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Burden of Proof

The Electoral College: Should It Be Changed?

Aired November 6, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ROGER COSSACK, CO-HOST: On the eve of a history-making election, the race for the White House is the closest in 40 years. But how is the president really elected into office?

Today on BURDEN OF PROOF: the Electoral College, the real electorate which will usher in a new occupant to the Oval Office.

(BEGIN VIDEO CLIP)

LUTHER MOOK, REPUBLICAN ELECTOR: The Electoral College, I mean, that is the beginning of our country and people are still unfamiliar with it.

MARTIN LUNNUR, DEMOCRATIC ELECTOR: You literally line up as the roll is called and drop the paper ballot into the ballot box for president.

PROF. DAVID EPSTEIN, COLUMBIA UNIVERSITY: We live in a republic, not a democracy, and the founders were very careful to say that they were worried about allowing people to directly elect representatives.

(END VIDEO CLIP)

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

COSSACK: Hello, and welcome to BURDEN OF PROOF.

In less than 24 hours, Americans will take to the polls to vote for the 43rd president of the United States. But will those ballots really decide election 2000? Tomorrow, you'll actually be voting for state electors, members of the Electoral College.

GRETA VAN SUSTEREN, CO-HOST: Whichever candidate takes a majority of the vote in your state, gets electoral votes from his party's state electors. Electors are pledged to vote for either Vice President Al Gore, or Texas Governor George W. Bush. The votes which really count are held on the Monday following the second Wednesday of December, this year, which is December 18th. That's when the Electoral College members submit their ballots.

COSSACK: Since the race between Bush and Gore is so close, many pollsters acknowledge that the possibility that one candidate may win the popular vote with another taking the Electoral College. The potential for this has politicians on both sides of the aisle calling for change.

(BEGIN VIDEO CLIP)

REP. RAY LAHOOD (R), ILLINOIS: I was an elector in 1988. I went to Springfield, Illinois, the state capital, and I voted for George Bush, but I could have voted for Dick Durbin. I could have voted for Ray LaHood. There is nothing in the Constitution that tells the electors they have to vote for the person who gets the popular vote.

SEN. RICHARD DURBIN (D), ILLINOIS: It's time for the Electoral College to close down. It's time to put this constitutional dinosaur permanently in a museum.

(END VIDEO CLIP)

VAN SUSTEREN: Joining us today from New Haven, Connecticut is constitutional law professor Akhil Amar. And here in Washington, Brian Jones (ph), Michael White, who is the director of legal affairs and policy at the Office of the Federal Register, and Curtis Gans, who is director of the Committee for the Study of the American Electorate.

COSSACK: And in the back, Anita Patankar (ph) and Meghan Scott (ph).

All right, Curtis, what is this Electoral College?

CURTIS GANS, COMMITTEE FOR THE STUDY OF THE AMER. ELECTORATE: Well, it was set up by our Founding Fathers largely because they wanted to have Congress and not the president as the preeminent authority. Congress was the legislative body, the president was essentially designed to carry out affairs. Congress got the votes, president got indirect votes, and the votes were established on the basis of a compromise between big states and small states in which you had...

COSSACK: This was all set up so that the people wouldn't be deciding who was going to be the president.

GANS: At the time, it was indeed set up so that wise men in states would select the president who would be the, quote, the best administer of Congress' policy.

COSSACK: And when he says men, he's not kidding, too.

VAN SUSTEREN: No, he's not kidding. We've had that argument.

Michael, let me talk to you for a second, I know what is going to happen tomorrow, and I think most Americans do, but chances are very few of know what is going to happen December 18th. What in the world is going to happen on December 18th?

MICHAEL WHITE, OFFICE OF THE FEDERAL REGISTER: On December 18th, in the state capitals around the country, the electors who have chosen by the voters on November 7th will meet. And those slates of electors, who were appointed by the people to represent probably either Vice President Gore or Governor Bush will cast their electoral votes for president.

VAN SUSTEREN: And what happens? OK, December 18th, the electors cast their ballots, and for the most part, they follow their pledge, but let's assume that they all follow their respective pledges, what happens after they vote?

COSSACK: What happens if Greta Van Susteren becomes an electorate, and you know she is not going to follow that pledge.

VAN SUSTEREN: I take no marching orders.

Anyway, Michael, what happens after they vote? what happens physically with the votes?

WHITE: Physically, there is process where the ballots have to be signed, sealed, and delivered in a certain manner under federal law. They are sent in to the president of the Senate and also to the National Archives Federal Register Office, where I work.

VAN SUSTEREN: And then what happens once they end up at your office?

WHITE: Well, there's this anomaly in federal law, where the Senate has to keep their ballots under seal, but the Archives, my office, we will check over the ballots, make sure there are no irregularities, make sure they are good and legally sufficient. We will also track down missing certificates, as we are in the middle of the Christmas mail season then, and sometimes they get waylaid.

VAN SUSTEREN: So they don't use FedEx, they use the U.S. mail.

WHITE: That is right.

VAN SUSTEREN: Who counts them? I mean, somebody at some point has got to count these.

WHITE: Well, you know, there will be an apparent winner, we think, on election night.

VAN SUSTEREN: Suppose we don't have an apparent winner. I mean, what do you do with these sealed ballots that have to the Senate and the ones that have gone to your office? I mean, somebody has got to look at them.

WHITE: We will be looking at them very carefully. We will tote them up, and we will be in contact with House and Senate officials, and we will meet together and make sure everything is in good order.

Then the ceremony, on January 6th, should be just that, a call of the roll of states, and the official acknowledgement.

VAN SUSTEREN: Someone has got to count them between December 18th and January 6th, whose job is it to actually count them?

WHITE: I will be doing the preliminary count.

COSSACK: He's the guy.

VAN SUSTEREN: He's the guy.

COSSACK: Very good. Akhil Amar, what happens, each candidate, one of the candidates needs 270 electoral votes to become president of the United States, what if neither one of them get it?

AKHIL AMAR, CONSTITUTIONAL LAW PROFESSOR: Then heaven help us. So imagine a 269 to 269 tie, it is mathematically possible, and there are indeed even some scenarios in which it is electorally quite imaginable. It is a low probability event, let's say one percent, but if it were to happen, then the House of Representatives would be asked to decide between Bush and Gore.

VAN SUSTEREN: Wait a second, the House of Representative, is that the House of Representatives prior to their swearing in January, so it is the old House of Representatives, or is it the new House of Representatives?

AMAR: Under federal law, it is the new House, and that's actually also the clear intention of a later constitutional amendment, the 20th Amendment, so it is going to be the new House, and it will be voting actually state by state. And in order to win, Bush or Gore, each person would need 26 of the 50 states, an absolute majority.

You could imagine a situation if the -- where let's say 25 states are controlled by the Republicans and 22 by the Democrats and three are actually evenly divided, and in that case, neither man might have 26 out of 50 states. So that's why I said heaven help us.

VAN SUSTEREN: All right.

COSSACK: We've got 25 apiece.

VAN SUSTEREN: Now what?

COSSACK: What happens now?

AMAR: Then...

GANS: I don't know.

AMAR: Then they could...

COSSACK: Akhil, what happens?

AMAR: Then they could keep balloting, but if no one reaches that magic number of 26, basically they have failed to pick a president, then you've got to go, and look over on the other side of the Capitol building and the Senate chamber because they get to pick between two top vice presidential candidates, assuming that Bush and Gore each get 269, you could imagine that Cheney and Lieberman each get 269, and then all the senators vote. And in order to prevail, you have to have an absolute majority of that body, 51. It is possible to imagine a tie-breaking vote being cast by the presiding officer of the Senate, who happens to be the vice president of the United States Al Gore, but it is also not so clear that he gets to vote because maybe you need 51 senators rather -- an absolute majority of the senators rather than an absolute majority of the Senate. So, again, heaven help us.

VAN SUSTEREN: And the plot thickens.

AMAR: It is probably not going to, obviously, come to that, but it does suggests that there really are some real problems with the precise mechanisms of the Electoral College. It is a dinosaur.

VAN SUSTEREN: All right, we've got to take a break. Up next, after more than two centuries, has the Electoral College outlived its usefulness, or is this what's best for the nation? Stay with us.

(BEGIN VIDEO CLIP)

JONATHAN KARL, CNN CORRESPONDENT: Do you think candidate, a president, who becomes president while losing the popular vote, could effectively govern?

VICE PRES. AL GORE (D), PRESIDENTIAL CANDIDATE: I think that's an attenuated hypothetical, to coin a phrase. It actually has happened before in our history. I think it's unlikely to happen, again it could. We won't know until November 7th, but in all such cases, we are fortunate as a people to have a Constitution that resolves all doubt as to what would happened in that situation.

(END VIDEO CLIP)

(BEGIN LEGAL BRIEF)

President Clinton vetoed legislation Saturday that would have imposed prison terms on officials who leak classified information.

The legislation, initially requested by the CIA, was intended to halt disclosure of information that could be harmful to national security.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to cnn.com/burden. We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

(BEGIN VIDEO CLIP)

LARRY KING, HOST, "LARRY KING LIVE": Could we have in the realm of possibility a popular winner, an electoral winner, two different...

GOV. GEORGE W. BUSH (R), PRESIDENTIAL CANDIDATE: Yes, I understand. I doubt that, I do.

KING: Would we have a calamity if we did?

BUSH: There would be a lot of discussion, but I don't think that's going to happen.

KING: Do you favor the Electoral College?

BUSH: I do like the Electoral College.

(END VIDEO CLIP)

VAN SUSTEREN: As the race for the White House continues to tighten, there will be increased focus on the Electoral College in the next 48 hours. In U.S. history, in three different presidential elections, one candidate won the popular vote, while another was later inaugurated into the presidency.

COSSACK: In 1824, Andrew Jackson won the most popular votes, but none of the candidates in the race received the majority of electoral votes. Hence, the House of Representatives resolved the dispute, placing John Quincy Adams into office.

VAN SUSTEREN: In 1876, New York Governor Samuel Tilden appeared to win the popular vote across the nation, but Rutherford Hayes was declared commander-in-chief by the narrowest of margins.

And in 1888 -- you remember that, don't you Roger?

COSSACK: I remember that so well.

VAN SUSTEREN: ... incumbent President Grover Cleveland led in the popular vote, but lost the electoral race. He came back four years later to reclaim the Oval Office.

Curtis, Electoral College, is it a constitutional dinosaur?

GANS: In its present form, it poses certain problems. The one is what we've seen in this election, the possibility that somebody could win the popular vote and lose the electoral vote. The other, which we've seen in this election, which is that only 17 states have gotten any attention by the candidates.

VAN SUSTEREN: What is the advantage to me of the Electoral College? To me, as a voter, what do I get out of it?

GANS: What you get, if you are in that 17 states, or if in the modification that I would like to have, in all the states, you get the attention of the candidates, you get the attention to all the different groups in our society, you get grassroots activity, you get -- you get intense competition that you wouldn't have if you moved, as my friend Akhil wants to do, into direct election.

Right now, when you have a statewide election for let's say governor, you know 60 percent of the money goes to television advertising, 30 to fund-raising and 10 to candidate travel and staff. There's no grassroots activity. What the Electoral College forces is intense competition for grassroots activity for our pluralism... VAN SUSTEREN: Let me Akhil that. Akhil, it sounds like that's great, Curtis' argument, if I'm in one of those great states like Wisconsin, which is a battleground swing state.

COSSACK: It is not Wisconsin that they are talking, it's California that they are talking about right Akhil?

VAN SUSTEREN: But, Akhil, what do I get out of it? Suppose I live in Wyoming, what do I get out of this Electoral College?

AMAR: I think you get a bad deal. You get a system that was basically designed to allow states to let very few people vote at the founding, and yet not pay an electoral price. And at the founding, if you are a slave state, you get to count all your slaves, as part of the Electoral College system, there is a discount, but you get to count them, even though you don't let them vote. In direct national elections, actually, the more people from a given state vote, the bigger an impact that state has on the general election, so every state government would encourage people to go out to vote, maybe give them the day off, make it easy to vote by absentee ballot. We would have a lot more invigorated democracy actually in all 50 of the states rather than 15 of them.

COSSACK: You know, Michael White, this sounds to me as a kind of an argument that you can discuss forever, but, you know, I don't think it is really going to happen. Is this something that we really should concern ourselves, changing the Constitution?

WHITE: Well, that's a big step, and that's the reason the Electoral College system hasn't been changed over the years. It's a pretty unlikely scenario, although this year, in a tight race, the circumstances aren't that much different than in 1888. Two parties with major candidates running very close election, one candidate may wrack up a big vote total in say the Southern states and Mountain states.

VAN SUSTEREN: But we just heard, when we came back into this segment of the show, we heard Governor Bush saying on "LARRY KING" that he likes the Electoral College. Maybe I shouldn't pose to you, because of your job -- Let me go to you, Curtis.

Curtis, what is it for Governor Bush, in the sense that why would he like it?

GANS: Because it partly reflects both small "r" republican value, reflects...

VAN SUSTEREN: What is the small "r" republican value.

GANS: It reflects federalism, regionalism, state...

VAN SUSTEREN: How about giving things back to the people, small government, those things, that doesn't sound...

GANS: Well, there's a better way to revise it. I don't think we will revise it, and republic has survived and prospered despite those two elections you and Roger elucidated.

VAN SUSTEREN: Witnessed.

GANS: But the better way to revise it, I think, is to do what Nebraska and Maine did, which is essentially, if you win the state, all you get is the two electors that are for the Senate, the others are elected by congressional district.

And what that would do is, A, make the electoral vote closer to the popular vote. It would mean that the parties would not abandon the individual states. Gore would have a percentage to go South for marginal districts and Democratic districts; Bush could go to New York and California for Republican districts and marginal districts. And we would have a competition with any state. Plus we would be enhancing grassroots activities, which is what direct elections would undermine. Both of these things, either direct election or this, will -- would be very hard to enact because you really would need broad bipartisan cooperation.

You can do the one I'm suggesting by state statute, but you would still need it to do it on a bipartisan basis because, you know, the Republicans wouldn't want to give up their states unless the Democrats gave up theirs.

COSSACK: Right, let's take a break. Up next, are members of the Electoral College legally bound to cast their votes for a particular candidate? Could, and should, the system be changed? Stay with us.

(BEGIN Q&A)

Q: Each state has as many electors as it has U.S. senators and representatives. California, the richest electoral state, has 54 votes. How many electoral votes are allotted to the District of Columbia?

A: Three. D.C. is allotted the same number of electoral votes as the least populous state.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: Americans will take to the ballot booths tomorrow and finally cast their votes in election 2000. But rather than voting for a candidate, voters are actually selecting state electors of the Electoral College. George W. Bush and Al Gore are fighting for 270 votes, the magic number for victory.

Well, Akhil, I think it's about time you have to defend this proposal of yours that we have, just we do away with the Electoral College and just have direct voting. I mean, the argument seems to be that the smaller states may not just get the kind of representation that they should.

AMAR: Well, if there's an argument for the small states, there's a real possibility that Al Gore, let's say, would win the electoral vote even after winning -- losing the popular vote because he wins eight of the 10 big states. So small states lose out in part because not very many people live there. But the basic idea of a democracy is one person, one vote. So I don't think -- really, if you're concerned about, well, the majority rules, that's a fundamental idea in a democracy, I guess.

VAN SUSTEREN: Michael, the whole idea of us electing electors who then go elect the president is an interesting one, in part because when we elect electors, we don't even know -- they're not bound to vote a particular way, are they?

WHITE: No, the electors may simply be bound by conscious. Some of them are bound by pledges to their state party and some of them are bound under state law. But it's unclear whether even those state laws are enforceable.

VAN SUSTEREN: Have we had any turncoats in recent history?

WHITE: Oh, sure, we've had a couple of them in recent history. In 1976, there was a Ford elector who thought Ronald Reagan would have been a better choice for the nomination and cast the electoral vote for Ronald Reagan. Then in 1988, there was a Dukakis elector in West Virginia who thought that Dukakis had run a rather bad campaign and decided to flip the ticket, voting for Lloyd Bentsen as president and Dukakis as vice president.

COSSACK: Curtis, I'm still sort of troubled by this argument. Akhil says, look, you know, one man, one vote. How can you disagree with that?

GANS: Well, I like "one man, one vote" in most situations, but in the situation of our national election, there are more considerations: whether you give attention to states and regions, whether you take into account broad interest, whether you...

COSSACK: But should -- let me just say this. Should you give it -- when you're voting for the national president, the president of the United States, should geographical differences divide the country or shouldn't there just be one person, one vote?

GANS: Actually, any president has to govern as a coalition president. He has to bring together regional interests, he has to bring together the interests of groups in the society and various points of view. And the only way that you can actually force candidates to take into account that is by a system that decentralizes the actual results.

VAN SUSTEREN: All right, Professor Akhil Amar, constitutional law professor, give our viewers an education on how -- what we'd have to do to even get rid of the Electoral College.

AMAR: Well, Congress would have to propose an amendment, two- thirds of the House would have to vote for it and two-thirds of the Senate and then three-quarters of the states. So it's a very hard thing to do. But if you want a president who reflects all of the nation, even if you have a direct national election, he'll have to do that. You have to go out and get a lot of votes. And people are distributed all across the country, so to put together a winning coalition, you'd have to go to every part of the country and try to win.

VAN SUSTEREN: Akhil, in the last 10 seconds we have, what are the odds it's ever going to change in your mind?

AMAR: Oh, it's going to be hard to amend the thing unless the people wake up on Wednesday and see that the popular vote winner somehow lost the Electoral College, and then we'll hear about it.

VAN SUSTEREN: All right, well, that's all the time we have left for today. Thanks to our guests and thank you for watching.

After watching our program, do you feel the Electoral College should be scrapped or should we keep it? Weigh in today. You got to e-mail Bobbie Battista with your vote on "TALKBACK LIVE" at 3:00 p.m. Eastern time.

COSSACK: And tomorrow on a special election day edition of BURDEN OF PROOF, now if fraud is committed in the presidential election, how will the Justice Department investigate and prosecute it? Join us then as part of CNN's election 2000 coverage. We'll see you then.

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