00:02 Leon: Hey, everyone, this is Leon from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael discuss the Electoral College and its potential to wreak absolute havoc on elections, both this November and in the future.

00:16 [Archival]: Most people are aware that the present system is dangerous. It's outdated and it's archaic. It's one that needs to be revised and made responsive to the needs of today's electoral problems.

00:26 [Archival]: We can have national voting, and that means get rid of the Electoral College.

00:36 Leon: This is 5-4, the podcast about how much the Supreme Court and the Electoral College suck.

00:47 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have weakened America's immune system like a lifetime of poor nutrition. I am Peter, I'm here with Michael...

01:04 Michael: Hey, everybody.

01:04 Peter: And Rhiannon.

01:04 Rhiannon: Hiiii... Hi.

01:07 Peter: And this is a special episode, the first in a month-long pre-election series of episodes that dig into the rotten core of our ostensibly democratic institutions.

01:20 Rhiannon: Let's do it.

01:22 Peter: And today, we are looking at maybe the dumbest, most anti-democratic of our institutions, the Electoral College.

01:28 Rhiannon: That's right.

01:30 Peter: Before we jump in, we should talk about the fact that Amy Coney Barrett's confirmation hearings are ongoing as of Monday of this week. I think for now, our basic position is, A, she's probably going to get through and B, confirmation hearings are just sort of political theater and aren't really substantively very interesting. She might say something interesting and if she does, we'll be sure to talk about it, but that's sort of just how I feel about it.

02:02 Rhiannon: Yeah. I think it's not interesting, and I am just thinking about what a weak party the Democrats are right now. If you think about how immediately after Ruth Bader Ginsburg's death, people were like, oh, if they try to ram somebody through, we're going to burn it all down, right, and now it's just like, okay, well, it's happening. What are we doing? Nothing.

02:21 Michael: Feinstein's just carrying on like normal.

02:25 Rhiannon: Exactly.

02:26 Peter: The real big news is that no one is wearing masks except for Coney Barrett, and half of these people actively right now have COVID. It's not like it's risky or whatever, like they have it. They have it.

02:39 Rhiannon: This is true.

02:41 Peter: So this is Dianne's last confirmation hearing.

02:49 Rhiannon: Which if you're some people is good news.

02:54 Peter: Yeah, yeah, I think it is. It's a small silver lining.

03:00 Michael: I also, I just want to say I don't have an appetite for bullshit anymore, that's all it is.

03:05 Rhiannon: And that's what it is, exactly.

03:06 Michael: Nobody believes a word of what they're saying and they don't care, and it's all about jockeying for political advantage and just like, I don't know, fuck that. I don't need to get myself all angry about that on a Sunday night or whenever we're going to record this.

03:21 Peter: Yeah, so we'll talk a little bit more about Amy as things unfold. But for now, we will turn away from the political theater of the confirmation hearing, and we will turn towards the system that A, decides who wins the presidency and B, is ripe for abuse by Republicans in this upcoming election.

03:40 Michael: That's right.

03:42 Peter: The Electoral College. The Electoral College is a system so fucking stupid that it cannot withstand the first question that comes to everyone's mind when they hear about it: Why not just be a regular democracy?

03:54 Rhiannon: Get her ass, get that Electoral College.

03:56 Peter: No amount of historical context or analysis or abstruse arguments about the utility of the Electoral College will ever defeat that question.

04:06 Michael: Yeah, that's it.

04:06 Rhiannon: Right.

04:06 Peter: So we're going to dig a little bit into why we have the Electoral College, why it persists, what the legal rules surrounding it are and, most importantly, whether and how it might be used to stage a nice little American coup next month. We've talked a lot in recent episodes about voter suppression, which is and remains the GOP's primary electoral strategy these days, but there is a lingering question here of what their options are if that fails, right, what sort of anti-democratic shenanigans can they engage in? What can they do if they want to steal this election after the fact?

04:45 Peter: And to understand that, you have to understand the Electoral College. So first of all, we're going to assume that you have some understanding of what the Electoral College is, but it's a system for presidential elections where each state gets a number of electors based roughly on its population and a candidate who wins the state under the current rules wins all of that state's electors. So the reason why this exists is a little more complex, and we're not historians, so we're not going to go into too much detail here, but we want to give you a little bit of color. So like we've mentioned before, all the Constitution really says about voting in presidential elections is that states appoint their electors as they deem fit, and those electors cast their votes for President.

05:31 Peter: The original idea behind this was that people would vote for an elector in their district who would in turn vote in a way that reflects the will of those people to some degree, but also does not result in too much upheaval, 'cause of course, the electors would be fancy boys from high society who have a vested interest in sociopolitical stability.

05:52 Rhiannon: Right. And the fact that the outcome was meant to be controlled by elites, that really goes deep here. The system as it was originally designed would rarely produce a majority winner, which in turn results in the House of Representatives holding a vote on who wins. This all changed as political parties coalesced and in the mid-1800s we got to a point where most states were holding state-wide votes, where the winner takes all of the electors, and that's the system that reigns supreme today.

06:21 Michael: Right. And in the modern day, electors themselves are selected through processes that vary state by state, but largely speaking are people who are nominated by the state parties, Democratic and Republican parties, and they all get together to officially vote in mid to late December.

06:40 Peter: Right. So I don't want to turn this episode into pure bitching about the Electoral College, but I think it's important to understand the Electoral College, not as like some sort of stroke of genius by our Founding Fathers, because that's how everyone tries to color it when you're growing up. It's deeply connected to the fact that our country as founded was really not a democracy in any meaningful sense, and was a nation controlled quite directly by sociopolitical elites, and the Electoral College and all of the sort of inherently undemocratic components of American government are vestiges of these anti-democratic oligarchic roots. They're not like clever protections against the excesses of democracy or whatever, like nerdy apologists for the Founding Fathers want you to believe.

07:26 Rhiannon: Right.

07:27 Peter: They were designed to ensure that the average person, the average citizen, did not exercise too much control over government, so that power could remain in the hands of the most syphilis-ridden group of dandies in modern history.

[laughter]

07:41 Rhiannon: That's right, exactly.

07:44 Peter: And every defense of this system is incoherent. A popular vote would be the only system where everyone's vote matters equally. Everything else is just hand-waving bullshit. To me, that's sort of the bottom line.

07:58 Rhiannon: Exactly, yeah.

08:00 Michael: No, that's absolutely right. Another thing about the Electoral College, though, is that it's super racist, as if being really stupid and really elitist isn't enough. So just as a practical matter, the number of electoral votes each state gets is the sum of its total number of representatives in the House and the Senate. So small states that only have one member of the House of Representatives, they get three electoral votes, one for their House member and two for their two Senators. So if you go back to the Founding and you remember your social studies from when you were a kid, at the Founding, the small states were concerned about getting overrun by the big states, and that's why we have the Senate where each state has equal representation.

08:40 Rhiannon: Right.

08:40 Michael: And you might also remember that the slave states were worried about being overrun by the free states, and so what we had was the Three-Fifths Compromise, where slaves were counted as three-fifths of a person for the purposes of determining the population of the state, which gave slave states bigger representation in the House. Those compromises are reflected in the Electoral College, since it is the sum of your House and Senate members. It's just historical fact that the Three-Fifths Compromise gave slave states a bigger representation in the Electoral College than they otherwise would have.

09:20 Rhiannon: Right.

09:21 Michael: And then this gets worse after the Civil War, because the Three-Fifths Compromise disappears, and now freed slaves are full people, and all of a sudden the Confederate states have their populations increasing in their Congressional representation, increasing and by extension the number of electoral votes they get in Electoral College increasing, but thanks to Jim Crow, thanks to literacy tests, thanks to election day violence and just general campaigns of violence, blacks were effectively disenfranchised. And so what you had was Confederate states increasing in power in this way while still benefiting off the backs of disenfranchised minorities. So this is up through the '70s that this was an inherently white supremacist institution, and in the '70s, there was a movement to abolish it and surprise surprise, it was Southern states that were against that, and today you still see all this same shit. There's a direct through line here.

10:21 Peter: Yeah. Yeah.

10:24 Rhiannon: Yeah.

10:26 Peter: So where does this god-awful system leave us? There are some very obvious ways in which the Electoral College is undemocratic. It results in certain states being politically irrelevant in presidential politics. It essentially erases the will of minority voters in every state, and when I say minority voters, I mean whoever is not voting with the winning candidate in that state. So Wyoming has just over half a million people and has three electoral votes, California has 40 million people and has 55 electoral votes, so people in Wyoming just have vastly more influence per vote over the outcome of a presidential election.

11:06 Rhiannon: That's right.

11:07 Peter: It also makes certain undemocratic practices and tactics like voter suppression much simpler. If the election were decided by a nationwide popular vote, voter suppression on a scale necessary to change the outcome of an election would be almost impossible. The Electoral College makes it so that it can be incredibly effective. In swing states where voting margins can be in the tens of thousands, disenfranchising fairly small portions of the population can swing the entire state in one direction or the other. You couldn't have that if you didn't have the Electoral College. It should go without saying that this is pretty useful for a party whose entire electoral strategy is to ensure that the will of the majority of the people in the country is suppressed.

11:48 Peter: So even when it's being used "correctly," the Electoral College is only nominally democratic and is easily abused by bad faith actors. But the Trump administration's fairly open strategy of ensuring that they win this election, even if they lose, might have you asking some questions about what exactly they could do to take advantage of this system and stage something that looks less like electoral tactics and more like an outright coup. And the first thing we should talk about is maybe the simplest issue: Can't the electors who make up the Electoral College just cast their vote for whoever they want, even if they're supposed to cast it for whoever wins the state?

12:33 Peter: The Constitution doesn't say that electors have to vote for anyone in particular. It's state laws that say that they have to vote for someone in particular. So electors who cast their vote for someone other than the candidate who wins the state are called faithless electors, and this has been an issue in the past, because although most states have laws saying that electors have to cast their vote for the winner of the state, there's long been a strain of thought that this is unconstitutional. Many people believe that the Founders' intent was for electors to be able to exercise their own will in their vote, meaning that states actually can't require them to vote for whoever wins the state. The electors are sort of there as a bulwark against democracy gone wrong.

13:17 Rhiannon: Right. Right.

13:17 Peter: They're meant to protect us from the hordes of people who are trying to elect someone that the elites don't like.

13:23 Rhiannon: Exactly, and that actually became a bit of an issue in the last election. Despite there being no more than one faithless elector in any election since 1912, there were 10 in 2016.

13:35 Peter: Yeah, and we should note that was mostly due to an effort by Democrats. If you recall, they became obsessed with the idea of what they called Hamilton Electors, and this was... They were banking on a theory I just described that electors have this obligation to protect us from the Donald Trump presidency, and so they should vote their will, and they were trying to get electors to cast their votes for centrist Republicans. They were saying, Republican electors, stand up to Donald Trump and cast your vote for fucking John Kasich, whatever. And they had very moderate success with this, but certainly it was the first time in over 100 years that this sort of faithless elector thing had gone anywhere. There hadn't been since, I think it was maybe 1912, an election where there was more than a one faithless elector. And then this one again, there were 10.

14:31 Rhiannon: Right, exactly. So the Supreme Court ended up taking up this issue just this year in a case called Chiafalo versus Washington, and in that case, the Court unanimously held that states can essentially force electors to vote for whoever wins the popular vote in the state. So that sounds great. But if you look a little closer, it's not really clear how much this ruling actually matters, so only 33 states have these laws, and of those only 14 actually cancel the faithless elector's vote, which means that in 36 states, a faithless elector vote will still count.

15:09 Peter: And also, it means that these states are passing laws that say, no, you have to vote for whoever wins the state, but there's no penalty in many of these states if you violate the law, and in many of these states, the vote still counts, so... Is that even a law?

15:26 Rhiannon: Right, exactly.

15:27 Michael: A sternly worded warning. You'd better, you'd better.

15:33 Peter: Please do it.

15:36 Rhiannon: Exactly, so the next question, of course, is like, how much does this matter? The good news is the party of the candidate who wins the state chooses the electors, so the GOP may well be openly questioning election results in certain states, but they are not likely to convince Democratic electors to switch teams. So the concern with faithless electors is more kind of theoretical than real, in order to steal the election, what Republicans really need is a way to prevent Democratic electors from being appointed in the first place, and that brings us to the GOP's next option.

16:10 Peter: Yeah, yeah, and this is, I think, the meat of it, this is like where the coup might happen, I think. Again, the Constitution says that state legislatures shall direct "the manner in which electors are appointed," so that there's a possibility that Republican-controlled legislatures in states that Biden wins, where it seems like Biden has won, could say, okay, we don't trust the results in our state, so we're going to appoint our own electors, and they just appoint electors, Republican electors, who will vote for Trump.

16:44 Peter: And I think that's the threat that a lot of people are really concerned with this election. The problem with this strategy is that states already have laws on the books concerning how they appoint their electors, so it's unclear if they could actually change those laws after an election has already happened. And you also have the fact that Pennsylvania, Michigan and Wisconsin have Democratic Governors who may be able to veto these types of shenanigans if that's an option presented to them.

17:11 Michael: And there's also the possibility, I'll talk about this in detail later, that Democrats, if they control the House and the Senate, could essentially reject those electors.

17:20 Peter: Yeah, but again, the Constitution says very little about this, so there's a lot of room for interpretation that could be leveraged by Republicans if they needed it. Electors don't vote until well into December, so there's a real argument that the states have the option of changing how electors are appointed before then. The reason scholars have been saying, I think a lot of election law scholars have been saying it's unlikely, is that the state laws for each state provide that electors will go to the winner in that state. To change the rules after voting begins seems like it's sort of breaking what is essentially a compact with voters about how their votes are going to be tallied. But there are a couple of important things to remember here.

18:00 Peter: One is that it's not clear what the Supreme Court would think about this argument. In Bush v. Gore, the conservative majority reasserted for the first time in decades that state legislatures could change the rules and appoint whatever electors they want, but the Court didn't go so far as to explain whether they could do it after the election began, for example. The other thing to remember, and maybe the more important thing, is that this isn't really about constitutional interpretation. The Constitution says almost nothing about this. This is about power. Republican state legislators aren't reading the Constitution looking for the correct answer; the token state legislators aren't reading anything at all.

18:42 Michael: The take-out menu at Denny's.

18:46 Rhiannon: Easy lay up, but I'm glad you took it.

18:50 Peter: They just need some leeway to work with here, right. Like, to essentially treat the vote in your state as invalid and appoint your own electors after an election already happened is clearly a bit insane, but if it's the only thing standing between Republicans and power, sorry to the election law scholars, but fucking bank on it, dude, bank on it. This is state Republican politicians we're talking about, the lowest form of human life. Even Congressional Republicans wouldn't stop to these levels. They're barely sentient little parasites. The only question in my mind is whether the Court is willing to essentially toss out the remaining crumbs of our democracy entirely and substitute with what's basically rule by fiat. I think that is the real fundamental question.

19:42 Michael: Right. So there is another possibility, which is that this gets decided by the federal government and specifically the House of Representatives, and this happens in the case of a tie or no candidate gains the majority. Don't worry, if you're concerned, if it just sounds really uncertain, because our Founding Fathers have instituted the absolute dumbest fucking system imaginable to remedy the situation.

20:10 Rhiannon: James Madison's on the case, don't worry.

20:15 Michael: So if nobody has the majority, the House of Representatives will meet, and we should note, this is the newly elected House of Representatives, not the current one. And each state, not each Representative, but each state will get a single vote for President, and it's winner take all, baby.

20:35 Peter: That's the talley, yeah. That's what I'm talking about. This is so incredible, because how do you even come up with a system that ineffective. I mean, it's just fucking bizarre.

20:47 Michael: It is, it is.

20:49 Peter: California, who are you voting for? Okay, that's one vote. And what about you, Rhode Island? Yeah, that's also one vote.

20:54 Michael: There's like 50 legislators in California and there's one in Montana. And the guy Montana gets the same...

21:01 Peter: You don't even have to say Montana, it's just like, Steve, who you voting for?

21:05 Rhiannon: And another... This is kind of a remote possibility, but an interesting side note is that the Senate actually chooses the Vice President and there every Senator gets a vote.

21:17 Peter: Yeah, fuck it, why not just use a totally different system in the Senate.

21:22 Rhiannon: So it's actually not hard to imagine a scenario where you end up with an opposite party President and Vice President.

21:29 Peter: I smell a sitcom.

21:34 Michael: Well, I was going to say political assassinations would be way in vogue.

21:38 Peter: Just Biden and Trump just brawling like little siblings in the Oval Office.

21:42 Rhiannon: I was going to say, I'm just adding that to the long, long list of items that give me anxiety. It's a list that I read before bed every night.

21:53 Peter: Yes, like Arya's kill list in Game of Thrones, Rhiannon.

21:58 Michael: The Senate appoints Vice President Pence. So back to the practical realities of this. In the House, as it's currently constituted, the Republican Party, despite being a minority in the House, controls 26 state delegations, the Democrats control 22. Pennsylvania is tied, and Michigan is sort of tied. There are seven Democrats, six Republicans, and Justin Amash. Amash, Amash, who fucking...

22:29 Rhiannon: I don't know, and not to be my Palestinian dad real quick, but Amash sounds Arab, gotta say.

22:37 Michael: Fuck it. He's retiring, he's going to be replaced by a Republican anyway, so whatever. So look, Republicans right now, it's easy to see how they could retain control of 26 delegations. It's not outside the realm of possibility that Dems could flip that, although it seems unlikely, but like we said, Montana only has one representative, and that's like a lean Republican, Alaska only has when representive, and that's also lean Republican, but those are competitive races.

23:04 Peter: It's hard to do voter suppression in Alaska because there are no minorities. It doesn't work out there.

23:10 Rhiannon: Well, indigenous people.

23:13 Peter: Alright, cut that. Gotcha.

23:21 Michael: Florida and Kansas also have very narrow margins in their congressional delegations, so those could change hands. You might be thinking, reasonably, if there's a big enough Dem wave to flip these delegations and give Democrats control of 26 delegations, then wouldn't Joe Biden have enough electoral votes to just not make this an issue. But you know, again, it's a real possibility. The Pennsylvania State Republican Party, they have legislators there who've already floated this to the press, that they are considering trying to appoint their own electors. They have a Democratic Governor, it would be its own sort of constitutional mess, if they try to do that.

24:00 Michael: But it's like Peter described a minute ago, if Republicans try to steal the electoral votes of states Biden won, what Democrats can do is they can try to get those electoral votes thrown out. So if that happens, the Democrats aren't without options. So one thing they could do is contest the electoral votes that the GOP tried to steal and then have them thrown out. So this shit, we're getting very obscure here, I was like toiling through the US code reading really, really poorly written laws for this, so...

24:32 Rhiannon: Michael was in his zen place.

24:36 Michael: Apologies if there are any election experts who think that I'm getting something wrong here, but...

24:42 Peter: Who cares?

24:43 Michael: This is my own reading of the law, so the way this works is if the body that accepts and counts the Electoral College votes is Congress, both Houses get together, and you need a written objection and one Senator and one House member needs to sponsor the objection. And if you do, if you object to Pennsylvania's Electoral College votes, the Houses separate and they each meet and, as far as I can tell, after a period of debate, they vote by a majority vote. And so if you control both Houses, even if you only have 22 state delegations, if you have a majority of votes in the House and you have a majority of votes in the Senate, you can just say, no, fuck Pennsylvania. This isn't on the up and up. And in this process, you could essentially deny both candidates a majority of electoral votes and bring it to the House. That's my understanding of this.

25:33 Michael: Now, that might seem like a self-defeating thing if Democrats don't control 26 state delegations in the House, but there are things they could do with that too. One thing that they can do is they can just try to prevent certain Republicans from being seated long enough, which... The way this works is like... So let's say you want to flip the Florida delegation and it only takes two seats. You can have two people who lost to Republicans challenge that loss and they register their challenge with the House, and then the House will have to take up an investigation, and this can take time. It can take 30 days after the election certification, so you can be putting in your challenge in mid-December, just a few weeks before this all happens. And the House can, they can pre-textually investigate this and drag their feet and in the process they can say, well, we're not seating you while this investigation's on-going.

26:26 Rhiannon: We won't seat the Republican who supposedly won.

26:30 Michael: Right, who definitely won, but we're not going to recognize you. Republicans have done this before.

26:35 Rhiannon: Of course they have.

26:35 Michael: They did with Al Franken in the Senate, and in the process denied Democrats the ability to have like a 60 vote filibuster-breaking majority for several months. It's another form of hard ball. So you could drag these out for months, and in that time, it might be a temporary period, but for a temporary period, you could control 26 state delegations long enough to install the President. The big concern is, that it's a level of coordination and hard ball that I'm not sure the Democrats are capable of, and even if they are, if we got to this, I have no doubt that there would be violence in the streets, like the fucking Proud Boys and the... What are they? Gigalos? Jugalos?

27:24 Rhiannon: Whatever, those fucking clowns.

27:25 Michael: Those fuckers in the Hawaiian shirts with the guns, and cops, I'm sure.

27:31 Peter: I don't know, though, I don't know that conservatives know how to do violence in the streets in any real way, because they don't have targets, what they would do is use coordinated campaigns of violence against specific people. They don't like get out there and riot or anything.

27:46 Michael: Right, right, right, right. But there will be death threats against Congressmen, for sure. And there would be like, like when they shut down the state house in, where was it, Michigan. But, yeah, you'd see militia types protesting peacefully, but with enough guns that it would be extremely intimidating. It would be ugly, and it's why we want to avoid this sort of thing, like we want a clean victory.

28:11 Peter: I think it's time. I think it's time for an ad.

28:12 Peter: So enough about every avenue that we could possibly go down in the Electoral College shit show, although it is fun, the one thing I learned just doing a really casual afternoon research for this episode was that, as dumb as the Electoral College is just on its face, it only gets dumber, every layer you peel, like a stupid onion. You peel one layer back and underneath is something even dumber and you're like, holy shit, this goes all the way into the core. It's sort of crazy. Very impressive that these people, the Founding Fathers, have managed for 250 years to successfully engage in a propaganda campaign that they are smart. Like look at these incredible systems that balance each other out, and you're like, oh, what are the systems? And they're like, oh, if we don't know who the president is, that each state gets a vote, and then for the vice president, you do the same thing, and then you have... And then that's how it works. And you're like, wow. Wow. Alexander Hamilton. Incredible. You deserve all those cashews, all across the country.

29:36 Rhiannon: Yeah, you know what this episode has me thinking so much about is we talk a lot about demystifying the Court as an institution, it's not this objective, perfect scientific thing that you put in the variables and it spits out the correct result, and we should all be deferring to it and super respectful of it. Researching for this episode has reminded me, I think, about how much we need to demystify the work of the Founding Fathers, and how that propaganda campaign is absolutely weaponized by Republicans, right. The Founding Fathers are not perfect, they were a bunch of big dumb idiots, rich at the time, slave owners, all of the most terrible things, and... Look, they were making it up.

30:23 Peter: Yeah. The funniest thing about the American founding is that it's pretty widely accepted that none of them really anticipated the rise of political parties, which happened like 10 years later...

30:34 Michael: Immediately.

30:37 Peter: And then just became the primary concern in American politics for 220 years, right? And they were like, oh, shit, yeah. And then once that happens, all of the institutions steadily crumble and the sort of political calamity that you see now is in large part due to the fact that these systems are not built to account for two ideologically opposed parties who have really no interest in mutual cooperation.

31:11 Michael: Something I also... Like when we're talking about that's something that I've been thinking about a lot lately is like, we talk a lot about how fucking stupid Antonin Scalia is and what a dope Sam Alito is, and everybody knows what a dumb asshole like Donald Trump is or Mike Pence, or whoever, right? And there are idiots on the Democratic side of the aisle as well, and it's not hard to identify them, to realize that we don't live in a particularly special moment in American history, and that they were Sam Alitos and George Bushes and whatever in every single generation going back to the Founding, they were idiots who could barely string a sentence together, and who were evil to their core, who now we're like, wow.

31:56 Rhiannon: And they were powerful.

31:56 Peter: At least now, it's like the power has just being passed down from generation to generation. Back then it was just like that man has the most horses in town. You are a Senator, good sir.

32:11 Michael: That's not actually that different from how it is today.

32:15 Rhiannon: So turning to how we could reform this dog shit system that those Founders gave us...

32:21 Peter: Yeah, what do you guys think about passing a constitutional amendment?

32:26 Rhiannon: So okay, okay, okay, let's back up and like... Yeah, okay. So as it stands, the number of electors each state gets is equal to the total number of seats that that state has in the House of Representatives, plus two for their Senators. But James Madison himself said that the framers who wrote the rules in the Constitution about the Electoral College had written the rules under "the hurrying influence produced by fatigue and impatience."

32:54 Peter: Ooh. Oh, yes, the hurrying influence.

32:54 Rhiannon: So cool thanks... Yeah.

32:57 Peter: Thanks, James.

32:58 Michael: Who also produced this episode.

33:03 Peter: Yeah, no worries, though, James, I forgive you. You guys were in a rush and now our country is garbage. No problem, though.

33:09 Rhiannon: Thanks, bro. Thank you for your service. So doing away with the Electoral College altogether and just moving to a system of a straight popular vote for President and Vice President, that has enjoyed broad majority support, even in Congress. Michael mentioned this earlier. In 1969, for example, the House of Representatives did pass a constitutional amendment to establish a national popular vote for the White House, and even President Nixon was good with it. But a filibuster which was backed by segregationist Southerners in the Senate, killed it. So, racists. We've been like this all along.

33:47 Peter: And now... Look, 1969 was a long time ago in many ways. You wouldn't get even a little bit of support from Republicans for this now. Their entire project hinges on the Electoral College.

34:03 Rhiannon: Exactly.

34:04 Peter: Constitutional amendments, in case anyone is unaware, require two-thirds majorities in both Houses. Impossible. Impossible.

34:11 Rhiannon: Right. So a constitutional amendment right now is definitely very much a pie in the sky concept in terms of abolishing the Electoral College, but just want to make the point that it's not unheard of historically.

34:23 Michael: Oh, yeah, no, it's not. And I just want to say to that point, I think there was actually a moment, I think in 2004, John Kerry lost by I think three points nationally, but only like by one point in Ohio, which could have flipped the Electoral College, and we could have had back-to-back elections where the popular vote winner lost the Electoral College. It was pretty close. Basically, what won the election for Bush in 2004 was a gay marriage ban on the ballot in Ohio that drove evangelical turnout, and pushed him over the line there.

34:56 Peter: Right. If Kerry had won and not won the popular vote in 2004...

34:58 Michael: I think it would have been gone.

35:00 Peter: That would have been a real moment where the country could have said, "Let's get rid of this bullshit."

35:02 Michael: Two straight elections with both parties benefiting or not benefiting, as the case may be.

35:10 Peter: Unfortunately, that was 1000 years ago.

35:10 Michael: Yes!

[laughter]

35:15 Rhiannon: That's definitely what it feels like. So in terms of other possible options for reforming the Electoral College, a lot of people have looked at the system and said, look, a simpler solution that gets us closer to an Electoral College that's more reflective of the popular vote is to expand the number of seats in the House of Representatives, make Congress bigger.

35:34 Peter: Which then in turn makes the Electoral College bigger.

35:37 Rhiannon: Exactly, and that's not a crazy concept. Currently, the House, of course, is capped at 435 members, and that's because of the Reapportionment Act of 1929, but Congress could just pass new legislation if it wanted to change that number, 435 isn't a magic number that's in the Constitution or anything like that. Congress used to pass legislation to expand the House every decade, and it just for a variety of reasons just stopped doing it in 1929.

36:04 Peter: There's only so many people you can fit in that room. They were like, "This is it. We're at capacity."

[laughter]

36:08 Rhiannon: "That's it. We're not building another one of these."

36:09 Peter: There's like a fireman's coat on the door, and they're like, "That's it."

[laughter]

36:11 Rhiannon: That's how they wrote this statute. But in fact, old James Madison himself, his original First Amendment, which did not get ratified, it would have equipped us with a really precise formula for the number of representatives in the House, and according to that formula, if we had adopted it, we would today have a House of Representatives with over 6000 members. [chuckle]

36:38 Peter: I think it's great that Madison, his First Amendment idea was like, "I have this mathematical formula," and then everyone else was like, "You know, it should be you can say whatever you want. That's what I want." Everyone cheered, and that won the day.

36:54 Michael: One historical note I like about this is that Rhi said this was never ratified, and that's right, but there's actually some belief that maybe it was, that I think it was Connecticut, Connecticut actually ratified it in 1789 or something, and just people didn't notice, and so that in 1791, a final state ratified it, and it should have gone into effect, and it just didn't, and so I think in 2010 or 2012, somebody brought a case to the Supreme Court being like, "There should be 6000 people in the House." [chuckle] And the Court was like, "No." But they tried to get it recognized because they had this historical evidence that it had been ratified, which would have ruled.

37:32 Rhiannon: That would have been amazing.

37:33 Peter: That would have been actual judicial activism if they were like, "Yeah, it's 6000 members now."

37:37 Rhiannon: "Tomorrow, you guys need to have 6000 members showing up."

37:40 Michael: Good judicial activism.

37:41 Peter: Oh, hell, yeah, it would have been great.

37:44 Rhiannon: Okay, so there are obviously good reasons why a deliberative body that should be making laws and shit shouldn't be 6000 people big, but in terms of the Electoral College, by expanding the size of Congress by whatever measure, you end up with a state like California getting a lot more electorates. It could be 200 or 250, I don't know, while less populated states like Wyoming could remain about the same.

38:08 Michael: So what, so California's 80 times the population of Wyoming, so if its electoral votes were proportionate, instead of 55 electoral votes, it would have 240. That's how it's being disadvantaged here in the Electoral College compared to Wyoming.

38:24 Peter: Great system.

38:26 Rhiannon: And just want to give a really quick shout out to listener Casey, who wrote to us about this.

38:29 Peter: Yeah, marking the first genuinely intelligent communication we've received from a listener in the history of our podcast.

38:37 Michael: Not true, that's not true.

38:38 Peter: What's another one?

[laughter]

38:43 Michael: So yeah, I actually really like this idea. It makes, for one thing, my understanding, at least I'm not like a super expert in this area, but my understanding is it makes gerrymandering much more difficult, which would be great, not only for political purposes, but also just on more fundamental fairness purposes, and it would make the Electoral College itself more fair by making the number of votes each state get a little more tied to the actual population and more reflective of the relative size of each state, such that Wyoming residents aren't getting seven times the influence or whatever it is than California residents. It seems good on a number of levels.

39:26 Peter: Absolutely, and yeah, we're joking about a 6000 member Congress, but of course it doesn't need to go that high. Doubling the number of representatives in the House would be hugely significant in terms of exactly reducing the sort of unfairness, the inherent undemocratic nature of the Electoral College.

39:45 Michael: Doing that would likely, for Democrats, at least in the short term, increase their political power by giving them, I think, a stronger foothold in the House of Representatives and in the Electoral College, while at the same time decreasing the political power of any individual representative, since they're going to be 1 out of 900 instead of 1 out of 435, which is why it'll never happen, because they are too fucking stupid to think about that maybe in a more powerful party, my influence could be more meaningful.

40:22 Peter: Right. They'd be in the short-term sacrificing their own sort of immediate power, and that would take some sort of balls and foresight to do, and I don't think they have balls and foresight.

40:31 Michael: There's no evidence that any of them have that, or very few of them, so...

40:35 Peter: We should also talk about the national popular vote interstate compact, which is this idea that states would agree to give their electors to whoever wins the nationwide popular vote. Now, obviously, this only works if enough states agree to it and not enough states have, and of course, Republican-governed states don't have an interest in doing that. But we should mention it because it's a way of sort of mitigating or eliminating the effects of the Electoral College without having to pass a constitutional amendment.

41:05 Michael: Right, and they're always quirky or weird times when something happens, there's a scandal and there's a wave election or whatever, there's a recession or a plague, and you find yourself in charge of a state that you were not previously in charge of as a Democrat, and I maybe have an opportunity, like a rare but slim opportunity. Doesn't Kansas, have a Democratic Governor right now? And you'd be surprised, sometimes there are moments, right? And like all you need is 270 electoral votes in this and then the Electoral College is dead.

41:40 Peter: So that's right. So we should talk about where the Supreme Court is in all of this chaos. Like we said, the Constitution is pretty vague on a lot of this stuff, and the Supreme Court, of course, has the final say on constitutional issues. So it's possible that questions about how some of the ins and outs of the Electoral College work get elevated to the Court. Hard to predict what the issues would be and how things would shake out, but one thing you can be certain of is that the conservatives on the Court will give zero weight to whether or not the mechanisms of the Electoral College deprive the people of their democratic voice or something.

42:21 Peter: And this is also what makes the expansion of Congress such a powerful option here. It's done by legislation, and there's really no question that the Constitution allows for it, there's just not much the Supreme Court could do about it. What we want to convey here is not just the Electoral College is impossibly stupid, although of course it is, and every time you hear a defense of it, it is a stupid defense. They'll say that a popular vote would sort of minimize the influence of certain states, and it's like the impact of every state would be directly proportionate to their population, which seems like a pretty reasonable way to do it.

42:55 Peter: The reasons that the Electoral College is stupid are quite obvious. The ways in which it can be taken advantage of by Trump next month to kind of engage in an overt coup are a little less obvious and it's unclear if they would work, it's unclear exactly how they would work, and a lot of that is because it's just never happened before. All of these mechanisms are sitting in the Constitution waiting to be used, right? There was probably some thought that they would be used with more frequency, but they haven't been. So you do have election scholars that know a lot more about this stuff than us saying, oh, this seems unlikely. But frankly, they don't know that, because no one knows this, because no one has really tread in this territory before.

43:44 Peter: What do you do when you get to a point where there is a party that has no interest in actual democracy and tons of interest in retaining power. There's really no way to know exactly how this could play out. We've described some of the mechanisms of the Electoral College and how they could aid in a Trump administration effort to hold on to control of the Presidency, but this is a shit show, I mean, this is complete and total mess, and that is honestly the takeaway of this episode.

44:16 Michael: A very compelling argument for the popular vote, even if you think the Electoral College has many merits, is just everything we just described about what Republicans are talking openly about doing and what they might be able to do. That's just an intolerable risk, like maybe they try and they fail, but maybe not, or maybe they don't fail in 2024. Why might even leave this mechanism lying around, it's just a loaded gun.

44:45 Peter: Yeah, yeah, absolutely.

44:51 Peter: Alright, next week is a special episode on gerrymandering. We'll be talking primarily about the 2019 case, Rucho v. Common Cause. Follow us on Twitter @fivefourpod. Get well soon, President Trump.

[laughter]

45:12 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.

45:31 Leon: From the Westwood One Podcast Network.