3 Takeaways - Harvard Professor, Alex Keyssar: On What Could Go Wrong With Voting in the 2020 U.S. Election and When Congress Picks the President (#10)

Episode Date: October 6, 2020

Find out why Americans don’t elect a president by popular vote, how the U.S. ended up with the convoluted system of voting it has today, and why it’s been so hard to change it. 

Welcome to the Three Takeaways podcast, which features short, memorable conversations with the world's best thinkers, business leaders, writers, politicians, scientists, and other newsmakers. Each episode ends with the three key takeaways that person has learned over their lives and their careers. And now your host and board member of schools at Harvard, Princeton, and Columbia, Lynn Thoman. Hi, everybody. It's Lynn Thoman. Welcome to another episode. Today, I'm here with Alex Kesar. He's a professor at Harvard who will offer surprising insights on the 2020 election and what could go wrong with the voting. He will also talk about the right to vote, the contested history of democracy in the United States, and how we got the convoluted system of voting we have today, and why it's been so hard to change it. Alex, thank you so much for being

here today. It's a pleasure to be here, Lynn. Thanks for inviting me. Let's start with the 2020 election, and then we'll talk about voting in the United States and how we got the convoluted system we have, where we don't elect a president by popular vote. We elect electors who then vote for president. Alex, many people will vote by mail and others will vote in person on election day. Who counts all these votes and when do you think we'll have results of the vote? It's a very good question and the answer will vary somewhat state by state and even county by county. But the votes in the first case are counted by local election officials and or by

the machines that are present. The mail-in votes will be counted by election officials, in some cases starting well before election days so that they can get a head start. But in nine states, they're prohibited from starting to count ballots before election day. So they will start to count them only on election day, which means that the tallies in those states and probably in many others will be delayed at least a few days and maybe weeks after the election. And what happens if it takes a really long time for votes to be counted in several or even many states and there are many disputed ballots? Well, there is a deadline built into legislation, not the Constitution, a deadline early in December,

by which time a state is supposed to certify who the electors are. Then those electors meet in the state capitol to cast their ballots. There are potential problems in this election about disputed outcomes. I'm particularly fearful the delay in counting could lead to claims of victory by one side or another that might be reversed if all the ballots were counted. And are the electors in each state required to vote based on their state's popular vote? The electors in most states, they are required, that's to say they're subject to a penalty or they could be replaced. That has been reinforced by a Supreme Court decision just this past June. So I think we can expect that electors will vote in accordance with the popular vote. But there is a big looming

problem, which I think we have to acknowledge. The Constitution specifies that electors shall be chosen in such manner as the state legislature of each state may decide. That gives power to the state legislature. Chose electors. They did not hold popular elections, and they are not required to do so. It's only by a state law that a popular election is held, and then that's what binds electors. My specific concern about this election is that if there are disputes over uncounted ballots, some state legislatures might attempt to choose their own slates of electors while the count of the popular vote remains in doubt. That would produce a crisis. And that crisis would be resolved by, how would it be resolved?

That crisis would have to be resolved in effect by Congress. What might happen in that scenario is, for example, that two different slates of electors were sent by the state, perhaps one by the governor, one by the state legislature. Congress, according to the Constitution and federal law, meets early in January to count the electoral votes. Although it is murky in the Constitution about who exactly in Congress does the counting, it's a passive voice construction in the Constitution. It says the votes shall be counted in Congress. That could set the stage for disputes within Congress about which slates of electors to accept. It could be compounded if one branch of Congress is held by one party and the other branch by the other party. That sounds like a nightmare scenario.

That is a nightmare scenario. That is, you know, it's the ultimate fruition of a very intricate and somewhat vague electoral system that created by the Constitution, but also has not been adequately specified or modernized by Congress. Alex, what is the significance of the Electoral College for this year's election? I mean, the Electoral College is significant for this year's election in numerous respects. The most basic and stark is that the outcome of this year's election seems to be in doubt only because of the particular mechanism that we use for choosing our presidents. No pundit or pollster that I know of thinks that President Trump will win a majority of the popular vote. Joe Biden will win a majority of the popular vote. The outcome of the election itself

is in doubt or may be in dispute only because of the Electoral College. Why do Americans elect presidents as we do? How did the Electoral College come about? The Electoral College was the outgrowth of a deadlocked or confused constitutional convention in 1787. When the framers gathered to write a new constitution, they thought there should be a chief executive, but they were not clear about how to choose that person. The default notion, so to speak, was that Congress would choose the president. And that was the idea that was most widely discussed at various points in the summer of 1787. But then as soon as it would be discussed and talked about, people would say, this is just a bad idea. We want to have a separation of powers. Congress chooses the president. That won't happen. There are potentials for corruption.

So they would back away. At the end of the summer, they still had not resolved this. They had done everything they needed to do on congressional representation, but they still hadn't done this. It was very hot, uncomfortable. They retired. So they went on vacation and left the committee stuck in Philadelphia to try to come up with a plan for this. And that's exactly what happened. It was a committee on postponed parts. And it came up to the idea of the Electoral College, the idea of having electors where intermediaries had come up in the course of the summer. But it was this committee that came up with this idea. And I think that the core

of the idea of it was that the electors, what we call now the Electoral College, but the gatherings of electors, constituted a replica of Congress. But it was a replica that only met for one day or for a few hours once and then disbanded. So there was no problem with separation of powers or corruption. The other reason for this system was that the framers of the Constitution had worked very hard to iron out compromises about representation in Congress between slave states and free states and between large states and small states. That's what gave us a bicameral legislature. What the Electoral College system did was to simply import those compromises that they had

already reached into the presidential election system. And why has the Electoral College been so hard to change? It's hard to change in the first instance because the Constitution is very difficult to amend. You need a two-thirds majority in each branch of Congress and then three-quarters of the states, but it has never quite happened. There are multiple reasons for this. Partisan interests have played a role some of the time, not all of the time, but some of the time. The complexity of the institution has made it difficult because there are a lot of different parts to what we call the electoral college. There's the colleges, which we imagine, and then there's also the, quote, contingent election

system, which is what happens if nobody gets a majority of the electoral votes, in which case the election goes to the House of Representatives. So let's talk about the right to vote in America. It has been said that among those familiar with the history, there is a recognition that there have been restrictions on the right to vote in the past, but there is also the belief that they were relatively minor and that the history is one of steady advancement in the U.S. Were the restrictions minor? No, the restrictions were certainly not minor, nor is the history a history of steady progress. I mean, at the nation's birth and into the early 19th century, except for a few occasional spots, women were not enfranchised. African Americans in the South who were enslaved were, of course, not enfranchised. In the North, it was spotty whether

free African Americans could vote. The tendency in the North was that they lost the right to vote over time. And even among adult white males, you had to, in most states, you had to own property or pay taxes in order to vote. Something less than 60% of adult white males could vote. And if you think in terms of the entire adult population, it was probably only about 20, 22%. With the 15th Amendment, they dropped the racial restrictions. With the 19th Amendment, which is being much talked about this week, women were enfranchised and onwards and upwards. But in fact, that glosses over a pattern or obscures a pattern, which is really a pattern

of two steps forward and one step back. Sometimes it's one step forward and two steps back. With each stride forward, there's resistance and opposition. The elimination of property requirements in the first half of the 19th century was accompanied by the passage of laws disenfranchising anyone who was declared to be a, quote, pauper, a pauper being someone who depended on public aid in order to survive. So that if you received a little help from the overseers of the poor, you would be disenfranchised in most states. And then, of course, the huge, well-known story is that within 15 years after the passage of the 15th Amendment, which said the right to vote

should not be denied or abridged by virtue of race, color, or previous condition of servitude, that's exactly what did happen. The right to vote was abridged and prohibited throughout the South to African Americans. There was an enormous rollback. And in fact, the South was extreme, but not peculiar, not unique in doing that in the late 19th century, in the early 20th century. In Northern states, many state laws were passed that restricted the franchise, basically for workers in general, but there were all sorts of regulations and the dates for registration were very limited. My favorite example of that is in New York state, where there was a large Jewish work class population and you had to register every year in New York City. And one year, the only registration days were Rosh Hashanah and Yom Kippur, which did limit the Jewish vote that year.

How did the U.S. compare to other nations in universal voting? Certainly at the end of the 18th century, the early 19th century, I think the U.S. had one of the most encompassing rules of suffrage. The percentage of adult white men who could vote was higher than it was in most places. And that remains true for a lot of the 19th century. But we have to do more than just attach a little asterisk to the fact that we're limiting it to adult white men, putting gender issues aside for the moment. Not all adults in the country were white. I mean, there were Native, there were African Americans. And if you factor that in, then the U.S. by the late 19th century, I think, starts looking like a lot of other places. For example,

there were places such as Italy, which had literacy requirements to vote. And that was largely aimed at the peasantry and to keep the peasantry from voting. In effect, we had something similar and African Americans were our peasantry. When did universal suffrage arrive in the US? I would say that universal suffrage arrives in the United States, and even then with an asterisk by about 1970. Not before then. It's much later than the conventional images would suggest. It's not until after African American voting rights in the South are protected by the Voting Rights Act and

a number of Supreme Court decisions. How do you see democracy? I see democracy as, in effect, everybody or all adults having equal voice and having equal influence. And I also see democracy not as a thing, not as an institution, not as a set of institutional arrangements that we arrive at once and for all. Democracy is a project. of ideals, a vision of a political order that has to be nourished, nurtured, fought for, protected all the time. Alex, what are the three key takeaways or insights you'd like to leave our audience with today? I think the first insight or takeaway is that we need to understand that the advance of democracy, the advance of voting rights in the United States has never been in a straight line. It's not a linear story of progress.

This is a story of two steps forward, one step back, of ups and downs, of advances and reverses. We need to understand that. The second key takeaway, which is related, is that most of the reverses in the expansion of the franchise and the enlargement of voting rights have come in periods when two things were going on. First, that the African-American population had been enfranchised and was gaining some political power. And second, that there was large scale immigration. This was true in the years between the 1870s and into the early 20th century and produced a reaction north and south against the broad franchise. And I think these same dynamics are undergirding many of the efforts to narrow the right to vote or to limit its exercise

today. The third takeaway that I would offer is that we need to understand that the framers of the Constitution were very gifted men, very talented men, but they were creating a document for the conditions that they understood and saw clearly in the late 18th century. And much has changed since then. And I don't think that it's disrespectful to think that perhaps some of their construction ought to be changed. Many of the framers themselves within a very short time thought that they had made huge mistakes. Madison, to cite one prominent example, writing in the 1820s thought that they should amend the Constitution. Jefferson referred to the contingent election system as really the greatest defect in the entire Constitution. I think we have to learn from those opinions and be ready to work on and improve our institutions as part of this

project of democracy. Alex, thank you for a very interesting discussion today. This has been terrific. Well, thank you, Lynn. I'm glad to have the opportunity and thanks for asking such good questions. Note that 3takeaways.com is with the number three. Three is not spelled out. For all social media and podcast links, go to 3takeaways.com.