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Introduction (Alex Keyssar): Once you get a system in place and once you get political parties, which we in effect have in the United States by 1800, then political leaders, not surprisingly, start reviewing and evaluating potential reforms in terms of what will help their party or their faction, not in terms of what will be good for the country.

Thoko Moyo: The one constant in the history of voting rights in America is that no law has ever been passed to restrict the rights of upper-middle class, white men. Other than that, says Harvard Kennedy school professor, Alex Keyssar, the history of suffrage has been a very mixed bag. There have been advances, and retreats, progressive changes which brought in new voters, but which then triggered progressive and sometimes violent reactions. And all of it has been aimed at controlling which races and classes of people can exercise the full power of the ballot box.

Americans go to the polls again this November to elect a new president and vice president. Center stage issues of voter disenfranchisement and looming over it all is a 230 year old institution of the electoral college. The US Constitution states that the president and vice president shall be chosen by 538 electors who are named by the states, not a direct national popular vote. And twice in the last five elections, this system has resulted in a US president who got a few more overall votes than his opponent and many Americans now say this system should be eliminated. The title of Professor Keyssar's new book asks the question, why do we still have an electoral college? The answer, he says, it's complicated and includes a mix of politics, constitutional law, structural racism, and more.

Welcome to Policy Cast. So Alex, we're going to be talking about the electoral college and your new book, but I think it's helpful to start with some stage setting about voting and voter rights in the US and I think that would take us back 20 years to your earlier book, which you wrote about exactly that topic. And in that book, he made the point that the history of voting rights in the US is usually portrayed as a linear progression advance, but that's not actually the case, is it?

Alex Keyssar: No. In fact, the history of voting rights as I uncovered it in that book is a history of two steps forward and one step back as a recurrent pattern. The fact is that there have been over the long run recurrent and repeated advances in voting rights. That's to say more people have been included, first tax paying requirements were eliminated and then racial restrictions were removed by the 15th Amendment. Then gender restrictions on voting were changed. And then of course, the awkwardness in this traditional telling is that then racial restrictions had to be removed again, which left a reader or an inquirer wondering why that had to happen several times. But the broad pattern has been two steps forward, one step back. Periods of advancement, which have invariably and I say, invariably, been followed by periods of restraint or restriction.

Most commonly, and this is really part of the pattern, most commonly the periods of advancement have been legal changes that enlarge the number of people who were eligible to vote and the reactions against it were not reversals of those lowest, they were not absolute reversal saying that group X could not vote, but the reactions took the form of a set of procedural changes, procedural requirements that made it more difficult for those people to exercise the right to vote.

Thoko Moyo: And give us some examples of that.

Alex Keyssar: Well, the big example in the 19th century is that property and tax paying requirements are almost entirely omitted or eliminated by 1850. There are really no formal financial requirements to vote, but in the aftermath of that, and during a period of large scale immigration, when even in the north, millions of poor immigrant workers are coming, and once they become citizens, they become entitled to vote. There is a position of procedural laws, such as the requirement to present one's citizenship papers at the polls or a literacy requirement, or even more, an English language literacy requirement. One of the startling things that I discovered was that New York State, and we think of New York as a welcoming center of immigrants, New York State imposed, and really did enforce an English language literacy requirement to vote in the early 1920s and it stayed on the books until the 1960s.

Thoko Moyo: And so what's the common theme in terms of trying to prevent certain groups from being able to exercise their right to vote. Is this targeting poor people, black people, minorities, immigrants? I mean, what's the coming theme, if you would have to find one?

Alex Keyssar: Well, the common themes, I think ultimately are class themes. The restrictions, the obstacles target poor, working class people, black and white. And in many cases, brown people who are immigrants as well. To my knowledge, no laws have ever attempted to restrict the voting rights of upper middle class, white males.

Thoko Moyo: You talk about a, so let me ask that again. So you talk about advancement and reaction, and you've just given the reaction. Who is reacting?

Alex Keyssar: The people who are reacting are people who don't want to have to continue to wrestle with the consequences of an enlarged electorate. For example, in the South, African Americans are formally enfranchised by the 15th Amendment, which by 1870 is a law of the land, says you cannot deny someone the right to vote based on race, color, or previous condition of servitude. And African-Americans do vote in the South in large numbers for about 10, 15, even 20 years, depending on the state. And they elect officials and they, with their allies, pass laws that, among other things, raise taxes to pay for roads in areas where African Americans lived and to pay for schools for African American children.

There are many white people who do not like that, who do not like seeing African-Americans in the state legislatures and do not like the fact that their taxes have gone up to pay for services and so they react against it and they use, in the late 19th century South, they utilized a variety of techniques ranging from outright violence of a severe sort to literacy tests and other mechanisms. The ultimate weapon in the South in the early 20th century becomes the "white primary". By the early 20th century, the Republican party has ceased to exist for all intents and purposes in the South. The only elections that mattered were the democratic primaries. And they began to insist that, well, the democratic party is a private organization and it can restrict its membership to whites, and that doesn't violate the 15th Amendment and sadly, the Supreme Court went along with that for about 40 years.

A more recent example, which one could give also involves conservatives who are reluctant to see political power wielded as a result of the large scale enfranchisement of African-Americans, which happens again in the 1960s, in the 1970s, thanks to the Voting Rights Act and the somewhat later large scale immigration which occurs. I think that what we are seeing as a reaction now from conservatives, and this is for fiscal reasons as well as partisan reasons, that this is a reaction against the very sizable enlargement of the electorate that happened between 1965 and 1990.

Thoko Moyo: And before that in the late 1800s and the sort of early 20th century, it was the white supremacist regimes in the South that were predominantly responsible for the reaction that you've just outlined.

Alex Keyssar: Yes. I mean, what happens in the South is that during reconstruction, while they're still northern troops in the South, there are governments, state governments, that permit African-Americans to vote that in fact are run partially by African-Americans. After the disputed presidential election of 1876, northern troops are withdrawn from the South, reconstruction is over and white supremacist regimes come back into power in the South and disenfranchised African-Americans, destroy the Republican party in the South and establish a restrictive one party dominance that endures for 80 years.

Thoko Moyo: And so when you look at all of this, what's the lesson that you learn about democracy from what you've looked at in terms of the progress reaction that we've seen over the years in the US?

Alex Keyssar: I think the biggest overriding lesson, and most important overriding lesson, and is that it's a mistake for us and us, meaning citizens of the world, citizens of the United States, citizens of any country, it's a mistake to think of democracy as something you achieve once and for all. And then it's there, to think of it as a set of laws or institutions that are created, and then it just runs by itself. Democracy, I concluded at the end of my book on the right to vote should be thought of as a project, as an ongoing project, as a set of principles that always need to be nurtured and advanced and defended, that we need to recognize that not everybody believes in democracy and that it is and will be an ongoing struggle. That'd be a mistake to think, aha, we're there and now it's over. We don't have to worry about democracy. We do. We always have to worry about democracy.

Thoko Moyo: So let's come to the present day. Your current book is entitled, Why Do We Still Have an Electoral College? Tell me about that. Was that a scholarly inquiry type framing, or were you responding to questions that you're hearing just in general society?

Alex Keyssar: The book on the electoral college really emerged from the convergence of a scholarly question with a popular issue. I mean, the scholarly question, the title of the book, “Why Do We Still Have the Electoral College?”—it's a historical analytic question. Why do we have X rather than Y? It's an unusual historical project in a sense, because I'm trying to explain, the historians normally are trying to explain change. I'm trying to explain why there was no change. So there's an intellectual side to it, or academic analytic side to it. But it's also a question on the lips of hundreds of millions of Americans every four years, which is why do we use this electoral system? Why are we doing it this way? It's a system that seems very complicated. A lot of people don't understand it. And it seems clear to most people that it doesn't work like the most elementary democratic models would suggest, which is that the person who wins the most votes doesn't necessarily win the election.

Thoko Moyo: This is probably a good point for you to just maybe give us a very quick and is in as few sentences as possible, if that is possible, just what is the electoral college? How does it actually work?

Alex Keyssar: The electoral college, it's actually a late 19th and 20th century name for an institution, a complicated institution described, mostly described in the constitution ... The electoral college is a 20th century, and in some degree, late 19th century name for an institution, a complex institution, that is set forth in the constitution of the United States. Put very simply, it provides that the President of the United States shall be elected by, shall be chosen by electors in each state. Those electors are allotted to the states to match the number of representatives and senators that the state has in Congress.

The electors are to be chosen in a manner to be determined by the state legislature. Just to point out that in fact, the constitution does not insist that there be a popular election at all to choose electors. And on many occasions, in many states, there were no popular elections. So that's how electors are chosen. They convene in their state capitals, cast their electoral votes, which are forwarded to Washington. But there is a whole second round to the institution, which we haven't seen in recent years, but it is still on the books, which is that if no candidate wins an outright majority of the electoral college, then the decision immediately reverts to the House of Representatives where each state, regardless of its size gets only one vote. That's the "electoral college".

Thoko Moyo: So you've said that the electoral college is controversial. Many, many people in the US are asking, why do we do this every time we have a presidential election, they ask the question, why did we do it this way? And this is something that's been going on for over 200 years. Why has it then survived for so long and why are there such vigorous efforts to preserve it, if it's so unpopular?

Alex Keyssar: The electoral college has been under heavy fire for really, for almost as long as it existed. It began to get serious criticism within a few years after the Constitution was ratified. And one feature, I'm trying to think of the features which are considered most objectionable. One feature that has been widely objected to is the use of winner take all for individual States, whoever wins the state, wins all of that state's electoral votes. That is not in the constitution. That is a feature which emerged out of partisan competition in the first 30 or 40 years of the nation's history. People have also objected to the presence of electors saying the people should vote directly for president, should not vote for people who will then vote for electors. There are objections that, because of the allocation of electoral votes, that not all votes count equally. A vote in terms of electoral votes, a popular vote in North Dakota counts for much more than a popular vote in California or in New York. And nobody has liked the contingent election system since the year, it's been used twice in 1800 and 1824, both times it produced crises and everybody agrees that it should go. Even Mitch McConnell, in the 1990s, agreed that it should go.

So this returns us to your question, Thoko, which is why has it, given all these problems, why has it endured? And I think that there are several reasons or almost several types of reasons. One is that as I explained, the institution has many different parts and it's been difficult to reform one part without touching all of the others. It has been difficult, for example, in the first half of the 19th century, when people really tried to get rid of winner take all, which was then called the general tickets, to get rid of that, which would have harmed the large states to some degree without also getting rid of the contingent election system was really benefited this small states. So you have these different parts, these different things that have to be counterbalanced, and that people had difficulty cutting the right deals to make that happen. There's also the fact that, what I see as a huge flaw in the design of the system, which is that it leaves it to each state to decide how electorates shall be allocated. As a delegation of power to the states, and that means that there's almost invariably a state's rights resistance to any attempt to impose a national standard.

The second broad kind of factor that has prevented reform has been partisanship. Once you get a system in place, and once you get political parties, which we in effect have in the United States by 1800, then political leaders not surprisingly start reviewing and evaluating potential reforms in terms of what will help their party or their faction, not in terms of what will be good for the country. Now that's not invariably true. They don't all do that. They don't do it all the time, but that does rear its head quite frequently. It's certainly been a critical factor for the last 40 years. Since the late 1970s, the republican party has been largely convinced that the electoral college benefits its candidates and thus republicans have been utterly uninterested in anything that would reform it.

Thoko Moyo: And yet in the 1970s, there was quite a big push that came quite close to changing this form of electing a president.

Alex Keyssar: Absolutely. One of the discoveries of my research, I mean, it's been known, but not widely known, is that there were a number of occasions on which we came kind of close to getting rid of the electoral college. And the most recent major occasion took place in 1969, 1970, when there was a strong bipartisan effort to abolish the electoral college and have us utilize a national popular vote. And this was an effort that was supported by the AFL-CIO, the Chamber of Commerce, the American Bar Association, and progressive and liberal groups outside. It had strong bipartisan support. And a constitutional amendment was approved in the House of Representatives in 1969 by a vote, I think it was 82%. I mean, it's hard to get the House of Representatives to vote 82% in agreement about what day it is, but an enormous majority in the House of Representatives. And then it gets stalled in the Senate for a year and when you're finally comes up to a vote in 1970, it is defeated by a filibuster led by Southerners representing white supremacists regimes.

And that leads into, I think, the third critical factor that we have to understand about the preservation of the electoral college, or particularly the reason why it's been difficult to replace it with the national popular vote. There've been lots of other proposals, including using, instead of winner take all, using districts or proportional voting. And those have also not been passed, but the political dynamics were different for those. In terms of a national popular vote, the big obstacle has always been the South and the South did not want a national popular vote before the Civil War, because as is well known, the Southern states, slave states benefited from the three-fifths clause, which is to say they had representation in Congress in proportion, not only to their white citizens, but to three fifths of their slaves. That gave them extra votes in Congress and thus extra electoral votes.

Thoko Moyo: And this is despite the fact that black people who were enslaved could not vote.

Alex Keyssar: Right, right. Absolutely. Whites were voting in the name of their slaves who could not vote. And they were wielding extra power because they owned slaves and had they switched to a national popular vote in the first half of the 19th century, they would have lost that benefit or that advantage, so they fought it ferociously. I mean, in the first half of the 19th century. It has to be said there were not large movements for a national popular vote, but there was discussion that it was introduced in Congress. And there are quotes from congressional debates where Southern senators say, no, this would be so deleterious to the South, we will not even consider it. That part of the history is relatively known, at least among historians.

What I turned up in my research and what was more surprising was that the same dynamics of white supremacy and hostility to a national popular vote prevailed in the South from the late 19th century into the 1970s. That in effect when white supremacist regimes came back into power in the South, as we discussed earlier in the later decades of the 19th century, they disenfranchised African-Americans and benefited from what amounted to a five-fist clause, all African-Americans counted a hundred percent towards representation and thus electoral votes, but they still couldn't vote, where they, once again, could not vote. But from the point of view of white Southerners that gave them a tremendous extra edge in presidential elections and the number of electoral votes that they wielded.

And had we switched to a national popular vote, they would have surrendered that edge. And thus the region really as a region and quite united made clear for many, many decades that it would not tolerate, would not accept the national popular vote. Now the South alone could not block this, could not block this in Congress, but it could come pretty close. And there were, of course, other concerns for different reasons, so in effect, they kept it off the table. And then at the critical moment in 1970 in the Senate, it was Southern senators who launched this filibuster and who blocked the passage of the national popular vote amendment in Congress, in the Senate.

Thoko Moyo: I want to come to the present day and what this all means for where we are today. But before we do that, I wanted to ask the question around, could you make an argument for the electoral college and are there states outside of the Southern states that were supportive of it? And I don't know if you can go into this, but where for instance, minorities, black people, African- Americans uniformly opposed to the electoral college, or were there some that saw some benefits to it?

Alex Keyssar: There have certainly been divergent views in different states and among different peoples at different times, conditions change. To respond to the last part of your question first, in fact, the African-American community was quite divided on electoral college reform into the, really from the 1930s and forties, into the 1970s. And it was very vivid in an effort in the 1970s. After that 1970 incident, there's another effort that goes on throughout the seventies and culminates in 1979. There were many African-American leaders who thought that blacks constituted key swing votes in northern states, and thus that they would be quartered or were being quartered by both political parties and that they would surrender that advantage if we switched to a national popular vote. That was one view. but the African American community or the leadership of the African-American community was very, very divided.

I mean, that view of the electoral college benefits us was the view of some leaders like Vernon Jordan, leaders of other major organizations. The political figures in the black community, elected officials, such as John Conyers or Louis Stokes wanted a national popular vote as did John Lewis, who was not in the office at the time, but who was a very strong voice and basically saying, I want all votes to be equal. I've been fighting for voting rights. I want to have the same voting right. Everybody should have the same voting right. He had that clarity of vision. There were also other states and other reasons for opposing electoral college reform or opposing a national popular vote. One reason that's often stated was fear that it would give too much power to the national government, to the federal government, as opposed to the states. A second reason on often stated, but I think misguided, was the apprehension that if we had a national popular vote, and this is voiced today too, that the rural areas and less popular states would simply be overwhelmed by the enormous number of ballots from the coastal cities and Chicago, that some of this urban vote, now and that sometimes the urban voters code words and sometimes it's not, but there is this fear, just this fear of the sheer numbers of people living in the large states would overwhelm people from the small states and rural regions. And that's a legitimate fear, although I think arithmetically it's misplaced because the fact is the large states wield a great deal of power now, anyway, and small states, in the current system, are not getting any particular attention from presidential candidates unless they happen to be swing states.

I think another factor that leads to resistance to reform I think is simply apprehension about the unknown. I think that it's the case that any change to an electoral system will have unforeseen consequences. We all know that it will affect campaigning. If we switched to a national popular vote, campaigns would change. Exactly how they would change, we can anticipate in some ways, but we wouldn't anticipate every possible wrinkle. And I think that people and politicians sometimes prefer to live with the devil that they know rather than to risk something new.

Thoko Moyo: Okay. So present day. What does this all mean for the moment that we're in now, as we think about the election soon to come in the US, the presidential election, soon to come in the US?

Alex Keyssar: The electoral college is playing a strikingly visible role, even more so than usual in the current 2020 campaign. In one way, it's what happens every four years, which is that the campaigns are organized around winning swing states. Nobody is campaigning for president in Massachusetts. And nobody's campaigning for president in conservative, solidly republican States. The campaign is aimed at swing states like Wisconsin, Michigan, Florida, North Carolina, and perhaps Pennsylvania. So that's one way in which the electoral college is doing them. The second more distinctive way is that, if the polling is to be believed and polling can change, but the polling has been pretty consistent. It is only because of the electoral college that the outcome of this presidential election is in any way in question. There is, I think, no doubt in anyone's mind, I shouldn't say anyone, but most analysts have no doubt that Joe Biden will win the national popular vote.

Alex Keyssar: And he will probably win by more than 3 million votes that Hillary Clinton won by in 2016. So the institution is seen as being potentially decisive as it was in 2016. And I think that that is energizing a lot of reform, reform efforts, energizing people in Congress who are introducing constitutional amendments again. it's energizing a lot of people in the streets and in social and protest movements. So I think that the electoral college is very visible in this election. And I think, depending on the outcome of the election, there may be a significant move to reform or abolish it, but much will depend on what the election actually looks like.

Thoko Moyo: And are there any early indicators that this reform could actually take hold? I think you'd mentioned the national popular vote interstate compact. Tell me about things like that and how they're doing.

Alex Keyssar: The national popular vote interstate compact, which is a movement that has been going on for about 14 years now, it's an organization and a compact and stated very briefly, a state joins the compact saying that it will cast its electoral votes for whoever wins the national popular vote, not the states' vote, but the national popular vote. And the compact will take effect only when states that in total have 270 electoral votes, or a majority, have signed on. The compact has been joined by 15 states and the District of Columbia and it has, I think, something like 196 out of the 270 electoral votes needed for it to take effect. That is a sign of very widespread strength for this movement. In a merge, the idea of the compact in effect as a way of guaranteeing that there be a national popular vote without amending the constitution, which is very, very difficult to do. Now that said, all of the States that have joined the compact are blue states.

Alex Keyssar: There is some strong pockets of republican support in a number of places, including places you wouldn't expect like Utah, but it's whether that support will get built on. I think, again, what happens in the 2020 election will help to determine the fate of the compact and in many ways, I think thus the fate of the reform movement, because my own expectation is that the compact itself, as an institution is not viable in the long term as a replacement for the electoral college. Actually it preserves the electoral college, it just rearranges things. But that if the compact were to approach success, it would strengthen a movement for a constitutional amendment that would produce something stronger and more stable. But whether that happens or not depends on a variety of political factors.

Alex Keyssar: I mean, some people are saying, well, if the Democrats win overwhelmingly and control the House and the Senate and the presidency in 2020, they may be able to make it happen. And my answer to that is perhaps, but on the other hand, I'm not sure it's the wisest possible strategy for a one party to impose a new set of electoral rules on the other party. I think that something like this needs bipartisanship, but I also think that after this election, the republican party may be doing a lot of soul searching and a lot of reconsidering things. And so there might be some movement on that score.