The Role of Presidential Electors [08-29-19]

You're listening to the third season of the podcast, Another Way. This is Adam Icken, campaigns manager for Equal Citizens. Today I'm joined by my colleague Jason Harrow, the Equal Citizens executive director and chief counsel. Jason, welcome again, Adam.

Always great to talk to you on this podcast.

Absolutely. So longtime followers of Equal Citizens will know that the organization was originally conceived of as a litigation hub to take on creative cases to reform our democracy. We filed lawsuits challenging winner take allocation of electoral votes, as well as the constitutionality of super PACs. Most of the time, though, our legal updates are, let's say, less than exciting, confined mostly to procedural motions in lower courts. But last week, however, in one of our lesser known cases, which we'll talk about, we notched a big victory. Some might call it a landmark victory. We wanted to take today's episode to dig into this case and to figure out what this ruling means for our democracy and the next step that we as equal citizens will take. And as a little bit of a spoiler, it does involve the Supreme Court in all likelihood. I'm particularly excited about this conversation because, Jason, you were the one who actually argued the case in the 10th Circuit Court of Appeals.

So.

So there probably isn't anybody better than you to have this conversation. Let's get right to it, Jason. Can you explain to our listeners what the Elector Freedom case is, how it came to be, and the constitutional questions that it raises?

Of course, yeah. So this is a really interesting case. We've been working on it for years, kind of below the radar, and I'm excited now that we got a decision in our favor at long last. There's been a lot of press around it. Some good, some bad, some missed, some not. So it's great to get a chance to kind of dig deep, deeply into the issue and into the case since it's occupied so much of our time, as you know, Adam. So the case is. I'll start with the title. The case is called Michael Baca against Colorado Department of State. And Michael Baca was an elector in 2016 in Colorado. He was a Democratic elector. Hillary Clinton won the state of Colorado in 2016, won the popular vote, and Colorado has nine electoral votes, which means that it actually appoints nine electors. Right. So that's, that's the first thing to realize is that electors are people, too. Right. You know how Mitt Romney said corporations are people, my friend? Well, that's debatable. But electors are people, right? That is true. They're not just electoral votes. They're not just robots. And Michael Baca was one of them. And in the wake of the popular vote, for various reasons, and I won't try to put words in his mouth necessarily, but he had his reasons for wanting to not vote for Hillary Clinton. There was a mix of them. He was initially a Bernie Sanders supporter. He was really dismayed by what he saw from President Trump in the time between the result of the popular election and when the Electoral College would vote, which is actually in December. So there's about a four or five week gap between the popular vote and the Electoral College vote. Mike also was dismayed by the fact that Hillary Clinton had won the national popular vote by so much and was not expected to win in the Electoral College, which like many people, like we at Equal Citizens, Adam, like you think it's just upside down and backwards. And so Mike was part of a movement called the Hamilton Electors that was interested in trying to do something about it. Right. How do we save the election? Not to give the election to Hillary Clinton. She had lost under the rules of the road. But is there a way to ensure that Donald Trump would not be elected and perhaps another Republican would? And one way that they hit on was to get the Electoral College to deny Trump a majority of electors. So for those that don't have their Constitution memorized or that don't have their pocket constitution out, the framers, when they created the electoral college in 1787, required that in order to be elected president through the Electoral College, presidents have to get a majority of electoral votes, not just a plurality. Adam, you and I can talk later about that. You like majority rule as opposed to just plurality rule. So do I. But it's a little funky here. And what it means is that if Trump got, let's say, 268 electoral votes, 270 is a majority. If you got 268 and that was more than Clinton and more than a third place finisher, but not a majority, then that wouldn't be enough to get him to be president. He would actually, the election would actually go to the House of Representatives. And the House of Representatives would vote in this unusual way with one vote per state rather than one state vote per member. This last happened in 1824, as you probably remember, Adam. So anyway, that's all important context to what Baca was trying to do, where what he was trying to do was join some Republicans in peeling off votes for Trump, making the third place candidate an acceptable Republican here, John Kasich, who Baca tried to vote for. And then the House would have this unusual way of deciding who's going to be president? Is it going to be Clinton, Trump, or Kasich? And that, Adam? I mean, I don't know. We can pause there. That would have been a fascinating moment in US History, quite consequential. I don't know what would have happened at that time. You know, many Republicans had run away from Trump. Whether Kasich was more acceptable, I don't know. You don't have to opine, you don't have to place a bet. But I think many electors thought that Kasich stood a chance in that scenario.

Right.

And of course, the, the interesting question there is that a couple states have laws that bind electors to vote in the way that the state voted. And that's ultimately the root of this case. Right. That if that were to happen, we don't know what the court would have ruled.

Exactly. So not, not just a couple states, Adam. 30 states, in fact, have some form of law that binds electors or that purports to say that electors have to vote for the candidate that won in that particular state. Now, states vary in terms of how they operate and whether there's any penalties or enforcement mechanism, but more than half the states have this. And that was actually a major deterrent here. Right. So electors were scared. They didn't know if they had this freedom or not that Mike Baca thought he had. And that to get to the end, first, that the court recently, the 10th Circuit Court of Appeals in Denver, finally at long last affirmed that he had. He had this freedom. So what did he do back in December of 2016 with this frame in mind? He took a ballot that had one name on it, Hillary Clinton. He scratched out Hillary Clinton's name and he wrote in John Kasich. And he attempted to turn that in. But when he did, the Colorado secretary of State, whose job it was to count the votes, said, we have eight valid votes for Clinton. We have one invalid vote. Rather than counting this vote and saying the vote was 8 to 1, Clinton for Kasich, we're going to say that Baca had done the equivalent of giving up his office. You give up the right to vote when you vote for the wrong person. According to this view, he was removed as an elector. There was a wild scene in the Capitol in Denver, and he was replaced, and the replacement voted for Clinton. And ultimately Colorado sent nine Clinton votes to Congress to be counted for president. And what was Vaca's reward? Well, he was not rewarded. He was penalized. He was referred to the Attorney General for prosecution for perjury, for Lying essentially about what he'd do and for violating this law that supposedly required him to vote for Hillary Clinton. And ultimately the attorney general declined to prosecute after a several month investigation. What they were investigating, I'm not quite sure, but that's what happened. Well, Baca didn't give up. Vaca joined by Larry Lessig and then by me when I came on and started working at Equal Citizens and our other co counsel, Jason Osoki. We continue to litigate this case because Baca and two other electors, I should add, who wanted to vote for someone other than Clinton, but were intimidated by the Secretary of State. They wanted to vindicate their rights. They realized that no one knows whether these laws that are supposed to require electors to cast votes for certain people for president. No one knows whether these are legal, constitutional, enforceable. And as you just said, Adam, what would happen if this happened in a case where that was the 270th electoral vote for someone where that was the swing electoral vote, Would that vote be counted? Would it not? We would essentially have Bush v. Gore times five. Right. We'd have litigation, we'd have two competing electors, we'd have protests. It'd be a real disaster. And so Baca wanted to vindicate his rights and wanted to get this answered for the country. And so did we. So we litigated it for several more years. We argued. I argued the case in Denver on a snowy day in January. And then we waited and we waited and we waited and lo and behold, we got a fascinating, incredibly detailed, incredibly important opinion a couple of days ago last week, in fact, that affirmed that Baca was right the whole time, affirmed that even though states can require their electors to publicly pledge to support a candidate to be a member of the same party as the candidate who wins the popular vote, when it comes down to it, vote means vote, vote means choice. The court wrote the Constitution uses words like vote, ballot, elector. All of these mean choice, discretion. And so this theater of the Colorado Secretary of State saying, well, when you're an elector, you're not really a chooser. When you get to vote, you're not really voting. You're just ratifying something that the people had already done. The court affirmed that that was a myth and that was not a correct interpretation of the Constitution. And so that's where we are today. There's more to come, Adam, I can tell you about what we think will happen next, but let me pause there and see where you want to go next. And if you've got questions about anything that happened in the case.

Right. So I think that's a very good summary for our listeners about this case. Before we go any further, Jason, let's go back to the courtroom. When you were arguing the case, how many of your arguments that you made on that day in the courtroom made its way into the judge's opinion. Were you happy with what the judge wrote?

Yeah.

Did you find that she vindicated a lot of your arguments?

Yeah. So it's a really good question because, you know, I think there's this conception out there perhaps that there's these great trial lawyers or something, and they're persuading people and they're making these thundering arguments and pounding on the table. That's not as much what happened, though. I am very happy with what happened at oral argument. A lot of the work, though, goes into the briefing, which are, you know, we do a ton of historical research. We do a ton of legal analysis that goes to the court. The court's already read it when we stand at the podium, when I stood at the podium. And so what we kind of tried to do is guide the court's attention. That's really, in some ways the goal of an appellate argument. You get limited time and like I said, you're peppered with questions. And so it's really about guiding the court's attention. And look, the results speak for themselves. I think we did that successfully. And part of what we did was really try and pay close attention to, to the text of the Constitution, to giving a proper interpretation to the history, the long history of electors who act independently this way, and to just emphasize that whatever you think of the policy. And we'll get to that, Adam. We'll get to what folks think of will happen next or will happen if this rule stands in the U.S. supreme Court. But whatever you think of that, that's not really how this case should be decided. This case should be decided based on what an elector is, based on what electors do under the Constitution and based on what rights they have as electors, as voters, as people following the rules of the Constitution. And I think that's what we emphasized and we were getting good feedback on that at the oral argument questions of both sides, for sure. You know, I think, Adam, the other thing to say is that the state of Colorado lawyer this very well and they had a lot of integrity. And I think the resulting opinion is high quality because both sides briefed it fairly and well. But there's only so many things that the state can answer. And seeing that at the podium, I think is also really Revealing. So in some ways it's not as much what we did, but it's when a judge asks a pointed question to the other side and says, hey, so you have the power to appoint these electors, but why do you have the power to control their votes? Right. What gives you that power? And when they just don't have a great answer for that, I think that's really revealing. Right.

And so, you know, this is interesting for me because when you were arguing that case, I actually couldn't watch it. I remember that it was not televised, it was not live streamed. So I had to rely, I had to call you after the the fact and ask how did it go? On the other hand, you know, the interesting part of this litigation that we are undergoing is we also filed another case on a similar constitutional challenge in Washington State. And that trial I did watch because it was Lessig who argued it. And in Washington, they do allow for live streaming of these court proceedings. So talk a little bit about what happened in Washington and the root of that and what the court ruled there and why that's important. Sure.

So that's a great sort of side point, which is we do live in a democracy. We do have transparency. But not all courts allow cameras in the court. And unfortunately, many federal Courts don't. The 10th Circuit did not. There is an audio recording, but there's no video recording. And if and when we get to the US Supreme Court, famously, they do not allow cameras in the courtroom. So, Adam, you'll have to come with us to Washington, D.C. and same with anyone listening, the supporters, and perhaps wait in line for a very long time to hear this if we get oral argument there or listen to it a couple of days later. And that's unfortunate, but that's the state of affairs. Washington Supreme Court, much better on the access point, but went the other way on this question, which in a way is a good thing because so Larry Lessig did indeed argue a case arising at a very similar fact, similar sets of electors trying to sway the election, and did not vote for Clinton in Washington. And the Washington Supreme Court, though, ultimately upheld the state's power to dictate those votes, to require them to vote for Hillary Clinton. And that was an 8 to 1 decision. There were nine judges on the Washington Supreme Court there. That decision was issued just a couple months before the decision out of Colorado. And what that does now is gives us a very powerful tool for asking the Supreme Court to review that Washington decision. Because one thing that the Supreme Court is for is resolving conflicting decisions from different Places in the country. Right. So, you know, lots of people think the Supreme Court is, you know, just like, taking all these issues of great importance and just opining on them. And that's because the Supreme Court has injected itself into a lot of areas of life, but it actually has a discretion as to whether or not it wants to take cases. It's presented with thousands of appeals every year, and it only takes about 70 to 80. And the question is, how does it decide? One of those reasons is just it's interested in it or it's an important issue, but it sort of has to act when courts around the country are totally split on different issues. Because who else is going to resolve it, Adam, other than the U.S. supreme Court? Right. We've gone as high as we can go in Washington. We've gone to that state supreme Court. We've gone as high as we can go in Colorado to the federal appeals court. There. There's no place left to go but the Supreme Court to resolve it. So that's what we're gonna pitch to the Supreme Court, and we're gonna ask. We're gonna. We've got control over that Washington case, and we can say to the Supreme Court, hey, you know, the Washington Supreme Court said states can control the votes. Complete opposite decision just a couple months later from Colorado. You need to step in and resolve this before the election of 2020.

Right. So before we go into next steps in the Supreme Court, why do you think that the Washington Supreme Court ruled the other way, but the 10th Circuit Court of Appeals decided to agree with us?

Well, you know, I think that there's legal reasons, and then there's sort of practical reasons. The legal reasons, if you read their opinions, are that they. The Washington Supreme Court interpreted the Constitution and the constitutional powers of states and electors very differently. So the court in Colorado did a really excellent job of historical textual analysis, analyzing the text, saying that elector and vote and these things mean choice. And it also took a very careful view, I think, of the relationship between state power, federal power, individual right to vote. And what it said was that if the Constitution is silent about this, but the Constitution creates this sort of novel person called a presidential elector who is supposed to have choice and who exercises a function under the federal Constitution. If the Constitution is silent about that, well, then the decision has to be up to the electors. That's what the 10th Circuit reasoned. The Washington Supreme Court took just the opposite view. It acknowledged that the Constitution is silent on this issue, but it said that if the Constitution is silent, and even though These electors are created by the federal Constitution. In fact, states can still exercise power over them because there's nothing that says states can't do it. And because historically, the Washington Supreme Court ruled most electors in history have sort of taken these pledges and abided by these pledges. And so why doesn't that mean the Supreme Court of Washington said, why doesn't that mean that electors were always kind of supposed to act this way? So it's just a different mode of analysis. You know, you could also say that perhaps the result was driven by the fact that Washington Supreme Court judges are elected officials. It's possible that some people in Washington wouldn't like this decision and would vote against them in the next judicial retention election. Whereas the judges that heard our case in Colorado for various procedural reasons were federal judges who were appointed for life. Maybe that gives them a different window. Maybe it gives them a different window. Look, you know, in terms of state power, right. State judges may be more inclined to view state power broadly, whereas federal judges may be more inclined to protect federal constitutional rights. So all of these could have come into play.

That certainly does open up an interesting conversation about whether or not we should have judicial elections in our country. Maybe that could be the topic for a different episode in the future.

Indeed.

So, as we had said, as you said, that there is a very strong likelihood this will go to the Supreme Court. So I'm sure that's pretty interesting for many of our listeners. How do we prepare something for the Supreme Court? What is going to go into this? What do we do? What are the next steps here?

So, you know, there's legal steps, and there's sort of PR and media steps, and both are important. And I want to talk about both. The legal steps are straightforward. We prepare a petition, what's called a petition for certiorari, sometimes just called cert, shortened to cert. And we'll file our cert petition in the coming weeks, and we'll ask the Supreme Court to take the Washington case, and we'll cite the conflict with the Colorado case, and then the parties will respond. And we'll probably have some, you know, amicus, friend of the court briefs to try and illuminate further the importance of this issue for the Supreme Court. And then probably sometime in October, November, December, we'll get a decision from the Supreme Court about whether it will take the case and. And if it does take the case. And again, we think it's likely because of this split, they'll probably schedule oral argument for sometime in the winter, spring, for a decision by the end of the term, which would be the last week of June in 2020. So that timing works out well because we'd get an answer before the presidential election, which is exactly what we want. We don't want chaos. We want an answer either way, whichever way it comes out. We want to know, because in 2016, the lack of knowledge was really dangerous, and if the electoral vote was closer, could have really caused a constitutional crisis. So that's legally what happens next. What happens next, though, is also important in the media and in the debate and in the things that we talk about at equal citizens and that we care about, which is changing people's minds, making people realize what the problems are with our democracy. Because, you know, this decision has been controversial in some quarters, Adam, and I know you want to talk about that as well. And so part of what we do next is also explain to people what's behind this and how this can both help sort of stabilize the country in some ways, but also perhaps spur some really important changes. So those are kind of the two fronts we're fighting on.

So to pick up on that last point, that part of this is also to show that the Electoral College and the kind of the appointment of electors is actually very capricious, that there is a lot of instability and uncertainty when in an election you're not actually voting directly for the President, but you're electing for. You're electing, you know, unaccountable electors. That that is part of this. That if we, if we can show that electors are free to vote for whomever they want, the system is much more precarious and uncertain than we've become. So, you know, complacent to believe.

Absolutely. And that is part of what we're driving at here. Right. I know that's a little counterintuitive, but two thoughts on that. The first is that a lot of headlines that came out last week about this case say that for the first time, it's now clear that these electors can vote for whoever they want or that they can now vote for whoever they want, as if the court initiated some kind of change. Well, the bottom line is that that's always been the case in US history. These laws only started popping up maybe 50, 60 years ago. And so for the first 150 years, there were none of these laws, and electors always could do this. And then even now, in the wake of some of these laws, many of the laws are enforceable or have no explicit enforcement mechanisms, and 20 states don't have and have never had any such laws, including Illinois, including New York, including Texas. And we don't see complete chaos in those states. We don't see electors doing whatever they please because electors do have expectations of the public and they do make promises. But our point is there could be extraordinary circumstances where they depart from those promises. Okay, so that's point one. But point two is exactly what you said, Adam, that it does highlight that all of that said and the history of pledging and support is what it is. But the bottom line is that the Electoral College is outdated and it's not good enough. And this band aid that we've had, which sort of keeps people from realizing really how bad and anti democratic it is, that band aid perhaps needs to be peeled off in order to move forward with some of the reforms that we want.

Right? I think that's exactly true. So let's actually get into one of the reforms that would make the Electoral College obsolete, which is the National Popular Vote Interstate Compact. And actually, a lot of the criticism of this case addresses npv, which is, namely, people are arguing that if we were to win this case and electors are free to vote for whomever they want, it would undermine the National Popular Vote Compact. Jason, can you explain what the National Popular Vote Compact is and whether or not this court case would affect that?

Yeah, that's a good place to start, because the answer is no, it wouldn't affect it or it wouldn't undermine it. In fact, it can only support it in our view. So the National Popular Vote Compact is somewhat difficult to describe in one sentence or one breath. Let me try. It is a piece of legislation that any state can pass that commits it to awarding all of its electors to the winner of the National Popular Vote, not the statewide popular vote, with the caveat that it will only go into effect once 270 electoral votes worth of states have passed the same law. So what that means is that the National Popular Vote Compact creates this scenario where you're looking for a block of states who have enough electors so that if they all together vote for the National Popular Vote winner, that winner is assured to vote to receive an Electoral College majority. Right now, I think we're at 196 electors of the necessary 270. The states that have passed it so far include some large blue states like California and New York, some small blue states like Hawaii and Delaware. Now, and for the first time, a purple state in Colorado. Now, the National Popular Vote, we support it. We support amendments to the way we elect the President, whether they're Constitutional amendments or really nifty workarounds like the National Popular Vote Compact. We support those that make votes more equal, which this does. So we don't want to do anything that would undermine it. And this doesn't. This doesn't for a kind of technical reason as well as for just a broad political reason. The technical reason is that what the National Popular Vote Compact does is it says that each state who is a member of the compact, who passes this compact will appoint as electors members of the political party of the candidate who won the most popular votes nationally. Before I explain why that's important, let me make sure we all get that concept right. The way it works is there's these electors, right? And the question is, who are they? What political party are they members of? And this changes current law so that it's not that your existing electors, your normal electors, are appointed and they just have to vote for the national popular vote winner. To the contrary, it's that every single state in the compact will appoint Democratic electors if a Democrat wins the popular vote, and will appoint Republican electors if a Republican wins the popular vote.

Right. And so to take a quick step back, I mean, the key thing here is that both candidates for each state have a list of electors. So they have separate lists. Each candidate for each political party has a list of people that they want to be the electors if they win. And so essentially, Jason, what you're saying is that NPV would make sure that the list that is selected is of the candidate who wins the national popular vote, not the person who wins that state. So if in Texas, Donald Trump were to win Texas, but Hillary Clinton won the national vote, it wouldn't be Trump electors who get to be the Texas electors, it would be the Hillary electors.

Exactly. So then if that's the case, and that is the case, that's how the National Popular Vote works, then we have to ask, why would we have any faithless electors at all? Right. So we have a scenario where there's a slate of 270 or more. Probably more. Probably much more. Because all these votes move together. All of these electors are members of the party of the person that won the national popular vote. In what scenario would they sort of break away and cast independent votes and not support the national popular vote winner? I guess you could imagine it happening, Adam. I mean, it would be extraordinary, just like it would take extraordinary circumstances in the current system. So there's really no difference between the law as it stands now and the law with this decision that we've just gotten so That, I think is just as a technical matter, why it doesn't undermine the National Popular Vote, but we think it does something even better, which is it forces people to really consider changing the way we elect the president. Right. Right now we're in our teams, and I think a lot of Democrats support something like the National Popular Vote or Electoral College reform just because the Democrats have been harmed by this mismatch between a popular vote and an Electoral College in both 2000 and 2016. And Republicans have benefited from it, and so they don't want to change much. So how do you jostle things in that political environment? And I think one way to jostle things is to say that, hey, give arguments to Republicans or other folks on the fence to convince them of how bad the current system is, whether or not it benefits your party. Right. There's too much sort of teamism and shortsightedness in this debate where people might not be thinking about principle, whether the Electoral College is good or bad, whether it makes sense in the modern era whether the winner take all method of allocating electors in the Electoral College should change. People just think it helps my team or it helps the people I support and it hurts the people that I don't like, or vice versa. Well, what we want to get people thinking about is what should the right rules of the road be? This is our democracy, Adam. This is not a game. The rules should at least be fair. The refs should be neutral. The rule book should be written by someone who's thinking about the best interest of the game, not one particular team. And so bringing a case like this gives people who have not thought that much about those rules a chance to think, boy, maybe this is not such a great system. Maybe we should be looking around for something else. And that's something else. The National Popular Vote Compact is a great something else.

Right. I completely agree. And, you know, so here, this does bring up a different question, which is, so, okay, the National Popular Vote. Great idea. What about an amendment to the Constitution? Now, we don't really think about amendments much. It's very, very difficult to pass one. But the Electoral College has an interesting history with amendments because in the not so recent past, we actually came, you know, not close, but there was momentum. In 1969, for example, after the 68 election, the House actually passed an amendment in favor of a direct popular vote election for the presidency with a 40% threshold and a runoff if no threshold was achieved. And the house passed it 338 to 70. It didn't pass the Senate, though, because of the filibuster. But that's incredible. That's a little bit of history that no one really knows that in 1969, the house, by a wildly large margin, passed an amendment to the Constitution to essentially get rid of the filibuster. And likewise in 1979, after the 1976 election, there was another amendment introduced and it actually got a lot of support in the Senate. It failed and never made it to the House, but it got a vote. It got a vote and a large number of senators voted for it. Jason, is an amendment possible or should we really be focusing on other solutions?

So it's hard to imagine an amendment which requires not only passage by super majority in Congress, but also ratification by 3/4 of the states. It's hard to imagine that passing in the current political environment, because one thing you'll notice about the dates you gave 1969 and 1979 is that they were times of relatively low partisanship and also relatively unbroken periods where the winner of the popular vote also won the Electoral College. And so I don't think people weren't designed. People weren't viewing absolutely everything through a partisan lens back then. And even if they were, people didn't necessarily think that the Electoral College was more or less partisan than something else, or people didn't think that it would benefit or not everyone thought that it would so obviously benefit one party or the other or one constituency or the other. And that created some room for real progress on a constitutional amendment which, as you said, failed. Unfortunately.

The.

It's my understanding that Electoral College reform is actually the most common amendment that has gotten close but failed. Right. Over 200 years in our history, this has frequently come up and there's always lots of supporters, but it never quite gets over that high threshold. So in the current environment, Adam, is something like that possible? Well, there was an amendment introduced by a congressperson, I think, Steve Cohen of Tennessee, to abolish the Electoral College and move to a popular vote this session of Congress. It hasn't gone very far. You know, I think many Democrats would support it, but it would be highly partisan. And in a, you know, you can't pass an amendment over only on party lines. Right. It's too hard. Again, you need three quarters of states to ratify it. Right. I mean, imagine getting 38 states to ratify something that was only on partisan lines. That's almost impossible. But you never wanna say that something's not possible because political winds change. Right. And so I could see a constitutional amendment in a couple Circumstances. Right. One is just time happens, and we re enter a period of perhaps by coincidence having lower partisan fighting and lower partisan temperatures and a string of results where the popular vote matches the Electoral College. And people just say, hey, why are we using this, this Electoral College thing anyway? So that's possible. I think maybe more likely is that something strange happens. Right. And that's part of what we're getting at with this case is we. You can build a couple of different strange things. Right. So one thing that could really do it is if Trump wins the popular vote and loses in the Electoral College. Now, most people think that's unlikely in 2020, but if it works to the Republicans disadvantage in 2020, while it worked to the Republicans advantage in 2016, I think enough people would get together and say, why are we doing this? Right. It doesn't help either of us, and it's just dumb. So that's possible. It's possible. We get. Yeah, go ahead.

I was gonna say, and, you know, there's a weird bit of alternative history that actually, you know, I like to think about sometimes, that in 2004, this almost happened, that George Bush had 60,000 votes flipped from George Bush to John Kerry. And in the state of Ohio, Kerry would have won the Electoral College while losing the popular vote. And that would have been right after the 2000 election where the inverse happened. And so that's a situation where in an alternative reality, the Electoral College might be gone at this point because both parties would realize this is absurd. But of course, that didn't happen.

What if? I mean, what if. So that's a great what if. And we're trying to create our own what ifs, right? Because you just never know. And so what if the Supreme Court affirms electoral discretion and, you know, in an opinion that addresses some of these aspects of the Electoral College, we're talking about, and it gets some conservatives to realize how dangerous the Electoral College is. And even if the original understanding is correct, that doesn't mean that the modern principle practice is right. And perhaps it could galvanize a movement toward national popular vote or could galvanize a movement toward a constitutional amendment. So, you know, never say never, Adam. I mean, we've. My goodness. In our history, right, We've adopted constitutional amendments banning the sale of alcohol and then overturning that a couple of decades later, Right. We've gotten rid of poll taxes. We've passed an equal protection clause. We've amended the Electoral College once. We've changed it so that electors can now vote separately for President and vice president. The original version didn't allow that. But after two disastrous elections in 1796 and 1800, the early folks in Congress in the very early 19th century, in 1803, had the good sense to at least make that change. So things are possible in our political space, Adam. And part of it is building a movement. Not part of it, a key part of it. The only way to do it is to build a movement and get cross partisan support. And that's, you know, you're working hard on that, Adam, and so are we. Right?

Right.

Well, I mean, we're working together on it, I should say.

Right? Yes, we are. We are. I mean, that is a key point here, is that, you know, change throughout American history only comes when Americans band together in movements and demand that the system reform itself. And, you know, I mean, that is one of the very, you know, I think one of the most encouraging parts of American politics right now, which is that there really is a democracy movement across the United States. And, you know, Jason, we see this every day, but I still don't think enough people realize that, you know, in states like Michigan, people banded together to end gerrymandering. You know, in other states, they've passed voting rights reforms and money in politics reforms. I mean, this is something that is happening across the country. And. And we see our efforts as trying to supplement that effort. So I want to move on to a couple other things. But before we do, Jason, a very quick point, which is that the judge who issued the ruling in Colorado was an Obama appointee, am I right?

Yeah.

And she used pretty originalist logic when deciding the case.

She did. I mean, she consulted five different dictionaries published between 1760 and 1806 to figure out what the word elector means, what the word vote means, what the word ballot means, or I shouldn't say means, meant at the time that they were written. That's a very originalist thing to do. Right. She talked about the first independent elector, Samuel Miles of Pennsylvania in 1796, really looking deep into history and paying close attention to text. That's a very originalist mode of constitutional interpretation.

And can you quickly explain why that is so important as we go into the Supreme Court right now or in the next couple months?

Well, because, Adam, as you know, the Supreme Court is stacked with originalists. And so signaling that this is a case that originalists should care about, that this is the proper way to do original understanding, and this is a good vehicle for that, is really important. And it's important to build allies. Right. You know, the more we, if nothing else, Adam, I would like to come out of this case by having respected conservatives and thoughtful conservatives, lawyers and policymakers and commentators say, you know, they gave this a really fair shot and you know, took the right approach here, the originalist approach, and took a careful reading of history. And I'm willing to hear them out, I'm willing to work with them. Right. I trust these people. There's just not enough of that right now. And so if we can sort of speak their language on this one, there's an opportunity to speak their language on other things. And I'm excited by that opportunity. Right.

And so for the listeners who don't know what originalism is, Jason, can you give a quick two sentence description and why the conservatives on the court have adopted it?

Sure. So the two sentence description is that originalism is the view that the best way to interpret the Constitution is to go back to the time when the words were originally written and understood and figure out what did the drafters mean or what do the words mean at the time. And that's a meaning that doesn't necessarily evolve with societal changes or judges preferences. Right. So it's a pretty static version of constitutional interpretation. Justice Scalia famously said the Constitution is dead, dead, dead. And that's what he means by originalism. Right. It's not about broad when the framers use words like vote and by ballot and elector. It's not about what those words might change to mean over the course of 200 years of history. It's about what did it mean then? And that's why the judge looked to definitions in 1760 and 1787 and 1806 and not 2019. Right.

So that's a good segue to the question of where do our other cases stand. So we're filing lawsuits against our lawsuit against super PACs and against winner take all allocation of electoral votes. What's going on there?

Yes, we do have several other cases. The one most related to this case, because it's also about the Electoral College, is a series of four challenges to the winner take all allocation of electors in the Electoral College that would require states to stop awarding all of their electoral votes, that is appointing all of their electors for the same party that gets like one more popular vote in the state that if a popular vote is split 55, 45, the electoral college delegation of that state perhaps should be split 55, 45. Or maybe a state should adopt national popular vote. The point is they have to do something that gives every vote more meaning rather than Throwing out a bunch of votes. We have an argument in that case. The prominent lawyer David Boies, who argued for Gore in the Supreme Court and represented the plaintiffs challenging gay marriage successfully. So he'll be arguing in Boston on September 10th, the morning of. So if any listeners are in the Boston area or New England want to come in and see that, that should be a really fun argument. We've got three other cases in other states around the country on that issue. They don't yet have dates when we're going to get appellate court hearings. The other case we have is an exciting one in Alaska, where we're, again, using this originalist method to try and create some change. We're trying to tell the courts that the original understanding of corruption means that states are fully within their power to regulate certain types of campaign contributions precisely in order to regulate this kind of corruption, this sort of institutional dependence corruption that really concerned the framers, but that modern courts, without much historical thought have said doesn't support these laws and allows, as many people know, money to just keep flowing into the system in all areas. So that case we briefed and we held hearings on way back in the fall in Alaska, it's now turning to the end of summer, and we still don't have a decision, but hopefully soon. There's no particular timeframe for that. We're just hoping for a decision soon from Alaska. We'll take that one to the Alaska Supreme Court, no matter what it says.

And overall, you feel like we've argued well in those cases?

I do. I feel really good about our arguments in both cases. Both are asking for changes in the law, Adam, and that's always tough, right? We had some bold judges in the 10th Circuit that were willing to follow the law where it led and didn't worry so much about the consequences. I think that if the judges do that in both of our cases, both challenges to winner take all and to the system of campaign finance, I think we've got really good arguments. That said, I couldn't bet on the exact same result we got in the 10th Circuit, though. That makes me very happy that judges will follow the law where it goes, right? I mean, especially in the winner take all cases. A judge that rules in our favor and abolishes winner take all will be getting rid of hundreds of years of history and basically the way that the presidential elections have worked in everyone's lifetime who's currently alive. That's an extraordinary thing to do. I think it's required by the law. If you want one person, one vote if you want to treat every vote equally, you can't throw a bunch of votes in the trash and have them not translate into any electors. I think that's right. Will courts be bold enough to put that into action? Who knows?

Right. And so as, as we bring this episode to a close, I want to kind of start where we started, which is that Equal Citizens was originally conceived of as a litigation hub. But in the years since its founding, we've really moved to grassroots mobilization. And as important as litigation is, building a movement, as Jason, you and I have been talking about, is paramount because a lot of change is going to be done outside of the courtroom. And, you know, recently, last week, the DNC ruled that they will not have a climate debate. So a debate focused only on climate change. And essentially what that is signaling is that they're not going to be doing issue specific debates. And unfortunately, the last time Jason, you and I were talking, we called for a democracy reform debate. And it doesn't seem likely the DNC will bite on that either. That said, Jason, we, you know, that just really heightens the importance of the work that we are doing to make sure presidential candidates are talking about democracy reform on the campaign trail. Because if they're not going to do it on the debate stage, well, we have to make sure that they do it either unprompted or in stump speeches. And so, you know, that's why I'm really excited that in a couple weeks on September 6th that we're going to be hosting Tulsi Gabbard for a town hall in Dover, New Hampshire. You know, that's another opportunity in our Democracy Town hall series that we've hosted Andrew Yang and Senator Kirsten Gillibrand and hopefully many more candidates moving forward that, you know, we'll be able to have these in depth conversations about how to reform our democracy with those who control some of the largest bully pulpits in America. And that the more and more we can get politicians to not only recognize how important reform is, but to actually get them to start talking about the solutions like the National Popular Vote Interstate Compact, that that's one way where we can get more people engaged in this fight and kind of culture jam it a bit into the political discourse, which oftentimes is so vapid and, you know, not really getting to the root. And so, you know, it just, it elevates the importance of the work we're doing with equal citizens. And, you know, I'm sure our listeners would agree. And, you know, we're just really excited to, you know, Jason, I'm sure you again will agree that, you know, I'm just really excited as we go into the next couple months of both the campaign season and also just to follow these court cases as they proceed. So, Jason, thanks so much for joining us. It's always a pleasure. And, and is there anything you want to conclude with?

Well, just. No, I think this was really helpful, but just a plug for anyone. These are free and open to the public. Anyone who's in the New Hampshire area, go to our website, EqualCitizens US. Friday, September 6th, in the evening, we'll be hosting a town hall, as you said, Adam, with Tulsi Gabbard. And for those who can't attend, that's part of what this podcast is for, right? We want to get it out there widely. We'll take the audio, we'll put it up in podcast form and you'll be able to listen to it. And as you've heard previously on this feed, Larry Lessig also tries to do interviews with any other presidential candidates. We've got lots more to come this fall in terms of injecting these really important issues into the debate. So there it is. Hope to see you in person, or have you listened to it through your earphones in the coming weeks?

Excellent. Thank you so much for listening to this episode of Another Way. Thank you. This is Adam Eichen, campaign manager of Equal Citizens. Stay tuned. Next week, Larry Lessig will be back on with another great interview.