Equal Citizens founder Lawrence Lessig said his organization will continue to push for the passage of HR 1.
Reform in 2021: Lawrence Lessig's group shifts focus to people, not politicians
This is the 10th installment of an ongoing Q&A series.
As Democrats take power in Washington, if only tenuously, many democracy reform groups see a potential path toward making the American political system work better. In this installment, Lawrence Lessig, founder of Equal Citizens and a Harvard Law School professor, answers our questions about 2020 accomplishments and plans for the year ahead. His organization promotes reforms aimed at fixing the political system so that all citizens are represented equally. Lessig's responses have been edited for clarity and length.
First, let's briefly recap 2020. What was your biggest triumph last year?
A bunch of us reform organizations were focused on getting every presidential candidate to commit to fundamental, HR 1-or-better-like reform. We organized a string of town halls to secure that commitment, beginning with Andrew Yang and ending with Bernie Sanders.
We also succeeded in getting the Supreme Court to clarify the power of presidential electors. That decision shut down any effort to get electors to vote contrary to their pledge and — more importantly in this election — provided a clear signal that the court would not tolerate any legislatures voting contrary to how the people had voted.
And your biggest setback?
It seems strangely narcissistic to think about individual setbacks in the middle of a pandemic. The setback we suffered was the setback the world suffered, the U.S. more than it had to — the pandemic.
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What is one learning experience you took from 2020?
The profound wisdom in Margaret Mead's words: "Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it's the only thing that ever has." Fundamental democratic reform has been elevated to the center of national political attention. We've been working with many others for more than a decade to make this happen. But "we" have not been millions; "we'' have just been those convinced and committed to making this happen.
Now let's look ahead. What issues will your organization prioritize in 2021?
We will continue to press HR 1 as hard as we can. But we're incredibly excited about a new project that we'll launch as a beta in the next few weeks: a massive virtual deliberation project. We hope it will enable hundreds of thousands to deliberate in small groups, first about the Electoral College, and then, if that's successful, about other issues of democracy as well.
How will Democratic control of the federal government change the ways you work toward your goals?
After HR 1, we're shifting our focus to people, not Congress. We want to demonstrate broad and deep understanding of issues of democratic reform across America.
What do you think will be your biggest challenge moving forward? And how do you plan to tackle it?
America has a media culture with a severe attention-span problem — easily distracted, not easily focused. But unlike an ADHD kid, there's no clear treatment. Somehow we need to figure out how to engage the public with seriousness and serious issues. Slow democracy, not democracy tweeted.
Finish this sentence. In two years, American democracy will ...
have begun in earnest. HR 1 will have suppressed gerrymandering, and all the techniques to suppress the vote; it will have empowered small-dollar donations to support campaigns; and the people will have the tools to engage in serious, informed deliberation about important issues facing our democracy (and if not, admit it — even just one of these will be incredible!).
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A proposal to change how Wisconsin awards its electoral votes has been criticized as a partisan ploy — but the larger objective is a worthwhile goal, writes McMahon.
Lurking in basic math, not House districts, is the best Electoral College reform
McMahon is an adjunct associate professor of applied economics and political science at the University of Vermont and an international democracy and governance consultant.
It has become clearer to Americans than ever before that the Electoral College is archaic and represents a threat to our democracy — and needs to be significantly altered if not abolished. But what's the best way forward?
Relying on electoral votes is cumbersome and can be so unrepresentative of the will of the people that two of the past four presidents got elected despite losing the popular vote, George W. Bush in 2000 and Donald Trump in 2016. And in several other elections, including last year's, small shifts at the margins of a few states would have produced the same result. (President Biden got 7 million more votes nationwide, but his margins of victory in Arizona, Georgia and Wisconsin were a cumulative 43,000. Had only those ballots gone the other way, a 269-269 electoral vote tie would have meant Trump's reelection — by the House, where each state would have had one vote and most delegations have Republican majorities.)
So people are talking now about how to change the system. A problem with the most straightforward alternative – simply relying on the national popular — is that it eliminates a main benefit of the Electoral College, and a reason why it was created in the first place: less-populated states benefit from having more electoral vote clout per person than the bigger states. So the smaller states are not going to want to eliminate the college, which means the constitutional amendment that would be required is not happening.
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Instead, some are thinking about ways such a change can happen at the state level. This is now the case in Wisconsin, where Republican state Rep. Gary Tauchen has introduced a bill that would assign one electoral vote to the winner in each of the state's eight congressional districts, with the statewide winner getting the other two votes. (This is the system used in Maine and Nebraska; everywhere else, the statewide winner gets all the electoral votes.)
Tauchen's proposal has been criticized as a partisan ploy to leverage the state's highly gerrymandered congressional map — which faces its once-a-decade redraw in any case, this time by a divided state government. But his larger objective of making electoral votes "reflect Wisconsin's diverse political landscape" is a worthwhile goal that his and other states could achieve by better means.
Under the current system political parties can count on being able to win all electors from states they control. That's why in California, for example, the Democratic-majority Legislature won't be changing a mechanism that reliably provides 55 electors for the Democratic ticket. What makes Wisconsin different is that control is split between its Republican-majority Legislature and its recent favoring of Democrats statewide: Biden last fall, and both Sen. Tammy Baldwin and Gov. Tony Evers in 2018.
Tauchen's proposal aims to salvage as many electoral votes for his side as possible. Applied to last fall, Trump would have claimed 6 of the state's 10 votes because he carried three-quarters of the congressional districts.
That disproportionate outcome is the result of what a Schwarzenegger Institute study found to be the second most gerrymandered state in the county. In 2018, for example, Democrats received 53 percent of the overall vote for state House candidates but won only 35 percent of the seats.
Because of such partisan gerrymandering, a district-based system would not fix a core problem in our presidential elections: The candidate with the most votes does not always win. If applied to the whole country, the system would not have rectified the outcomes of 2000 and 2016. And broad awarding of electoral votes by House districts would likely make congressional gerrymandering worse, given the increased political reward for maximizing partisan leverage.
A much better approach would be for the state to award electors based on the overall split in the popular vote — 60 percent of the ballots translating to three-fifths of the electors, say, or as close to that as possible. Proportional solutions have been proposed many times in the country's history, and in 1950 the Senate passed such a proposal with more than a two-thirds majority.
In the Wisconsin context, the Legislature could opt to award all electors proportionally, probably yielding a 5-5 split in most elections. Alternatively, they could use the proportional system but also include the element of Tauchen's proposal giving a two-elector bonus to the statewide winner — which could help keep Wisconsin on the list of presidential battlegrounds.
Moving from winner-take-all could help the state turn down the electoral heat after years of intensifying partisanship and a polarizing gubernatorial recall election. A proportional approach would also defuse tensions arising there and in many other states over qualifications of third-party candidates. In 2016, Jill Stein's 1 percent share in Michigan probably swung 16 electoral votes from Hillary Clinton to Donald Trump; if the state had awarded its Electoral College votes proportionally, the Green Party candidate's impact would have been non-existent. And this year, Wisconsin courts decided not to allow the Greens' Howie Hawkins on the ballot, a decision derided by Republicans as a partisan move to protect Biden's edge.
Georgia, Michigan, Arizona and Pennsylvania — like Wisconsin — are toss-up states that went for Biden last fall but have Republican legislatures now. So there could be alignment between a GOP desire to compete for more electoral votes and our national need to move away from an unhealthy winner-take-all system.
Adoption by several influential states could build momentum for a constitutional amendment applying the proportional system nationwide, and switching from an Electoral College populated by humans to one where a computer awards electors approximating the statewide totals as closely as possible.
The good denizens of the Badger State might miss the special focus the current system showers on swing states like theirs. But its electoral votes would still matter under this proposed system, and the nation's political health would improve. Wisconsinites should concur that acting in the best interests of the country — even if it means ceding some attention for the common good — is the right path to follow.
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The staff at the Campaign Legal Center will be working to revise the Electoral Count Act.
Reform in 2021: Campaign Legal Center looks to fortify voting and election processes
This is the second installment of an ongoing Q&A series.
As Democrats take power in Washington, if only tenuously, many democracy reform groups see a potential path toward making the American political system work better. In this installment, Corey Goldstone, communications manager for the Campaign Legal Center, answers our questions about 2020 accomplishments and plans for the year ahead. His organization works to achieve voting, campaign finance and redistricting reforms through litigation. Goldstone's responses have been edited for clarity and length.
First, let's briefly recap 2020. What was your biggest triumph last year?
The Campaign Legal Center successfully advocated for nonpartisan voting reforms to encourage broader participation and a more inclusive democracy. As a result, America turned out to vote in record numbers in 2020. Braving the dual challenges of a viral pandemic and civil unrest, hardworking election officials stood shoulder to shoulder to finish the vote count and certify the results, despite intense pressure from Donald Trump to circumvent election procedures.
Major legal victories in our voting rights litigation paved the way for safe and secure access to absentee voting and a higher degree of confidence that states would not reject ballots for arbitrary reasons like handwriting in voter signatures.
CLC also played a leading role — along with our partners in the National Task Force on Election Crises — in educating lawmakers, the media and the public about the limited role of state legislatures and the vice president in the vote certification process.
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And your biggest setback?
Trump was an existential threat to democracy in 2020. He used his megaphone in 2020 to convince many of his supporters that the election was stolen, despite all evidence to the contrary. In the final weeks before the election, only 37 percent of Americans expressed confidence that the election would be held fairly. Countering cynicism and conspiracy theories with facts has become increasingly challenging.
While it's a relief that a violent attempt to prevent the counting of the Electoral College votes in our presidential election failed, the fact it was encouraged by the president and attempted by the crowds he summoned to Washington reflects a deeper decay in public confidence in our democracy.
What is one learning experience you took from 2020?
We have a resilient system of safeguards in place in which ballots are validated and counted. Our elections are highly decentralized and election administrators are qualified officials who take their jobs seriously. We have a duty as Americans to accept the results of elections, even if the candidate we supported does not win. Many officials in key positions resisted pressure from Trump and recognized their obligation to the country.
Now let's look ahead. What issues will your organization prioritize in 2021?
We need to advance voting rights, strengthen ethics laws, curtail partisan gerrymandering and decrease the influence of wealthy special interests in our political system. These are reforms that an overwhelming majority of Americans — across the political spectrum — view as popular.
The vote certification process was abused by bad-faith partisans to the point where the country narrowly avoided a constitutional crisis. The Electoral Count Act should be substantially revised to provide constraints on the permissible grounds for objecting to a state's appointment of presidential electors or the votes cast by those electors.
How will Democratic control of the federal government change the ways you work toward your goals?
If passed, HR 1 would enact one of the most comprehensive improvements our democracy has seen in decades.
What do you think will be your biggest challenge moving forward? And how do you plan to tackle it?
The splintering of American media consumption makes it challenging to educate the public about election mechanics to foster trust in the process. We need to make sure we are talking to voters that distrust mainstream media.
Finish the sentence. In two years, American democracy will ...
be more transparent, inclusive and accountable to the people.
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Senate pages carry the boxes containing the Electoral College ballots through the Capitol on Thursday.
It worked this time, but the Electoral College would be improved by more members
Now that the 2020 election is over at last — with Thursday's unsullied affirmation, in the face of unprecedented challenges, that the Electoral College worked as designed — it's time to consider a fundamental switch.
The importance of states in our constitutional republic is well founded in terms of rights and authorities. One of the reasons for the establishment of the Electoral College was to ensure small population states do not get ignored when the nation considers whom to elect as president. However, in a democracy we also should acknowledge and recognize the importance of the overall popular vote.
The current system does not do that. There have been five times (and two in this young century) when the winner of the popular vote did not become president. There have been several different proposals for reform. Here is one more, which tries to recognize and balance the importance of states as well as the overall popular vote.
Winning the popular vote matters, but the amount by which it is won should also matter. The larger the victory, the more there is a legitimate claim for a mandate for the popular winner to be elected. This can be provided for by allocating some "popular vote electors" to the winner of the nationwide vote — and the more it is won by, the more popular vote electors the winner would get.
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These popular vote electors would be full voting participants in a reformed Electoral College. If the popular vote margin of victory is less than a single percentage point, the winner would get three extra electoral votes. If the margin is between 1 and 3 points, the reward would be 9 electoral votes. A margin between 3 and 5 points would merit a bonus of 13 electoral votes — and a victory even more decisive would deliver a bonus of 15 electoral votes.
Since the votes of all people would matter to the reward of these electors, candidates would work to turn out their voters in all states, not just the purple battlegrounds. Republicans would be encouraged to vote in "blue" states and Democrats in "red" ones.
The representatives of the winning popular vote candidate would select the extra electors. Voter security in all states to determine the precise popular outcome would continue or be improved, and each secretary of state would have to send certified numbers to Congress before the bonus votes could be allocated.
If the national margin was as small as it was in the 2000 — 543,000 votes, or half a percentage point — the states' individual interests may outweigh the need to elect the popular vote winner. But the winner of the popular vote should still get some credit in the Electoral College, even if only a few votes.
Had the system been used in the contested election of two decades ago, since Al Gore had the popular vote edge he would have been awarded 3 more electoral votes. But he still would have lost to George W. Bush — by 271 to 269 electoral votes. Only if Gore had won the popular vote by more than a full point would he have become president with the help of the bonus electors.
In the more recent case where the popular vote winner still lost, the outcome would also not have been changed. Hillary Clinton got 2.9 million more votes from people in 2016, a 2-point edge over Donald Trump. While that would have entitled her to 9 more electoral votes, she still would have ended up with just 241 to Trump's decisive if narrowly secured 306.
And this year? Joe Biden's 4-point margin of victory would have led to his winning 319 electoral votes.
A constitutional amendment which awards some electors to the winner of the overall popular vote is appropriate, while allowing states to retain the number of votes they have now in the electoral college.
The approach may not have changed any recent outcomes, but it may very well change the future dynamics of campaigning. And it may impact some elections in the future. This system is by no means perfect, but it attempts to move the country to a fairer system while balancing competing interests.
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