How to Make Voting More Democratic

Summary

Podcast Summary: "How to Make Voting More Democratic"

Podcast: The Political Scene | The New Yorker
Air Date: December 2, 2016
Host: Dorothy Wickenden
Guest: Jeffrey Toobin

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Episode Overview

This episode centers on the ongoing debate about the democratic validity of the U.S. Electoral College, the aftermath of the 2016 presidential election, and broader issues affecting voting rights in America. Dorothy Wickenden and legal analyst Jeffrey Toobin unpack the Electoral College's rationale and contemporary relevance, recount the 2000 and 2016 post-election controversies, discuss Russian interference and the impact of the Supreme Court’s gutting of the Voting Rights Act, and reflect on redistricting and the future of American democracy.

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Key Discussion Points & Insights

1. The Electoral College: History and Critique

• Origin and Purpose:

  • The Electoral College was established primarily to balance state and federal power during the founding of the United States.
  • It’s a product of the states' reluctance to cede authority to a central government.
  • Toobin observes the undemocratic nature of the Senate paralleling the Electoral College (e.g., "Wyoming, which has 500,000 people, has the same number of senators as California, which has...more than 20 million." [02:52 – Toobin])

• Current Viewpoints:

  • Al Gore, who once supported the Electoral College despite his 2000 loss, has changed his mind, stating we should move to a popular vote to stimulate public participation ([01:42]).
    • Quote: "I think the balance has shifted...and I think that we should go to a popular vote." – Al Gore (quoted by Toobin, [01:42])
  • Toobin agrees, calling the system “crazy” and highlighting how presidential campaigns ignore most of the country:
    • Quote: "If you live in Houston, you never see a presidential candidate. If you live in Los Angeles or New York or Chicago, they only come to these cities to fundraise." ([04:26 – Toobin])

• Chances for Change:

  • Given today’s polarization, particularly between urban and rural regions, any substantial Electoral College reform is “essentially nonexistent.” ([03:30 – Toobin])

2. The 2000 and 2016 Recounts: What’s Different?

• Florida 2000:

  • Legitimate recount due to razor-thin margins and questionable ballots ([06:06 – Toobin]).
  • "500 votes can actually shift in a recount, especially in a state as big as Florida." ([06:17 – Toobin])

• 2016 Recounts:

  • Current recounts in Wisconsin and other states are considered a "waste of time" due to large margins—no likelihood of changing results ([06:17 – Toobin]).
  • Toobin characterizes Jill Stein’s recount push as a "grifting operation" and points out that her Green Party candidacy may have been decisive in Trump’s victory in key states ([07:17 – Toobin]).

• Comparison with Trump’s Claims:

  • Both Trump’s and Stein’s claims of vote-rigging are unsubstantiated.
    • Quote: “It is certainly the same kind of claim and it has the same kind of absence of evidence to support it.” ([08:03 – Toobin])

3. Russian Interference and Democratic Insecurity

• Campaign Influence:
  • There is significant concern and confusion over Russian cyberattacks, notably the hacking of John Podesta’s email, but no direct evidence the election results themselves were hacked.
  • The Obama administration hesitated in responding to Russian hacking, possibly to avoid appearing partisan ([10:46 – Toobin]).
    • Quote: "This is a foreign power trying to determine the outcome of [a] presidential election and Obama just sat there and did nothing. It is a bizarre thing." ([10:46 – Toobin])

4. The Supreme Court and Voting Rights

• Shelby County v. Holder (2013):

  • The Supreme Court decision "gutted" Section 5 of the Voting Rights Act, removing federal oversight for changes to voting laws in certain states.
  • Immediately, states like North Carolina, Texas, and Wisconsin enacted stricter voter ID laws ([11:47 – Toobin]).

• Consequences in 2016:

  • Notable drop in African American turnout, especially in cities like Milwaukee—43,000 fewer votes for Clinton than Obama in 2012 ([13:07 – Toobin]).
  • Toobin cautions it’s hard to separate lower enthusiasm for Clinton from increased legal barriers:
    • Quote: "It is very difficult to count uncast votes in the first place. And it's also difficult to pinpoint the precise reasons why voting went down." ([13:40 – Toobin])

5. Jeff Sessions and the Future of Voting Enforcement

• Sessions’ Record:
  • Sessions, Trump’s nominee for Attorney General, previously used the Voting Rights Act to prosecute Black activists for fraud—widely seen as harassment—and was blocked from a judgeship over racial concerns ([14:08 – Toobin]).
  • Likely to be confirmed under current Senate rules ([15:57 – Toobin]).

6. Redistricting & Democratic Prospects

• Democratic Initiatives:

  • Eric Holder and Barack Obama have created a national redistricting committee to push for fairer district maps ([16:19 – Wickenden]).
  • Toobin notes the increasing sophistication of both parties but describes geographic polarization as a challenge: “People now live with their political bedfellows to a greater extent than they used to.” ([16:45 – Toobin])

• Historical Perspective:

  • Toobin reminds listeners of political cycles and cautions against thinking current adversity is permanent:
    • Quote: "Things change. They really do change…It's not the end of the world. And history didn't stop today. And Donald Trump is not going to just be able to control the federal government...the way he did the Apprentice. You know, things are going to change." ([17:45 – Toobin])

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Notable Quotes & Memorable Moments

• Al Gore on Popular Vote:
  "I think the balance has shifted...and I think that we should go to a popular vote." ([01:42])

• Jeffrey Toobin on Swing States:
  "If you live in Houston, you never see a presidential candidate. If you live in Los Angeles or New York or Chicago, they only come to these cities to fundraise." ([04:26])

• Toobin on Jill Stein’s Recount Efforts:
  "Basically, this is a grifting operation by Jill Stein." ([07:17])

• On Difficulty of Reform:
  "With the polarization...the chances for any change [to the Electoral College] are essentially nonexistent." ([03:30])

• On Voter Suppression Post-VRA:
  "60,000 fewer votes were cast for Hillary Clinton. I'm sorry, 60,000 fewer African American votes. And that means 43,000 fewer votes for Clinton than Obama got just in Milwaukee in a state that she won." ([13:07])

• On Political Cycles:
  "Things change. They really do change…It's not the end of the world. And history didn't stop today." ([17:45])

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Timestamps for Major Topics

• [01:16] – Episode introduction, Electoral College debate, Al Gore’s change of opinion
• [02:52] – Rationale behind the Electoral College and Senate composition
• [04:26] – Campaigns focusing on a handful of states; the realities of the Electoral College
• [06:06] – Florida 2000 recount details
• [06:17] – 2016 recount context and Jill Stein's motivations
• [08:03] – Vote-rigging narratives: Stein vs. Trump
• [09:55] – Russian hacking: campaign impact and unsubstantiated claims of election hacking
• [11:47] – Effects of the Shelby County (2013) decision on voting rights
• [14:08] – Jeff Sessions’ history with voting rights enforcement
• [16:19] – National redistricting efforts and the sociological shift in political geography
• [17:45] – Closing thoughts on political change and cycles

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Conclusion

In this wide-ranging discussion, Wickenden and Toobin critically examine America’s democratic structures, the barriers to meaningful reform, the battled-over mechanics of voting, and the shifting sands of political power. While the episode diagnoses daunting challenges—from entrenched electoral mechanics to voter suppression and partisan gerrymandering—it also emphasizes historical perspective and the potential for change with civic engagement and strategic action.

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Listeners interested in the legal, historical, and practical dimensions of American democracy will find this episode an incisive, candid exploration of what it takes to make voting more truly democratic.

Transcript

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[Dorothy Wickenden]

This is the Political Scene, a weekly conversation with New Yorker writers and editors about politics. It's Friday, December 2nd. I'm Dorothy Wickenden, executive editor of the New Yorker. Is the Electoral College a better way to elect a president than by popular vote? After George W. Bush was declared the winner in 2000, Al Gore said that he continued to support the system. Now he's changed his mind. Here's what he said at an event in Washington.

[Jeffrey Toobin]

It's a balancing act, but I think the balance has shifted, in my mind at least, and I think that we should go to a popular vote. I think it would stimulate public participation in the democratic process like nothing else we could possibly do. And in the Internet age, having people more involved, we got to get back to harvesting the wisdom of crowds in the United States. We've got to get back to the kind of conversation of democracy that allows good ideas to rise to the surface.

[Dorothy Wickenden]

Jeffrey Toobin joins me to discuss concerns about this issue and about voting rights that have emerged since Donald Trump's victory last month. Hey, Jeff.

[Jeffrey Toobin]

Hi Dorothy.

[Dorothy Wickenden]

Whatever you think about Hillary Clinton. It's impossible to argue persuasively, at least to me, that Trump is the more qualified candidate. It's even harder to rationalize his victory, given her lead over Trump in the popular vote. It's more than four times greater than Gore's over Bush. So remind us, please, once again why the founders decided on the Electoral College as the best way to select our presidents.

[Jeffrey Toobin]

I mean, remember, the United States doesn't even really have a name. It's just the United States. And that issue of persuading the states to surrender some of their power to the central government was one of, if not the central dilemma in the creation of the Constitution. I don't think people focus enough on the irrationality of the Senate in its existence as a part of a democracy, because, you know, Wyoming, which has 500,000 people, has the same number of senators as California, which has, I think, more than 20 million. So, I mean, it is not a democratic institution in any sense. The Electoral College is another form of giving the states power. You know, until 2000, there hadn't really been a big move. People hadn't paid that much attention because the winner of the popular vote had almost, not always, but almost always won. Richard Nixon, interestingly, was in favor of abolishing the Electoral College, and it came fairly close to being abolished in the 70s. But now with the polarization that we have, particularly urban versus rural, very red states, very blue states, the chances for any change are essentially Nonexistent.

[Dorothy Wickenden]

Speaking of 2000, I want to go back to that, because you are the Expert on the 2000 election, having written a book about it. Do you agree with Gore today that this is just outmoded?

[Jeffrey Toobin]

Oh, God, yes. I mean, it's crazy. And, you know, you and I have spent our entire adult lives thinking that presidential campaigns take place in the same six or ten states. You know, everybody knows the candidates spend all their time in Ohio and in Florida and in North Carolina. And the states change somewhat each year, but by and large, it's the same group of states. If you live in Houston, you never see a presidential candidate. If you live in Los Angeles or New York or Chicago, they only come to these cities to fundraise. The one thing Donald Trump is right about in terms of this debate is that the campaigns would be conducted very differently if we had popular votes. So it's not entirely fair to say, you know, she won by 2 million votes, and she would have won by 2 million votes in a popular vote contest. She might have won by more, but she also might not have won at all. I mean, it just would have been a different campaign. You know, I don't want to overstate that the Electoral College is completely undemocratic. I mean, it is true that there are competitive races, and certainly the upper Midwest, which was the key to this election. Pennsylvania, Wisconsin, Michigan, which unexpectedly went for Trump. Yes, there are occasional surprises, but the whole nature of how the campaign takes place would be different if you had a popular vote.

[Dorothy Wickenden]

So in 2000, we had the famous recount in Florida with the Supreme Court's involvement and so on. Right now, there's another recount going on. Talk a little bit about the recount then and the recount now and the politics of how and why this happens.

[Jeffrey Toobin]

The most important difference between the Florida recount in 2000 and the three recounts that apparently are gonna take place in.

[Dorothy Wickenden]

The next few days, in fact, Wisconsin is already underway.

[Jeffrey Toobin]

Wisconsin's already underway. Is simply the difference in the vote totals going in. The Florida race was genuinely undecided. You were talking about a difference of a few hundred votes. I mean, it ultimately was decided by a little more than 500. But if you look at the history of recounts, 500 votes can actually shift in a recount, especially in a state as big as Florida. So there was really a legitimate reason to recount the votes in Florida, especially given the screwy kind of balloting that went on there, the different kinds of machines they used. I mean, the result was really up for grabs. In short, if you look at the three states, there is no way in the world that a recount will change the results. It is a waste of time. Now, there have been various conspiracy theories and various hypotheses that there was some sort of systematic hacking that went on by Russia, like the way that they hacked emails. But those are completely unsupported theories with no basis in the actual voting, as has come out over the last few weeks. So basically, this a grifting operation by Jill Stein, who, by the way, it now becomes clear her vote totals in the three states were enough to swing all three to Hillary Clinton.

[Dorothy Wickenden]

So she is even, as our colleague Amy Davidson points out, even just Michigan and Wisconsin. I mean, this is.

[Jeffrey Toobin]

That would have changed. That would have made Hillary Clinton president.

[Dorothy Wickenden]

And is there anything different between the thinking that she is now whipping up and what Trump consistently did through throughout the campaign and his discussion of vote rigging?

[Jeffrey Toobin]

Well, you know, as usual with Trump, it was never exactly clear what he meant by vote rigging. I mean, he was. And he's still talking about, well, yes, And I think that's significant going forward. It is certainly the same kind of claim and it has the same kind of absence of evidence to support it. I mean, Jill Stein is making sort of general noises about, oh, they're irregularities. And I think that people need an accurate tally. And you know, it's hard not to accurate. You know, you can't disagree with an accurate tally. But ultimately these elections are about winners and losers and there is no chance that the winner is going to change.

[Katie Drummond]

What the hell is going on right now and why is it happening like this? At Wired, we're obsessed with getting to the bottom of those questions on a daily basis. And maybe you are too. I'm Katie Drummond, the global editorial director of Wired and I'm hosting new podcast series the Big Interview. Each week I'll sit down with some of the most interesting, provocative and influential people who are shaping our right now. Big Interview conversations are fun.

[Jeffrey Toobin]

I want a shark that, that eats.

[Katie Drummond]

The Internet, that turns it all off unfiltered and unafraid.

[Jeffrey Toobin]

So in a lot of ways, I try to be an antidote to the unimaginable faucet of reactionary content that you see online. To the best of my ability, every.

[Katie Drummond]

Week we're going to offer you the ultimate luxury of our times. Meaning and context. True or false. You, Brian Johnson, the man sitting across from me, one day, at some point, as of yet undefined in the future, you will die. False. Tell me more. Listen to the Big Interview right now in the same place you find WIRED's Uncanny Valley podcast. Subscribe or follow wherever you get your podcasts.

[Dorothy Wickenden]

And what about the hacking question? Because this was a legitimate concern during the campaign. In the final weeks and months, John Podesta's email accounts were hacked by the Russians. So there's understandably some confusion right now about whether they might have interfered with the election results themselves.

[Jeffrey Toobin]

Well, you know, I think one of the stories that will be important to pursue in the next few months years is just the nature and extent of Russian influence during this campaign, which seems to be considerable. I mean, the hacking of John Podesta's accounts was one of the major news stories of the last month of the campaign. Certainly there was no bombshell in there, but none of it helped Hillary Clinton.

[Dorothy Wickenden]

Well, and Obama has been pretty heavily criticized for not really issuing a stern warning to Russia about this was pretty clear.

[Jeffrey Toobin]

No, I mean I think it was an interesting example of how much Donald Trump got into fda. Everyone's head on the Democratic side that I suspect I don't know this for sure that the Obama White House was worried about seeming like they were stepping in for Hillary's side if they took stronger action. But this is a foreign power trying to determine the outcome of presidential election and Obama just sat there and did nothing. It is a bizarre thing. Just because you hacked emails that really does not suggest that you have the ability, intention, result of hacking the results of a president of an election, which is a completely different technical enterprise. And there is no evidence that they did it and they haven't bragged that they did it in the way that they bragged about the email project.

[Dorothy Wickenden]

So moving slightly, but not entirely, this was the first election since the Supreme Court gutted the Voting Rights act in 2013. Tell us about the ramifications of that.

[Jeffrey Toobin]

Decision in simple terms. The Shelby county decision in 2013 said, in effect, that Section 5 of the Voting Rights act was no longer applicable. Section 5 being the part that said all voting changes in basically the former Confederacy have to be run by the Justice Department or a court first before you can do them, because there is such a history of discrimination against African Americans and others in those states, Supreme Court said that is no longer applicable. And immediately like the next week, North Carolina, Texas and some other states, including Wisconsin, which was not covered by section 5 of the Voting Rights act, made very substantial changes in their laws that made it harder for African Americans to vote. Most importantly, changed the kind of identification requirements you need to vote. This election is the first one since those changes went to effect. Democrats and others and civil rights groups did succeed in persuading courts to roll back some of those changes in North Carolina and Wisconsin. But courts don't administer states. States administer states. And so there were changes. And it does seem like African American turnout went down, particularly in Wisconsin, where there are very stringent voting new voting requirements. In Milwaukee, which is Democratic African American, 60,000 fewer votes were cast for Hillary Clinton. I'm sorry, 60,000 fewer African American votes. And that means 43,000 fewer votes for Clinton than Obama got just in Milwaukee in a state that she won.

[Dorothy Wickenden]

So this is not just lack of enthusiasm for Hillary Clinton.

[Jeffrey Toobin]

Well, see, this is the problem. I mean, it is very difficult to count uncast votes in the first place. And it's also difficult to pinpoint the precise reasons why voting went down. It does seem like obviously that there was a lesser enthusiasm for Hillary Clinton, but it was also harder to vote.

[Dorothy Wickenden]

That leads us to Senator Jeff Sessions of Alabama, who is Trump's choice for attorney general. Tell us about his political history and its bearing on this very issue.

[Jeffrey Toobin]

Well, the most important aspect is that in the Reagan administration, in Reagan's first term, he was the U.S. attorney in Alabama. And that was the first time that the Voting Rights act had been used to prosecute black people for engaging in fraud, in trying to register people who shouldn't have been registered. Of course, the Voting Rights act had been passed in 1965 to encourage black voting and to stop white interference with black voting. But Sessions and a few others used the Voting Rights act to prosecute black people for fraud. And he prosecuted this group down there in what was widely regarded as a harassing act. They were all acquitted. And this was one of the main factors that led in 1986 to the Senate Judiciary Committee rejecting Jeff Sessions to be a federal district judge in Alabama. Something that almost never happens. I mean, you know, district court judgeships are pretty routinely approved. But Sessions was voted down because his racial history was so bad. Fast forward a couple of years. He gets elected as a United States Senator, which he remains. I believe he's in his fourth term. But, you know, his politics haven't changed that much. He is a very strong conservative, very conservative on issues related to race, like affirmative action. He and Trump bonded over Sessions very hard line on immigration, which you see was sort of the leader of the build a wall contingent in the Senate. And he's now the nominee for Attorney General, which.

[Dorothy Wickenden]

And likely to be confirmed.

[Jeffrey Toobin]

You know, I think we are looking at a situation with very likely 52 Republicans. One thing the Democrats did while they were in power is they eliminated the filibuster for everything but Supreme Court nominees. So all you need is a simple majority. It's very hard for me to imagine Sessions losing, barring some new bombshell, if Sessions not getting confirmed.

[Dorothy Wickenden]

What do you think about the new effort being spearheaded by former Attorney General Eric Holder? Obama has now signed onto it to create a national redistricting committee.

[Jeffrey Toobin]

Well, I think they are showing real sophistication in understanding what's really important, because these redistrictings, they only happen once every 10 years. So they set the political map for a decade. Both sides have become very sophisticated in knowing how to do this. It's just that the Republicans have all this power. So actually, as important as this election is, the next election is more important 2020, because that will be the group that writes the district lines for the next decade. So in this respect, I think Obama and Holder are on precisely the right track. There's another development, though, that raises questions about their ability to do much about it. And this sort of relates more to sociology than politics. Is that one of the more interesting sort of sociological developments in recent years, decades, is that people now live with their political bedfellows to a greater extent than they used to. I mean, there used to be more mixing of Democrats and Republicans residentially, but basically you have so few Democrats in large swaths of the country that no matter how you draw the lines, you're not going to be able to give Democrats a chance to win seats in Iowa because the Democrats are leaving Iowa. I guess, sort of. One more general point is, you know, it is no secret to you or I suspect anyone listening to this podcast that a lot of Democrats are distraught and people think this is like the end of the world. I mean, things change. They really do change. You know, in 2008, the Democrats controlled the House, the Senate, the White House. You know, there was no Republican congressman in, in New York State all the way up to Maine. It was like the Republican Party was disappearing from the face of the earth. Now people think the Democratic Party is disappearing from the face of the earth. I don't think that's going to happen. It's not the end of the world. And history didn't stop today. And Donald Trump is not going to just be able to control the federal government, to say nothing of the United States or the world the way he did the Apprentice. You know, things are going to change.

[Dorothy Wickenden]

We count on you, Jeff, to keep our spirits up. Thank you so much. This has been the political scene from the New Yorker. Jeffrey Toobin is a staff writer and the author, among other books of Too close to the 36 day battle to decide the 2000 election. You can subscribe to this and other New Yorker podcasts by searching for the New Yorker in your podcast app. You can find more political analysis and commentary from Jeffrey Toobin and others on new yorker.com or on the New Yorker app, available at no extra charge from the App Store and Google Play. Tell us what you thought about this podcast. Rate and review the Politics of War podcast on itunes. This podcast is produced by Alex Barron and Jill Duboff. For New Yorker.com I'm Dorothy Wickenden.

[Jeffrey Toobin]

Right now we are living through some of the most tumultuous political times our country has ever known. I'm David Remnick and each week on the New Yorker Radio Hour, I'll try to make sense of what's happening alongside politicians and thinkers like Cory Booker, Nancy Pelosi, Liz Cheney, Tim Waltz, Ketanji Brown Jackson, Newt Gingrich, Robert F. Kennedy, Jr. Charlemagne, the God, and so many more. That's all in the New Yorker Radio Hour wherever you listen to podcasts from prx.