The Past, Present, and Future of Presidential Elections

In the wake of election 2020, we partnered with the University of Pennsylvania Journal of Constitutional Law to present its annual symposium exploring the past, present, and future of presidential elections. Jeffrey Rosen moderates a three-part conversation.

Panel one on the origins of presidential elections and the Electoral College at America’s founding features:

• William Ewald, professor of law and philosophy at the University of Pennsylvania
• Kim Lane Scheppele, Laurance S. Rockefeller Professor of Sociology and International Affairs and the University Center for Human Values at Princeton University
• Jack Rakove, emeritus William Robertson Coe Professor of History and American Studies, and Professor of Political Science and (by courtesy) Law at Stanford University

Panel two on the more recent history of presidential elections, including the 2020 election, features:

• Edward Foley, the Ebersold Chair in Constitutional Law at The Ohio State University where he also directs the election law program
• Alexander Keyssar, the Matthew W. Stirling Jr. Professor of History and Social Policy at the John F. Kennedy School of Government at Harvard University
• Guy-Uriel Charles, the Edward and Ellen Schwarzman Professor of Law at Duke Law School and co-director of the Duke Law Center on Law, Race and Politics

Panel three, looking ahead to the future of our presidential elections system features:

• Jesse Wegman, member of The New York Times editorial board
• Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law at Capital University Law School
• Joel Benenson, founder and CEO of the Benenson Strategy Group
• Matthew Dowd, chief political analyst for ABC News

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TRANSCRIPT

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This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

PARTICIPANTS

Panel One: Origins and Theoretical Perspectives

• William Ewald is professor of law and philosophy at the University of Pennsylvania. He is the author of an often-cited article in the University of Pennsylvania Law Review on the philosophical foundations of comparative law, “What Was it Like to Try a Rat?” He is currently at work on a book, The Style of American Law, that examines, from a comparative perspective, the distinctive character of American law. Ewald has written two articles about James Wilson for the University of Pennsylvania Journal of Constitutional Law.
   
• Kim Lane Scheppele is the Laurance S. Rockefeller Professor of Sociology and International Affairs and the University Center for Human Values at Princeton University. Since 2010, she has been documenting the rise of autocratic legalism first in Hungary and then in Poland within the European Union, as well as its spread around the world. She’s previously taught at universities around the world including the University of Michigan where she was a tenured political science professor. 


• Jack Rakove is the emeritus William Robertson Coe Professor of History and American Studies, and Professor of Political Science and (by courtesy) Law at Stanford University. He is the author of eight books including Original Meanings: Politics and Ideas in the Making of the Constitution, which won the 1997 Pulitzer Prize in History, the 1997 Fraunces Tavern Museum Book Award, and the 1998 Society of the Cincinnati Book Prize. He is also the editor of several works including Library of America’s volume James Madison: Writings, and along with Colleen Sheehan, The Cambridge Companion to The Federalist.

Panel Two: History of Presidential Elections

• Edward Foley holds the Ebersold Chair in Constitutional Law at The Ohio State University, where he also directs its election law program. His new book is Presidential Elections and Majority Rule and he is also the author of Ballot Battles: The History of Disputed Elections in the United States. During his fellowship at Stanford University’s Center on Democracy, Development, and the Rule of Law, Foley wrote Due Process, Fair Play and Excessive Partisanship: A New Principle of Judicial Review of Election Law, which was cited in briefs in Gill v. Whitford and Benisek v. Lamone (the Supreme Court gerrymandering cases). Foley is a reporter for the American Law Institute’s Project on Election Administration and co-hosts an election themed podcast, Free and Fair with Franita and Foley.
   
• Alexander Keyssar is the Matthew W. Stirling Jr. Professor of History and Social Policy at the John F. Kennedy School of Government at Harvard University. He is the author of several books, including The Right to Vote: The Contested History of Democracy in the United States and Why Do We Still Have the Electoral College?. In 2004 and 2005, Keyssar chaired the Social Science Research Council's National Research Commission on Voting and Elections. He writes frequently for the popular press about American politics and history.


• Guy-Uriel Charles is the Edward and Ellen Schwarzman Professor of Law at Duke Law School. Charles is also is the co-director, with Mitu Gulati, of the Duke Law Center on Law, Race and Politics. He has published over 30 articles in journals including the Harvard Law Review, Constitutional Commentary, The Cornell Law Review, The Michigan Law Review, The Michigan Journal of Race and Law, The Georgetown Law Journal, The Journal of Politics, The California Law Review, The North Carolina Law Review, and others.  Additionally, Charles is the co-athor of two leading casebooks and two edited volumes.

Panel Three: Prospects for the Future

• Jesse Wegman is a member of The New York Times editorial board, and the author of the book Let the People Pick the President: The Case for Abolishing the Electoral College. He was previously a senior editor at The Daily Beast and Newsweek, a legal news editor at Reuters, and the managing editor of The New York Observer.
   
• Bradley Smith is chairman and founder of the Institute for Free Speech and the Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law at Capital University Law School. He’s also a visiting fellow in the James Madison Program at Princeton University. He served on the Federal Election Commission from 2000 to 2005, and is the author of several explainers for the National Constitution Center’s Interactive Constitution, including the Article I, Section 2 and 15th Amendment explainers.
   
• Joel Benenson is the founder and CEO of the Benenson Strategy Group. Benenson previously worked on Bill Clinton's team in 1996, led the award-winning research and polling programs for President Obama’s 2008 and 2012 campaigns, and served as senior strategist to Hillary Clinton.
   
• Matthew Dowd is chief political analyst for ABC News, where he regularly appears on Good Morning America, Nightline, and This Week with George Stephanopoulos. Dowd previously served as a strategist for President George W. Bush, Governor Arnold Schwarzenegger, Lt. Governor Bob Bullock, and US Senator Lloyd Bentsen.

Moderator

• Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

ADDITIONAL RESOURCES

• William Ewald, UPenn Journal of Constitutional Law, "James Wilson and the Drafting of the U.S. Constitution"
• Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution
• Jack Rakove, A Politician Thinking: The Creative Mind of James Madison
• Kim Lane Scheppele, Verfassungsblog: On Matters Constitutional, "What Just Happened? Why America’s Presidential Election is Not Yet Over"
• Kim Lane Scheppele, Verfassungsblog: On Matters Constitutional, "What Happens Next? The Trials, the Transition and the Tinderbox" 
• Kim Lane Scheppele, i-CONNect: Blog of the International Journal of Constitutional Law, "Symposium on The Legacies of Trumpism and Constitutional Democracy in the United States, Part IV: The Life of the Party"
• Edward Foley, Ballot Battles: The History of Disputed Elections in the United States
• Edward Foley, Presidential Elections and Majority Rules: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College
• Live at the National Constitution Center podcast, "America's Contentious Presidential Elections: A History"
• Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States
• Alexander Keyssar, Why Do We Still Have the Electoral College?
• Ed. Guy-Uriel E. Charles, Heather K. Gerken, Michael S. Kang, Race, Reform and Regulation of the Electoral Process: Recurring Puzzles in American Democracy
• Guy-Uriel Charles and Luis Fuentes-Rohwer, Duke Law School Public Law & Legal Theory Series, “Chiafalo: Constitutionalizing Historical Gloss in Law & Democratic Politics”
• Bradley Smith, in The Best Candidate: Presidential Nomination in Polarized Times, “Reforming the Presidential Nominating Process: A Curmudgeon’s View”
• Bradley Smith, Election Law Journal, “Vanity of Vanities: National Popular Vote and the Electoral College"
• Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College
• Jesse Wegman, The New York Times, “Can We Please Pick the President By Popular Vote Now?”
• Evelyn Doskoch, The Daily Princetonian,​“Former Obama, Clinton pollster Joel Benenson talks campaign strategy”
• Rhonda Fanning, David Brown & Caroline Covington, The Texas Daily Standard, “What Georgia Politics Can Tell Us About Texas’ Path To Turning Purple”
• Organization for Security and Cooperation in Europe: PARLIAMENTARY ASSEMBLY, "INTERNATIONAL ELECTION OBSERVATION MISSION
  United States of America – General Elections, 3 November 2020"
• ACE: The Electoral Knowledge Network
• The Electoral Count Act (1887)
• The Voting Rights Act (1965)
• 116th Congress, H.R.1 - For the People Act (2019)
• The National Popular Vote Compact
• Michigan Secretary of State's Office, Independent Citizens Redistricting Commission
• Arionza House of Representatives, HB 2720 (2021)
• Charles Davis, Business Insider, "Arizona Republican introduced a bill to let state legislature overturn results in a presidential election"
• The Fairness Doctrine

This program was presented in partnership with the University of Pennsylvania Journal of Constitutional Law. Special thanks to professor William Ewald. This episode was produced by Jackie McDermott, John Guerra, and Lana Ulrich. It was engineered by David Stotz. 

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