As the 2022 midterms approach, many citizens are worried about the state of our democracy. And with good reason. Our electoral system increasingly produces leaders who do not represent the will of the majority. The national popular vote was lost, for instance, by two of the last four presidents. In the evenly divided United States Senate, the 578,000 citizens of Wyoming have as much representation as the 39 million of California. And gerrymandering? Aided by complex computer algorithms, it’s easier than ever for political parties to choose their congressional voters—and harder for majorities to dislodge them.
This month, we discuss the history of our electoral system and the state of our democracy with Harvard Kennedy School Professor Alex Keyssar. Professor Keyssar’s books include The Right to Vote: The Contested History of Democracy in the United States, which was named the best book in US history by both the American Historical Association and the Historical Society and was also a finalist for the Pulitzer Prize and the Los Angeles Times Book Prize. In 2004 and 2005, Keyssar chaired the Social Science Research Council's National Research Commission on Elections and Voting. Keyssar's latest book, Why Do We Still Have the Electoral College? looks at that institution’s persistence despite several attempts throughout history to reform it. Alex Keyssar got his PhD from GSAS in 1977.
This transcript has been edited for clarity and correctness.
I want to begin by talking about a 2020 essay authored by Mike Lee, a US senator from Utah. Lee wrote that our form of government in the United States is not a democracy, but a republic. He said that the anti-democratic aspects of our system of government—the apportionment of senators, the lifetime appointment of Supreme Court justices, even the use of the filibuster to prevent the party in power from passing sweeping legislation—are features rather than bugs. I bring this up because I think this argument is popular among intellectuals on the right. And yet, earlier this year, an NPR/Ipsos poll found that nearly two-thirds of Americans and nearly 80 percent of Republicans believe that US democracy is in crisis and at risk of failing, although for very different reasons. So, has our system of government diverged in an unhealthy way from the popular will? How worried should we be?
Let me take the second question first. I think we should be very worried, or maybe that’s a way of saying that I’m very worried. I think that we are witnessing several different things which are converging to potentially create crises. And we are in a situation where one party is attempting to, in effect, control branches of the government with minority rule, with views and opinions that are not supported by a majority of the American people, and minority rule is happening because of some strange structural features of our government.
Yes, the Senate was always designed to be not proportional to population, but the gaps in size between small states and large states in 1790 were nothing remotely like what they have become. So, I think that we have a problem of minority rule coupled with the fact that one of our parties is evincing distrust in elections and distrust in the outcomes of elections, and in effect trying to discredit the electoral system, which is the only mechanism we have for changing governments and changing the shape and proportion of different views and perspectives. And I worry about that because if you get rid of elections, or you completely devalue elections or destroy people’s faith in them, then what do you have left?
Lee also wrote that democracy itself is not the goal of our system of government. The goal is freedom, prosperity, and human flourishing, even go[ing] so far as to say our Constitution is fundamentally undemocratic in the way it preserves individual rights like freedom of speech and worship, regardless of whether or not they're popular. How did we really get a system that's so fragmented and has so many veto points? Were freedom, prosperity, and human flourishing, the conscious or even unconscious drivers of its design?
I think that if one looks at the process of framing the Constitution, [then] we have to recognize that this was a long time ago and in a different world. This was a constitution written for a country of a few million people. This was a constitution that was designed, among other things, to try to produce a national government out of 13 state governments, which were in some ways annoyingly independent and reluctant to central rule.
So, there were a lot of compromises, which left things to the states. The framers were pretty widely agreed that they wanted two things. On the one hand, they were creating a much stronger central government and central power than ever had been the case before. Until the Constitution was written, the Articles of Confederation were a much looser union that did not give that much power to the federal government. So, they were creating a government that would have more power. But they also feared—in their experience with the monarchy—they feared too much of concentrated power so that things were divided up not only among the different branches of the government but between the federal government and the states. So, I think those dimensions of our Constitution were quite deliberate.
I think that there were other features of the design that came out of Philadelphia that were experimental or mistaken. And, you have a number of leading framers within five years, 10 years, 25 years of the writing of the Constitution, who thought that it needed to be overhauled. But above all, let's recognize that talented as the framers were, they had no way of foreseeing the world of the 21st century or even the 20th century—a world of industry, very substantial international commerce, and a world where there were political parties.
All of the framers agreed that there should not be political parties and that parties were factions that should not come to exist. You know, within about three hours after the Constitution was signed, there were the proto parties that were formed. But this was not…the design of the government, was not taking into account a political context in a political world such as that we've had really since the 19th century.
You mentioned that you are worried about the state of our democracy. Millions of Americans still believe that the 2020 presidential election was stolen. Inspired by that, we have state legislatures across the country that have passed scores of laws ostensibly to crack down on voter fraud. Some candidates for federal office have refused to say they'll abide by the results of the November election if they lose. What do you make of the current distrust in our electoral system? Where does it come from, and have we seen it before in American history?
We certainly have seen numerous incidents of distrust or an unwillingness to abide by elections. I mean, we have to remember there was a Civil War era, which reflected a lack of willingness to follow electoral procedures. In Kansas in the 1850s, there was a phenomenon called “bleeding Kansas,” where there was really warfare going on between different factions trying to win elections to determine whether Kansas would be a free or slave state.
We have the dramatic example in North Carolina in 1890 of what one recent author has described as the only successful coup in the United States, where white conservatives effectively overthrew by force county and city governments in eastern North Carolina to replace them with ones more of their liking. And if we wanted to extend that particular set of examples, we have to face the fact that not only did we begin as a country with slavery, but between 1880 and 1965, Black people, the vast majority of Black people in the US South, could not vote. It was not democratic by anyone's criteria.
One other point I want to add here, and it's in connection to Senator Lee's comments—the claim that we are a republic and not a democracy is both misleading and anachronistic. It is true that in 1785, the word “democracy” was actually not a very popular or positive word, and the word “republic” was preferred, although no one could really specify exactly what the difference was between a republic and democracy.
But that changed in the United States within 25 or 30 years. And we often dealt with clichés in the period of Jacksonian democracy. The word “democracy” became a positive word, a word with a positive valence, by 1830, and all sorts of pieces of legislation and practices have been defended in the name of democracy and in the name of the US being a democratic country for the last 200 years. So, I think that there's a mistaken claim there.
Where does this distrust in the electoral system come from? Do you see it as primarily an artifact of opening up to this pluralistic, multicultural society?
I think that the distrust in democracy, in elections historically and in the present, has had a great deal to do with difficulty recognizing the rights of other racial and ethnic groups. You see it in late 19th century and early 20th century laws that [were] passed that are targeted at immigrant groups in New York State, which we think of as a state very welcoming of immigrants. New York State passes an English language literacy test to vote in 1921. Numerous states pass laws that look a lot like contemporary laws, saying that you have to present your citizenship papers to vote in the late 19th century. That's in the North. In the South, of course, African Americans were excluded wholesale. So, one way you can regain trust in elections is to get rid of the potential voters that you don't like and that you fear.
A second way that you can do it is to try to discredit elections. I think that you asked earlier about where the current waves of distrust and disputes about the 2020 election came from. If we remember back to the specific dynamics of the challenges that occurred—I guess it was the six crucial states in 2020—the most common dynamic and perhaps even universal was that Republicans who controlled the suburban and rural areas of states like Pennsylvania were convinced that fraud took place in cities like Philadelphia or Milwaukee that had large black populations. In Georgia, it had to do with Fulton County and Atlanta.
So, there is a racialized dimension to this distrust of elections, and that has also been evident, although it's taken more of a class than racial form in the passage of laws really over the last 15 or 20 years, such as strict government-issued voter ID laws that make it harder for poor people to have access to the polls.
The presidential election is only two years away now. Your most recent book is about the Electoral College. Where does it come from? Is there anything like it in other high-income countries? And what role did race play in its establishment from the beginning?
Let me take the question that has a brief answer first, which is, “Is there anything like this in any other part of the developed world? Anything like the Electoral College?” And the answer is no. In the first half of the 19th century, there were some things like this in Latin America…indirect elections where you don't vote for the person, you vote for somebody who votes for the person. But those were eliminated in Latin American countries by the end of the 19th century. Where we got [the Electoral College], the founding fathers were puzzled and stymied when they gathered in Philadelphia about how to choose a chief executive. They didn't have models. You know, the model they had lived with was a monarch, and they knew they didn't want that.
The default option at the Constitutional Convention, which was an option that had emerged in the states after 1776, was that Congress should elect the president. So, when they had strong votes about how to choose the president in Philadelphia at the convention for the first month or two through to these periodic straw votes, and the option that had the most support was to have Congress choose the president. And, other ideas came forward. There was an idea of having a national popular vote where there were other ideas, having the governors choose, etc. But Congress was the most popular. Then, invariably, somebody would stand up and say, “Wait a second. If Congress chooses the president, what about separation of powers? What about the possibilities of corruption if those presidents want to stay in [office]? You know, it's just a really bad idea.”
We have to recognize these were people, just as the framers [were]. They got to the end of summer, late August. I don't know if you've ever been in Philadelphia in late August, but it's often not the most pleasant environment. And so, what the convention decided to do was to go on vacation and to leave the unresolved issues, including the selection of the president, to a committee. And they left town. They left this to a committee. And the committee, building on some earlier conversations, came up with the idea of the Electoral College.
There were a number of features or a number of ways to look at the Electoral College. It embodies the compromises over the representation of slaves because if you look at the structure of the Electoral College, it says every state gets electoral votes equivalent to [its] number of senators and the number of representatives. Okay, so what that does is to incorporate the compromises that had already been made about Congress between big states and small states—to have it be bicameral and about slavery with the three-fifths clause—it incorporates those compromises into the process of selecting a president. So, they didn't have to rehash that or figure out any way to do that.
Moreover, if you think about it, what the Electoral College is, and I think this was part of its appeal, it's a replica of Congress, but it's a replica that only meets once, does only one thing, and then dissolves. So, the problems of separation of powers and corruption are eliminated.
It was an experiment. They were very unsure about how it would work. So, I think that we have to understand that, in terms of the origins of the Electoral College, it was a set of compromises and second choices made by people who did not necessarily have much faith in it as an institution. It was rejected by many of the framers shortly thereafter. They didn't understand also quite how the system would be gamed. For example, the Constitution does not say that states should choose electors on a winner-takes-all system; that's not in the Constitution. That's simply a practice that emerged as each of [the] different states tried to say, “Hmm, how do we maximize our advantage?” Parties are emerging at the same time in the 1790s. Massachusetts is saying “We want to maximize the vote for John Adams. So why should we let it be, on a district basis, which was really what people thought should happen because then Adams will only get 65 percent of the votes in Massachusetts? Let's do it. The winner takes all. And then Virginia did the same thing, and we're off to the races. And eventually, by the 1830s, winner takes all had become the norm.
You mentioned at the outset that there have been several attempts to reform [the Electoral College]. There have been a thousand attempts in Congress. Roughly a thousand constitutional amendments have been introduced into Congress dating as early as the late 1790s and then as early as the 1810s and 1820s.
Fast forward. Just so we don't think that attempts to reform it were archaic and ancient. In 1969, the House of Representatives passed a constitutional amendment to junk the Electoral College and have a national popular vote by an 82 percent vote, way more than the two-thirds needed. It then went to the Senate, which is always the more conservative body and represents different people in different weights and [is a] long story. The short version of the outcome is that the Southern senators from the late 19th century into the 20th century perceived that the Electoral College gave the white South distinct advantages that they did not want to surrender.
Let me explain the arithmetic of this a little bit. What the Electoral College does is to give states weight in the election in proportion to their population, not in proportion to the number of people who vote. So, if you take a state that is 60 percent white and 40 percent black but only whites are voting, in effect, whites are casting electoral votes in the name of or on behalf of the 40 percent of minority citizens who cannot vote.
Contrast that to what would happen if you suddenly adopted the national popular vote. Then the influence of this state, which I'm saying was 60-40, would be reduced by 40 percent unless they could persuade African Americans to vote with them. And African Americans were not going to vote with the segregationist Democratic Party. So, reform not only in its origins having to do with linkages to slavery but in the perpetuation of the Electoral College up to the present impulses to retain and sustain white supremacy have played a very large role.
I want to put a very undemocratic question to you. If you were czar for a day and you could enact three reform arms to the US electoral system that could not be repealed under any circumstances for at least the next generation, at least the next 25 years, what would they be? What would make things better?
The first thing I would do is to get money or 90 percent of the money out of elections. I think the second thing that I would do would be to either get rid of the Senate or turn it into a second branch, but where the number of senators that each state got was proportional to population. I mean, you simply cannot—it is not sustainable that Vermont, a state I love and where I have a house—but that Vermont should have the same number of electoral votes as California. So, I would do something about the Senate.
The third thing is that I would replace the Electoral College with the national popular vote. I am absolutely convinced that if the American people had 25 years or 10 years or 12 years of experience with the national popular vote, it would become unthinkable to try to return to the Electoral College.