Lawfare Archive: How to Steal a Presidential Election

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I'm Marissa Wong, internat law fair.

“With an episode from the law fair archive for April 4th,”

2026. On March 31st, President Trump signed an executive order reporting to heightened restrictions on male-invoting ballots and expand federal control over state-run elections. The order seems to be the newest step taken

in the Trump administration's ongoing effort to call into question the integrity of federal elections and crack down on election fraud. For today's archive, I chose an episode from March 4th, 2024, in which Lawrence Lesig joined Jack Goldsmith

to discuss how the legal architecture governing presidential elections leaves the door open for abuse. [MUSIC] I'm Jack Goldsmith, and this is the law fair podcast March 4th, 2024. As the 2024 presidential election approaches,

“a vital question is whether the legal architecture governing the election”

is well crafted to prevent corruption and abuse. In their new book, how to steal a presidential election. Lawrence Lesig and Matthew Seligman argue that, despite the electoral count reform act of 2022, serious abuse of the presidential election rules

remains a live possibility. I set down with Lesig to learn why. We discussed the continuing possibility of vice-presidential mischief, the complex role of faithful selectors, strategic behavior related to recounts,

and the threat of rogue governors. We also pondered whether any system of rules can regulate elections in the face of widespread bad faith by the actors involved. It's the law fair podcast March 4th, how to steal a presidential election. Larry Lesig, you and Matthew Seligman have written a book called,

"How to steal a presidential election."

Basically, it's a rogue map of various strategies for how,

one might steal the presidential election. So why would you write a book about the Gives a Road map about how to steal a presidential election? Because we want to steal a presidential election? No. Or do you want someone else to?

“Because I think we've learned from 2020.”

And indeed, what we learned in 2000 is that actual understanding of the complexity of this process is extremely thin. And we need to bulk up that understanding in advance, because in the fog of war of an actual election in actual decisions,

it's hard to figure out exactly what's right and what to do in response. So we wouldn't to identify, we went through seven different strategies, I guess. We wanted to identify which ones were plausible and to begin to build really the immunity inside the system

for resisting that, assuming that one would be deployed. But I can tell you, it's a hard question. OK, we're going to examine some of those scenarios and some of the weaknesses in the system in a second. You mentioned the 2000 election, and near the beginning of the book,

you have what, for me, was a stark reminder of how much things have changed in 24 years. So just remind us how that election was resolved and who did it and what that person's institutional role was. Yeah, so in 2000, I'll go one popular vote

by about a half a million votes nationally.

But he was behind in Florida, what ultimately was about, I think it was 537. And the Florida decision to go for George Bush, meant that George Bush won in the Electoral College. And that process was actually extremely

poorly executed on bus sides. Because, you know, there was an election and there were problems in the balloting and certain places and a problem in counting the ballots and certain places. And Gore strategy was to ask for recounts in certain counties.

And the Bush strategy was to call for a recount everywhere. And the whole fight ended up in the Supreme Court. When it seemed that the Florida Supreme Court had exceeded the restrictions of the law.

the Florida Supreme Court and told them

that they had to stop the recount that was then ongoing. Because, according to the court, Florida law wanted the election decided by safe harbor day, which is six days before the electors are supposed to vote. Now, you know, the Gore team actually induced that error by

themselves saying that they believed that safe harbor day was the date where everything had to be resolved. There's no reason for that. In fact, we talked in our book about 1960 and Hawaii when the recount went all the way to the end of the year.

But nonetheless, they decided to do that. And because of that, the recount was stopped and Al Gore lost by 437 votes and 537 votes. And astonishingly, accepted the Supreme Court's rule

that there was nothing more to be done.

And he said, for the good of the nation, he will, though he disagreed with the ruling, not fight it anymore.

“I think what's interesting about that case is it reveals”

that nobody really knew enough about the law at the time because the law didn't matter. We're going to do the right thing. Like, and the right thing was, let's figure out what the actual results are at Congress.

And as that was presented to them after the recount was stopped, those results favored George Bush, even though after the election, when people did the recounts, and accounted for every vote the way it should have been accounted for, the consensus is that Al Gore, one of one,

if they, in fact, had done a recount of full recount with the state,

and that it had been allowed to continue until January 6.

So there are two remarkable things about that. One, there was more potentially to litigate, I take it. Yes, much more. So it's hard for me to imagine, it seems harder to imagine today any party in that position wouldn't give in the norms

or as they've developed or weakened. You talked about doing the right thing, whatever that is, the norms that have weakened. It's hard to imagine either side, or it's more difficult to imagine either side,

not going to the map, do you agree with that? Absolutely.

“And the second thing is, I think you mentioned this in your book,”

it was Al Gore who presided over the counting of the votes, and according to the theory promulgated inside the Trump camp in 2020, he could have presumably counted the votes in a way with the right background and a way that gave him the election. Is that the right way to see it?

According to the John Eastman theory, yes. One thing that I didn't realize until we started doing work in the book is that actually there have been exceptions to vice presidents overseeing their own recount. So the own count on the electoral vote.

So he would come free, though he was vice president, did not oversee the count of the votes. He stepped aside. And the Constitution doesn't speak of the vice president. It speaks of the president to the Senate.

So that was certainly possible. But on the theory of John Eastman, that the vice president or the president of the Senate had a constitutional power to decide which votes shall be counted. Not only could he decide which slate he would count,

but his decision was vested in him. It couldn't be overturned by Congress. As opposed to the way, most think of the president of the Senate, which is just a presiding officer who's rulings could be overturned if the body decides to overturn them.

The theory that Eastman pushed was the constitutional officer has a right to make that decision. And just like the president's decision to pardon somebody, he couldn't be overturned by Congress. So to the vice president's decision or the president of the Senate's decision

to count one slate from Pennsylvania rather than another, cannot be overturned by Congress. OK, let's move to the book. You build the various mechanisms for how one might steal a presidential election around a central scenario or hypothetical.

Can you just go over that real quickly and we'll play off of it when we deal with some of these questions?

“Well, I think the core idea behind the scenario”

is it's got to be a close election for any of this to matter. And in that sense, 2020 was not a close election. 2000 was a close election, but it has to be a close election because there has to be a plausible basis for believing that there's a way that your engagement would flip the results.

And so if it's a close election, and we imagine, you know, we're taking in case like North Carolina, having a governor who is particularly motivated to support one side of the other, then the mechanisms that the now reformed electoral contact, the Electoral Count Reform Act,

for flipping the results from the legitimate winner to, by which we just mean the one who got the most votes in any state and therefore wasn't titled to the Electoral votes of that state to the effective winner who succeeds in getting the majority either in the Electoral College or sending it to the house

and therefore winning in the house because of the vote in the house. But as I'm going to put names to these potential winners, I mean, just for purposes of argument, and need to come out this way as you point out in your book.

“But I think the hypothetical is that someone like Trump wins the popular vote,”

but someone like Biden wins the Electoral Count vote. And but by a narrow margin and it comes down to a margin that one state can change in the Electoral Count. Yes. And we have a governor in that state who's committed to the Trump figure,

basically is committed to thinks that the popular vote in support of Biden,

the Biden figure in the state that gave the figure the Electoral Boats of the state. The claim by the rogue governor is that the vote was faked and that that governor will do whatever it takes to fix the problem. I e to swing the Electoral Boats to the Trump figure so that the Trump figure wins a majority of Electoral Boats. Is that right? That's right. Okay. All right. So let's go through some of these scenarios. First, just to start off,

let's just talk about what you call the vice presidential superpower. That this was the the John Eastman Trump gambit or attempted gambit in 2016. You don't seem as worried about that as other scenarios. Do you think that problem is fixed

“or is it still of concern? I think it's fixed. Both because the argument itself has been”

rejected, you know, even by John Eastman as as we describe in the book, we interview John Eastman after January 6 and he acknowledged that there's no basis for the theory anymore. And I also think that the Electoral Council Reform Act has gone a long way to make it clear that the president of the Senate's role is merely ministerial. It doesn't have any constitutional judgment. Now, of course, if they did have, if that president said it did have a constitutional power,

then no statute could stop it. But I just think it's weakened. It's so substantially.

And finally, you know, obviously, if you're thinking that it's the MAGA story that would prevail here

in this next election, the vice president's not going to be MAGA. So, you know, it's not going to be something that's real in 2025. But, you know, we want to make sure that this theory was dead in the sense that nobody really continued to believe that there was such a power. And indeed,

“I think what's so interesting about the evolution of this theory is that it's politically made up”

not in 2020, but actually in 1876 because if you look back to when this theory begins to emerge, Matt Saligman's work here has been really great demonstrating this. It emerges in that fateful election when Tilden had won the popular vote, the Democrat, and Hayes was trying to defeat him in the electoral college. And the Republicans controlled the Senate and what the Republican said was that the vice president has the power to pick the slate of electors he's

going to count. So, that's where the theory first gets born, really. And, you know, a bunch of

academics have echoed that theory sense. But that theory doesn't come from the founding. There's nothing in the founding that really supports it. And it makes no sense either of the words of the constitution or the structure it's trying to set up. And so, we thought it's important to make clear that it has no basis and it should just be forgotten in constitutional theory. Okay, let's talk about the problem of faithless electors or faithful electors, both. So, you

are the world's expert on this, you are you in the big case about faithful electors in the Supreme Court, you lost and you discussed your loss in the book. Let's begin by talking about what was the, how you understand the original understanding of how electors are supposed to work and whether they could be and/or must be had the authority to vote how they wanted. Yeah, so the constitution, the original constitution speaks about, you know, two kinds of

electors. One is the elector in Article 1 and that means the elector of members of Congress, remember the states chose the legislatures chose the senators, but members of Congress were chosen

of House. So, those electors, we think of as voters and so one question you might ask is like

“do those electors have any rights? So, could the legislator of Massachusetts say electors voting”

for Congress must vote for the Democrat and if they don't they will be fined $500. And all of us have a clear intuition that the legislator has no such power. That what it means to be an elector is to be someone who has a right to choose and the right to choose, of course, is going to be motivated by who you are and who you were picked by, but that right to choose is pretty clear at least in the context of those electors.

And so when in 2016 a bunch of electors who noted that Donald Trump had not won a popular vote, he was only going to win in the Electoral College decided they would try to recruit a bunch of Republican electors to join them and to vote for some other Republican so that it would throw the election into the House of Representatives and the House of Representatives could decide

“should the man who did not win the popular vote be the president, where should some other”

Republican be the president? Nobody thought Clinton would be chosen by the House of Representatives, but the point is let's make it a process for them to decide. They were attacked or in the case of Washington, they were fined and in the case of Colorado, they were removed as electors. And explain why they were removed and fined. Well, because in both of those states, but not every state, but in both of those states,

the law said the Elector had to vote for the winner of the popular vote. And so in Washington, that was Hillary Clinton, so those electors were directed to vote for Hillary Clinton. And in Colorado, it said, you know, the vote for the winner and Hillary Clinton won in Colorado too, so the electors had to vote for Hillary Clinton, so these electors were not

“free to vote for a Republican, even though their objective was to make sure that the person”

Hillary Clinton ran against would not actually become president. And so when they were fined and one case removed, I volunteered to help them to clarify this question, so because I thought it

was really critical that we resolved this before we in the middle of actual election, so we challenged

the fin and we challenged the removal and took it to the Supreme Court. Now, we got to the Supreme Court in 2020, the argument was in May of 2020, so we're in the middle of that pandemic. It was one of the first, first week of remote arguments. And so I argued from my office at Harvard by phone, it wasn't even by Zoom, it was just on the telephone. And what was striking at the time was there was this great anxiety about electors that had been ginned up by, you know, a bunch

of academics, Rikhazen talked about a handful of electors flipping the results of an election, and campaign legal center was all anxious that, you know, electors could be pried and there was no prosecution for, there was no statute that would prosecute them for their bribery. So electors

were, you know, basically being slandered. Our view was, this was really unfair. You know,

there are some 23,500 and seven times that electors' votes have been tasked in our history. There were 90 of them in that history where the elector voted for somebody other than who they were expected to vote for. 63 of those 90 were electors who were pledged to Horace Greely, but Horace Greely died before the elector vote happened. So they voted for somebody else. So there were 27 who voted for somebody other than the candidate they were chosen for who was still alive when they

cast their vote. And all of them except one, you know, was for some symbolic purpose. It was not going to affect the result, it was not for the other side, it was just to make some statements.

The one time in our history, when a lecture voted for the other side, was the first time in our

history, the then an elector voted for the other side. Sam Miles in 1796 was supposed to be an Adam's elector, but he came from Pennsylvania and turned out that Jefferson won the counties he was not expected to win. And so Sam Miles decided to vote for Jefferson. And so this all happens before the 12th Amendment, everybody knows that this happens. A bunch of people are extremely angry that this happens. People talk about including in the 12th Amendment, which of course

changed the rules for how the electoral votes are counted. They talked about dealing with this quote, "problem." But the authors of the 12th Amendment decided not to deal with the prop, not to deal with the issue. Presumption was that electors could be relied on this one time

framing perspective, electors were electors and that means they got to cast their ballot however

they wanted. And you know, just make sure you pick the right elector if you were worried about how they're going to cast their ballot. But of course, 90, the Supreme Court decided the other way. And the Supreme Court said that the state legislatures could direct the electors to vote how they wanted. Now, at the time they made that decision, I still think it was wrong as a matter of constitutional interpretation. I also thought it was just wrong as a matter of policy. I kind of

thought with the Hamilton electors, the electors in 2016, we're doing was kind of elegantly creative. They were addressing the problem of an inverted election and giving Congress the chance to address it more directly. But I actually think in our book, we recommend that these statutes that bind electors need to be adopted now by every state. Now, because we worry that electors could be

bride, never in the history of electors, has there ever been an allegation of an elector being bride. But because

we're actually worried about after January 6, then being coerced or threatened. And if coerced or threatened and there's no statute in the state that says they have to vote as they were selected to vote, then, you know, our fear is that you could imagine that coercion being effective. So we think that we recommend that states adopt laws that bind their electors, but there's one

“really important case which they need to address, which they don't address right now. And that's”

the horoscereally case because, again, horoscereally 1872 dies after the election, but before the electoral college votes. And if the states bind the electors to vote for the person they were

elected to vote, even though he died, then those votes would be lost. And so you could imagine

the election flipping, because, you know, to the other party, because the votes were lost, because the electors had to vote as they originally pledged to vote. And so we think that there needs to be, you know, every state needs to adopt binding statutes now, but those binding statutes have to make the exception if candidate dies, then the electors are free to vote as they wish, at least not to create the incentive for somebody to create the condition where candidate dies,

because it's the only moment when you could imagine the death of the president flipping the result to the other party. And that clearly could happen here. So let me just make the case on the constitutional case, a while this Supreme Court did what it did. And, you know,

“it's assumed that you're right on the original understanding. I think they were worried about”

coercion, even then, I think they were worried about that past is not prologue for the very reasons you talk about in your book, and these norms have been breaking down, there's going to be a lot of pressure on these electors. And it's not obvious to me, I don't have the same view of the Hamilton electors in 2016 as you do. I mean, why would it have been a good idea for a handful of people to contrary to the directions of the state legislature, to create a situation where someone other

than Donald Trump won the election. Now, one obvious answer is Donald Trump's a terrible person. We don't want him as president, but the consequences of that for the democracy would have been astounding, don't you think, astoundingly bad? Well, I do agree. I'm glad they didn't succeed in the sense that I do fear what would have happened had they succeeded or at least had they succeeded and Congress not ratified Donald Trump as the president. But the point, the reason why I think

it misses the point. I mean, what the court did misses the point is that the question is like, okay, who has the discretion that? You know, the Supreme Court didn't say that electors are bound

“to do what the people did. The Supreme Court didn't say you have to vote the way the people voted.”

The Supreme Court said that state legislature can pass a law that tells you how you must vote. And, you know, the court expressly said, you know, in the Traffalo opinion, the court said, the electors' constitutional claim has neither Texan or history on its side. That's wrong for reasons we go into, but put it aside. Article two on the 12th Amendment give the state's broad power over electors and give electors themselves no rights. Okay, so the biggest that

most dangerous hypothetical is one where you imagine state legislature directing the electors how they must vote in a way that's not consistent with how the people voted. So, you know, just a Toledo in the Trump versus Colorado case raised this hypothetical. What happens if after the election day, you know, Biden electors have been selected. And the state legislature says, we don't think that election was fair. And so we're going to tell those Biden electors they have

to vote for for Donald Trump. Under Chafalo, there's nothing in the opinion that says that the

that this creates is the opportunity for the legislature to be the political actor. And this is

astonishing because this was exactly what the framers were anxious to avoid. They were anxious to avoid the world where it's the state legislature who, you know, after an election gets to play a kind of game like this, which is why they force them to choose electors on a particular day. They force electors to vote on a particular day. They tried to avoid this kind of gamesmanship. But now we've created that opportunity for that gamesmanship. And the court, you know,

I don't think the court intended that. So the court would have to have a chance to take it back and say, well, no, no, no, they can control the elections of the electors, but only so long as they're forcing the electors to do what the people say. And then the question is, where's that come from? You know, there's nothing in the constitution that suggests that. So it's not to say that there's zero chance that the electors cause trouble. But there's much less chance that the electors cause trouble,

“then that the state legislatures cause trouble in this sense. And I think that's why the”

framers created this body called electors that would come into being for one purpose,

make the decision and go away. And never in our history, have we seen them do anything other than

what they should do? They are the most honorable of the officers in our system. Historically, and I don't know why anybody was suspicious. I'm going for it. So two things about that. I agree about the good faith of electors over the course of American history. But again, as you document in your book, the norms have changed a lot and the pressures have changed a lot. So that I think has to be considered here. We consider the considering the policy.

And I know you don't disagree with that. But why doesn't, we've talked about impassing the elector account reform act. And this was the law a couple of years ago that updated the elector account act fixed a lot of the loopholes and ambiguities didn't do a perfect job. And in your book,

“I think it's fair to say that you think it's a hugely important law but didn't do enough.”

But why didn't it fix that problem that you just mentioned at the end? Because it does say that

the electors shall be appointed in each state on election day in accordance with the laws of the state enacted prior to election day. Do you not think that statute, that provision in Echera prohibits the gambit you just discussed? No, it doesn't. Okay, why not explain why not explain why not? The question is not who the electors are. The question is how can they vote? So you're absolutely right. People have often talked about, you know, what if the state

legislator after the election just picks another slate of electors? And indeed in 2000, Johnny Smith would have been famous because he was in Florida trying to get the Florida legislature just to see to new slate of electors and just to say here are the electors that will represent Florida. They are the Republican electors. That plainly can't happen under our constitution because the constitution says Congress gets to decide when the electors are chosen and they've chosen

that day to be election day. So on election day, we choose the electors. But Shafalo has opened up the question, how can the electors be directed on their vote? So after the electors have been chosen, let's say that they are Biden electors. They're told they must vote for Trump. And the companion case to Chafalo is Baca versus Colorado. In Baca, the elector was removed because he failed to vote in the way he was directed. So the legislature passes questions whether it's a law

or resolution, depending on your theory of the independent state legislator's doctrine. But they

“pass something that says you must vote for Donald Trump, let's say. And if you don't vote for Donald”

Trump, you shall be removed and replaced with somebody who will vote for Donald Trump. So the mechanism is there. It's plainly not what Justice Cagan intended when she wrote an opinion which ended by saying, here we the people rule. But the point is they didn't erect the binding power of the people, what they erected was the binding power of the state legislature. And that power can be abused and the anxiety we're addressing is in the fog of war in the middle of a very close election,

whereas allegations of fraud or whatever, you could imagine a state legislator standing up and saying, yeah, we think this was not rightly decided. And so these electors represent the state of you know, Wisconsin or whatever, you shall vote according to, you shall vote according to our instructions. Wisconsin's a very important case here because obviously the the jury-mandered legislature will still be around. And that legislature can just say you have to vote in the way

that we direct you and we direct you to vote for Donald Trump regardless of whatever you think the results in the state are. But just one last time Larry, it seems at least plausible that the provision that says the electors shall be appointed in accordance with the laws of the

and not how they vote. Yeah, but is it possible that shall be appointed in accordance with the laws

“that the appointment includes the voting rules? It seems to be that's not what tell me why that's”

not a plausible argument. Because this is the point the Supreme Court made in deciding that the state legislature has the power to direct how electors vote. Only the power Congress has is the power to say when the electors are selected. It doesn't have the power to say how the electors can vote. The only entity that has that power according to the Supreme Court is the state legislature. That's the historical power that state legislature has the court said wrongly, but

has exercise? Or the court didn't say that they had the constitutional power to do that after the election. Did they? They didn't address it. That's right. They didn't address it. Okay, but the point is you're right, but but here again is what they said. The article two and the 12th Amendment gives states broad power over electors and give electors themselves no rights. Okay, so this is electors versus the states. And what it's saying is states have all the power and electors have no

power. You're saying Congress somehow gets in the middle here, but there's no constitutional authority

“for Congress being in the middle of the question of how electors vote. The only thing Congress”

is entitled to do is to count the votes, which is a very important question for 2025, like what what that entails, but the point is they by counting the votes and by saying when electors are selected, they certainly are not in the equation of Chafalo of deciding whether electors can be directed after election. But I'm going to go one more round on this and then give you the last word, but Congress does have the authority to determine the timing of the election. And the theory of

the provision I've been reading was that Congress could tell the states that after election day

they don't have any authority to change the rules basically. That was the the broad purpose of

that provision. And what it was mainly geared towards was making sure that the legislature didn't after election day send in corruptly a second slate of electors. But it strikes me as at least plausible to hook. And I'm not saying that necessarily would work, but it strikes me as a plausible hook that the statutory provision after this Supreme Court decision that didn't address the timing question could be invoked to stop a gambit like that. I'll give you the last word on that.

So if you think of appointment, it concludes the Congress's power over the appointment of the electors entails a power to control the state's ability to say how the electors would vote. Okay, and I actually think that would be an elegant way for the court to kind of say, this is what we think Congress's power is. Without the court saying, we actually think there's a democratic principle that constrains the state legislatures. That's a harder opinion for them to make. But my point

is, yes, they were trying to say electors couldn't be selected after that day. But they presumed the electors had a constitutional discretion that they would, you know, exercise as

they have 99% of the time in favor of how they were appointed. But they were never imagining

that there was a discretion that it could be regulated by either Congress or the state legislatures. So there's nothing in that intent to say that the states were stopped in their ability to control how the electors can vote. All that they were stopped with is the ability to appoint

“as Florida considered in 2000 electors after that election day. But you know, I think that might”

be a way out of the problem if in fact. But by the way, this is maybe a good time for you to remind the listeners or to tell the ones who don't know that there's no need for the state to hold elections in deciding which electors to send. Could you explain that point? Yeah, absolutely. I mean, not the framing. Many states just picked the state legislator, just picked the slate of electors and we say in our book that indeed chapter eight, that's in fact what they could do today.

They could say we're just going to pick the slate of electors for the Republicans or for the Democrats. And I think the deeper point, which, you know, people, you say that in people are like, that's kind of crazy that you would, you would completely decimate the power of an election.

The critical point is to recognize that in fact, that's the case right now in the vast majority,

indeed 44 states because in this election there are going to be six swing states. And for the rest of the country, the states are basically decided in advance. And that's decided because state law says the winner of the popular vote gets all of the electoral votes. So if you win 50 percent plus one vote, you get all the electoral votes or in 1992, Clinton won 37 percent of the vote

Ross Perro did really well. And that's because they've chosen to allocate electors to the winner.

“It's the winner take all system. But what the winner take all system means is that in 44 of”

the states or, you know, if you count North Carolina and New Hampshire as basically in play,

so 42 of the states, all but two of them allocate in a winner take all way, that means that the election doesn't matter. Like no matter what happens in Massachusetts, the Democrat is going to win. What no matter what happens in Kentucky, the Republicans are going to win. There's no reason for us to have an election in Massachusetts or in Kentucky given the legislature has chosen to allocate the electors. And so we already have a system where state legislatures effectively make

the election irrelevant. And this would be one step further, you know, the state of what was constant. The legislature says, well, there's too many reasons to be skeptical about how the election's going to happen. There's a lot of allegations of fraud in this election.

As long as they before election day pass a law that says, the electors will be the Republican

electors, they can do that. And we don't think there's anything in the basis of the constitution for that law to be struck down. Are you agree with you on the last point? Don't you think, I mean, isn't that going to be very hard to do even given the current breakdown in democratic norms? I mean, that strikes me as among all of your scenarios, that one strikes me as the least plausible. Am I wrong about that? Yeah, I agree. And we say that. It's hard for the legislature,

ex ante to say we're in advance to say, we don't trust you. And so therefore we're going to cancel the election. Even though, again, they have effectively done that in all but two states because they have winner take all in all but two states and the only six maybe eight swing swing elections. But

“that's why the changing how the elector votes turns out to be an easier strategy to imagine.”

Because again, imagine the hypothetical. You have an election and it's very, very close.

There's lots of plausible rules about or plausible evidence about fraud or illegal voting. And then the legislature says, look, you all agree with us that this election is not as it's been declared. You agree that it's the wrong result. So therefore we're going to tell the electors to vote in a proper way. Where here's this scenario, even Democrats would agree with, I think. You know, so if anybody's watching succession and you haven't gotten to the,

I think it's the penultimate or maybe one before that episode of the last season. I'm sorry, this is spoiler alert, but there's a great scenario where the election comes down to Wisconsin. And there's a fire in the Milwaukee polling place. So the Milwaukee ballots are lost. And without the Milwaukee, presumptively democratic ballots, the state is called for the Republican. And you can imagine in that circumstance that the state would say, look, it's absolutely clear

that though the electors have been selected are the Republican electors because, you know, we count of the votes and they're the winner and they're declared the winner by the, by the, the electoral commission. It's wrong for them to vote for the Republican because we know that the Milwaukee ballots would have been for the Democrat and would have been more than enough to mean the Democrat would win. So therefore we direct the Republican electors to vote for the Democrat.

You know, that, that dynamic, you know, is, is plausible because of the conditions around the election. And, and all I'm saying is the same thing could happen the other way around if it's close enough. And the, you know, again, the fog of war leads people to say, geez, I don't really have confidence in this result. And let's not forget the number of people today who believe the 2020 election was stolen is the same as the number who believed with stolen in 2021. So the world is such that

people can be led to believe this quite reliably. And so that makes it not implausible that this could play out in that way. Okay, let's talk about a different scenario. You, you mentioned earlier what happened in Hawaii in 1960 and you build a modern day scenario around that. Tell us what happened. This is another case where the vice president who lost the election had a role. Tell us again,

“remind us what happened there. And, and what is this scenario today based on that?”

Yeah. So, um, this is a scenario, the hypothetical, which I think both sides should have a reason to fix and, and we're actually like pushing to try to get them to fix this. But in 1960, Hawaii's initial result favored Nixon and the governor certified Nixon. But the Democrats noticed a tabulation error, um, and so they asked for a recount. But the recount couldn't be completed until the end of December after the electors were to have voted. So the Democratic lawyer, the lawyer

for the Democratic Party, told the electors for John Kennedy to meet on electors day in the palace

met and they voted for John Kennedy. They were the first quote fake electors in the modern

“parlance of that term. And then when the recount was finished, Kennedy had won. And so the governor”

certified a slate for Kennedy. And so when the papers were received, Nixon, who was the vice president, presiding over the count, said that he had a slate for himself. And he had a certification for himself. And he had a certification for Kennedy. And he said without trying to create and press it, and he was going to count the Kennedy results. Now, it turns out what he did actually was consistent with the electoral count act. Because it would have permitted him to make that call. The electoral that

could have been objected to, and nobody objected to it. It didn't matter. And so therefore it was

possible for him to make that call and make that determination. And so therefore the Kennedy votes were

counted in the final tally. Under the electoral count reform act, Kennedy's votes would be discarded. And the reason for that is the electoral count reform act says, the governor must certify six days

“before the electors are to vote. And there's no other time when the governor is to certify.”

And Congress can object to the votes. Only if, number one, the governor wrongly certified, but when the governor certified, he certified, for Nixon, he rightly certified according to the numbers. Or that the votes were, quote, not regularly given. And by regularly given, but they mean by that, is the votes of the electors were somehow coerced or bribed or something. But, you know, if the electors votes for who he's supposed to vote for, or she's supposed to vote for, the vote is regularly

given. And so the Nixon electors voted for Nixon, their votes were regularly given. So the point is, under the Electoral Count Reform Act, there is no basis for considering or reversing the initial certification on the basis of a later recount, which creates an obviously dangerous strategic incentive for the party that knows that the recounts are going to go against them to slow the process down enough so that by the time the recount is resolved, the electors have already voted and their vote

can't be reversed under the Electoral Count Reform Act. Now again, if this were normal times, I wouldn't be worried about this because they would do it Nixon did, like just do the right thing and nobody's going to object and therefore the right winner will be there. But as you pointed out, you know, if this is the state that decides the results and the Electoral Count Reform Act says, you can't count the Kennedy electors because that certification came to late. Then it's not clear,

you're going to have that motivation in Congress to reverse that and you could easily see those votes being discarded and the result going the other way. So am I right that this problem arises because the Electoral Count Reform Act shortened the time in which the state had to do recounts and get their votes in order? That ended, it bought into the whole vilification of the so-called fake electors. You know, there's no reason why we could either like follow Rubio and say that we should

have the electors cast their ballots at the end of the year, you know, December 31st, let them count their ballots. Or imagine the Electoral Count Act having a provision that says electors can meet and cast their ballots and then mark their ballots as contingent. And then send the contingent ballots in and wait for the recount process or the litigation process to complete. And once the litigation process is completed, then whatever the result is according to the litigation process,

then that's the slate that gets counted. There's simple ways to solve this problem, but the Electoral Count Reform Act exacerbates the problem because they pushed the significant date back to six days before the electors are supposed to vote. Imagineing

we're never going to have a close election that needs a recount that goes past that date,

“which obviously, I don't think that was the reason. I think they pushed it back. I don't”

remember exactly. I thought that they pushed it back because there's a limited amount of time between the election and when the Electoral Count takes place. And I thought they pushed it back because they thought they needed more time on the Congress end. Is that not why? And isn't that a zero-sum game? And if you if you lengthen the the time for states, you're shortening the time at the national level? You are, but I just don't get what's so complicated at the national

level. I mean, you've got papers in 49 states, let's say. That says here's who the winner was. You know, that's not hard to tabulate. And then in the one state like in the Hawaii case, where you've got a recount, you're waiting to see what the recount is. You know, it's a modern technology. You could know what the result of that is in an nanosecond, or you know, two seconds,

on January 6 to determine who you should be counting the votes from. And indeed, what's weird

about the Electoral Count Reform Act is that even though it does everything it can to block the possibility of their being multiple slates of electors, it still says that the president and the Senate must open the certificates and any papers put purporting to be certificates of Electoral votes. So there's still is an assumption that you're going to be considering alternative slates, if in fact, alternative slates are sent. But the point is the rules now make the ability to

object the presumptive slate that's being counted. Hang on, saying it was improperly certified at the time it was certified, or that the votes weren't properly given, meaning a Hawaii case

is excluded and Kennedy's votes were the equivalent today would be. So let me just make one counter

argument under the statute. The statute says that a ground for Congress of directing is that the electors of the states were not lawfully certified under a certificate of asthma payment of appointment of electors according to an earlier section. Why wouldn't that be a ground for

“setting aside the original slate and looking at and accepting the second slate?”

Well, look, when the Nixon slate was certified, they were lawfully certified, right? Now you could say, so again, this is like your elegant move in the context of changing how the electors vote. You could say, lawfully certified conceives of an ongoing certification process. So if later they say, oops, it turns out we miss count, we miss added the votes, which is what happened in Hawaii, then we're going to have a new certification and somehow that's retroactive

to the original certification. You know, conceivably that would be a way to argue it, but the point is when Nixon was certified, he was lawfully certified. And when the Nixon electors cast their ballots, they did so regularly. He was a regular, the votes were regularly given. And the whole objective, as I understand it, you were closer to the actual process, but the objective was to kind of stop

“this whole idea of alternative slates of electors meeting and voting. I think that was a fundamental”

mistake. I don't see any harm and alternative slates of electors meeting and voting. As long as the process for determining whether their votes will be counted is contingent, on them being determined to be the winners in their state under state law as state law exists. So if it's a recount process or, you know, in Wisconsin or in other states, there were challenges to the process for counting absentee ballots. And those two should be resolved and resolved fairly.

And if there was all fairly and they flipped the result, one side to the other, then those flipped results should be reflected in the final count on January 6. But the electoral count reform act makes that harder without some very clever interpretation and good faith on the other side to allow that clever interpretation to go forward. So I think there have been efforts in the states themselves to try to organize themselves to be able to do recounts and other things

like that more quickly and in accordance with the echrotime line. Does that help at all or is that just

“useless? No, I think it helps. And you could certainly make it harder. But the point is to see”

that incentive there is to slow the process down if you believe that the recount process is going to go against you. Of course. And you know, that could be either side. I'm not saying that's a Trump incentive. That's either side incentive. Which is why I think the Hawaii problem is actually the easiest one to imagine Congress addressing. Because neither side should have any incentive here. What is the right fix for the Hawaii problem? It's either to say that we're going to push

as Rubio would say the final recount, the count of the electors until very much later. Or to imagine a new provision that just allows contingent elector vote that says go ahead and vote and just mark your ballots contingent and we will count the ones that's ultimately determined to be the winner of the popular vote. Either of those two would reduce the problem created by forcing the decision six days before the electors are done. So there are many other scenarios. We

want to have time to go through them. Let's just talk about in general terms. I think a couple of the scenarios turn on the fact that Congress might not act in good faith that it's not necessarily that's not bound by these laws and that it might do rogue things. Can you talk about that possibility?

Well, yeah, I mean, you know, the reality is we know that Congress is not actually constrained

by the Electoral Count Act or the Electoral Count Reform Act because there's no effective way to force them to explain that. I mean, for example, in 2020, there are 147 members of Congress

were the easiest case imagined because number one, there was one slate of electors sent.

Number two, that slate of electors were sent in a context where the state had a process for adjudicating questions about the results and that process had favored Joe Biden. And number three, that decision by the state legislature was done more than six days before electors were to vote. So it was within the safe harbor provision. Those three facts together meant under the Electoral Count Act that, quote, "No votes shall be rejected unless they were not regularly given."

And again, votes were talking about as electoral votes. Right. Well, they were plainly given because they voted for Biden and they were supposed to vote for Biden. So the Electoral Count Act said, "No votes shall be rejected." Yet you had 147 members of Congress standing there saying, "We should reject these votes." And the point is that there's no basis in law for saying those votes should be rejected because the Electoral Count Act said they shall not be rejected,

given there was a process for adjudicating them and they were adjudicated. And yet, you know, nobody was embarrassed by the fact that they were calling for them to be rejected. So the anxiety here is given, maybe it was ignorance that led to that happening, although, you know, the leader of the charge was a former law professor. So I'm not sure it was actually ignorance that produced that result. But certainly, reality that people didn't recognize that the law

constrained them in a way that they were not behaving. And there was no consequence for them behaving in a way contrary to the law. And that reality, again, reinforces the anxiety that we could

get into the middle of this fight. And basically, it's going to be who has the power through the

procedure to force the result that they want, given that the substance of what the law says is not actually going to be much of a constraint. And that could cut in any number of directions.

“Absolutely. I mean, here is the clearest example of that, I think, is to worry about,”

you know, the question that, you know, law professor is brief in the Colorado case raised, which is on January 6th, will Democrats say that not going to vote to ratify the votes for Donald Trump because he's an insurrectionist. Now, you know, the only basis for that is saying that his votes were not regularly given. We're not regularly given because he's an insurrectionist. Therefore, not qualified. I think that's a plain misreading of what the law allows. And so I think it would be

completely wrong for Democrats to say they are going to exclude him because he's an insurrectionist. It's not their job. And the only historical precedent, again, is Horace Greely, where even though 63 of the 66 votes, voted for somebody else, three of them voted for Horace Greely, the Senate said they had to be counted. The House by one vote said they won't be counted. And that was at a time one, one House vetoing meant that they wouldn't be counted. But that's hardly a precedent for saying

that Congress has the right to make that judgment under a statute that says they have to count the

“votes unless they were not regularly given. So I think that game easily could be played by Democrats.”

And I think it would be wrong for them to play that game. So near the end of your book, I think in the penultimate chapter, you have the following sentences. I think this is at the beginning of the chapter where you propose your reforms. No rule change will cure a lack of good faith. If good faith disappears, it is not clear that any system of rules can regulate the process perfectly. So that is both an obvious and a deep point, I think. And it kind of infects

the whole project here, not just your book, but the electro count reform act. At some point, and indeed, many of your scenarios are promised on bad faith by an actor. And the electro count reform act with an effort to check various forms of bad faith, sometimes on clarity, but bad faith. But I agree with your point completely. You can't at some point legal rules run out. And if enough actors in the system are acting in bad faith, we're kind of

sunk. So just reflect on that and what it means for presidential elections.

“Yeah. I mean, bad faith cannot be legislative against. And I think that we need to be realistic.”

First of all, bad faith is not going to operate if the results are pretty clear. And I think 2020

was gives confidence that when there's also pretty clear, even partisan actors will do the right thing. You know, people talk about Raphne Burger and camp in Georgia. I also think Mitch McConnell is a pretty important example here. You know, nobody has more partisan than Mitch McConnell, but Mitch McConnell saw what the right answer was and worked firmly to push the right answer because he had a belief in what the system required. So in clear cases, I'm not worried.

you could easily have somebody who believes that one result is the right result,

“but recognizes that they have the power that they could just vote the other way and produce”

the wrong result. And indeed, when the Electrical Count Act was initially adopted,

one member of Congress like gave up incredible speech, basically acknowledging that politicians

can't be trusted to do the right thing when it's close enough for them to do the wrong thing. And that's certainly true today. And as we started, your comments about 2000 make us realize that it wasn't true even just 20 years ago because the reason why nobody knew what the Electrical Count Act required is that they all knew, eventually they would work out the right thing in Congress.

“And I think we need to understand what the Electrical Count Reform Act requires and all the risks to it,”

because we can't count on that good faith in 2025. That is a good if not depressing place to end. Larry Lesson, thank you very much. Thanks for having me, Jack. The Law Fair Podcast is produced in cooperation with the Brookings Institution. You can get ad free

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