Tara Ross joins Dave Rubin to dismantle Electoral College myths, arguing the Constitution reserves unlisted powers for states while federal overreach erodes civics education and fuels a presidential cult of personality. She defends the 1787 compromise against claims of illegitimacy, noting Hillary Clinton's 2016 loss stemmed from ignoring swing states like Wisconsin and Pennsylvania rather than systemic flaws. Ross warns that a national popular vote would centralize data security risks and force candidates to cater solely to dense urban centers, whereas decentralized administration across 51 jurisdictions better prevents fraud and protects rural needs. Ultimately, she frames the founding era as an imperfect relay race establishing self-governance, urging citizens to reclaim local authority against federal encroachment. [Automatically generated summary]
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Okay, now, joining me today is a lawyer and the author of several books, including The Indispensable Electoral College, How the Founders Plan Saves Our Country from Mob Rule.
It came out before the election, probably a good year and a half before the 2016 election.
And I didn't really think about it.
I mean, just to be honest, then the 2016 election happened.
And next thing I know, I'm pulling up in my Facebook feed and my My face is showing up over and over again in feeds for my friends, and I was as blown away as anybody else, but I think that Prager has set up a good system where they have informational videos on all these different topics, as you know, and people were looking for information in the wake of the election outcome in 2016, and that was readily available, and I'm so happy, so happy that Prager did that.
Yeah, and as we now ramp into this 2020 election, this conversation about should we have an electoral college, why do we have it, should it be popular vote, this whole thing keeps ramping up more and more.
So we're gonna spend most of our conversation talking about that, but I thought we'd just start generally talking about the Constitution and some of the laws that govern us these days, because people seem very confused about them.
Tell me a little bit about something that we don't know about the Constitution that we should know.
Yeah, well, it seems that that's how we're governed now, that almost everything is through the federal government, and especially if you listen to the Democratic candidates now, that they seem to want to do all of these things regardless of what states want and things like that.
How do they get away with it?
I don't mean to make this even partisan, in general speaking.
I think it starts with us, honestly, because think about anything that's happening.
If a natural disaster hits, tornado in Dallas, people hopefully in Texas a little bit less, that's a Texas girl, but we look to the government and we don't look even to the state government, we look to the federal government.
We want our governor to declare a state emergency because then we know there's more federal funds, there's more this, there's more that.
The mindsets of everybody has changed so badly that we're enabling the situation to continue.
So maybe we can start at home by, you know, I'm from Dallas, I hope we're pitching in, we're helping our neighbors, Hopefully looking to our state or our city before we start looking to the federal government.
I think that if we can work on that, that's a really big problem I just outlined.
We have schools that teach social studies when they used to teach history.
We don't teach the Federalist Papers and the Anti-Federalist Papers, which were the arguments back and forth at the time of the founding about the Constitution and why it exists as it does and what they were trying to create.
We don't do any of this stuff in our schools anymore.
And then we have adults that grow up having never been exposed to this.
And so nobody knows.
Literally nobody knows.
And I think the founding generation, if you read in the Federalist Papers especially, over and over and over again, James Madison or Alexander Hamilton will say, the people will keep this in line.
And they talk about the people as if we will be educated, as if we will know, as if...
We will take all of this into consideration when we're voting, doing all the things that we do, but once you undermine education, and once that's gone, how can you possibly keep the structure in place anymore?
Do you think that was a miscalculation by the founders, that over time, sort of, that the state would kind of slowly grow, and then as it grew, that education would kind of get worse, and maybe they couldn't envision all of that, but that that was their miscalculation, that the people would somehow always be engaged?
They also assumed we would always be more loyal to our states than to the federal government, which probably, by the way, comes with the education.
When you lose the education, you lose the loyalty to your states because you stop understanding why it's so important, why that's an important part of the system of checks and balances.
We talk about the executive and the judiciary and the legislative and how they work against
and with each other and how they check and balance each other, but also the state and
the federal government were supposed to be checks on each other.
That doesn't mean states always handle things correctly, just like the federal government
doesn't handle things correctly, but it's all a part of the process.
We assume that everybody's going to make mistakes.
We assume that the system, where there are so many competing powers going head-to-head all the time, that that will, in the end, protect us, because it will be difficult to push anything through too quickly and in the heat of the moment, emotionally.
And isn't that sort of the bizarre situation we're in where now it's like we've had this incredible system where the states could tinker and figure out what they wanted to do with taxes, and education, and gay marriage, and marijuana legalization, and literally every topic there is, but now we're outsourcing all of that, and it's like, well, now if the government does some bad stuff, it's not that you can leave your state, because the next state's gonna be the same.
I mean, when you were talking about that, I was thinking, there's so many examples from our history where Wyoming, for instance, was the very first state to let women vote.
They did it in 1892, way before anybody else, because they thought it was a good idea.
Their reason was funny.
They wanted more pioneers, women, to come out and to join all the men, because there were too many men and they needed women.
But states used to operate for themselves, with their own interests in mind, and they made decisions on all sorts of topics.
So we're here in California, which is probably doing most of that wrong, and we have an ever-expanding government, and we now have this progressive Governor Newsom, but you're in Texas.
What are some of the things that you think maybe Texas, which is still a little more Texas, that Texas might be doing right that maybe California is doing wrong?
Yeah, I think we kind of went from a place where there were a whole bunch of things that we were trying to become more tolerant of, and then we got to the place where we were more tolerant of a whole bunch of stuff, and now we're at a place where we're on the other side, where now you're no longer to even say things that were the norm 20 or 30 years ago.
It's like you flipped on it.
It's very weird to me, and there's certain things that I think you can't say without All sorts of bad things coming down on your head.
I've been saying that for a while and we're just, we're broken.
I do think we're talking about the electoral college a little bit.
I think that is one thing that will help.
I do think we've been broken before and we've come out of it.
We were broken in the years after the civil war.
It was a big mess then.
We had multiple elections where You know, the electoral vote and the popular vote did not match up, and there were two elections where the recorded national popular vote winner did not win the election.
There was year after year where the electoral map looked really, really similar, very closely divided.
The red areas always seemed to be red, and the blue areas always seemed to be blue, which is what we're doing now.
And eventually, because of the Electoral College, we came out of that, is my belief, because If you think about it, if you're a Democrat in the South in those years, you cannot win the White House at all, period.
Because you don't have enough electoral votes in your safe areas.
But if you are a Republican, you kind of have the opposite problem where you have enough in the North and Northwest, which is where it generally was, to win, but kind of just barely.
And if the Democrats make any inroads at all, you're going to lose.
So both sides over time had to reach out to the other side and listen and figure it out.
And so that's why I I think we're there now.
I do think that's what's happening.
But I also have hope that this, because of the structure of the system,
even though we're not educated enough about it, that we will come back to a better place
All right, so before we do the full dive on Electoral College,
which we'll spend the rest of the conversation talking about, because I really, really want people
to understand why the founders started this idea and why it actually is the right idea and all that.
But in terms of the system working or not working at the moment,
I think part of it is just the way we operate, that the presidency, the cult of personality
around the presidency is.
is such that people think that it's the president's job to do everything.
So if you like Trump, you kind of think, oh, he should just do whatever he wants, and executive actions are okay.
The same time when Obama was for it, you probably weren't for executive actions.
Or right now, listening to the candidates, everything that they want to do, they don't realize they're actually not the ones that are supposed to write the laws.
They're just supposed to sign the laws.
Do you think that that's just a cult of personality issue, that we just pick one person Almost like we yearn for a king in like some really perverse sense or something like that.
So to really get geeky on you, it goes all the way back to the 17th Amendment, which of course changed the way that we elect United States senators.
And it used to be that state legislators would pick those.
And now of course we have a popular election, just like anybody else, which makes senators more like the House of Representatives, which is not what they were supposed to be.
They were supposed to actually represent the state.
as a state in the Congress so that the laws and the process and all of the stuff that
was happening in Congress would reflect the interests not only of the people from the
House side, but also the state legislatures, which are expected, of course, to be an important
check and balance on the national government.
Well, unsurprisingly, when we turned the Senate into something more like the House, we lost
a check and now the Congress has just become a place to try to get the people as much as
we feel like we want, whether it's good for the country, whether it's good for the state
or not.
And so that has, but then also it's hard and Congress, I think they defer, like they push it off into an administrative agency or they delegate power to the president or they do these different things to be able to give as much as they possibly can without always having to be as Blunt about it, as maybe they would have to be otherwise.
If you're a United States Senator before the 17th Amendment, and you vote for a bill that includes an unfunded state mandate, You're not going to get re-elected because the state legislators are going to be really mad at you.
So you're accountable to just a different set of people, which is healthy.
Say the federal government wants to take power in some area, whatever it is.
You know, they changed the drinking age and federal funds for roads went along with that.
But if you're a state senator and you know that your state, a United States senator, and you know that your state legislature prefers to be in charge of its own roads, you're not going to vote for that bill.
It changed the dynamics completely and made it much, much easier for the federal government to swoop in and take over from the states on a whole variety of issues.
But I think it also made it easier for the Congress to delegate to the president or to an administrative agency or There was just less accountability overall for any of this.
And of course, the more power the president's delegated, exactly what you're saying happens.
We think the president, the president has become such an all-important elected official in so many ways that didn't used to be true.
So James Madison's from Virginia, and I think he was more comfortable in the beginning with just a national popular vote, but he felt like this was a better compromise in the end.
Obviously, he sketched it out behind closed doors.
Right now, when people say, and we're hearing this more and more, we should just have the popular vote, that the current president lost the popular vote, he's an illegitimate president, what is the counter-argument?
I really wish people would stop and just think about Why the Democratic Party lost.
The people who are upset on the Democratic side because they lost, they've spent a lot of time blasting the system and criticizing the system, criticizing Trump, and I wish they would spend more time thinking about why they lost.
And the reason they lost is because Hillary Clinton spent too much time doing exactly what the Electoral College does not want her to do, or any candidate to do, which is she focused too exclusively on one kind of voter.
She's the kind of voter that happens to live in big cities in New York and California, mostly.
She got 20% of her vote from only New York and California, and most of her vote in those two states came from the big cities.
Towards the end of the campaign, she, people don't usually know this, but she thought she was about to win the electoral vote and lose the popular vote, so she actually doubled down on that strategy, and she started spending a lot of time and resources on safe areas areas that she was already expecting to do well
because she wanted to drive up the popular vote in those safe areas so that she would not have
that discrepancy between the electoral and the popular vote.
But of course, if she had said Gonda, Wisconsin, Michigan, Pennsylvania, spread out her base of appeal,
built coalitions, worked on that, she probably would have won.
It was within reach and she could have done it, but she didn't.
I mean, if you're a candidate, you have limited time, you have limited resources.
That's just human.
That's not good or bad.
It's just what it is.
And you cannot, physically cannot, go everywhere.
You cannot It's not productive or efficient to try to strategize how to bring in people from different parts of the country.
What is most productive, as a purely strategic matter, is just to go to where people already like you and just start drumming up support.
I mean, if you're a Republican, maybe you go to Houston and you look at the oil interest and you say, I'll give you this, I'll give you that, I'll give you this.
And you just try to drum up as many people as you can.
If you're a Democrat, maybe you say, I'm going to give the environmental lobby everything they want.
I'm going to go to LA and San Francisco.
I'm going to start drumming up support there.
I'll ban plastic straws in the whole country or something.
I don't know.
So it's just, it is just practical.
It's not even malevolent or anything at all.
It is just what it is.
It is a huge, big, diverse country.
And if you don't give candidates a reason to care, they're not going to.
You know, it's just, it's so interesting to me that people think that, because there is not any other context where we would just say, tough.
You know, we wouldn't say, if one race can outvote the other race, tough!
You know, we can do whatever we want.
Nobody would say that.
We shouldn't say that.
So why is it okay to say, yeah, if the big city people outvote the farmers, eh.
Who cares?
I don't think that's right.
I think what's right is to create a society that is just and to do our best to take into account a wide variety of needs.
And if you think about it, I mean, if you let the big cities dictate to the farmers, where they do most of the producing in this country, by the way, you're telling the people who are the end users that they can tyrannize over the producers That's going to create a really bad situation.
If you drive up the coast where all the farmers are complaining about water rights and then the big cities are getting all the water and it's like, guys, they're the ones growing the food.
Why do we think that we can change the system and that these problems that already exist at the state level will not happen at the national level?
Of course they will.
So I have actually long said, I think California, Texas, a handful of the big states, for their governor, should have an electoral college kind of thing going on.
I think it would produce better governance in the big states.
Interesting, so you would take an electoral college concept and apply it even to those big states because that way you could sort of control their need to just serve the big, you know, Dallas and say Los Angeles.
Why should farmers in California be tyrannized by the people in the big cities?
Why should people in, you know, in the middle of Texas where there's, you know, very small population cities, why should they be tyrannized by, I live in Dallas, but why should they be tyrannized by us in Dallas or in Houston or in San Antonio or Austin?
They have different needs and concerns.
And I, you know, I'm not sure the gubernatorial processes always reflect that.
So I know that we don't know everything that went on in these meetings where James Madison's sketching this all out, but where did all the numbers come from?
Well, I mean, it's really just based on the census, and so, you have, and it's based on, after the census they decide how many people are going to be in the House, and then we reallocate the electors just to match it.
So do you feel that the system is actually functioning as it should then?
Even if the people aren't being as responsible and maybe don't know civics the way you would want them to and all of those things, do you think that the basic election system, and especially again, because we're rolling into an election, we're gonna hear about election rigging, we're gonna hear about foreign influence, we're gonna hear about popular vote versus electoral college, but do you think that the elections are basically safe and secure and that this is sort of the best way that they can operate?
I think both parties are being really super stubborn about fixing themselves.
I think pretty much everybody could do a better job of working to build coalitions and being inclusive and trying to understand the people that don't fall in line exactly, you know, where I am.
And until we figure that out, it's going to look like this.
I hope I hope we figure it out soon because I'm kind of tired of it, as everybody else is, but the system is not not working.
And the reason we're having closed elections is because everybody's being stubborn, which is, like I said, what happened after the Civil War.
Is the irony here, though, that if the states would actually take back some of the rights that they've been sort of outsourcing to the federal government, That none of this would matter that much, right?
Because the presidency would have less power.
So that really is the, that to me strikes me as the answer, right?
Like you keep as much as you can local, and then it won't matter that much what the executive branch can do.
And if the states were back in charge, then there would be less for the judges to do, which means the judicial nominations would be less of a, you know, less of an influence.
I think people are just so worried that Their preferred policy preference on whatever it is is going to get decided by judicial nominations or by the president or by, you know.
And so it becomes so important.
And it's the system that was created by the founders is very decentralized.
There should never be that much power in one place.
There shouldn't be that much power in the Supreme Court or the presidency.
I see it all the time, and I wish it weren't happening.
I wish that people cared enough to say something, or to call their congressman and say, you know, go take that back, that power that just got usurped from you, go take it back.
Do you think it's maybe that everything seems to be more about optics than the way things are supposed to be governed?
Like you never hear anybody talk about, well, I can't say never.
I'd say you get a guy like Rand Paul maybe and Mike Lee from your home state, like a couple guys that will actually talk about the Constitution and things like that.
Did you see that moment during the debate?
When they were asking Kamala Harris about confiscating guns via executive action and Joe Biden said it has to be constitutional, which of course is the correct answer, and Kamala basically laughed at him and said, Joe, can't we just say yes we can?
Like this terribly smug answer meaning, because what she's saying is I will take whatever power I can to literally take away one of your, the second Bill of Rights.
Again, I think it goes back to not knowing history.
Because if we knew our history, what we would know is that the British, when they were trying to keep us down, the first thing they did was we went after our guns and our ammunition.
And that's why the shots were fired at Lexington and Concord.
The British were marching to go take it.
And we said, no, you can't do that.
And it actually happened in several cities.
Lexington and Concord is the one we know about from our history books.
There were several places in 75, 76, where the British were trying to take our arms and ammunition because they knew we wouldn't be able to put up a fight without it.
And so the founders, when they created our Constitution, it was one of the most important things to them.
They felt like our liberty is protected when we can protect ourselves.
And it's not only about hunting, you know, it's about protecting your liberty.
And, you know, people like to laugh at that, I guess, and say, Well, our arms don't match the army's, and you know, I guess that's true, but at the time of the founding, the arms, it's not like they had cannons on their farms, you know?
But over and over again you see examples of the British.
There was the Battle of Pell's Point in New York.
The British were, they had trouble because there was literally a colonist behind every bush with a rifle.
And they were just having trouble.
And it changed their strategy and it changed what they were doing.
And so, and it actually, they got Those people that were behind the bushes and stuff, they delayed the British so much that George Washington's army got away.
But you just, if you know your history and you know what happened in the revolution and you see these stories, what you see is a founding generation that knew the government cannot be the only one with arms.
And so that's why they created the Second Amendment.
All right, so another thing that people always talk about with elections is that now we're in a position where we know that certain states are basically always gonna be blue.
We're in one right now.
States are pretty much close to always being red.
You live in one in Texas, although that one's even getting a little iffy these days.
But that now we're putting so much pressure on these few swing states.
So Ohio, Pennsylvania, Florida, things like that.
Do you see a risk in that?
That then they do almost like an overcorrection Where they pretty much ignore, like if a Democrat's like, well, I've got California in the bag, forget California, and then I'm gonna spend all my time focusing on these three other states.
I'm not one who thinks that red states stay red and blue states stay blue.
I think that there are periods of time where there is a stretch and that might happen, but if you look at California, as recently as 1988, you guys voted for George H.W.
So this is a slight deviation from Electoral College specifically, but what do you think of sort of the state of people believing that the system itself works, that the election process works and is untampered with, and Russians, and hacking, and all of these things.
Right, just fraud in general.
Because it seems to me that no matter what happens in the next election, half the country is gonna claim that it was illegitimate, and we're seeing this even now.
I mean, just in the last couple weeks now that Hillary's sort of reappearing, She's basically calling Trump an illegitimate president because she did win the popular vote, as we talked about.
So it seems to me that, again, comes to the optics part of it, where it's like we're setting up something where half the country, no matter what, every four years is going to think that something illegal or immoral or awful has happened.
But what we can do is we can make it as hard as possible.
We can throw up as many hurdles as we possibly can.
And if you have a national popular vote system, then what you have is one centralized national database that or just voting system tabulation, whatever,
you just have to hack one thing.
And that means, by the way, also, that you have to be on defense
in every single precinct of the country.
So you can be in the bluest blue California precinct, and if votes are stolen there, you affect everybody.
Or the reddest red Texas precinct, that vote affects everybody.
Right now we have a situation where you don't have to be on defense absolutely everywhere.
You just have to be on defense in a few danger spots, which means you can focus all of your resources there,
and that's better.
Also, by the way, if you're talking about hacking, it's not just hacking one national tally.
You have to actually hack.
Multiple tallies around the country, because there are 51 different election systems.
50 plus DC election systems.
So you'd have to identify which one would be, you know, the most relevant.
Which state's going to be close?
Which state could swing this?
Can I hack it?
And you have to be able to do all, have to have all of these things working for you before you can actually steal an election.
Is it impossible?
Probably not.
I'm not going to claim that.
But you, again, you can make it as hard as possible and make it so that they have to get through as many hoops as possible before they can influence you.
I think one of the most important things that people don't.
appreciate or know about the Electoral College is how important it is to protect its state's
prerogative just to choose to run its own election, choose its own electors, and to
be in charge of itself. And maybe the best way to demonstrate that is to show what would happen on
the opposite side. If we did have one national tally, well, what that means is a national
election code, a national bureaucracy, a new presidential appointees to run this whole thing
that you've put in place.
And so now you've got potentially an incumbent president in charge of his own election because he's in charge of the federal machinery that will make it happen.
But how it is now, every state makes its own decisions.
Some states will make better decisions than others.
Again, it's like the Laboratories of Democracy kind of idea.
They'll see what works, what doesn't work, they'll change, but everybody will be in charge of themselves, and that by itself is a protection.
I just always say it makes presidential candidates reach out to a wide variety of voters.
Given how big and diverse our country is, it's important.
The founders thought that 13 states was too large and too diverse to have anything else.
Well, we're so much bigger right now.
And so people say it's outdated and I say the opposite.
It's more important now.
How can we expect such a diverse country to govern itself if we don't have?
This is the only person expected to represent all of us.
The only one.
There are senators that represent states, you know, or congressmen that represent districts.
Everybody else represents a smaller subset of people.
The president must elect the most liberal person, or represent the most liberal people in California and the most conservative people in, you know, Mississippi or something.
And it's not, it was more like a relay race where they ran the first leg and they passed the baton to the next generation.
And the next generation took it a little bit further.
And what I'm really proud of in America is that we are always going for more freedom.
Every generation has done more.
And so instead of criticizing the founding generation, I wish we would just look at them and say, thank you for running the first leg of that race so well.