Transcript of OA346: Faithless Electors (w/Lawrence Lessig)

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 346.  I’m Thomas, that’s Andrew, how’re you doin’ Andrew?

Andrew:         I am fantastic and I’m full of holiday cheer.  I had a lovely Christmas, I assume you did the same?

Thomas:         I assume I did too!

Andrew:         [Laughs]  

Thomas:         Tell you what, probably enjoyed several fine Italian bottles of wine from our new first annual wine exchange that we’re now doing between Andrew and I.

Andrew:         [Laughs]  

Thomas:         It was meant to be, I’m glad we’re doing this.

Andrew:         And I actually did crack open the now six year old aged eggnog that I’ve had in my fridge.

Thomas:         Ooh!

Andrew:         Which is amazing.  It’s the scotch of eggnogs Thomas, it’s so good.

Thomas:         Wow!  Alright well I know a lot of people don’t react well to that-

Andrew:         I know, that’s why I talk about it.

Thomas:         It seems weird, it’s nothing – eggnog is I think exclusively perishable stuff, there’s no non- it’s cream, eggs, whatever other milk products but okay.  Seems like it shouldn’t be possible.

Andrew:         That’s the whole game, is to preserve cream and eggs for years at a time.  The secret is an unbelievable amount of whiskey, so … [Laughs]  

Thomas:         Ah! 

Andrew:         Yeah, turns out.

Thomas:         So it’s not just like you open it up and it’s blue cheese?

Andrew:         No, it is-

Thomas:         Delicious?

Andrew:         Smooth and rich and it’s amazing.

Thomas:         Well, we’ll take your word for it! [Laughs]  Alright well it’s time for an interview!  We’ve got an interview with Lawrence Lessig about faithless electors and I think we probably should hop right on over to it, what do you think?

Andrew:         Yeah, let’s do it!

Interview with Lawrence Lessig

[Segment Intro]

Andrew:         And welcome back to Opening Arguments Professor Lawrence Lessig!  Prof. Lessig thanks for being here?

Prof. Lessig:   Thanks for having me!

Andrew:         Yeah absolutely!  Last time we [Laughing] got way into the weeds on Article 5 conventions so I thought it made sense to have you back to discuss a couple of recent cases that you’re involved in that relate to the electoral college.  Maybe as an initial matter, what are your thoughts on the electoral college in general?  Obviously there’s the interstate compact effort, there are various efforts to try and abolish or undermine, change the electoral college.  What are your thoughts on a structural level?

Prof. Lessig:   Well I think it’s the most misunderstood institution – except for Article 5 [Laughs]  

Thomas:         [Laughs]  

Andrew:         [Laughs]  

Prof. Lessig:   -within the constitution.  I mean there’s this perception that the biggest problem with the electoral college is that it increasingly seems to elect the loser as the winner and there’s this perception on the right that the greatest thing about the electoral college is that it benefits small States over big States.  My view is the greatest problem is not that elects losers rather than winners, and the reality is it doesn’t benefit small States over large States.

Thomas:         Hmm!

Prof. Lessig:   The problem with the electoral college is that in every election it is an election focused on the swing States, and the swing States – in 2016 fourteen States which received 95% of campaign events and 99% of campaign spending – those fourteen States are just not representative of America.  They’re older, they’re whiter, their industry is kind of late 19th Century, early 20th Century industry.  There’re 7 and a half times the number of people in America focused on solar energy as mine coal, but you never hear about solar energy in Presidential campaigns ‘cuz those people live in Texas and in California.  You hear about coal miners because those people come from swing States.

So the problem with the electoral college is that winner take all has evolved the institution into an institution that represents not America.  It is not America that is electing our President and if we’re gonna outsource the selection of our President to another country I’m not sure it would be the swing States I would select!

Andrew:         [Laughs]  

Prof. Lessig:   I think we need to focus on how do we get an electoral college, at least, that represents America rather than something that has nothing to do with America?

Thomas:         I do have to at least ask, could you go into detail on why it doesn’t favor small States?  ‘Cuz that sounded – maybe I’m just totally misinformed but it seemed like it gives small States way more leverage per person than larger States doesn’t it?

Prof. Lessig:   You’re absolutely right that the per capita electoral vote is larger in Wyoming than in California, but the question is where do Presidential candidates focus their attention and where do they bend policy to favor in order to get elected or reelected President?  The overwhelming evidence is that is swing States.  Look, if you’re running for President, you’re a Republican, it makes no sense to spend a single second or a single dollar in either California or Wyoming because both California and Wyoming are set regarding you.  You are never gonna win California and you are certainly gonna win Wyoming, so you don’t care about California and you don’t care about Wyoming because those places are not going to affect your election.  What you care about are swing States.

Now some swing States are small States, New Hampshire, but it’s accidental that it’s a small State, it’s just because it is a politically divided State that it’s a swing State.  Most of the swing States, like Pennsylvania, Florida, Ohio, Michigan, these are large States, so it’s not small States that are getting the power in the actual selection of our President, it is these arbitrarily selected swing States that, you know, shift slightly election to election but never have any direct relation to representing America generally or representing small States in particular.

Thomas:         Well I hear you on that, but I suppose the counterargument would be like if these small States didn’t have some number of electoral votes that they do based on this system then maybe we wouldn’t even get to the point where we have these swing States, but I understand what you’re saying.  It does focus the campaigning on these certain swing States.

Prof. Lessig:   But I’m saying more than campaigning, there’s a really great book, The Particularistic President by Kriner and Reeves that actually maps policy decisions by Presidential administrations with respect to these swing States.  What they find is not only spending, which is hugely inflated in swing States versus the rest of the country, but even regulations get bent to benefit swing States against the interests of the rest of the country. 

The most recent and obvious example of this is when Trump was elected President he very quickly eliminated the offshore drilling ban.  Florida had an exemption from that almost immediately.

Thomas:         Hmm.

Prof. Lessig:   And New Jersey couldn’t even get a hearing because New Jersey is not a swing State, who cares about New Jersey?  But Florida is a critical State, you can’t be a Republican President without winning Florida, so what that means is Florida had more power simply because they’re a swing State, not because they’re a small State, they’re not, not because they represent America, they don’t.  Because they’re a swing State.  That’s the problem with the electoral college.

Thomas:         Mm-hmm.

Prof. Lessig:   And it doesn’t happen once every five elections or once every ten elections, it happens in every single election.

Andrew:         [Laughs]  

Prof. Lessig:   The point is that’s the problem we ought to be figuring out how to solve.

Andrew:         Okay, I think that makes a lot of sense.  So let’s kind of transition into these two lawsuits which we, on episode 309 we broke down the Baca v. Hickenlooper decision in the 10th Circuit.  You’re involved in a couple of different lawsuits that arise out of the 2016 post-electoral effort.  I think you called it electors trump, was that right?

Prof. Lessig:   No, so I was involved in an organization that provided legal advice through something called the Electors Trust-

Andrew:         Trust, sorry.

Prof. Lessig:   It was basically just a nonprofit that allowed electors to ask questions about their rights as electors.  There was another project called Hamilton Electors-

Andrew:         Yes.

Prof. Lessig:   It was a project, I was not involved in this but I knew about them at the time.  It was a project to recruit electors across the country to vote for a third candidate like Kasich to basically assure that the election go thrown into the House and then the House could decide who the President should be between Trump, Kasich, and Clinton.

Andrew:         And it seemed like, although that was obviously a pretty longshot strategy to try and convince 37 electors – 37 Trump electors – to become faithless electors, but the reasoning behind it I could at least follow, which was okay, you have an institutional House of Representatives at the time which was not yet under the sway of Donald Trump and if you give them the choice between a total wildcard Republican in Donald Trump and an institutional, one of their own, in John Kasich, then they’re likely to vote for Kasich.  As we knew at the time, they would not prefer Hillary Clinton over Donald Trump, for example.

So both of these lawsuits sort of track what happened with particular faithless electors.  I guess my first question from a factual basis, and depending on your involvement with the organizations maybe you have access maybe you don’t.  All of these were Democratic electors who, in the Colorado case either voted for or wanted to vote for Kasich, in the Washington case who split and voted for, mostly for Colin Powell for President.  Do you know what the thought process was with respect to having Democratic electors defect?  Was it just lack of coordination with Republican electors or what was the thought process there?

Prof. Lessig:   Well what I know about those conversations was that at the time there was a very concerted effort by the Hamilton Electors to reach out to Republican electors and basically structure the intervention of voting contrary to your pledge in order to move the election into the House.  The original aspiration, again I wasn’t on the inside of this but this is what was reported to me, the original aspiration was Democrats would have to demonstrate good faith by voting contrary to Clinton if they were gonna get Republicans to demonstrate or to be willing to risk voting against Trump. 

So the Democrats that were lined up by Baca in Colorado in particular were about trying to be part of a bigger strategy to try to affect the movement into the House.  Separate from that there was an effort by some to identify Republican electors independent of the Hamilton electors project who did not support Trump or did not want Trump to be President and who would vote contrary to Trump.  I understand from a person at the center of that project, a guy named RJ Lyman who is a Republican from Massachusetts that he had a substantial number, more than 20 of those electors, who were willing to consider voting contrary to Trump if he could get to the magic number of 37. 

Andrew:         Mm-hmm.

Prof. Lessig:   They were not gonna put their neck out unless there was a reason to.  Now of course, Chris Suprun in Texas was a Republican elector who voted contrary to Trump because he thought that was his obligation so it’s not like there were no Republican electors that voted contrary to Trump, but this effort to mobilize electors to vote contrary to their pledge was pretty big at the time.  One thing that stopped it was the subject of these lawsuits, which is do they actually have the right, constitutional right, to vote contrary to the vote of their State or contrary to their pledge as electors?

Andrew:         Yeah, in taking that into account for 2020 my view is that what I really appreciate about these decisions coming out now and the continued efforts to litigate them is that if you have an ambiguous rule right now – and we can talk to what extent you think the rule, that is the notion that President electors have the constitutional right to vote their conscience.  I would rather, given that we have an activist Supreme Court, I think we can take that as red, I would rather have the rule decided in advance before we know whether the application of that rule is going to benefit Donald Trump in 2020 or whether it’s gonna benefit his Democratic challenger.  It’s pretty easy to imagine both scenarios coming into play.

Prof. Lessig:   Oh my gosh, that is so obviously right!  You know, we ought to pause and just bathe in the joy of recognizing issues which nobody should disagree with!  This is one of those issues, I don’t care what your politics is, you ought to agree that whatever you want the result to be you want the result to be that before we’re in the middle of a Presidential election.  What we’ve believed from the very beginning is if you look at the demographics of the United States and the way the electoral college is gonna work over the next ten cycles it is going to increasingly be a close contested election regardless of how popular these candidates are, that’s just the way the electoral college is gonna work, which means the chance of actually having electors who are tempted to flip the result in a particular election is going up dramatically.

We just need to know, do they have that power?  Because if they have that power than America needs to decide whether they want to keep it like that or want to change it, but we ought to do that before we’re forcing the Court to say yes it turns out the law entails that this elector can switch the results and make Donald Trump a second term President or make a Democrat a President even though Donald Trump otherwise would’ve won the electoral college.

Andrew:         Yeah, so from a litigation strategy perspective, what are you doing to make sure that that rule gets decided in advance?

Prof. Lessig:   So our strategy was, we brought two cases, one in Washington State and one in Colorado.  The Washington State case was the clearer, simpler case to bring because in that case three electors were actually fined $1,000 each so there’s no question of standing, there’s no question about the right to challenge the law, the question is is that law constitutional or not?  In the 10th Circuit it was a harder case to structure because in the 10th Circuit what happened is the Secretary of State basically removed one elector and threatened two others, so we brought a 1983 action against the Secretary of State that basically said this is vote intimidation, you violated the voting rights of these electors by removing one because you didn’t like his vote and threatening two others because you didn’t like how they intended to vote.

Now the idea was to move both of these cases through and ideally to get a split between the two of them.  I mean we think the Supreme Court should take this case whether or not there’s a split given exactly what we just reflected on but the Court seems so focused on whether there’s a split in authority we wanted to be able to produce the split.  I’m glad that in some sense we’ve produced the ideal split because it’s gonna be cleaner for the Supreme Court to review the Washington case – which we lost, the Washington Supreme Court held that electors could be fined for voting contrary to their pledge – than it is for us to review the 10th Circuit case which is complicated by a thousand other questions of standing-

Andrew:         [Laughs]  

Prof. Lessig:   -and whether there should be case.  All those other complications that the Court had to work through before it actually got to the constitutional rule.  But the 10th Circuit opinion is just brilliant in its comprehensiveness and its careful attention to every single issue that there is in deciding what the ultimate answer to the question should be.  So right now what’s happening is the 10th Circuit, the Washington Attorney General’s office, has been extremely mature and professional about trying to make sure that this question gets resolved before the next election.  I mean they have their view, it’s not our view, but we all agree that we ought to resolve this before it has a consequential effect on an election. 

So what we’re trying to do right now is figure out what the right ordering of the cert petitions or timing of the cert petitions should be.  My preference is that it’s the Washington Supreme Court, that the Court is focused on in resolving the question but there’s a chance that both of the cases get taken up and the Court would have two cases that it would consider, one Washington and the other the 10th Circuit and have to write an opinion that in some sense resolves both of them.

Andrew:         So you have an agreement with the State of Washington in that case to extend the time for filing a cert petition?  Because I know that decision came out I believe at the end of May.

Prof. Lessig:   Well we didn’t get an agreement from Washington, Justice Kagan who’s the Circuit Justice for the 9th Circuit gave us an extension to file the cert petition.  The reason we gave was that the 10th Circuit was still deciding its case and we thought the Court would be in a better position to decide on the cert petition once the 10th Circuit had decided.  Now they have, they’ve created a split so we in principle could file today but what we’re doing is talking to the Attorney General in Colorado to figure out what they’re going to do and to coordinate the timing to give the Court the best opportunity to hear and to resolve the issues.

Andrew:         Yeah, does Colorado wanna appeal the Baca decision?  I mean obviously you would have grounds to appeal as well on behalf of the two faithless electors who were allegedly intimidated but who were not replaced, but obviously you prevailed on standing for Michael Baca.

Prof. Lessig:   Yeah, we would not appeal that decision.  What’s significant is the Attorney General has not asked for rehearing or rehearing en banc.

Andrew:         Mm.

Prof. Lessig:   So now the only question is whether they file cert.  At this stage I understand there’s not a decision that’s been made but we’ve been talking to them to figure out if they did what the timing would be, would we join each other in saying that yes cert ought to be granted in both, which we’d be fine with, but the only thing that’s really important to us is that at least the Washington case should be there so that the Court has a chance to consider it without having to wade through the 60 pages of preliminary questions to be able to get to the ultimate question of constitutional power.

Andrew:         Yeah, we did I think 80 or 90 minutes on Baca, so [Laughs]  I sympathize.  So procedurally the posture you would prefer would be for the Supreme Court just cleanly to take up the Guerra decision and then for the 10th Circuit decision to just stand and to note that there’s a – it’s not a split among the Circuits but it’s a split between Washington State.  That makes sense.

I worry – so when I try and play chess behind what I think this Supreme Court will do I wonder if there is a way to narrowly rule on the facts that is then consistent with both decisions.  It might go something like this to say look, the Washington State opinion says that there is not an absolute right, unfettered right for an elector to do whatever he or she wants, we’re not called upon to pass judgment on that in this case because the injury that was inflicted in Washington, the faithless electors votes still counted they were just fined and then presumably those fines were paid on their behalf by a nonprofit or by a political party.  The real harm was the unique statute in Colorado that enabled the State to actually replace an elector and replace, in that case, Michael Baca’s vote.

So A, could you see a Roberts Court trying to narrowly confine it to the facts to leave the ultimate question open, and B, if I’m right on that how would you wanna navigate around that?

Prof. Lessig:   Well the facts aren’t like that.  Nobody paid the fine on behalf of the Washington electors, they’re on the hook for that.

Andrew:         Mm-hmm.

Prof. Lessig:   So there really is a question whether they can be personally monetarily fined.  There was an amazing exchange that I had when I was arguing the case in Washington where the Chief Justice of the Washington Supreme Court said “well of course they have their freedom to vote however they want, they just are fined if they vote the wrong way!”

Thomas:         [Laughs]  

Prof. Lessig:   To which the response is McCulloch v. Maryland, right? [Laughs]  

Andrew:         [Laughs]  Right.

Prof. Lessig:   The Bank of the United States had the freedom to circulate their bills in Maryland, they just were fined if they did so without paying the tax, so there’s no logical ability to hold – in my view there’s no logical ability to hold that the State has no power to control how the electors vote but the State has the power to fine them if they don’t like their vote.  That’s just what it means to have the freedom, the constitutional discretion, to vote how you want.  So we think that both cases have to be decided together.

Now one of the things that’s leading us to be more patient about whether to join a cert and grant in the 10th Circuit is whether that’s logically true or not.  You know, I think there’s some people who think that the 10th Circuit presents the more egregious intervention by the State and the Court might want to uphold the power of electors to actually cast their vote but find some way to be sanguine about penalizing the electors. 

The way you get to that position is you say well there’s nothing wrong with the State saying the only people we will nominate to be electors are those who have made a pledge to one candidate or the other, that’s Ray v. Blair, and we don’t see any problem with the pledge because it’s not about how they vote it’s about the decision to select them and that judgment is vested in the States, so the State is allowed to discriminate between those who make a pledge and those who don’t and that’s why Ray v. Blair is correct. 

Well if you can do that could you say to the elector alright, if you’re gonna be an elector you’ve gotta put $10,000 up in a bond or held and if you cast the vote in the right way you get that money back, if you don’t cast the vote in the right way we keep that money – or you gotta give us a check for $1,000 and if you cast it the right way we’ll return it, if you don’t cast it in the right way we won’t return it.

My own view is that all of those regimes interfere with the core constitutional freedom that the electoral system is supposed to preserve, but I can imagine a court going the other way, so that’s why it would be important to have both issues before the Court to allow them to say, look, one thing for sure you can’t fire somebody because you don’t like their vote.  That’s what elector means.  But you might be able to create mechanisms to create confidence in your electors.  The Washington State mechanism might not be the right one, but there might be others that create enough of an incentive to make sure your elector does what you intend them to do.

Thomas:         This is really weird to me. 

Andrew:         [Laughs]  

Thomas:         How in the world does this come down to the national election for the President comes down to whether or not can we squeeze a thousand bucks out of some elector or not?  [Laughs]  How does that work?

Prof. Lessig:   Well, you know, it’s not my burden to argue that the system is a sensible system.

Thomas:         Yeah! [Laughs]  

Andrew:         [Laughs]  

Prof. Lessig:   Indeed, you know-

Thomas:         Yeah I wasn’t putting that on you, I’m just confused.

Prof. Lessig:   Well, yeah, this is just the consequence of not doing the work to update the constitution to what we actually now believe it should be.  I think most- not most Americans, practically every single American would think that the election needs to be decided on the basis of how citizens vote. 

While I actually have an idea of what the right amendment would look like that would be something both sides could endorse, and that amendment is grounded on the idea that it’s a good idea to basically run 51 separate elections and count up from the State level to determine that national result just because it’s so difficult to imagine running a national election with 51 jurisdictions controlling the rules of that election and somehow deciding the President on the basis of that.  So I get why a State based system might make sense, but the idea that the State based system hangs on the discretion of 270 electors is just no longer anything to do with what America thinks and so we ought to change that or fix that before it actually causes real harm.

Andrew:         So, okay, you’ve piqued my interest.  What would your proposed constitutional amendment look like?

Prof. Lessig:   Well so if the core problem is as I’ve described, that you have an election where the only State that matter are the so-called swing States, the first adjustment or revision of that would be to say okay, allocate electorates proportionately.

Thomas:         Yeah.

Prof. Lessig:   That doesn’t yet get you what you need because even if you allocate the electors in Wyoming proportionally still no Democrat’s gonna spend any time in Wyoming because you’ve gotta imagine swinging 30% of the vote to get another elector and that’s just not gonna happen, so then the question is whether you should be voting as a whole or as a fractional. 

So the amendment I would say is number one, electors are votes they’re not electors.  Number two, the votes get allocated proportionally.  Number three they get allocated in a fractional way, so you could have 1.44267 votes as a Democrat in Montana because that’s the percentage of votes that you got in Montana.  But I would keep the number of votes equivalent to the number of electors that exist right now.

Thomas:         Just to throw a bone to the Republicans who want the small State, red power?

Prof. Lessig:   Yes, yeah!  Yeah, people who think that the electoral college right now is a good thing because it gives more power to Wyoming relative to California, I think the people on the other side who want national popular votes should be willing to give that because that won’t really matter much if we actually have a system where the Presidency is being decided by an election in 50 States plus the D.C. and every candidate has an incentive to pitch for votes in every single part of the country.

That would make a representative President even if there’s a slight compromise produced by this plus two created by the way the electoral college allocates electors.

Andrew:         Well that would dovetail very nicely with Thomas’ plan to solve the potential apportionment problem looming in 2021 of doubling the size of the U.S. Congress.

Thomas:         [Laughs]  

Prof. Lessig:   Yeah! [Laughs]  

Andrew:         Right.

Prof. Lessig:   No I agree, I mean one even better version from my perspective, I mean I very much support national popular vote even though I think there’s real problems to implementing, but from my perspective, a perspective that cares about one person one vote, an even better formula would be to say each State gets a certain number of votes, the number of votes they get is the number of Senators they have plus two times the number of Representatives, or three times the number of Representatives.  So each time you multiply the number of Representatives you’re getting closer and closer to a really proportional number in each State, but still so long as there are two Senators there’s a thumb on the scale in favor of small States over big States.

Andrew:         Yeah, I think that makes a lot of sense to me.  You mentioned sort of the national popular vote compact, we talked about that at the outset of the show.  To me I think there’s a lot of skepticism of, at least folks on the left feel like hey we’ve mostly played by the rules for the past 20 years and we’ve gotten rewarded with Mitch McConnell.  There was – I’m trying to remember who the authors of Constitutional Hardball are – but you know, a pretty well known law review article that sort of documents that in areas of pushing the line, going up to the line, obliterating the line, objectively speaking it is Republicans that have broken constitutional norms at a rate far larger than Democrats.

You mentioned other problems that you see implementationally, what are those that you’re thinking of?

Prof. Lessig:   Well I think that there’s a constitutional threat.  I don’t believe that this is a good argument, but I can see the structure of the argument against the national popular vote compact which would go something like this.  The framers envisioned a kind of majority of the majority system, you find the majority of electors by identifying majorities in each of these separate States and the national popular vote compact tries to hack around it by discerning the President based on either a majority or a plurality in a popular vote and that’s inconsistent with that framing presupposition and you can imagine the conservatives raising that presupposition to a constitutional rule.  I don’t think that’s supported but that’s the possible move.

But even if you survive that, I do think there are practical issues we need to worry about with national popular vote that we’ve not yet spent enough time focused on.  For example, there’s a kind of race to the bottom which is in some sense a good thing but will create anxiety.  What if California said 16 year olds can vote? 

Thomas:         Oooh!

Prof. Lessig:   Do we count the votes of 16 year olds compared to New York where it’s 18 year olds who can vote?  So one question is just the whole idea of a national election based on standards that can vary State to State.  Then the other question that people raise, and I haven’t seen this gamed out in a really robust or rigorous way but you can get the intuition is if you’ve got a national election you’ve got a thousand different places where you might raise a question about recount that could slow the process down dramatically.

Andrew:         Yeah.

Prof. Lessig:   Florida in 2000 was a nightmare, but imagine three Floridas around the country each plausibly effecting the ultimate result.  My view is that if that happens, national popular vote compact might be the shortest lived compact in the history of compacts-

Andrew:         [Laughs]  

Prof. Lessig:   Because it might work once but then people would abolish it immediately because they’re like we just can’t have such craziness.  So the advantage of the amendment that I’m talking about is it still would be State by State.  The ultimate calculation would be a determination of 51 jurisdictions and the anomalies of 51 jurisdictions, California could decide to have 16 year olds vote, that wouldn’t effect New York because California would still just be allocating their electoral votes over New York’s electoral votes that might be determined in a different way.

Andrew:         Right, right.  Okay, well let me ask the terminal question and we could maybe delve a little bit into originalism and how some of the briefs in these cases seemed to have been pitched at maybe the Supreme Court as the ultimate arbiter.  How do you think – A, do you think the Supreme Court will grant cert?  I take it that that’s probably a yes.  Then B, how do you think they’re gonna come out?

Prof. Lessig:   So yes, the Court will grant cert.  B is really, really interesting.  My view is – I got into this originally thinking I’m not sure what the answer is but there needs to be an answer so regardless let’s do this.  The more I’ve looked at it, the deeper I’ve gotten into the history and into the law I just don’t see how they write an opinion that says anything other than electors are free.  I just don’t understand how it’s done because there’s so much else in constitutional law that would be thrown up because of such an opinion.

So on the one hand I’m not sure that a world where electors can change their votes is the best possible world, so on the one hand I wouldn’t be upset if the Court found a way to say that electors have to vote according to their pledge. [Laughs]  

Andrew:         [Laughs]  

Prof. Lessig:   I would be very interested to read that opinion.  I teach constitutional law so that would be a really interesting opinion to teach because I don’t see how it fits with the jurisprudence, especially the jurisprudence of the conservatives.  If you’ve got five Justices of the Supreme Court who say they’re originalists, look the originalist argument here is as clear as any originalist argument could be! 

Andrew:         [Laughs]  

Prof. Lessig:   So if you’re an originalist you’ve got to vote that electors are free!  Then once you do that, then what?  It’s gonna be a hard case for them.  That’s why I actually think that part of our job is to also prepare what the right repair would look like.  One thing people don’t focus on enough with amendments, people assume that amendments could take forever and most of them do, but that’s only because all but one amendment has been sent out to State legislatures. 

Andrew:         Right, right.

Prof. Lessig:   But the 21st Amendment was sent out to State conventions, and basically the conventions were scheduled one on top of another so within 6 months the 21st Amendment was passed.  So you could imagine, if the Supreme Court decided in May that electors are free, you could imagine an amendment that reversed that before the next election, number one.  But I would say to people who wanna fix the electoral college don’t just reverse that.  Have an amendment that says electors have to vote their conscience number one.  Number two, starting in 2024 create the right electoral college system. 

It would be wrong to try to change the rules in June of 2020 for the 2020 election, but you could pass an Amendment in December of 2020 that said look, when the electors cast their vote they cast their vote according to their State number one, and number two starting in the next election cycle we’re gonna have proportional allocation, fractional allocation, according to electoral votes for casting the electoral college and that seems to me to be an answer which every side should be okay with and they would be motivated to adopt it if the Supreme Court said electors are free. 

Thomas:         Can I put on my tinfoil hat for one sec? 

Andrew:         [Laughs]  

Thomas:         You can feel free, you can both dismantle it if you want.  Is there a possibility that this right wing dominated Court would prefer to punt and allow it to be up in the air so that the election happens and they can see which way they would need it to go and then issue some Bush v. Gore type opinion to get the outcome they want?  Or is that too paranoid?

Prof. Lessig:   So I think that it’s possible there is a Justice on the Court who would think like that.  I’m certain the Chief Justice does not want that.  The Chief Justice has shown his cards again and again to be a kind of Justice who is deeply concerned about the institutional viability of the Supreme Court and the one thing that Court learned, kind of like Vietnam in America, the one thing that Court learned after Bush v. Gore was it paid a huge institutional price for that decision. 

Not as much as people thought, it turned out the public had confidence in the Court pretty quickly afterwards again, but they don’t wanna do that regularly, so if there’s a way to avoid doing that I think certainly the majority would wanna take it even if there would be one who would say let’s just figure out how we can hang back and make sure that Donald Trump is President again.

Andrew:         So that’s another vote for the John Roberts institutionalist thesis, or as we call it on the show the game is Shame Justice Roberts.

Prof. Lessig:   [Laughs]  

Andrew:         I mean this is a sidebar, this is my view on the Ross decision, I think minus the Hofeller evidence coming out, it clearly looks to me like that decision was written the other way.

Prof. Lessig:   Absolutely, yeah.  But you know I’m not quite sure that’s Shame Justice Roberst as much as Justice Roberts very deeply concerned that the institution will look ridiculous.  Basically the Hofeller evidence when it comes out in its full light, you know Dave Daley’s recent piece is a huge contribution to that but when it comes out in its full light it’s gonna demonstrate the games that were being played behind the scenes and they just didn’t wanna be on the hook for that.  So I think that’s evidence on the side of a guy concerned deeply with the long term position of the institution.

Andrew:         I agree with you.  We just did another deep dive into the North Carolina gerrymandering decision so maybe we’ll have you back on to talk gerrymandering.  Is there a subject  you’re not an expert in?

Prof. Lessig:   [Laughs]  Yes, many.  Just ask my kids!

Andrew:         [Laughs]  Fair enough.  Thomas anything else you wanted to ask?

Thomas:         [Sighs] I mean it is a little hard for a non-lawyer to follow all these everything but I guess I’m just confused.  If you could give a quick end of interview summary here, how in the world has this not been decided in the year of our lord 2019, this thing has been around, this clunky electoral college has been around the whole time, right?  How has this never been determined before?

Prof. Lessig:   Well it’s never really mattered before.  It mattered for the Vice Presidential election in, like, 1836 I believe?  But it’s never really happened for the President and States have only recently started enforcing these faithless electors provisions aggressively recently.  So Washington State was the first State in the history of the nation to fine electors to voting contrary to their pledge even though there’ve been 167 electors in the course of history who’ve voted contrary to their pledge.  It’s only recently become an issue.

The only time it first became an issue was during the Dixicrats time, when the Southern Democrats were not willing to follow the Democratic party as it became more interested in civil rights.  Strom Thurmond and other Dixiecrats started threatening that there would be electors who would just vote contrary to the Democratic party pledge and that’s when you begin to see pledges require, that’s when you begin to see States trying to figure out ways to coerce their electors into voting one way or the other.

So we’ve had a long history with the electoral college but the actual regulation of electors is very recent, which again for the conservatives is gonna be a very significant fact.  This is not something that’s been from time immemorial that electors have been fined when they vote contrary to their pledge, it’s never happened before, so the presumption in favor of tradition is gonna be on our side not the States. 

Thomas:         I see.  So it’s never been the case that – yes there have been faithless electors in history but it’s not really mattered and it hasn’t really been except for that one Vice Presidential election, it hasn’t been like this one [Laughs]  elector decided the whole thing by going against the will of the State and so therefore that would’ve ensured a showdown in the courts?  So that’s just never happened?

Prof. Lessig:   Exactly, and the other thing that’s really important here is historically electoral college results have been quite lopsided even when elections are close.

Thomas:         Hmm.

Prof. Lessig:   But because of the changing demographics that’s what’s not gonna be in our future.  You’re gonna see a regular pattern of close electoral college votes.  Not necessarily like 2000 where two votes determined the difference between winner and loser, but still within the range of handful of votes and that’s, again, why we think it’s really important to resolve this before it actually causes a crisis.

Thomas:         Well unless we can swing Texas finally to go blue as it’s been threatening to go, then it pretty much would solve a lot of problems wouldn’t it?  We wouldn’t even have to argue about this.

Prof. Lessig:   Depends on your perspective. [Laughs]  

Thomas:         Yeah! [Laughs]  True!  Alright, fair enough.

Andrew:         Alright, well Professor Lessig thank you very much for joining us on the show and for breaking down the electoral college, the Baca decision, the Guerra decision, next steps, three separate rabbit trails, it’s always a pleasure to have you on.

Prof. Lessig:   Thank you so much for having me back.

Thomas:         Alright and now it’s time for our Top Patrons, it’s Top Patron Tuesday, we think our Hall of Famers, our all time greats!

[Patron Shout Outs]

Andrew:         Thank you all so much!  And again, remember you’re sitting on a little extra holiday cash?, five bucks an episode we will read out any crazy thing you want us to read out, you know, within reason and the character limits and we’ll do that every single week, get in on all this fun!

Thomas:         Alright now it’s time for me to get in on the fun of getting this question wrong!  It’s T3BE!

T3BE – Answer

[Segment Intro]

Thomas:         [Sighs] I can’t wait to hear the explanation for this one.

Andrew:         Yup!  Really straightforward explanation.  So complicated fact patter, this was executive gets fired, goes back to the premises intending to get her personal stuff, gets there, breaks in, goes to her office, takes a whole bunch of stuff including stuff that she knows isn’t hers because of the whole light being off thing, gets home finds that – and by the way this is all totally irrelevant.  Gets home, finds that-

Thomas:         Okay.

Andrew:         -she’s taken a record book and financial papers and burns ‘em in the fireplace.  That’s a total unattractive distractor.  The question is what crimes has she committed?  You went with burglary and larceny, which is wrong I will tell you, and you kind of went under the theory that you started to express of well, you know, she’s done a whole bunch of stuff-

Thomas:         [Laughs]  

Andrew:         -so I’m just gonna pick the broadest possible answer.  That’s probably a bad guessing advice-

Thomas:         Yeah.

Andrew:         -for the bar.

Thomas:         I wasn’t proud of this one.

Andrew:         Yeah, the correct answer is where you went immediately after picking your answer!  You were like, oh, I forgot about the whole breaking and entering thing, could be C, larceny but not burglary.  That is in fact the case.

Thomas:         Hmm.

Andrew:         It is larceny but not burglary.

Thomas:         Yeah.

Andrew:         And the reason for that is because the crime of burglary requires unauthorized breaking and entry, which you have.

Thomas:         Yup.

Andrew:         Into a building or occupied structure, and the test specifies that burglary includes all buildings, which you have; with the intent to commit a crime while you’re inside, which you do not have.

Thomas:         Huh, yeah.

Andrew:         Because her intent was to get her stuff back.  You do, however, have larceny because larceny is the wrongful carrying or taking away of the personal goods of another with the intent to convert them for your own use.  Here you have that because the intent transfers once you decide that you’re going to burn the documents instead of return them, so I’m overruling the test here, because the test says – I just think this is not correct. 

The test says “she did however commit larceny under the theory of continuing trespass” which I don’t think is the right reason for it being larceny.  I think the reason that it’s larceny is because she’s got stuff that she knows that belongs to somebody else and decides not to return them so under the theory of transferred intent that would then complete the act of larceny.  So I think the test is wrong and I’m right-

Thomas:         [Laughs]  

Andrew:         -which also gives sense to the reason for the additional stuff with the burning the book in the fireplace, which otherwise the test doesn’t need.

Thomas:         But also we didn’t even talk about the sentence that made no difference, the jurisdiction has expanded the crime of burglary to include all buildings.  Is that just trying to throw you?

Andrew:         Oh no no no, because at common law you had to break into an occupied structure.

Thomas:         Oh, wow!

Andrew:         Yeah.

Thomas:         Huh.

Andrew:         So, yeah, abandoned building, warehouse that’s vacant, no burglary into that so most jurisdictions have by statute expanded burglary to be breaking and entering into a locked building whether there’s someone in there or not.

Thomas:         Huh, yeah, you would think, otherwise again the Hamburglar is the Hamlarcen.

Andrew:         [Laughs]  

Thomas:         Or whatever.

Andrew:         So there you go.

Thomas:         Okay, yeah I should’ve gone-

Andrew:         Sorry!

Thomas:         I should’ve tried harder, I’ll be honest.  It was just too much Christmas eggnog, I dunno, I knew it wasn’t A and I shouldn’t have said that, I just was thinking, you know-

Andrew:         It’s okay.

Thomas:         I couldn’t quite decide, so I choked.  You know, it’s high pressure-

Andrew:         We still love you!

Thomas:         -test taking scenario. 

Andrew:         That’s what they try and do to you, man.

Thomas:         Well I blew it.  Let’s hop in the time machine, find out who this week’s big winner is.

[Segment Intro]

Andrew:         Alright Thomas, this week’s winner is Alex on Twitter, that is @lengau, who writes “Pretty sure she committed larceny (that’s stealing, right?) but I think burglary requires intent to commit a crime.  I don’t think she intended to commit a crime when she entered (she just wanted to get her stuff), so I’m going to go with C.”

Well Alex, that is exactly right for exactly the right reason so congratulations on being this week’s winner!  Everyone give Alex a follow, that is @lengau on Twitter and congratulations, enjoy your never ending fame and fortune!

[Segment Outro]

Thomas:         Thank you so much for listening everybody, thanks most of all to our patrons and we will see you back on track all done with the holidays for a Rapid Response Friday.

[Show Outro]

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