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 watching our every move, but no one will heed his warnings.
I didn't receive it. I believe my arguments about how and why the internet will evolve into tracking[] our every move are self-evident. Perhaps too obvious. I naively believed that everyone would agree, and we would do something about it. Only after the internet became, “maybe not a “monster”, but certainly not what we had hoped for, and indeed “tracked[] our every move” a “digital Cassandra”. I (and many others) were right, but no one listened.
Yet today I feel like a Cassandra democracy. Over the past year, in a book I wrote with Matthew Seligman, How to Steal a Presidential Election , and in writing and speaking wherever I could, I described the threats as I saw them for the 2024 election. Specifically, how would you play it if your game stole it? Those predictions require remedial measures – steps that need to be taken now to protect us from those threats then. 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 on the field. I have great respect for lawyers and academics who have thought through similar issues. And growing old - something I've been quite successful at learning, through life, humbly.
But I can't escape the thought that something is being missed among lawyers and strategists. That's how Cassandra felt. And so, at least to give us a way to flag my error, let me clarify what I think we're missing and why I think it's 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 the electors representing Hawaii. But Democrats noticed an error in the table and demanded a recount. That recount will take time, lasting well beyond the day when presidential electors will meet and vote. So on that day - Voters' Day, both Kennedy and Nixon's electors met at the Capitol; Both signed documents sworn to be “duly appointed and qualified” electors of and for the “state of Hawaii”; Both voted for their respective candidates. By the end of the month, the recount was 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's the important point: If this very similar series of events happened today, the outcome would be different. The law would have told Nixon to ignore the votes for Kennedy and count the state for himself. More problematically, at least for Kennedy's electors, if they actually met and voted on Electors' Day, they would be considered fake voters, and, depending on the state, prosecuted for fraud. Again, if the same chain of events happened today, the wrong candidate would be declared the winner of the state's popular vote.
That fact is, in my view, among the greatest threats we face in 2024 - because this truth will encourage bad behavior, possibly on either side, as it provides a clear way to ensure the outcome is a more complete count or final settlement in any legal dispute, which can be thrown into jeopardy.
How did we get to this strange reversal of the obvious answer - that Kennedy's vote should count? To see how this happened, let's update the example a bit, to make its perspective more relevant to 2024.
Imagine on Election Day 2024, Donald Trump is ahead in the popular vote in Georgia. However, his lead began to fade as absentee ballots were counted across the state. But late in the process of counting those ballots, a state judge declared certain types of absentee ballots illegal. The judge ordered them removed from the total. Democratic attorneys appealed the ruling, but the other side successfully delayed or delayed consideration of that appeal. On December 11, the governor was asked to certify the results of the election. As of December 11, given the number of votes later deemed legitimate, Donald Trump was the winner. On December 17, Voters' Day, Harris voters tried to meet to vote for their candidate. Officials in Georgia threatened those electors with prosecution for “fraud” because they were not, as of December 17, validly elected electors of the state of Georgia. After the electors failed to meet and cast their votes, Donald Trump's lawyers filed a motion to dismiss appealing a lower court's ruling that absentee ballots were illegal. Trump should win that motion, because even if Harris had prevailed, the failure of her electors to vote means there could not be votes for her from Georgia for Congress to count on January 6. Harris's electors did not. The court should dismiss the appeal; Trump's victory will be assured.
There are many ways to counter this hypothesis. An appeal may move more quickly; Harris electors can be brave and meet and vote regardless of the threat of voter fraud prosecution. More fundamentally, this same story can be told another way: Imagine it's Pennsylvania, and it's Harris who is going before a lower court ruling to invalidate ballots that would have favored Trump. Points are not specifics. It is much more general: the changes we have made - both in laws and expectations, the advent of a presidential election makes the system more susceptible to manipulation, not less.
Two specific changes created this weakness.
First, in our zeal to punish those involved in the efforts leading up to January 6, we vilified the Trump electors who met and cast their votes without certifying their governors. In Georgia, Wisconsin, Michigan and Arizona, both civil and criminal actions have been brought against those voters for meeting and voting on Voters' Day. These so-called fake voters, these prosecutions allege, were involved in a conspiracy to subvert the election.
But I've looked at many of these claims: whatever you say about the lawyers who architected the (false) debate with Vice President Pence that he had the authority to choose the electors of 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 preserve the opportunity for the courts to determine who ultimately won the vote. popular in their state on election day. There is no doubt that the claim that there were enough fraudulent or illegal votes to change the result has proved baseless. But at least in Wisconsin and Arizona, there were valid legal arguments that were not finally resolved on the day the electors will vote, and whether or not it is likely that those claims will be resolved in Trump's favor, it is not crazy to believe that Trump already has a claim. In Arizona, for example, lower courts misinterpreted the Election Count Act to require them to resolve any election dispute six days before Voters' 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 could have resolved in favor of Trump. Again, I'm not saying I agree with these arguments; I'm just saying that they're not crazy, and that it's right for voters to meet and cast their ballots, as long as there's an open question about which voters were chosen on election day.
Defenders of this war on Trump electors say there is no reason for them to swear they are duly elected electors, when in fact, at the time they voted, they were not. They may, as some have done, make it clear that they are acting haphazardly, depending on the outcome in ongoing litigation.
That's true—and in 2024, if this needs to arise, that's exactly what any unproven but necessary voter should say. But the same could have been said about Kennedy's electors in 1960: they also swore they were duly elected electors when they were not. The certificate they signed stated that they were “duly appointed and qualified” electors of and for the state of Hawaii. In both cases, anyone should consider the claim fraudulent because, in both cases, the documents that were signed 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 - a recount, a declaration that certain ballots should or should not be counted, a ruling that a recount procedure violated the equal protection clause, regardless of which results are overturned, the opportunity to count votes for the true winner of the election in their state. And if the results don't flip, the National Archives will have another set of papers to store in its historical vault.
The second change that created this weakness was Congress's fault. In December 2022, Congress surprised many by passing the Voting Reform Act. That law corrected some glaring flaws with the infrastructure that guided election ballot counting. Some of those changes are good and necessary. But some just make matters worse. Specifically, Congress shortened the time that states had to resolve election disputes by directing the Governor to certify the results six days before the electoral college vote and by giving Congress no way to account for any changes after that certification. Everyone knows in 2022 that litigation takes time; One of the weaknesses in the 2020 case was the number of courts withholding any real analysis of the underlying claims because of the shortness of time. However, ECRA did not address that issue the way some - like Senator Rubio - had suggested by moving the voter date later in the process. Instead, Congress did the opposite: took an already shortened time frame and made it even shorter.
There is no doubt that, with the help of organizations like Defending Democracy , countries have done a lot to improve their processes to resolve disputes and contests more quickly. But these changes won't change the candidates' incentives in the midst of a close contest: the rules now give the popular side an irresistible incentive to slow down the process of resolving any disputes about the election. If the lawyers for the leading candidate can run the clock past the required certification date, their candidate will prevail. Therefore, we have created a system in which the lawyers' incentive is not to resolve requests in a way that would convince the public that the election was decided honestly and fairly. Instead, the system amplifies the incentive to cooperate with any competition, to run the clock.
There is no good reason to force states to short-circuit their processes to resolve a tight election. Both sides need to provide public confidence that legitimate claims are considered fair and responsible. If lawyers make illegal demands, they can - and should - be disciplined. There is no reason why a state cannot consider settling its electoral contest. The only real deadline is when Congress decides to count the electoral votes - as Hawaii, in 1960, demonstrated. Therefore, the problem we have created for the states is both incorrect and unnecessary. Offended, met with injury.
Y et even today, there is something Congress can do. Congress could amend the Election Counting Reform Act in a small but important way, thereby eliminating this perverse incentive altogether.
Here is a new proposed section for ECRA that would do just that, while giving the legal requirements of the winner of an election a fair chance of being resolved:
3 USC §14: If on the day the electors shall meet to vote, there is litigation in progress in any state or federal court as to the electors appointed on the day of the election in that state, then the electors who may reasonably be determined to be appointed on the day of the election shall meet and vote as provided in section 7. If such electors are not certified by the executive of the state 13. If the litigation ends be jointly resolved in favor of the appointment of these contingent electors before January 3, then the executive of the state shall certify, and the Congress shall count, the votes of the contingent electors, unless both Houses consider the irregular votes given.
This provision will not disrupt the normal process in the vast majority of countries. It will only work in states with ongoing lawsuits over the winning candidate. But most importantly, the provision would eliminate any incentive that lawyers would have to slow down the process of resolving election disputes. ECRA's presumptive outcome would rule unless, on January 3, a court ruled differently. The change will nearly double the time the courts will have to do their work. It would eliminate any need to short-circuit legal analysis, giving both sides a broad opportunity to claim a fair trial and settlement.
I get that it's hard to imagine the Congress taking place before November 5. If there's any chance of turning that possibility around, it's in recognition that both sides can play this game. There is no reason for Republicans or Democrats to enter this election with a strategic incentive to skew the results. Instead, we should adjust the rules, to eliminate that incentive and give all Americans confidence that any contest has been resolved fairly.