 When Donald Trump won the presidential election in 2016, even though 2.8 million more people voted for Hillary Clinton, everyone on the left from Bill de Blasio to Michael Moore to Eric Holder to Bill Maher said that at long last, We have to just abolish the electoral college. It's not. Then California Senator Barbara Boxer introduced a bill to amend the U.S. Constitution to do just that. A Gallup poll from September of this year showed that 61 percent of Americans support abolishing the electoral college in favor of a national popular vote. Although it's an issue that breaks along partisan lines with 77 percent of Republicans wanting to keep the electoral college and 89 percent of Democrats saying we should get rid of it. Is the electoral college the best system for electing a president? That was the subject of an online SOHO forum debate held on Wednesday, November 11, 2020. Richard Epstein, a law professor at New York University, defended the system against Lawrence Lesig, a law professor at Harvard. Here's Richard Epstein and Lawrence Lesig in an online debate moderated by SOHO forum director Gene Epstein. Richard, you're first up to defend the resolution. Jane, please close the initial vote and take it away, Richard. Thank you very much. The first thing I would like to say is I wonder why it is that I agreed to a resolution in this forum. The world is filled with imperfections, none of which are greater than those which are associated with making elections where single, large aggregations have to sue single people and so forth. What I'm going to do is to concentrate, I think, on what is the true issue on the table, which is whether we keep this antiquated and somewhat haphazard institution known as the electoral college, or whether we replace it with a nationwide vote. By way of a preliminary, I think it's important that one understand exactly how this thing began to see what was going on. It turns out that the grand structural debate that we had at the formation of the country was the issue of what kind of a country we wanted to have. Under the political theory of that time, there was a very sharp distinction between Republican institutions on the one hand and Democratic institutions on the other hand, where the formal was regarded as a kind of an ideal form and the second was regarded as some form of equivalent of the degenerate situation, arguably generating into mob rule. Clearly, I think this contrast is overdrawn, but it's instructive to understand what these folks were about. The great question that they had to face was how you put together a polity in which all the individuals or all the states would come together and surrender some of their liberties to the central government and retain whatever property and liberty that they had. And the thought was that a simple Democratic set of institutions that operated by a popular vote were subject to the following fatal defect, which was that a simple majority would be able to confiscate the wealth of a minority, either outright or by a series of devilish devices, which compromise their wealth and their liberty. And so what they tried to do is to figure out how they stopped it. The interesting feature was that the Bill of Rights was not part of this original debate. And most of the efforts to try and get these kinds of constraints in place were depending upon various kinds of voting and procedural mechanism. And so it turns out you did not have direct election of the senators, at least at that time they were selected by the legislature. And the theory was that the state legislatures, the states being real entities in the early system, would in effect be able to choose their members of the Senate, the upper house in the Congress so as to expect effective fate on that. But this particular situation created senators of uneven proportion so that the small states would have greater representation relative to population than did the larger state. And that too was done by design. The theory of this particular situation was that if you allow just the large states to win time after time after time, it will create a disenfranchised sense on the part of those parties to have lower population. And so as in many kind of voluntary organizations, what you did is you tried to give some kind of a weak entrenchment mechanism that would help those people who were left in the inferior position. And the Senate, two per state as part of the Connecticut compromise, was one of those things. And in addition to that, of course, the compromise carries over. Because if you look at the provision in article two of the conversation, what it says is that you're going to have each state appoint in such manner as the legislature there have made direct a number of electors equal to the whole number of senators and representatives. So the Senate preference for the small state is built into the system. Originally, it seems very clear that the electoral college was in some form a kind of a deliberative body. One way we know that is a subdivision said that if you're a senator or if you're a representative of some other high officer, you're not allowed to become an elector. And the only reason you would want those prohibitions is you thought that these people would have undue influence in the way in which the system was worked. But by the time we got to the 12th Amendment after the horrendous debacle that took place in 1800 and the choice of Jefferson over Adams at that time, people decided they wanted to do a different thing. In the case called Chiaffroy, Larry wrote a very admirable brief in which he described at great length why it was that the messages that were developed at that particular time intended to create some kind of a deliberate ballot ballot, a deliberative body. You're talking about voting. You're talking about balloting. You're talking about people to come together for meetings. You exclude certain folks. I think it was clearly correct, but it was never followed. There's a second line of American constitutionalism, which says that long and established practices can override specific kinds of provisions of the Constitution. And what I like to call the prescriptive Constitution, and that this risk is in fact a very large one that we face and we do it all the time. We have such things as article one courts. We decide that corporations are citizens. We make all sorts of fictions. And if they last long enough, they become law. And that's exactly what happened here. So the key decision for these purposes came in 1952. And it's a case called Ray against Blair. And you see the two contrasting attitudes that are developed with respect to the way in which you look at these electors. The majority said the practice has great weight in the way in which you think about these things. And we see no reason why we would deviate from the practice. And they didn't spend much time talking about the text. And the dissent of Justice Jackson elegantly written went exactly the opposite way. And it says anything which is introduced by practice can be only enforced by practice. But if there's a delegate who doesn't want to be bound, then given the way in which the 12th Amendment is organized, he or she should be free to deviate from that. And when we got to the chapel case, Larry did the argument in which he claimed that that form of deviation should carry over. And it was rejected. I think it's fair to say that the originalist arguments of Justice Kagan did not persuade me. And I don't think they persuaded anybody else. But in the end, she basically went to the prescriptive constitution saying, it's not the role of the Supreme Court to upset all of these kinds of arrangements by going back to an original situation which has been systematically departed from for over 200 years. Well, with having this particular debate and it takes a very different form. Because now what's happening is we're writing on a blank slate. And what we have to do is to sort of ask the question, if we're not encumbered by history, do we want to have the kind of major transformation that is talked about whereby what we put into place is some kind of a popular vote rather than the current system we have which overweight some states and creates various kinds of firewalls between one state and another. And it turns out I'm actually in favor of keeping the current system, not because I believe that it's perfect, it's not. But because I think that the original Republican impulse on these issues is extremely important to understand, which is we are very much uneasy about the way in which we start to deal with majority rule, given the risk of confiscation. The bill of rights in part was designed to overcome or to offset that sort of situation. But certainly for the last 80 years or so, if you look at the history of the Supreme Court, the most characteristic feature of the 1937 revolution, which in large measure continues to endure today, creates a situation in which it turns out that there's scan protection that takes place with respect to economic liberties, the right to enter into business, to trade and so forth, and very weak protections against the regulation of land used by such devices as voting, as zoning and so forth. So it turns out that we don't have the kind of substantive professions. And if we had those in place, I would be more willing to have a popular vote. But I still think that the old attention that exists very much in these cases is can majority of both the minority, which has most of the property, is one of the issues that we had to worry about early on. And if you go back to somebody like Madison, it was quite clear in a really very strong way, he absolutely feared these majorities. In those cases, it was because of what he perceived as debt or relief, simply giving away the money that people owed it to banks. I think we still have the same kind of issue today. And if we had a straight popular vote on the one hand, and we had no other checks on the other hand, it's pretty clear that you would have exactly pressures of that particular sort. So that I think is one reason why it is that if we keep this thing in place, it changes the nature of the game a little bit by overweighting the smaller states. It tends to take away the dominance from the large states which was exactly what the feature in the constitution was. I think there were also other reasons that we want to do that which relate to this. Oh, there is a great danger in deciding that we will favor the popular vote in any given election because you then have to do it for every particular election. One of the things that you're always worried about is you have a country which is deeply divided on substantive issues, but not quite equally divided in terms of the vote. And if it turns out you use a popular majority, the side that consistently modern to 52, 53, 54% of the vote will always win the presidency and the other party will always be out. Given the enormous expansion of the office, given the enormous expansion of what Congress and so forth can do, what it means is that you constantly have same winners on one side and you're never gonna get some kind of diversification which might slow these things down. That is going to create it seems to me some kind of a serious form of unease and difficulty in the overall situation as people when they worry about where they stand, what they're supposed to do will constantly be saying, how come it is that I'm always outgun by a president? How come it is that I don't have any kind of procedural or substantive rights that will prevent these things from happening? And so as always is the case with election, there was a deep cut to diction. It turns out the things that turn out to be very attractive say like proportionate representation for putting people into electoral office can create a situation where once they're in electoral office, it creates a kind of political instability and the electoral college tends to guard against that. It's essentially a kind of a stabilizing mechanism which makes that less happy to happen than what happened on the other circumstances. There's also another issue I think which is closely related to this particular one that I want to mention very briefly. And that's the question of what do you do with respect to close elections? I think everybody is aware of the epic struggles that took place traditionally in the year 2000 in Bush v. Gore, where in fact you had a state election on which the presidential nomination turned which was extraordinarily close and you had to have a recount of what was going on in that particular case. And all of us became experts in half removed chads to figure out whether or not this vote or that vote did not account. It turned out this thing went through multiple iterations in the courts and eventually it was ended in the Supreme Court in December of 2000 by a, shall we say, I think it was a five, four, six, three, five, four vote on one hand. So you get that kind of stuff and if it come out the other way, of course it's a huge situation. When you start doing with a nationwide situation you don't have firewall. And what this means if it turns out that you have a very clear vote in California, you don't care to commit fraud one way or another because if you already have a two million vote majority you don't care about getting it to three million you don't care if it goes down to one. So there are a lot of wasted votes the advantage of this situation being there's a lot more institutional stability. And so if you have two states very large in the opposite direction it turns out they're both clear, they're off the table. And then what happens is everybody concentrates their electoral power in the swing states where again you'll have these possibilities of issue. Now the way in which campaigning will run if you get rid of the electoral college is Democrats will never leave California, New York, Chicago and so forth. Their entire strategy will be to maximize the turnout that they could get from their strongholds. Republicans will do the same thing with respect to the counties in small towns where they turn out to dominate. And so what will happen is you'll see a very powerful kind of polarization. That polarization will have I think really uneasy consequences for the way in which the result comes out because there's going to be little overwrite. And heaven forbid there should be some kind of an electoral dispute if it turns out you control one part of the country and the other party controls the other each of you have the incentive not only to take out the votes that you're entitled to get but the risk of fraud I think is one that you really have to face under these circumstances. It's not just trying to have a nationwide recount under these circumstances. It's also the question that you have to ask whether or not some ballots were removed from the system on the one hand or illegally added into the system were taken from one column and put to the other. Right now we see that kind of stuff being alleged that is being by and large completely poo pooed in the press but it's not as though somebody has actually seen the particular allegations play out in a court receding. I am not going to comment on the facts of these things as I like to say I'm a professor of law. I'm not a professor of facts. I don't have any inside information about the way particular disputes on the ground should be resolved. But I think that one has to be aware that between five minutes. Okay one has to be aware given the way in which this overall system starts to operate that looking at the fraud kind of issue is something that is really extremely important in the way in which one wants to put this kind of a country together. So the question then comes as far as I'm concerned is given all the confusions that we have is there any way in which we can kind of make improvements to the current system that do not involve getting rid of the electoral college which I defend largely because of its Republican feature of being essentially an anti-majority barricade against the ways in which things work. And it seems to me that what we really want to concentrate is not trying to go to an unknown world where there's a huge transition where we're going to have to put together all sorts of devices. We will not only have to change the way in which the vote takes place we're probably going to have to change the way in which the electors in the given states not the electors, the popular vote is gonna be tabulated in individual states. It may well be that we'll have to move the presidential election to a separate day so that it's not going to be in sync with the Congress which will create all sorts of interesting effects because of the co-tail issues of one kind or another. I think it's extremely important to realize that when you start to make these transitions you cannot make these transitions in a form which simply says, oh, we'll pick this particular feature of the system and alter it and every other feature of the particular system could remain exactly the way it turns out to be. And in my view, when you start to deal with elections I take a key from what I regard as the way in which private elections turn out to be run. Proxy elections I think are in many cases the best illustration of the way in which this particular situation happened. And it turns out whether you look at the law of contracts on optionality or whether you look at the way in which corporate boards are organized everything is determined by the date in which something is received nothing is determined by the debate in which something is sent. You tell people there's a hard deadline and then they make their adjustments as they see fit. And if it turns out there's a systematic difficulty like COVID you can change the rules of eligibility before the election day. And it seems to me that that's exactly the right thing because the uncertainty that comes with delayed votes in a close election or that comes with essentially contested ballots which are gonna be hard at the police if it turns out that they come in later are an extremely important issue that will arise in some of these particular cases. So as I said to finish up on all of this stuff I think if you start to make these kinds of reforms on the way in which the balloting is going to be done what you will do is you will see a situation in which there will in general be some kind of a correlation between the popular vote on the one hand and the electoral vote without trying to change the system. Although I think in years to come and it's less likely to be the case than it is now given the huge polarization that has taken place with the change in the electoral composition it is much less white now 2% per election much greater diversity and so forth. My first plea on all of this stuff would be to try to keep the current system. My second plea is a counterintuitive one and what I say is if you really want to make kinds of changes the best way to control the problem here is to narrow the scope of what a Congress can do narrow the scope of what it is that a president can do because it turns out if you have a more limited government then the pressures that are going to be put on every imperfect electoral system are going to be smaller than they would under the other circumstances. So I think I may have a few seconds left but I don't think there's any particular reason to take them. So what I will do is I will be a man of uncommon virtue and I will end now and watch Larry take forward because I'm pretty sure what his position is going to be a popular democracy over everything else is the supreme value whereas the position that I have taken is said if you take into account transitions that turns out to be something which is very difficult to do. One minute. If you take into account the fact that the transitions are difficult that customary practices have worked well that there are no confiscation risks and so forth then I think what you will do is you'll come to the conclusion that we better off keeping the status quo than moving to a world of which we know not. Thank you. Thank you Richard. And now Larry Lessig speaking for the negative, opposing the revolution, 17 and a half minutes. Take it away Larry Lessig. So I'm not supposed, I don't know that I'm supposed to talk against the revolution. I like talking for revolutions because Richard told me that's what I should do. But because I was speaking with Richard I wanted to take very seriously my obligation under the charge of this debate which was to frame these comments in light of the charge of this debate. And the debate is asking the question whether the electoral college is the best means of electing a president compared to any other that might be devised. The best means compared to any other that might be devised. Now I've got to say that when I read this I was incredibly depressed because it is astonishing that 250 years after this terrible institution was initiated we're still wondering whether we ought to keep it exactly as it is. Indeed, this was one of the most clear mistakes that the framers made. And they knew they made a mistake. And they talked about the fact that they'd made a mistake and they just could never muster the support in the 240 years since to override the mistakes and to fix it in a way that makes sense. So let's just start with the mistakes to make sure we're clear about them. And we're gonna move here from the obvious to the fundamental. So here's the most obvious one. If there's no majority in the electoral college nobody gets 270 then it goes into the House of Representatives to decides who gets to be president. In the House of Representatives every state gets one vote. One state, one vote. So that means that Texas which has a population of 29 million has exactly the same power as Vermont which has a population of 625,000. And I think even a Texan can see what's wrong in equating 29 million with 625,000. That's number one. Number two, electors. So electors are humans and the question that's always been asked about electors is should they vote freely? And Richard referred to and was quite generous about the account that we made in the Supreme Court about the electors and whether they had the right to vote freely. At the time we made that argument people were terrified about the eventual case of electors flipping an election. This article by certainly one of the great scholars of electoral law, Rick Hasen talked about the high risk that the election results could be thrown into chaos by a handful of rogue electors. And so in the Supreme Court, Elena Kagan in this opinion that seven justices joined and two others concurred for different reasons concluded that electors can be directed by the states to vote according to the will of the people. But the important word in that sentence is can. And what's striking about that opinion is in a world where we have 538 electors there are now 84 who are controlled by law because of that opinion. Which means there are still 454 electors who are technically under that opinion free to vote as they want. And that I think is a mistake. Number three, the instability. There's this myth out there that the electoral college is stabilizing. Richard repeated that myth where he said it's a firewall against instability in the results of the election. That is no longer true. We look at 2016 and recognize that these states these one, two, three, four states had less than 1.5% differentiating the winner and loser. And we look at 2020 and we recognize that these five states have less than 1.5% between the winner and the loser. And what that means is that the battle then is about flipping the results in those five states. Now, of course, what we know is that this is no accident. It's the technology of campaigns now to effectively drive to the middle in these swing states. So we're in the middle of an election where there's a five million vote majority for the Democratic candidate yet the results are hanging on 50,000 votes in these five states. That's number three and then number four is what I'm gonna call the Swinger problem. Okay, so the problem with the electoral college in the conventional view is that the electoral college violates one person, one vote. And that's pretty obvious. California is a state with 40 million people. Wyoming's a state with 600,000 people. That means that the relationship between the two is about 66 to one. That means one person in Wyoming is worth 66 people in California that obviously violates one person, one vote. Then there's another kind of problem the conventional view typically talks about. That's what we could call the one out of nine problem. One out of nine times the winner in the electoral college turns out not to be the person who won the popular vote. Now, my view is that's a problem, but it's not the problem. The problem with the electoral college is the problem that happens in every election. And that's a problem caused by the fact that we have 48 states which have winner take all. So what winner take all means is that the winner of the popular vote, even if just by a plurality, gets all of the electoral votes from that state. And what that means is that there's an obvious logic that comes with this reality of winner take all, a political logic. And the political logic is the only states that matter to the election of the president are the so-called swing states. So in the United States, we think we elect the president, we don't elect the president. This country, swing state America, elects the president. In 2016, these states, these 14 states had 95% of campaign events and 99% of campaign spending in the last 30 days before the election. Or in 2020, it's probably these nine states that are swing state America. We have outsourced the selection of our president to these states. Now the critical thing to recognize about these states, because this was central to what Richard was arguing that the framers were so keen to protect the small states, these swing states are not small states. Let me emphasize this. They are not small states. The swing states, the states with power in our system just happen to be the states where the parties are so close that it could go either way. They're not small states. They're not rural states. They're not slave states. They're not especially intended states by anybody. It's completely accidental which of these states turn out to be swing states. Okay, but the problem with an election where the swing states decide who the president should be is that swingers don't represent America. Swingers don't represent America because swingers, the swing states are older. They're wider. Their industry is not the cutting edge industry of Texas or California. Their industry is kind of late 19th century industry. A coal mining, the reason we have to hear about fracking in this election was that Pennsylvania is a swing state. But the logic of winner take all drives the candidates to appeal to swing state America. And it's not just to drive in the campaign. This extraordinarily important work by Kreiner and Reeves, the particularistic president demonstrates that spending gets bent to benefit the swing states and policies get bent to benefit the swing states. And so we have a president who's keen to be happy in these swing states, but that means it's a president who is unrepresentative of the nation as a whole. Most of the nation does not matter to this president or any president because most of the nation does not drive his or her election strategy. Okay, so what is the fix on this? Richard's right. My first fix would be national popular vote. I'm a simple person. I think let's just add up the votes of everybody in this nation and let's see who wins. And of course, if there were national popular vote in 2016, we would have resolved the election on election night. And in 2020, we would have resolved the election on election night. There's no complication. There's lots of details to work out, but I think we could work it out. Richard, astonishingly in this debate said the reason to go against the idea of national popular vote is that we need a system that gives the minority party a good fair shot at winning every once in a while. But we need to, in a sense, entrench the minority party. This is pretty astonishing. Indeed, at the debate of the 12th Amendment, that's exactly what the federalists said. They said that we need a system that makes it so we can have games where the minority party takes control of the presidency. And what Jefferson said was that's absolutely wrong. We need a majority system where the majority is the one that governs. But I look at this and I say, it seems to be like we already have a minority government. I mean, we have six justices on the Supreme Court appointed by people who were elected by a minority party rule, both George Bush and Donald Trump. We already have minority government in the Senate which can't be touched by amendment. We already have lots of places where the minority has a shot. But here's the real thing the minority ought to do. If they want to do better in a national popular vote system, speak in ways that persuade the majority of America to want to vote for you. Don't talk about things that a tiny fraction of America cares about. Don't raise issues of racism or hate. Talk about issues that most Americans want to believe in with you and you have a good shot at winning. That's what a democracy should be, that shot. Richard also talks about the danger of flyover politics. That the only states that will matter, the only places that will matter are these large cities. There's an absolutely clear real world test to that theory. And that is the election of governors in states like Pennsylvania. Pennsylvania is a state, in many ways, like the United States. It's got some very heavy, large urban areas and then it's got a very large rural area. I grew up in the rural area, like kind of Kentucky part of Pennsylvania. And so the question would be if it's true that national popular vote would lead candidates to worry only about the cities, the same logic would say that in states like Pennsylvania candidates would only worry about the cities too. But that's not true. The data that John Corzon has put together demonstrates that in states like Pennsylvania, campaigns happen everywhere, proportionate to the people who are there. They try to win votes in every single corner of the state and that's the same thing that would happen if we had national popular vote. Okay, but even if you reject national popular vote, which is the core argument that Richard is making, there is no reason to reject the proposal I wanna give you right now. And that proposal says, okay, keep the allocation of electoral votes as it is, but allocate those electoral votes proportionally at the state level, fractionally. Okay, that's a lot of words. Let me just put it in a single picture. So in the state of Montana, if a Democrat got 35.4% of the votes, the popular vote, the Democrat would get 1.062 electoral votes. So what that does is every means that every place you compete, you have a chance to get an electoral vote. And what that means is that every state is in play. The president is eager to get votes from Kentucky or from Pennsylvania or from California or from New York. Every state is in play because every state vote would count and the president would care about votes from everywhere. Every vote could matter almost equally. The thing about that solution is that it still embraces what Richard thinks is important, that small states keep a certain advantage. It's not one person, one vote. They have more electors per person than large states. But here's the politics of the current reality of these small state systems. Small states right now are equal politically. There are, bung, the five smallest states, five solid red states, five solid blue states. So you could have this system to allocate electors proportionally, keeping a benefit to the small states, but not benefit one party because of that, keeping a federalist structure, keeping the opportunity for innovation at the federal level. Okay, so here are the reforms that I think are kind of obvious reforms. Five minutes, five minutes. Thank you that we could summarize. Number one, if you want to assure equal voice nationally, where all of us as citizens of the United States have an equal voice in electing our president, the only way to do that is national popular vote. The national popular vote compact would be one way to get there, but a direct amendment would get there as well. One person, one vote, that's a value I think we can celebrate. But if you didn't want to do that, and you wanted to have equal voice within a state so that the fact you are a Republican in California doesn't mean you're irrelevant, but you in fact matter because you get a fraction of that vote, and fractional proportional allocation would give you that. And so when we look at this system and ask, is the current system the best means of electing a president? It isn't. Either of these reforms would be significantly better. And as my daughter would say in response to an argument I often make, she would say, obvi, that's true, obvi, that's true, we can make improvements without radically destabilizing the way Richard fears we might. Thank you. Thank you, Larry Lessig. Five minutes of rebuttal from Richard. Take it away, Richard. There are many that Larry says under these circumstances that I agree with. The question is, how do they exist within the given kind of framework and why? Let me mention a couple of things first. One is I would not put under these circumstances too much weight on what the popular vote is now because that's endogenous with respect to the system. Back in 2016, Hillary Clinton, thought she was going to win the key states. She wanted to get what she thought to be a public legitimacy, so she went out to California in order to run up the popular vote. The Trump party was much more disciplined and so what they did is they went for the few votes in the places that mattered. It's quite clear that the popular vote would not be the same if it turned out that you changed a particular incentives, they would be really quite different. So it's not at all clear who would have won these particular elections, whether or not these things are the same or whether or not they would have reversed. And so it's kind of hard to say exactly what the consequence is going to be. Secondly, I think there are other features about the system which I'm not particularly enamored with which is sending everything to the House of Representatives. The reason why I don't spend any time talking about it is you just don't have that particular problem as a realistic possibility under the circumstances. It's just a kind of a handicap with respect to the way in which the overall system starts to work. So there are two things. The third thing of course is that where are people going to vote? And here I think Larry is a bit optimistic. He says they'll go wherever votes they're on. That's not the way in which I think you want to put the question. The correct question you have to go is where are you gonna get the greatest return for the investment that you start to have? And it may well be that you're going to go to some small places, but I think overwhelmingly what will happen is that people will go to large concentrate population centers where they can must the votes relatively easily compared to everybody else. Now is there gonna be a countervailing force to this? I think there is, but I think it's one that we have to take into account no matter which way we think about. In the current situation, it turns out you mobilize turnout not only because you have a presidential election, but because you have local elections, House representatives and all the rest of these things. And it's very, very clear that when you start to vote, people in these states will really kind of matter. And they're also going to matter with respect to the president. So the president may target his electoral efforts to a particular state. But if you're trying to fashion a majority that's gonna carry the House of Representatives winning key states in the Senate, it turns out that the centritable force under those circumstances is pretty substantial. And what you will see is other campaigns that will take place to which enormous sums of money will be devoted, which will start to reflect the way in which many of these kinds of issues develop. And I think therefore that what happens is that the outcome that you're going to get with the firewalls that you'll be able to put into place are essentially, I think, pretty good. Now, the other point about this is, is there any flexibility within the current system about the way in which these electors should be chosen? There is nothing, I think, and Larry, I hope would agree with this, which says that you have to use within the Electoral College a winner-take-all system. It says that the only thing that it says is that the electors shall be accepted in the particular fashion that the legislature itself direct. So you could, in sense, vary this. Has this in fact been done? Well, the answer is yes. We have something close to what Larry suggests, which I'm in fact perfectly sympathetic with. What you do is, in Maine, I believe in Nebraska, you have systems where the popular vote is calculated by looking at each congressional districts so that if you carry a congressional district and the other people carry the other congressional districts, the vote turns out to be split. And there's nothing, I think, about the system that worries me about that. If you're worried about a fraud risk, it's not going to happen there because you've got these small units which are relatively easy to deal with. It's not going to result in any kind of major rebalancing of the situation or where you get rid of the Republican ideal of trying to slow down the democratic process because of the genuine concerns that you have that popular majorities will do in property and an issue which Larry doesn't start to address. He talks about the system is how you put it together. He doesn't quite talk about the system that you get once you pick the electorals, but you can do that. So, I mean, a lot of what he says, I think, are perfectly consistent with, I'm saying, would I want to use proportionate representation down to the fractional situation? Well, there's a textual argument that you have to do it rounded off to the nearest voter or something of that, which I don't think is a particular situation. And so there is nothing, I think, which prevents that from being adapted under these circumstances to fit this particular bill because I will turn Larry's argument, I think, against him saying, if in fact you adopt his second proposal, it's perfectly consistent with the current constitutional structure and it doesn't involve any of the kinds of serious difficulties associated with a national popular vote. I'm still extremely concerned about what I regard as a traditional problem, which is if you do have large popular majorities of the kind of legislation you're likely to get are going to be very different. And so the point that I would want to leave you on this thing is I regard an electoral process as a kind of a dual structure. On the one hand, there's certain important structural situations that you want to have with it, deliberation, participation and so forth. But on the other hand, there's also, if you put together a system, which is going to get a president or get a Congress, which is going to work in a way, which is going to undermine what I regard as classical liberal institution, I work backwards. That is, I'm not a progressive, I think that constitutions should be designed to keep classical liberal principles in order. They did so for a very long period of time in this country where we had immense prosperity. I think if you start to do it in the opposite direction with a huge degree of freedom in the way in which these things are done is scant regard to the way in which the president and the Congress has elected work, you're going to a very different system. So I'm much more sympathetic to Larry if I thought we had strong property protection, but we had limited government at the federal level. Okay. The fact that we don't have them on an easy and I would rather stick to the current system, making internal adaptations that we can do right now without having to throw the whole thing aboard for national popular vote. Larry Lessick, you get an extra 75 seconds for your rebuttal because Richard took an extra 75 seconds and evened it out. So take it away Larry with your extra 75 seconds. So I of course agree with Richard that the popular vote is a function of the system. And that's indeed part of the problem. Swing states are the only states that have high turnout given our current system. The non swing states, the spectator states have a substantial substantially suppressed turnout. And that's because people are not stupid. They realize they don't matter. And so they don't turn out and we shouldn't have a system that gives people a reason not to turn out to vote. And obviously changing the system either to national popular vote or to the proportional system where it sounds like we're getting close to agreeing on would have that effect. Richard says he doesn't worry about the contingent election. Let's hope we don't have to worry about the contingent election because the clear strategy of at least some Republican strategist right now is to make it so that election goes into the House of Representatives this year by disqualifying certain states, therefore affecting the denominator and therefore making it so that nobody has a sufficient majority to allow the states to choose. And if that happens, Donald Trump gets reelected. So let's hope that doesn't happen but it's an outrageous feature of our current system that it's even possible. Richard says that he's pretty confident that people would spend all their time in the big cities and there might be some returns from the small state but he's pretty confident of it. But he also told us he's a professor of law, not a professor of facts and neither am I a professor of facts. I looked at the real empirical analysis that looks about how political campaigns work and the belief that it would be a flyover democracy is just not supported by the facts. Now the other thing that's really important to Richard's career and one of the reasons which I admired much of his work across his career is he's been so worried about incentives to produce what he calls rent seeking which is basically special interest capturing the government to steal relative to what a free market would give you. But I would think that gives Richard a reason to be on my side of this debate because the swing states have enormous power to create rent seeking inside of our government. Why do we have support for tariffs for steel? It's an absurd idea. Richard would agree it's an absurd idea. There's no reason for that except you got to be able to win a state like Pennsylvania and hopefully also a state like Ohio. Why do we have the extraordinary subsidies we do in states like Iowa for energy projects that we know are not actually pro-green or even pro-energy? Well it's the same point. These states have enormous power because of their place in the presidential election system producing results that no sane people would ever consider if in fact they were thinking about what's in the interest of America. We have an extraordinary solar energy industry in the United States but you don't see candidates talking about solar energy because those states are Texas and California. They're gonna talk about coal and fracking because those are things from the swing states. These are not sensible policy decisions but the senselessness of them comes from making the system dependent on these swing states. And then finally with respect to the quasi proportional allocation, the idea of saying that we're gonna allocate to districts inside of the states the way Maine and Nebraska does it. That idea has been around forever too. And the reason why when it originally came around Alex Kesar's fantastic book Why Do We Still Have the Electoral College tells this history brilliantly. The reason it was rejected back then is the same reason it has to be rejected now. These districts are gerrymandered. So if you allocate electoral votes to these gerrymandered districts you just amplify the gerrymandering in the selection of our president. There's no reason if you've committed to the idea of proportional allocation to adopt a system which is inferior to a pure proportional allocation. And so I think that's why we should push for proportional or I again would push number one for national popular vote. But let's emphasize in the last minute here an extremely important point that I think we should be able to agree on. Nothing Richard has said should resist the idea of moving to proportional allocation at the state level. Nothing in the principles that he cares about protecting small states are inconsistent with that. And it's also within the existing structure that we would have proportional allocation at the state level. How we get it of course is a difficult question. I think it needs an amendment but I've written in my book that I think you could actually see a way to have proportional allocation at the fractional level without an amendment. But either way let's talk not about the strategy but about the principle. The principle ought to be that the president of the United States cares to get the votes of every American and that every American feels equally relevant to the election of the president so that when we have a president the president can genuinely say he or she let's hope she someday she represents America and not this weird country called swing state America. One minute, okay, all right, thank you. How are you? You did not take that extra 75 seconds but and you can't take it back. So that's okay. We now go to the Q and A portion of the evening and we give each side the option of asking the other a question at any time. We've got a lot of questions from the audience I can tell you and but so do either of you want to ask the other question or do you want to wait for audience questions and then see whether you want to ask questions later? Richard, do you want to ask Larry a question at this point? I think the audience has been very patient and I think we ought to take their question. Okay, Yvonne, yeah, okay. All right, one question, a challenge for you Larry that came in where somebody said, hey, Larry Lesik is using Pennsylvania as an example of the idea that both parties do go to the rural areas to campaign and then but just five minutes before, he said Pennsylvania is an notorious swing state. So the challenge was, isn't he choosing a very unrepresentative example to make his case about how flyover country would not be avoided? You get that challenge Larry, go ahead. These are two different questions. One question is Pennsylvania's status as a swing state in the national election. And we obviously see that as the whole election seems to be turning right now on what Pennsylvania is going to do. And that's because the vote in Pennsylvania is evenly split between Democrats and Republicans and in each election cycle, somebody can hope to swing from the Democrat side to the Republican side. The point about Pennsylvania and the way people campaign is about how governors campaign in states. And I was using Pennsylvania as an example. John Kose's research demonstrates that governors campaigning in states don't do what the opponents of national popular votes say they would do. They don't spend all their time in the cities. They campaign everywhere. They spend money everywhere. So the challenge to the other side is if in every single governor's race you have people who are spending money everywhere and campaigning everywhere, why would it be different at the federal level? Because you can't win enough electoral votes with New York and California. It's not like you could lock it up in that. So why would the strategy of campaigning be fundamentally different at that level? And I've never seen an argument to address the empirical argument that Kose's group has made so powerful. Richard, go ahead. I think the answer would be in each particular case you're gonna figure out where marginal revenues goes against marginal costs. And if you're working within a state it may well turn out that it is better to give yourself a broader base but if you're trying to work a national campaign it is quite possible that you'll say and there are thousands of votes that I could harvest in a place like Los Angeles. I don't have to worry about the votes that I can't get in Sacramento whereas in the government I would do so. And so I see no reason to believe that if you're playing on a national canvas that you will follow the same strategies that you will follow with respect to a local canvas because it turns out that your first choice may be to go to Philadelphia but your second choice is not to go to Scranton now it's gonna be to go to Atlanta. And so I can't believe that you're gonna see exactly the same situation. My view about it is these athletes will be rational it will happen or it won't happen but I see no reason to believe that they will be that. I think the other thing of course that's important in these situations it's a mistake simply to think about these as being centralized campaigns. A lot of the decentralization is going to come because of the interaction between a president at the top of the value in local things. And for example the Trump campaign in 2016 probably did a much better job of having neighbors bring neighbors to the poll rather than a line on general campaign situation. So I don't know how the empirics work out but I think they're much more complicated than Larry says and I would be very uneasy about accepting the notion that the nation is just a state with large. Richard I think others are gonna say that you're rocking back and forth a little bit as you talk which you wouldn't normally be doing on a stage so maybe try. All right I will now sit myself down rigidly. Well that's good. You have just be a little bit more rigid. Lawrence is probably in just a rigid chair and which is good. Okay. So just a question. Also the moderator we have to comment that there were questions posed about proportional representation with respect to the electoral college that assumed that it would be a modification of the electoral college and that therefore if you propose just proportional representation to modify the electoral college that means that you still retain the electoral college and then but then gather from Larry Lessick's standpoint a proportional representation in the electoral college defeats the resolution. And so we have a problem there maybe one or the other if you wanna address that semantic issue or if you wanna waive it I'm gonna have to leave it to audience judgment as to whether they wanna say that because Larry had two ideas popular vote or proportional representation. Look I mean the position that I would take is either the district situation which does run into problems with malapportionment although I don't think they're nearly as fatal in this context is fundamentally different from a national popular vote because it keeps all the firewalls in place and it also keeps the relative advantage that small states have over large states which I think are stabilizing Larry thinks not. I think though all of those changes could be made within the current framework. That's why it was I was very uneasy about the way in which the question was formulated. So it may well be that we'll have a hung jury. Okay, okay. You were party to the way that was worded Richard I have to say. I know that I would plead guilty if that's charged. Okay, but still that's a problem I'll have to live on. The question Richard is to what extent could you clarify? To what extent do you want to endorse proportional representation? You're saying that you'll go halfway with Larry on that? Is that what your position is? No, I think the way in which if you look at the constitution let's say what it says. Each state of South point in such manner as a legislation may direct the number of electors, right? There's nothing which basically says it has to be an all nothing system. And so I think what you can do is you can have flexibility within it. Am I wildly in favor of the proportion of representation stuff? I'm certainly not against it because it preserves the central features that I'm much more worried about. And I think in fact Larry is correct to assume that there will be more fighting in each particular state than there will be so that the expenditures will be spent more equitably across the United States because now it turns out a Republican can gain in California by switching it this that and the other thing. So I'm not against all of that stuff. So New York state goes 40% Trump Republican then 40% of the electors should vote for Trump. Well, if the legislature so directs I think Larry agrees with this. If you look at the constitutional text, it's undetermined and that winter take-all is not a prerequisite. It's been a customary feature, but I think it's one that could be changed. I do agree with that Larry or not. As it's the big now. Obviously I think it could be changed. The challenge is you can't get one state or any big state to change it on its own, right? Because California is not gonna change it unless it knows Texas is gonna change it. That's right. So you've got a coordination problem, which is why either, we've tried to suggest as many had before that it raises an equal protection problem. That I go to vote, if I'm a Republican and I vote in Massachusetts my vote is collected for the purpose of being thrown away. That could present an equal protection claim and then maybe under the equal protection clause you say everybody should do it. But the point is, I don't think we should worry about the specifics. The question is what the principles are. And the principle I think we should be able to agree on is that there's no reason to have a system that systematically disables or disqualifies the relevance of the majority of Americans, which is what swing state democracy does. You've not defended swing state democracy. I don't. You've defended small states. But what I'm saying is small states don't matter in the system. It's the swing state. So we agree that we should not have swing state democracy. Well, but the point though, the disagreement or if it is a disagreement I tend to think the small states and aggregate if you put them together are more representative of a larger prize than otherwise, but I don't think it by any means it's a perfect type of situation. It's also quite clear that the swing states will shift from election to election. I mean, at this particular point Pennsylvania has become a swing state. Colorado is less of a swing state than it had been. Ohio seems to be a more red state than it was before. Arizona has become a swing state. So it's not as though it's a constant situation. I think the really difficult point that you mentioned is that unilateral surrender by a majority party in its own state will never take place. California will not agree to this unless Texas agrees to it. And there's no mechanism that we have for centralized control, unless you pass. But let me put it this way. If we were to try to pass a constitutional amendment that preserved the electoral college and essentially try to do that nationally that might be a way out of it. But I think it's perfectly clear that if you see a stable situation like this for 200 years there's a first move of fatal disadvantage that nobody is going to be the first party to do it because the others will not. I think that's absolutely right. I'm much more worried about the things that I'm worried about which is and which Larry I don't think really cares as much as I do. I'm worried about the confiscation risk that comes from excessive popularism. And that's a problem. I'm also by the way, and I think Larry would agree with this a lot of the imbalance that you see in terms of expenditures and appropriations are not due to the presidential election it's due to the senatorial system which you're not gonna be able to undo in this particular country. And places like Iowa, the pork belly situation there is because they have the first primaries which gives them an enormous influence and that you can change without having to change anything else. Okay, picking up on your mentioning of the Senate there were and of course Larry mentioned the imbalance with respect to the Senate and the House. The question I guess for you Larry is aren't you at least in principle equally opposed to the two senators per state situation? You know, two senators representing a state with populations smaller than Manhattan versus California and all that. Are you opposed at least in principle to that for the same reason? Of course the Congress is also distorted. Are you opposed to that for the same reason? Yeah, of course. I mean, we have a Senate which doesn't produce is not a representative body. And though the conception of representation that the founding made representing the state's fundamental, that's just not the current conception of representation that I think we should embrace. We should be representing people equally. And the Senate doesn't do that. And now, you know, I'm not gonna waste my time fighting the Senate if article five says they must, article five in our constitution says there's no way to amend the inequality the equality in the Senate. Okay, we have to figure out a way to make a democracy with that imperfection inside of it. So the simplest way to fix that is to start thinking about the other unrepresentative bodies in our system. So the gerrymandered House of Representatives that's something we could fix. Congress could fix that tomorrow. And the electoral college and the electoral college is something we can address and the corrupting influence of money and politics and the inability of people to have an equal freedom to vote. These are all ways we can make democracy more representative. But the one I thought we were focusing on and I agree I hadn't seen the ambiguity in the in the in the charge by the electoral college here I'm understanding the system we have right now and it's not the best system. There's lots of changes to what we should be making. I think we're agreed about the contingent election. We might even agree about the need to end a swing state democracy. And the only question then is why we don't go the next step to national popular vote? And Richard waves his hands about what he believes would happen if we had an election where we had a national election and everybody would go to the edge. First of all, say show me the numbers because the data goes the other way. He's confident in his own judgment about the data though he's not a professor of facts. He's told us. But show me the numbers number one but number two, show me the principle. Show me the principle that says why a person living in Kentucky should have less relevance as a voter than a person living in Pennsylvania. Show me the principle. We are all Americans. I think Larry Lessig has acted on the prerogative of asking you a question, Professor Epstein. I'm trying to answer it. I mean, the situation that we're worried about is I'm worried less about equal representation in this election. I'm more worried about the composition when you start to get into the bubble of political body. And basically the Republicanism instinct which gave you fixed votes in the Senate which today is much less relevant because we don't think of ourselves as the citizens of states in the way in which it was done. This was an effort to try and control against the popular democracy. So to me, this is all contingent. If I could find my reforms you would have a much smaller federal government. You'd have much stronger protections with respect to property rights. You would have much less discretion in the way in which districts are developed by the state because as you know and I well know whoever wins that four to three election and gets the decisive vote on the commission you can switch in a state like Illinois as much as four or five seats within the framework of the one man one vote principle by just figuring out how to stack one party and crack the other party. My position on that is I think the best thing to do is to take somebody with a ruler and a compass and start to draw square districts and to forget about all the secondary factors that people want. This was of course the major debate that we had over the Baker v. Carr situation. The communities matter, the sub-organizations matter, the rivers matter, the ethnic matters and so forth. I'm beginning to think that that's a mistake. And so what I would want to do to reform the system was be to have this different set of reforms. And if in fact what you did is you had stronger protections with respect to property rights, contractual freedoms and so forth, I'm much less worried about the way in which the electoral system can work because it's not gonna have the huge confiscatory risk. But you know when I look at the way in which a place like California works in terms of itself and its own policy I'm frightened to death at the thought that it's influenced to become any garger than it is because of the policies that it would import. And I see nothing whatsoever in the federal constitution at this point stops them from going in the way that they've done notwithstanding what I think is empirically the case that the state is in a kind of a real serious rate of decline because of multiple policies all which are deeply misguided. Yeah, what's striking about that is I said what is the principle? And the answer was my policies wouldn't get enacted in law. I don't think that's a principle. I guess it is. Let me finish, I think the principle is what is the relationship to the idea of citizenship that says that a person in California or Kentucky or Utah or Texas matters less than a person in Pennsylvania or Michigan or Wisconsin. What is that principle for that? Because I don't care about the policy here. I care about the constitutional principle, the moral principle of equal citizenship. No, I care about, as I told you, I care about both. I care about the citizenship participation issue and so forth, but I also care about the kind of society that you're gonna generate. And if I thought a popular democracy was going to have serious substantive problems, it's not, the original constitution, there was a debate, the famous line of Oliver Wendell Holmes, which I reject is that the constitution does not pick between a government which talks about the organic relationship of the individual and the state and principles of laissez-faire. laissez-faire is an oversimplification, but when I wrote this book called The Classical Liberal Constitution, to me the emphasis was on the back end. So I'm willing to give up on some degree of equal citizenship if I think in the end it will give you stronger substantive norms. That I think is the difference between us. You are much more agnostic on what it is that people do in government. To me, the property contract constellation has developed a contract, a common law, and then carried over. The preservation of that is, I think, paramount value, not for the citizens of one state. It's as important for the citizens of California as it is for the citizens of Kentucky. And I think that the popular democracy start to put those things into peril. That's a fear that was put at the force of the founding. They put mechanisms in place, some of which have been eroded, some not, but I still think that fear is there. And I think that the national popular vote will exacerbate it. Yeah, that brings up some questions that have come in for you, Larry, where, I guess, phrased this way. Is there any point at which you might share Richard's concern in the sense that, is there any point at which the potential for the abuses of a government that is elected by a popular majority is gonna sell abuse individual rights that you yourself would get alarmed and you would say that the tyranny of the majority is indeed troubling? This question just seems to me completely, I'm gonna use the words Scalia got upset about, orthogonal to the debate we're supposed to have tonight. Of course, I'm worried about the tyranny of the majority. I'm also worried about the tyranny of the minority, which is what we have right now. We have a minority government and we have a minority government in the Supreme Court. So I'm worried about both tyrannies, but the election of the president is not what's producing, changing the way we elect the president would not produce that tyranny because it's the current system that is producing the dynamic that I think Richard and I agree is actually destructive. The current system that has swing state democracies calling the shots, swing states calling the shots is a system that creates an enormous possibility for some states to have extraordinary power relative to the others. I mean, look at the debate that's happening right now about the Electoral College. There are Republicans who are saying that state legislatures have the power to ignore the vote of the people in their state and to pick another slate of electors. And that slate of electors, given the extremely poorly crafted way that electoral votes get counted in Congress, could, depending on what Mike Pence does, actually matter over the votes of the people in the state. That is the system that is the current system that is charging. No, Larry, I disagree with that emphatically. I regard those proposals as completely renegade and so forth. Excellent, excellent. I wanna go back to what I thought is that it, what I think, at this point, I think you're now a believer in Ravey Blair along with me. If we've run this system as we've done it and at no point ever in the entire history of the United States has a Republican legislature ever thought to override a democratic majority when it comes to these things that that becomes under the prescriptive constitution completely, totally and utterly unacceptable and so forth. So I mean, I, in my book on the classical liberal constitution stressed the prescriptive constitution. And in this particular case, if you just look at the bare text, you actually make a credible case that they could revoke and do it at any time, which would be madness. If you're following the settled practice, then you can't do that. So Richard, Richard, let me just emphasize something. This is an extremely important point of agreement that we have and it's important for the nation right now to recognize that people have fundamentally different views agree on this. And it's for exactly the reason you say, Elena Kagan in her opinion and Shafalo said, might've been originally that electors had a discretion, but democracy has overtaken it. And democracy now says electors have to vote the way the people have voted. The same points applies to legislatures. I disagree with one word. It's not democracy. I think it's constitutional practice. I'm happy with that. Because I am a passionate believer in that. One of the things I do with originalists is I go through the things that you'd have to overturn if originalism was correct. Marbury and Madison is clearly wrong. Martin against Hunter's Lessee is wrong. You don't have judicial superiority. You don't have federal review over state legislation, which is upset constitutionally. That would lie with state judges. You don't get diversity jurisdiction over corporations. You don't get article one courts. The list just goes on. And to me, the fundamental principle of American constitutionalism is that these prescriptive rights become every bit as powerful as the original ones and even more so in some sense. The original one is kind of a deliberative yes by a bunch of guys who made mistake after mistakes. We agree on that, right? They did not know their left hand from their right hand and nobody could have done better, right? But prescription essentially gives you constant reiteration and reinforcement. And it's the same kind of thing that you think about customers as standard of care and tort law, malpractice and so forth. So that's the position I'm on when the Republicans take this other thing. You just want to scream at them because what they're doing now is they're going back to this kind of crazy originalism. Every originalist argument that Justice Kagan made, I don't have to persuade you of this was wrong, right? Could you, Larry, you guys have mentioned this case a number of times and didn't realize how important it is. We have this point of disagreement. Could you elaborate a little bit more for the ignorant people in the audience, including me, exactly how you and Richard agree? What principle, specifically, without mentioning cases and other legalities, where do you agree? So what we agree on specifically is that a state legislature has no power under the prescriptive constitution that Richard's describing, which is a way of saying the constitution we have right now. State legislature has no power to appoint a slate of electors inconsistent or contradictory to the slate of electors appointed by the people in the election. So we had election on November 3rd. We're trying to count those votes, but there are people talking about, Mark Levin did a big tweet in all caps that said the state legislatures have the power to appoint a new slate of electors and they can ignore what the people did and that slate of electors can be affirmed certified by the governor and then that's what counts in the electoral college. We're agreeing, in fact, they have no such power. And the election decided who the electors are once we figure it counts and recounts and that should decide who the president would be. Well, that's quite clear. Thank you very much. Another question for a professor, Epstein, when you gave the example of a situation in which one party is gonna keep winning, if you had a popular vote, the questioner writes, you seem to assume that party's policy positions are fixed forever. If one party finds itself disadvantaged as you see it by the other party being favored by 53% of the voters, is it not likely that the minority party will adjust its position to reflect public opinion more effectively? I think the answer is yes and no. There is no question that votes do shift between elections but one of the things that's so tragic about the current American system is we have a very strong appeal to identity politics based upon a whole variety of situations, race, ethnicity, sex law, and so forth. And I think that those coalitions are much more rigid than they would be. I think one of the reasons why I think Larry would agree with this, the current situation is so fraught with risk is that the center has collapsed. There's a strong right, there's a strong left but if you were to ask me 25 years ago, what was the sort of consensus of this country, I would have said it was probably the Clinton S center, center Democrats probably could prevail. I don't think there are any more center Democrats left anymore. And so the problem that you have with this is if you have a bell shaped curve, people in the middle can move on one side of a line or not, but if you have a line in the middle and you have two dumbbells on either end, the likelihood of getting people to cross is going to be much lower. Question came in, Larry do you wanna come in on that and so if I just wave it, yeah. Question came in. With respect to the ambiguity and the wording that I mentioned, a questioner is asking this of you, Professor Lesson, are you willing to die on the hill of a popular vote? Are you willing to clarify the debate and say that if you wanna vote for your side then popular vote wins because the questioner had the impression that perhaps the proportionality thing was just throwing Richard a bone. Where do you stand on that? Are you willing to die on that hill? Well, I mean, I'm gonna fight like hell for popular vote, no doubt. And I think that's the right answer. Morally, politically, that's what we should be fighting for. I see. But what I wanna acknowledge and I believe this is consistent with saying that the current system is not the best system. What I wanna acknowledge is that there's a very important change to the current system that more than three-fourths of the states should agree on because those swing states are less than 25% of the nation. There may be nine, maybe 10, maybe 14, but the point is they're not 25% of the nation. And so a super majority, three-fourths of the nation should agree that we should at least give up this ridiculous system where the only people who matter are swing states. So I think it's important to think about what we could politically agree on and then ask what is the principle that that is evincing and the only difference that Richard and I now have on that principle is the extent to which you wanna put the thumb on the scale of voters from smaller states. My pragmatic response to that is it doesn't really matter much if their partisan differences are negligible, but it does matter from my view, supporting national popular vote, from a one-person-one-vote perspective. It's an important idea that we say to every citizen, you all matter equally. So I wanna have that fight, but I wanna be realistic about what a constitutional amendment would need and I just fear if we need a constitutional amendment here, it's gonna be harder for national popular vote. Now let's put a very important pin on a point that we haven't discussed. The national popular vote compact, which survived in Colorado, got a referendum in support of it in Colorado, would be a way of achieving effectively a national popular vote without amending the Constitution. And so that project is gonna have a lot of push behind it after this election because many people are frustrated with the Constitution, with the electoral college as it is. And so that might be a way of achieving it without an amendment, but I'm just talking about identifying a principle we should agree on. I'm not throwing a bone to Richard. My view about this is if you're worried about the ultimate distribution, if you have five overwrought left blue states, five overrepresented red states, the political power is not going to be switched much if you keep to the current system because they kinda cancel themselves out. I think the more dangerous situation is what's gonna happen in the Senate where you can do nothing about it because the alignments that you have blue and red count for much less on senatorial politics than they do on presidential politics, and you can't go. So this is all a second best battle. And I think as I said at the very first remark I made is there is no ideal translation from individual choices to collective preferences. Larry has basically stated, I think quite honestly, the correct trade off, his best choice has a lower probability of success the best than his second best choice. He would, I think, go for the second best choice and give the first choice up if you could get my support or the support of people like me. And my attitude is I'm quite happy to give that kind of support because all the guardrails that I think are important about the way in which you don't have electoral majorities running right over a system, which I do fear and may well happen if we went to a popular vote. We have no experience with it. They're gonna be guarded. So if he can basically not throw me a bone, agree to his current compromise, then we have basically broken the model because we don't know whether we're debating or agree. Okay, yeah, okay. It will most most important to shed light on truth rather than have a debate fight. Absolutely. With respect to that a question, a couple of questions that maybe don't specifically relate to the issues between you, but everybody wants to ask you to legal sages has to do with the fact that a lot of people in the audience seem to have voted libertarian in the last election. And they would love to ask you guys about abolishing a system where they're accused of throwing away their vote. And so then there's ranked voting where maybe they don't have to throw away their vote. They can vote their conscience and then they can't be told they threw away their vote. And then the second thing is if it's not ranked voting, then how about just a runoff vote at the end as well? Nobody gets a majority. So how do you guys feel about that? Those two reforms so that people who vote libertarian don't have to be told they threw away their vote or indeed people who vote green. You wanna answer that one first, Richard? Yeah, I mean, my view about this, the moment you agree with ranked voting, what you're saying in effect is I vote first libertarian, he's out, then it's my second choice will be say Republican, it's there. This is a superficial band aid, but it doesn't allows them to feel happier than they would otherwise do, but they know it's gonna be a Republican vote. So if I were a Republican, I would be passionately in favor of that system because if you actually look at the margin, some of the state small as the libertarian vote was, it was enough to make a difference. If I were a Democrat, I would simply refuse to do so because I don't think there's a consistent left wing party which has the durable one to 2% influence that the libertarian party has. The fear of systems like that is when you start getting three or four candidates and this may introduce that. The way in which you tabulate the votes is gonna be much more difficult and so you do have an administrative problem that you have to worry about. Larry's compact is a very ingenious idea, but he says as the legislature commits to a ballot group which says that we will essentially give our vote in one of two ways, either to the person who's ahead generally or in proportion to what we see in the national election everywhere else and it has the same problem that Larry otherwise mentioned, it's an imperfect rule because if there's under voting in California and over voting somewhere else, you may not get it, but it's gonna be something I think that you have to consider and given the broad text of the constitution and given the fact that it's not an obvious ever debate and switch as is the Republican proposal here, I don't think that there's anything about this proposal that I can see at this particular point which would make it unconstitutional. I do think Larry is right to say if you get only one state to go along with this, it's not clear that you're gonna be able to get the second one to join them given all the dynamics that you get from the correlations. If every state agreed to follow everybody else's vote, God knows how this thing would play out. Do you wanna comment on the question about ranked voting or indeed a runoff vote rule as well? Of course they do have a runoff vote in Georgia, for example, yeah. Two. Two runoff votes, I know you're exactly right. Yeah, so I strongly, strongly, strongly support the idea of ranked choice voting. Of ranked voting? Ranked choice voting. Oh yeah. I mean, if you look at the three states we're arguing about right now, Texas and, I'm sorry, Arizona and Georgia and Pennsylvania, the libertarian candidate she got within the margin in all three states. Now, I don't know, I'm not supporting it because I think it necessarily helps Democrats or helps Republicans. I think it helps both. So in 2000, when 96,000 Floridians voted for Ralph Nader, they certainly, if they had had a chance, would have voted for Al Gore in a huge proportion as number two, and Al Gore would have easily won that state in 2000. So what about the libertarian vote? Yeah, that's right, but even including the Buchanan vote, you still would have seen the shift in a way that would have, the scenarios are, would clearly have supported one side of the other. But my point is, even if it's not clear which side it's gonna support, we should not tax somebody's desire to express who they want to support, who their first choice is. And what we're seeing right now is a system that makes it very hard to express your first choice. And I think there's another really important thing about this dynamic. It makes it much easier for good ideas to be considered inside of political campaigns. We think about a primary. The Democratic primary had 200 people running this cycle. There were people who, most people thought we're not gonna make it, but who had really compelling ideas. Like for example, Andrew Yang, who had the idea of universal basic income. He also liked proportional representation in the Electoral College. He also likes vouchers. I like a lot of things that Andrew Yang was talking about. But if there were rank choice voting, then the leading candidates would have a significant incentive to try to woo Andrew Yang's second and third choice voters. So that they would listen to the ideas of universal basic income. They would talk about it more in the mainstream of their conversations. They would treat each other with a kind of respect that would make it possible to support the candidate who happens to be not your first choice candidate. And it could lead to a dynamic that makes less of the problem that I think Richard and I have identified as a fundamental problem real, which is this hateful polarizing politics. So I think this is an important reform that we should all agree on. And there's no reason not to do this right away. Larry is just one comment. Larry is a pure veil of ignorance guy under this case. It's just the right approach to take on this matter. There is one prediction that I would make and I don't know how it would play out in practice is the moment you have this, you will have two minority parties. You'll have a strong progressive party and you'll have a strong libertarian party in terms of the way in which this thing starts to pay off. In terms of runoff elections and so forth, there is one kind of interesting question is the time gap between the run and the runoff. And in that particular period, all sorts of preferences may well change. So you're not gonna get uniform preferences as of a given date. And you have to ask yourself whether that's a good or a bad thing. I mean, just to take the Georgia thing, suppose you were somebody who believed in divided government, which is a perfectly respectable position. You see the Biden presidency and you see the Democratic House, you're gonna be more likely to vote Republican on these two things precisely because you want to slow things down, particularly on judicial appointments and maybe on other legislation. And so I just, the last observation is so much of what we're talking about with the legislation and the electoral college is the tip of a very large iceberg, which involves other imperfect institutions and on the electoral side and really important substantive limitations, federal invitations and so forth, which is why it is that we find ourselves doing this kind of kabuki advance where we agree with each other on as many things or perhaps more than we disagree with, because I think both of us are trying to use available ignorance technology, which I think is the appropriate way to approach all these. Okay, Richard, yeah, that's good. We actually went over with the Q&A, but of course we're happy about that. You guys have given some great answers. We now go to the final summation portion of the evening, seven and a half minutes apiece. You with the affirmative, you go first, Richard, take it away. Oh my God, this was that part of the thing that I did not pay for. And I'm now gonna have to summarize a set of positions which are somewhat inconsistent with those that I started with at the beginning, but let me see if I can sort of go back to first principles. The single most difficult task that you have with respect to governance is to find a way to get all individuals into a system under a social contract theory. And what the social contract theory presupposes quite controversially is that individuals have a set of natural endowments in both liberty on the one hand and property on others, and that there can be no voluntary transactions that get them into out of the state of nature into something else, so that what you do is you have to create a kind of a social contract theory. That social contract theory has as its minimum condition for success that each individual, if you're doing it perfectly, will find themselves or himself or herself better off inside the state subject to its various obligations, including its tax obligations and its compliance obligations, than they are outside the system. Given the great disagreement and confusion that you have in a state of nature, there are many different kinds of states that can satisfy that function. And the task that you have to get is to go through them seriatim to figure out which of the ones are going to turn out to be best. And the reason why I was so insistent upon the classical liberal constitution is that as a descriptive matter, I do not conceive of the fact and would never accept the fact that you would want to put into place a democratic electoral system which will result in state ownership of the means of production, which I think in the fact means that you get popular democracies leading to Venezuela or something worse than that. And so to me, what you have to do is to have a constitutional democracy. The stronger the property rights protection, the stronger the protections for competition and so forth, then the greater the latitude that you can have with respect to a electoral system. The difficulty that we have today is we have enormous governments, we have a president and I think it's worth stressing a point which neither Larry and I talked about, the amount of good or evil that a president can do through executive orders these days is extraordinarily large. It has expanded consistently so that this particular office is a kind of a safe trap which has more power today given the way in which the branches align one another. Given all of these stuff, I am concerned to make sure that there are firewalls against popular majorities. The electoral college is the one that we have, I don't wish to abandon it. The point that Larry says which I think has a great deal of force is that if you work within the constitutional framework and you do these changes prospectively, what you can do is you could come up with a system in which it turns out that you don't have to use all or nothing stuff. That is I think a game consistent with the current status quo, which is enormous. There are then second order gains as to how it is you do this by district or second order or approximation. And for example, if Larry is right that the Rottenborough system operates with reapportionment, districts are bad. If you could change that system and districts all of a sudden become rather good. So that what happens is ultimately this becomes a deeply contingent kind of inquiry and in which you don't want to make yourself sort of overly dogmatic. To me, I think it's important and this I think is the ultimate disagreement between Larry and I, he thinks that citizen participation has a pride of place. I think it has to share the platform with the nature of the substantive democracy that you're putting into play. And I do not believe that all forms of government are equally good with all other forms of government. So I'm anxious to see that an electoral system that's put into place will defend the system in which have sensible distribution between markets on the one hand and public governance on the other, which I think the classical liberal constitution is the best able to give you. So I don't know whether I'm for against the resolution anymore but that's my position. And you're done, okay. Right, Larry, you have seven and a half minutes to summarize your position. Take it away Larry. So I was incredibly fortunate as a student to have a chance to be in Richard's classes. And I think some of you can now see the extraordinary brilliance of this person with whom I've disagreed on so many issues but always with respect. But here's the point. We have a nation that is desperate to believe in its systems of government again. And if we're going to believe in those systems, it has to be pitched at a level that America grasps. And right now America looks at the electoral college and within our lifetime, we can see two times that a candidate who had won the popular vote substantially in the second time, not as substantially in the first, has nonetheless not prevailed as president. And the argument that, well, that's a good thing because it's gonna stop the majority from overwhelming the public or overwhelming the public wheel is not an argument anybody understands. What they understand is that the person who got more votes lost. Now right now, we're in an election where there's a fierce contest to flip the electoral college to mean that a person who won not just more votes, five million more votes than the incumbent but also won an absolute majority of the public's votes will possibly not be given the presidency because of the games that you can play with this electoral college. It seems to me that's reason enough to say that this system's got to change. And if it's got to change, I agree with Richard. We should put on a veil of ignorance and ask what are the principles that should guide the system? And I do believe, and we're here, we disagree but I do believe the fundamental principle is citizen equality. We are all equally American citizens and we ought to have a system that counts our votes equally. And to the extent it does count them equally, I'm confident that the other checks in our system will not turn us into Venezuela. Although there's lots that's nice about Venezuela, not the government, but there's lots in the people that's nice. So the point of thinking that we need to embed a system that could in our lifetimes three times elect a president who did not win the popular vote seems to me crazy talk. We are not at a place in America where we could survive this election flipping right now. And I think the confidence of people in democracy has been tested so severely that we need some simple principles that survive. And here's one, the person who gets the most votes in the best possible way ought to be the president. And we can agree on ways to bring that about. And I understand we have a difference on national popular vote, okay? I support national popular vote, but if we could at least agree on a system where the fact that you don't live in a swing state is held against you, if we could agree on a system where all of us at least count, whether we count a little bit more because we come from a small state than a big state, but we all count, that would be enormous progress because the suppression of the votes in places like New York and California and Texas because they are not swing states affects their democracy too. So we need systems that inspire people to believe in democracy. And this electoral college does not do that, which is why you should definitely support rejecting this proposal and beginning the conversation of what we should replace this electoral college with. All right, thank you very much for that summation. Let her less egg, the electoral college is the best means of electing a president compared to any others that might be devised. I'm now seeing that the voting results came in and I wanna read them. And before I do, of course, I wanna congratulate both of you on an extremely lively exchange that shed a lot of light. I have to confess it's been one of my favorite evenings at the Soul Forum and I think it's due to you both. And so let's see what happened. Yes vote, the yes vote on the resolution began at 32.65%. It fell a little bit by two points to 30.61%. And therefore the no vote would have to lose more to lose but the no vote actually picked up from 40.8 to 55.1. So picked up 14% of the points. The Tootsie roll goes to Lawrence Lessig. Congratulations, Lawrence. We're gonna send you the Tootsie roll in the mail. You'll also get your honorarium check. Great debate. Thank you very much and hope to see you all soon at the Soul Forum this coming December. Good night.