Another Way To Elect The President: Part 1 (Intro)

This podcast is part of the Democracy Group. This is Larry Lessig. When we launched this podcast Another Way two years ago, I hadn't really recognized all the different another ways that we would be considering here. The first season considered another way to frame a campaign for the President. The second another way to amend the Constitution. Season three considered another way to get a President committed to fundamental reform. The latest season has considered another way to get a Congress committed to reform. But today we're launching a mini season considering an another way that I've never hoped I would have to explain another way to select the President. I'm not talking about Electoral College reform or even campaign finance reform. I'm talking about another way that our President could be selected under existing law if this election goes sideways. So what do I mean by that? In the ordinary election, indeed in every election since 1876, the people vote. That vote selects presidential electors. Those presidential electors then gather in their states and vote, and that vote by the electors is then confirmed in Congress and selects the President. We've had serious fights at the first stage of that process. 2000 is the most famous, where the fight in Florida could well have flipped the result. But those fights have been resolved in the states in time, at least for the Electoral College to vote. Since 1876, the votes in the Electoral College have never deviated from the results of the people in a way that selected a different candidate. And never since 1876 has Congress tried to muck about with the votes of the Electoral College to select a different candidate when counting those votes, as they're told to do under the Constitution to determine the president. But 1876 was a weird election that is increasingly feeling very familiar. America was still wounded by the Civil War, still the bloodiest war in our history. The Republicans who had controlled the federal government during the war and since were desperately trying to hold onto power for both principled and political reasons. The principled reason was the continuing struggle to make the Civil war amendments, the 13th amendment against slavery, the 14th amendment establishing national citizenship and the equal protection, due process and privileges or immunities clause, and most recently enacted the 15th amendment making it illegal to discriminate on the basis of race when giving the vote at least to male citizens, real and effective. The political reasons were the same as they ever were, politicians holding on to power for all the rewards that power might bring. But the Democrats were fighting to restore as much from the pre Civil War America as they could. They were tired of Reconstruction as much of the nation was. The effort by the victorious north to reform the rebellious South. They remained committed to the racial inequality that had grounded and caused that war. They wanted federal troops out of the South. Many of them wanted to reconstruct that state sanctioned racism that had defined the south and much of America for the whole of America until that moment. Those differences of principle are not the differences that I'm saying we're seeing re presented today, though perhaps the fight is in some sense the same, even if the parties have switched sides. No, the similarity I'm trying to emphasize here is the similarity in the ultimate contest about the ultimate results, Both sides believed that the other side would engage in massive fraud in the presidential election. Both sides fought to preserve what each thought was their rightful victory. After the vote, three states sent the votes of more than one slate of electors to Congress. Congress then faced the extraordinarily difficult task of determining which of those multiple slates it would ultimately count. In the end, Congress punted that decision to a special commission by one vote. That commission selected the Republican slate in each of the three states. There was one other fight about an unqualified elector from Oregon, but we can put that aside here. The decision to count the Republican slate in each of those three slates gave the Republican candidate, Rutherford Burchard Hayes, a victory in the Electoral College by just one vote. That mess inspired Congress to pass the Electoral Count act of 1887. That act governs many aspects about how the electoral votes get counted. Its most important innovation, however, is in its procedure for resolving multiple slates of electors coming from any one slate. We've never had to rely on those procedures, but again, we've never really faced any real struggle in the selection of our president after the results in the states have been resolved. But this year could be very different. As we launch this podcast, the election still seems uncertain. If the results are overwhelming, then the stories that follow will be interesting but thankfully irrelevant. But if the results are close, then for the first time since 1876, I fear that we will see lots of struggles from the counting of the votes until Congress declares the results. If the results are close, I fear we're going to see an election unlike anything we've seen in this nation since at least 1876. In the episodes that follow in this mini season of this podcast, we'll work through the various possibilities that might well unfold. My job in this series will be to keep the stories hanging together, but much of the work in each of these episodes will come from the contributions of others. Some of those others are experts who have been writing about these questions for many years. Some of the others will be law students that I've been working with in a seminar that I've been teaching this term at Harvard called Wargaming 2020. And some of these others include people who've been participating in that seminar, including Jason Harrow, who you've heard on this podcast, as well as Matt Seligman, who is an academic who has been focused on the threats we face in this election for the last few years. Our aim in this mini season is to unpack what might happen as slowly and as carefully as we can. These issues are complicated. They are largely unknown among the general public, but we commit to explaining them in a way that will make them understandable to you. As you'll hear, not everything is clear. Indeed, not even the most important questions are clear. All that's clear is that this election could could well be a mess. This election could well go sideways, and if it does, we're not yet sure what the ultimate result will be. Our plan as we launch this mini season is as follows, reserving the right to change this plan as circumstances demand. We'll begin with the election night and the fights that might happen then. You might have heard about the red mirage or the blue shift phenomenon when the votes on election night appear more Republican than the ultimate ultimate count will reveal. We'll explore why that is and why we should expect it with two students from the seminar who have been trying to unpack that dynamic and what explains it. That's Episode one. In Episode two, we'll consider other examples of close presidential elections from our past. What's supposed to happen when the vote is close? How does the procedure work ordinarily? Episode three will consider the most likely scenario for trouble, a legislature appointing a new slate of electors after concluding that its election has, in the words of a statute, passed in 1845, long before the Electoral Count act, quote, failed. We fear, relying on that provision, some states may say that the slate chosen by the voters is not the slate that should matter, that instead, another slate chosen by the legislature should be counted by Congress. But whether that's the path to multiple slates or not, Episode four will work through how those slates are supposed to behave. On December 14, the day the electors are to vote, their votes get cast, they get certified, and they get sent to Congress. Now, of course, those votes will be known by all of us on the day the votes are cast. That wasn't the original plan, but the framers didn't know much about Twitter yet. Even though every vote is known, the votes of These electors must still be counted in Congress. In episode five, we'll explore the statute that governs how they get counted, the Electoral Count Act. We may split this episode into two parts if I can persuade two authors of two different but very important articles about the ECA to participate. Either way, by the end of episode five, you'll understand how the system is meant to function. Episode six will then focus on the weird role of the Vice president in this whole process. Some fear the vice President has an unchecked power in the procedure for counting votes, votes that could well make him again the Vice president, or in 1960 and in 2000 could have made the Vice president the president. I think this fear is somewhat overstated, but we should understand it nonetheless. Jason and I will then do a short episode, Episode seven, about a really scary possibility that is unfortunately not fully resolved by federal law. What happens if a candidate dies between the time of the election and the time the electoral votes get cast? You'd think that this was a clear question. After all, it's happened twice in our history. But in thinking that, you'd be very wrong. Episode 8 will address the scenario that has happened only once since the 12th amendment, at least in the election for president. That scenario is when neither candidate gets a majority of the Electoral College votes on the day that the Electoral College casts its votes. The Constitution then says that the House of Representatives must select the president. But how that's done, I predict, will just make your blood boil. And finally, we'll have a Jump the Shark episode when we consider a couple really crazy possibilities that some may well be thinking about. For example, why can't Mike Pence move the date when Congress counts the votes up so that if the Democrats capture the Senate, he can have the votes counted in a context where the Republicans control the Senate will consider that. Why does Nancy Pelosi have to actually convene the House to participate in the counting of the electoral votes? What if she objects? What if the House doesn't show up? These at any other time would be easy questions to answer. These questions at this time, however, are scary questions to answer. Now. Throughout these episodes, you're going to hear a common theme. If everyone were acting in good faith, the argument will go none of these issues would be real issues to worry about. But if either side steps beyond the constraints of good faith, then we don't really know how things play out. We've entered an age of irrational partisanship. As I describe in an article published on October 19 in the Atlantic that irrationality begets radical uncertainty. This mini season of this podcast will at least help us map what those uncertainties may be. I hope that mapping will at least help you understand what might unfold here, so stay tuned and subscribe. You can sign up for this podcast and this series at Equal Citizens. If you know of others who might find this interesting, please share that link with them. These questions are not simple. We as a nation need to inoculate this election against the uncertainty they present by spreading an understanding of what might happen before it happens, before people are invested in one way of viewing these results or not. We're going to work as hard as we can to get all of these episodes out before Election Day. Please help us make that work matter matter by sharing the links as broadly as you can. This podcast is produced by EqualCitizens US. Equal Citizens is a nonprofit focused on getting a representative democracy in America. If not again, then for the first time. You can find all of our episodes at EqualCitizens US anotherway. We hope you'll join and if you can help us produce this by sending us the resources that is will take. Not the intellectual resources. We'll give those away for free, hoping they're worth more than their price. But if you can help with the financial resources that it will take to produce these by contributing to Equal Citizens, we'd be grateful. You can find the donation button at EqualCitizens US donate. Thanks very much. I'm sorry we're at a moment when a mini season like this is necessary. It shouldn't be. We are an old democracy. These questions should have been resolved a long time ago. This is Larry Lessig. Thanks for listening, Sam.