Another Way To Elect A President: Jumping The Shark

This podcast is part of the democracy group.

This is Larry Lessig, and this is the final episode of our miniseries, Another Way to Elect the President. In this episode, titled Jumping the Shark, we consider a range of crazy ideas that someone might just consider and propose for flipping the results in Congress. We don't think any of these ideas are valid from a legal perspective, but what we're going to talk about is whether from a political perspective they're possible. They're possible moves that might affect the results. Stay tuned. Okay, so here we are, our final episode. Let's introduce the players. You know Jason Harrow, who's been on our calls before. Jason.

I can't believe our series is coming to an end, Larry. And we're here just a few days before the election, which we hope will also be coming to an end soon. But as we'll explain today, it may be a while.

Yeah, let us hope. And Matt Seligman, it's good to be back.

And I share that hope that all of our podcast miniseries here has been very interesting and I hope ultimately irrelevant.

Yes. And Mike Rosin, you're here.

Me too. Let's hope this is all an academic exercise.

And then speaking of academics, we have two really great students who I've known for many years now who've been part of the seminar we've been teaching and are going to present some of our scenarios. Chris, why don't you introduce a little bit about yourself?

Hi, thanks for having me. I'm Chris Corcoran. I'm a student in the Law and Business program in my fourth year, my J.D. mBA studies, and I look forward to discussing these wild scenarios with you all.

Then, Dan, why don't you introduce yourself?

Daniel,

thank you very much. My name is Daniel Zeleznik. I'm a third year student at the law school, have had the privilege of taking a number of courses with Professor Lessig, and I'm very glad to be here to jump the shark with you all.

Okay, so the metaphor jump the shark actually comes from the series Happy Days, when Happy Days was losing popularity and they were looking for something they could do to revive attention to that dying series. So they had the Fonz jump a shark. And it looked so ridiculous and the whole thing was so ridiculous, it creates this idea of this last gasp to try to achieve what you're trying to achieve. Then it was ratings. In this case, the question is the election of the President. So we're going to walk through some scenarios that have these characteristics. They are scenarios that are kind of crazy. Most people looking at it from a strict legal perspective would say they're just wrong. But they are possible and they are moves we've actually heard people discuss. And so we want to lay them out there and then knock them down. And that's basically the presupposition we're gonna have through all of them. Each of us is gonna present one of them and then the rest of us are gonna pile on that top of that person and wrestle that scenario to the ground and show exactly why it shouldn't work. But we'll see. We'll see how successful we are. So we're going to go in a kind of chronological order in the sense of from the early states stages to the later stages. And so we'll start with Daniel. Daniel, why don't you lay out your jumping the shark scenario?

Great.

Thank you very much, Professor. And I want to emphasize this really would be a shark being leapt over. But the general outline of this scenario would be two parts. One, some late breaking invalidation of an entire class of ballots that had previously been considered legitimately counted. For example, mail in ballots that arrive after a certain number of days, after election day. And the second feature of this jump the shark scenario would be a failure for the apparatus of the state counting those ballots to sequester that class of ballots. This scenario comes to us from Brian Beutler at Crooked Media, and he describes it as Trump's corrupt legal end game. Basically, a commingling of some class of invalidated ballots with a broader pool of ballots. And no way to distinguish between these two would throw the count into chaos. And permit in states where a certain party controls the legislature, the legislature to take control of the process. And as one other note, this scenario was originally framed as one that might take place in Pennsylvania. As of yesterday, we've seen a letter from the Secretary of State ordering counties to sequester ballots that might see a challenge to that class. So it's that much less likely in Pennsylvania. But in principle, the scenario could still play out.

So I want to start with a legal question before we get to unpacking the politics of it. So what is our view about how that fact might weigh on the judgment that the class of ballots ought to be invalidated? So like if you said to the Supreme Court, look, you've got these reasons why you think this class ought to be invalidated. Like you think all the ballots are supposed to be received by a certain day, or you're worried that maybe the interpretation of the law by the state Supreme Court changes the law so it violates the principle that it's the legislature that should draft the law. All of that might be arguments in favor of invalidating class, but wouldn't there be a really strong argument on the other side, which is if you do that, then none of the votes in this state get counted and we lose the whole effect of the election. Shouldn't that weigh into the balance here?

I mean, I think it's an interesting way of variation on what legal scholars called Blackstone's principle. So Blackstone's principle is about criminal law and it comes from William Blackstone, an English legal commentator around the time of the founding. And he said that it is better for 100 men to go free, 100 guilty men to go free, than one innocent man to be imprisoned. And so there's an analogous question of ratio here. Is it better for 100,000 valid ballots to be tossed out or for three invalid ballots to be counted? And if we think there is a trade off there, what ratio do we strike? So if we know for a certainty that some lot of ballots in say, Pennsylvania as contrary to the Secretary of State's order has been intermingled and we know, let's say to a mortal certainty that there are three invalid ballots in there, how many valid ballots are we willing to toss out?

Okay, but then, but don't we. Doesn't that depend on having some sense of the proportion? So let's say that a state is going 60% for Donald Trump and 40% for Joe Biden, but the potentially invalid ballots are just 5%. So we know that they can't actually be mattering to the ultimate result. The idea that you would throw away that totally seems just completely disproportionate to a potential harm here, right?

That seems right. Yeah. So you're suggesting a scenario in which the entire state's ballots are thrown out and then. Well, then there's a question about what happens next. Does the state legislature gets to appoint the electors or are there no electors for that state? That might depend on the timing. So that's.

Yeah, I think there's another matter of proportionality we can't forget, which is, what about all the other elections in the state? What happens to them? What if there's a gubernatorial race in Georgia? There are two senate races, although I guess once for a vacancy so that seat would stay filled. Don't we need to treat the other elections with equal dignity?

Yeah, well, that's why I think it's useful in thinking about that number to maybe identify for the listeners and talk through a couple of classes of ballots that have this feature. One that people have mentioned are ballots that arrive after election day and that have been extended by state courts or state law. Dan, you mentioned Pennsylvania where it appears that that the ballots arriving between November 3rd and November 6th will be segregated. And the Attorney General of the state gave an interview today where he expressly said we want to avoid the Dan jump the shark scenario. Now he didn't use that phrasing, but that's what he wanted to do. But you can see that there are seeds to try and get a large amount of ballots precisely to increase that ratio. Matt, that you really interestingly talked about in Blackstone's principle. So here's one that I'm curious the panel's view on. It went pretty under the radar, but the Florida Secretary of State a few weeks ago issued guidance to local election offices that have to provide quote, secure ballot dropboxes that the definition of a Secure Dropbox includes 24 hour in person monitoring by either an employee of the election board itself or a uniformed law enforcement officer. No volunteers, no contractors permitted. That is a totally novel interpretation of Florida law that has been existing. The Department of State has never bothered to give any kind of similar guidance. And it's not clear they have the authority to bind that on any county board. But let's assume that that creates a predicate to have commingled probably somewhere like 10 to 20% of the group of ballots that were deposited in an unsecured Dropbox. So is that, I mean how close does it be? Right? I mean that that starts to get that ratio up pretty high. Right. Mad. And, and if the ratio is pretty high, then then what? That then could this jump the shark scenario really be in play?

Yeah, I mean I think, you know, you're. The Florida secure Dropbox scenario brings up, I think the two aspects of Dan's problem. One is the, the potential strategy of laying the groundwork for invalidating whole batches of ballots later because they were in a Dropbox that didn't have an armed guard, for example. So that's one aspect of the, of the strategy that we might be seeing in Florida. And then the second is if those ballots are then commingled, is that then a. Is the alleged invalidity of some subset going to be going to be a reason to toss out the entire precinct or counties ballots? Now one thing that I think is challenging is. So Larry brought up a good point that where the presidential election is not close enough to depend on the, on these discarded ballots, then at least for the purposes of the presidential election. It doesn't matter, though. Mike's point about down ballot races is very well taken, but I don't know what my ratio would be. You know, if it was 50, 50, would we count all those ballots or would we toss all of those ballots? I truly don't know the answer, and I don't know a who gets to make that decision. Is that judicially reviewable? Dan, do you have any thoughts about whether. So let's say the, you know, a county election official says we're going to toss out, you know, 100,000 ballots because we think there are a couple of invalid ones for the various reasons that you brought up. Could someone challenge that decision? And who.

Well, I mean, I think there should be standings, no doubt. But I think the premise that we're not exploring carefully enough is the idea that this is like a poison that taints the whole. Well, right. As opposed to the other presumption, which is, you know, maybe the ballots that came in late are exactly the same proportion as the ballots that were not late. And so therefore there's no reason to expect they're actually going to affect the results in one way or the other. So the idea that you throw out all of the ballots because of these other ballots, which you have no good reason to believe would affect the result, just seems crazy. So it seems that the idea of throwing away the election in order to purify the results from these ballots you have no good reason to believe are one way or the other, seems just not justified. If a court were balancing the equities, it would be hard for the court to conclude that it makes sense to disenfranchise the whole of Florida because of a speculation of what the ratio of late ballots is.

Now, let's be clear about why this would matter.

So

if we're talking about a discarding a subset of a state's ballots, you know, just the Miami Dade county ballots, and if we assume that the discarded ballots have the same ratio going for each of the candidates, then it wouldn't change the outcome of the election. And so who cares? We can count them or not count them. It doesn't make a difference. Now if we. So we can adjust.

Can I just, can I just push for that just to make sure we're clear about that? It's one thing to say that the mail in ballots in Miami Dade are at the same proportion as the regular ballots in Miami Dade. I'm not saying that's certain, but, you know, that's more reasonable than saying Miami Dade County's ballots are at the same ratio as every other county in Florida. That's certainly not true. Right. We know Miami Dade is much more Democratic than other counties in Florida. So the point I'm making doesn't necessarily carry in the way that you're carrying it here, Right?

Yeah, I think that's right. So I think we should be clear on the contours of this scenario. So. So you're suggesting, Larry, that an entire state's votes might be tossed out. And I'm wondering why that would be. So let's say that there is this problem with, with the non unguarded drop boxes in some counties in Florida. And then, you know, those physical ballots can be commingled with other ballots from the same, say, precinct or maybe same county, depending on how they're tabulated. But it doesn't seem to me that they would be commingled with other ballots elsewhere in the state because, you know, the process is that the ballots themselves are tabulated on a local basis and those, those tabulations from the local canvassing boards are then communicated to a central state canvassing board. So the problem with commingling arises at a more local level than a state. And so it seems to me that the, the way in which we could have effective disenfranchisement is not at the state level, but rather at the more local level. And as a result of that, I think that there is this concern, it's more plausible that there's this concern that the tainted pool of ballots, the allegedly tainted pool of ballots is not going to be representative of the vote totals for the entire state. And that creates a potential problem because if, for example, because of unguarded dropboxes, you toss out all of Miami Dades ballots, that could then change the results of the popular vote in the state. And that seems to me to be a serious problem.

Yeah. So I mean, and then I think it really presses the question of what are we assuming about the ballots we're discarding. So let's say that we take this hypothetical with unguarded dropboxes, which it would be interesting to see these conservative justices say here is the state changing the law contrary to the legislature, and so therefore that change is unconstitutional. Okay, Put that aside. Let's say that in every other county we look at the Dropbox numbers and they are in exactly the same proportion as the actual votes cast in that county. And so when you say they've been commingled, the upshot of that fact would be it hasn't affected the result. So Even if they are commingled, so what? It's not like it's going to change what the ultimate result is. If that were the assumption, I think it'd be really hard to justify throwing them all out. On the other hand, if you showed that the dropboxes were 100% Democratic or 100% Republican, and well, 100% is actually the same point. You could just count them all or take them all out. But the point is, if you see them tilting in one way or another or no clear pattern to them, then makes it more plausible to say that the taint is more systemic than it is identifiable or isolatable.

But I think the trouble, and then I'll move on to the variation on this theme, Larry, is that that premise, which you rightly articulated as being important, I think the argument on the other side will be that's unknowable. It'd be great if we could know what the Dropbox vote looks like and the non Dropbox look like. But what actually happened was the counties took all the mail ballots received in any way and put them in the same bin. So now we just don't know. Right. And so therefore we failed to make a choice. So on that theme, though, I did want to run by the group that there could be, in a way, an even cleaner distinction that the courts may wish to draw because there's a surprising amount of election rules that the U.S. supreme Court has never affirmatively blessed. One of those is, in person, early voting. Federal appellate courts have upheld this as being consistent with the law that requires presidential electors to be appointed on one day, which is November 3rd, and US senators and representatives to be appointed on that same day. But the Supreme Court has never actually said it's consistent with it. And same thing with several other aspects of voting, such as Ohio's law that permits ballots to be postmarked by election Day and received up to 10 days later. So this is not a commingling issue. But what if the Trump campaign or some campaign just gets the idea of saying, you know, now that Justice Barrett is on the Supreme Court, maybe now is the time to say to them, you should not count any ballots in Ohio, even though the law's been on the books for a while, that are received after Election Day because that is inconsistent with federal law setting an election day, or even make the incredibly bold move, which would be very disenfranchising. And I mean, people, 28 million people so far have relied on laws permitting early in person voting. But what if they were to make the argument those laws were all unconstitutional. Not that therefore Trump wins, but therefore this was an invalid election. In normal circumstances, we'd have a new election, but there's no time and Congress has provided this. We failed to make a choice. Let's let the legislature pick. So what do you all think? I know this is jumping the shark, so I will say I don't think this is super plausible, but they are gaps in the law that the Supreme Court has never affirmatively pronounced. So is there an opportunity here?

Yeah, that's a fantastic hypothetical, Jason. And just to provide a little bit more context with some of the orders that have come out of the Supreme Court over the last week, the issue that Jason is raising is different than the one that's come up in the Pennsylvania mail in ballot deadline orders. And then there was also a Wisconsin case and a North Carolina case, too. So just to give a little bit of background, those cases were cases where there was an extension to the mail in ballot receipt deadline that was put in place by part of the state government other than the state legislature. So in Pennsylvania, it was the state court, in Wisconsin, it was a federal court, and in North Carolina, it was part of the governor's executive branch. That's not the situation that you're talking about in Ohio. And so it raises a very different legal issue. The situation you're talking about in Ohio, the state legislature long ago passed a law signed by the governor. So that's good. Instead, what you're saying is, does it violate Congress's command that the appointment of electors take place on election day, not before, not after?

So I think we should distinguish the after from the before, because technically, all of these cases, like Ohio, where the ballots are being received after the vote has still happened by election day. So it's not like the vote is after election day. So to the extent that Congress has said this is the day on which the elector shall be appointed, that seems consistent with the same idea that, you know, it just might take a couple days to count the votes. This is what that is. I think that's the less problematic one. The more problematic one is, do you say that Congress's decision to make an election day an election day, a particular day, as opposed to the 34 day period that was originally the law where you could vote anytime during those 34 days, means that Congress is saying it must be a vote cast on that particular day?

Larry?

Yes.

It wasn't that you got to cast your vote on any one of the 34 days. The electors could be appointed on any day in the 34 day interval. And it was up to the state. And some states did have multi day elections.

Right, okay. But all I'm saying is that when you go from a period of time that allowed the states to give people many days to vote to a rule that's picking a particular day on which people will vote, the implication in Jason's question is does that rule say no state can allow people to vote before that day? Is that what the meaning of that law is? And my view is that might have been a plausible question originally. But here's where I think both the argument of stability and the kind of Noel Canning principle helps us. Right. Because the idea that you would discover today or right now, after, you know, 200 years, or almost 200 years, 180 years of practice, that allowing early voting was illegal under federal law is just kind of crazy. Like the law has been settled to, even if it was ambiguous originally, it's been settled to permit this. That's what the law should be deemed to say. And so that's the legal answer. And then the institutional answer, by which I mean, would the court ever do something like this? I think is even clearer. I mean, you know, they might like the president, or at least a number of them, but it would be institutional suicide for them to discover that the practice of the last hundred years. I don't know. Mike, when did early voting begin? Does anybody know when early voting began?

No, no, but I'd actually like. I think Congress spoke about this in the 1970amendments to the Voting Rights act in 52 U.S. code 105.02 D. Eric Goldwater sponsored that provision. It requires the states to offer absentee ballots to persons who will be for presidential elections, for persons who are out of their districts on election day, as long as the application is made at least seven days ahead of time. And it doesn't say the application has to be made no more than 30 or 60 days ahead of time. It's up to the states. And there's no provision that the absentee ballot can't be mailed, say, more than 10 days ahead of election day. And I read that as a very strong statement on the part of Congress that the presidential election ends on election Day, not that it must be started then. And if you grant that that's what Congress said about absentee ballots, then for early balloting, such as you have in Ohio, you'd have to show a real distinction between people who actually go to a polling place and vote in person prior to election day, and those who go to a mailbox and drop their ballot.

Ballot.

Okay, so what you've said actually helps, I think, crystallize what the strongest argument against Jason's position is. Because what federal law says is when the electors are appointed doesn't say anything about when voting happens. And what states have basically said is we will appoint our electors through an election and that election will allow people to vote before up to that particular day, although we'll receive their ballots that are cast on that particular day after in cases like Ohio. But that means that the machine to appoint the electors does actually crystallize on that particular day. And therefore it's not a violation of 3 USC 1 to say that you're going to allow early voting. And certainly if Congress has explicitly required early voting in the context of absentee ballots, as Mike points out.

Yeah, I think that the explicit requirement of early voting is maybe the most compelling part of this argument to me to, to demarcate the line between where 3 OSC, which establishes election Day for presidential electors, where it's violated and where it's not. We can look. So there's one Supreme Court case that's relevant, not about presidential election day, but rather for election day for congressional representatives. And that's the 1997 case called Foster v. Love. And it concerns a non partisan primary process in Louisiana. So what Louisiana did for many, many years was it had a primary where all candidates could run a single primary that was held several months before election day. So it was held in August. And then if someone got 50% of the vote in that primary, then there was no general election. The Supreme Court addressed this in a unanimous opinion in 1997, Foster B. Love, in an opinion by Justice Souter saying that this violated the analogous provision. And the reason why it did so is because the election was complete before election day. And so as a result of that, it was violating the requirement because the requirement that election day take place on election day. But that does seem different than what we're talking about here because this is a situation where there's no case in which the election ends before election day. Early voting, those votes still have to be tabulated and early voting is just a preview to election day voting. There's no state in the country that has canceled election day voting.

Yeah, I think that's right. Just to wrap this up so we can move on to other jump the shark scenarios, I could really only see this really outrageous argument being made if something extraordinary happened between when we're recording this on Thursday and the election on Tuesday. Let's say Joe Biden goes into the hospital because of COVID on the day before Election Day, and folks say, hey, all of my, all of these early ballots, they were illegal. And also, the whole point of this congressional law is to have everyone voting with the same information and to try and get the Supreme Court to buy a theory like that. I don't think it would work. There's huge reliance interests, and we've seen at least five justices in these stay applications from, as you mentioned, Matt, Wisconsin, Pennsylvania, North Carolina, elsewhere, South Carolina, witness requirement, be at least attentive to the fact that what's already happened can't be changed. And I think that's ultimately the way it come out. So it's, I guess, a teensy, teensy bit scary. It's fun to talk about, but it's a very small shark and I think it can be, I think we can get by it. Okay, so Larry, let me throw it to you for the next scenario.

Okay, so, Matt Seligman, you're going to talk about disputed certificates of ascertainment, and you're going to tell us what that means. First of all.

Yes. So this is going to go into the weeds of how the electoral votes are counted in Congress. So we previously had a wonderful episode with Larry and Jason and the nation's expert Law professor on 3 USC 15 about how to count the electoral votes. And so one of the provisions of this very deeply complicated statutory provision deals with the possibility that there are competing slates of elections. So this happened in 1876 in multiple states. And this is why the Electoral Count act was passed, is to deal with this situation where there were competing slates of electors and there was a question about which one to count. And the process that three USC 15 sets up is if there are multiple slates of electors that have submitted votes to Congress, then to decide which of those slates of electors to count, the two houses separate and vote each house which slate to count. If the two houses of Congress agree, then that's the vote that's counted. If not, it goes to something that's colloquially called the governor's tiebreaker. So the Senate, let's say, which is still in the hands of the Republican, says you should vote the Trump electors and the House has the Biden electors. So what happens then is that the governor of the state gets to decide. But what really the statute says is that whichever slate had been supported by the governor's certification is the one that gets counted. And what is the certification we're talking about here? So the certification is after the popular vote, that every state has the end of the state process. And where there's a handoff from the state process to the federal process of the Electoral College is a certificate of ascertainment that's signed by the governor. The certificate of ascertainment is the governor saying on behalf of the state, to the federal government, to Congress, that this is the slate of electors that we have elected. Now, there can still be multiple slates, and we've talked about that before, where there's a dispute and a slate of electors meets across the street from the State Capitol building in the Ramada Inn, but the governor is saying, on behalf of the state, this is the electors that we have appointed. And then Section 15 of the US Code Title 3 says that's the ultimate tiebreaker, whoever the governor has backed with his Certificate of ascertainment. One thing that we haven't talked about so far is what if there are questions about the Certificate of ascertainment?

So here's where we're jumping a shark,

and here's where we're jumping the shark. So if there's this multiple slate scenario, the houses of Congress have divided. We've just assumed so far that the certificate of ascertainment exists and there are no questions about it. So here's a scenario where that might not be true. So imagine that there's a dispute in Florida. It comes down to just a couple of hundred votes. The President has alleged that there were, there was massive fraudulent voting, but it looks like Biden is ahead. And the state canvassing commission says Biden won the popular vote, there's legal wrangling. And then Governor DeSantis, unfortunately, and let's hope this doesn't happen, gets Covid, and he gets a bad case of COVID and he unfortunately has to be put in the ICU sedated and on a ventilator. And in this scenario, let's imagine that he's on a ventilator and sedated, unconscious for the rest of the duration of this entire process. Well, now, has he signed a certificate of ascertainment or not? So one question is, what happens if he didn't? There simply is no certificate of ascertainment. The ECA doesn't tell us what to do about that. The second question is, what if there's a document, say the state Secretary of State, who also supports President Trump, comes up with a document and says just before he was put under, Governor DeSantis signed this certificate of ascertainment, supporting the Trump electors And the Democrats think it's a forgery. They think he was already unconscious when this document was produced, and they say there's no signature match. Taking a cue from the playbook that Republicans have used, and now we have a dispute in Congress about whether this certificate of ascertainment is a forgery or not. And Mike may disagree with me on this, but, you know, my reading of the statute is there. It simply doesn't provide a procedure for determining whether, you know, if there's an allegation that the governor's signature is a forgery. Now, this is, you know, as much as Jason's scenario was extremely unlikely, I think this scenario is extreme, extremely unlikely, because it, you know, about 10 things, including a governor being in a coma, have to line up. But nonetheless, here's a hole in the law. What do you guys think?

Well, I agree there is a hole in the statute.

Well, Mike, you're not. You're not reassuring me here. So what would we do? Any ideas other than pray for the health of every governor in the country?

Well, I mean, ultimately, Congress can choose to count how Congress wants to count. Right. So Congress can cure any flaw. And now we depend on Congress behaving with good faith. If that's true, there wouldn't be much trouble here. But the challenge is if they're not behaving with good faith and they're just voting in a purely partisan way. I guess that's the real question. Like, if we don't have anything that should resolve it on its face, then are we just stuck, as we've been stuck before, with purely partisan behavior by Congress?

Yeah. And if there's purely partisan behavior, then one of the curious things about this scenario, as I've been thinking about it, then it isn't the case that purely partisan behavior within the literal confines of the law leads to a partisan solution. It seems to me that in this situation, hardball, partisan behavior within the confines of the law leads to no outcome.

I mean, this is what I'm not getting. What do you mean, no outcome? I mean, you've got something that doesn't have a certificate of ascertainment. But Congress, you know, in good faith, let's say Congress says we consider this to be the slate of electors from Florida.

I agree. If both houses of Congress agree to count one slate rather than another, then this isn't a problem. But if, I mean, you're assuming good faith there, and, you know, let's not assume good faith for a moment, and then we have the Houses divide.

Chris, can I Ask if let's say that this happens and the Houses disagree and there's not a valid certificate with the Governor's signature, what are you suggesting would happen then? Is it the case that the Vice President would just not count any slate or it would be to the Vice President's discretion to count this late? Going back to kind of principles before the eca?

I think that's a really critical question. And I think Mike's deep knowledge of the pre ECA groundwork might help here. But we have, you know, there are two different ways to approach this. One is to say, well, no slate gets counted now because it wasn't the case that any slate got supported by both houses of Congress. And it also wasn't the case that there was a slate that was backed by the Governor's certificate of ascertainment. So no slate gets counted. But if the state of Florida is necessary for the President's reelection, then the Vice President, who is also up for reelection, might say, no, no, no, I get to decide at that point. And then we're back to the question that we addressed in a previous episode about what the powers of the Vice President as presiding officer are.

I think, Matt, that what you're highlighting here is if there is no tiebreaker and there is unlimited constitutional hardball as we've described in previous episodes, then you start to see the specter of what would have happened if the 1876 election was not resolved two days before inauguration by a committee. And as Chief Justice Rehnquist points out in his book, there was violence ready at the ready. Right. Because I think we could chase down the legal scenario, Matt. We could say that if Congress continues to disagree, by statute and by the operation of 20th Amendment, it appears that the speaker of the House would take office as acting president. But then you say, why would the Republican Senate accept that outcome? Right. If they're not going to accept, if they're going to go on a technicality and try and reject something, why would they accept Nancy Pelosi's authority as acting president or whoever is the speaker of the House? And if they don't accept that authority now, we're in really uncharted waters. Right? I mean, I don't, I don't think it's my purview to try and chase down whether that would be resolved by violence or some sort of negotiation or some sort of peaceful secession or temporary secession. But I sort of see no reason to keep tumbling down the path of law, because I think it's broken down.

There's no Law here. We're off the cliff. Okay, let's move on to another one. Mike, you're going to talk to us about a scenario that was the court's obsession in the argument in the Cefalo case, which we promised never to mention again in this series, but now I'm breaking that promise. So here we go.

So let's suppose that a week after Election Day, it appears that Joe Biden has eked out a narrow 271 to 267 victory and that he's got Pennsylvania in his column and none of the litigation we're worried about is happening. And then Thanksgiving weekend, we see a couple of Pennsylvania Democratic electors get on a private jet in, say, Harrisburg and fly to Palm Beach International Airport, and they're photographed in Mar a Lago. And they go back. And remember, Pennsylvania has no binding statute. They go back, and on December 14, as little as 2 of them vote for Donald Trump for president, denying Joe Biden the electoral votes of a majority of the electors appointed. And that throws the election into the House of Representatives, where the Republicans hold the majority of the delegations, we're assuming.

I mean, we don't know that yet.

All right, well, three electors vote for Trump, giving him 270 electoral votes.

Right?

It appears. It appears. And Vice President Pence against the Pennsylvania opens the package, and it says 17 electoral votes for Biden and three for Trump. And what happens? We know what happened in 1969 when a Republican elector in North Carolina voted for George Wallace rather than Richard Nixon. Congress upheld that vote after a debate.

I mean, it's not just an accident. Congress contemplated and upheld the vote.

And no one suggested that Lloyd Bailey in 1969 had been bribed. Bailey had an explanation. His congressional district had voted for Wallace. But there's no such explanation for these three Pennsylvania electors who are suddenly living very high on the hog. And accusations of bribery are abounding.

Okay? So one important fact to keep in play here is whether they've committed a crime or not. When we were preparing for Cefalo and Baca, there was a brief filed by the Campaign Legal center that said, we don't know whether that's a crime or not. We don't know whether bribery of an elector violates any federal law. I don't know whether it violates a state law, but we don't know whether it violates a federal law. I think it was our view, and we're pretty confident about this, right, Jason, that it does violate federal law. So those electors, if in fact they were bribed like that should be sent to jail. So could I modify it just slightly to, to make it less clear? Let's say that the three electors come from central Pennsylvania, where I come from. And Donald Trump has promised a massive new construction program in central Pennsylvania, a brand new steel plant.

It's gonna be Space Force headquarters.

Space Force headquarters in Williamsport, Pennsylvania. That's what he's promised. That's what he's promised. So these electors don't say we're bribed, we're not gaining anything by this, but we do think that the voters in our state would be much happier if we had a Space Force command center in Williamsport, Pennsylvania. So that's why we're changing our vote. So now it's not as easily imagined as illegal. It's genuinely the question of the discretion of the electors. Okay, so if it's that, my own view is we're stuck, there's nothing we can do because I mean, Congress could choose. Congress could take the view that even that means that the vote was not regularly given, that the ex post negotiation with electors is just improper, even if it's not bribery. So Congress could choose to do that. And again, we have to assume who Congress is. But Congress could choose not to count the vote because it wasn't regularly given. But if it's a divided Congress, that's not going to happen. Because the presumption of the ECA is you need both houses to agree not to count the vote and then it

goes to the governor's tiebreaker that we were just talking about. No, no, no, no, it wouldn't.

There's only.

Oh, there's only one filing.

Yeah, you're right.

And the scenario is worse if Republicans control the House because even if the votes are thrown out, there should be no doubt. I think there's no doubt that the Republicans have been. Excuse me. The electors in question have been validly appointed. And so long as Joe Biden doesn't have a majority, the electoral votes have majority electors appointed. The election goes to the House where if it's this close, I expect the Republicans will have control of the majority of the delegations.

Right. Okay. So is there. Jason, do you have an argument against.

Yeah, well, I do, because.

Why?

And my argument against comes in the form of a question. Why would the Governor of Pennsylvania signed that certificate of vote? Well, he doesn't have to. Okay, then let me back up. Why would the Governor of Pennsylvania, if he had an inkling that this was possible, not move to remove that elector?

How?

Citing. Citing as authority the expectation of Shuffalo and something like, I mean, there was an amicus brief filed in our case. It was filed on behalf of 44, 45 states in the District of Columbia in support of these binding laws. Now, close listeners may realize that's more than states that have binding laws. And the reason, according to these amici, is that South Dakota, which was one of those places, like other states, does not bind its electors by pledge or otherwise. But, but for that state, South Dakota told the court, custom and practice have dictated that electors honor the electorates and prevailing parties will. And I think there is maybe enough the Supreme Court didn't address that aspect of the amici's arguments in Cefalo, but there is enough in Justice Kagan's opinion. I think, including the last line, we the people rule to say that a state official could try and disqualify an elector who is, who is trying to do that. One other option, I believe that every member of the Democratic Party, as far as we know, I don't know that this has been like, this is not a law, but they have signed some sort of contract, some sort of non binding authority that says that a vote for someone else is, is an abdication of office as far as the Democratic Party is concerned. Whether that gives the state official any right to remove someone is another question. But I think you could combine that and try and get state intervention. So you're skeptical.

Yeah, I'm deeply skeptical. Because, you know, the whole premise of Cefalo was the states get to control. And after Cefalo, the states could have easily passed laws to exercise their control. But by not passing laws, the states might have been saying, we agree with the Hamilton electors, Electors ought to have discretion. So we're going to leave them with discretion. And that's why we don't have a law. I mean, the idea that you could appeal to the last crazy line of Justice Kagan's opinion to overpower that presumption of state granted discretion seems to me implausible. Especially it would be really implausible for this court. Right. I mean, in the particular hypothetical we're talking about, maybe if Mike had tilted it the other way so that this was, you know, a different kind of politics. But it just seems to me that would be a crazy interpretation of this most recent decision.

So does this make the prudent thing to do? So I rightly got shouted down when I brought up the governor's tiebreaker in my scenario because it doesn't apply when there's only one slate. So is the Prudent thing for a governor to do, to just appoint his own slate and sign a certificate of ascertainment just as a hedge against these sorts of rogue electors. And so what that would do then is it would trigger a multi slate scenario. And then presumably, if we're assuming bad faith, the governor's tiebreaker would resolve the difference between the two houses of Congress.

So all of this is done in time. So you're saying he appoints the slate on the same day, on the day of election? I mean, no, that doesn't need to.

He doesn't need to because we remember the Hawaii.

Right, right. So he points to slate, but the election. Electors vote on the property Dec. 14, in secret.

Nobody even needs to know about this.

Yeah. Oops. We turn out to have a slate of electoral votes. That is the slate that we want. I just found it in my pocket,

you know, and here's a video of them, you know, holding up the newspaper from the day to prove that they did it on December 14th.

Banana Republic. Here we are.

It's, I think that presidential electors hold federal office. So if they commit an act outside of Pennsylvania, are they subject to Pennsylvania law? If they hold federal office? Yeah. Good question. Right.

Well, I thought the Supreme Court answered that. Travalo says, yes, they're subject to state law. That's the whole point of why they.

No. Or felony law.

Oh, okay.

Also, our electors did what they did in state, so that's not an issue. I mean, if they did violate state law, just lock them up and don't let them show up and have replacements show up. And if we get to that, we're in a pretty sad state.

Right. So it would be a real mistake for them to announce that they're gonna vote for Donald Trump. I mean, they've gotta show up pretending to be Democrats and then vote for Donald Trump. And if they did that, then afterwards they'll explain that Space Force in Williamsport is a really great thing because having grown up there, I can tell you it really needs something like that. That city really needs a space for us.

FYI, something like this. There was a rumor in 1801 that something like this almost happened in New York in 1800 with an elector who was supposed to vote for Jefferson. And Burr would not have voted for Jefferson.

Wow.

And Aaron Burr would have been elected president by the electoral college.

Well, the good thing about that is we would have fixed the Electoral College back then.

Yes.

Okay, let's move to another one. I'm going to introduce one which I kind of. This is jumping the shark, but it's kind of scary. So the vice president is the president of the Senate, and the vice president presides, according to the law, over the joint session that counts the electoral votes. And according to the Electoral Count act, that counting happens after the new Congress has been seated. So it will be the new Congress that controls any disputes under the count of the electoral votes. So let's imagine that the new Congress is going to be a unified Congress. We're going to have a Democratic control of the Senate and a Democratic control of the House. And that, of course, means that any of these disputes that might have a partisan ring to them get a partisan resolution, quite clearly, but it's a partisan resolution contrary to the wishes of. Of the current president of the Senate, who is Mike Pence. So let's say Mike Pence says, you know, I think actually the Electoral Count act is unconstitutional, and there have been a lot of scholars who've suggested as much. And so it's not a crazy argument, even if we might think it's not right. But he says, I think the Electoral Count act is unconstitutional because the law can't constrain Congress from one Congress to another. And just like the Supreme Court is increasingly suggesting that legislators or legislatures can't be constrained by state law, Congress can't be constrained by federal law when Congress is exercising its role in the joint session to select the president. So Pence says, we're going to gather on December 31st, which means we'll gather when the Republicans control the Senate and the Democrats control the House. And so he says, I'm going to open the ballots, then you better be there to count them. Okay, now, the technical question is whether there would be a joint session. And there's at least a question whether to have a joint session. Both Houses have to have a quorum, and a quorum requires, according to the Constitution, the majority. So under the current House, if Nancy Pelosi says, hell, no, we're not going to show up, it would be hard for Mike Pence to declare there's a majority or a quorum of the House. So that would be hard for him then to make that count. Unless we have a version of the Space Force in Williamsport, Pennsylvania, argument where they've succeeded in convincing enough Democratic representatives that it's really in their interest, really, really in their interest to show up, and they show up to present a majority. And so then he announces, we're going to have the count. There is the count. There's a quorum in both Houses. The Quorum means that the joint session is in session. They proceed through the states. Any multiple slates gets counted according to the governor's signature, or maybe, as we said in the vice president's episode, according to how the vice president rules with no unified Congress to overturn him. And that produces the result that Mike Pence votes himself into the vice presidency and Donald Trump into the presidency. I've jumped the shark.

First of all, the phrase joint session is an informal phrase. There is no single body meeting. The two houses assemble concurrently in the same chamber and retain their corporate identities. The reason they're there is to find out if they have work to do, namely to hold contingent elections. When Brearley's committee reported the Electoral College proposal to the convention on September 4, the presidential contingent election was given to the Senate. And the text we're talking about said that the president of the Senate shall open the electoral votes in the presence of that body. And the House was nowhere to be seen. Two days later, after the convention has shifted the presidential contingent election to the House, the House shows up in the text and is present along with the Senate. But they each retain their corporate identity. There is no rule for how they vote if they are commingled. There's only a rule for how they vote as individual corporate bodies. And those rules are set by either the Constitution or by each House.

Okay, but still, it seems that the question that this is begging is, does the vice president basically have the power to force the House to show up?

Or if they don't show up, it's on pain of no longer having the opportunity to exercise whatever powers they have.

Certainly there's no force of law to compel the House of Representatives to show up at any date other than the date specified in the statute. Eight years ago, Congress wanted to go on recess starting on Saturday, January 5th. So they changed the law in December so that they would meet on Friday, January 4th, and they met on January 4th because that's what the law was for that cycle.

Okay, but if the vice president is asserting the law is unconstitutional, then couldn't the vice president say, show up if you want? It's totally up to you. I'm gonna open these ballots up, and I'm gonna count them. And, you know, if there's a competing slate, I'm gonna rule about which slate we count. And whatever slate gets counted will determine whether a president's been elected. And if the president's been elected, then good. If we don't have a majority, then, House, you got some work to do. Whether you're there to know you've got work to do or not. That seems to be what follows from what you've just said, Mike.

I don't. Well, I don't. First of all, the current statute says that they meet in the chamber of the House of Representatives. And I'm sure that Nancy Pelosi would not allow Vice President Pence and the Senate to show up whenever they felt like.

Okay, but you're fighting the hypothetical because we're assuming he's saying the law is not constitutional, so that, too, is not binding on him.

All right, well, I'm getting to it. I don't know enough about the rules of the House to know under what circumstances some rump version of the House would constitute itself to show up in the Senate.

Well, I mean, participate in this. And if the ECA is unconstitutional, then we're operating against the background of just Article 2 and just the 12th Amendment. And in that situation. Well, you know, the. The 12th amendment says that the Senate and the House show up and the votes shall be counted. But if the House just doesn't show up, you know, there. And there's an interesting symmetry to this, because could one. So we're right now considering a hypothetical where it looks like the. So the vote is happening in a day that was not specified by law, and one. One House wants to boycott that because they think it's contrary to law. And the question then is, we want to say, you know, because this looks like a hardball move by the vice President, we want to say there's something illegitimate about the vote that happens after that because the House hasn't shown up. But if we think about it on the other side of, you know, flip the scenario, should a single House in Congress just boycotting the count whenever it is to take place be enough to make that count not effective? Could the Senate just choose not to show up on January 6th and therefore make that count not effective? So whatever we do here, this. Whatever rule we think is the right one here could be used either as a sword or a shield.

Yeah, Jason, you got to save us here.

Well, I'm not sure I'm the one to save us, but I think that this could be one of those cases where the Supreme Court might save us because. Because the argument for. Yeah, well, the argument here for ignoring federal law could only be premised on the fact that if you let Congress count the vote six days later, the result would be different. And. And if that were the case, it's likely there is a clear electoral victory for Democrats in The Senate and likely Biden, absent games. And I do think that the signals the Supreme Court has sent us, you know, we are talking about all these jump the shark scenarios because we've identified all these gaps in the law. But so far, reading the tea leaves of the Supreme Court, I tend to think that they have signaled that if it's really close, there's a lot of arguments on the table that could throw it for Trump. They have not so far disturbed the election or disturbed lower court decisions in a way that would seriously upset this election and make it fundamentally different from elections that have come before it. And this is in the fundamentally different category. So hopefully the Supreme Court would come to its senses. It has not shied away in recent years, especially from getting involved in separation of powers disputes. So I don't think it would stay its hand. I think it might actively be involved and say that federal law has to be followed and they have to be counted on January 6th.

Okay.

But all of this is presuming a pretty important presumption. I mean, I agree the Supreme Court has gotten involved in all sorts of contexts where one might be surprised they got involved. Bush v. Gore is the clearest case. But we're talking about the count of the electoral votes by Congress to select the president. If there's a clear example of committed to a political branch, which is code word for this is a political question, which translated for ordinary people, means the courts stay out, this seems pretty clear. So we've got to assume that the court is going to decide to get involved for the purpose of declaring that Mike Pence is wrong in his interpretation of the Electoral Count Act. And here's where I think that it would be wise for the court to do that, because if the court did that, it would signal the court is independent of Donald Trump or independent of the executive. But you could easily imagine that some of those justices would all of a sudden find their strong argument for the political question doctrine to counsel that they should just stay away. And if they stay away, then let Mike Pence do what Mike Pence does. And if Mike Pence does it and declares Donald Trump president, then again, I think we're facing a pretty bloody moment.

Yeah. And I think the argument for this being a political question that courts wouldn't or shouldn't get involved in, you know, it's got some juice to it. So, you know, this is a federal statute, and the question that the court would be deciding is whether the Electoral Count act is constitutional. And that's the sort of thing that court courts do. But this is a federal statute that does absolutely nothing other than govern the conduct of Congress itself. It does not control anything outside of the Capitol building except by implication. So this is the sort of thing where even though it's a statute and courts decide the constitutionality of statutes all the time, it's a special kind of statute unlike almost any other.

Yeah. Okay. So if they decide it's a judicial, a justiciable question, then it feels like there's a strong reason to say the Electoral Count act is constitutional. Again, the Nol canning principle that came up in Cefalo seems to me to be overwhelming on this side. But if it's non justicial, if it's a political question, I haven't yet heard anything that's going to slam knock down Mike Pence. If Mike Pence starts opening ballots and starts counting them.

Ultimately, if Nancy Pelosi gets wind of this, she calls the House into session and puts the motion that the House should go into recess or adjourn sine da and the House just expires and there is no House until noon on

January 3rd, would that then invalidate the vote that follows? Well, two points. One is, so remember, this could be used as a sword. Could the Senate do the same thing to prevent there from being a, that's, yeah. Prevent.

Well, I, I, I, I, I think Mitch McConnell would look pretty foolish if he recesses the Senate for, you know, several months.

Yes.

Three days into the session.

Which, which so to alter the hypothesis, Larry's hype, is this going to work?

No, no. Ultimately, if there's no election, Nancy Pelosi becomes acting president on June 20th. Ultimately.

But Mike Pence would argue,

and the President of the Senate becomes whoever the Democrats choose to make President pro tem.

Right. And I was just going to add as a perhaps quota to this conversation. Remember, this scenario only has legs if the control of the Senate would change over to Democratic control on January 3rd. So McConnell's adjourning wouldn't do anything. And I see no reason why, if Pence tried to, Larry, hold a vote on December 31, I see no reason why the new Congress, with Democrats in control of both Houses, couldn't also hold the vote on January6 pursuant to law and according to their own rules, in the absence of the Vice President, have the Senate pro temp preside as the chair, which is Senate Rule 1.

Well, but, you know, does that solve the problem or does that just set up a situation where on January 20th we've got multiple people showing up to the balcony at the Capitol building asking John Roberts to swear them in.

And Sean Roberts has to decide who.

Well, you know, and that's a. That's a particularly ironic turn of events that, you know, John Roberts may make the decision that he doesn't want to decide this question at the Supreme Court, but then he has to decide this question on the steps of the Capitol building.

He actually doesn't. Calvin Coolidge was initially sworn in by his father, who was a Justice of the.

Yeah, that's right. The swearing is not it.

Well, so we can have two people who are actually sworn in.

Yeah. Probably the real tough decision is with the Joint Chiefs of who to whom do they give the nuclear code?

That's what the military.

Okay, that leads us. So that leads us nicely to the final scenario, which, Chris, you're going to present, which involves Nancy Pelosi. So why don't you set it up?

Great. This is. It's very close. I don't know if we resolved the question in the last scenario whether or not the count can happen without a quorum of both bodies, but this scenario assumes that it cannot validly happen without a quorum of both bodies. So keep the electoral counts act in play. It's still constitutional. The Houses are scheduled to assemble together on January 6th to count the votes. However, Nancy Pelosi has gotten wind that the Republicans are planning to enact some shenanigans during the electoral count and that maybe there's reason to believe that Pence and the Republicans still would hold the Senate, are going to cooperate to flip the election for trial. And Nancy Pelosi considers this to be a miscarriage of justice against the popular will of the people. And so she says, that's it. We're not showing up. It's kind of like Texas. The Texas legislatures, legislators from a couple of decades ago, and the Democrats just flee. They go into hiding, and no Democrat shows up on January 6th. And as long as you presume that the Democrats still have a majority in the House, then the fact that there's no Democrat there means there's no quorum for the House of Representatives. And so long as they can keep this up on January 20th, no president has been validly elected because there was never a counting session. And so Nancy Pelosi becomes acting president, and she stays acting president until such time as the House agrees to assemble with the Senate to count the votes. And they never have to. Now, you could argue that, Mike. I guess the one thing I'll add in is Mike Pence as the president of The Senate on January 6 could order the Capitol Police to go and bring the Democratic members of the House to the House of Representatives for the joint counting session. And then it becomes a little bit of a game of hide and seek. Okay, so what do you all think?

The very first precedent set by Congress in March of 1789 is that you need a quorum in both chambers in order to count the electoral vote.

How was that set?

Just go look at the first page of the annals of Congress. No quorum. We can't count the electoral vote.

So they actually waited and said they could not do the electoral count until there was a forum.

The statute from the Continental Congress said that the new Congress would convene on March 4. Members did in each House. I think the House had a quorum before the Senate did. And it wasn't until April 6 that there was a, there was a quorum in each House. And that's when they met. And nobody, nobody was hesitating, trying to hesitate to elect George Washington President.

And so the cause of that delay was because it took so long for the elected members of Congress to travel to the capital of New York City.

Yes. And if there was ever a time you could argue, well, you really don't need a quorum. That would have been it.

Okay, so. So let's assume. Let's assume. That's, that's great. That's great history. Let's assume from 1789. It's been settled. You need a quorum. Okay. That just tees up Chris's hypothetical more sharply. She says there's. They're not going to show up. The Democrats don't show up. So there's no quorum. Does that mean that she gets to be President or at least president until this session gets resolved on January 20th?

And, you know, let's think about this. The principle that we adopt for the 2020 election, set in time. So if we adopt a view where the speaker of the House can direct her House majority not to show up and therefore deny forum, does that give the speaker of the House an everlasting Trump car to become acting president in future elections? And if you think that an acting President Pelosi would be a pretty good outcome in January 2020, think about whether you would in 2028, like an acting president. Speaker of the House, Donald Trump Jr.

The 20th Amendment Congresses staggered the start of the terms so that the new Congress, if necessary, would perform the contingent elections. I mean, unfortunately, they didn't write that into the 20th Amendment. They didn't say that the tally can't take place before January 4th. For example, these Congresses were concerned that there might not be time for one or both of the chambers to organize themselves before the votes were to be counted. So the real challenge to the House is to make sure that it elects a speaker by January 6th, so that there's a Speaker in place who can then tell the House to all vacate the district.

Yeah, so, but the district. But that timing will work out just fine because the new House, the new members of the House take their office on January 3rd. On January 4th, they elect Nancy Pelosi to be speaker of the House. And in her first act as speaker of the House, she tells them all to go home, flee the Capitol, and they are out of town by January.

Okay, I've got a solution to this problem. The Constitution doesn't actually say anything about who the speaker of the House has to be, doesn't even say it has to be a member of the House. So why doesn't it, why doesn't the Democratic Congress, House of Representatives elect Joe Biden as Speaker of the House? So then Joe Biden does what you said. Joe Biden says, okay, everybody flee. January 20th comes along, he becomes president under the 20th amendment.

You know, Larry, I'm not sure that's a solution as much as an elaboration of the.

Well, no, but the point is that to the extent people resist it because you say Nancy Pelosi wasn't elected President, Joe Biden was. That's the.

Fair enough, fair enough.

Well, actually, a better solution is to have, if Democrats have a sufficient majority, have the Senator from Delaware resign, have Biden appointed in his place and be made President pro tem of the Senate, and then have Nancy Pelosi decline to take the acting presidency.

So now what?

That's a cleaner solution.

Now, one thing that's been, I think, an unsated assumption of this hypothetical is that acting President Pelosi or acting President Biden would have been doing this in good faith, that it was in response to a concern about, for example, a bad faith effort by Republicans to create a multi slate scenario and then have Ron DeSantis throw the Florida electoral votes to Trump and thereby steal the election. Now, there's nothing in this hypothetical that depends on this being something that's a good faith response to an attempted theft of an election.

Except that to the extent we imagine, the political context creates some constraints. The idea that you just flat out steal the election is different from you're responding to a threat of the election being stolen. So I think that Biden would be in a stronger position than if there were no predicate. You just basically had a speaker of the House behaving in a completely crazy way to swear themselves into president. The other question we haven't addressed is maybe at this point, the court steps in, maybe there's a mandamus action where the court says to Nancy Pelosi, show up. Your job is, you know, you and all the Democratic senators the Constitution requires, the electoral count requires, we have a count on January 6th. That's your duty. Show up. And then, then there's a question of like, I mean, that seems less a political. I don't know if it's less a political. I mean, that's equally.

It's in a political context. You know, there, there's a. The court stepping in at that point would be enforcing something that's grounded in the text of Article 2 and the 12th Amendment, but it would be doing so in the absolute shadow of. Of knowing what the political consequences would ultimately be.

It's worth pointing out that there's recent sort of precedent for something like this in Oregon, where the minority Republican state legislature fled the Capitol as a sort of filibuster tactic to prevent certain legislation from being passed. And it was precisely the conversation that we're having now what sort of enforcement actions could be undertaken. There were a lot of complaints that the state police were too gentle on these Republican senators who had fled their duties and not taking them into custody and bringing them back and depositing them in the courthouse in order to achieve a quorum. I think we would probably be having a pretty similar situation as to what the appropriate enforcement action would be.

It's interesting that we would not. I mean, it's interesting you would not question whether police officers have the right to arrest a congressman and bring them back, but we would wonder whether the Supreme Court has the right to tell the congressman they have to come back. I mean.

Well, actually, do. They aren't members. Wouldn't that be protected under the speech and debate clause?

Well, certainly, you know, by definition in the hypothetical, they're not on the floor of Congress.

So, I mean, speech and debate is

beyond who are they when they're in

a committee, but it's when they're doing legislative, when they're doing their work. So maybe they're claiming not showing up as doing their work, which wouldn't be new in Washington. But, you know.

Yeah, I guess I will add to

this is kind of a. There's limited value to this right, in that if Pelosi were to run this scheme and become the acting President. Or Biden. Or Biden were elected speaker of the House on January 4 and becomes acting President thereby, the House could never assemble. They could never do anything. Because once they assemble, as long as the Senate is there, the President of the Senate, which at that point would be the president pro tem, as there would be no vice president after January 20th. In this scenario, the Republican president of the Senate could insist upon the counting of the ballots.

Yeah. But some relevant, broader legal and historical context here is the rise of the Imperial presidency. Because if there's a Republican Congress, Republican Senate, there's no legislation that's getting passed anyway. So the only real prize here is the presidency. And acting President Pelosi would be able to appoint an administrator of the EPA who believes in climate change. She would be able to appoint an Attorney General who approaches the law somewhat differently than current Attorney General Bill Barr does. And all down the line. And so in a context of a divided Congress, which is something that is quite plausible that we'll actually see in the next session of Congress, is the real price is the presidency and the, you know, no legislation is going to get passed anyway.

You mean like in the last two years of the Obama administration or some

would say the last 20 years, although that's not quite fair.

Okay, so we're way over our time. I'm going to say that. I've got to, I got to say that we didn't accomplish what I'd hoped we had accomplished because I think a lot of these jump the shark scenarios are still bouncing around out there and they haven't been slapped down. So let's pray that we have no need for them that.

Again, on that point, you know, one thing that although we haven't found a silver bullet to, to bring down each of these jumping the shark, zombie, vampire, to mix metaphors, scenarios. One thing that's important to bear in mind is that the factual predicates of these scenarios are really unlikely. And as a result of that, even though our legal system may not have solutions to them here sitting a few days before the election, we should still have faith that the legal system has the capacity to resolve the problems that are likely to.

Yeah. And to that end, I think it's important to emphasize a point that I think we've not been careful enough to emphasize. So we've been talking about acting in good faith versus hardball politics. And in that conversation, we've been assuming a split Congress and we've been assuming Mitch McConnell is the majority Leader in the Senate, but the majority leader is only as powerful as his senators allow him to be. So in each of these cases, we're imagining Mitch McConnell behaving in a constitutional hardball way. We've also got to assume that every one of those Republican senators backs him up. And, you know, we've begun to see that Republican senators pay a political price when they do that, contrary to the view of their citizens. So you can imagine a massive campaign to try to educate people about what's going on that tries to convince them that, you know, this is completely outrageous, that, you know, they're ignoring the law and just doing whatever the hell they want. And that campaign begins to have effect, and Mitch McConnell realizes he can't get away with it. Now, one interesting twist to this is people have been complaining about Facebook and the ads Facebook sells in the context of elections because they're worried that those ads can be used to create all sorts of distrust and change the results because of the way in which they get played and targeted. Facebook has announced it's not going to sell any ads after the election because it doesn't see any political ads, because it doesn't see any purpose to allow people to use their platform to create political movements in the context of the count. So you can imagine that we'd be in a situation where what we need is to be able to go to Facebook and say to Facebook, let's run a bunch of ads to get people to realize how the presidency is being stolen. And they say to us, oops, sorry. Our newfound integrity of not involving ourselves in the political process forbids us from allowing you to buy those ads.

So what you're saying is that Mark Zuckerberg has perfectly bad judgments, unwaveringly bad judgment on these issues.

Well, or very good judgment. We're playing for the chess, and he's like, 10 moves ahead of us. Okay, with that, we're gonna call the. The podcast. Signed, I discharged. We're finished. I'm grateful to everybody for participating. Chris and Daniel, students for participating. But Matt and Mike and Jason, do you want to say goodbye before we say goodbye?

I won't say goodbye, Larry. I'll say fingers crossed that this goes on some sort of golden record into the Library of Congress, never to be unearthed again. Not that we didn't have a lot of fun and learn a ton, but that it's not useful to anyone.

Absolutely, no.

This has been great. This has been great fun. And I was. For a brief moment, I thought I had deleted the audio from today, but I didn't. It's actually there and renamed.

So I'll close up with the same hopeful note from Jason and Mike. But also I'll add another thought, which is that I hope that these episodes that we've recorded are not ultimately irrelevant. Because even if they're irrelevant in 2020, I think what we've, what we've talked through over these hours is just how broken the administration and legal regulation and implementation of the Electoral College is. And this goes far beyond the issue that people are most familiar with, which is just that it's disproportional and you can have a division between the popular vote and the Electoral College. Instead, we've seen that the machinery is broke.

It's not broken. It wasn't created. It's fragile. It wasn't created. It depends on the integrity of the players

and what 2020 has shown us, even if the election is so much of a blowout, that these legal issues don't really arise, what it's shown us is that that underlying presumption of good faith is something that maybe we shouldn't trust. And so after an election, however it's resolved, I think that everybody should think about how we can reform the implementation of the Electoral College, how we can have a new Electoral Count act of 2021 that helps us avoid these problems should they arise sometime in the future.

Okay, that's hopeful. I'm grateful to all of you. Were adjourned. That's the episode. That's our miniseries. We're just six days out from the election and there's a good chance, and I'll confess, if it's not been obvious, I pray that this is over on Tuesday night or Wednesday morning. Because if it is over on Tuesday night or Wednesday morning, that means the results are so clear that no one could deny them and no one in Congress would muck about to change them. And if that happens, then this whole series was for naught. And that would be a wonderful, wonderful thing. But if things are close on election night, if it looks like there will be a fight, if it looks like that fight will continue out for weeks, maybe months, then please share these stories and this perspective and analysis because we need a way to think about this in slow form, carefully and unpressured by ratings or by the need to break for an ad, or by the need to keep an audience focus and obsessed. We need to think about this the way the slow democracy would think about this, with care and love. For this democracy, I'm grateful to my co participants, Jason Harrow, Matt Seligman, extraordinary. Mike Rosen in particular, and the others who've joined on and off throughout the episodes, and especially the students in this strange seminar that I had the chance to teach at Harvard this year, Wargaming 2020. In just about two hours, I will hear them play out their strategy. If they were to flip each of five key states, how would they do it? So however depressed I am at this moment, I'm fearful I'll be even more depressed in six hours. These podcasts are produced by Equal Citizens US. You can find us on the web at EqualCitizens US and this podcast at EqualCitizens US another way. You can also find a place there to help us spread this podcast and a way to give us feedback and ideas about where you think another way should go next. And you can find a place there to help us support the costs of producing and distributing this podcast. Though we are doing this work pro bono, the work of production and distribution is not for free. This is our last word and before this election, let us pray that this election keeps us with the democracy that we all inherited and believe we sustain. This is Larry Lessig.