Will We Know Who the President Is on November 4?
We are quickly approaching the November 3, 2020 general election, and questions are already swirling about whether there will be a clear winner come November 4.
After Hillary Clinton’s simultaneous popular vote win and electoral college loss in 2016, the NY Times began to criticize the 200+ year old method of electing the President . Their latest article on the topic [ What if We Just Counted Up All the Votes for President and Saw Who Won? By Jesse Wegman, March 13, 2020] argues that a state-by-state winner-takes-all system allows the President to ignore voters in deep Blue states like California and New York.
On the right, former California state senator Ray Haynes argues that the electoral college hurts true conservatives, since Republicans have to try to appeal to more moderate voters in swing states.
Writing for Law & Liberty, Peter J. Wallison of the American Enterprise Institute argues that the alternative of a national popular vote would cause much greater problems. In defending the framer’s original concept, Wallison points out that the system guarantees legitimacy of the results, even when fraud occurs in one location, or when a third party candidate prevents anyone from achieving a majority of nationwide votes. As the prospect of delayed counts for mailed ballots looms, we should all hope for a clear-cut winner.
Wallison joined the show this Sunday for the full hour to discuss his recent writings on both the dangers of mail-in ballots and the raison d’etre behind the electoral college.
Read the transcript below.
Related Shows:
- Who Should Be President and Why? with Thomas Fleming, Oct. 2011
- Post Election Recap, November 2010
- The Future of Cities with Brent Orrell
- Bill Frezza’s History of Telecom Innovation (and Not)
Links:
- The national popular vote: A threat to electoral stability — Law & Liberty, April 27, 2020
- Mail-in ballots: What could go wrong? | American Enterprise Institute — AEI by Peter Wallison, Aug. 25, 2020
- Why the Right Should Want a National Popular Vote by Ray Haynes, Sept. 3, 2020
- Judicial Fortitude: The Last Chance to Rein in the Administrative State by Peter Wallison
- Peter J. Wallison | American Enterprise Institute — AEI
- Opinion | Time to End the Electoral College — The New York Times, December 2016
Transcript
Bob Zadek: Good morning everyone. Welcome to The Bob Zadek Show, the longest running live libertarian talk radio show on all of radio — the show of ideas, never once the show of attitude. This morning’s topic is more important than any other topic I have discussed in recent memory. It is a topic which, based upon the outcome, poses a serious threat to the political future of our country and to political stability. It may force our country to deal with structural issues that it has never in its 240-year history had to deal with before. Most scary of all, the outcome is not predictable.
This morning we will examine in detail the system by which we elect our president, the Electoral College, and we will discuss the misunderstood and underappreciated issue of mail-in-voting. Is mail-in-voting simply a mechanical decision, or is it something that if we get it wrong, will threaten the future of our system? To help us understand these issues, I’m happy to welcome to the show, Peter Wallison. Peter is a co-director at AEI, and is a scholar who has written many important books.
Peter has written a wonderful book in 2002 about Reagan’s campaign, and for those of you who are fond of the movie The Big Short, he has published a dissenting point of view to the findings of the Financial Crisis Review Commission. Peter’s article and his piece on that is a companion piece to that wonderful movie.
Of relevance to us this morning, Peter has written recently on the national popular vote movement, a movement seeking to replace the Electoral College, and under which system, the presidential candidate who gets 51% of the popular vote, ignoring the electoral college vote, will become the president. His article “The National Popular Vote, a Threat to Electoral Stability” will get most of our attention this morning. Welcome to the show, Peter.
Peter Wallison: Good to be with you, Bob. Thanks for the invitation.
The Inception and History the Electoral College: Analyzing the Arguments For and Against It.
Bob Zadek: In the area of the electoral college debate, with the national popular vote, majority rule, one person-one vote, there’s so much smoke and misunderstanding out there. It is my hope, with your help, to have our audience have a clearer understanding so they can form their own opinions.
Now, as to the Electoral College, give us a tiny bit of its history. What is the electoral college and what were the founders thinking when they created it? Why didn’t they simply just say, “well, we’ll have a democracy.” How did we end up not with just a popular vote, which would be the natural order of things, but with the electoral college?
Peter Wallison: The electoral college was established during the time that the Constitution was drafted and ratified by the public. At that time, there were about 3 million people in the United States scattered along the east coast. The communication at that time was very difficult. In fact, it went at the speed of a horse. It was probably likely that many people, being farmers and separated from the cities or the towns that existed at the time, would not have known who might be the kind of person who should be the president of the United States.
However, they just established the Constitution which called for the president, which is very unusual since almost all countries at that time had kings or some other kind of monarch that was inherited. So, how do you choose such a person in a country that is so spread out with so little communication? The Founding Fathers’ idea was to find people who are likely to be connected to one another throughout the 13 colonies that existed at the time, who kept in touch by writing and visiting back and forth, and they would be able to identify who could serve as president out of the best people in the country.
These people were then designated as electors, and were designated by each state. Each colony was told they may have the number of electors equal to the number of representatives they have in Congress plus two senators. Then, those electors get together at some time and go over the names of some of the great people in the country, and select the people who would then run for president and vice president.
That was the reason for the establishment of the Electoral College in the first place, because it narrowed down the number of potential candidates for the highest office in the land, and it made it possible for people to vote for a limited group instead of a massive group of unknown people.
Bob Zadek: Now, Peter, let me just interrupt and drill a little bit deeper into what you have explained to us. We would call the Electoral College, using 21st century jargon, the elites. They were the elites — the wise men, just like the Senate was thought in colonial times and today perhaps, to be the wise men, or at least wiser, and it was felt that the voters should outsource, or hire people, the electors, to make a decision because they had access to more information. Maybe they were just plain smarter, or more well-traveled, but that was the theory. So, people did have the right to vote for president, but it was indirect.
They would vote for people who would vote for the President. There wasn’t much thought at the time of the founding to the direct election, and it really wasn’t seriously considered during the debate over the constitution those four and a half months in 1787. So, this was the system, which was like most of the important provisions in the constitution, a compromise designed to accomplish a number of different goals and to establish the country on a hopefully sustainable political footing.
Also, I want to mention one other point. The United States in 1787 invented the concept of President, which was a concept that didn’t exist on Earth. The founders studied history extensively and had to invent the President, the chief executioner, which was an office that had never existed on earth. That was a daunting challenge, and the office we have today is a result of their thoughtful considerations at the time. Okay, so we have the indirect election of the President.
Now, the electoral college is created, and we have the ratification debates. Why was there not so much opposition in this fervor for a new country founded on democratic principles to the electoral college as somehow denying people their say in government?
Peter Wallison: No, there was not. There are many controversial issues that were before the public in this ratification process, but the electoral college was not one of them. One of the reasons for that is that nobody really conceived of what it meant to have a president, because the powers were, as people looked at the extra constitution that was drafted, going to be held by Congress and the Senate. The presidency was important, but it was just not as important as the elected people who are going to be making the laws.
Bob Zadek: Now, fast forward to today, we are continuing the debate, which probably started with some seriousness after the Bush v. Gore election in 2000. There were five instances before that where the president who was elected through the electoral college system got less than a majority of the popular vote. The first one was, of course, John Quincy Adams in 1824 when he was elected by the House of Representatives, but Bush v Gore started in earnest an examination by many thoughtful people as to whether the electoral college was anachronistic or “anti-democratic,” and was a vestige of entitled white men’s vision of government toward it. What are the complaints against the electoral college, and what are the main arguments in support of the electoral college?
Peter Wallison: The strongest argument against the electoral college is the one that asks, “if we really have a democracy, why aren’t we electing our President with a simple majority of the popular vote, rather than going through this other process, which are in effect 50 separate presidential elections that are then brought together through the electoral college to choose this chief executive of the country?”
The idea that we should be electing our president with a majority of the popular vote is a very powerful one, especially at a time when we are sensitive to and understand the importance of a democracy.
The advantages of the electoral college, however, have not been fully considered. All of us who live here understand the power of the idea of a president being elected with the popular vote, but what we don’t really consider, and what the people who have been pressing for what is called the “national popular vote” (a very partisan issue only pushed by the Democrats), is that right now states with 196 electoral votes have voted to send all of their electoral votes to the winner of the national popular vote, even if their particular state did not vote for that person for the President.
Bob Zadek: We’re going to explain the national popular vote movement to our audience in a moment. But first, in general, let’s focus on the existing system, the Electoral College. The arguments against the electoral college is it simply violates principles of “democracy.” We kind of like majority rule, so that’s a compelling argument. What is the argument in support of the electoral college as a system for electing the president?
Peter Wallison: The strongest argument in my view is that it has created a stability in our politics that exists nowhere else and could exist nowhere else. I think the supporters of national popular vote seem to believe that after that idea goes into effect, there will still be two political parties. That’s not true. The reason there are two parties now is because of the Electoral College — you have to get a majority of the Electoral College votes in order to elect the president. Therefore, two parties are the only way that one party can be assured of winning the vote for the President of the United States. We have two parties only because of the Electoral College.
The National Popular Vote Movement and Eliminating the Electoral College
Peter Wallison: Now if we eliminate the Electoral College, which is essentially what people are talking about, we will not have two parties, we will have 10, 12 parties — we will have a right to life party, and a choice party, and an anti-immigrant party, and a pro-immigrant party and a pro-gun, and an anti-gun party. Those kinds of things will grow up. Plus, we will have a lot of very wealthy people like Michael Bloomberg who can run their own campaigns. We would find in the elections of the future, without an electoral college, will have 10 or 12 candidates running for president, and in the end, the winner will probably have 20% of the votes and the others will be arranged down below that.
Now, is that going to sabotage people or not? Because 20% of the vote of course much worse than less than 50% of the vote, it means that the person who is supported to become president has only had the votes of one shift of the American people. He or she would not be able to speak for the American people, the way the winner of the Electoral College has been able to speak for them. In the election of Bill Clinton, there were three candidates running: Clinton, Bush, and a one-third candidate, Ross Perot, in 1992. Clinton got 43% of the vote, way below 50% of the vote, and yet, there was never a question about whether he was validly elected president and could speak for the American people.
The reason for that is that the American people actually think that when someone wins a majority in the Electoral College, he or she has won something very close to the popular vote, at least according to the legal processes that have been set up by the Constitution. We have this wonderful, very valuable idea, and that is that the American people will approve of the winner as their president as long as the person who wins the electoral votes takes office as the president. Now there are some people who don’t like that, particularly people who don’t like the current president.
But over the years, what the Electoral College has done to this country is to assure us of two parties and assure that the winner of the electoral college vote is the President of the United States with the approval of almost all of the American people. So, the best thing in favor of the electoral college is the fact that it creates stability. If we go any deeper into what happens without the Electoral College, we can see how much instability would be created.
Bob Zadek: Assuming we had a national popular vote, what would campaigning be like and what would a presidential candidate seek to be elected president? How would he or she allocate resources to get elected? What attention would be paid to former battleground states and to assured states? How would campaigning be different, and what effect would that have on the legitimacy of the election and on political life in America?
Peter Wallison: Well, as we know, the majority of the population of this country is on the two coasts. The easiest way to campaign in that kind of election is to go into the cities of the largest states and harvest your votes there. That’s because it’s least costly, in terms of advertising and travel, and that sort of thing. You would spend most of your time in the states where most of the votes are. The smaller states with fewer populations would mostly be ignored in a system like that. What the electoral college does, of course, is encourage people to go to all the states or as many states as they think they can possibly win in order to be elected through the electoral college because the smaller states also have a fair amount of power in this system.
Bob Zadek:I would imagine that, if I were living in a small population state, I would feel totally disenfranchised. It would be just like living in California or New York. Why bother to vote when the outcome is predetermined? I would lose interest in terms of actually voting. It doesn’t matter. When you have a huge segment of the country where they know their vote doesn’t matter, they will lose interest, and will stop identifying with your government. To me, that is an incredibly unhealthy relationship between people and their country.
Now, help us understand the national popular vote movement and how it can eliminate the electoral college without constitutional amendment. What is the plan?
Peter Wallison: You know, it’s a really simple plan. The idea is that the governor and the legislature of any state can declare that their electors will vote for the person who gets the national popular vote, not the vote of the people in the state. Whoever gets the highest number of popular votes would get the electoral votes of the state, even if the people of that state didn’t vote for that person. That’s a very simple system. But what it does produce, of course, is what I said before, which is having 10 or 12 or 15 people running for President with the hope that they could get a majority of the national popular vote. It won’t get the majority but the winner will have something like 20%.
Today, we have a total of 196 electoral votes joined to the national popular vote movement, with all of them being democratic states — no republican state has yet voted. If they can get 74 additional votes, the national popular vote system will go into effect, which could happen after this coming election if more states turn out to have democratic leaders or democratic majorities. Once that happens, the national popular vote system will go into effect. There will certainly be litigation about it, and it will certainly go to the Supreme Court, but it will feasibly be a new way for the President to be elected. Unfortunately, as I say, it will not be a two-party system, but rather a multi-party system in which someone will come up, not with the majority, but with the highest plurality, maybe 20%. That person will have to be considered the president.
Bob Zadek: As a fervent supporter of federalism, the principle that the closer government is to me personally, the happier I am (I’d rather have government close to me in my town, in my city, in my county, and in my state, then a government distant in Washington DC with one size fits all), the effect of the national popular vote movement is basically to remove the concept of states, and of living in a state where you are comfortable with its policies. The concept of states kind of disappears if it relegates states to be nothing more than a department of the federal government. That is almost too painful to speak about.
In the last term of the Supreme Court, the Court had to consider the issue of what was called faithless electors — electors who didn’t do what they promised they were going to do, or what the state law compelled them to do. Supreme Court jurisprudence seems to be that states can control and can dictate how electors must vote. The Supreme Court composition will change over time, but under that existing jurisprudence, the Supreme Court is not likely to find the national popular vote compact between the states to be unconstitutional. Therefore, with the national popular vote movement, once it controls the majority of the 270 electoral votes, it will automatically become effective.
Now, I’d have to ask your opinion, why do you think it is that democratic states are the only states that support the national popular vote movement? One would think that “democratic” majority rule would not be partisan. What is there about the concept that makes it find support only among democratic states, and not at all in republican states?
Peter Wallison: I think it has to do mostly with the election of Donald Trump, for reasons that have escaped me. There are so many Democrats who are angry about the election of Donald Trump, that they go to extremes on these issues. This movement for the national popular vote was started because Trump won the electoral college without a majority of the popular votes in the United States. He’s not the only one who has done that, but this has angered them. The fact is that the only time this has happened, at least in modern times, is where the Republican candidate has won a majority of the electoral vote, but not necessarily a majority of the popular vote. But as you said, there are so many advantages of the electoral system, and it’s not a good reason to eliminate it just because the candidate of one party happens to have won the presidency without a majority of the popular vote.
I should mention one other thing before we forget it because this is important. We many times have allegations of fraud in our elections, but if it’s under the Electoral College system, and let’s say we have a fraud allegation in Illinois, which is prone to those things, or Pennsylvania, or any other relatively large place, it doesn’t matter, really, if we’re using the electoral college system, because it’s unlikely that that particular state will have changed anything (except for what happened with Florida in the year 2000).
That was one state that could have changed the outcome of the election, if the outcome in that state had been different. But in most cases, if there’s alleged fraud in one state, that will not make the difference in who was elected president. Under the national popular vote system, every state’s votes will have to be counted very carefully. There will undoubtedly be litigation in almost every state about whether those votes were counted properly, because each vote in those states under the national popular vote system will count toward who is elected President.
So, we will end up after an election with a lot of litigation about people alleging that there is fraud in their states, and these things will go to the courts, eventually to the Supreme Court. In such a case, we may be without a President for a long time until those issues are settled. That very seldom happens under the electoral system we have today, but could happen certainly under the national popular vote very frequently.
How Mail-in-Voting in the Upcoming Election may Cause Chaos and Uncertainty
Bob Zadek: Tied in with the discussion of the electoral college and national popular vote is, of course, this scary, discussion of mail-in-voting. You have written persuasively and have pointed out some frightening issues on what could happen, and is even likely to happen if the country follows through with (and apparently it will) on encouraging mail-in-voting.
Now, we have always absentee ballots, which is where a voter says they would like to vote by mail, and requests a ballot by mail. That is an action initiated by the voter requesting a mail-in-ballot. We have always had that. The mail-in-voting as a matter of a change in state policy is the state government taking it upon itself to mail a ballot out to everybody. The government decides that no one has to show up at the poll; they are just going to mail you a ballot and you can vote by mail. So, it’s initiated not by the voter one-off, but rather by the state as a matter of policy, and that distinction I think you will find to be very important, as Peter explains the doomsday scenario to borrow from that great movie, Dr. Strangelove.
Tell us the doomsday scenario, Peter, which could happen and indeed will happen, dare I say, if we have widespread mail-in-voting?
Peter Wallison: Yeah, there are some states that have been doing this for many years, and have gotten it to a point where it’s reasonably fair. This year, different from the past, is a strong effort by a number of states to start mail-in voting because of the pandemic. They are not adopting rules that will result in easily finding out what the mail-in-ballots actually produced. There are so many different rules in different states about how a ballot will be sent out and how the ballot will be turned in, when the ballot has to be turned in, what the postmark has to be on the ballot, etc. Then, there are always questions about whether the signature on the ballot is a valid signature and whether the person who has received the ballot and sent it in is still a resident of the state.
There was a very interesting article in the Wall Street Journal a few weeks ago, in which a person who had moved to Texas from Nevada received a ballot from Nevada at his home in Texas. So, he was actually able to vote in both places as a resident of Texas and as a former resident of Nevada. We will have problems like that. In the primary system that we just went through, there were many cases in which they weren’t able to settle who won this past June and July, for five or six weeks after the primary was actually held.
So, what can happen (and this is a horrifying system that worries me) is that enough states on November 3rd, Election Day, will not have counted their mail-in-ballots. Some states can’t even start counting the mail-in-ballots until Election Day. They will not have counted their mail-in-ballots, and they will not be able to report anything close to Nov. 3 about the result because of disputes about whether a certain person or group of people are in fact residents of the state, if they mailed in a valid time, whether the signature on the ballot is their valid signature, and all of those disputes. Those things will have to be settled by the courts in 12 or 15 states. As you know, this can take some time to settle in the courts.
The trouble is that there are certain deadlines that have to be met. For example, president Trump must leave office at noon on January 20thunder the Constitution, under the 20th amendment. Where are we if there is no president elected by January 20th? That’s not that hard to imagine. That’s only about eight weeks after the election in November. Anyone who’s been involved in a legal case understands that those things can go on for some time with many levels of appeals and so forth.
There is a law called the Presidential Succession Act, which says that if the President is for some reason unable to serve, and that would be the case because Mr. Trump would have to leave the White House, then the Speaker of the House becomes the president temporarily. If the Speaker of the House can’t do it, then the President Pro Tem of the Senate, one of the oldest senators, becomes the president. Now, that sounds like a solution, even though it might not be the solution people would want, given who is the Speaker of the House.
However, we don’t know who will be the Speaker of the House at that point, because if there are problems with all these mail in ballots, it won’t only the presidency that’s undecided, but many of the House of Representative seats and Senate seats in the states where there are disputes, which could be as many as 15 or 20 states. Now, if that’s true, we won’t know who the Speaker of the House is, either, because there might not be enough people elected to the states to fill a quorum of the house to elect the speaker. If the speaker is elected, whether that speaker will be a Republican or a Democrat, that would depend on whether more democrats or more republicans are elected in the election on November 3, and have had their elections certified by the courts. Unless all the disputes have been ironed out before January 20th, we won’t even know who would be the Speaker of the House, or the President Pro Tem of the Senate will be.
This is a very scary scenario, especially when we have riots going on in many of our major cities, and people who seem to want to influence the direction of the country through burning and looting and so forth.
Bob Zadek: For those of you who think that Nancy Pelosi will become president, you are wrong, because the Constitution as amended requires that the House of Representatives must convene on January 3rd, if I’m not mistaken, of 2021. And since we do not know who is in the House, it can’t convene because they don’t know who’s in it, and therefore they cannot elect a new Speaker to be elected President.
We have a profound vulnerability, and add to that the mood of great unhappiness and the ease by which unhappy citizens find themselves able to go into the streets and destroy personal property and to riot as if it’s acceptable. Just imagine uncertainty as to the President. The courts are litigating all over the place about who gets elected to what office and we have no president; our federal government cannot function. All of this is a reasonable prediction of what could happen from mail-in-balloting.
Now, Peter mentioned obviously accurately that supporters of mail-in-balloting are partisan and are mostly people on the left. They say we have to do it because of the pandemic. To that I have just a closing thought. It is interesting that the same folks on the left who are suspicious of rushing out a vaccine to cure the COVID pandemic, are those who are rushing out mail-in-balloting, which hasn’t been tested or examined and could be far more dangerous. The wise men running our country don’t seem to have their hands on this issue whatsoever. It is scary.
Peter, I would like to thank you for sharing so much of what you have learned and what you understand about the operation of politics.
Originally published at http://www.bobzadek.com on September 10, 2020.
