When I published my first book, Code and Other Laws of Cyberspace (1999), a New York Times critic wrote,
Lessig plays digital Cassandra: He predicts that the Internet will become a monster tracking our every move, but no one will heed his warnings.
I didn't get it. I believed that my arguments about how and why the internet would evolve into tracking [] every move we make were obvious. Perhaps too obvious. I naively thought that people would agree, and we would do something about it. Only after the internet became, perhaps not a monster of a person, but certainly not what we had hoped, and indeed tracked [] every move we made. A digital Cassandra of the Vikings. I (and many others) were right, but no one listened.
However, today I feel like a democratic Cassandra. Over the past year, in a book I wrote with Matthew Seligman, how to steal a presidential election, and by writing and speaking wherever I could, I have described the threats as I see them for the 2024 election. Specifically, how would you play it if your game was to steal it? Those predictions require remedies - steps that need to be taken right now to protect us from those threats later. However, none of those steps have been taken. On the contrary, the changes that have been made have only made the threats worse.
Don't get me wrong. I don't think I'm the smartest person in the room. I have great respect for the lawyers and scholars who have thought through similar issues. And growing older - which I have been quite successful at through life, humbly.
But I can't shake the feeling that something is being missed between the lawyers and strategists. That is the feeling of Cassandra. And so, at least for us a way to mark my error, let me clarify what I think we are lacking and why I think it is so dangerous.
To see the threat, consider what happened in Hawaii in 1960. Richard Nixon was initially declared the winner of the popular vote; His electors were certified as electors representing Hawaii. But the Democrats found an error in the tally and requested a recount. That recount would take time, extending past the day when the presidential electors would meet and vote. So, on that day - Elector Day, both electors of Kennedy and Nixon met at the Capitol; Both documents signed under oath were the appointed and legally qualified electors for and from the state of Hawaii; Both voted for their respective candidates. By the end of the month, the recount had been completed. Kennedy was declared the winner of the popular vote. The governor issued a new certification. And on January 6, Vice President Richard Nixon counted Hawaii in favor of John Kennedy.
OK, here is the key point: If this very similar chain of events were to happen today, the outcome would be different. The law would allow Nixon to disregard the votes for Kennedy and count the state for himself. A harder way, at least for Kennedy's electors, if they actually met and voted on Elector Day, they would be considered fake electors, and, depending on the state, prosecuted for fraud. Again, if a similar chain of events were to happen today, the wrong candidate would be declared the winner of the state's popular election.
The reality is, in my view, among the greatest threats we face in 2024 - because this reality will encourage bad behavior, potentially on both sides, as it provides a clear way to ensure the outcome is a more complete count or ultimately resolve any legal disputes, which could throw into jeopardy.
How do we get this strange reversal of the obvious answer - that Kennedy's votes should be counted? To see how this happened, let’s update the example a bit, to make its point more relevant to 2024.
Imagine on Election Day 2024, Donald Trump is ahead in the popular vote in Georgia. However, his lead begins to dwindle as absentee ballots are counted statewide. But late in the counting of those ballots, a state judge declares some type of absentee ballot illegal. The judge orders them to be excluded from the total. The Democratic lawyers appeal the ruling, but the other side successfully delays or slows the review of that appeal. On December 11, the governor is required to certify the results of the election. As of December 11, given the number of ballots then considered legal, Donald Trump is the winner. On December 17, Elector Day, the Harris electors attempt to meet to vote for their candidate. Officials in Georgia threaten those electors with prosecution for fraud because they are not, as of December 17, the valid elected electors of the state of Georgia. After the electors do not meet and vote, Donald Trump's lawyers file a motion to dismiss when appealing the lower court ruling that the absentee ballots are illegal. Trump should win that motion, because even if Harris had won, her electors' failure to vote means there can be no votes for her from Georgia for Congress to count on January 6. The Harris electors did not. The court should dismiss the appeal; Trump's victory would be assured.
There are many ways to counter this hypothesis. An appeal could move faster; The Harris electors could bravely meet and vote regardless of the threat of prosecution for fake electors. More fundamentally, this similar story could be told differently: Imagine it is Pennsylvania, and it is Harris herself, who is ahead when a lower court rules to invalidate the ballots that would support Trump. The point is not the specific details. It is much more general: the changes we have made - both in law and expectation, the conduct of a presidential election makes the system more susceptible to manipulation, not less.
Two specific changes have created this vulnerability.
First, in our zeal to punish those involved in the efforts leading to January 6, we have vilified the Trump electors who met and voted without their governor's certification. In Georgia, Wisconsin, Michigan, and Arizona, both civil and criminal actions have been taken against those electors for meeting and voting on Elector Day. The so-called fake electors, these prosecutions allege, were involved in a conspiracy to overturn the election.
But I have looked at many of these claims: whatever you say about the lawyers who architected the (wrong) argument with Vice President Pence that he had the authority to choose the electors on January 6 that he would count, the actual electors who met and voted on December 14 did so because they believed they needed to protect the opportunity for the courts to ultimately determine who won the popular vote in their state on Election Day. No doubt, the claim that there were enough fraudulent or illegal votes to change the outcome has proven unfounded. But at least in Wisconsin and Arizona, there were valid legal arguments that had not been finally resolved by the day the electors would vote, and whether those claims would be resolved in Trump's favor, it is not crazy to believe Trump had a claim. For example, in Arizona, lower courts misinterpreted the Election Count Act to require them to resolve any election disputes six days before Elector Day. That legal conclusion is wrong. And in Wisconsin, applying at least the principles laid out by Chief Justice Rehnquist in Bush v. Gore, changes in voting procedures could easily raise a constitutional question that the Supreme Court might have resolved in Trump's favor. Again, I am not saying I agree with these arguments; I am just saying they are not crazy, and the electors meeting and voting for her is right, as long as there is an open question about who the electors were chosen on Election Day.
Those defending this fight against the Trump electors say there is no reason for them to swear that they are the valid elected electors, when in fact, at the time they voted, they were not. They could, as some did, make it clear that they were acting contingently, depending on the outcome in the ongoing litigation.
That is true - and in 2024, if this needs to arise, that is exactly what any unproven but necessary elector should say. But the same could have been said about Kennedy's electors in 1960: they also swore that they were the valid elected electors when they were not. The certification they signed states that they are the appointed and legally qualified electors for and from the state of Hawaii. In both cases, anyone should consider that statement to be fraudulent because, in both cases, the signed documents were implicit: they were meant to have legal effect if and only if their candidates were declared to have won the election on Election Day. If, for any reason - recount, a statement that certain ballots should be counted or not counted, a ruling that a recount procedure violated the equal protection clause, regardless of the outcome being overturned, the opportunity to count votes for the actual winner of the election in their state. And if the outcome is not overturned, then the National Archives will have another set of documents to store in its historical treasury.
The second change that created this vulnerability is Congress's fault. In December 2022, Congress surprised many by passing the Electoral Count Reform Act. That law fixed some obvious flaws in the infrastructure guiding the counting of electoral votes. Some of those changes are good and necessary. But some only made the problem worse. Specifically, Congress shortened the time that states have to resolve election disputes by directing governors to certify results six days before the electoral college votes and by giving Congress no way to account for any changes after that certification. Everyone knew in 2022 that litigation takes time; One of the weaknesses in the 2020 litigation was the number of courts that were briefed any real analysis of the underlying claims because the time was too short. However, ECRA did not address that issue in the way that some - like Senator Rubio - suggested by moving the elector date later in the process. Instead, Congress did the opposite: it took a shortened timeframe and made it even shorter.
No doubt, with the help of organizations like Protect Democracy, states have done a lot to improve their processes to resolve disputes and contests faster. But these changes will not change the incentives of candidates in the midst of a close contest: the rules now give the popular side an irresistible incentive to slow the resolution of any election disputes. If the lawyers for the leading candidate can run the clock through the mandatory certification date, then their candidate will win. Thus, we have created a system in which the incentives of lawyers are not to resolve claims in a way that can persuade the public that the election was decided honestly and fairly. Instead, the system amplifies the incentives to collude with any contest, to run the clock.
There is no legitimate reason to force states to shorten their processes to resolve a close election. Both sides need to build public trust that legitimate claims are treated fairly and responsibly. If lawyers make illegitimate claims, they can - and should be disciplined. There is no reason a state cannot consider resolving its election contest. The only real deadline is when Congress decides to count the electoral votes - as Hawaii, in 1960, demonstrated. Thus, the problem we have created for states is both wrong and unnecessary. Offensive, meet injury.
Yet even today, there is something Congress can do. Congress can amend the Electoral Count Reform Act in a small but important way, thereby completely removing this corrupt incentive.
Here is a proposed new provision for ECRA that would do that, while giving legal requirements for the winner of an election a chance to be resolved fairly:
3 USC §14: If on the day the electors meet to vote, there is ongoing litigation in any state or federal court regarding the election appointed on Election Day in that state, then the electors may reasonably be determined to be appointed on Election Day will meet and vote as provided in section 7. If those electors are not certified by the state executive 13. If the litigation is ultimately resolved in favor of appointing these backup electors before January 3, then the state executive will certify, and Congress will count, the votes of the backup electors, unless both houses consider the irregular votes to be presented.
This provision would not disrupt the normal process in the vast majority of states. It would only operate in states with ongoing litigation regarding the winning candidate. But most importantly, the provision would eliminate any incentive for lawyers to slow the resolution of election disputes. The presumptive outcome of ECRA would govern unless, on January 3, a court has ruled otherwise. The change would nearly double the time courts would have to do their work. It would eliminate any need to shorten legal analyses, giving both sides ample opportunity to have claims adjudicated and resolved fairly.
I get that it is hard to imagine Congress meeting before November 5. If there is any chance to overturn that possibility, it is the recognition that both sides can play this game. There is no reason for either the Republican or Democratic party to enter this election with a strategic incentive to skew the outcome. Instead, we should adjust the rules, to eliminate that incentive and give all Americans confidence that any contest has been resolved fairly.