"There's a real risk they get away with it": Lawrence Lessig on how to steal the 2024 election

Maybe this is reassuring, and maybe it isn't: Harvard Law professor Lawrence Lessig, a renowned constitutional scholar, has undertaken a detailed analysis of all the vaguely plausible methods for stealing an American presidential election. One of his conclusions is that the method actually attempted by Donald Trump and his allies in 2020 — with the slates of fake electors and the nonexistent magical powers of the vice president and all that — was, in Lessig's words, the "stupidest possible" way of doing it.

That plot had virtually no chance of success, in Lessig's judgment. Like the rest of us, he was shocked by the dramatic spectacle of Trump's followers storming the Capitol on Jan. 6, 2021 — but in constitutional terms, spectacle was all it was. Votes had been counted and certified in every state; the presidential electors had voted and sent their certificates to Congress. The outcome was settled, and nothing that could have happened on Jan. 6 — even if things had gone a whole lot worse than they did, Lessig argues — could possibly have led to a second term for Donald Trump. Or at least nothing short of a full-on Bolshevik Revolution seizure of power, which is not a scenario Lessig and co-author Matthew Seligman entertain in their new book "How to Steal a Presidential Election." (I'm sure the Oath Keepers fantasized about that. But they were about three eggs short of a two-egg omelet, in terms of logistics, planning, hardware and literally everything else.)

You've already spotted the other side of Lessig's Jan. 6 argument: There were other, smarter, better ways to steal the election that didn't rely on blatantly false documents and crackpot legal theories. With careful advance planning and competent management (qualities in which Team Trump was notably deficient), one of them might have worked. In fact, as Lessig and Seligman's book lays out in considerable detail — you'll be grateful for the summaries labeled "tl;dr" found at the end of every chapter! — there are a couple of strategies that probably would have worked in January 2021, and that present a clear and present danger to this year's election and those yet to come.

"How to Steal a Presidential Election" outlines seven distinct scenarios in which malicious actors could manipulate the result of a close election, especially one in which the popular vote and the electoral vote are "inverted," as political science types say. I won't take up more space here by explaining them all, especially since several of them are closely related, at least to non-lawyerly eyes. As Lessig told me during our recent conversation, the most dangerous possibilities involve rogue state legislatures — and let's be real, rogue Republican state legislatures — giving themselves final power over electoral outcomes, either by finding an excuse to override the popular vote, directly appointing their own slates of electors or simply dictating exactly how the existing electors will vote. (There are several potential variations on those themes. Read the book.)

Could that kind of blatantly anti-democratic power grab possibly be constitutional? Well, none of those nightmarish hypotheticals has yet been tested in court, but Lessig and Seligman's basic answer is, yeah, it could. Until and unless Congress enacts some crucial reforms to election law (and we might be waiting a while), the danger is high. 

Lessig dropped by Salon's New York studio last week, right after Donald Trump's victory in New Hampshire.

The transcript below has been edited for length and clarity.

We're recording this in the immediate aftermath the New Hampshire primary. You and your co-author, Matthew Seligman, are careful to identify an unnamed "MAGA Republican" as the principal threat in 2024 throughout. I think we now know who that MAGA Republican will be. Does Trump's comeback raise the danger of a serious attempt to steal this election?

Writing this book was a little bit of a gamble because things could have resolved in a sane and normal way. But unfortunately they haven't. I think that it's clear that barring some extraordinary event, Donald Trump will be the nominee. It's clear he's even more extreme now than he was three years ago, in his willingness to push as hard as it takes to regain power. So I think the concerns we were thinking about when we began writing this book have become even more pressing today.

You outline seven specific ways that malignant forces could hypothetically steal an election, or at least try to. But before we get there I feel like there's an overarching political question, which is whether the law can do anything to stop a candidate, a party or a movement who have consistently refused to play by the rules. I mean, the rule of law only holds if we agree to observe it. 

In the current political and media context, I think there's a real risk they get away with that. The media context is extremely important. We today have as many people who believe the election was stolen in 2020 as believed it was stolen on Jan. 6, 2021. Even though we have a free society, we have free press, we have access to more information than humans have ever had, the view is sustained. In a world where the public can't be brought around to the truth, it's easy for either side to play games and get away with it because denialism will reinforce itself, especially in the light of the most extreme actions taken.

There's another even larger question, which might be philosophical rather than political and speaks to that level of cynicism or mistrust. Can you really blame people who feel disillusioned about democracy in a world where the Citizens United decision, the Federalist Society, the Electoral College and systematic partisan gerrymandering have produced profoundly anti-democratic results?

That is such a great question, and I think it is so true. I find these populist urges sometimes boiling up, and what they want to scream is, "What do you expect when you consistently produce a system which is not trusted because it's not trustworthy?" When you have systems that constantly benefit the insiders or people with money and don't serve the people democracy is supposed to serve, namely the people. 

What's so frustrating to me — and I've been in this fight now for 18 years, to stand up political reform that could actually have teeth — is that the insiders are willing to play the game imagining that none of these realities are there because they have no capacity to fix it. Congress itself is completely incapable of standing up the reform effort to tackle some of these issues. This is the most terrifying reality, that we continue to spin in this direction of hopelessness about democracy, for most people, and that means the hollowed out institutions of democracy can do even more extreme and outrageous things without any political check.

To be clear, I believe that people should vote. But we're about to see an election that will be decided in roughly six to eight states, in which approximately one-fifth of the U.S. population lives. And within those six to eight states, we're probably talking about 80,000 to 100,000 "swing voters" who will determine the outcome. When I talk to regular people who say, "Why should I vote? It doesn't make any difference," I don't always feel like I have a compelling counter-argument.

One of our chapters talks about the idea of a legislature just canceling its election. Of course at the founding, there were many states that didn't have elections, they just had electors selected by the state legislatures. When you say that today, people are like, "Oh, that's outrageous. They would never cancel the election." But the reality is, for all but eight or nine states in America, the choice the legislature makes to allocate all electors to the winner of the popular vote in that state is a choice to cancel the election.

No matter what happens, Kentucky is going to go red and California is going to go blue. Why do we actually have to have an election to determine that? The reality that Kentucky's only going to go red and California is going to go blue is because they've decided to say, "If you get a majority, even a plurality of the vote, you get all of the electors." I mean, in 1992, [Bill] Clinton got something like 37% of the vote in Nevada, but got all the electors from Nevada.

The point is that we already have a system that basically disenfranchises the vast majority of Americans from having any role in the election, and it doesn't have to be like that. For example, if states allocated their electoral votes proportionally in a fractional way, so if you got 42% of the vote, you got exactly 42% of the electors, then every single voter in America would matter. Every single state would matter. Candidates would care about California and Kentucky and Wyoming and Utah just as much as they care about Pennsylvania or Florida. 

It's a political choice unchecked by the courts. I tried to stand up a challenge under the equal protection clause to try to get the court to finally say that this is a crazy, invalid way of disenfranchising Americans, but the court was not yet willing to take that up.

One of the things you talk about very eloquently in this book is the danger presented by the fact that the Constitution gives state legislatures so much power in determining how elections are conducted and how electors will be awarded. There are other dangers that you see, but I think it's fair to say you perceive the danger of state legislatures or state governors going rogue as the biggest single threat, in terms of undermining a fair election.

Yeah. In theory, the rogue governor is extremely dangerous, although in 2024 it's not clear we have any clear rogue governors we need to worry about.

Yeah. If Kari Lake were the governor of Arizona, we'd be thinking differently.

Yeah, that's right. Or the Pennsylvania governor could have been very different too. 

It's the state legislatures to really worry about. There's one strategy which didn't exist before, but has been created by the court's decision about whether presidential electors have any right to exercise discretion in how they cast their ballots. Because of that decision, there's a new innovation in election-stealing which we think is probably the most dangerous. Legislatures can't actually pick a new slate of electors after an election, because the Constitution says Congress gets to decide when the electors are chosen and Congress has said that's Election Day. But the decision of the Supreme Court makes it possible for a legislature to say, "OK, fine, you're the electors. But here's how you must vote." There's a companion case in that original decision that said, "If you don't vote the way you've been told, you can be removed and replaced."

Imagine it's a very close election in Pennsylvania — or Georgia, that's even a better state to talk about — and there's all sorts of claims of fraud and insecurity in the election count. So the legislature just declares, even though Joe Biden looks like the winner according to the count of  votes, "We think that's not actually accurate, so yes, there will be Biden electors, but those Biden electors have to vote for Donald Trump. And if they don't vote for Donald Trump, then we have the power to remove them, one by one, and replace them with electors who do vote for Donald Trump."

Now, that loophole was certainly not intended by Justice Elena Kagan when she wrote that opinion. I mean, at the end of her opinion, she said, "Here, we the people rule," but this is actually, "Here, we the legislature rules." I think we need to recognize this threat and be prepared for it, so that we can resist it if in fact it happens.

One of the genuinely amusing moments in your book — which mostly isn't intended to be funny — is when you say that in 2020, Republicans picked the "stupidest possible" strategy to overturn the election. Which was a strategy crafted by, I believe, your former law student, John Eastman, who proposed that the vice president basically has magical powers and gets to just pick the next president. 

I met Matt [Seligman] because he reached out to me in spring of 2020 and he said, "Here's an article I'm working on that shows how the presidential election could be stolen." I read it and it was a completely compelling argument. So I said, "Let's co-teach a seminar in the fall of 2020 called Hacking the Election, and we'll work through every single strategy and just how risky each strategy is." And we did that. We taught this seminar. The students were amazing. They put together extraordinary research projects on these strategies. I think three or four of them were really clear strategies that could have been deployed to steal that election. And of course, none of them were deployed. 

When we got to Jan. 6, both of us, were like, "We really dodged a bullet. That was really quite incredible." Then Jan. 6 happened, and in the book I referred to it as a Muppet remake of the Vietnam War, because it was so stupid and tragic at the same time, hilarious, stupid and tragic. 

Nobody could think that would work. Even if you imagine that somehow Pence could have gotten away with it, the idea that he would have gotten away with it because thousands of people were literally holding guns to his head is just crazy talk. There's no way the court would have allowed that kind of coercion to produce the next president. That's actually why — not many people agree with me on this, but I don't really think the president was intending violence to break out like that. I think he was intending to create a situation that would run over a couple of weeks of building pressure but never violence, so that Congress in the shadow of that real anxiety would then begin to find ways to bend the results in the direction that he wanted. But the way things blew up, it was awful.

My theory all along has been that what happened on Jan. 6 was an improvised response to the failure of their strategy. It was rage and desperation, rather than anything that was clearly coordinated in advance. But just to be clear about Eastman and his argument that the vice president basically gets to decide the outcome of the election: That's nonsense, correct?

It's nonsense. Matt and I disagree a little bit about whether it's crazy nonsense. Matt thinks it's completely crazy nonsense. The reality is that there were law review articles out there that pointed to this ambiguous early history right at the founding.

Involving Thomas Jefferson and John Adams, no less.

And there's also history around the disputed 1876 election, where lots of people were talking about the fact that the vice president would have this special power as a way to coerce both sides to the table to settle that election, which was a complete disaster that could have brought the republic down.

Maybe because Eastman is a former student I'm more forgiving, but if you're in the middle of advising the president, you've got three law review articles on your table, and they all say, "Yes, the vice president has this special magical power," it's easy to believe it because you want to believe it.

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But when you look at it carefully — and Matt has done really great work doing that careful examination — it just doesn't withstand scrutiny. Neither John Adams nor Thomas Jefferson, when they originally ruled on counting electors that in effect turned them into the next president, were counting electors that anybody doubted were correct. In Thomas Jefferson's case, it was electors from Georgia. They had not signed the certificate on the right line and not in the right place. The question was, do you throw Georgia's vote out because they hadn't signed the certificates? But nobody imagined that Georgia had voted for John Adams. 

The same thing was true in John Adams' case, where it was Vermont, a solidly Federalist state. There was no doubt that Vermont was going for Adams. So they might have fudged the legal niceties a little bit, but nobody believed that this was an assertion of the vice president's power to just decide who the next president would be. So there's no basis for it.

This was one of the strategies which we are the most clear about: There just is no power vested in the president of the Senate to ignore the joint session and pick which slate of electors will be counted. It just doesn't exist. So that route, we think, is the safest to just rule out. Not only because Kamala Harris is not likely to play that game for Donald Trump, but also because no vice president should have that power.

Let's move on to the question of so-called faithless electors, where I know you disagree with the Supreme Court's opinion that states can essentially dictate how they vote. This is an odd one, because it's pretty clear that the original intention by Alexander Hamilton and others was to allow the electors considerable independence, maybe not to vote for anybody they wanted, but certainly to exercise their own judgment to some degree. It never worked that way in practice, and the "Hamilton electors" plan of 2016, aimed at possibly electing someone besides Trump, never went anywhere. But you see a dangerous loophole in the Supreme Court's ruling on electors, correct? 

I think it is still a very important issue, but you're right about the framing context. It's not just that Alexander Hamilton had this in his mind. The very first faithless elector was a guy named Sam Miles, who was chosen to vote for Adams and voted in the end for Jefferson. A lot of people said, "This is outrageous. Why does this guy get to vote contrary to how he was chosen to vote?" That happened before the 12th Amendment, which finally solidified the current structure of the Electoral College. 

When the 11th and 12th Amendment was being considered, people pointed to Sam Miles and said, "Shouldn't we do something about that problem?" And they decided, "No, that's just what it is to be an elector. We have to trust these electors." Now, the reality is, in the 23,000 votes by electors in the history of our republic, there has never been a single elector even alleged to have cast their vote because of bribes, and only one who flipped sides. That was Sam Miles, the very first one. A bunch of others changed their votes for reasons of political symbolism or whatever, but none of them were actually trying to overturn the results. So our view was that electors are actually the safest, most trustworthy institution in our republic and the framers intended them to have discretion, so the Supreme Court should uphold it.

The Supreme Court didn't uphold it, of course. The Supreme Court said legislatures could control the electors, and that's why we have this risk of them telling them how to vote differently. But the remaining problem is that right now, not every state tells electors how they must vote. There's a bunch of states where they're free. When we were originally thinking about this in 2016, nobody really imagined the coercion, the fear that might manifest itself. 

The threat of violence, to be clear. Basically meaning the threat of violence from Trump supporters.

I mean, look, in the last election you had states like Georgia where it was incredibly impressive that those Republicans withstood the pressure of the president and did the right thing. That happened all across the country. But if you imagine an elector being told, "If you don't switch your vote and vote for candidate X, your family is not going to be safe." What would they do? 

We actually think, even though I opposed the regulation of how electors vote, that right now states must pass laws that control how electors vote so there's no room for this kind of threat. There's also a really important loophole they have to fill about what happens if the president dies between the election and the time the electors vote. We think that that ought to happen right away so that the risk of coercion is not actually a risk we have to worry about.

Yes, that was interesting. I didn't know about that one.

As to electors, there are three reforms we want to see. No. 1, Congress should say that if a state tells the electors to vote differently after an election [i.e., not for the candidate they were originally pledged to], that's not a vote "regularly given" and those votes don't count. They should remove that incentive right away. No. 2, every state that doesn't tell their electors how they must vote should pass a law tomorrow that tells their electors they must vote the way the people vote.

No. 3, we have to deal with a case where a candidate dies between the election and the time the electors vote. Under the rules that say you have to follow the law and vote how you've been elected to vote, you could have a candidate die, leaving those electors with no ability to vote for another candidate. That restriction needs to be conditioned on the candidate surviving. If the candidate dies, they ought to be free to vote however they want to vote. That was Congress' presumption when they passed the 20th Amendment, which changed some of the rules for what happens if candidates die. 

It's not a very high probability, but it's a dangerous probability. Because this is the one moment where if an assassin took a candidate out, you could flip control of the presidency to the other party. Because if the votes disappear, which they would, that means no candidate would get a majority. Then it goes into the House and the House could vote for a Republican, even though the Democrat has been elected.

Let's finish up with a couple of topical questions for a legal scholar. Does Donald Trump, or any other president for that matter, have total immunity from alleged crimes committed while in the White House?

No. The idea that we're asking this question is embarrassing. No, he does not have total immunity.

Do states have the right or the authority to disqualify him, or some other theoretical candidate, from the ballot under the insurrection clause?

This is a little complicated, but I don't think that without a statute by Congress anybody has the right to exclude federal officers, whether it's congresspeople or the president, from being candidates. I do think Congress could pass an insurrection law and say, "If you engage in insurrection, here's the proof that has to be established, and if that proof is established, then you are disqualified from being a candidate for president or for Congress or any other office." Right now, there is no such statute. I don't think that this clause, section 3, is self-executing, which means that it's certainly wrong for a court in Colorado or the secretary of state in Maine to just throw somebody off the ballot.

There's no such authority. That's not the power that the 14th Amendment is creating. The 14th Amendment explicitly says in section 5 that Congress shall enforce the provisions of this amendment in ways that Congress judges. The courts have consistently said, "This is not self-executing. Congress has to pass a rule and we will enforce the rule."