There are several perfectly legal ways to steal a U.S. presidential election, according to election law expert Lawrence Lessig.
Lessig says the U.S.’s election and legal systems are vulnerable – and need immediate correction.
Today, On Point:How to steal an election.
Guests
Lawrence Lessig, Roy L. Furman professor of law and leadership at Harvard Law School. Co-author of the new book “How to Steal a Presidential Election.”
Jessica Marsden, director of impact programs for free and fair elections at Protect Democracy, a nonpartisan anti-authoritarianism group.
Also Featured
Bertrall Ross, Justice Thurgood Marshall distinguished professor of law and director of the Karsh Center for Law and Democracy at the University of Virginia School of Law.
Transcript
Part I
ANTHONY BROOKS: This hour, how to steal an election. It almost happened in 2020. And ever since former president Donald Trump has repeated the lie again and again that he won that election.
DONALD TRUMP: That was a rigged election. And it’s a shame that we had to go through it.
It’s very bad for our country. All over the world. They looked at it.
BROOKS: Trump and his team tried several strategies to overturn the election, including that infamous call in January of 2021 to Georgia Secretary of State Brad Raffensperger.
TRUMP: So look, all I want to do is this. I just want to find 11,780 votes, which is one more than we have, because we won the state.
BROOKS: Trump did not win the state of Georgia. Raffensperger, a Republican who had supported Trump, resisted Trump’s pressure. But four days later on January 6, 2021, rioters attacked the U.S. Capitol as lawmakers were voting to certify Joe Biden’s victory. Many of the attackers were motivated by the false claims that the election had been stolen.
Even the guardrails of democracy held, but now, as Trump runs for president again, election law expert Lawrence Lessig is worried that American democracy faces an even greater risk. He says Trump could try to steal the election again, and this time he could do it legally. Unless Congress or the courts take action.
Lessig is the Roy L. Furman professor of law and leadership at Harvard Law School. He is co-author, along with Matthew Seligman, of the book, “How to Steal a Presidential Election.” And he’s with us now. Professor Lessig, good to have you. Welcome to On Point.
LAWRENCE LESSIG: Thanks for having me, Anthony.
BROOKS: Yeah, it’s really great to have you.
A lot to think about. And before we talk about how the election could be stolen this time around, let’s go back to the riot at the Capitol. On January 6th, you say that as tragic as that day was, the guardrails of democracy held, and you say that, in fact, it was the dumbest thing Trump and his supporters could have done, and the other strategies that they were employing explain that.
LESSIG: In the lead up to that election Matt Seligman and I taught a course at Harvard called Wargaming 2020. And we had the students work through the strategies that would have been available to flip an otherwise determined, decided election. And of all the strategies, of course, we never imagined the idea of marching on the Capitol.
The marching on the Capitol strategy was the one certain to fail. Now, I’m honestly not convinced in Donald Trump’s mind there was the idea of coercing through force Congress to flip its results. I think that what he intended to do was to get Congress to send the results back to the states, or at least send them.
And had he done that, there would have been no precedent. There would have been no power to do that. But had he done that, the pressure could have built so that eventually Congress caved. But the idea that you were going to march people with violence to threaten the vice president, or members of Congress to flip their vote, was just crazy.
BROOKS: Just crazy. So this leads us to what you call as a result of workshopping these various scenarios, what you call one of the most alarming scenarios made possible by the Supreme Court itself. And this relates to a 2020 decision in a case that you were involved in. So explain what we’re talking about here.
LESSIG: Right. So in 2016 there were a number of presidential electors across the country who were troubled by the fact that Donald Trump had lost the popular vote but was going to win in the Electoral College. And these electors started trying to recruit Republican electors to join them to vote for somebody other than Donald Trump, so that the decision would go to the House and the House could decide whether the guy who lost the election should be president or somebody else. And when they did this in Colorado and in Washington, they were punished for voting contrary to how they were pledged.
So I volunteered to help them resolve the question, whether they could constitutionally be punished. Because the Constitution creates what’s called electors, seemed pretty intuitive that an elector is somebody who is free to decide how they’re going to vote. These people were trying to decide to vote in a way that would at least create the opportunity for a decision other than the election of Donald Trump, which of course, when people voted for Hillary Clinton in their states, that’s what they certainly wanted.
And so the question was whether the state could punish them. We took it to the Supreme Court and my primary hope was just to resolve it one way or the other when it wasn’t going to matter in a real election. And the Supreme Court basically decided 9 to 0 that the states have the power to control how electors vote a vote.
And as the Supreme Court said, the electors, quote, have no rights. So that creates what we’re most anxious, the scenario we’re most anxious about. Imagine the state of Wisconsin is extremely close in this next election.
BROOKS: Wait, can I just stop you. Because I want to be absolutely, I want to get to Wisconsin, but just to be clear.
So in your reading, the court held that state legislatures have the power essentially to direct electors how to cast their electoral votes. Electors do not have the power to say, I’m going to vote this way because I think that’s where the will of the people is.
LESSIG: Yeah. The court had been led to be very fearful of electors.
My friend Rick Hasen had written a paper that basically said a handful of electors could flip the result. Actually, in the history of the 24,000 votes that electors had given since the beginning of the Republic, there had been exactly one elector who ever flipped his vote to favor the other side.
And the reason he did it in 1796 was because he was trying to vote for the person who actually got more votes in his state. So I think electors were badly maligned in this whole process cause I think that we should have trusted them. But anyway, the court said the state legislatures have the power to tell them how to vote.
Okay. So where does that lead us? So again, imagine Wisconsin is extremely close. It still has an overwhelmingly Republican state legislature because of gerrymandering that’s been eliminated by the courts. But in 2024, they will still be in control on Election Day. Imagine it is extremely close and the Republicans start saying even though Joe Biden won the state by a slim majority, they don’t believe the results were valid.
They think that in fact Donald Trump won, there were lots of illegal votes or whatever else they want to say. So they create this kind of impression that in fact the wrong person won. And then they conceivably pass a resolution in the legislature, because there are some who believe, on the Supreme Court too, that the state legislature alone has the power to tell the electors what to do. Because the Constitution gives to the legislature the power to set the way in which electors are chosen.
So the state legislature tells the Biden electors, vote for Trump. And under a companion case to the one I argued in the Supreme Court, the Colorado electors’ case, the court upheld a procedure by which the electors who fail to vote in the way they are supposed to vote can be removed. In the scenario we’re talking about, the Biden electors, I’m sure, will say, no, I’m not going to vote for Trump, I’m going to vote for Joe Biden.
They would be removed under the procedure that we’re describing, and they would be replaced with a Trump elector. So here is a way that within the midst of the fog of war, given the rules of the way the court has articulated them, you could produce the opposite result.
Now, look, we don’t believe Elena Kagan when she wrote that opinion, intended that.
BROOKS: I was just going to ask you about that. Because she writes that, the decision ends with a promise here. We the people rule. That certainly doesn’t sound like an opinion that intended this particular outcome that you’re worried about.
LESSIG: Exactly right. But the opinion also says the electors have no rights. So the question is, Who’s going to have the power to say no to the state legislature? Ordinarily, that’s what we imagine rights are for. I have the right to the Massachusetts legislature can’t tell everybody they have to vote Republican or Democrat.
And if somebody, if they did, then somebody wanted to vote Republican, I’m assuming the legislature would tell them they have to vote Democrat in Massachusetts. If somebody wanted to vote Republican, that person would say, look, I have a right as an elector to vote however I want. The court said there’s no, they have no rights here.
But my point is, I’m sure that if we could get the case up to the court quickly enough, the court would find a way to say no, that’s not quite what we mean. You can’t do that. But the challenge is the timing in this period is so narrow. Now in the case recently argued, Trump v. Anderson, which was whether Trump could be kicked off of the Colorado ballot.
Justice Alito asked about this hypothetical, and we were hopeful that would lead to a footnote in that opinion, saying obviously you can’t change the vote after the election, but they didn’t do that. So we’re vulnerable now to this innovation. And if it’s made, then there’s a race to get to the court to get it corrected.
BROOKS: So I’m curious about this. So let’s stick with Wisconsin, Republican majority. But there’s a democratic governor. Doesn’t the governor get involved with having to sign a law that would basically say, the electors have to vote this way or that way? Or is the governor out of the picture?
There’s a theory, the independent state legislature doctrine, that says that the legislature can’t be bound, because the Constitution says it’s the legislature that sets the manner by which electors are chosen. I don’t agree with that theory. I think the governor should be involved. But my point is not about what the ultimate legal answer would be. Because again, my view is the ultimate legal answer is the Supreme Court would say, you can’t change the result after the election.
It’s just in the timing of this fight. Will there be enough time for the court to get involved and resolve it before the electors vote? Because another whole chapter of the problem that the next election will face is that Congress, through the Electoral Count Reform Act, has narrowed the time during which we can try to resolve the election.
So if it’s not resolved by the time the electors vote, it’s not clear a result could be changed after the electors’ vote.
BROOKS: So is there any legal argument that might prevent a legislature from taking the vote away from its people in this way. In other words, if you could get this to the court?
LESSIG: Yeah. So if I argued in the court, or when it’s argued in the court, I would say what the court should say is, “Congress has the power to say when electors are chosen, and you can’t choose electors after that.” What the electors case said is that states have the power to direct how electors vote, but states can’t change that after the day that the electors are to be selected either.
Now that’s out of whole cloth. There’s nothing in the text of anything that would say that, but that’s the safest way to say, “No. You can’t make this change.”
This article was originally published on WBUR.org.
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