end they try to pitch you to join an MLM. It's like, why don't we just rewrite the constitution while we're at it?

Jamelle: Madison, like an Amway salesperson. So they're kind of negotiating this and then they're in this process of figuring out how to build this government. They start discussing the presidency. What's the president going to do? How's the executive branch going to be arranged? And how is the person going to be chosen in the first place? Madison thinks it should be some segment of the people. This is a national office, there should be sort of popular input into it. 

Another delegate suggests that maybe they choose electors. And this is something by practicality. How are you actually going to hold a national election in 1787? There are no instantaneous communication networks, everything takes a couple of days. You have to coordinate too many people across too great a distance. And so instead of trying to do that, why don't we just, some segment of the population in each state representing the people as best as they can, choose some electors who then are given the power to decide who the president is going to be. And this kind of argument goes on for quite a few days and they can't really come to a decision. 

Sarah: It's like the bagels. 

Jamelle: Right. They kind of just postpone it. They say, well, we have other things to worry about. We don't want to waste the whole summer on this. And so they table the issue. 

Sarah: I do think it's important to emphasize the fact that people were not drinking water basically at all. 

Jamelle: Right, right. Whiskey and cider were sort of like the beverages of choice for most people. 

Sarah: And also the kids are drunk, too. 

Jamelle: At the end of August, as all of this is wrapping up and they really needed to figure out how to elect the president, that they turn the issue over to a committee. A committee on what they called, “postponed parts”, everything they couldn't figure out. It's out of this committee that the electoral college comes from.

Sarah: So it's basically Charlie work, right? It's like, we don't want to do this. 

Jamelle: Right, right, yeah. And again, a useful backdrop here. It's hot. They're drunk. Yeah, they're all away from their wives and they're not happy about that. 

Sarah: Do they have wigs on, are they wearing wigs, like, to work? 

Jamelle: Some of the older members probably are. Wigs in the 1780s were sort of like wide lapels in the 2000s, something that people didn't do it much anymore.

Sarah: So there are some old, drunk, sweaty wigs in there. 

Jamelle: Some folks are worried about their slaves running away.

Mike: Jesus. 

Jamelle: People just want to go home. And the solution they come up with is splitting the difference. Instead of trying to mandate how the electors are chosen, they just say each legislature of each state will determine how they're going to pick their electors. The electors were chosen, the electors would meet, cast their ballots in their respective state capitals on the same date. Every elector would cast two votes, one of which had to be for an inhabitant of a state other than their own. 

Mike: Oh, it's like Eurovision! So they prevent people from voting for themselves.

Jamelle: Yes. The votes should be tallied in Congress. The expectation at the time was that most of the time, no one would ever be able to get a majority of electoral votes. And so most legislatures would just go to the House of Representatives. And besides, and this is a very important point, the first step is going to be George Washington anyway. So like who cares? I mean, it cannot be overstated how much George Washington being at the convention, not really taking part, but presiding over it, becoming the model for the President as they envisioned it got them through the process of designing how they're going to elect the President. Because everyone just assumed well obviously Washington's going to be the guy, so we don't have to worry too much about it.

Sarah: Right. And they're just like, and then in 16 years or whatever, we'll worry about it then, I guess. 

Jamelle: Pretty much. I mean, if you look at the Constitution, if you look at the clauses, you don't really think about it anymore, but are there. Like the clause that says that Congress can’t pass a law banning the Transatlantic slave trade for 20 years. A bunch of stuff like that all represents a kind of, listen, we'll just push it off for a bit and figure it out then.

Sarah: Like me, with my little Hello Fresh meals. 

Mike: I mean, to me, all of this points to how it needs to be easier to amend constitutions generally, because oftentimes things do get written down in the midst of like very human negotiations, right? Things ended up in marriage contracts.

Sarah: Everyone's got cider headaches, It’s 4:30. 

Mike: Yeah, you figure we'll just write it down for now and we'll revisit it. But then by the time you revisit it, 10, 20, however many years later, everyone has forgotten the context in which it was written down. And so what gets written down is sort of like this almost biblical text. You forget that like, no, it was pretty, everything is contingent, whether it's spoken or written. It's not necessarily as deliberative as it seems when it's in black and white on a piece of paper.

Sarah: It’s a refrigerator. The constitution is a refrigerator. You can't just keep putting baking soda in it.

Jamelle: Yes. Yeah. After the constitution is drafted and they put it to specifically convenient ratification conventions in every state to get it ratified, there's an intentional effort to make the things seem bigger than it might actually be. Everyone who took notes, which was Madison and a few others, kind of lock up their notes only to be revealed after their death. Because they just don't want people to see how much horse trading and kind of ordinary politics was involved in all of this.

Sarah: Is this comparable to those scenes in Lincoln, where it's just like, James Spader running around like sweatily bribing people for votes? And you're like, “Yay James Spader, I'm on your side for this corruption”. 

Jamelle: Not as nakedly corrupt, but like, you know, it's all pretty gross, nonetheless.

Sarah: But everyone's like, “I don't want history to know that I'm a gross sweaty James Spader”.  And it's like, no history has to know you're gross sweaty James Spader or else they're all going to take this way too seriously.

Jamelle: I would say one additional myth, myth number two about the electoral college, is that it was designed to enhance the power of slave states. And you know, one way to debunk that myth is just to say that we can see that it wasn't really designed at all. It was kind of haphazardly thrown together. It was a kludge. 

But the other thing to say about that is it, although it does reflect a true thing, which is that because the electoral college is based off of house representation, it ends up giving this bonus to candidates who have the support of the slave South. Which ends up meaning that like the first 12 presidents are slave owners from the South.

Sarah: Well I guess, except Adams.

Jamelle: Except Adams and Quincy Adams, they're all more or less slave owners.

Sarah: Right. The Adams’ are always popping up in founding fathers discourse going, “Except me”. It's like, okay guys, we've got some issues with you too, just sweetie, sit down.

Jamelle: And so, the electoral college benefits slave States. It's sort of an incidental result of just kind of the way representation was designed. Everyone knows what the three-fifths compromise is. And there's like a lot, there's a bunch of myths about what the three-fifths compromise is. What the three-fifths compromise is, is it reflects ideas about what representation actually was. And so right now in 2020 when we think representation, we think people; one person, one vote. That's why we find the electoral college so offensive because it is basing representation on something that's not simply tied to people. 

Then representation included things like wealth, it was considered a normal thing If you're designing representation to want to represent the relative wealth of different parts of a country. So when they're debating representation for the Senate and the House, Madison, who designed the plan wants proportional representation by people. He is a slave owner; this would benefit him. But also, he's sort of arguing from kind of like a democratic legitimacy thing, that the government doesn't represent states, it represents people. And so why would you represent States in the federal government? The States have their own representation. They can do whatever they want, the national government should represent the people of the country. 

A bunch of small state delegates, small states by population not necessarily by geographic size, say, “Hey, under the Articles we could be veto for whatever we wanted. We're not going to give that up without a fight. If you don't give us some version of that power, we just will quit this entire shebang and go home, and you won't get anything you want”. The equal representation in the Senate, every state gets the same number of senators, regardless of population is a compromise to this desire to retain some features of the articles. 

But once you do that, once you have equal state representation in the Senate, meaning there are no distinctions matter in terms of who gets what, then in the House, distinctions have to matter. If distinctions are going to matter, several of the states, wealthy states like Massachusetts, as well as wealthy states like South Carolina say, well, there has to be some way to represent our wealth. And the Southern states say, and that for us has to be our slaves. If we're going to represent wealth, it would be unfair to not represent our slaves.

Mike: So it's like a version of, I'm a factory owner, each of my factories, every dollar I've invested in them should count as a vote.

Jamelle: Right. The other thing to consider here is that, often when we kind of talk about slavery in late 18th century, we kind of blur the lines between slavery then and slavery to the 1830s or forties and fifties. And our image of slavery or popular images is very much from that latter period. The big plantations, kind of the Southern Gentry. That's very 1840s, 1850s. But slavery at the time of the writing of the Constitution, it was an important industry. It was like aerospace in Washington, or medical devices in Massachusetts, or meat packing in the Midwest. It was a major economic driver for the South, but also for the North as well. But it wasn't yet the kind of all-powerful institution that it would become it. It wasn't so powerful and influential that people were ruling out the end of slavery altogether. The reason why, part of the reason why there's nothing against slavery in the Constitution is that many of these guys just thought it would die out, that it was obviously not going to be profitable for very much longer. 

Sarah: And is it then made profitable by the cotton gin being invented? Is that how that gets extended?

Jamelle: Yes. Part of the story is that believing that slavery wasn't long for the world, they include a bunch of protections for slavery and slaveholders, thinking about this is not going to matter in 30 years. And then it matters. The Constitution creates a much more powerful government. It carves out slavery from the areas touched by the government. And then all of a sudden slavery becomes much bigger and more lucrative than it had ever been before. But it turns out they built the government that doesn't let them do anything about it. It almost feels like a cancer in the whole system. Unintentionally. 

Sarah: So is there the sense of like, let's protect the poor slavery industry with these legal protections, because it's not long for this world anyway, like steel?

Jamelle: Kind of. We want this government; this is important to us. The slave owners want the representation, we should give it to them. They were looking for a formula and it turned out that a couple of years before in the Confederation Congress, they were debating a fair formula for distributing a tax burden. It never became law because of the high barrier [inaudible] up, but they got through this debate and they came to it at least from an agreement with what that formula was. And the formula they agreed to was that for taxation purposes, slaves should be worth three-fifths of a regular citizen. And they were like, well, let's just use that formula again, we already agreed to it. That's a three-fifths compromise. 

So instead it's going to be equal representation, the House is going to be represented by population, and that should also include some representation of wealth. And in the South, that means they're slaves. And so they get to have three-fifths of their slaves counted. And then when they're designing the electoral college, they say, well the electorate electors are going to be based off of House and Senate representation. And that kind of just carries through the slave state advantage or what would become the slave state advantage into this new system. But it doesn't become an advantage until these underlying forces in the political economy of slavery pop-up. 

If slavery had actually died off, it wouldn't have mattered, but because it grew, it mattered. So that's just, that's kind of the relationship between the electoral college and slavery. Not created to protect slavery, but kind of becomes an instrument of the protection of slavery. 

Mike: This is like one of my favorite types of You're Wrong About, because in my very cynical brain, I think of it as like, all of these institutions are extent in America because of racism. And then you look back at the actual origins of a lot of these institutions and like, yes, because of racism, but also not necessarily in the form of racism that you mean.

Jamelle: Right, it's this thing where because of popular slavery explanation, it’s a level of intentionality and like villainy, which is emotionally satisfying. But is it really how things work? You know the slave holders weren't necessarily thinking to themselves, “I must entrench slavery”, it was sort of like political horse trading.

Mike: Right, it was transactional.

Jamelle: Yeah. It's very transactional. And it's unintended. I think that if you had told the delegates to the Constitutional Convention, that three-fifths compromise would end up giving the South kind of this hammer lock on the presidency for 50 years, they might not have ever done it. They would've said we got to find something else to do.

Sarah: Right. Cause that's something I don't see them anticipating. Cause people don't anticipate the future when they make decisions, ever. Cause the future just doesn't generally seem real to people. And it's just like, this is solving my problem right now, so like, let's do it right now. 

Jamelle: Yeah. Right. We need a new government. We have these disagreements. Let's just figure out something that is minimally acceptable to everyone here. 

Sarah: We’ve all been drinking cider for 11 hours. It's human.

Mike: This wig itches like hell.

Sarah: The state of my balls is not even to be gone into, you know, it's just like, yes, 

Mike: The electoral college? Sure.

Jamelle: So if myth one is, it was designed. And myth two was, it was designed for slavery. Myth three must be, well people didn't really complain about this. And the fact is that they complained about it constantly. Everyone should have recognized that the electoral college just did not make any sense. And lawmakers throughout the 19th century introduced amendment after amendment after amendment to get rid of it.

Mike: Yes. So why doesn't it die over the years? It's so obvious that it doesn't work. so why do all of these amendments keep getting shot down? 

Jamelle: If it's a bit too much to say to the electoral college was designed to protect slavery, it was certainly the case that the beneficiaries of slavery end up becoming kind of the fiercest opponents of electoral college reform. Because it benefits them in the antebellum years, followed these amendments being introduced. And then by the time we get to the 20th century, the solid South has emerged as sort of like a voting bloc. Jim Crow has more or less wiped-out black voting in the entire South. And so Southern Democrats kind of get the best of all worlds in that their black populations are legally, fully, or constitutionally enfranchised, but cannot actually vote. And so they get the bonus of representation, full representation for the black people in their states. And become this decisive block of lawmakers who, you know, you look at the Southern lawmakers of that era and they're in Congress for 30, 40, 50 years because they just, there's no way they can lose.

Mike: Right. So because their black populations are counted in the redistricting, like in determining how many districts they get, they get all these extra seats. But then because those black people can't actually vote de facto, they get to fill those seats with whatever white people want at the time. Right? That's the mechanism?

Jamelle: That’s the mechanism. If you look at, voter registration rates in the South post 1900, in some places it's as little as 4% or 5% of voting age adults that are actually registered to vote. So it's not even that only white people are filling seats, choosing senators, filling governments. It's a tiny minority of white people doing it at that. And of course in the South, like in a place like Mississippi, blacks are half the population. So you're looking at sort of mass disenfranchisement on a level that I'm not quite sure people really appreciate. But the upshot for the solid South is that yeah, they get all this political power without having to worry about votes from people who might oppose them. 

Those solid South lawmakers block attempts to repeal the electoral college throughout the early 20th century. The word begins to turn in the 1960s. And I guess this is one thing critics of electoral college opponents will say, is that no one cared about this before Bush in 2000. Which in some sense is kind of true, because up until then there wasn't really much divergence between the popular vote tally and who won the electoral college. So why would you care? 

Mike: It's actually okay to care about things after they produce bad outcomes. Like you didn't care about mass shootings before Columbine. But like, yeah, Columbine was really bad, so I care about mass shootings now.

Sarah: Also it's okay to learn things.

Mike: I think it's fine!

Sarah: No Americans aren't actually allowed to grow. Sorry. 

Jamelle: But also people did care, and they began to care in the 1960s when there's this obviously big push for more democracy in the South and elsewhere. And then in 1968, there is an election that nearly sends the whole election to the house. Richard Nixon against Hubert Humphrey against George Wallace running as a third party. George Wallace ends up capturing most of the South. Because he doesn't get Tennessee in particular, he loses it by like 20,000 or 30,000 votes, he doesn't get enough electoral votes to deprive Nixon and Humphrey of a majority, of even having a chance of getting a majority. But he comes so close that the entire political system basically freaks out. Everyone's like, wait a sec, this is a thing that could happen. 

There was no argument at the time, this is what the founders intended, this is what they meant. And there is a national movement to get rid of the electoral college. Big civil society organizations like the American Bar Association put out these like fake reports that are like basically arguing, this is a ticking time bomb, this is going to destroy American democracy if we let it. The House passes by an overwhelming majority a constitutional amendment to abolish the electoral college. And then it comes up in the Senate, but not for a filibuster, from kind of a who's who of the Southern segregationist; Strom Thurman, John Stennett, I mean, all the worst people in American history. If not for a filibuster, they probably would have passed the Senate, too. I think it fell five votes short. 

Mike: Which is infuriating because the filibuster is the same thing as the electoral college, like something completely indefensible that is only in place because of Southern segregationists. 

Sarah: Can we also say what the filibuster is? My impression is that it's like, you just keep talking as long as you possibly can to stall things. Which sounds very adult.

Jamelle: The filibuster is basically that. It is a rule allowing unlimited debate. Filibuster, not in the constitution. You're right, Michael, just like the electoral college, not something anyone necessarily designed, it is an accident. Aaron Burr is streamlining the rules of the Senate and notices that there's two rules that allow for cutting off debate. And he was like, we should just get rid of one of them. It turns out that through some mechanism I don't understand, getting rid of one of those rules allows for the possibility of unlimited debate. But no one realized this until the 1830s, and then some senators realized it and that’s where the filibuster comes from. 

Sarah: So it's a loophole that arose through over enthusiastic editing, which is a great moral for over enthusiastic editors.

Mike: Never edit! I mean, it's basically, it allows a small number of senators to block legislation, which is not the way that it's supposed to work, right? Like if you have a majority, you should be able to pass legislation. And it just becomes a de facto supermajority requirement that now in the Senate, you can't pass anything without 60 votes, which is like not the way that countries are supposed to run.

Sarah: It's like a political provision that fell off the back of a truck. 

Jamelle: There's this aphorism that you'll find on the right, which is whenever you complain about these undemocratic things, people say, “Well we're a Republic, not a democracy”. But even if you're going to grant that those two terms mean anything other than they're just like, one's a Latin derived and the other’s a Greek derived word for like ‘rule by the people’. It's also the case that the framers were very clear about this, that what they called the Republican principle was majority rule. The thing that makes American government distinct isn't like minority rule or like counter majoritarianism, it's sort of overlapping systems of substantive representation by geographic units, by individual people, all geared towards creating as much deliberation as possible before decisions are made. 

But once the deliberation happens, the expectation was that majority rules. If that weren’t the expectation, they wouldn't have created the Constitution in the first place. Because the whole complaint with the articles was that majorities could not rule. It's only been really in the last 20 years since the 1960s that the electoral college has been this very pivotal thing for our politics. And this situation we have now where we kind of dodged the bullet this time, but we may not in the next four years, is that if your voters are in the right places, then you can win the presidency without winning a majority of votes. 

And I'll say Michael, you said that this benefits rule States, usually the defenses that benefits small States. And I guess this would be myth number four, is that it doesn't really do any of these things. Florida isn't a small state, right? Pennsylvania is in a small state. These are gigantic states with lots of people. The small states of the country, Rhode Island, Vermont, Wyoming, Montana, Idaho, no one gives a shit about them in presidential elections. No one visits these states, no one thinks about them, no one spends money in them. It doesn't enhance the voices of small states. Rural areas get even a bigger shaft, right? Like, half of California is just like farmland, but no one cares about those voters. 

Mike: This is like my central beef with the electoral college that, because I wrote an article about this this week, I was looking up various numbers, and one of them was that 96% of campaign visits and more than 90% of campaign spending is in 12 States. Because we now, de facto, have this system where like everyone knows California is blue, Oregon's blue, and Mississippi's red, and Louisiana's red, et cetera. There's really no reason for Democrats or Republicans to campaign in those States because we all know what the outcome is going to be. 

Sarah: And as an Oregonian, like yeah. It's very weird to grow up knowing that your vote just doesn't matter. Like it matters locally, which is great, but nationally it has never mattered. 

Mike: And I kept thinking about this in this election cycle, where at two separate presidential debates, we were talking about fracking in Pennsylvania. Which is like, I'm sure a very important issue to Pennsylvania, but two debates? You know, we didn't talk about wildfires in California. There are all kinds of issues in the South that we don't talk about. All we talk about are things that are going on, like issues that are important to people in swing states.

Jamelle: Millions of school children are going to school virtually right now, and for some reason we did not talk to you about the fact that broadband has barely penetrated most of rural America. But I was told that the electoral college would made sure that these issues got discussed, but they don't. Because no one's going to go visit Kansas for the presidential election. 

Mike: Also, one of my biggest things is that we have this division in America between urban America and rural America, which of course is a spectrum, right? Because so many Americans live in suburbs or exurbs, or somewhere on the spectrum between these fake, sort of real America rural places, and this sort of degraded, urban, inner-city places. Both of which are completely fake, obviously both ends of that spectrum. 

Sarah: Everyone lives in either Gotham or Smallville, Mike. 

Mike: Exactly! Because this is how political campaigns often play out. And it just drives me nuts that, you know, four out of five Americans live in cities. Like the vast majority of Americans live in cities on some level. If you got rid of the electoral college and you actually had to win the popular vote, you would have a completely, I think, a completely different Republican party. Because right now they have no policies that apply, that are even like relevant to people that live in cities, because why would they, they're losing all the cities anyway.

Sarah: The war on Christmas is very relevant to my life, Michael.

Mike: Exactly. So it's like, if all of a sudden you got rid of the electoral college, we would have presidential campaigns that would actually have to talk to all Americans. 

Sarah: They could never campaign anymore, right? Cause you can't go to all the states, you would die. Like they're already running themselves ragged for like a year and a half. 

Mike: It would actually be interesting thinking about what presidential campaigns would look like. Like would they only do rallies in, you know, whatever New York city, LA, Houston?

Sarah: I don’t know. I mean, this is getting maybe like too zoomed out, but I honestly think that like the whole process of campaigning is fundamentally ridiculous. And I think that maybe we need to just overhaul the entire thing and this whole... don't you think that the whole campaigning process is silly?

Jamelle: Yes, I agree with you both very, very strongly. Like I think that the electoral college, it introduces all these distortions big and small, and how we think about our country, how we think about our politics, how politicians’ campaign. So for example, I don't think there would be only rallies and big metro areas. It's two things, the first is that nowhere is there very few places in the country that are truly politically uniform, right? There are some census tracts, but when you're thinking in terms of cities and states, most places are at most 70% one party. The majority of places are somewhere in between 60/40.  It's sort of like either the bare majorities or modest majorities. In Mississippi, like 40% of the people who live there routinely vote for Democrats. In Massachusetts, 40% of the people who lived there routinely voted for Republicans. We’re all pretty politically, evenly mixed throughout the country. 

And so if you were only going to try to campaign in the big cities, what you'd quickly find is two things: first, there just aren't enough people. And then two, you're just going to be mobilizing the other side as well. And so I kind of think of what happened in campaigns, it would be- in video games, there's often like a maxi strategy. You're trying to maximize your minimum performance. You'd see something similar in presidential elections, candidates would cease trying to win states. What will matter is getting votes, and votes are everywhere. An auditorium of 10,000 people in the middle of Oklahoma is worth exactly the same as one elsewhere. And so I think what we can start to do is be able to look at the country and they would say, here are places where we win, where we get our maximum. If we were to maximize our losing performance, we would be getting around 45%, 40% of the country. So I think you'd see the campaigns, I mean they would do some rallies in the big cities kind of just for performance sake, but they would devote all their time to all of these places around the country where it's possible to harvest a ton of votes without putting in that much effort. If you were a Democrat, you would hold a bunch of campaign rallies in Birmingham, Alabama, which is a major metro area that's mostly blue that connects you to tens of thousands, hundreds of thousands of votes. And do so at a high return for your dollar.

Mike: I mean, people have pointed out since 2016 that more people in raw numbers voted for Donald Trump in LA than in West Virginia. Just because there are a lot of people in LA and there's not that many people in West Virginia. 

Sarah: There’s a lot of rich people in LA. 

Jamelle: Yeah. I mean, the other thing is would it eliminate the incentive to try to reduce the number of voters on the rolls. If it doesn't matter whether someone actually wins Wisconsin, then your incentive structure would move if you're a Republican from trying to keep people off the rolls and finding every way you can to get the people who do vote for you to vote for you, to register as many of those bridges as possible. 

I mean, one of the push backs against not having the national popular vote is it would, it would require some uniformity in national voting rules. You couldn't have felon disenfranchisement everywhere because that might make a decisive difference. You would have to have some minimum standards and equal standards across the country for who can vote and how they can vote. And they probably would not end up being as liberal as I would like, which is pretty much elections last two months, and there's effectively no registration. But they would probably be on average much more permissive than they are now. I also think people would just want to participate. 

This is the big thing for me, that in a national popular vote election, everyone knows that their vote counts. Anyone's vote could be a decisive vote. One of my strong, very firm beliefs is that when we talk about why don't people vote. The fact that we asked that question and we don't ask the question, why is it that states make it too difficult for people to vote? Like why does our political system make it so burdensome to vote?

Mike: I do actually think that so much of the rhetoric around non-voters, it sort of assumes that people are deciding not to vote. And it feels to me like the number of people who, sort of have the opportunity to vote and are choosing not to vote, is a much smaller number than the people who just can't vote.

Sarah: Especially this year. Like there was this video that went viral on Twitter that was like, people lined up to vote in New York city. It was over a minute of footage and the line was like a mile and a half or something like that. And it was like, “Look at people, it's democracy, it's so great”. And it was like, it's really great that people are doing this, but it really sucks that they have to. Are you kidding me with this? And if you can't spend an entire workday in a line, like forget about it.

Mike: It does feel to me like some of the effort on sort of getting people ideologically to the point where they will vote is somewhat wasted, in that it's like just getting the lines shorter would probably do a lot more to boost turnout. Or like we saw this year, all these mail in ballots.

You know, Washington State has universal mail-in ballots. They mail you a ballot, the postage is prepaid. You sit at the kitchen table, you fill it out and you put it back in the postbox and it takes like four minutes. I mean, it's just unbelievably luxurious. It's great. 

Sarah: I don't think people know they should vote. It's like the question, like why don't people want to feed their children healthy foods? And it's like, they do it's just difficult. 

Jamelle: Right. My general experience from being in political journalism for 10 years is that people do actually want to participate. They want to feel like they're good citizens. And we put everything possible in their way to make, not feel like that.

Mike: Are you at all optimistic about any efforts to fix this now? 

Jamelle: Yes. So I guess that's the next place this goes, like what's the prospects of reform look like right now. 

Mike: How do we fix it, Jamelle? Fix it for us. 

Jamelle: The cleanest solution is just a constitutional amendment, right? It's the simplest thing, but the Constitution is hard to amend. The next best thing is to find some way to either get every state to distribute their electoral college votes by proportional vote, or some mechanism to assign them all to the winner of the popular vote. And that's really what some people are working on, a national popular vote. Interstate Compact is an agreement that once a state passes it into law, once enough States equivalent to 270 electoral votes have signed the agreement, whoever wins the national popular vote, they all automatically give their electoral votes to that winner. The case of this is constitutional, it's simply that legislators can sign their electoral votes however they want. The case that's not constitutional is that the courts have frowned on interstate compact in this way, same, they were kind of an in run around Congress. So probably what would have to happen is not only for enough States to pass it, but for Congress to also just pass a law, basically affirming it, saying, we understand this is happening, we think this is good.

Mike: Even that is pretty tough. 

Jamelle: A pretty high bar. I kind of think that what's going to do it, and I was hoping that would happen this year, but it's not going to, but it will happen eventually, is when the big States started flipping. So like if Texas flips under the electoral college, it basically becomes impossible for a Republican to win the presidency. If Texas flips it's likely that Georgia is going to be blue as well, sort of like States move alike. In that world it's just like not likely that Republicans are going to win the presidency. I would imagine that if you were a Texas Republican, you would be looking for ways to offset that effect. 

Mike: Right? So it finally becomes bipartisan.

Jamelle: A counterfactual is if in 2004, John Kerry almost became president despite losing the majority of the popular vote because he almost won in Ohio. Had that happened, you would have had two consecutive misfires affecting both parties the same way. And that's just sort of, that is the recipe for reform. No one thinks they're going to benefit in the future, so let's just change the system. And right now the problem is that one party believes very strongly that it will continue to benefit under the current system. And as long as that's true, then a constitutional reform is effectively off the table. 

Sarah: To get the vote out in Texas, like from an electoral standpoint, in order to get rid of the very thing that you were trying to prove irrelevant. 

Mike: Yeah. Because the idea of flipping Texas would not exist if we just, whoever won the popular vote became the President. Because there wouldn't be States to flip.

Sarah: You've got the country or you don’t. 

Mike: You would just count how many people voted for each person in each state, and then you add them up and then somebody would win.

Sarah:. What a great concept! I love it! Because that’s how I assumed it was until I was 12 and then I was rudely awakened. 

Jamelle: Well, I'll even say this. It's okay to not like something because it affects your political interests. I mean, sort of that's how these things work and not everyone has pure objective opinions on stuff. As a left leaning person, it makes me mad that left leaning people can persuade most of the countries to support their candidates, and it cannot matter because of some archaic rules that no one gave a shit about when they made. I also think this doesn't condemn Republicans to defeat. I think it's entirely possible for the Republican party to win a national election this way. You know, there's a Republican governor of Massachusetts right now. There's a Republican governor of Maryland. You know, Republicans can win visa electorates and win the country, they just have to, like, work at it. 

Mike: Well, we've, we've never seen a popular vote campaign. I mean, this is the thing is like Republicans who say that it would be impossible for us to win. It's like, well, they've never actually campaigned to win the popular vote. 

Jamelle: I mean, and I actually think we have seen a popular vote campaign. I think Bush's 2004 campaign was a popular road campaign. Bush was self-conscious about the fact that he didn't win the popular vote in 2000, and they campaigned in a way to try to build a majority, right? Like they appealed to black voters on the basis of religion. They appealed to Hispanic voters on the basis of religion. The ownership society, which is something everyone's forgotten now, but was like a major plank of the Bush campaign strategy. They just said, we're going to help everyone who wants a home to buy one. It was part of an explicit effort to build a political majority. That's what Carl Rove is always talking about. We'll have the permanent Republican majority, not the permanent Republican minority that wins just by happenstance of the rules.

Mike: They tried to win gay voters by trying to amend the Constitution so we couldn't marry the people we like. I also appreciate that.

Sarah: That went great. Right? 

Mike: I feel appealed to.

Jamelle: And this is the thing that I think liberals should take heed of, that popular vote election isn't necessarily going to be one that we're going to like to see, in terms of the kinds of messages being put out there. Because as we've just seen with the outgoing President, there are very ugly messages that can attract large numbers of people.  

Sarah: Wow we just got to call him outgoing, that's the first time that’s happened. I'm really happy. 

Jamelle: It feels very weird to me.  I haven't been paying a ton of attention. Just me stressing out over it is not going to do anything. So just like, let me live my life and I'll check in when there's news. Like I was picking up tacos for lunch for us and I was like, “Hey, Trump is not going to be the president anymore”. He's colonized so much in my brain for the past four years.

Mike: I know, my God. I can tweet about Brexit again! I'm really happy. 

Sarah: That is truly what you love most.

Jamelle: People won't get mad at me when I tweet about movies. They will be like, “Real stuff is happening, Jamelle, why do you care about Michael Clayton?” Because Michael Clayton fucking whipped that's why I care.

Sarah: Yeah. And I will continue to tweet about Saw and not trouble myself with letting an old, insane, sadist’s presence into my home. I’m just going to watch movies about Jigsaw.

Mike: Sarah’s tweets will be no different, just for the record. Sarah will continue to tweet as normal. I mean, last thing I'll say, I mean, I do think that there's a tendency for the media to sort of frame this electoral college thing as sort of the debate over the electoral college. You know, Democrats want to get rid of it because then they would win more, and Republicans want to keep it because then they would win more. And I always hate whenever we get issues like this, into this partisan, like everyone's acting for their own advantage and ignore the merits of the case. Which is that in like every country, the person who wins the most votes gets to have the power. Like this is a pretty fundamental principle of democracy. I don't think that we can just say that like Democrats are acting in self-interest and Republicans are acting in self-interest, without noting that like, one of them is basically correct and in line with every other advanced democracy and the other isn't. Like that shouldn't just be like an asterisk.

Sarah: Mike, I think acknowledging that is risking giving up our bipartisanship. So we just have to continue pretending that each of these two parties are both equally having of good ideas, even though one of them has been hollowed out by capitalism to a far greater extent than the other. I don't know. America is a weird country. That's my takeaway. That’s what I learned.

Jamelle: I think this is very much right. That democracy isn't just majority rule. Like it is deliberation. It is protection of minority rights. It is all these things, but once we've done those things, it should just be whoever persuades the most people gets to win. And in a future election, if the other side persuades more people, they should get to do what they want to do too. I mean, we talked a bit about the filibuster and in these conversations with the volume of filibuster, it's always, well, what happens when Republicans get into power? And my answer is always, listen, if the Republican party persuades a majority of the public to hand them uncontested power in Washington, and they want to pass an agenda, then they should be able to do it. And if it fucks up, then we evaluate and say, oh, that was bad, and we vote them out of office. It doesn't work to devise these kinds of backstops to keep the people we don't like from winning office from doing anything. It always redounds to the benefit of those who just want stasis, who don't want democracy. 

Mike: Right. And you also, you can't as a voter, assess the performance of a political party if that political party only gets to do some portion of its agenda and it's not clear to you why some of that agenda is not going into place. I mean, I think when you have sort of fewer of these checks and balances, or you make it much more clear that a party can actually enact its agenda, people find out what their actual fucking agenda is. And then people would vote them out of office, and they have to have a less shitty agenda. I mean, part of the reason why Republicans get away with having these wildly unpopular policies is that it's not quite clear from Congress who's actually doing what.

Sarah: Like Trump going to the Supreme court to be like, “Hello, I'm upset, I'm contesting this”. And it's like, no one knows what window to go to. Like, I do think it would be better for both parties to be able to do the things that they claim to want to do. And then we can evaluate them based on that, instead of evaluating them based on how they perform and the equivalent of like a horrible family system that we all have to watch them in. 

Jamelle: It might even make them a little more honest.

Sarah: Yeah! And nicer!

Jamelle: For the last 10 years Republicans ran on abolishing Obamacare, and they never did it. And that's because they kind of knew in the back of their minds that like, they would never be in a position to do it. But if all of a sudden there was the expectation that yeah, what you campaigned, you're going to have the ability to do, then maybe you won't campaign on crazy things anymore.

Mike: Yeah. Or Americans could look around and be like, wait a minute, my healthcare hasn't gotten better. And you've been in office for four years. Fuck you. Without Republicans having this excuse of like, oh the Democrats won't let us pass what we want to pass or whatever. 

Jamelle: For a minute. I thought you were about to do a Nixon impression. Just like your voice, “Just got to do what we gotta do!”

Jamelle: Well, thank you so much for coming on to tell us about this, Jamelle. This has been great! 

Jamelle: Oh my pleasure. This was a lot of fun. Thank you for having me. Thank you for letting me rant about James Madison. 

Mike: We love it. We love rantiness. 

Sarah: I love to rant about problematic founding father faves. Thank you for being so generous with your time on this historic day to explain this very wonky subject. Because I really loved it and I feel empowered by knowledge, and I also am reminded of a quote from Reversal of Fortune, which I love. Which is where Jeremy Irons, playing a very posh character who seems guilty, and apparently maybe isn't so - says his lawyer Alan Dershowitz - who isn’t yet to be so roundly disgraced as he is now, “Let the chips fall where they may!” And Alan Dershowitz says, “That's what an innocent man would say”. Which is like, if you're saying let's have more democracy, let's let the chips fall where they may, then like, that's fundamentally an expression of not being afraid of what will happen if people are allowed to vote in a real way. Which is like a very exciting way to relate to the concept of government. I feel like this is my favorite You’re Wrong About, which is where the thing that America thinks it's afraid of, is not what it's afraid of. 

Mike: Ooh! That is, that is really good. 

Jamelle: If you'll let me one last pronouncement. The things that people point to as the horrible outcomes of democracy in American history, they pointed to Jim Crow, or they point to the Japanese internment, they point at these things. In each situation, the country wasn't fully democratic. Jim Crow wasn't imposed by a democratic majority, he was imposed by an empowered minority. The worst aspects of American history have always come at the hands of a minority empowered by institutions that block full democratic expression. I don't think you can make a case that democracy has been a problem, the country. I think, the problem that country has had from its beginning is the lack of democracy. 

Mike:  That's very insightful and it makes me even more interested in what you have to say about Michael Clayton.