Larry Lessig Speaks To Presidential Electors From Washington

This podcast is part of the Democracy Group. This is Larry Lussig. This is the third season of the podcast Another Way. For much of this season, we focused on what we've called the POTUS One Project, our effort to frame a commitment by the presidential candidates to fundamental reform. But this week, we're going to continue a conversation I started with my colleague Jason Harrow about the Supreme Court case that we will be arguing on May 13 by telephone to the Supreme Court, resolving, finally, the question whether presidential electors have a constitutional discretion to vote their conscience or whether they're obligated to vote as the state directs them through law. That's an important constitutional question. It's an important moral question. But it was a question that was very personal to the people that I will be speaking with today. Three of the electors who were fined from the state of Washington for voting their conscience at the Electoral college vote on December 19, 2016. These electors are our clients in the first case that the court will hear, Chiaflo versus Washington. And so in this podcast, we're gonna hear something from them in their own words about why they were doing what they did. Stay tuned. Okay, so welcome to our electors, Brett Cefalo, Esther Dove, and LJ Guerra. I'm so grateful for you being here. Let's start with the lead on our case. The case will be decided to follow v. Washington. Brett, tell me a little bit about yourself. Nothing to do with the case, but just who are you?

Well, I'm someone who's been involved in politics since I was 18 years old and had always been interested in the inner workings for me of the Democratic Party. I'm also someone whose career is in technology and always been fascinated by computers, systems. And I'm currently a crisis an incident manager with a major technology company.

Okay. And Dov, tell us a little bit about you.

I have done a lot of things in my life. I've walked across the country for world peace. I have been a mental health counselor. I now live at Esperanza, which is a senior living place in Seattle, Washington.

Wow. So you guys have been in the middle of the, well, the initial hotspot around this pandemic. So was your site hit by that?

No, my senior residence hasn't been hit by Covid. But the reason I'm on computer right now is because I'm at my church, because they closed off our computer access at my building. So that's my story.

Well, I'm grateful for you being here. And lj, you are very different from the other two. Give us a little Background of like, first of all, you're going to have to tell us your age because that's striking and a little bit of background of what you're doing right now.

I am 23 years old. Amongst the three of us, I believe at the time I was the youngest elector to default at 19 years old, which is, you know, I remember one of like the biggest questions that always got asked was how does a 19 year old get elected? So that's something that is definitely unique with me. Currently I work as a public affairs manager for a government organization and by that I work in the military, which I, you know, I don't talk about often just because I try to keep my, my military side separate from, from anything political, you know, up until I, you know, I finally do my service and I finish serving, which will probably be a while from now.

Right, but then you've, you've served in two very important ways. You one, serve, have served in the military, but secondly, you served here as an elector. Okay, so you three electors were joined by a fourth who also voted contrary to their pledge. But the fourth is not part of our case. Did you guys talk to that elector too or tell us what connection you had with him?

So Robert Satyakum was the fourth elector who, and I'm sure Dov and LJ also had conversations. But in my initial round after getting elected elector, I was calling all the rest of the electors to discuss many, many things. They were hour long conversations. And Robert Satai come. His stance was basically that Donald Trump and Hillary Clinton were identical and he couldn't vote for either of them morally or ethically and really had no interest in any approach to protect the country from any particular candidate. He was simply, it was a simple stance for him, which is his prerogative under the Constitution, in my opinion.

Yeah, okay, so the three of you were nominated, you were chosen to be electors. When exactly did that happen? In the course of the 2016 election. Brett, why don't you take that?

So it happened in, if memory serves correctly, early May for us at what are called the Congressional district caucuses. Washington State has a caucus process that I won't go into, but it contains various stages and you're elected at that year either as a Hillary delegate or a Bernie Sanders delegate. All three of us were Bernie Sanders delegates at that point. You could stand for a national delegate to go into the big national convention or, and, or you could also run for elector. The Washington State Democratic Party is one of the only parties that, that allows everyday party members to choose the people who serve as electors, Democrat wins in that state. And so I won in the second Congressional District. And I don't recall the districts that dove and LJ won, but their situations were similar in the process of getting elected.

And so, Dov, had you ever thought about running as an elector before this election?

It feels like I've thought about being an elector all of my life because I found out about the Electoral College in junior high school, and I thought, gosh, I'd like to do that someday.

So you spent many years thinking about this idea of becoming an elector.

Very true.

And have you been part of the Democratic Party, or have you been associated with the Democratic Party as an activist for many years?

No, I actually was a communist for a long time. And then I decided that I needed to take part in the Democratic process. And it was probably from when I was about 50 on that I thought about becoming, being in the Democratic Party. And so that's what I have done, been doing.

Okay. And then obviously, lj, you did not think about being an elector before this last election, because you obviously couldn't have. But what led you to think about entering into the contest to become an elector this time?

I think one of the things that made me specifically jump into the running for it was seeing the individuals were there that were there and realizing I wanted, first of all, my generation to be represented, people from my background to be represented, and, you know, my district to be properly represented.

It.

So when I went up there and I was given the option, it was just kind of, you know, I really want to be able to represent my district appropriately and show, I guess you could say that, you know, the young people are still out here. You know, people from rural Hispanic regions. We are out here. We're part of this. That's kind of what caused me to step up and say, I want to go for this. And I think that's part of the reason why I was chosen at the end.

So when you ran to be a delegate, I mean, to be an elector at some stage, Washington law says you're supposed to pledge to support the nominee of the party. Tell us about that. Let's start with LJ

for that. I do remember that really clearly. I remember receiving an email that was basically a piece of paper that stated we were required to vote the way that basically required to vote for Hillary Clinton. I actually still have that document saved. And I remember seeing that, and it was just kind of like a very big.

Huh.

That didn't sit right with me.

So this document you received before the election or after the election.

This was received sometime in the primaries. I believe it was right after. I can't recall if I received the document right after Clinton had been chosen or if it was prior to her being chosen. I'd have to look at the timestamp on the email that I received. I still have that email documented, but I do remember receiving that and being told we had to sign that agreement and it just not sitting very well with me at the time.

At the time you received this form asking you to make a pledge to support Hillary Clinton, it wasn't clear necessarily that Hillary Clinton was going to be the nominee. Most people thought that she would. But regardless, you were going to be a Democratic electoral. When you signed up to be a Democratic elector, did you think that you were going to vote for somebody other than a Democrat when you actually came to vote in the Electoral College?

I think for me at the time it was. When I received that, it was more for me, the fact that this document didn't sit right with me, if that makes sense. It felt like it wasn't like that. It just didn't seem like it was right for us to have received that. And I think for me, that's kind of what it came down to. At that point in time, before Brett had reached out to me, I was just going with what we were told to do. And then when Brett reached out to me and he was like, hey, here I am. Somebody else who had that exact same feeling as you, somebody else who saw this document and was like, this is not right. This is something that, you know, should be addressed. It was kind of like, this is something that we have the opportunity to change.

Let me just ask Brett to comment on the same thing. I mean, you know, we could have a theoretical. You can. I can imagine that you and I, if we had met in May of 2016, Brett could have had a theoretical argument about or a conversation about what electors are. But what I'm trying to understand is, as you went into the election in the fall of 2016, where the two candidates were Donald Trump and Hillary Clinton, and then there were two third party candidates, obviously, but those were the two major party candidates, did you have any expectation you were going to do anything other than vote for Hillary Clinton when you actually went to the Electoral College in December?

This is a question I get asked a lot. And the way I see it, the way I remember it, the way I truly believe it, is when I was talking to Levi, when I was talking to Dove, when I was talking to all the Other electors in Washington State and even a few in Colorado. I was talking about our responsibilities. Electors, and I was talking about Ray versus Blair and the questioning whether we were truly locked in to voting for the nominee we're elected for. We were elected for. That being said, there was never at any point, any concrete plan or decision made in my mind to vote for

anyone other than Hillary Clinton before the election.

Correct. I'm not gonna say I didn't talk about it. We talked about. I talked about zillions of different options and different scenarios. You know, candidates dying, you know, all these different scenarios that have happened in the Electoral College or could be affected with the Electoral College. I had thought out and I had talked about and I discussed, but there was no plan for me, at least until that night of the general election. It was all talk, theory, conversation, and trying to understand what our true responsibilities were. And it came to a head on general election night. That's when theory became reality.

Yeah. Dov, how about you? When you signed up to be a Democratic elector, did you have any doubt in your mind that when you went to vote in December, you were going to vote for Hillary Clinton?

I didn't think that Hillary Clinton was going to become the candidate of the Democratic Party, so I hadn't really thought about voting for Hillary Clinton. But as before, just before the election, it became clear that I would have to think of something else. Because. Because if Hillary Clinton didn't win the Electoral College, then I would have to do something else. And so I didn't think at the time that I was made an elector that I would have any second thoughts about voting for Hillary Clinton, although I didn't really want to vote for Hillary Clinton.

Well, that's just to be clear. You originally wanted to vote for Bernie Sanders, right?

That's right.

Okay. So when Bernie was not the nominee, but you were going to be the Democratic elector. You know, at least from the. In the world I was living in, in 2016, most people thought Hillary Clinton was going to win, so. But what you're saying is if you shared that view, she was going to win having become the nominee? There was no doubt you were going to vote for Hillary Clinton when it came to the electoral vote in December.

That's true.

Okay. All right. So, I mean, this is really important because one of the issues in this case is there's a big difference in the statute between the obligation to take a pledge, which the statute requires to support the nominee of the party, and the actual regulation of your vote, which is a different issue. It says if you don't vote in a certain way, you get fined. And we've maintained, because that's what I understood from the very beginning, that when you made your pledge, you made your pledge honestly, you honestly pledged that you were going to vote for the Democratic nominee, who you might have wanted Bernie Sanders to be the nominee. Many people obviously did, but Hillary Clinton was the nominee. So you intended in that pledge to do what you promised. But the election changed everything. On election night, when it was clear Hillary Clinton had won the popular vote, but had not, was not going to win in the Electoral College, that's when all of these conversations began. Is that right, Brad? I remember you telling me that specifically, yes.

As I mentioned earlier, I'd been talking to some Colorado electors too. And the reason it was Colorado is because Colorado is one of the only other states that selects electors the same way that Washington does. And I've been talking to someone named Michael Baca, who we all know is part of the co case, I guess I don't know what the term is for it. And I was working nights at an incident management center when general election happened. And I got on the phone with Michael Baca at about midnight and we talked for an hour on how to get Hillary Clinton elected through the Electoral College. Came up empty and decided that the only option at that point was to take a. Take a stand against Trump and trying to only make it. So he got 269 electoral vote.

Okay, so if he got, if he got 269, what would happen then?

So what happens then, per the Constitution, is the House of Representatives then when they meet to count the electoral votes, they count the electoral votes. And if they get to 269 and no above, then each delegation, each delegation, not state, the delegation in the House of Representatives gets a single vote towards president and they get to choose not from the top two electoral vote getters, but the top three. And in that case, each delegation will place one vote and someone has to get. Is it 25 or 26? It's either 25 or 26 downstate delegations.

26.

26. Thank you. And if they get that, that person becomes president. If nobody gets that. And the Senate at the same time has done the same thing for vice President. The vice president. It's incredibly complicated.

Yeah, it gets complicated.

The House of Representatives votes.

Okay, so, but to be clear, so the first thing you thought about is, okay, you guys are behind in the Electoral College. Hillary Clinton is, though she's won the popular vote. Was there some maneuver to get her to win in the Electoral College. We've since discovered. This is really interesting history. Practically in every election, but really quite aggressively. In 2000, people tried to persuade the electors who were supporting George Bush to switch to support Al Gore because they wanted to make an argument that the winner of the popular vote should win the electoral vote. So when you first recognize that there was this inversion, Hillary Clinton won the popular vote, but she had lost the Electoral College vote, did you at that stage think, well, maybe what we should do is try to persuade some Republican electors to switch sides that they were supporting the person who actually won the popular vote?

Absolutely. Michael Baca and I discussed that for at least an hour, if not more. But what we kept coming back to is, given the toxicity that was thrown against Hillary Clinton during the election, especially on the Republican side, and given that most electors are party insiders, we didn't see any math that would get us one Republican electorate to switch for Hillary Clinton, let alone the 37 required. The math just didn't work for us. We didn't see any. Any way to do that. And we were sad about it, but at the end of the day, we were trying to save the country in our mind. So sometimes you have to give up on the best plan, or, I mean, the best outcome and go for the least bad one.

Yeah. L.J. did you think about what the strategy would be that might be able to get Hillary Clinton to win in the Electoral College?

I believe a lot of that, you know, Brett is the individual that specifically should be credited for a lot of the thought and a lot of the work that went into that. You know, I think he was probably the main person who rallied us together and brought us together and put in most of the, like, the thought into everything and really figured out a way to get plans put into action. And so I think Brett would probably be the individual to credit a lot for that. Of course, there was some thought that, like, I would put into it. But Brett, honestly, he was genuinely, I think, the person who did a lot of, like, the planning and gathering and reaching out to individuals during that time.

But did you have any contact with other electors outside of the Colorado electors? Did you know anybody else who was an elected.

Yeah, there were a few smatterings of them in other states. But, for example, like New York and California, those are both electors that are chosen by very, very, very elite people in the party. So most of them were not necessarily as open to talking. So, you know, actually, funny enough, I had. I did have contact with the Alaskan Democratic electors and that's all I can remember. I don't remember having contact as of general election night. Obviously, as Hamilton electors rolled out, we ended up having contacts with almost everybody. But before the general election, no, it was pretty much just Colorado.

LJ

I think for me, before the, as Brett was saying before the general election, other than, you know, maybe a few conversations with Brett here and there, I hadn't really talked with any other electors. I do recall after general election, I did speak with two electors that are, were both for Utah, both Donald Trump electors, Republican electors in the state of Utah that I had talked to after the general election.

And so did you talk to them about the idea of supporting Hillary Clinton or this third strategy which we're going to talk about in a second?

We talked to, our conversation was more about the third strategy, specifically because they were Republican electors. So the first strategy was definitely not a plan that they were very open to.

And Dov, I take it you didn't have a different conversation with any elector or anybody you thought you might be able to persuade to flip from Donald Trump to Hillary Clinton?

No, I didn't. The people that I spoke with, well, I spoke with a bunch of Republican. Well, I communicated with Republican electors in Washington State. And my idea was, can we all just get along? It wasn't can I flip anybody?

Okay, so this brings out, I mean, the reason I'm asking this question, it brings out another really important point which I think people sometimes miss when they think about the so called faithless elector problem. And we're going to get around to why that's a terrible, terrible way to talk about this. And that's that it's really unlikely that you're ever going to imagine flipping somebody from one side to the other, because obviously people go into an election committed to their candidate and obviously the electors from the candidate who is not, who have, who has not won the Electoral College, the electors who were supporting Hillary Clinton were not on their own gonna flip the result of anything. But instead, what you guys then eventually decided you would do in this thing called the Hamilton Electors Project was to try to pull together a coalition of both Democratic and Republican electors who would decide to vote for somebody other than Donald Trump or Hillary Clinton. First of all, let's start with the name Brett. Where does the idea of Hamilton electors come from?

So one of the, in my hours and hours of studying before the general election, one of the things I hit on is one of the things that really told me, at least to me and spoke to my heart about what the founding Fathers were really looking at with the Electoral college was Hamilton 68, the Federalist 68, written by Hamilton, which talked about there essentially being a litmus test for presidential candidates coming through the Electoral College, that they not be a demagogue, that they not that they'd be qualified, and that they not be controlled by foreign powers. And it seemed to be the Founding Fathers speaking to us through time and practically defining what Donald Trump represented to me, and it seemed like many other Democratic electors. So that's where it came from. It didn't hurt that Hamilton the Musical was pretty big at that point, but that was an afterthought. That was certainly not the primary decision maker there.

And so inspired by Hamilton, then you and Michael Baca were the initial organizers, began to talk to people about trying to recruit electors. So, like, what was the game plan? What was the strategy you thought was going to work here?

Well, to be honest, we started on a shoestring and just Michael and I are just regular folks, so it was a scramble because there was so much noise out there right after the election. When you talked about people contacting their electors, that was actually a big problem for us. People were emailing and every one out of ten was a threat to these Republican electors not to vote for Trump. I don't know about you, but if I get hundreds of letters and dozens of them are threats trying to tell me what to do, I might not be very open minded. That's why what we were trying to do was say, hey, we're electors too. Let's have a talk about this, you know, and yeah, and we ended up organizing a group of skilled volunteers who, as much as I appreciate Levi's credit, a lot of the organizing work was done by people who are behind the scenes and had skills in these areas and gave up hundreds of hours a week in some cases to get it done. And we called as many lectures as we had got out in as much media as we could. And honestly, sometimes when I felt like I didn't have any energy left, it's Levi. Levi's the one who kept me going. I've rarely met someone as inspiring as lj. Sorry, LJ because if she can stand up and say what she did at 19 years old, I have no excuse, I had no excuse at the time to slow down.

So between the two. Between the two campaigns, I mean, the two states, Colorado and Washington, did you divide up the electors you were going to try to reach out to? Did you assign people, like the job of calling the Texas electors or calling the Kentucky electors? I mean, how did you actually practically organize it?

At some points it was that honestly, building an organization this large 40 days meant it was controlled chaos. Sometimes, I'm just going to be honest with you. We had plans and we had processes, but they were haphazard at last minute. So we did try to divide it up as much as possible. It wasn't any clean division. It's not like Levi had Virginia and I had, you know, Idaho. We just kind of got together each day and whoever was available and whoever had time, we would assign them a list of electors. They would call. They'd always try to call with compassion. That's the one thing we made sure of. This was never going to be an attack on an elector. This is trying to get to their better nature, especially since we heard from many of them that they were concerned about Donald Trump too.

And so LJ So what do you remember about the experience of talking to these electors that you reached out to, to try to persuade them on this third way strategy?

It's very nerve wracking, especially I think as a 19 year old who is very new to a lot of this. I don't think a lot of where we ended up was not in any way, shape or form where I thought we were going to go when I was chosen as an elector. And so it was just a lot of, am I saying the right things? Am I doing a good job? Am I, you know, representing well? Am I doing what I'm supposed to? Am I doing it right? You know, I was very, I was a very young individual and so it was a lot of, you know, trying to ensure I was doing a good job, I guess you could say, just because it was something that I had been thrown in, a lot of us, I think had been thrown into. And it, it wasn't the outcome we had thought was going to happen.

So and so, I mean, I imagine that many of the times you reached a Republican elector and said what you were thinking about, they would just either hang up or be very aggressive. But tell me a little bit about some of the most sympathetic Republican electors you might have spoken to.

I think for me, one of the most empathetic electors was one of the ones that I spoke to in Utah. I'd have to look up her name.

We don't need names. That's fine, we can keep their privacy.

Yeah, I can't exactly remember her name, but I do remember she was a very kind lady who she specifically sat down and when I talked with her, she was 100% willing to listen I think mostly because she also had kids who were my age, and she wanted to. I guess she didn't see me. I think that was one thing as well with being so young, is that when you're as young as I was when I got into the Hamilton electors, that some people will. It's very easy for people to brush you off because of your age. But she sat down and she really listened to me and what I had to say, and really kind of, at the end of the day, kind of took it, took what I had to say and didn't brush it off like a lot of other individuals. I found it.

And so did she say that she was being contacted by many, many people asking the same thing?

I believe that she had been receiving a lot of emails, but she wanted to. At the end of the day, she made the choice to stick with Donald Trump.

Okay, and, Dov, did you. Were you part of these conversations, these telephone calls?

No, I wasn't part of those telephone calls.

And so what. So what was the work that you were doing in this whole crazy period leading up to the vote?

So I was trying to meet with Republican electors from Washington State to see whether they felt the same way that I did, that Donald Trump wasn't the proper elector. And I organized a meeting of electors, Republican electors, and hardly anybody came. Just a couple of people came. One person came who was my counterpart in my congressional district, and another person came who was from another congressional district. So it was just two people that I got to talk with.

And when you would speak to these Republicans, I mean, was there hesitation about the idea of Donald Trump becoming president, or were these people who were just completely committed to the idea of this.

This man being our president, they weren't completely committed to Donald Trump, as I remember it, and that's probably why they were willing to meet with me. So, no, they weren't completely Donald Trump people.

Okay, Brett, what was the conversations that you were having here?

The conversations I was having were with many different people across the country. First, quickly, I want to say Dove. Doing that with the Republican electors in Washington was amazing. It was something none of it, none of the rest of us had thought to do. We were so focused on just directing that the Republican electors got elected, going and trying to find out what the. What the thoughts were. The Republicans who didn't get placed in that position was provided insight. So for the calls, I made many hangups, many people angry, many people calling me a communist, but so many amazing conversations with people who had true concerns about Donald Trump, but were Conflicted, because, you know, these are people who have been part of the Republican Party sometime since Nixon and almost always since Reagan. And these people are held very high regard in their mind. And a lot of them really wanted to find a way to not vote for Donald Trump, but at the same time, they were afraid, what if it's just me? What if it's just me and one other person, you know, what if there's no point to it? And I went through all of this and I'm exiled from my community and my hobby and what I do in my free time. It was never an easy, easy choice. Even if they hated Donald Trump, it's still a very difficult choice.

Now, did all of these electors blow. Believe that they actually were entitled to do something other than what the law said? Because obviously, you know, in Washington in particular, there's a pretty aggressive, there was a pretty aggressive regulation that said you have to vote and if you don't vote, you're going to be fined. But did people wonder whether they had that freedom, Brett?

Yes. In fact, there was a state, and I don't remember which one it is. I think it's Georgia, but I could be totally wrong. There's a state where it would be they could charge you with a felon. We didn't even call that state because we weren't willing to ask people to put themselves up for a felony to do this, because we really didn't think that was fair. But, but yes, people did bring this up. They brought up the, the their. And I would always direct them to Hamilton 68. I would always say, take a glance at Hamilton 68, see if you believe Donald Trump stands up to those qualifications Founding Fathers gave to us. And we'll be honest, in this country, the Republican Party tends to lean more towards what the Founding Fathers were trying to tell us. Originalism, federalism. And so I would tell them to read that they're telling you what they want from you and in a kind way, not in an accusatory way. I try to be as kind and understanding as possible.

Okay, But I mean, there are two separate issues here. One is like, who, what kind of person should be president? But the second question is what kind of power do presidential electors have? And obviously, the position the state of Washington has taken in Colorado and the Brief signed by 44 states, the position they've all taken is that electors are just cogs in a wheel. They're not there to do anything other than simply reflect what the vote in the state is. And if they do anything else beyond that then they are unfaithful or faithless electors. There must have been a period where you were struggling internally with whether you were being faithless or whether your job was to simply do what the voters in Washington had done. Dov, what did you feel about that?

My feeling was that since I had heard about the Electoral College from junior high school, my feeling was that I was supposed to vote my conscience and I was supposed to. And that vote was going to be completely independent of the Democratic Party, of Washington state, even of the federal government. It was going to be my. My considered opinion. And so when I got that notice in the mail about I was going to be fined, I thought, what is this? And I didn't believe that it was possible for them to do this to me. So. But then again, if I hadn't fined it, I wouldn't be allowed to vote my opinion. So I felt very conflicted about that.

Okay, let me restate the question then.

Okay.

Okay. So, lj, you were instructed by the law of Washington that you were supposed to vote for Hillary Clinton even though Hillary Clinton was not going to win, and even though you might have done something different to bring about a victory for somebody who is better than Donald Trump. When you read this instruction where you were told this is what you should do, did you wonder to yourself, am I allowed to do something different? Did you wonder, was it my right to actually exercise my discretion?

I think similar to Dove, I think a lot of young individuals, when they do learn about the Electoral College, and a lot of people in general when they learn about the Electoral College especially. The reason why I say this is because there was a video that was going to around that. I remember a lot of people sharing that stated basically that the elector, that the electors were like the last stand and that they could vote how they wanted to. And so I think a lot of people have that misconception that electors are allowed to do that. And so many people don't even realize that there are rules that are stopping electors from doing that.

Yeah, I mean. I mean, that's the whole question. You know, that our case is addressing whether those rules are constitutional or not. But I think that what's striking, I hadn't realized this until I'd started researching for this case, but the surveys that are done of electors show that the vast majority of electors actually believe that they have a freedom, a discretion, but the vast majority of Americans think that they have no discretion at all. And so, Brett, you were at the middle of, like, explaining this in many contexts. I know on the on television as well as to people directly. What was your experience in that conversation?

So my experience is being a giant nerd. And I am. As soon as I was elected elector, I dove into everything I could find. The Senate debates about the 21st Amendment. I think it's been a while. Hamilton 68, everything I could put my hands on. And I soon realized that it was clear that the Constitution intends electors to have complete freedom to vote for who they think is the best candidate. And that is constitutionally crisp and clear. While on the opposite side, the American people and the American culture have been lulled into believing that it's simply a. It's simply a. We simply go in there to push a button and that's it. We're just automated systems. And what I always use the metaphor for when I was going out and talking about this is this is like the pull in case of emergency lever that was sitting there for 100, 200 years and it's gotten dusty and people have forgotten about it. But it doesn't mean it still doesn't work when you pull it.

Yeah, I think this is important distinction. Right? I mean, there are many people at the framing and Hamilton 68 is the most famous, but there are other people too who had this image of a bunch of white male property holders getting together as electors and just reflecting and deliberating on who they thought the best candidate was going to be and then voting for that person. And that might be what the public wanted, but it wasn't necessarily what the public wanted. And so at the one extreme there's this view of total independence and freedom. And then the other extreme, which is what the states are arguing, is that you're just cogs. You're just, you have to vote as you're told to vote. And indeed Colorado has changed its law so that now when you hand in your vote, if you haven't marked the right box, the only box there, then your vote is discarded and you are considered to have vacated the office and somebody else is appointed in your place. So it's an automatic system. But the third view is, is this kind of safety valve view or Poland case of emergency view, which says that most times you're going to go ahead and vote as you guys intended when you first were appointed to vote for the candidate that wins in your state. But if something goes wrong, then we need humans in the middle to make a decision of what makes the most sense. And in a certain sense, you guys were trying to work out what could make sense in that context. L.J. did you want to comment on that?

One thing? I thought that was interesting. I remember I was in college at the time. I was sitting down, and I remember listening to, like, the next table over, and it was a conversation that I would constantly hear over and over from other individuals. But after, like, the general election, people making the comment that, you know, we still have the Electoral College, we still have the Electoral College, you know, it's not over yet. We still have the Electoral College, we still have electors. And I remember sitting there and that being constantly brought up, and I thought that was always interesting to have.

I mean, it's one thing to bring that up in the context of an election like 2016, where there's a clear reason why there's something troubling with the outcome. I mean, you know, we could say, and I'm sure most people who are in the Democratic Party would say that, you know, what was really terrible about 2016 was the candidate, Donald Trump, but independent of the candidate. The troubling thing about 2016, it was one of these inverted elections where, like, 2000, the person who won the popular vote hadn't won the Electoral College. So that's what sort of put it into a box where I think many people began to think, well, is there an alternative? Is there some way to fix this gap between the public's view and who actually got elected? Which is what triggered your conversations. But we can think of lots of other cases where it's even clearer. And I mean, you know, in our history, the most free, the largest number of anomalous votes is the way we try to refer to it neutrally has been in cases where a candidate dies. And the most prominent of those was Horace Greeley in 1872, and he had won 66 electoral votes, and 63 of them voted for somebody else. Three of them voted for Horace Greeley because they thought they were pledged to Horace Greeley. And the Congress rejected their votes because they said, you can't vote for a dead man. But the point is, in that case, what we would want presumptively is that the electors who were going to vote for Horace Greeley but now can't vote for Horace Greeley to exercise a discretion about who should we vote for now, given what the people who elected us wanted, like we are now representatives of those people, and given the changed circumstances, how should we react to it? And. And I think that when I heard you, I think I heard Brett talk about this in a television context, what was striking to me is that in a Certain sense, it sounded like you felt like you were actually better representing the people who had elected you by trying to elect a Republican than you would have by voting for Hillary Clinton. Is that the way you were thinking about it? Let's start with Brett on that.

Yeah. I mean, the way I was thinking about it was the best service I could provide my constituents in the 2nd congressional district of Washington was by trying to stop Donald Trump from getting in the position, into that position. I knew the majority of Washingtonians were terrified by Trump, did not support him, and I thought the best way to serve at that point was trying to get someone that wouldn't impact their lives as negatively as Donald Trump was. It was harm reduction at that point. And I think that was, in my understanding and my belief, the best way to serve my constituents. I know a lot of people disagree, but I truly believe it.

And Dov, what did you think?

I thought that the people that had elected me as an elector trusted me to use my best instincts and to find the person who would best represent the people. And I don't think that they wanted me to vote for. Well, I think that a lot of people wanted me to vote for Hillary Clinton, but a lot of the people that I was elected by were Bernie people. And I think that they wanted me to get us out of a hot situation with Trump.

So they were looking for a way out of avoiding to elect Donald Trump. And that's what.

And lj, for me, I believe, when, during that time, when I had made my speech that got me elected as an elector for my congressional district, one of the things I had stated was that I was going to represent my congressional district as best as I could. When it came down to it, I went and I went out into the community and I talked to people and asked them what they wanted in, you know, a presidential candidate. I found that a lot of individuals that I talked to, when I went out to talk to individuals, was that a lot of them, they like a lot of. Because my. My region is a. It's more of a red. Where I'm from is a. It's more of a Republican region. A lot of them, even as Republicans, you know, may not have necessarily liked Donald Trump, but he was, you know, the option that was given to them. And I found that a lot of people, you know, would have liked somebody else, but he was the Republican choice. But at the end of the day, for me, it was going through and trying to represent my region as best as possible and finding somebody who fit what they were wanting to do, if that makes sense.

Okay, so then you guys had lots of conversations working many, many hours leading up to the vote, which I believe, as I remember was December 19th. Was that that was it, right?

That's right.

And so on. And in that process, again, to make sure everybody understands the strategy, you were clear Hillary Clinton was not going to win because there was not a gaggle of 37 Republican electors who were willing to say, I'm going to vote for the Democrat because the Democrat won the popular vote. So the best option from your perspective, was not on the table. The strategy, the plan was if you can get enough electors from the Republican Party to join you to deny Donald Trump the of majority majority, then the candidate that the House would have a chance to vote among would include Donald Trump, Hillary Clinton and some third candidate, the person who received the most of these alternative electoral votes. And so you were working to get them to vote with you. Why was it important that there be Democrats as part of this strategy as opposed to just asking 37 Republicans to vote for somebody other than Donald Trump? What was the symbolic importance of making it something that seemed to have both Democrats and Republicans? Brett, let's start with you.

It wasn't just symbolic. One of the things that we heard of very early on is that the Republican Party was lobbying all Republican electors to make sure they stayed in the and I don't have direct proof of this, but I heard it from multiple sources. I tend to believe it. And one of the things they were telling him is this is a trick. This is a trick. None of them are going to vote for the Republican like they say they do. They're going to. So it was about if I'm asking, if I'm asking these Republican electors, please do this for the good of the country, put country before party, please. I have to be willing to do that myself. If I'm unwilling to put country before party, then I have no position to ask them.

Is that how you thought about it?

LJ Yes, I very much, you know, I'm very much an individual who you do what you say you're going to do. And so I would say that, yeah, that was very much, Brett put it perfectly.

And Dov, did you experience it like that?

Yes, I agree with Brett.

Okay, so we got the idea that both sides were going to have to sacrifice something. Most of the people who were thinking about an alternative to Donald Trump that might appeal to many Republicans were thinking about Governor Kasich from Ohio. You guys voted for Colin Powell. So what was the thinking that led to you voting for Colin Powell, Brett?

So I'm going to let, I think, LJ Take this, but up until the day of the election, almost everybody was thinking it was either going to be Mitt Romney or Kasich. But by the time we walked up to to the steps of the Capitol and it's time to walk into that room to vote, we knew our plan had failed. And then all three of us got together and had a conversation. I'll toss it over to Lee.

L.J. what happened then?

For me, like I had mentioned earlier, I had gone out into my community and talked to the individuals that were there. And the main question was, what is it that you want in a president? And I think the top three things that I received from was somebody who's well respected on both sides, somebody with military service and somebody who cares about education. And Colin Powell was one of the individuals who fit everything that I was looking for when I was looking at candidates.

So you suggested Colin Powell. Dov, you too were a Colin Powell supporter.

That's right.

And was it for similar reasons or what was motivating you for him?

I knew that Colin Powell was respected by people on both sides of the question, so I chose him to be the one that I would select.

Okay, so you make this decision before you walk into the Capitol. Now, you know what's striking about the events in Colorado is there's an extraordinary video which we're to going to actually refer to in our reply brief and it's going to be on our website. But there's an extraordinary video of the event and it's kind of a meeting in the rotunda and there's looks like about 100 people sitting on chairs as they're voting. What does it look like for you? Where are you voting and do people know what you're going to do or what's actually the way this plays out? Dov, why don't you tell me that

when we went to the State House, we were taken to a room I'd worked in the State House before. We were taken to a room that had room for about 150 people total. And then there were spectators and then there were we electors. So I felt comfortable and in the room and there was a little bit of folder roll before we actually got the paper to vote. And when we got the paper to vote, I just marked, I wrote down the names of the people that I wanted.

What about your pen?

Oh, I can't remember what was with the pen?

Yeah, we were all issued these feather pens to sign the forms and doves didn't work, and she had to borrow the gentleman's next to hers. And we're all kind of. There's a picture actually of us all smiling and grinning. And it's only because, you know, we're dealing with a broken pen here at the place where you're. The president is getting elected. It was just a moment of levity in a very serious situation.

But when you say there was a lot of folder art, do you mean that. I mean, there are 12 electors who are going to vote. Right. Do you mean that they knew that you were not going to vote for Hillary Clinton, or was there something else going on?

No, people did not know that I wasn't going to vote for Hillary Clinton. I hadn't really made that public. And so I was feeling uncomfortable about that. And I actually, up until the moment that I wrote down what I wrote down, I didn't know what I was going to do. But in the end, I wrote down Colin Powell and Susan Collins, who's on the outs now, I guess.

Yeah, Brett, people must have known what you were going to do.

Yeah, absolutely. And just to give you a little broader understanding for what it looked like that day, I got there a few hours early, and there were already hundreds of demonstrators there covering the Capitol steps, coloring the internal steps. They took us into a room with the Secretary of State, who, while she's a Republican, and I disagree with her quite a bit, she treated us with utmost respect, even knowing what I was going to do. And then as Levi and as LJ And Dove mentioned, we kind of got around a circle and had a quick conversation, talking about who we thought we were going to vote for. And when one of them mentioned and Colin Powell, I realized he's the perfect choice for this. I hadn't gone into the Capitol building thinking about him at all. And we also decided that, hey, you know, let's show extra respect for Senator Clinton, for Secretary Clinton, and, you know, let's pick a woman who we think would make a great president and place a vice presidential for vote for them. So, yeah, but everybody knew what I was going to do. But they still treated us with respect and held, unlike Colorado, held a very respectful and constitutional meeting.

And LJ did the other electors try to engage with you about what you were going to do or try to persuade you to vote for Hillary Clinton?

Not really. I don't think. I don't think I really had a lot of conversations with the individuals that were there. Once again, I think that might have also been just because people of course they knew what I was planning on doing. They knew. I think I was probably one of the more vocal individuals in the state of Washington. I know that a lot of people probably knew who I was when I came up. And I think that a lot of individuals just kind of didn't want to. You know, I try to figure out how to word it. I'm sorry. But basically, it was just. There wasn't a lot of interaction with the other electors, especially about politics. There was very few conversations about that at all.

So the picture, again, that Hamilton seemed to fantasize about, that you all would just sit around a table and sort of brainstorm about who the right candidate would be. That's not at all what you experienced when you went into that Capitol, into that room. And so when you voted, how did you actually physically vote? Did you have to sign individual forms or. I mean, how did they know who each person voted for? Dov, how did that happen?

It seems to me that there were pieces of paper in the folder that they gave us, and the pieces of paper had blank spaces on it where we could write the name of the person that we were going to vote for. And so that's what I remember. Do you remember something different? Was that L.J.

yeah. Basically, in the folder, they had a very fancy notarized form, again, very different than Colorado in their little pieces of paper.

But also, I wanted to ask you to tell us about Colorado.

Absolutely. So there were. There were big, fancy pieces of paper that were very calligraphized, if that's a word. And there was one for president and one for vice president, separate ones. Those got turned in, sent up to the chair, the elected chair of the electors counted. And then I think it's something like six or seven lists of all the votes have to be signed by all the electors. So it's just a lot of signing your name over and over with a quill pen. But it was a beautiful room, all marble, you know, back from the 1800s. It's a beautiful room.

And did the audience participate? Did the audience cheer or get angry when that happened, happened, or what was the audience's reaction to it?

There was a moment where we were all allowed to kind of say our piece, like just make a comment. It was kind of comment for electors. And there were some mumblings in the crowd when a couple of us spoke, but other than that, I don't remember anything. But. LJ do you remember anything like that?

I don't remember anything particular from the crowd. I just remember one thing that was unique about our situation was how many people were there. There was like a big, very big outcome of individuals who had shown up and that was not usual. I remember one of the individuals who worked there who was just like, wow, this is the biggest turnout I've ever seen for the electors voting. Because our. We were, if I remember correctly, it was on camera. Everything was filmed. Our voting process, our little. As we sat around the table and all that stuff. We were, it was all filmed and we had individuals that were there to watch us as well who had come to see the process. And I just remember one thing that stands out to me is somebody who worked there just mentioning how, wow, this is the biggest turnout we've ever had for our electors voting before. This is the biggest turnout I've ever seen. I remember that really stood out in my mind.

Yeah. So, I mean, by the time this vote happened, you knew, because you were the Pacific time zone, you knew from votes happening in the Eastern time zone that this strategy was not going to work, but you still went through it anyway. So why did you go through with it? What was the reason to go through with it when you knew it was going to achieve what it was supposed to achieve?

The reason is because we had made promises to every Republican elector we had spoken to. We told them that we were going to put country before party. And when you make that promise and it's based on the Constitution, the highest law of the land, in my mind, yeah, you have no other moral choice. It was still hard to break the state pledge, but there is a higher law and I believe that's what we were following. And that's really where, where I was coming from.

So that's what always struck me about your story, is that you were clearly being faithful both to the pledge that you had made, but also to the people who had elected you. And so this name that we typically use to talk about people like you, faithless electors, is really an unfair description in this context.

It's insulting.

Insulting.

Yeah.

Yeah. L.J.

for me, it's just once you, when you say you're going to do something, you should make sure that you go through with it. And similar to lead to what Brett has been saying, it's just if you say you're going to do something, you keep those promises and you hold on to that.

Right. And for all three of you, this was not going to be costly, costless, because by the end of the year, the, the state had decided that they were going to bring a civil action against you. 4 u 3 plus the other one who had voted contrary to the pledge and fined you $1,000 each for exercising your discretion to vote contrary to the vote of the people in your district. Were you surprised when the judge issued that thousand dollar fine against you? Did you think that maybe they would show some compassion or understanding, or at least understanding about the weird election that this year had been? Brett, let's start with Brett.

I was ecstatic because I knew what it meant. It was going to be the first time in the history of the United States where an elector had been penalized under a state law, and we would have an opportunity to see if that law is truly constitutional or not. So I was ecstatic.

When they find us, Dove, what was your first thought?

My first thought was, my gosh, they're actually going through with this. I was surprised.

Yeah. L.J.

it was just when we got it, when it came in the mail for us, I was just like, well, there it is. It was something that we. We had expected. It was an outcome that, you know, we knew was possible. And I. I was not surprised when we received it. I remember my mother was quite panicked. She was like, they really did it. They really did. And I was like, yes, mom, they did. That was. I remember that being a very funny moment.

And I mean, $1,000 is $1,000. I mean, this is not small potatoes, right? I mean, it's not like you're just going to be able to write a check and walk away.

That is correct. Especially. I come from a very. I come from a very big family that, you know, lived constantly paycheck to paycheck. There was a period where we were homeless when I was in high school, and I was the only one who was working. And so $1,000 is definitely something that we didn't. It's not something that my family or myself would ever see as small or.

Dove, what was your reaction to that size?

Well, I knew that they had sent me this pledge, and they had said that if they were going to do this to me, but I couldn't believe that they had actually done it.

Because you thought that they would understand why you did what you did.

I thought they would just blow it off, but apparently they take it very seriously, so. So, yeah.

Yeah. And, Brett, I mean, you've been with us at every stage of this litigation. You said you were happy. You were happy because you knew that at least now there was a clear claim that you would have to be able to challenge this whole system and that it would not be possible for a court to ignore it. By something like standing or some other reason why they weren't going to consider the case. Is that what you meant by being excited?

Exactly. I personally don't believe there should be open questions on how we elect our president. We should have most of them figured out by now. And I think this is one that has avoided that over our history and needs to be answered, bottom line. And we have a Republican, Republican Secretary of State, so I'm pretty sure that's why we got the fines. The Washington state legislature and Senate have since changed the law. Now, in Washington state, if you are an elector, you don't vote for the person who won the state, then you will be removed and replaced. Your vote will not be counted automatically. Yeah, correct.

Yeah. Which is astonishing if you think about, you know, a case of a candidate dying prior to the electoral college voting like Horace Greeley. But the law says that the vote must still go for Horace Greeley. Then what happens? Because Congress has already said it's not going to take those votes. And so it could be a real mess because you don't have humans in the middle of this process. Well, you know, you've been fighting for a long time to resolve this question. We're recording this at the end of the third week of April. By the end of June, I'm pretty confident the Supreme Court will have finally answered your question. We have an argument scheduled on 13 May, and they work hard to finish by June, typically, but maybe this year it'll have to be by July, but it will certainly be before the next election. And so I've just got to say, first of all, how honored I am to be able to have a chance to take your case to the court. And secondly, how grateful I am that you would stand out, stand up and try to get this question answered, at least regardless of how it comes out, at least. So we know clearly going into the next election what the rules are. And most importantly for the integrity that each of you has shown in this process. I've worked hard to try to disabuse people of this label faithless electors. And I think the story that you tell and that more people will come to understand as this case becomes more and more familiar, evinces exactly why there's no faithlessness here. It's just a faith to something deeper than the automatic operation of this electoral system. So thank you all for taking some time to talk to us. If you want to say one or two things before we end, I'm happy to do that. Do you want to say Something before we close off?

Well, I wanted to find out from Brett what happened in Colorado.

It's a long thing. I'll show you the video later on.

Yeah, but you should tune into the podcast which we will be doing next week with the Colorado electors. They'll tell you their story then. Brett, do you want to say something as we close off?

Yes. I mean, one thing I want to do is thank you for taking our case from the very first level. You and Mr. Jason Harrow have done an amazing job fighting for us, and I genuinely, genuinely appreciate it. The only other thing I want to say is, everybody watch out for lj. She is going to be a senator or a governor or president one day. Mark my words. Now I will look prophetic in about 20, 30 years.

LJ, why don't you tell us one or two words before we end?

Thank you. To Brett, of course. He's always been. He's always been. What do you call it, since the start of this? He's always been an individual that I looked up to for what he chose to do and the way that he was able to rally and plan all of this. And I know that, you know, he may not have been the only person working on it, but he was the start. He was the person who planted the seeds for everything to go into motion. And, of course, a thank you to you for taking our case and for sitting down, having these conversations with us. I think the last thing I'd like to state, though, is just when it came to that election and that day when there were so many people who were tuning in and who were listening to us during our. During the day that we voted, people were listening, people were paying attention. And I feel like that's so important. And I hope to see more of that in the future. More people being interested in the process and something that they. A lot of individuals, I feel like when it comes to electoral college, they don't know how it necessarily works. And having more people sit and pay attention and see it is it for what it is, is very important. And just getting out and being active in your election process is so important, especially for our younger generation and for. For the future of our country.

It's absolutely true. If younger people voted at the same proportion as older people, the history of American politics since the 1970s would be radically different. Radically different. And of course. So that's really what's so important. And LJ to have you in this case is really important because obviously you speak for a generation which is increasingly at risk because of our politics. So Equal Citizens took this case. Obviously, Jason Harrow and I took this case after it had been clear they were gonna fine you. But you guys were represented by an extraordinary group of lawyers through this process who were defending you and making sure that as you took your steps, you were not gonna be tripped or accosted in Colorado. In fact, there was a threat, threat of criminal prosecution against one of the electors. But Sumir Singla and Jonah Harrison. And was Hunter able with you guys at the time? I don't remember. Yeah. So these lawyers have been with us through the whole time and they've helped us frame the case and to build the argument and to really figure out how to present it in a way that makes it the most compelling. And so that's what I'm doing 247 between now and May 13, when we will, by telephone be having an oral argument. I'm joking that it's the only time I will make an oral argument to the Supreme Court in my pajamas. That's not true. I will be fully inappropriately dressed. But it's going to be a kind of odd presentation to be making it to justices on the telephone. But I'm honored and I'm sure we're going to have an answer and I'm optimistic we have an answer that affirms the great work that you did. So thank you so much, all of you.

Thank you.

That's the end of this episode. In the next episode, Jason Harrow, my co counsel and colleague, will interview the electors who he'll be representing in the Supreme Court in the case Colorado voting versus Baca, the second case that will be argued on May 13th. The story there is similar, but it's important in how it's different. And so you'll hear those differences and a little bit about how those three electors got into the case. These podcasts are produced by citizens us. You can find us on the web at citizens us and find this podcast at Equal Citizens Us. There's a place there to share the podcast and to give us your feedback and your ideas. Please do both and share this broadly. After next week's episode, we'll have an episode about the oral argument and then we'll have an episode where we'll reflect a little bit about what the oral argument was like and what we learned from the questions in the oral argument. So stay tuned. That's all for this episode. Thank you very much. This is. This is Larry Lessig from EqualCitizens US. Be well.