Another Way To Elect A President: Election Follow-Up

This podcast is part of the Democracy Group.

This is Larry Lessig. In this follow up episode to our podcast, Another Way to Elect a President, we give a post election status call to the claims that are being made to give the president the power to get re elected through the games that might happen in the state legislatures. We've spent of course, this whole season talking about how these games might play out. We described in the first episode how the red mirage is most likely to be the dynamic of the election. That of course turned out to be the case. Now we've seen lots of efforts in state battles to undermine that process of counting to lead to the opportunity to appoint alternative slates of electors. That's what we'll be talking about in this episode. In the end of this episode we'll see the most critical stage and what must be done to stop any unraveling of these election results in that stage. Stay tuned. So welcome back. Jason and Matt, why don't you introduce so we hear your voice.

Well, it's good to be back after our miniseries talking about what happened in Breaking It Down. Hey, Larry.

Okay.

And Matt, this is Matthew Seligman again. It's great to be back and it's great to be back under these circumstances. So we have all lived over the course of the podcast miniseries in this fall and these last years worrying about some real nightmare scenarios and the paths to really bad things happening are narrowing. And that's great news, but they aren't quite gone yet. And that's what we're going to talk about today.

Today is November 13th, Friday the 13th. We're not going to take anything from that coincidence and we're going to reflect on where we are now more than 10 days after the election. And obviously at this point it seems clear, lawsuits notwithstanding, that Joe Biden has both a popular vote victory of more, probably more than 5 million votes and an electoral college vote victory that in the end will probably be above 300. But let's start with the optimistic scenario about how things play out, assuming things play out the way they've played out every single election since 1876. So why don't you walk us through what that looks like, Matt?

So as, as we all know, the voting is done, but in some states the counting is not and the counting continues. And the post counting process of ensuring those counts are correct continues across the country. And in particular in the five states that are really close and will be decisive, have been decisive to this election. And so those states are Pennsylvania, Wisconsin, Georgia, Arizona and Nevada. Now, in each of those states, diligent state election officials are continuing to go through the process that leads from Election Day through counting and recounting the votes to the ultimate certification of those counts to which is a precondition to appointing electors to vote in the Electoral College. So in this process, all of those states are moving ahead and are on track to finish their post Election day counting and certification process before the critical dates in December and in particular before December 14, which is which is when the electors in the Electoral College have to meet to cast their votes. Now, this is important, different from the last crisis election we saw, which was in 2000. And in 2000, the recounting effort in Florida took a very long time and it was beginning to bump up against those critical constitutional deadlines in December. And as a result of that, the Supreme Court stepped in and stopped the recount. And so the critical fact here is that that's not going to happen this year. And the reason is because all of the counting and recounting and recanvassing is going to be done by the end of this month.

Right. So Politico has an article and let me just summarize, it's updated as of this morning. So in Arizona, as of this morning, Joe Biden has it looks about maybe about 10,000, maybe 11,000 over Donald Trump. And the certification for Arizona will be done by November 30th. And then the second critical state here is Georgia. And Georgia right now looks like Joe Biden is ahead by some 20 more than 20,000 votes. Their certification is before November 20th. And then the third state here, Michigan, which is of course, much more significant difference, more than 120,000. Their certification date is 23 November. North Carolina, where Donald Trump is ahead by, you know, less than 100,000. Their certification date is November 24th. And finally, Pennsylvania, where Joe Biden is ahead by some 60,000 votes, their certification date is going to be the 23rd of November. So if they all certify, oh, I'm sorry, let me just add Wisconsin, right, of course, Wisconsin, also about 20,000 for Joe Biden. Their certification date is the latest on this list. It will be December 1st. So the critical point though, about certification is when certification is done at least six days before the Electoral College votes. What we've said and what is critical is that those certifications get a safe harbor status. So what does that mean, Matt?

So what that means is that when the electoral votes are counted in Congress, which will take place on January 6th, federal law says that the certification of results by six days before the electors vote, which is on December 14th. So six days before that is December 8th. If a state's legal process for deciding who won the electoral contest, the election in that state, if that process is completed by December 8, then the outcome that those state legal proceedings have is decisive, it's conclusive. And so Congress has to defer to that. And that can be important if there's some ongoing, for example, political dispute about whether one set or the other set of electors is the valid one. So this will really matter in certain contexts of crisis and conflict, because as long as the states get those certifications in by December 8, then the question is settled. Then the electors that have been certified by that state process, those are the ones that get to vote, period. And there's no more questions.

Okay, so let's, let's be clear about what no more question means. The safe harbor provision, three USC five says so long as the state contest proceedings are completed and so long as they're completed six days before. So those are two factual questions which conceivably one could argue about, one could say there still is an appeal possible or whatever. But assuming those are completed, what that means is that if Congress feels itself bound by the Electoral Count act, then the only way to reject those slates would be for both houses to vote to reject those slates, or even more technically, even if the vice President said the slate is rejected, then we have a question of whether and how we overturn the vice President's judgment. But the procedure assumes that Congress isn't going to play games, that if it's final, then that's the one that's going to count. Okay, so the happy scenario is those five are settled. There is no ambiguity about whether the state proceeding is finished. They're certified, they will be counted. They clearly show Joe Biden is the winner, and there would be no more to the story. Jason, obviously some people are trying to generate more to this story, so tell us what's going on to try to create some dissonance from that very simple assumption.

Yeah. So as many folks know from the press conference in front of the now famous Four Seasons Total Landscaping in Philadelphia, the Trump campaign has promised an assault of litigation, a barrage of litigation. They have filed some cases. I think that it hasn't even been quite as much as some have worried, but there are cases in the key states. They in general fall into two buckets, and they're targeted at the safe harbor process and at the next section of the Electoral Count act, which we've talked about, which is three USC six, which requires the executive of each state, that is the governor, to transmit to various entities of the federal government, including the Senate and the archivist of the United States, who the electors are, based on what the federal law calls a final ascertainment. And the claim of the Trump administration is we can't get to that final ascertainment for generally two reasons. Bucket. One are the lawsuits that got a lot of press in the immediate wake of the election where there were several lawsuits filed claiming observers weren't at the proper distance away, that they were not being given access that counts must stop, that ballots, absentee ballots who are regularly corrected for things like signature defects or missing dates cannot be corrected. And those are, let's call them, small bore lawsuits. They're not going to change the vote totals. The Trump campaign knows they're not going to change the vote totals. But perhaps they'll continue to draw out litigation and delay the counting and delay the certification dates that you just mentioned, Larry, and perhaps make it possible that this 3 USC 6 Certificate of Ascertainment will either not be sent by the safe harbor date or somehow not look like it's going to be sent in time for the vote of the electors.

Jason, I just want to ask you about those lawsuits in particular, because you've written a really great piece in Newsweek talking about the ethical obligations that apply to lawyers. My former boss, Justice Scalia, was quite obsessed with the ethical obligations that apply to lawyers. And so if you're a lawyer and you're bringing these lawsuits, what do you have to in good faith believe before you file or prosecute one of these lawsuits?

You have to believe that there is a basis in law and fact for the claims you're making. And you have to in good faith bring it because you think you can win for something like a proper purpose and not solely for purposes of delay or harassment. That's something called Rule 11 in federal courts at least, and there's equivalent in many state courts and under state bar obligations. And as you mentioned, Larry, Justice Scalia actually would go further than the rules currently provide in having really severe punishment and sanctions for those who don't comply with it. And there's already some indications that judges may wish to invoke it and are starting to be really hard on lawyers who come in with baseless claims or sort of change what they're saying in court from the complaint. The most famous example so far that we've seen in the Trump litigation campaign was the Trump brought a claim saying that observers were not allowed to view the vote counting in Philadelphia, which, of course, has been processing hundreds of thousands of ballots that have largely gone for Joe Biden. And a federal judge asked Trump's lawyers, so how many observers are in the room? And the direct quote from the transcript is, your Honor, there's a non zero numbers of Republican observers. And the judge said, well, then why are we here? Right? You know, you can't say there's no one in the room and then say, actually there is someone in the room. Right. That's the exact kind of thing that the rules prohibit. Nonetheless, you know, they have a right to ensure that votes are being counted properly. And courts right now, in part because of the lack of merit of the cases or the very, very small bore complaints that the Trump administration has noted, have pretty swiftly moved these through the system. It doesn't appear that this will be successful in really doing much to undermine the faith in the elections or to hold things up again. Not all are resolved. It's possible things could change, but those are not looking like a key part of the strategy. Yeah.

And so that raises a question. So why are these lawsuits being brought, Jason, if they can't, even if successful, change the outcome of the election?

Well, there's a couple of different theories. You know, one is that they're humoring Trump, I think has been the word in the press, right. Trump has said, we want to contest the election. Lawyers know that they can't just make the claims Trump is making, which is massive fraud. I really want. That's not a legal complaint that you can bring to court. So they're finding other really small things to sort of please the leader and run things down for a couple of weeks and, hey, maybe they'll turn something up. Maybe they'll get some judge to give them discovery and they'll find, like we saw before the election, nine ballots that were mishandled. And of course, the issue is that the media can make a really big deal out of nine ballots that were mishandled, when, in fact, there were over 145 million votes cast. Right. 150 million votes cast. So maybe their goal is just generate some media attention by, you know, getting some sort of minor victory. And indeed, they have scored, I believe, in general, they are close to over. Of all the lawsuits that have been final decision, I think they're over 12 so far. But they've scored a few very, very minor victories. In particular in Pennsylvania, they did get a state court, at least so far it's on appeal to say that a certain very Narrow extension of the ballot cure deadline in Pennsylvania can't be extended. So. Okay, you know, that's fair for them to litigate on, candidly. And they'll tout the wins as being much bigger than they actually are because that's sort of their goal is to really stoke the fires in public more than in the courts. I should add that.

And critically. Yeah, go ahead.

Yeah. There is a second class of cases that have yet to be tested as we record. They're not looking good based on the quality of legal filings, but I think these are the ones that have more of a potential impact and candidly, I think are more worthy of sanctions and of derision from the legal community. And these are a series of cases apparently with a legal theory ginned up by some folks at something called the Bopp law firm and James Bopp, who is a very prominent conservative lawyer who has been very active in previous years in taking down campaign finance laws and other things. And the Bob theory, which has now been filed in Pennsylvania, Georgia, Wisconsin and Michigan, and now that Arizona has been called, it's likely coming in Arizona, is that there has been massive fraud. And we can go into exactly what the claims of fraud are. The biggest appears to be reliance on a totally debunked study claiming, and I'm not kidding, that in Georgia, which Biden has won by about 14,000 votes pending the recount. In Georgia, an estimated 70,000 votes were cast by non citizens for Joe Biden based on evidence that is just shockingly thin and made up. And then there's a couple of other violations. They've created a hotline for people to call in and they're literally putting these in a legal complaint. You know, Matt and Larry, they're saying someone called into a hotline and says that they requested an absentee ballot and didn't get one. And so there must be massive irregularities. And given these allegations, they then claim that the remedy is really extraordinary. The remedy is not to figure out the few voters who may have cast ballots after the deadline or some sort of irregularity, which again, there's not even evidence of that. But don't exclude those. Don't find the 70,000 noncitizen votes and just exclude them. Of course there's not 70,000 non citizen vote, but let's even taking the complaint at face value, instead what they want is they cite to this provision we just talked about three USC 5 and three USC 6 and the certificate of ascertainment. And what they say is do not let the state officials certify results, including votes from these counties where a high amount of irregularities were found. So what's the consequence of that? You know, that's what I want to throw it back to you to talk about. Right. What's the consequence of saying you can't certify these results? The results are so in doubt. Well, someone's got to appoint electors. Right. Larry and Matt. And so the theory is get the courts to say to Secretary of State Raffensperger and the governor of Pennsylvania and the governors and secretaries of state of Michigan and Wisconsin, you can't even move. We still don't know it's now December. We still don't know how many people have voted for Biden or Trump. So what next? And there I'll sort of leave it to you. But that's the lay of the land of the litigation strategy.

So it would be really extraordinary. Seems to me inconceivable that a court would say you can't certify, you can't send a slate of electors. It also seems inconceivable on these bases that they would say you can't certify a slate of electors. But the whole point is that they don't get a slate certified, as we've just pointed out. What that means is they don't get the protection of safe harbor. And then we have the chance to fight out one slate of electors versus another slate of electors. That seems to be the objective of this game, right?

Yeah, that seems right to me. So in a way, I think what these lawsuits are trying to do is to try to make 2020 into 2000 by drawing out the process of counting and certifying votes. So it stretches into December. And then the thinking must be, once it stretches into December and we're starting to bump up against these deadlines of the electors having to be certified in the electors voting in the Electoral College, that somehow a rabbit can be pulled out of the hat, either legally or politically, to ultimately have a different set of electors, a Trump set of electors voting. So it seems to me that the story that Jason laid out there is that the goal of these legal cases is not to win. The goal of these legal cases is to delay and to kick up enough dust to provide cover for some other move. And that other move is the appointment of a different slave of elect. So really, this is just a craze.

So one really striking thing that Jason said at the beginning was the quality of the lawyering here. The example that just is astonishing to me. There's so many. I mean, let's start with Four Seasons Landscaping as one. But that's not lawyering. But the one that's astonishing to me is it's the Pennsylvania lawsuit, the one that's trying to stop the certification of any slate of electors in Pennsylvania that's filed in a Pennsylvania district federal district court and also a state court, and then also simultaneously filed in a court in Washington D.C. the Court of claims. Okay, so what's astonishing about that to any lawyer is that, you know, the court of claims in Washington D.C. has no jurisdiction to hear any claim like this. The only thing the Court of claims could argue about is whether you got your reimbursement from your expense that you filed with the Department of Justice or something like that. So the idea that there.

That's right. It's supposed to. The Court of Claims has jurisdiction to adjudicate basically contract claims between the federal government and people who claim that the federal government owes them money. And that's it. So filing this claim in the Court of Federal claims in Washington D.C. is a monumental tell that the lawyering here is, is really not very good.

Okay, so let's say that they succeed in, as Matt was saying, just delaying it until December. Jason, what is the thinking or strategy or argument that gets them the right to then suggest there should be a different slate of electors that get sent to the. To send to Congress?

Well, the argument would then be that a court has declared that the choice of the electors on the choice for electors on November 3rd failed. That is, the state held the election under federal law, but failed to make a choice because this election was so riddled with illegality and fraud and questions of validity that now there is no actual choice that the electorate made? Well, what happens under a federal law that we discussed in the pre election miniseries, which is 3 USC 2, when there is a failure to make a choice? Federal law appears to say that electors can be selected in a manner as the legislature may direct. And this is taken from Article 2 of the Constitution which says that the presidential electors are appointed by states but selected by in a manner selected by the legislature. All of these states notably have Republican dominated legislatures and will have Republican dominated legislatures in December. It's a remarkable fact of both geography and gerrymandering that this half a dozen states that Joe Biden won are all dominated by Republican legislatures, in some cases with veto proof majorities like Wisconsin. And so they will, even if they have Democratic governors, apparently. Again, this is the fantasy, right? I mean, some people have already rejected this on the ground, but the fantasy would be they would say that we have to have votes in the Electoral College. Right? We're Wisconsin, we don't wanna lose our votes. But this federal court, under this fantasy, has said that our election was so riddled with uncertainty that we can't certify the results based on the vote of the people. So we failed to make a choice. So let's get together and appoint a slate of electors. And lo and behold, the Republican legislature would appoint a slate of Trump supporting electors. That, I guess is the, the legal and political end game. And again, it's a fantasy, but I think that's what they're shooting at. Larry.

Okay, so, but let's be very clear about the sources of authority that the Republicans might be grounding their right to appoint a slate of electors on. You've just identified one, which is this federal law that says if somehow you failed on election day to appoint your slate of electors, you have a right under federal law to appoint another slate. We've already described that that law was really never intended for this type of circumstance. That law was intended for what we saw happen in Georgia with the election of the Senate, those senatorial candidates. Georgia law has a requirement that you win a majority. And in both of the Senate races, nobody won a majority. So because they didn't win a majority, they were allowed to have a second election, a runoff election that will be on January 5th, 5th. And this provision, 3 USC 2 was originally set up for exactly that for states that wanted to do the same thing, like north New Hampshire for presidential electors. But now this is being grounded. This argument is grounded on the idea that failed could mean, well, that's been all sorts of fraud. This would require a court finding that the election has failed. Right. So the court would have to credit the argument that indeed there was a failed election in order to say that 3 USC 2 has been triggered. Is that right?

Yes, that's my understanding. That's my understanding of what they want we should say. Happily, the factual basis is extremely thin and many people recognize how thin it is. I mentioned that they're looking at really two groups of votes to exclude for this basis of fraud. One group is the supposed non citizen votes. As I said, this is really reprehensible for them to put in a legal complaint. The allegation is based on a study from some website called justfacts.com the study relies on a debunked single academic study claiming that 16% of noncitizens have voted. This was a 2014 study. So to be clear, there's zero evidence they have that noncitizens have voted in this election. They're relying on a statistical extrapolation from a 2014 study that was debunked because it apparently relied, and this is true, Larry and Matt, it apparently relied on missed clicks by people who participated in something called the Congressional Electorate Study, which has a very large sample size. And a very few of those accidentally clicked that they were non citizens. And a few political scientists in bad faith used that study to show that some noncitizens have voted. So there's no evidence of it in Georgia. But now here's the other really insidious move, and you just can't make this in federal court, in my view. They claim that they know 82% of these noncitizen votes would go for Joe Biden. How do they know that? You might ask Larry and Matt. They know that because. And this is true. According to that same study in 2008, 82% of those erroneous misclicks claimed that they voted for Obama in 2008. And so in federal court, they're coming to say to a judge, we should just assume that's what happened in 2020. They have no actual evidence. Right. They have nothing on the ground in Georgia in 2020 or any other state. And they're literally claiming that a federal court should credit this study claiming that 82% of voters voted for Obama over McCain in 2008 and just assume that the same amount voted for Biden in 2020. That's just irresponsible.

Okay, so just to be clear, what you've been describing here, Jason, is the article is the 3 USC 2 power, a statutory power that the federal government has given the state legislatures to empower them to pick a second slate of electors if the election has, quote, unquote, failed. We've already said these elections have not failed. It's not what that statute's about. A federal court, if it had a chance, should say, this is not a 3 USA 2 appointment of electors, but put that aside for a second. There's a second bucket that right wing commentators like Mark Levin have insisted gives the legislatures the right to pick a new slate of electors even though there's been an election. So, Matt, why don't you map that up for us?

This is what we've referred to in the past on our prior podcast episodes as the state legislature superpower theory. Article 2 of the Constitution says that electors in the Electoral college shall be appointed for the states in the manner that the legislature of the state thereof directs the underlying shocking fact about this is that the Constitution itself doesn't give people the right to vote for president. Instead, it says that states get to decide how electors in the electoral college are going to be appointed. And now for well over 100 years, every state has appointed electors in the electoral College by having a popular vote. But under Article 2 of the Constitution, that was initially up to the state legislatures to decide to have that popular election. So there's this theory that has been floating around that's found in a non majority opinion in Bush be Gore and has come back from the dead with a vengeance this year. It's a zombie theory that can't be killed, is that state legislatures can just decide to appoint different electors. So the idea here apparently is that these states that, as Jason mentioned as a quirk of geography and gerrymandering, have these Republican state legislatures could say, well, whatever the results popular election were in Georgia or Pennsylvania or Arizona, etc. The state legislature is, you know, in late November or early December going to step in and appoint Trump electors against the will of the.

Okay, now what's, what's important about that is that there are two separate arguments about why they can't do that, even if legislatures have superpowers. Two arguments about why they can't do that. One argument is that the federal Constitution says that it's Congress that gets to decide on the time when electors are appointed. And Congress decided that, and that was November 3rd. And so that was the day that this had to have happened under the superpower theory. And they can't come in later and pretend that it's November 3rd. So it's a federal power of Congress that they would be interfering with if they did that, that's number one. And then number two, an argument which Jason and I have published in Lawfare builds on the Cefalo case, which we promised we'd never mention again, but here we go mentioning it again. So the Cefalo case was the case, of course, that said that even though the framers imagined electors would have discretion, what democracy has done, according to Elena Kagan, has overridden that discretion. So whatever originally was true today, it's the case that, quote, we the people rule. And so that means electors have no right to go against the popular vote, at least if the state has told them to follow the popular vote and vote their conscience. And the argument we've made is, well, if that's true of electors, it ought to be true a fortiori about legislatures. Because if you imagine telling the framers that the legislatures have the power after an election, in the final days before the president is selected, to just pick whatever president they want. That would be fundamentally against the original design of creating an executive who was not dependent on the legislature. So we've said this second theory is inconsistent with cefalo. It's inconsistent with federal law. Other people have argued it's inconsistent with the Constitution, the due process clause that requires votes be ca, that votes that are cast be counted, equal protection clause, maybe even the First Amendment. It's wrong, wrong, wrong. And yet it continues to be uttered by these right wing, quote, lawyers who insist that in fact, the legislatures have that right.

And let's also be clear. You know, this state legislature theory has popped up in this election in a couple of different contexts, and there are different versions of it that go to different ends and are varying degrees of absurd. Now, one version of this theory that came up before the election had to do with the Pennsylvania Supreme Court's extension of the deadline for receipt of mail in ballots. The Pennsylvania statutory law said that mail in ballots had to be received by election day to be counted. And the Pennsylvania Supreme Court, on Pennsylvania state constitutional grounds had said before the election, said that actually due to all of the circumstances of having an election and a pandemic and the postal service having the problems that it's had, the Pennsylvania state constitution requires that that ballot receipt deadline be extended for three days to last Friday. Now, that issue went to the Supreme Court and a couple of justices weighed in and said, hey, Pennsylvania Supreme Court, on the basis of the so called independent state legislature doctrine, the Pennsylvania Supreme Court can't override what the legislature said, which is that the deadline was on November 3rd. So that's a version of the state legislature superpower theory that's gotten a little bit of traction, including at the Supreme Court. But that's not what we're talking about now. I think it's really important to be clear about that. What we're talking about now is a supercharged version of the superpower theory of state.

Yeah, we've called this the super duper theory. Super duper power.

Super duper power. The super duper power goes beyond what was discussed with the Pennsylvania Supreme Court. It goes on to say that notwithstanding anything else, notwithstanding the fact that there was an election, notwithstanding what federal law says, state legislatures at any time, for any reason can decide to appoint electors for anything. And that is something that the Supreme Court has never suggested is right.

Okay, so they've never suggested. No legislature has ever in the history of America done That. So this is completely unprecedented. But just one more minute to make sure we understand a little bit about the source or maybe where this theory is right. So, for example, Colorado's constitution says that the electors shall be selected through a popular election. So the state constitution tries to constrain the legislature. What the superpower theory, I think, properly understood, whether you believe in it or not, but properly understood says, is that even though the state constitution has said that the legislature has a power given to it by the federal constitution, so it can't be constrained by the state constitution. If it wants to decide to pick its own slate of electors, then under federal law, federal constitutional law, it should have that power. But that's very different from saying once they've had a state, once they've had an election, that they have the power to step in and then cancel the results of that election. That would be inconsistent with federal law, inconsistent with Cefalo, probably inconsistent with the due process and equal protection, maybe First Amendment law. It's just wrong, wrong, wrong. Right. So that's where we are. Okay, but here's the problem, and this is where we get to the scary part. They're wrong, wrong, wrong. They were wrong for the reasons Jason talked about, about challenging these election results. They're wrong for the ability to pick a new slate of electors. Wrong, wrong, wrong. But let's imagine it happens anyway. And so in the key swing states like Pennsylvania, Wisconsin, and Michigan, we've got Republican, we've got Democratic governors. So the Democratic governors are not going to sign the slate of electors that comes from those states. But in Georgia and Arizona, we've got a Republican slate of electors. And let's imagine that in those two states, in fact, they do sign the slate of electors. So it comes to Congress, and the vice president is opening up these slates, and he goes in alphabetical order. And so wait, let's pause for a second. Which is going to be first on this? I guess Arizona.

Right, Arizona.

So they go in alphabetical order and they open Arizona first, and they see their two slates of electors, and one is signed by the governor, as one is not signed by the governor. What does the vice president do, Jason? What is he supposed to say now?

Well, under current law, the Houses would go into separate session if there is an objection from at least one senator and at least one House member. And I think if there were a concerted movement supported by the institutional Republican Party to manipulate the results in this way, there would certainly be at least one objection in each House. And then the Houses would Go meet. And there's a detailed procedure in the Electoral Count act for them discussing this. And then they would vote about which slate to accept. Now, as we've talked about in previous episodes, there is a decision tree that the House and Senate are supposed to follow here, right? They're supposed to look to essentially the lawfully appointed electors in each state based on the results of official contests. And then there's a tiebreaker, which is the governor's signature. So, you know, the question is, what would the House and Senate do? Luckily, you know, we gamed out scenarios where they were just intractably partisan and it would come down to this governor's tiebreaker. And in Arizona, if Governor Ducey played this absurd game, which we should add, there's no indication right now that Governor Ducey is going to play this game, right, that he's not going to appoint the Biden slate of electors who are going to win by over 10,000 votes. But if he doesn't, if he decides to try and usurp the will of the voters, then presumably his signature would go on a slate of Trump electors despite the popular vote. And we gamed out a scenario where it would be partisan all the way down. And presumably that tiebreaker would go to the Trump electors despite what happened in the popular vote. So that's what would happen in Arizona, again, if Governor Ducey sort of goes for the red team. If you chase this down in the other disputed states, Georgia would also go to Team Trump because the governor of Georgia is a Republican. But the governors of Nevada, which we may or may not be including here, and looks unlikely to do this move, even though it's a highly contested state. But then importantly, Michigan, Wisconsin and Pennsylvania have Republican legislatures that could conceivably pull this move, but Democratic governors. So the tiebreaker in those places would go to the Democratic slate. And if you add it all up, if you add up the states where this move is possible and have Republican governors that would go to the Trump slate versus the Republican legislatures in places like Wisconsin, Michigan and Pennsylvania, but where the tiebreaker would go to the Democratic slate because the governor is a Democrat, Biden does get more than 270 electoral votes. That's the ultimate partisan sort of scenario.

Okay? So if they play this out and they realize that if they insist on the rule that says tiebreakers go to the governor, they're not going to win. So in the very first stage, it would be wrong for them, if they're going to play this game, to insist that the tiebreaker goes to the Governor, instead, they should just insist that the legislature has the right to appoint. And the legislature has appointed. And in each of these five states, the Republican legislature has said, here are the electors you should count. And now we get to the place where the vice president has this weirdly ambiguous power that we talked about on our own episode, and we talk about how this kind of could be triggered. So, Matt, so let's think about the vice president here. The vice president opens up Arizona and says, I'm going to look at these two slates and pick the slate picked by the Republican legislature. Because I read Article 2 to say that's the actor. And I don't think the electoral Count act constrains me, so that's what I'm going to do. And he does that for all five states. Now, obviously, the way that we've described this works is that there's going to be a resolution of each state before they move to the next state. So Arizona will kind of determine it if we figure out what's going to happen. But the procedure would be the vice president just says, this is what I'm going to count. Somebody would object. And then what happens when somebody objects?

What happens when someone makes an objection is that the Houses of Congress then have to decide that objection. So the key point here is that the vice president's role in the counting of electoral votes is, is not totally final and unreviewable. It's reviewable by Congress. So the Houses of Congress would then separate to vote on whether the objection to the vice president's move here is whether that objection should overrule the vice president's. The vice president's move. So the Houses of Congress then separate to vote on the objection. If the two houses agree with the objection, then the vice president is overruled. If they don't agree on the objection, then the vice president is not.

Okay, let's be clear about what that means. What that means is the vice president, if the Houses disagree, can basically say, here's the slate I'm going to count. So for each of these five states, the vice president conceivably could say, I'm going to ignore the will of the people. I'm going to vote. I'm going to pick the slate picked by the Republican electors. And what are you going to do about it? Because you don't. You don't have the ability to agree. So the result of that would be the election is overturned. Right?

Right. And so the question then is whether the Houses will disagree about this objection or not. And that's where the character and the conduct of individual members of Congress can ultimately make a difference because we have a Democratic House in the new Congress and we also have a very closely divided.

Okay, so the House will clearly vote in each of these hypothet cases of the Republican legislature putting up its own slate and that slate being offered as the votes that should count. The House will definitely vote. No, that's not right. The Senate, at that stage, it will be a 99 person Senate because the Georgia seat will not be filled. The Republicans will have a majority. So Mitch McConnell will be the leader. But then Mitch McConnell needs to get the vote of a majority of the Senate on his side for him to be able to agree with the Vice President. So what you're saying is it really depends critically on whether there are three or four of these Republican senators who then decide not to follow Mitch McConnell and instead to follow the vote of the people. Right?

That's right. And here is where it's so critical. What we've seen over the last week where unfortunately so many Republican politicians and senators have indulged these conspiracy theories about massive voter fraud. And that's really disappointing, but not all of them have. And those few senators that have recognized reality and have congratulated President elect Biden on his victory, they may end up having a role in deciding whether the Vice President's usurpation of the. Of the election could legally go through. And so if, for example, Senator Romney or Senator Murkowski and Senator Sasse of Nebraska, they've all said that President elect Biden has won, if they follow through with that in their votes in Congress about whether to allow the Vice President to make this move, then the objection to the Vice President's move to count Trump electors instead of lawfully elected Biden electors, then that objection would be upheld and the Vice President would be overruled. And as a result of all of that, we would have President.

Okay, so this is really important. We've already said, we said Romney, Murkowski, Collins has said this, Sass has said this. You could think of Toomey, who's retiring in 2020 22, Burr, who's retiring in

2022, Senator Lankford interestingly, has said that as of today, today we're recording that in his view, Vice President Biden should get security briefings. And so it looks like he's starting to move toward the camp of recognizing reality. So there, there seems to be a, unfortunately small but, but sufficiently large and growing body of senators who recognize the lawful election of President Obama.

Okay, so Jason, you're the optimist here. Are you convinced and this strategy of allowing this completely illegitimate slate to be counted in these five states will fail?

I am. I mean, first of all, I'm pretty convinced that it won't get there. The court centered strategy is not going to work. The dam is already breaking. You mentioned the four senators, but it's more as Matt, you were alluding to. Right. I mean, there's been growing frustration in the Republican caucus by not only the claims of voter fraud, but also just the complete denial of any accommodation to Vice President Biden. Even if he were to win and Trump weren't succeed, he should be getting things like intelligence briefings, even if the result were overturned. Right. And so even senators that aren't fully willing to indulge the Associated Press's reality based call of Biden have nonetheless said, look, they called it and we should be giving the Vice President intelligence briefings at least so that his national security team can come in and be prepared. It seems that others are being frustrated by the purge that Trump is enacting in the pentagon and in DOD. So all signs, if we were a Magic 8 ball, all signs point to yes in terms of will we have a safe landing here? And that's good. And again, I mean, I also see no reason, even if those senators who are asking say for intelligence briefings, if something happened about fraud, where they went back on their word. I just find it very, very unlikely that Murkowski, Collins, Sasse and Romney, who have been no friend to the president and who are among the most reality based senators in the Republican caucus, that they would give, you know, they would give comfort to these claims and be part of what I think would really be seen as a coup. Because Larry and Matt, what we haven't talked about, we've talked about the halls of Congress, but we haven't talked about the streets. And in a way that's not for us. We're lawyers here. It's very difficult to speculate on what the reaction to these kinds of events would be. But given the clarity of Biden's victory, the fact that over 5 million Americans will have voted for him rather than for Trump, the fact that he is on track to be certified for 306 electoral votes, by coincidence, the same number of electoral votes that Trump won in 2016, the actions you're talking about by Vice President Pence or Republican legislatures, they would not just be academic exercises for us to talk about on this podcast. They would be seen as a kind of a coup and lead to violence in the street. And I see no reason why those Republicans who are adults in the room would be a party to that.

Okay, so this actually leads to the final points, which turns out to be steps which you, the listener, can take. Because if we could make this final stage of the game clear to everybody by getting at least five, let's, let's hope for 10 Republican senators to affirm that they will not vote for a slate of electors that goes against the vote of the people in their, in the state. If they could say that right now, that would take all of the wind out of the effort that's being ginned up right now to organize this alternative game. Because if we knew 10 senators were not going to play, then Mitch McConnell would tell the President, stop playing this game because there's no way you're going to win. So what we're going to launch on our website is a petition that we ask you to sign that asks these senators to make that commitment. And if we can get the pressure from all sorts of organizations to push to this end and get that commitment, then the scenarios, the nightmare scenarios we've been talking about don't work. Because in the end, everything hangs on the integrity, an honor of the United States Senate. And if the Senate does not play the game to disenfranchise those voters, what Jason called the coup, if they don't play along with the coup, there won't be a coup. But if they do, who knows what kind of games get played? Okay, so you'll see that on our website. We're going to promote that and get people to join. Please ask others to join as well. Let's make sure we have one final stage outlined. Of course, these slates are not counted as slates. It's votes that get counted. The only way this works, of course, is if the electors have voted on December 14th. So these alternative slates need to have met in the Ramada Inn across from the Capitol and actually cast their ballots. Let's assume they've done that, and then when they've cast their ballots, then it's the ballots that will ultimately be counted. So there's been a question raised about the so called faithless electors in 2016, of course, the largest number of electors voted contrary to their pledge. We don't actually think this is any real threat this time around. And the reason for that is, number one, in 2016, the motivation for those electors was the fact that the presumptive winner in the Electoral College had not won the popular vote. That's not true this time around. And so there's no independent political, democratic justification for any game that would be played like that. Number two, the case we promised never to mention again, Cefalo, the Supreme Court upheld, 9 to 0, the power of the states to control those electors. So where there are laws on the books, at least that say electors, you have to vote the way you promised those laws would be enforced. And number three, what's the motivation? We've got to imagine a Democratic elector, somebody who's there for Joe Biden, being persuaded to vote for Donald Trump. Now, the most obvious persuasion, bribery, we have argued, and I think it's absolutely clear bribery laws would certainly apply to an elector who traded his or her vote for money. So those people would go to jail if they did it. And I don't see any motivation, especially given that there's this ultimate criminal threat. So people have been worried about electors. We should not be worried about electors. The Supreme Court has made it clear they are supposed to follow the will of the people. The question that's open now is whether the legislatures have to follow the will of the people. And we think again, if at least five, let's count for 10, Republican senators say the will of the people as the legislature, the will of the people as the voters have expressed, shall be followed by the legislature, then we could avoid this nightmare scenario. That's our hope. Of course, it's 13th and Friday, and so maybe there's reasons to be skeptical about that hope. But let me give each of a minute and to sum up and and then we'll close this interim update for the counting of these votes. Jason?

Well, you know, we, we've sketched out a road that thankfully it looks like we're not going to be going down. And so I guess I'll offer one brief short term reflection and one long term reflection. The short term reflection is, you know, it looks like the center will hold. And for that we can really thank the election administrators and the dedicated poll workers in every state. They've done a remarkable job, the poll observers, in a bipartisan way. The degree of difficulty was extremely high because of the pandemic and because of political pressures. And we really have them to thank for playing it straight here and giving us every reason to believe in the confidence of this election. The miniseries has highlighted that in the long term, and this is not surprising, that a system created in 1787, in the late summer at the very end, and sort of cobbled together with strings and band aids and patches, but still going because it's muddled through rather than having a full scale reboot has shown some problems and we've highlighted some of those. And the task in coming years, it will be for serious people to come together and say that it doesn't benefit either party to leave some of these holes open. And we'll see if we can be a part of that, too. But that's my lesson for the last week and a half that we've seen.

Matt.

Yeah, I echo that, both of those sentiments. The heroic work that election workers have done over the last weeks and months is something that I think we should never forget. And I'll add to that some Republican politicians, secretaries of state, who have gone on tv, gone on the record and said this was the most secure election that has ever been conducted in American history and have done so in the face of substantial political pressure. And, you know, these are small profiles encouraged because this is standing up for democracy as opposed to something like a legal coup. So we shouldn't perhaps give too much credit for that. But nonetheless, in 2020, we should take what we can get. And so we should appreciate those Republican politicians who are standing up for democracy. And then the second point, again echoing Jason, he said before that it looks like we're going to be able to land a plane safely in 2020. And I think that's. That's absolutely correct. It's undeniable, though, that there's been turbulence along the way, though, and more so in some ways than any election, certainly since 2000, and possibly more so than any election going back to the notorious election of 1876. So the question going forward, I think, is going to be what are the ramifications of the turbulence that we've experienced? There are many millions of people whose faith in democracy has been shaken by, by the turbulence that we've experienced. And the creeks in the system have really shown. So the question then will ultimately be how do we repair not just the legal architecture of presidential elections, but also the underlying ethos of democracy and faith in institutions that administer democracy that really holds the whole thing.

Yeah, I mean, I think we can go from the most important, what you just described, this ethos or faith in democracy down one level, to the way we pick our president. So there's arguments about whether we should continue with the Electoral College or have a national popular vote or something alternative to that, and then even one step down from that. What's been astonishing about this election and what this whole podcast has been about is how creaky and unreliable in the context where you can't count on people to act in good faith. The system for actually moving between an election and. And January 20th is. So at the very least, you would think that in this new administration we could get a commitment to a process to figuring out how we make this better. Because this law passed in 1887 in the face of the last critical Crisis like this, 1876, has obviously shown its weaknesses, and it would be wonderful to update it in a. In a simpler and clearer way. Okay, so that's our update. Let's hope this is the last time we need to do this, but if there's more, we'll be back. Thank you, Jason. Thank you, Matthew. And stay tuned.

Of course,

That's our episode. That's our latest update. We're hopeful this is the last update we'll need. We're very hopeful that this process will become incredibly boring. So that at the end of this month or the beginning of December, the election results in these five critical states will be certified. Those certified results will then clearly show a majority in the Electoral College. We believe 306 electoral votes for Joe Biden, which is the same number Donald Trump had. The difference is that this number is also with a 5 million person majority in the actual popular vote, and that those votes will then be transmitted to Congress, and Congress on January 6 will count them and this process will be resolved. But if things continue to be uncertain or if we begin to go south, we'll have another episode. So stay tuned, stay signed up. These episodes are produced by equalcitizens.us. you can find us on the web at equalcitizens us anotherway. Please go there to give us feedback and suggestions and a way for us to go forward. Give us your ideas and you can also share this episode or these podcasts at that location. Please do that so that we can get more people who at least understand where things stand and what's left to be done. We're grateful to those who have supported this process. We've obviously given these words, these thoughts pro bono. But the cost of producing and sharing these episodes is not zero. So anything you can do to support this process, we're grateful for. You can do that on the web@equalcitizens.us donate. Very original link we have there. Until we have another episode, stay tuned. This is Larry Lessig. Thank you for listening.

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