Another Way To Elect A President: Can A State Legislature Overrule The Voters? (Part 4)

This podcast is part of the Democracy Group.

Okay, so episode two covered other elections which were extremely close. And we saw the way that those elections got worked out in the states to the end of selecting single slates of electors that would then choose the candidate who would then ultimately become President and Vice President of the United States. Today we turn to perhaps the most important potential disaster on this path to selecting the president, and that is the mechanism under which states might try to select more than one slate of electors. Or after a slate has been presumptively chosen, the legislature steps forward and tries to select another slate. Now, you might think that's not possible, or how could any system allow that to happen? But it turns out there is law on the books that creates an ambiguity about the scope of. Of a legislature's power to select a slate of electors, even when the legislature has previously said it is the votes of the people who select the electors. And that ambiguity in a statute that will be referred to in a law geeky way as three use two. That ambiguity is reinforced by another layer of ambiguity created by the Supreme Court when the Supreme Court suggested that the legislatures would have plenary power to select slates of electors, quote, at any time. In this episode, we'll talk through these possibilities, how they might play out, whether in fact the law should be read to give the legislature that power and whether or not it should be read like that, how it's likely to be read in the context of an extremely close election with lots of doubt about exactly what happened. Stay tuned. Okay, so in our conversation today, we have two students and two and a half regulars, Jason Harrow, who you've heard from many times in this podcast. Is he here? And Jason, why don't you just introduce yourself?

Hey, Larry. I'll be brief. I'm the executive director and chief counsel of Equal Citizens, and I've been really grateful to be working on this project on this series with you.

And then Matt Seligman, who, as I said in the earlier podcast, is the one who opened this Pandora's box for us.

So, Matt, Hi, I'm Matt Seligman. I used to teach at Harvard Law School as a Klimenko Fellow. I'm huddling helping out with Professor Lessig's course on disputed presidential elections. Now, I'm also a special counsel for Election Integrity at the Campaign Legal center, working on similar issues.

And as often as we can get him, Michael Rozin, who is an extraordinary savant about the history of presidential selection. I think he's the person who knows more than anybody else in the world about what this history is. And he has been tutoring Jason and I for many years as we've been considering the Electoral College and litigating around the Electoral College. And he's agreed to help us understand this issue here. So, Michael, why don't you make sure people understand or recognize your voice?

Hi, this is me, Mike Rossin.

Great. And then two students that we have today. Nick Dantzler. Can you introduce yourself? Tell us a little bit about who you are.

Hi, I'm Nick Dantzler. I'm a 2L at Harvard Law School, America's number one online school.

It's a little resentment because it was just announced that we're going to have online in the spring and winter terms, too. So people are a little bit on edge about that.

And I'm in Professor Lessig's elections class, War Gaming 2020. I've really been enjoying it.

Great.

And then Catherine Mateo.

Hi, I'm Katharine Mateo. I'm a joint degree student at Harvard Law School and the Harvard Kennedy School, and I'm also a Professor Lessig.

Great.

So let's start, Michael, with a little bit of the background of how we got to a place where there's a single day on which there's an election that then is intended to select the electors who then, at a subsequent day, will cast electoral votes. It wasn't originally the case that that was on a single day. Is that right?

No, that's actually not correct. Let's begin with the constitutional text in Article 2, Section 1, Clause 4, which reads, the Congress may determine the time of choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States. So they have to give their votes on a single day, but they could be chosen over an interval of several days. In September of 1788, the Continental Congress took it upon themselves to set a timetable for putting the new government in place, and they picked a single day for appointing electors. January 7, 1789, and a single day on which the electors would give their votes. February 4th. In 1792, the Second Congress, as part of the Presidential Election Succession act, set the day on which the electors would give their votes to the first Wednesday in December, but gave the states leeway to appoint their electors at any time in the 34 days preceding. Some of you may know that Massachusetts, for example, in the first election had what we might think of as a primary in which the people went to the polls and voted for electors in the eight congressional districts, and then the legislature picked One of the top two vote getters in each of those districts, plus two that they chose by themselves for the state as a whole. By giving the state 34 days, this whole process could be encompassed in that 34 days. And that remained the federal law until 1845. By 1844, there was concern of fraud, with voters going from one state to another over this 34 day interval and possibly voting twice. So Congress in 1844 took it upon themselves to set a single day on which the electors would be appointed. And they chose the Tuesday following the first Monday in November. Early on in the process, it was the first Monday in November. But. But New Jersey had just changed their constitution to set elections to the Tuesday following the first Monday. And that's how we got November 8, 2016, rather than November 1, 2016.

So it's new Jersey's fault.

Yes. Yes.

Okay, so. But I want to make sure we get this clear. Right. So what this means is that except for the first couple moments, I didn't know that part of the history, the early history, as legislatures are experimenting with different ways of selecting electors, has a much wider period during which the electors can be selected. Because over this period, though, the movement is towards people voting and the vote determining the electors, there still are states, plenty of states, who are selecting electors in other ways.

Yes. And Jason and I have a piece coming out shortly in medium about the Pennsylvania election in 1796. And they chose their electors at the very beginning of that interval on November 4th. South Carolina had its legislature appoint its electors through 1860. And they made it a point to make that choice as late as possible in the intervals so that they could have the maximum impact. So anyhow, we get to 1844 in the congressional debates, and there's a proposal for a single day in early November. And Representative John Hale from New Hampshire points out that his state has a requirement for a majority vote in order to appoint a slate of electors. And if there is no majority, the election goes to the New Hampshire legislature. And he says we need more than a day for this. At the same time, Massachusetts and Georgia have similar provisions. So. So that is the genesis of 3 USC 2, which allows the appointment to be made after the Tuesday following the first Monday in November if no choice is made according to law, on that Tuesday.

Okay, so this is really important because as I've described in the introduction, there's a lot of talk about using 3 USC 2, which is the statutory provision that governs this failure to make a choice problem, as a tool to facilitate the selection of another slate of electors in a particular state. What 3 USC 2 says is whenever any state has held an election for the purpose of choosing electors, that's what all states do now, but not all states did at the time this was passed and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such state may direct. And so what you're saying is, at the time, they realized that a state like New Hampshire had a rule that required that for an elector to be selected, they have to have received a majority vote in the state, and obviously they wouldn't necessarily get a majority vote. You could have many people running and have a plurality vote or many candidates running a plurality vote. So you needed a backup mechanism if in case that happened. And that's the purpose of what three USC two was there for, right?

Yes, absolutely.

And so did it matter after it was enacted, Was it ever invoked, like, by New Hampshire, as far as you know, or by any other state that might have?

Well, in fact, New Hampshire only invoked that runoff provision in 1789 and 1792, but Massachusetts invoked it in the next two elections following enactment of the 1845 Act. In the elections of 1848 and 1852, the last state to invoke that provision was Georgia in November of 1860. And the governor's call to the legislature is really interesting because he realizes that the black Republican party of Abraham Lincoln has won the election, and he wonders, is it worth bothering anyhow? But the Georgia legislature convened and appointed a slate after no slate had won a majority of the popular vote. So 1860 is the last time that a legislature makes an appointment after election

day, and each of those times it's because of the failure of this majority vote requirement.

Yes. And that provision remained in the Georgia statute books until it was repealed in the first half of 1968 in anticipation of the George Wallace candidacy in Georgia. And I think Wallace actually got a majority in Georgia that year. So as recently as when I was in high school, it's been on the books.

Okay.

And so two really important things about that. Number one, every one of the invocations has been because this technical requirement has not been obtained, namely a majority, the second one, I think, is equally important. I just want to make sure I know what the answer to this is. Is it the case that every time a legislature relied on Section 2 of what we now call 3 USC 2, it has been pursuant to a law that was enacted prior to the election?

Yes.

Okay, so the consistent historical practice is a very narrow condition that triggers the right to invoke this law, according to a state law that exists prior to an election, which would make it hard for a state in the current election, for example, to say, oh, we think this election has, quote, unquote, failed, and without any state law authorizing this for the legislature, then to say the federal government gives us the power to now pick a slate because our votes have failed, that would at least be inconsistent with the historical precedent. Is that right?

That's correct.

Okay, so let's bring it. Jason, you want to jump in here?

I do want to jump in here because I want to make it vivid. Mike does such a great job talking about elections in 1788 and in 1860, and those are really critical for understanding what might happen today. But really close election watchers will know that the two Georgia elections for Senate, not for presidential elector, but we'll talk about why that's relevant, are actually in the same situation as presidential elections were in Georgia before 1968. So close observers might know that unless Jon Ossoff, friend of the Another Way podcast, by the way, gets over 50% of the vote in his race against David Perdue, he is scheduled for a runoff on January 3rd. Now, how is that possible? Because, folks know, just like Congress set a uniform time for picking presidential electors, Congress set a uniform time in two USC seven for picking US Senators. So how can Georgia pick their senators later? The answer is there is an exactly parallel provision for senators as there is for presidential electors. And that provision says that if a state holds an election, which it must for senators, but it has failed to make an election, then it can set a law and have an election at a later date. And people have litigated this. People have litigated this to this runoff system, and the courts have upheld it and said, look, you've got to try on election day, but if you have a law that says majority rule and no one gets a majority, you're allowed to go later. And so we sort of know, again, that Congress was setting a consistent scheme. And I think it really helps to see that scheme is in use today, and it's really designed for this runoff system. Okay.

And again, just to be clear, those cases involving senators are cases that are triggered because of a majority requirement, and they are all following state law that was enacted prior to the election, right?

That's right.

Yeah.

This Georgia law, as Mike knows, has been on the books for many, many decades. Georgia and Louisiana are the two remaining, and they've had them before elections. These are not post hoc sort of saying, hey, someone didn't get enough votes. And that's by a standard we're setting. It's people know the rules on election day.

Okay? So this is consistent with the interpretation we just gave of the Presidential Elector Provision 3 USC 2. What happens in the House?

The same thing would happen in the House. And there was actually just litigation. We can post this in the show notes. There's actually just litigation about this in Minnesota because really close legal nerds might know that a minor party candidate in a Minnesota House election recently died. And there is a very strange Minnesota law saying that if any candidate dies 74 or fewer days before an election, the election is supposed to be postponed to a later date. And so the Minnesota Secretary of State said, this House election is going to be vacant until we have a new election. So that this minor party, it's a legalized marijuana now party, actually, I don't know how many votes they're gonna get. I think their party explanation sort of sums up their platform. But they somehow qualified for this exception under Minnesota law. And the major party candidate sued and said, this is not allowed. Right. So this is the reverse of what we were just talking about, Larry. This is not allowed because Congress said that the election has to be held on this day and only if there is an election and no choice can you not hold an election and can you hold this runoff. And the courts agreed, right? The courts did agree and say that's the proper interpretation.

Okay, so what's striking about that history is that the only statute that I can find now that actually expressly invokes three USC two, there's another statute that by implication seems to be talking about it. But let's talk about the express one is a North Carolina statute. And the North Carolina statute basically says that whenever the appointment of any presidential elector has not been proclaimed under North Carolina law before noon on the date for settling controversies specified in the safe harbor provision of the Electoral Count act, which we'll talk about later. Then basically, it's saying that the General assembly, there might be a special extra session called for the purpose of the General assembly, filling the position of any presidential electors whose election is not yet proclaimed. And there's a parallel one for the governor that gives the governor the power in the case that their electors have not been selected. There's a very interesting provision. The third provision of this basically says in exercising their authority under subsections A and B, the General assembly and the governor shall designate electors in accordance with their best judgment of the will of the electorate. The decisions of the general assembly or governor are not subject to judicial review. So courts can't second guess them except to ensure that the provisions have been followed. And the judgment itself of what was the will of the electorate is not subject to judicial review. So what's striking about that statute is it's not like these earlier statutes in that it's not picking a particular narrow reason why the election has, quote, unquote, failed. It's just saying if there's not been a selection of the electors by a certain day, then either the legislature or the governor has this power to kick in and select electors. It's never happened because it's a recent statute. But I'm just wondering anybody, but in particular our lawyers, to what extent do we think that the North Carolina statute goes beyond what was intended, whether or not it goes beyond what the language of that statute is? Matt, do you have a view on this?

I do. I think this brings up a challenging question about the history that Mike has brought up, which is how, in interpreting and applying 3s use to today, we should take account of that history. So one view is that in looking at how to apply 3 USC 2 today, its valid application is limited to situations where there was no majority selection to deal with this very specific problem that the history in 1844 suggests the statute was enacted to solve. Now, another way of approaching this is to say that, well, if we look at the text of this statute, it's actually quite broad because it doesn't say or limit what sort of failure to make a choice is covered by the statute. So there might be a wide range of situations that intuitively, if we just look at the text of the statute and look at the ordinary meaning of the word failed to make a choice, we might say that if there's a natural disaster that prevents, physically prevents an election from taking place, then this statute would apply, or. Or if there's a pandemic, or you can start to imagine less factually plausible, but perhaps more likely arguments to be made, like there was widespread voter fraud or the election board's computers were hacked. So this is a very practical question about whether this statute then authorizes the state legislature to step in and to select electors after the fact because of these allegations of hacking or a natural disaster or a pandemic or whatever. And so this very practical question about the contemporary application of this statute ultimately may depend on this choice about how we're going to interpret a statute in general. And so to give a very recent example that some of our listeners may be familiar with was a case that was decided by the Supreme Court just in June of this year. Bostock, the Clayton County, Georgia so this was the case about transgender discrimination. And so the case concerned Title VII. And Title VII, which was enacted in the 60s, says that it is unlawful for an employer to fail or refuse to hire or to discharge any individual because of such individual's race, color, religion, sex, or national origin. At the time this statute was enacted, it's very, very unlikely that anyone was thinking about transgender individuals. Of course, transgender individuals existed at the time, but they were not as widely recognized as they are today. And so should we look at what Title VII was expected to apply to at the time it was enacted, which was probably just preventing discrimination on the basis of sex? You can't fire someone because they're a woman or fire someone because they're a man. Or should we look at the text of the statute and think about its meaning, even if it ends up entailing an application that the Congress that enacted the statute never thought about? Now, interestingly, the Supreme Court held that Title VII does protect against discrimination against gay and transgender individuals. Now, the interesting part about this is that the decision was written by Justice Gorsuch, who is an appointee of President Trump and perhaps not the member of the court that you might have thought was most likely to author an opinion protecting against discrimination against gay and transgender individuals. As a result of that, we see that at least Justice Gorsuch and some conservatives who are textualists will not look at the original history of what the Congress that ratified that enacted a statute expected the statute to do, but rather what the text actually does. And so this question, interestingly, comes up again with respect to three USC two.

Yeah. And I think that fact, I would predict, would lead them not to constrain the scope of 3 USC 2 to the original application of the original intent, although it does raise a question whether to qualify under 3 USC 2, you need to do as every state has done in the past, which is to pass a law in advance. But the argument that that wouldn't even constrain it even then is that on the other side, we're imagining a state losing its ability to send electors to the Electoral College. That's a huge loss. And so you might think that that fact would weigh heavily on the side of the allowing the state legislature to step in if, in fact, it's necessary to secure the correct. And according to North Carolina, the legislature gets to decide what the correct is, the correct slate of electors to represent the will of the people.

And just to emphasize how the equities of that sort of situation can play out, I invite our listeners to think about a situation where Russia's Internet Research Agency, they're hacking unit, ends up hacking into the computers that hold the vote tallies in Pennsylvania and erase them. And they do this sometime in mid November. And absent the electoral votes from Pennsylvania going one way or another, President Trump will be reelected. In that situation, do we want it to be the case that Pennsylvania has absolutely no recourse in order to pick electors? No recourse at all. And so the fact that there was this failure to choose that falls outside of the original expected application of 3 USC 2, but nonetheless, intuitively there's a failure to choose. Does that mean that Pennsylvania can't appoint electors at all? And so the hacking was successful?

Yeah. So I want to talk about one more part of this, and then I want Katherine and Nick to help us think through a particular example of particular way this might play out. But the point that Matt was making right there suggests a more fundamental question which we've wrestled with, and I'm not quite sure I even have a clear sense of the answer, which is interpreting the Supreme Court's own words about the power of state legislatures to select a slate of electors regardless of whether they happen to have vested that choice in the people through an election. And so, Jason, why don't you help us understand a little bit about the context of that controversy and how it might play out in the context of even like the hypothetical that Matt was describing where Pennsylvania doesn't have a provision for dealing with this problem. But Pennsylvania legislatures assert their authority under the Constitution to select their slate of electors however they want.

Okay, so Bush v. Gore. The specter of it brings up a lot of memories for many folks. And going back to it is not a particularly fun exercise, Larry. But as you know, and as some listeners may know, the Supreme Court there sort of has a both sides view in it in passing about appointing electors. It initially says that a legislature does not have to appoint, give the right to vote to president, to citizens. But when it does, that right to vote is fundamental, but then it seems to give back a little bit and says, of course the legislature can take back that power, being that power to appoint electors itself at any time. Now, the question that we're facing now in 2020, if there is a very close election, is what does those three words at any time mean? Does it there's a broad sense of at any time meaning that the legislature of Florida is of course a continuing body. So in any given election cycle, it can say, you know what, this election cycle, we don't want folks to be able to vote for president. We, the legislature, want to do it ourselves. And interestingly, Florida is the last, and Mike Rosin will correct me if I'm wrong, Florida is the last state to actually flip flop in this way. In 1860, the Florida, Florida let its citizens vote for president. In 1868, it passed a law, did it itself, and in 1872, it decided to give back the right to vote to president. So there is Florida actually illustrating this broad reading that I think is the right reading. Some people have said that that at any time reading doesn't just mean any given election. It means literally any day, any including any day after an election has already occurred. And the problem with that reading, Larry, is that there are other constitutional provisions that govern here, including the due process clause and including the specific invocation of a, quote, right to vote in the Constitution, even though it's not as explicit as it should be. And the Supreme Court has said that a right to vote is meaningless if it doesn't come along with a right to have that vote counted. So Nick, you've done some research here on how the due process clause impacts that and how this language at any time should be read to be consistent with the fact that folks have not only an expectation but a constitutional right to have their votes fairly counted. So tell us a little bit about what an argument might be. If Florida decides that at any time means November 10th or November 17th or December 1st.

So ultimately the right to vote includes the right to have your vote count for something. It's all part of the same whole. So if a person goes to the ballot box, makes their choice, and then they're told seven days later that that didn't matter at all, that's taking away their fundamental right to vote. In doing so, the legislature would be violating the due process clause because it would essentially their interest in doing so cannot possibly outweigh the damage to the people from all of them losing their right to vote at once. Essentially at any time must mean,

must

mean before an election because otherwise there would never be elections. It would never have any power.

Yeah, I mean, it's actually, I think it's even more tenuous than that. The language at any time is actually in a parenthetical referring to a 1870 something Senate report. And that Senate report was basically, I think, trying to explain that even if state law says, for example, even if the state constitution says that there shall be an election, and that election shall choose the presidential electors. The legislature can still, notwithstanding the state constitution, decide in an election that it's going to pick the electors itself. And the reason for that is the legislature gets its power from the constitution, from the federal constitution. And as the Supreme Court has made clear in other contexts, particular around ratification provisions under the amending procedure, the fact that it gets the power from the federal constitution means the states can't regulate it or control it or limit it, even a state constitution. So under that interpretation, all that at any time means is, even if the states purport to try to vest it in one way permanently, this special body, the legislature, has an ongoing power to say something different. Mike, did you want to add to that?

Yeah, that's not how I read McPherson or report 395 from 1874. McPherson makes it clear that the state legislature has to operate within the constraints of its own state constitution. And the morton report in 1874 makes it clear that if there is a statute on the books, a change has to begin with a repeal so that

the state constitution can constrain the legislature's power.

Yes, because the legislature, the state legislature is the creation of, of the state constitution, especially as a lawmaking body. And I think the cases you're thinking of about ratification of an amendment consider the legislature as the agent of the people and doing something other than lawmaking.

So this is a really hard question that a bunch of cases have tried to bounce around. And I mean, if you think of the Arizona legislature case and the Cefalo case that we've just litigated, and these cases, the status of the legislature and its special powers or its subservient powers to the state constitution is something I guess we're still going to battle about. But either of those two interpretations leave us with the conclusion that the state legislature is not obviously empowered to do what Jason identified, the fearful thing that they might do is, which is just to on November 4th, say we don't like that election, we're going to appoint another slate of electors ourself. Right.

Okay, now just to connect the dots from something that came up in our first episode. So while we were recording our first episode, we had late breaking news from the Supreme Court, which denied an application first day from the Republican National Committee that was trying to to put on hold a decision by the Pennsylvania Supreme Court that extended the mail in voting deadline by three days. And the issue in that case was the same one that we're talking about Right now, which is whether the state legislature has unconstrained power to regulate and set the manner of elections. And so the Republican National Committee was arguing in the Pennsylvania mail in ballot deadline case that the state constitution and the state Supreme Court does not have the power under McPherson to constrain the way that the state legislature has decided to conduct the manner of the election. So we see this same issue of the unique and odd and in some ways sui generis role of the state legislature in setting the manner of elections. We see it come up in a variety of different issues that are rising in this presidential election.

Yeah. So, I mean, they'll obviously be pushing this broader conception of the legislative power as freed from constraint, but it only could be freed from state constitutional constraint if it were in fact purported to be constrained by the state constitution, it wouldn't be freed from federal constitutional constraint that still, after Cefalo is absolutely clear, would constrain them. Okay, so there's this battle about whether the legislature could do this. But if we play out the game of the most aggressive hardball strategy that could be played here, assuming that the votes don't make it easy to say that the election has failed, or there's some ambiguity about whether has failed reaches beyond what we've originally identified as its narrow original purpose, there still is this issue that they could play about the Constitution expressly giving the state legislatures the power to select. And then we have to fight about whether they are, as Nick was saying, constrained by what the vote has been. Catherine, you've been thinking about this particular scenario in the context of Florida. So this is a state we've all been obsessing about. Why don't you play it out in the context of Florida?

Sure. So the potential issue is that suppose there's a final vote count showing that Biden won, and he won by a narrow margin. But this count is announced in the midst of Trump tweeting that the election was stolen, that there are reports of fraudulent ballots in the thousands that were submitted across poll stations in Florida. There are reports from poll workers saying that they saw some irregularities at the polls. Governor DeSantis could then issue a statement alleging that the election results were inconclusive and cite these irregularities to then say, and call on the Florida Legislature to select its own slate of electors. So here he'd be relying on the Section two language and invoking the Florida legislation, having the Florida Legislature invoke this language to appoint its own slate of electors. So the Florida Legislature won't be in session in November, but the Florida state constitution under Article 3 allows the governor to call a special session. So Governor DeSantis calls the session, and the next day, the Florida legislature starts holding hearings on the supposed irregularities that occurred in Florida. After the conclusion of the hearings, the Florida legislature concludes that they will appoint a Republican slate of electors in favor of Donald Trump and Mike Pence. So at this point, it becomes a legal battle because the legislature has already gone on and appointed its own slate of electors. And what they've done is they've used the irregularities. What they will do is argue that these irregularities constitute a failure to make a choice, a failure to make an election. So the argument then would become that voters didn't select, didn't appoint electors on November 3rd because there was fraud, because the results were inconclusive, and would cite these irregularities to say that they have to make their own choice.

So that's the plain textual application that we're the most fearful of. It's important to note, though, we don't really have any examples of fraud ever being invoked either under 3 USC 2 or the parallel provisions for Congress and for the Senate. That's right. I mean, do we have anything to suggest that. So this would be a brand new kind of application. And I guess one wonders, like, how would the states actually adjudicate the question whether in fact the predicate for the governor's declaration was true or not? We're going to get, when we get to the Electoral Count act and the discussion of the Electoral Count act, we'll get to the question whether that even matters, what the state says really matters, if in fact there's a slate sent signed by the governor. But in the state itself, I imagine the state legislature, I mean, the state judiciary, would have a role in deciding whether the claim that there was fraud is true or not, right?

Yes, I believe so. But we haven't seen it before, so we're not sure which way it would go.

And if it's conceived on the model of North Carolina, where the idea is, you know, if you just don't have electors selected by the time they need to vote, then the governor gets to pick them or the legislature gets to pick them, then there's obviously a nice little strategy that could be played of just like drawing it out, like fighting it, like litigating every single question until it's just too late, and then they get to pick their own slate of electors.

Right. But what would be key here is the idea that there wasn't. That there wasn't a choice that was made on November 3rd because even if there are irregularities, one could say that it's up to the legislature, the judiciary, to figure out what those irregularities are. If there were fraudulent votes, one of the paths could be to identify those fraudulent votes and bring legal action against the individuals who voted fraudulently or were responsible for throwing out ballots. That doesn't necessarily mean that the state of Florida, the elector, the voters in Florida, the people, failed to make a choice on November 3rd.

Okay, Matt, so what's your prediction about how the courts in Florida come to resolve that question of adjudicating whether the predicate that the governor invokes for calling on the legislature to select another slate is in fact, true?

Well, I mean, I think there are. It's hard to say. It's going to depend on which judge is hearing the case. So, you know, there are, there are several interesting procedural questions about how this might be litigated. So one thing that was true in 2000 is that Bush v. Gore was litigated in state courts, not federal courts, up until the Supreme Court. And at the time, the Florida state Supreme Court was controlled by Democratic judges. And now. So one thing to bear in mind is the partisan affiliation of the state, the members of the state courts. Now, another thing to bear in mind is that this would presumably ultimately go to the Supreme Court. Now, here's where things get very tricky, because I think that how the court would respond to this kind of exercise of power might depend on whether the claims, the factual claims, are within some margin of plausibility. And so, for example, if there is absolutely no evidence to suggest that there were fraudulent votes cast other than a presidential tweet, then we can imagine someone like Chief Justice Roberts not buying that. And we've seen that in several Supreme Court cases over the last several years. Most notably, for example, is the census case where the administration argued that it was making a change or several changes to the census in order to enforce the Voting Rights act and the sorts of changes that they were making, it was just transparently a pretext. And importantly, Chief Justice Roberts didn't buy that pretext. Now, if we imagine a different scenario where over the next couple weeks, God forbid, the pandemic spikes and some more late breaking news here at the news desk. There was just a press conference by the FBI where the Director of National Intelligence announced that Russia and Iran are actively interfering in the election to hurt Donald Trump. So that, you know, as we can imagine, all of the factual development of a claim that there was fraud, if there's more and more evidence such that the Chief justice in particular begins to feel like it's no longer his role as a judge to second guess a determination that political actors have made, and that's a theme we've seen in his jurisprudence since he's become a judge, is deference to the political branches. So if we, if we imagine more and more factual basis to support what really might be just a pretext, but still, if there's enough smoke there, then I think it makes it more likely that the Chief justice would. Would go along with it. Now, importantly also is that the Chief justice may not be the relevant vote anymore, though, and that's because of the imminent elevation of Judge Barrett, which will give Republican appointees a 63 majority on the Supreme Court. So even if the Chief justice peeled off, as he did in the census case, he might not be the deciding vote anymore.

Yeah, I mean, the more the mess begins to smell, the bigger the controversy about what actually happened, more appealing the words failed, the election has failed become. And you can easily see them saying, it's just too confusing. We don't know exactly what happened here. It was a disaster. And so therefore, the states have got to have an ability to play a role. And so that's, that's why they can invoke this provision. And then the only question is whether it's got to be something they've authorized themselves to do in advance or not. And though I would think they should authorize it in advance, even like North Carolina, it's not clear to me they would not account it even afterwards Congress ultimately would have to make that decision.

You know, and there's an interesting irony of this election cycle, which is that simultaneously, it seems like this election cycle is the one where it's most likely the. That political actors would engage in true hardball manipulation to the very limits of the letter of the law, like the scenario that Catherine was bringing up. It's also an election where the factual predicates of a failed election seem much more likely than any in our lifetimes and much longer than that because we're living through a pandemic. We have a postal service that is hobbled. We have the potential of foreign interference. It seems like every possible challenge to the holding of a free and fair election is being thrown at us. So it's a troubling irony because it provides more cover for the sort of manipulation that Katherine was explaining could very well happen.

Well, I'm looking for somebody to be optimistic. Usually that's you, Jason, because what we've mapped is a pretty extraordinary sequence of events where State legislatures create alternative slates which then will figure out how those get counted when we turn to the Electoral Count Act. But that's not happened. It's never mattered since 1876 in any sense. There's been alternative slates since 1876, 1960, Hawaii, but it hasn't mattered to the result. But this time, obviously it could matter. So is there any reason to be optimistic that it won't happen here or that even if it does happen, our system's going to chomp through it and do the right thing?

I think there is. I mean, I'll end on my usual brief sense of optimism, Larry, because in order for this kind of extraordinary move, which everyone recognizes is beyond unprecedented. I mean, it's unprecedented in the sense that it's never happened, as we've discussed. And I mean beyond unprecedented, it's been unthinkable for a lot of American history as well. Now I guess it's thinkable, but I'm not sure that means it's doable, Larry, unless it's ultra Close. Florida 2000 was by any definition ultra close. Ultimately came down to 537 votes in a single state that would have decisively swung the election. It's unclear, given the legal weaknesses with the theory that we've laid out here, it's unclear that it could be successful if the election were even a little bit more of a landslide. So that's my optimism. It's a shame that it's thinkable, though. I do think that proves how far we've come.

It's much more light than you usually are. I mean, we can add to that. I think we should add to that. Let's just state some clear facts. We've just never had an example in our history of a legislature stepping in and countermanding even an ambiguous result in the states. I mean, you know, we've had.

Can I interrupt?

Okay.

In 1960, after John F. Kennedy won Louisiana with just over 50% of the vote, compared to like 29% for Nixon and 21% for unpledged, the Louisiana House met on Thanksgiving Sunday and began consideration of concurrent resolution to suspend the operation of the electoral appointment laws that had been in place and had generated the Kennedy election. And they realized it was too late. They realized first they had to suspend the laws which they claimed they have the power to do under the Louisiana Constitution, and then they needed to get a replacement mechanism in place. But they fell victim to the inexorable march of time over the short 41 day span between election day and elector day and ultimately gave it up.

But that's consistent with what we're saying, right? We've never seen any legislature actually act to take back a decision, even an ambiguous decision, even a failed decision, and create another slate of electors. What we'll talk about when we talk about the Electoral Count act is that there were times in 1876, in particular, as the most important, where states produced multiple slates. But it wasn't because of the legislature. It wasn't because of the political intervention of the legislature. It was because of a process through which you had multiple competing boards of elections that were producing these slates. So the thing to add to Jason's optimism is not just, it seems extraordinary, the side resisting it would be able to say, look, this has literally never happened in 200 some years, even though ostensibly the Constitution gives them the power to do this at any time, quote, unquote. They've never, ever tried to exercise it. And it would be, I think, astonishing for this court to discover this power and allow it to defeat, if it's indeed perceived as defeating the person who otherwise would win. But it's a little too soon, I think, to feel confident. So we'll continue to unravel and unpack this problem. I want to thank everybody for this conversation. Our next conversation will take it to the next step of after slates are elected, then what do they do? That's about voting in the Electoral College. And once those votes are done, even if there are multiple slates, then how do they get counted in Congress, which ultimately I think is going to be the most important moment in this whole process. Thank you, everybody, and stay tuned for the next episode. So that's our episode about the mechanisms for selecting multiple slates of electors. But once the slate of elector or slates of electors are chosen, they then have to perform an incredibly important function, which is the function to vote on a day set by Congress, which this year is December 14th. On the same day across the country, every elector gathers in their state capitals and they cast their ballots as they are directed under state law or as they've been selected according to the vote of the people in the election. In the next episode, we'll talk through that procedure and some of the questions that have happened in the context of that vote as we move to the next stage in the potential raveling or unraveling of the election of 2020. This is Larry Lessig. Thanks for listening. These podcasts are produced by equalcitizens.us. you can find this miniseries at equal citizens us. Anotherway. This miniseries will cover nine episodes addressing this election and the problems that we might see. Obviously, these problems won't be problems if this election turns out to be a landslide either way, but certainly in the way that assures that Congress is uniform in control by political parties. So assuming the election is close, we're trying to work out what we should be watching for and what we should be fearful of, and what we should do to understand how Congress and the next president should behave. You can share this podcast at EqualCitizens us anotherway and give us feedback and ideas and places you'd like to see the podcast outside of this mini series. To proceed, we're grateful for your listening. We're even more grateful if you get your 10 best friends to listen and if you can help support the production of this podcast. Obviously our work is for free, but the producers and the distribution is unfortunately not. You can find a place to help us at EqualCitizens US donate. Anything would help and we have a Patreon account as well where you can help support and get extra features from this podcast. Thank you for listening. This is Larry Lessig. Stay tuned for the next episode.

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