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Burden of Proof

The Electors Vote: Is it Time for Reform?

Aired December 18, 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: Today on BURDEN OF PROOF: In the last constitutional requirement for electing a president, the Electoral College casts its votes. Will all the electors walk the party line? And is it time for reform?

(BEGIN VIDEO CLIP)

PATTI SALIBA, TENNESSEE ELECTOR: Our forefathers saw that there was a need for the Electoral College. So they were smart enough to put everything in place. And I've heard over the news media that there's, you know, some people say it's a constitutional crisis. I certainly don't think so.

MARIA DE LA MILERA, FLORIDA GOP ELECTOR: I've received about 18 letters from people and a phone call from California from people who would like me to change my vote for Al Gore. And I think it's a little bit arrogant.

SARA AGEE, ARKANSAS ELECTOR: I have had letters, and I have over 15,000 e-mails to switch. I've had maybe 50 to stay where I am, but I don't think anyone's really worried.

(END VIDEO CLIP)

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

COSSACK: Hello, and welcome to BURDEN OF PROOF.

Across the nation today, delegates from every state are casting their votes for president in the Electoral College. Within the next 30 minutes, delegates from several states will be voting. We will bring those to you live.

GRETA VAN SUSTEREN, CO-HOST: As this historic election reminded us, it takes 270 electoral votes to become president of the United States. Governor George W. Bush is expected to narrowly cross that hurdle with 271.

COSSACK: Joining us today here in Washington: Miriam Vincent, from the Office of the Federal Register; Curtis Gans, director of the Committee for the Study of the American Electorate; and constitutional law professor Jamie Raskin. VAN SUSTEREN: And in our back row: Erin Allinson (ph), and Washington, D.C. Council member, Jack Evans, who is a former elector for the District.

Jack, let's go right to you. Tell us about being a former elector, what was the experience for you?

JACK EVANS, FORMER D.C. ELECTOR: I think it's part of being history. I was elector in 1992, when Bill Clinton was first elected, and the sense you get, the process of being an elector certainly is mundane, you go into a room, you sit at a desk, you sign a piece of paper. But I think there is a larger sense that you are part of 538 people who are going to choose the next president of the United States.

VAN SUSTEREN: How were you chosen?

EVANS: I was chosen by the state party, and I believe most of the states do it that way. The state Democratic Party, in July of that year, in July of the presidential election year, chooses the electors.

VAN SUSTEREN: Did you submit your name and say: Look, I would like to be an elector this time around?

EVANS: Yes, I did, and that's how it was done.

COSSACK: Jack, you know, probably when you were elector there wasn't too much turmoil going on, but as you know we just had all of this. Did you get any e-mails, anybody...

VAN SUSTEREN: I don't know if they had e-mails then.

COSSACK: Did you get any postcards or anything saying...

VAN SUSTEREN: Smoke signals.

COSSACK: Smoke signals, saying: Give it up, vote for somebody else.

EVANS: No, nothing like that happen. And if you remember, in '92, President Clinton had such a wide electoral victory that there wasn't a controversy as there is today, where clearly, if three people were to change their votes, Al Gore could be president.

VAN SUSTEREN: How did it take to do this whole procedure?

EVANS: About a half hour.

VAN SUSTEREN: That long.

EVANS: You look at the room, and you sit down, and schmooze a little bit, sign the documents, get up, shake hands, take pictures. How long did the actual process take? Thirty seconds. But, again, it is a sense of history. It's really a moment in time in America where you are a part of it. COSSACK: Miriam, tell us about the Electoral College. Today, all these people are voting for who is going to be the nominee, and all of that. You have some direct dealings with them.

MIRIAM VINCENT, OFFICE OF THE FEDERAL REGISTER: Yes. Actually I have this morning spoken to two different states several times, wanting to make sure everything was all set, that we've gotten everything from them, that there's not going to anything...

COSSACK: So what happens if one of those state calls you up now and says: Oh, my goodness, we have got a revolt in the ranks, four people have changed their vote. It looks like Governor Bush won't have enough votes in the Electoral College and Vice President Gore wins. What do you do?

VINCENT: I say, well, you make sure that the certificate of vote accurately reflects how those people voted, and send it in like you would no matter what.

VAN SUSTEREN: Speaking of voting, we are going to put up for our viewers the voting that's being done in the state of Virginia. There are 13 electoral votes in the state of Virginia, and those votes will be cast for Gov. George W. Bush.

UNIDENTIFIED FEMALE: The Honorable Gary Wedell (ph) votes for George W. Bush. The Honorable Luther Miller (ph) votes for George W. Bush. The Honorable Patsy Green (ph) votes for George W. Bush. The Honorable Gloria Fisher (ph) votes for George W. Bush.

COSSACK: This is nice of them to do it in our show.

UNIDENTIFIED FEMALE: The Honorable Ann Garrett (ph) votes for George W. Bush.

Mr. President, there are 13 ballots cast here for George W. Bush.

UNIDENTIFIED MALE: Thank you.

VAN SUSTEREN: That brings it to 81 for George W. Bush, the state of Virginia having now cast its electoral votes.

Miriam, let me go back to you. Before we get the electoral votes cast, we have something called certificates of ascertainment, have all the states complied or do we have some offenders, some states who have not sent theirs in?

VINCENT: As of this morning, we were missing one state.

VAN SUSTEREN: Who is the offending state? Let's get it right out here. Which state is a little slow?

VINCENT: Maryland.

VAN SUSTEREN: Why?

VINCENT: They were, I guess, a little bit confused about what the requirements were.

VAN SUSTEREN: Is this the first time they are voting in an election?

VINCENT: Not as far as I know.

VAN SUSTEREN: What's the confusion?

VINCENT: Well, they are set for Monday, and the meeting of the voters, and casting votes and everything, and they just sort of didn't understand that they had to send in a certificate of ascertainment first.

VAN SUSTEREN: What do...

COSSACK: What happens is they don't...

VAN SUSTEREN: Let's pick on Maryland.

COSSACK: Let's pick on Maryland. What happens if Maryland doesn't get it in?

VINCENT: Well, I mean, they are going to get it in. But the certificate of ascertainment is to verify who the electors are before these people show up to actually vote. So that you don't get someone who is not an elector actually voting for president. So they were supposed to have signed it very early this morning before the meeting of electors so that it would be in effect by the time Maryland meets. And the actual deadline is -- we need to turn everything over to archivist actually tomorrow morning.

VAN SUSTEREN: And Maryland, according to my records, has 10 electoral votes, and those either have been or will be cast for Vice President Al Gore.

VINCENT: Right.

COSSACK: Well, and then you heard all these dates about December 12th. It looks like it is today and still nothing is completed.

VAN SUSTEREN: The day is young.

COSSACK: Curtis, is it time for a change with this Electoral College?

CURTIS GANS, COMMITTEE FOR THE STUDY OF THE AMERICAN ELECTORATE: Only if you go to the Nebraska or Maine model. By and large, the Electoral College is a good thing, it protects certain key underpinnings of American democracy, like federalism, pluralism and participation.

It isn't the best thing in the world, somebody who did not get a plurality for him to could become president, but it's happened three times in the past and America has thrived and prospered. And we have had a lot of people who have only gotten plurality, ranging from Abraham Lincoln and Woodrow Wilson, to Ronald Reagan and Bill Clinton. What the Electoral College does for us, you could see in the so- called battleground states. There candidates had to take into account regional, state, and local interests, had to listen to interest groups, and appeal to what they are advocating, had to build their coalitions for victory, had to mobilize their grassroots supports, in order to win those states. And one could see how their vote might make a difference in let's say 534 or whatever it was in Florida.

If you move to direct elections, we would have one great big national media campaign, based on the lowest common denominator. Candidates would go to the most populous centers and the rest of the country would ignored.

VAN SUSTEREN: All right, I am sorry to interrupt you, Curtis. We have got to take a break. When we come back, Professor Jamie Raskin will be asked that question: Is it time for the Electoral College to go?

Stay with us.

(BEGIN LEGAL BRIEF)

Maine and Nebraska award the state's electoral votes by congressional district, with the state's winner of the popular vote getting two more votes. The remaining states, and the District of Columbia, award electoral votes on a winner-take-all basis.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: 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.

VAN SUSTEREN: This year's race for the White House was one of the closest presidential elections in history. Today, amid some calls for reform, the Electoral College casts its votes for president.

Jamie, Electoral College, good idea, bad idea, or has it outlived -- is it time to go?

JAMIE RASKIN, CONSTITUTIONAL LAW PROFESSOR: It is time to go.

VAN SUSTEREN: Why?

RASKIN: It is time to abolish the Electoral College. Well, it is profoundly undemocratic. We are seeing a situation where Bush squeaks out a victory of 100 votes, 200 votes in Florida; Gore beats him nationally by 300,000 votes, and Bush becomes president.

VAN SUSTEREN: But you say, undemocratic. If this is sort of the democratic process we have created, isn't it democratic? RASKIN: Well, you could say it is constitutional. It is certainly part of our constitutional process, but it is not democratic...

VAN SUSTEREN: What do you mean by democratic? Let's get that straight.

RASKIN: One person, one vote, universal suffrage.

VAN SUSTEREN: That has always been the way.

RASKIN: But it is not because a vote in Delaware or Rhode Island means a lot more than a vote in California...

VAN SUSTEREN: Then it has never been democratic because we've had Electoral College since forever.

RASKIN: We changed in 1913, we had an indirect election of U.S. senators, we did it by state legislatures. That was undemocratic, and the populist movement and progressive movement wiped out the indirection election of U.S. senators with the 17th Amendment to the Constitution. We need a constitutional amendment to get rid of this.

The one thing you can say for the Electoral College is that it was designed as a deliberative institution where they...

VAN SUSTEREN: Let me ask you one quick question. Doesn't this allow, like these Californians like Roger, if we do away with the Electoral College, and suddenly we get all these Roger Cossacks telling us who is going to be president because of the huge population out there.

COSSACK: Now you are talking. Boy, that should only be the way.

VAN SUSTEREN: Isn't that the real problem, people like Roger?

RASKIN: Here's where an Electoral College would be useful, today to sit down, for them to say: Look, let's look at what happened in the 2000 election, was the Florida result and the Supreme Court decision in fact solid and sound? And they might say, no, we should go with the national electoral winner, the popular vote winner. But they won't do that because we have developed this idea that the electors should not deliberate, should not decide who should be president, but instead should ratify the vote in their states.

Well, if that's case, let's move to a one person, one vote universal suffrage system, where we have a direct national vote for president, the way the rest of the Western world does it.

VAN SUSTEREN: Take it away.

COSSACK: You know what, I was just sitting here thinking, one of the problems I think with this system, the way it is now, it prevents me, perhaps I do want to go back to California and start the straight thinking party, and I know that I will get many, many adherents, a lot on money people want to give me. But how is it possible to really get a third party going under the system we have now?

GANS: Well, I think you could get a third party going if there was mass public support.

If, for instance, Colin Powell had chosen to run in 1995, and gotten, you know, 35 percent of the vote, probably would have won several states. He could have gotten than. When you start thinking of a direct election, think of a national recount.

VAN SUSTEREN: We couldn't even do a state.

COSSACK: think of a national recount; think of a better way to vote.

GANS: But the better way to vote is to do what Maine and Nebraska do, which is essentially, if you win the state, all you get is two electors, the rest are elected by congressional district. That essentially does the opposite of what Jamie is proposing.

VAN SUSTEREN: Jamie, why do you object to that?

COSSACK: What is wrong with that.

RASKIN: None of it makes any sense. First of all, if we had a direct popular vote, Florida never would have happened because we are fighting over 100 votes here, 50 votes there, 20 votes there. It is clear in the national election that Gore won. So we would not have been forced down into the level of chad warfare.

COSSACK: He probably did win, but you know there is supposed to be at least perhaps a million votes that have never been counted across the country.

RASKIN: All right.

VAN SUSTEREN: Let me just say one thing. When you say the national election, I got to tell you, I guess how you define the terms, national election I think Bush won because he is going to get all the electoral votes. You mean the general...

RASKIN: I mean, the popular vote in the national election, which is the way every other democracy on Earth does it. This is an antique because...

COSSACK: What about the argument, Curtis' argument that what you do then is you go and you pander to New York, and you pander to California, and you pander to Pennsylvania.

RASKIN: It is mush worse now.

COSSACK: And you get Philadelphia, and you get all these big cities.

VAN SUSTEREN: It is worse with the Electoral College because California has got the big population. RASKIN: Here is what happens now. Right now, the states are lined up, there are safe states that are Republicans, and the Democrats don't campaign there, so the Republicans don't campaign there, like Texas, Mississippi, Alabama, you know, North Dakota; and there are safe Democratic states, like New York and New Jersey and so on, and then Maryland, West Virginia and so on, and then the Republicans don't campaign there.

So then there are swing states -- there are certain swing state and that's where the attention goes.

You know, Nader created a more interesting situation this time, where there were about a dozen swing states. But, basically, you get a huge surge of public involvement and voter turnout in the swing states, and in the safe states you don't get any.

COSSACK: I want to let Curtis respond to that. Do you agree with that?

GANS: Yeah, I agree with that. That's why I want the Maine and Nebraska system because then Gore has an incentive to go south because there are Democratic districts and swing districts that he might win. Bush has an incentive to go north, because there are Republican districts and swing districts that he might win. Every state would likely be in play.

There would be an incentive not for media campaigning, but for grassroots activity, and you know people's vote would count twice, once to win the state, and once to win the congressional district. It is a much better system, and it preserves all of the values of the current Electoral College has.

COSSACK: All right, let's take a break. Up next, many of the Bush electors have reported being solicited to cross that line into Gore's camp. Are their electoral votes legally bound? Stay with us.

(BEGIN Q&A)

Q: Why was a Florida man arrested Saturday near U.S. President- elect George W. Bush's ranch in Texas?

A: He was caught driving a car containing firearms. The man was charged with the unlawful carrying of a weapon.

Source: "The Waco Tribune-Herald"

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: President-elect George W. Bush needs 270 electoral votes to officially become the 43rd commander-in-chief. He's expected to receive 271 votes in today's Electoral College tally.

Jamie, look, if the whole point of this is to make voting and make the electing of the president more representational, what is wrong with the system that recognizes the fact there are different views from the single state? For example, in New York, traditionally we know that upstate New York is a conservative, more Republican area, down state New York, New York City is a Democratic area. What would be wrong with adopting a pattern, as Curtis suggests, that gave each of those groups some distinct representation in the Electoral College?

RASKIN: Well, if you are talking about changing the Constitution to do it, and you go to the process of actually amending the Constitution, you don't have to, but why don't we actually take care of the whole problem right now.

If you are a Democrat and you voted for Gore in Texas, or you are a Republican and you voted for Bush in New York, your vote does not count. It is a winner-take-all system within each state. So we are wiping out the value and utility of millions of votes.

If you move to congressional district you make it a little bit better. But still, if your candidate loses by five votes in the 8th Congressional District in Texas, your vote is worth nothing.

What is wrong with just democracy? The way that we elect U.S. senators and U.S. House members, and mayors, and town councilers; that is the majority of the people get to determine who actually wins the election.

The only rational for the Electoral College is to have them deliberate and discuss what would be best for the country, and nobody wants that anymore. People are afraid. People are saying: Oh no, they are e-mailing and they are calling the electors. That was their whole purpose, that they would decide who would make the best president. But if we don't believe it anymore, let's get rid of the system.

VAN SUSTEREN: Miriam, speaking of e-mail, and let's switch to my favorite topic in terms of -- there's a Web site with the electors on it. Who puts this Web site up with the name of the electors?

VINCENT: Well, we do, the Office of the Federal Register. It is the official Electoral College Web site. Once we receive the certificates of ascertainment, we have one page which is the results page, which lists the actual number of votes each winning candidate received, as well as the names of the electors that we were sent from the state saying that these are the people who are elected.

VAN SUSTEREN: How long have you been posting the names on a Web site of the electors?

VINCENT: 1996, four years ago, was the first year we created the Web site.

VAN SUSTEREN: Do we anticipate any renegades this time around, any rogue voters who are going to step over and vote for someone else?

VINCENT: Well, not that I've heard, but I will probably be about the last person to find out, since I'm waiting for the actual certificates to come in to me. COSSACK: Jack, are we going to have a little revolution here in Washington, D.C.?

EVANS: There's a possibly. As you know, Washington, D.C., we are the only place in the continental United States that doesn't have a vote in Congress. And certainly, one of our three electors has indicated that she may not vote for Vice President Gore and vote for no one, in protest of the fact that the District of Columbia residents don't have a vote in Congress.

VAN SUSTEREN: I got to tell you, Jack, that may be hugely symbolic to a few people in Washington, but I don't think many people in the country are going to care if someone doesn't care doesn't for president; am I wrong?

EVANS: I think you are right. But what the point is is to try to bring and the message to people in the country that we don't have a vote.

VAN SUSTEREN: I think it would have a greater impact if it were a Bush elector...

COSSACK: We can't find any of those in the District.

VAN SUSTEREN: I'm saying -- someone who would make a statement it would have to be, you know, someone who could have an impact.

COSSACK: He only wins by one vote, what a statement that would make.

VAN SUSTEREN: But that is what I am saying, it would have to be an impact in order to make a statement to have sort of effect.

COSSACK: Curtis, I want to get your response to what Jamie said, in terms of -- I tried to make the argument that perhaps the modified system was the best system. I can't get him buy into that one.

GANS: I can't get him to buy into it, but think your vote doesn't make as much of a difference in 300,000 or 3 million that wins elections -- it would be a mass media campaign, without emphasis on grassroots activity.

The current election would have triggered an automatic recount, if you had Florida's laws. It would be electoral disaster because you would have to recount all across the country. The underpinnings of American democracy are as important as the one man, one vote rule.

VAN SUSTEREN: Let me just ask Miriam a quick question. We have only got 20 seconds left. Has any state ever failed to get its votes in on the right day today?

VINCENT: Well, Wisconsin a few years ago -- Sorry -- couldn't meet because of a blizzard.

VAN SUSTEREN: Well, anyway, on Wisconsin. And that is all the time we have for today. Why couldn't it be California? Thanks to our guests, and thanks for watching.

And tonight, join me for the premier of CNN's new show "THE POINT." And we'll get to the point about the Electoral College. What were the Founding Fathers thinking? And have we reached the point where the popular vote should now become the standard for voting? That's tonight at 8:30 p.m. Eastern on "THE POINT."

COSSACK: And today on CNN's "TALKBACK LIVE," your voice can be heard on -- guess what? -- the Electoral College. Should we keep it, or scrap it? Send your e-mail to Bobbie Battista and tune-in at 3:00 p.m. Eastern time.

And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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