The Electoral College was created by the Framers as a compromise to save the Constitution: America would elect its president indirectly, with individuals chosen by the states based on their representation in Congress. Most states now use a winner-take-all system that awards all electors to the winning candidate. Supporters of the Electoral College say it protects the rights of smaller and rural states. But critics argue the system is undemocratic and gives too much power to battleground states. And polls show a majority of Americans favor doing away with the Electoral College. Diane and guests discuss how America elects its president.

Guests

  • Jeffrey Rosen professor of law at The George Washington University, and legal affairs editor for The New Republic.
  • James Thurber professor and director of the Center for Congressional and Presidential Studies at American University, and author of "Obama in Office: The First Two Years."

Transcript

  • 10:06:56

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The 2012 presidential election will not be decided by popular vote. Instead, 538 individuals in the Electoral College will choose the nation's next president. The race will hinge on the votes of electors in nine swing states, who account for just 21 percent of eligible voters. As a result, four out of five Americans will not have a meaningful role in selecting the next president.

  • 10:07:33

    MS. DIANE REHMJoining me in the studio to explain the history of this system, how it works and ideas for reforming it: James Thurber of American University and Jeffrey Rosen of the George Washington University School of Law. I know many of you have strong opinions about this. I look forward to hearing your questions and comments. Call us on 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or Twitter. Good morning, James, and good morning, Jeffrey.

  • 10:08:16

    PROF. JAMES THURBERGood morning.

  • 10:08:16

    PROF. JEFFREY ROSENGood morning.

  • 10:08:17

    REHMJeffrey Rosen, how did the Constitution's framers decide on the Electoral College system?

  • 10:08:29

    ROSENWell, this is a remarkable story. Robert Dahl, one commentator, says that deliberations on selecting the president suggest a group of baffled and confused men who finally settle on a solution more out of desperation than confidence, so, here, in a nutshell, are some considerations. There was a big debate in the Constitutional Convention about the appropriate representation of big and small states. The Virginia Plan would have allotted representation in Congress by population.

  • 10:09:00

    ROSENThe New Jersey Plan would have given equal representation to each state. And, of course, the final compromise, the Connecticut Compromise put population for Congress and equal representation for the Senate. Then it came time to choose the president, and the framers were debating among three different possibilities. One was selection by Congress, which they didn't want 'cause they thought it would violate the separation of powers. Congress would have too much power over the president.

  • 10:09:26

    ROSENThe second was a selection by state legislators, which they thought would give too much power to the state governors and legislators. And the final possibility was direct election, which James Madison and James Wilson and other framers favored. However, there was a fear that direct election would both lead to a kind of kingly figure who would have too much power and also that voters didn't know the national candidates well enough and therefore would only vote for their parochial candidates and not for a single representative.

  • 10:09:55

    ROSENSo here's the compromise that the Constitutional Convention came up with: They created an Electoral College based on the apportionment system on population to a larger degree, and they held that this Electoral College would choose among the top five candidates for president. And, if there was no majority that any candidate got, then the election would be decided ultimately by the House of Representatives with each state receiving one vote.

  • 10:10:23

    ROSENAnd what the framers anticipated was that most elections would end up in the House, but because people would favor their parochial candidates and there would be a wide range of candidates in the first run, most of the elections would ultimately be decided by population -- equal population which would favor the small states. But we can talk later about the fact that all of the framers' presumptions about the system would work disappeared and were exploded very quickly with the rise of the party system, and things began to change very quickly.

  • 10:10:50

    REHMBut, of course, the name Electoral College does not even appear in the Constitution.

  • 10:10:59

    ROSENIt does not because they really didn't think that the Electoral College would even be the main body for choosing a president. They thought it would be the House of Representatives time and time again.

  • 10:11:08

    REHMSo, from your perspective, James Thurber, looking back, did the system that the framers came up with make sense at that time?

  • 10:11:24

    THURBERI think it made sense at that time. They were very worried about the population taking away from thoughtful -- really, intellectuals making this decision about who should be the president of the United States. And they set up a framework with only basic elements, and it sort of evolved over time. And, by the way, it comes from Rome. It comes from the selection of centurions in Rome that made up of a body of a college of centurions that selected people who would be in power, which is an interesting twist to this thing.

  • 10:12:06

    THURBERThey were very worried about political parties. Madison wrote about that. Beware of factions. They'll undermine the public interest. And so they thought this was a way to mitigate the power parties. Some of them thought they were very bad. Well, they couldn't do away with parties. Parties became very important in this thing. And parties right now are very important because, in 34 states, the electors are selected by party convention, and in 10 states, they are selected by the party central committee.

  • 10:12:37

    THURBERAnd only in six states is it some other way that they're selected by a governor or the candidates. And so party plays a very important role here, even though a party in America is not that important in people's lives. People think that they're voting for the president and vice president. They're not. They're voting for the nominees from the political party who are electors from these states.

  • 10:13:00

    REHMJeffrey Rosen, the process that the framers ultimately came up with actually saved the Constitution?

  • 10:13:12

    ROSENI don't think that it saved the Constitution. It allowed the Constitution to be ratified because there was a huge debate, especially over the status of slavery. The Southern states were concerned that if there were direct elections, since they didn't allow their African-American slaves to vote, then they would be disenfranchised. And the compromise that the framers came up with, both in the Constitution itself and the Electoral College, was that slaves would account for three-fifths of a person, so, really, the entire Electoral College is tainted by that fundamental compromise.

  • 10:13:43

    ROSENAnd the broader question of whether it saved the union, it didn't because the system was undermined so quickly by a series of changes. James Thurber mentioned the decline of the independent elector and the rise of political parties. So the idea that these were wise centurions who would be making independent judgments was quickly exploded. Soon, electors were popularly elected rather than chosen by state legislatures as they initially have been. Soon, it was clear that the Electoral College vote would choose the president, not the House vote.

  • 10:14:13

    ROSENThere was also the rise of the winner-take-all system, which gave a disproportionate boon to give all the electoral votes to the winner of a state. And then finally, and perhaps most importantly, there was the 12th Amendment to the Constitution, which was ratified in the wake of the contested election of 1804 where both Thomas Jefferson and Aaron Burr had received the same amount of electoral votes, 74 electoral votes each, even though they were both running as president and vice president.

  • 10:14:40

    ROSENThis was because the initial Electoral College didn't distinguish between the two votes and just said that the winner of the vote would be president and the runner-up would be vice president. The 12th Amendment changed that by essentially creating two separate ballots for president and vice president and therefore making it impossible for candidates from the same party to be competing for the office.

  • 10:15:00

    REHMBut then there was yet another bargain in 1824 called the corrupt bargain. What was all that about?

  • 10:15:14

    ROSENThe corrupt bargain was the contested election between Andrew Jackson and John Quincy Adams and Henry Clay and a series of other candidates. And in the initial votes, although Andrew Jackson was the clear winner of the electoral vote, he did not win the majority of electors. So Henry Clay eventually dropped out, and he, some said in exchange for a promise to become secretary of state given by John Quincy Adams, agreed to cast his votes and his supporters with Adams.

  • 10:15:45

    ROSENIn a remarkable moment, it all came down to the decision of one elector from the state of New York who prayed. He was very religious. And while he was praying, he looked down on the floor and saw a ballot slip that said Adams. And he thought that was a sign from God, and he cast his vote for Adams. And Jackson's supporters never forgave Adams. And, of course, Jackson won the next election, and this was known as the corrupt bargain.

  • 10:16:07

    REHMJeffrey Rosen, he is professor of law at the George Washington University. James Thurber is professor and director of the Center for congressional and presidential studies at American University. He's author of the book "Obama in Office: The First Two Years." Now, we have a system whereby who elects the electors, James Thurber?

  • 10:16:40

    THURBERWell, the parties select the electors in 34 states, as I mentioned. And in 10 states, party conventions. They meet, and they -- people go forward as candidates, and they elect them. And in the party's central committee in 10 states and in other states, the governors select them, also even presidential candidates sometimes in some states, in those last six states.

  • 10:17:03

    REHMSo even though we have our elections, and this year early in November, the electors don't meet until a month later to cast their votes. And beyond that, the votes aren't even counted until January. So is it true we do not know officially who our new president is until about Jan. 6?

  • 10:17:37

    THURBERWell, officially, we don't know.

  • 10:17:38

    REHMOfficially.

  • 10:17:39

    THURBERBut, of course, as we watch the returns coming in in the so-called battleground states where they are so close that we don't know who's going to win well before the election, we watch those, and we know that you need 270 electoral college votes. And if someone gets over 270 early in the night, you know that person is going to be president of the United States the day of the election. But, you know these other steps are technical steps that go a long way. But, of course, we can have problems.

  • 10:18:09

    THURBERThere were four presidents -- John Quincy Adams is one of them -- that lost the popular vote but won in the Electoral College. The last one was Mr. Bush in 2000. It was also Rutherford B. Hayes in 1876 and Benjamin Harrison in 1888. So we haven't had this problem many times, but we could in the future.

  • 10:18:32

    REHMJames Thurber and Jeffrey Rosen, they're here to respond to your questions. I hope you'll join us.

  • 10:20:04

    REHMAnd welcome back. We're talking about the Electoral College, how it came into being, why it came into being and what its impact has been. Jeffrey Rosen, you were talking -- we were talking just before the break about the four elections in which this system became more than a little skewed. Go back to those.

  • 10:20:34

    ROSENWell, there's a real historical irony here. It turns out that every time the son or grandson of a president has been nominated, he's been elected with fewer popular votes than his opponent. So that was the case in 1824 with John Quincy Adams, the son of John Adams, 1888, Benjamin Harrison, the grandson of William Henry Harrison who won the electoral vote but came in second to Grover Cleveland, and finally 2000 with George W. Bush. So I guess if the Obama daughters or Chelsea Clinton ever run for president, they may well win the Electoral College but lose the popular vote.

  • 10:21:06

    REHMSo I gather that Al Gore had a majority of some 500,000 votes, popular votes. But what happened, James Thurber?

  • 10:21:18

    THURBERWell, he had a little problem in Florida. There was a problem in terms of the way the election was administered, and there were some questions about the ballots. And it was too -- it was very close. He was encouraged to recount all the counties in Florida. He didn't. He wanted to recount four. Some people think that that triggered the whole series of steps -- and I won't go through all of them -- that eventually ended in the Supreme Court with Al Gore losing and the Supreme Court 5-4 and Bush becoming president of the United States because of that action.

  • 10:21:54

    REHMAll right. Here's an email from Randy, which leads to a question I wanted to ask. He says, "Are there any rules or laws to require Electoral College members to vote in accordance with their state? Are they required to vote a certain way, or can each Electoral College member vote their individual choice?" James Thurber.

  • 10:22:24

    THURBERThere's 26 states where there's a legal requirement for the electors to vote for who won in their party, and...

  • 10:22:31

    REHMBy popular vote.

  • 10:22:32

    THURBERBy popular vote, and there are 24 states where there's no legal requirement. Of course, Maine and Nebraska have proportional representation. And so who wins in the congressional districts there and who wins overall for the two senators -- and it's not winner-take-all -- and they have to vote that way. We have the so-called faithless electors. And we've had seven times in the history of the United -- well, recent history of the United States where we had one each in each of seven elections where someone voted differently than who won in the state.

  • 10:23:09

    THURBERAnd then in 2000, very interesting, we had one blank ballot in 2000. It was such a tight election that's a very interesting thing that happened, and I don't know who it was or from what state. Maybe you do.

  • 10:23:29

    ROSENI don't. I was just going to note the very first faithless elector came early. It was in 1796. It was someone called Samuel Miles, who was a federalist elector, who refused to vote for John Adams, the federalist candidate. And this provoked an outrage federalist to exclaim, "What, do I choose Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be president? No. I choose him to act, not to think." So ever since then, we really have the idea of a kind of ministerial role. And as James says, the faithless elector has been a very rare occasion.

  • 10:23:59

    THURBERBut, you know, in the founding, if I might add to this, there was the thought that these people would have some freedom to make judgments about the quality of people and vote that way in terms of their judgment after thinking about the candidates. But that went by the wayside because of the strength of the parties in 1800, right?

  • 10:24:19

    REHMYeah. So if you've got parties who elect the electors and the electors are dedicated, presumably, to their own party's candidate, then doesn't that negate what may happen in that state in terms of the popular vote? Could you have a state where a candidate wins the popular vote even today and you've got electors and majority of electors in that state who feel the opposite way?

  • 10:25:02

    THURBERWell, in 24 states, they're not -- they are not bound by law. So they actually can vote a different way. But I think that there would be a significant uproar if this happened.

  • 10:25:15

    REHMBecause we see what the popular vote actually is.

  • 10:25:20

    THURBERWe see popular vote. It's transparent. We know who's won, and the party leaders would be very upset and marginalize them. But let me make a little point here. It's very interesting. Ray LaHood, who's secretary of transportation right now, was an elector in Illinois. When he was a member of Congress, he introduced several times a bill doing away with the Electoral College and making it a popular vote approach. We'll get into those reforms later. But there have been over 700 times we've tried to change this, and it's failed.

  • 10:25:57

    REHMWhat is your thinking? What are the major arguments for and against continuing with the Electoral College, James?

  • 10:26:08

    THURBERWell, we have to go back to founding, 1787, to hear some of these arguments on four. But it was, as mentioned before, a balance between large states, small states. People feared sectional or factional leaders or a favorite son from a region. Now, just think in the United States, if we had popular vote, people think, well, the most popular states would dominate, but maybe not.

  • 10:26:32

    THURBERMaybe the South, which is very Republican right now because the realignment of the South, maybe the South and then some of those states -- we call them the cowboy states -- you know, Wyoming, others that are pretty conservative, they could get together. And they could have a regional candidate and continue to dominate over some of the other states. That's another argument. And there was distrust basically by the founders. They were elitists, in my opinion. There's...

  • 10:26:59

    REHMDidn't believe in the wisdom of the people is what you mean. Yeah.

  • 10:27:03

    THURBEROf the popular elections, right, of the populist. They didn't trust them. And there is an argument. I think it's a weak one for, and that is that it encourages a nationwide campaign not just in the most populist states but that in modern time when you look at the way these campaigns go in eight battleground states, it's really not a national campaign, against -- it really goes against democratic principles, one vote -- one person, one vote.

  • 10:27:35

    THURBERSome people argue -- and I lean this way -- that it contributes to low turnout. I mean, if you're in a state that "doesn't count," why should I vote, and who am I voting for anyway? Who are these electors? I don't even know who they are. Campaigns, in reality, ignore much of the country right now. They focus on these battleground states, and that is an argument against it, the popular vote versus electoral vote. You know, populist people think that it's better to have the popular vote.

  • 10:28:10

    THURBERAnd the argument is that if no one wins a majority in the Electoral College vote, it's really fraught with problems, and we really haven't faced that, four times maybe, seriously. And, you know, no other country in the world has this -- I would call it weird and arcane system of selecting people. I just got back from giving some speeches in other countries. This was the first question from everybody.

  • 10:28:41

    REHMReally? Really?

  • 10:28:42

    THURBERThey wondered, where is this? And I said, well, it's not a place. You don't wear a sweatshirt that says the Electoral College. It's a system, and it's an arcane system.

  • 10:28:49

    REHMJeffrey.

  • 10:28:50

    ROSENSome more arguments against it. All of the framers' presumptions have been challenged. Basically, with the two national parties, one candidate almost always gets a majority in the first round. So the framers' back-up system for favoring small states, namely election by the House, is irrelevant, and that's why the Electoral College doesn't help small states today and wasn't designed to.

  • 10:29:12

    ROSENIt distorts preferences. It privileges small states by giving every state three electoral votes at the start, which helps Republicans who win among rural white people. But it exaggerates the powers of big states with winner-take-all rules, which helps Democrats who win with urban minorities. And that's why it's not clear that reform would help one party over the other. The founders' concern about voter information is obviously obsolete in light of technology.

  • 10:29:37

    ROSENEveryone has adequate information. The 12th Amendment's transformation of the Electoral College means that parties are essentially partisan affairs and not deliberations of wise, impartial solons. And there's all sorts of arguments also about how candidates, as James said, would wage much more national campaigns. They would be putting their media buys in all states rather than a handful of the swing states.

  • 10:30:04

    ROSENAnd the basic point to remember is the most important framers supported direct popular election: James Madison, the framer of the Constitution, James Wilson, who had more influence on popular sovereignty than anyone else. The only reason that direct election was not initially adopted was because of this reality of pro-slavery politics, a very disgraceful history. So it's very hard to think of any argument consistent with democracy today that would not favor Electoral College reform.

  • 10:30:31

    REHMHere's an email about the faithless elector in 2000 mentioned by James Thurber. She says, "In 2001 of Al Gore's D.C. electors, Barbara Lett-Simmons cast a blank ballot in protest of the District's lack of congressional representation." Now, you know, talk about lack of representation. Here we sit in the District of Columbia without any weight at all.

  • 10:31:16

    THURBERWell, it took a constitutional amendment for the District to be even included in the Electoral College, and they get three votes, two for senators and one for representative. And for that purpose only, it's a state, which is, in my opinion, very questionable. I'd like to see it as a state personally, but that was good of your listener to tell us who the person was. Now I remember it. I'm sorry. I just didn't remember who it was.

  • 10:31:43

    REHMThat's all right. That's all right. Poll after poll would suggest that most Americans living today would like to see the Electoral College done away with. What would it take, Jeffrey?

  • 10:32:00

    ROSENWell, there are several ways to do it. Of course, you could have a constitutional amendment that would require direct election abolish the Electoral College or would perhaps mandate the district system adopted by Maine and Nebraska that creates a more proportional system or that outlaws the faithless electorate. But constitutional amendments are very hard to pass. There are more practical alternatives, and probably the most practical one is a proposal that would require states to give their electoral votes to the winner of the national popular vote no matter who carries the state.

  • 10:32:35

    ROSENA bill along these lines has been passed by New Jersey and seven other states. California, Illinois, Washington, Massachusetts, Maryland, Vermont and Hawaii, which are worth 138 electoral votes, have passed laws promising to allocate their electors along with the national vote. But they defer action until at least states with 270 electoral votes sign on to this so that it would actually be effective.

  • 10:32:59

    ROSENNow, at the moment, it's stalled, and I would be interested in James' political calculation. But given these strong polls and the -- you know, you could conceive of other states signing on. But, on the other hand, there's a perception -- at least among red states, perhaps in light of Bush v. Gore -- that the Electoral College favors Republicans, which has not been historically true. So, for that reason, this is politically fraught.

  • 10:33:20

    REHMBefore you respond, James, let me just remind our listeners you're listening to "The Diane Rehm Show." James.

  • 10:33:31

    THURBERI think that is the route to changing the Electoral College, that and other -- the states have the right to change all kinds of other rules like they could, as mentioned before, have proportional representation in each of the states. There are some studies that actually have shown that Bush would have won if we had proportional representation in the Electoral College. But I think that's the only route. I think it's so hard to amend the Constitution to do away with it and have the popular vote that it's probably impossible. And, in fact, we may see other states signing on to 270 soon.

  • 10:34:06

    REHMAll right. We have lots of callers who want to chime in. Let's go first to Barry in Baltimore, Md. Good morning to you.

  • 10:34:17

    BARRYGood morning, Diane.

  • 10:34:18

    REHMHi.

  • 10:34:19

    BARRYI live in Maryland, and I'm an African-American man. And I get totally frustrated by not only the Electoral College, but also by the Iowa caucuses and the Super Tuesday. And living in Maryland, one party totally ignores me because they write off my vote, and the other one takes it for granted. So by the time November rolls around, it's pretty much done.

  • 10:34:48

    THURBERWell, I think a lot of people feel the same way you do. Not only African-Americans, Latinos, others, but people generally, all -- with all kinds of backgrounds, are a little concerned about the way we nominate people. And the primaries and the caucuses have been changed substantially in 1972 after the 1968 election when we had the police riots, some people would say, in Grant Park, Chicago.

  • 10:35:21

    THURBERThe party turned, and they opened up the party to allow primaries and caucuses to select who would be the nominee, and the Republicans did that in '76. And so what we have are these massive battles in strange places. I like Iowa. I like New Hampshire. But it's not America. And if you win in Iowa, you do well in New Hampshire. South Carolina begins to roll towards the person in your party getting the nomination.

  • 10:35:50

    THURBERBut more importantly, the party's -- the party activists are generally pretty far to the left and the right, and so we have this fundamental problem in America of nobody in the middle. And Mitt Romney was a moderate Republican by all standards, and he had to keep moving further and further to the right. But this applies also to members of the House of Representatives and the Senate. The activists select them.

  • 10:36:17

    THURBERAnd then the real election is the primary for the House and the Senate frequently. Back to the presidential races, yes, we have to sit in Maryland or the District -- that's even worse -- and watch these campaigns and see that, you know, three or four states that are not like us and people in them are not like us, and they select who the nominees are going to be.

  • 10:36:45

    REHMJust a -- an injection here: Pennsylvania judge is putting a halt to that state's voter ID requirements, ordering today that it not be enforced for the presidential election just five weeks away. The ruling, of course, could be appealed. Pennsylvania is considered by some to be a swing state. It has 20 electoral votes up for grabs. That's a very interesting ruling to come down today. We're going to take a short break here. I know many of you have very strong feelings. Give us a call, 800-433-8850.

  • 10:40:04

    REHMAnd here's an email from David in Pittsburgh on the Electoral College. He says, "I hope you'll spend time explaining the fascinating and frightening fact that the structure of the Electoral College makes votes in different states statistically unequal. For example, the vote of a Republican in New Hampshire carries much more weight in presidential balloting than that of the Democrat in Texas. One man -- person, one vote is not the case as long as the Electoral College remains in place." James Thurber.

  • 10:40:49

    THURBERHe's absolutely right. We have that going on, of course, in the Senate in terms of representation. You have North Dakota that is equal to California in the Senate. But in the Electoral College, the -- each of the 55 Electoral College votes out of California -- two senators, 53 members -- they -- the people voting for those electors have much -- statistically much lower impact than in North Dakota where they have three. And maybe they have low turnout in North Dakota, and they even have more impact.

  • 10:41:23

    REHMTo Boulder, Colo. Good morning, Richard.

  • 10:41:28

    RICHARDHi. Thanks for taking my call.

  • 10:41:30

    REHMSure.

  • 10:41:31

    RICHARDThe reason I'm calling is for those people that are proposing to do away with an Electoral College-type system. I understand the ideas that that would promote, but how do you guard against sort of a crushing tyranny of ideas in high-population centers like Los Angeles and New York and protect somebody from maybe 1,000 miles away in a different region from being cancelled out by those high population centers?

  • 10:42:09

    REHMJeffrey.

  • 10:42:12

    ROSENIt's -- a direct electoral system would eliminate the advantage for small states and essentially would guarantee that everyone is entitled to that representation that they're -- that they should get. It's not true that under the Electoral College small states are protected. In fact, there is an overall large state advantage. The smallest states kept the advantage that they have, two votes for every state regardless of their population.

  • 10:42:39

    ROSENBut the larger states have a greater advantage because of the winner-take-all system, and the net result is an overall large state advantage under the Electoral College. The real people who are disadvantaged, it turns out, are residents in the medium to small states, having three to 21 electoral votes. So that points in both directions.

  • 10:42:54

    REHMAll right. And here's another question from Rochester, N.Y. Good morning, David.

  • 10:43:01

    DAVIDHi. My question is if there's a national popular vote, one of the problems, seems to me, that it has the seeds of a national recount. As we saw in Florida, the very close margin, one -- half a percent, the entire nation would have to be recounted. How do we recount 100 million votes now that every vote is the same? I mean, if Florida took us six weeks, how do we recount the entire nation?

  • 10:43:34

    REHMAnd, of course, we did not recount Florida.

  • 10:43:38

    THURBERWe did not recount Florida. It would cause major problems and disruption. But most of the proposals for the direct popular vote are proposals with runoffs that you would have. If people got 40 percent or more in some of them, they could win not without the popular vote. But in most cases, it's a runoff between two people. That doesn't eliminate the possibility of having an election so close that you had to have a recount, no.

  • 10:44:08

    THURBERA recount, in many places, has to be within two percentage points or something like that, and that, indeed, could occur. And we could undermine trust in the system, and it could be a problem.

  • 10:44:19

    ROSENThe real question there was, if you had a popular vote, would you want election by majority or plurality? And if you needed a majority, then you might need a runoff election which would be complicated. But many of the best proposals suggest that election by plurality should be sufficient.

  • 10:44:33

    THURBERRight.

  • 10:44:34

    REHMAnd let's be clear about what that would mean.

  • 10:44:37

    ROSENWell, for example, Bill Clinton was elected president with something like 40 percent of the vote. He did not have more than 50 percent because Ross Perot was running. So a plurality-based electoral system would encourage third party candidates like Perot and coalition building and would basically allow that sort of situation to continue.

  • 10:44:55

    THURBERAnd we'd go back to this regional idea that I expressed before, that we have serious regional differences in the United States. In the South, in the cowboy states, pardon me -- but, you know, the states where -- those square states where we grow stuff and have cows, well, they tend to be somewhat conservative. And they could get together easily and have a coalition and select somebody so that that region could dominate above New York and California and the blue states down the edges.

  • 10:45:28

    REHMSo explain all about the so-called battleground states and how they currently have an outsized role in the presidential election, talking about Ohio, Florida, Virginia, Colorado, New Hampshire, Iowa, Nevada, North Carolina and Wisconsin.

  • 10:45:51

    THURBERWell, you need 270 Electoral College votes to win. Going into the election, President Obama had solid 237 right now according to all the polls. Polls within the states, he's got 269 Electoral College votes. You need 270. There are 78 toss-ups as of this morning, and this is a meta-analysis of multiple polls over time. It's not just one poll. Seventy-eight toss-up Electoral College votes in Colorado, Florida, Iowa, Nevada, North Carolina and Virginia.

  • 10:46:26

    THURBEROhio is trending to the president at this point, and, of course, we know that no Republican nominee has been elected president of the United States since Lincoln without taking Ohio. So -- and Romney has 191, 191. So he has to get all of the toss-up states -- that's 78 -- and he gets to 269. We come in with, you know, and the president that gets none of the toss-up states, then he has 269.

  • 10:46:56

    THURBERBut it is unlikely that the eight to 10 percentage points of Americans who've not made up their mind yet are going to all swing one way or the other. So it looks -- let's put it this way -- difficult. I'm comfortable in saying that it looks difficult for Mr. Romney now in the Electoral College.

  • 10:47:18

    REHMNow, of course, you've got an awful lot of conservatives out there who are saying that very liberal-minded reporters, commentators are claiming that Mitt Romney is way behind in the polls, that they're not asking the right people, that the polls are skewed, that, you know, so much could happen. Jeffrey.

  • 10:47:46

    ROSENYes. I mean, the poll bias is not my department, but the truth is that, even if you believe that the polls were inaccurate, it is true that very small shifts in the Electoral College can make a huge difference. So let's say the polls are inaccurate. It turns out that 51 percent of the elections for which popular vote totals are available, they're hair-breadth elections where tiny shifts in votes would've changed the difference. So in 1960, for example, you only needed 8,900 votes to shift in Illinois and Missouri to get an Electoral College deadlock. In 1884, 575 votes in New York.

  • 10:48:26

    REHMWow.

  • 10:48:27

    ROSEN1976, 11,000 votes in Delaware and Ohio, so, you know, no one should take anything for granted given the odd system we have.

  • 10:48:33

    REHMOK. But if you've got the so-called battleground states having this huge role, does that, in fact, mean that nearly four out of five eligible voters will cast votes that are not important to the results?

  • 10:48:57

    THURBERWell, I agree, but it's important...

  • 10:49:00

    REHMIt's frustrating.

  • 10:49:01

    THURBERIt's important to local elections. It's important for civic culture, but also, it really undermines trust in the system. When you're casting a vote and you're from the state of Washington or California, Oregon and you know that it's going to go Democratic and you're a Republican, it's very frustrating. Back to the polls, by the way, yes, these can change.

  • 10:49:22

    THURBERBut they have been trending towards the president regularly over the last 10 days. Some of them are within margin of error. Like, in Colorado, 3 percent is -- plus 3 percent for Obama. That's within margin of error, and it could shift. The debate could make a difference, right?

  • 10:49:41

    REHMAbsolutely. All right. Let's go to Harrisburg, Pa. Good morning, Collin.

  • 10:49:49

    COLLINHi. How are you? I'm a strong advocate of the Electoral College. I've studied it for years. And I just, you know, I think that most people that oppose it don't understand it or even know anything about it. But, you know, like -- I'd like to just cite two elections that Electoral College did not pick the popular vote winner. In 1876, the Republicans stole three of the Southern states that actually voted for the Democrat, and he won the popular vote.

  • 10:50:23

    COLLINAnd then in Oregon, there was one elector there, who was a Democrat, and he was going to vote for the Democratic Party. But the government set up a system of having, like -- it was, like -- supposed to be even with Democrats and Republicans and an independent. But the Republicans gave the independent a job, and then they ended up giving the Oregon elector a job. And, you know, like, it skewed the whole thing. So it wasn't the Electoral College, that it was default in 1876. It was the Republican Party.

  • 10:50:57

    REHMJeffrey.

  • 10:50:59

    ROSENYou're absolutely right to cite the election of 1876 is probably our most contested election. I do think that it's -- if we'd had a direct popular vote, however, that mess would have been avoided. And it's true that Congress, unable to choose between two slates of electors from states like Florida -- one for the Republican winner of the popular vote, Hayes, and the other for the -- or rather the Democratic winner of the popular vote, Tilden, and the other for Hayes, they set up a bipartisan commission.

  • 10:51:27

    ROSENThere were Supreme Court justices from both parties who were supposed to decide. And the swing vote was supposed to be cast by a very wise moderate character, a justice appointed by Abraham Lincoln, Justice Davis. But at the last minute, the owner of state legislature made the terrible mistake of appointing Justice Davis to the Senate. And as result instead, Justice Bradley was nominated to take his place. Bradley was a Republican enthusiast.

  • 10:51:53

    ROSENHe was visited by the Senate majority leader, who said it would be a disaster for the country if Tilden were elected. He prayed in his dressing gown for divine guidance and eventually decided to cast the tie-breaking vote for the Republican candidate. So that terrible precedent created the idea that the Supreme Court should stay out of U.S. elections. That precedent was broken in Bush v. Gore.

  • 10:52:13

    ROSENBut I hardly think the election of 1876 is a tribute to the wisdom of the Electoral College. It was only because of the complexity of the system and the fact that there were two slates that were presented to Congress that we have the mess that we did.

  • 10:52:23

    REHMAnd, you know, I do tend to agree with Collin that many people do not understand the Electoral College, why we have it. That's precisely why we've done this program this morning and the question of whether -- if more people understood it, that would they want it to continue. James.

  • 10:52:50

    THURBERWell, I think the polls show that they don't like it. And if they understood it even more, I think the popular view would be to get rid of it because most people believe in this Democratic principle of one person, one vote.

  • 10:53:03

    REHMAnd you're listening to "The Diane Rehm Show." On that very issue, here's an email from Nick, who says, "I was a Peace Corps volunteer in Ghana during the 2008 election. The government students at the secondary school I taught at asked me to explain how America elects its president. They were confused by the Electoral College. As I was explaining it in what is potentially Africa's most promising young democracy, I was sort of embarrassed. How can we be a city on a hill for younger democracies when we don't even practice one person, one vote?" James, how do you respond?

  • 10:53:55

    THURBERI respond by saying that I ran into this all the time with foreign delegations that come to the United States to understand what's -- how we elect people. After explaining it -- maybe it's me. After we -- I explain it, they're totally confused, and they think it's arcane. And they can't understand why it's there, just like the cloture vote in the Senate, 60 votes for normal operation. There are many things like this that foreigners -- very bright foreigners don't understand, don't agree with.

  • 10:54:27

    REHMSo how likely is it that the idea of reforming or doing away with the Electoral College will gain momentum, Jeffrey?

  • 10:54:40

    ROSENWell, we've talked about the possibility that this 271 proposal might attract a majority support. It seems to have stalled for now, but the polls are so significant. You don't often get polls suggesting that 62 percent of Americans say they would amend the U.S. Constitution to replace that system. That's a pretty strong, super majority support. And, of course, you don't need a constitutional amendment to do this agreement by states to cast their votes for the winner of the popular vote.

  • 10:55:04

    REHMDo Republicans and Democrats differ widely on this issue, as to whether to do away with or maintain the Electoral College, Jeffrey?

  • 10:55:16

    ROSENThey do a bit. Republicans have grown somewhat more amenable. For the first time since 2000, a majority of Republicans favor it, popular vote, by 57 percent in 2000. And now -- 61 percent now, but Democrats substantially higher support, 71 percent in 2012. So about 10 percent more Democrats than Republicans favor using the popular vote. But...

  • 10:55:36

    REHMSo my question, is anybody listening, James?

  • 10:55:39

    THURBERWell, I think that, you know, when we have a bad economy, and we have the question of debt and deficit -- we've got all these other issues, quality of education -- nobody is going to run and get lots of votes, saying, I want to reform the Electoral College. And so, therefore, maybe they want it intellectually, and they talk about it.

  • 10:55:55

    THURBERBut that's not a key issue in any campaign so far. I think the way you get to 270 through the state route is to have another controversy. You know, I think that 2000 generated this, and I don't think we'll have it this year. In other words, a crisis triggers reform, and I don't see it this year.

  • 10:56:18

    ROSENAnd the -- you're absolutely right, James. But the frustration, of course, is, if the next crisis favors, you know, a Gore over Bush or the Democrat over the Republican, then, all of a sudden, the Democrats like the Electoral College and the Republicans don't. Remember, right before the Bush v. Gore vote, Bush's people feared that he would lose the electoral vote but win the popular vote. And they were preparing talking points denouncing the Electoral College for being anti-democratic and, of course, switched positions when things turned out on the other side.

  • 10:56:47

    REHMWell, we shall see. Jeffrey Rosen, he's professor of law at George Washington University. He is legal affairs editor at The New Republic and author of the book, "The Supreme Court: The Personalities and Rivalries That Defined America." James Thurber is professor and director of the Center for Congressional and Presidential Studies at American University, author of "Obama in Office: The First Two Years." Thank you both for being here.

  • 10:57:26

    THURBERThank you.

  • 10:57:26

    ROSENThank you.

  • 10:57:27

    REHMAnd thanks for listening, all. I'm Diane Rehm.

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