Lawfare Archive: How to Steal a Presidential Election

Summary

The Lawfare Podcast: How to Steal a Presidential Election

Originally aired March 4, 2024 — Lawfare Podcast Archive, April 4, 2026
Host: Jack Goldsmith
Guest: Lawrence Lessig

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Episode Overview

This episode delves deeply into the vulnerabilities within the U.S. presidential election system, as highlighted in Lawrence Lessig and Matthew Seligman’s book, How to Steal a Presidential Election. In conversation with Jack Goldsmith, Lessig explores the legal structures governing presidential elections, the ways these can be abused despite reforms like the Electoral Count Reform Act (ECRA) of 2022, and why understanding these loopholes is critical to safeguarding American democracy. The discussion revolves around historical examples, hypothetical scenarios, and the persistent challenges of bad faith actors in the electoral process.

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Key Discussion Points & Insights

Why Write a “Roadmap” to Stealing the Election?

• Purpose: Lessig and Seligman’s intention was not to encourage malfeasance, but to “bulk up” public and institutional understanding of the election process and its weak spots before the “fog of war” sets in during a real crisis.
• Notable Quote:

  “Actual understanding of the complexity of this process is extremely thin, and we need to bulk up that understanding in advance.”
  — Lawrence Lessig [03:16]

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The Precedent: 2000 Election as a Normative Turning Point

• What Happened: Al Gore conceded following the Supreme Court’s decision even though a full recount might have changed the result. Gore’s restraint is contrasted with the current era’s weakened democratic norms.
• Key Point: Then, law mattered less because democratic actors intended to “do the right thing,” a standard Lessig and Goldsmith agree is no longer so robust.
• Notable Quote:

  “It’s hard for me to imagine today...either side not going to the mat.”
  — Jack Goldsmith [07:19]

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The Vice-Presidential “Superpower” & the John Eastman Theory

• Theory: The idea asserted by Eastman and others during 2020 that the vice president could unilaterally select which electors to count.
• Lessig’s Take: The ECRA, the Supreme Court’s disregard for the “Eastman theory,” and increased scrutiny have weakened this threat.
• Historical Roots: The notion originated around the 1876 Tilden-Hayes election, not the Founding era.
• Notable Quote:

  “That theory doesn’t come from the Founding. There’s nothing in the Founding that really supports it. ...It should just be forgotten in constitutional theory.”
  — Lawrence Lessig [13:26]

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Faithless Electors and Supreme Court Rulings

• Background: 2016 saw “Hamilton electors” seek to change the election result via the Electoral College. Freedom of electors to vote as they wish was challenged, leading to Supreme Court cases (Chiafalo v. Washington, Baca v. Colorado).
• Supreme Court Outcome: States can require electors to vote for the state’s popular vote winner; electors have “no rights.”
• New Concern: The primary risk now is not bribery but coercion, particularly in light of January 6th, 2021.
• Necessity of State Laws: All states should bind electors—but must allow flexibility if a candidate dies (e.g., Horace Greeley in 1872).
• Notable Quote:

  “Never in the history of electors has there ever been an allegation of an elector being bribed...But we’re actually worried after January 6th, them being coerced or threatened.”
  — Lawrence Lessig [21:45]

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Loopholes in the Electoral Count Reform Act (ECRA)

• ECRA’s Gap: The Act locks in electors selected according to laws enacted before Election Day but does not fully prevent state legislatures, after Election Day, from dictating how chosen electors must vote—possibly even contrary to the voters’ will.
• Goldsmith & Lessig Disagreement: Goldsmith suggests the ECRA’s language might block post-election power grabs by legislatures, while Lessig maintains it does not conclusively address that risk.
• Key Distinction:

  “The only power Congress has is the power to say when electors are selected. It doesn’t have the power to say how the electors can vote. The only entity that has that power...is the state legislature.”
  — Lawrence Lessig [35:15]

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The Role of State Legislatures: Extreme “Winner-Take-All” and Canceling Elections

• Theory in Practice: State legislatures could (theoretically) select electors outright and bypass elections, which historically some did. Today, most states’ “winner-take-all” laws already render most elections irrelevant except in swing states.
• Practical Risk: Wholesale cancellation of elections seems implausible, but post-election manipulation—especially in a razor-close state with fraud allegations—is more likely.
• Memorable Example:

  “The only moment when you can imagine the death of the president flipping the result to the other party. And that clearly can happen here.”
  — Lawrence Lessig [22:55]

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“The Hawaii Problem” — Recounts and Late Certifications

• 1960 Precedent: Hawaii’s late recount reversed the winner after the governor’s certification; both slates sent their votes. Nixon chose to accept Kennedy’s victory despite initial certification.
• Problem with ECRA: The current law provides no clear mechanism for including late-certified, but accurate, slates due to recounts—potentially incentivizing bad actors to delay recounts for strategic purposes.
• Proposed Fix: Allow “contingent” certifications or extend the timeframe for resolving recounts before locking in electors.
• Notable Quote:

  “The Electoral Count Reform act exacerbates the problem because they push the significant date back to six days before the electors are to vote, imagining we’re never going to have a close election that needs a recount that goes past that date—which obviously, I don’t think.”
  — Lawrence Lessig [48:06]

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The Limits of Legal Safeguards—The Role of Good Faith

• Structural Problem: Laws and reforms only work if political actors act in “good faith”—something less reliable as polarization and distrust have grown.
• Proof: In 2020, 147 members of Congress objected to Pennsylvania’s electors with no legal basis, unconstrained by the ECA.
• Critical Thought:

  “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.”
  — Lawrence Lessig [58:21]

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Notable Quotes & Timestamps

• “Actual understanding of the complexity of this process is extremely thin, and we need to bulk up that understanding in advance.”
  — Lessig [03:16]

• “It’s hard for me to imagine today...either side not going to the mat.”
  — Goldsmith [07:19]

• “That theory doesn’t come from the Founding. There’s nothing in the Founding that really supports it. ...It should just be forgotten in constitutional theory.”
  — Lessig [13:26]

• “Never in the history of electors has there ever been an allegation of an elector being bribed...But we’re actually worried after January 6th, them being coerced or threatened.”
  — Lessig [21:45]

• “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.”
  — Lessig [58:21]

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Timeline of Key Segments

• [01:50] — Introduction & book overview
• [04:25] — 2000 election precedent and its lessons
• [07:19] — Changing democratic norms and willingness to “go to the mat”
• [12:21] — Vice president’s theoretical power and historical context
• [15:07] — Faithless electors, Supreme Court cases, and the dangers of coercion
• [28:01] — ECRA loopholes: distinction between appointing electors and directing their vote
• [38:46] — State legislatures’ powers and limitations
• [44:19] — The “Hawaii problem” and late certification scenarios
• [54:43] — Congressional bad faith, the inadequacy of legal constraints
• [58:21] — The critical role of good faith beyond legal structure

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Takeaways

• The U.S. presidential election system, even after reforms, remains susceptible to various legal and procedural manipulations by motivated actors.
• Historic democratic norms to “do the right thing” are eroding, making technical vulnerabilities more dangerous.
• The ECRA closes some doors but leaves others wide open; significant risks hinge on the intentions and integrity of state legislatures, electors, and Congress itself.
• Ultimately, rule of law cannot substitute for good faith when democracy is at stake.

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This summary captures the spirit and precise arguments of the discussion, retaining the gravity and clarity characteristic of The Lawfare Podcast.

Transcript

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[Marissa Wong]

I'm Marissa Wong Internet Lawfare with an episode from the Lawfare archive for April 4, 2026 On March 31, President Trump signed an executive order purporting to heighten restrictions on mail in voting 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 4, 2024 in which Lawrence Lessig joined Jack Goldsmith to discuss how the legal architecture governing presidential elections leaves the door open for abuse.

[Jack Goldsmith]

I'm Jack Goldsmith and this is The Lawfare Podcast 3-4-20 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 Lessig 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 sat down with Lessig to learn why. We discussed the continuing possibility of vice presidential mischief, the complex role of faithless electors, 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 Lawfare Podcast March 4 How to Steal a Presidential Election Larry Lessig, you and Matthew Seligman have written a book called how to Steal a Presidential Election. Basically, it's a roadmap of various strategies for how one might steal the presidential election. So why would you write a book about that gives a roadmap about how to steal a presidential election?

[Larry Lessig]

Because we want to steal a presidential election? No?

[Jack Goldsmith]

Or do you want someone else to?

[Larry Lessig]

Because I think what we 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, you know, in the fog of war of an actual election and actual decisions, it's hard to figure out exactly what's right and what to do in response. So we wanted to identify. You know, 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. Assuming that one would be deployed. But, you know, I can. I can tell you it's a hard question.

[Jack Goldsmith]

Okay, well, 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.

[Larry Lessig]

Yeah. So in 2000, Al Gore won the 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 both sides because, you know, there was an election, and there were problems in the balloting in certain places and a problem in counting the ballots in certain places. And Gore's 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, and the United States Supreme Court basically reversed 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, they 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 talk in our book about 1960 in 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, he accepted the Supreme Court's rule that there was nothing more to be done. And he said for the good of the nation, 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. They were going to do the right thing. 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 would have won if they in fact had done a recount, a full recount of the state, and that had been allowed to continue until January 6th.

[Jack Goldsmith]

So there are two remarkable things about that. One, there was more potentially to litigate, I take it?

[Larry Lessig]

Yes, much more so.

[Jack Goldsmith]

It's hard for me to imagine. It seems harder to imagine today. Any party in that position wouldn't, given the norms or the 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 mat. Do you agree with that?

[Larry Lessig]

Absolutely.

[Jack Goldsmith]

And the second thing is, and 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, in a way that gave him the election. Is that the right way to see it?

[Larry Lessig]

According to the John Eastman theory? Yes. One thing 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 or the own count of the electoral votes. So Hubert Humphrey, 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 of 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 whose 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 couldn't be overturned by Congress, so too 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.

[Jack Goldsmith]

Okay, 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?

[Larry Lessig]

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 to. That your engagement would flip the results. And so if it's a close election, and we imagine, you know, we're taking a case of, like, North Carolina, having a governor who is particularly motivated to support one side or the other, then the mechanisms that the now reformed Electoral Count act, the Electoral Count Reform act, have surfaced turn out to create some enormous opportunities for flipping the results from the legitimate winner, by which we just mean the one who got the most votes in any state and therefore was entitled 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.

[Jack Goldsmith]

But I'm going to put names to these potential winners. I mean, just for purposes of argument, it needn't 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 and the electoral count.

[Larry Lessig]

Yes.

[Jack Goldsmith]

And we have a governor in that state who's committed to the Trump figure, who basically is committed, who thinks that the popular vote in support of Biden, the Biden figure in the state that gave the figure the electoral votes 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, that is to swing the electoral votes to the Trump figure so that the Trump figure wins a majority of electoral votes. Is that right?

[Larry Lessig]

That's right.

[Jack Goldsmith]

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 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?

[Larry Lessig]

I think it's fixed both, because the argument itself has been rejected, even by John Eastman, as we describe in the book. We interviewed John Eastman after January 6, and he acknowledged that there's no basis for the theory anymore. And I also think that the Electoral Count 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, if the President Senate did have a constitutional power, then no statute could stop it. But I just think it's weakened it so substantially. And finally, you know, obviously, if you're thinking that it's the MAGA story that would prevail here in, 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 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 Seligman'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 Republicans 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 since. 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.

[Jack Goldsmith]

Okay, let's talk about the problem of faithless electors or faithful electors? Both. So you are the world's expert on this. You argued 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 have the authority to vote how they wanted.

[Larry Lessig]

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 the members of Congress were chosen by the electors of each state and in each state that voted for the most populous legislative 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 legislature 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 legislature 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 the 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, or 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.

[Jack Goldsmith]

And explain why they were removed and fined.

[Larry Lessig]

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, you had to 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 because I thought it was really critical that we resolve this before we're in the middle of actual election. So we challenged the fine. 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 the 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 a bunch of academics. Rick Hosan talked about a handful of electors flipping the results of an election and campaign legal center was all anxious that electors could be bribed. And there was no prosecution for. There was no statute that would prosecute them for their bribery. So electors were know, basically being slandered. Our view was this was really unfair. You know, There are some 23,507 times an elector's votes have been cast 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 Greeley. But Horace Greeley died before the electoral vote happens. 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 was for some symbolic purpose. It was not gonna affect the result. It was not for the other side. It was just to make some statements. The one time in our history when elector voted for the other side was the first time in our history that an elector voted for the other side. Sam Miles in 1796 was supposed to be an Adams elector, but he came from Pennsylvania. And it 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 creators, the authors of the 12th Amendment, decided not to deal with the problem, not to deal with the issue. Presumption was that electors could be relied on. This one time didn't matter and his reasons were justified. So we thought it was pretty clear that from the 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're worried about how they're going to cast their ballot. But of course, 9, 0, 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, you know, 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 were 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. Not because we worry that electors could be bribed. Never in the history of electors has there ever been an allegation of an elector being bribed, but because we're actually worried about after January 6, them 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 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 Horace Greeley case, because again, Horace Greeley, 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 can imagine the election flipping 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 a 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 a candidate dies. Because it's the only moment when you can imagine the death of the president flipping the result to the other party. And that clearly can happen here.

[Jack Goldsmith]

So let me just make the case on the constitutional case why the Supreme Court did what it did. And, you know, I assume 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. 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 mean, 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.

[Larry Lessig]

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 then? The Supreme Court didn't say that electors are bound to do what the people did. 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 Cefalo opinion, the court said the elector's constitutional claim has neither text nor history on its side. That's wrong for reasons we go into. But put it aside, Article 2 and the 12th Amendment give the states broad power over electors and give electors themselves no rights. Okay? So the biggest, the 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, Justice Alito in the Trump vs Colorado case raised this hypothetical. What happens if after the election day, 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 Donald Trump under Chafalo. There's nothing in the opinion that says that the electors have any right to resist, that they have no rights. And so the problem 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, 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, the electors, but only so long as they're forcing the electors to do what the people say. And then the question is, where does 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 than 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 of them going forward.

[Jack Goldsmith]

So, two things about that. I mean, 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 when considering the. Considering the policy. And I know you don't disagree with that, but why doesn't. We've. We talked about in passing the Electoral Count Reform act, and this was the law a couple of years ago that updated the Electoral Count act, fixed a lot of the loopholes and ambiguities, didn't do a perfect job. And you, 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 ecra prohibits the gambit you just discussed?

[Larry Lessig]

No, it doesn't.

[Jack Goldsmith]

Okay, why not? Explain why. Explain why not.

[Larry Lessig]

The question is not who the electors are. The question is how can they vote? How must they vote? So you're absolutely right. People have often talked about, you know, what if the state legislature after the election, just picks another slate of electors. And indeed, in 2000, John Eastman would have been famous because he was in Florida trying to get the Florida legislature just to seat a new slate of electors, and just to say, here are the electors that will represent Florida. They are the Republicans, Republican electors. That plainly can't happen under a 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 Chifalo 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 Chafala was 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. Your theory of independent state legislature's doctrine, but they pass something that says, you must vote for Donald Trump, let's say, and. 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, you know, Justice Kagan 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 legislature 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 gerrymandered 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.

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[Jack Goldsmith]

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 state enacted prior to election day. I think your argument is that's about selecting electors and not how they vote. Is that right?

[Larry Lessig]

Yes.

[Jack Goldsmith]

Yeah, but isn't it possible that shall be appointed in accordance with the laws, that the appointment includes the voting rules? It seems to me that's a no. That's a. Tell me why that's not a plausible argument.

[Larry Lessig]

Because this is the point the Supreme Court made in deciding that the state legislature has the power to direct how electors vote.

[Jack Goldsmith]

But they didn't.

[Larry Lessig]

The only 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 exercised.

[Jack Goldsmith]

But the court didn't say that they had the constitutional power to do that after the election, did they?

[Larry Lessig]

They didn't address it. That's right.

[Jack Goldsmith]

That's my point. That's my point. They didn't address it.

[Larry Lessig]

Okay, but the point is. Yeah, you're right. But. But here again is what they said. The Article 2 and the 12th Amendment give 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 how electors vote. The only thing Congress is entitled to do is to count the votes, which is a very important question for 20, 25. Like what. What that entails. But the point is they by. By counting the votes and by saying when electors are selected, they certainly are not in the equation of Cefalo of deciding whether electors can be directed after election day.

[Jack Goldsmith]

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 a plausible hook, and I'm not saying that it necessarily would work, but it strikes me as a plausible hook that this statutory provision after the 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.

[Larry Lessig]

So if you think appointment includes, you know, 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 there that could be regulated by either Congress or the state legislature. 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, they have to.

[Jack Goldsmith]

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?

[Larry Lessig]

Yeah, absolutely. I mean, the framing. Many states just picked the state legislature to just pick the slate of electors. And we say in our book that indeed in chapter eight, that's in fact what they could do today. They could say, you 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, you say that and 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 it's decided because state law says the winner of the popular vote gets all of the electoral votes. So if you win 50% plus one vote, you get all the electoral votes. Or in 1992, Clinton won 37% of the vote in Nebraska and got all of the electoral votes because there was a three way vote race and Ross Perot did really well. And that's because they've chosen to allocate electors to the winner. That'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. No matter what happens in, in Kentucky, the Republicans going to win. There's no reason for us to have an election in Massachusetts or in Kentucky given the way that 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 Wisconsin, 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.

[Jack Goldsmith]

I 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, yes, that strikes me as among all of your scenarios, that one strikes me as the least plausible. Am I wrong about that?

[Larry Lessig]

Yeah, I agree. And we, we, we say that it's hard for the legislature ex ante to say or 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, in all but two states because they have winner take all in all but two states. And the only, there are 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. Or here's a scenario even Democrats would agree with. I think, you know, so if anybody's watching success 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 has 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 that have been selected are the Republican electors because you know, we counted the votes and they're the winner and they're declared the winner by the, by 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 it was 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.

[Jack Goldsmith]

Okay, let's talk about a different scenario. 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 what is the scenario today based on that?

[Larry Lessig]

Yeah, so this is a scenario, the hypothetical, which I think Both sides should have a reason to fix. 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, 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 where electors vote. So they openly met, and the Republican electors also openly met, and they 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 any precedent, 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. 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, what 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 who 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 recount is 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 what 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 too late, then it's not clear you're going to have the motivation in Congress to reverse that. And you could easily see those votes being discarded and the result going the other way.

[Jack Goldsmith]

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?

[Larry Lessig]

That, and 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 push the significant date back to six days before the electors are supposed to vote, imagining we're never going to have a close election that needs a recount that goes past that date, which obviously I don't think

[Jack Goldsmith]

that was the reason. I think they pushed it back. I don't remember exactly. I think I thought that they pushed it back because there's a limited amount of time between the election and when, 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.

[Larry Lessig]

You are. But I just don't get why. What's, what's so complicated at the national level, right? 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, 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, it's a modern technology. You could know what the result of that is in a nanosecond or, you know, two seconds, given the Internet. And so you could, you could wait until the last moment before you must cast the votes on January 6th 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 there being multiple slates of electors, it still says that the President of the Senate must open the certificates and any papers, quote, purporting to be certificates of electoral votes. So there 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 to 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 the Hawaii case is, is excluded and Kennedy's votes were the equivalent today, would be lost.

[Jack Goldsmith]

So let me just make one counterargument under the statute. The statute says that a ground for Congress objecting is that the electors of the states were not lawfully certified under a certificate of ascertainment of appointment of electors according to an earlier section. Why wouldn't that be? Why wouldn't that be a ground for setting aside the original slate and looking at and accepting the second slate?

[Larry Lessig]

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 mis. Added the votes, which is what happened in, 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. It was a regular 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 in 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 they're resolved fairly and they flip 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.

[Jack Goldsmith]

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 ECRA timeline. Does that help at all or is that just useless?

[Larry Lessig]

No, I think it helps and you could certainly make it harder. But the point is to see the 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.

[Jack Goldsmith]

What is the right fix for the Hawaii problem?

[Larry Lessig]

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 votes, 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 to vote.

[Jack Goldsmith]

So there are many other scenarios. We won't 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 it's not bound by these laws, and that it might do rogue things. Can you talk about that possibility?

[Larry Lessig]

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.

[Jack Goldsmith]

Explain that. Explain that.

[Larry Lessig]

Well, I mean, you know, for example, in 2020, there are 147 members of Congress who objected to counting Pennsylvania's votes under the Electoral Count Act. Pennsylvania's votes 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 we're 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 contact 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 countout said they shall not be rejected. Given there was a process for adjudicating them and they were adjudicated, and yet 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

[Jack Goldsmith]

could cut in any number of directions.

[Larry Lessig]

Absolutely. I mean, here is the clearest example of that, I think, is to worry about the question that law professor's brief in the Colorado case raised, which is on January 6th, will Democrats say they're 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 or 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're going to exclude him because he's an insurrectionist. It's not their job. And the only historical precedent, again, is Horace Greeley, where even though 63 of the 66 votes voted for somebody else, three of them voted for Horace Greeley. 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 when 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.

[Jack Goldsmith]

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, and not just your book, but the Electoral Count Reform act at some point, and indeed, many of your scenarios are premised on bad faith by an actor. And the Electoral Count Reform act was an effort to check various forms of bad faith, sometimes unclarity, 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.

[Larry Lessig]

Yeah, I mean, bad faith cannot be legislated 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 the results are pretty clear, even partisan actors will do the right thing. You know, people talk about Raffenberger and Kemp in Georgia. I also think Mitch McConnell is a pretty important example here. You know, nobody is more partisan than Mitch McConnell, but Mitch McConnell saw what the right answer was and worked firmly to, like, push the right answer because. Because he had a belief in what the system required. So in clear cases, I'm not worried. But if it's Florida in 2000, if it's very, very close and there's lots of arguments on both sides. 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 Electoral Count act was initially adopted, one member of Congress like gave an 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 Electoral 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 Electoral Count Reform act requires and all the risks to it, because we can't count on that good faith in 2025.

[Jack Goldsmith]

That is a good, if not depressing, place to end. Larry Lessig thank you very much.

[Larry Lessig]

Thanks for having me. J

[Jack Goldsmith]

the Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material [e-mail] lawfair. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts including Rational Security, Chatter, Allies and the Aftermath. Our latest Lawfare Presents podcast series on the government's response to January 6th. Check out our written work at www.lawfairmedia.org. the podcast is edited by Jen Patya Howell and your audio engineer. This episode was Noam Osband of Goat Rodeo. Our music is performed by Sophia Yan. As always, thank you for listening.

[Marissa Wong]

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