Transcript of OA467: Demolishing the Electoral College, with Lawrence Lessig

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[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 467.  I’m Thomas, that’s Andrew, how’re you doing Andrew?

Andrew:         I am fantastic, Thomas, how are you?

Thomas:         I’m really good.  I’m comin’ off, you know-

Andrew:         [Laughs]

Thomas:         -an amazing episode that we did last Friday.  That was super cool, and we’ve got a really cool interview today.  We’re gonna be talking to Lawrence Lessig about, you know, getting rid of the electoral college, which is something that I’m pretty sure a very high percentage of our listeners would like to get rid of.  Probably in the 99s, percentage wise.

Andrew:         [Laughs] We may have some nostalgia fans.

Thomas:         Yeah.

Andrew:         We’ve got the hate listeners, we’ve got Uncle Frank, we’ve got that one guy that wanted to keep coming on promoting James Lindsey’s book.

Thomas:         [Laughs]

Andrew:         But [Laughing] other than that!  [Laughs]

Thomas:         Yeah.  Plus, there have been some people who are genuinely misinformed about this stuff.  They have an instinct for institutions, they have, you know, they don’t want to get rid of – they might have a certain fondness in their hearts for like, well, we shouldn’t get rid of these certain institutions that have been around, blah blah blah.  But when you look at the facts, this is not something that was intended by the Founders, even.  This is not something that is some age-old beloved thing with a time-honored tradition that makes sense, it’s a mess.

Andrew:         Yeah.  What I love about Professor Lessig is, I mean, he is out there actually litigating these issues, doing something about it.

Thomas:         Yeah.

Andrew:         Not just saying “hey – not just us.

Thomas:         Yeah, that’s what I’m doing!  [Laughs]

Andrew:         Hey it’d be really cool!  Yeah, me too!  To have a constitutional convention, but thinking okay, if we’re stuck with this system what are the things we can do to kneecap it?  I love – I can’t wait until we get a chance to talk to him.

Thomas:         Well, you’re in luck because we’re gonna hop on over right now-

Andrew:         Woo!

Thomas:         -and talk to Professor Lawrence Lessig.

Interview with Professor Lessig on Electoral College

[3:13.0] [Segment Intro]

Thomas:         We’re now joined by Professor Lessig, how’re you doing today?

Prof. Lessig:   I’m great.  I’m really good, thanks for having me.

Thomas:         Thanks for coming on, it’s so fun to have you on the show and I always know we’re gonna get some brilliant deep dive that I’m gonna do my best to follow along with when [Laughs] we get you two going.

Andrew:         [Laughs]

Thomas:         I also know we all here hate the electoral college, and probably every listener hates the electoral college, but I’m told that there’s something you’re doing to actually maybe do something about this?

Prof. Lessig:   Well, we’ve been doing stuff for a long time, since the last election.  I kind of think about it as poking the beast to try to-

Andrew:         [Laughs]

Prof. Lessig:   Push along people’s thinking and get them to the end of reform.  You might remember I had a case in the Supreme Court last year that asked the question whether electors really were free to do whatever the hell they want?

Thomas:         Right, right right.

Prof. Lessig:   Because that seemed to be what the framers of the Constitution thought, and luckily the Supreme Court said we lose.  [Laughs]

Andrew:         [Laughs]

Prof. Lessig:   And said no, electors have to do what the democracy says.  That was an important issue to prod and to resolve, because obviously in this last election if there was a question about what electors could do, who knows what trouble could have been caused, so that was a good one to nail down.

Andrew:         Yeah, and we talked briefly about the Baca case sort of while it was pending, and, you know, the position you articulated – I just want to make this very, very clear, we laughed at the joke of you saying fortunately we lost, but your position, black and white, clear as day, was let’s just make sure we know what the rules are-

Thomas:         Hmm.

Prof. Lessig:   Yeah.

Andrew:         -before the election takes place, because when they’re up in the air, you know, nobody thinks – the number of people who think you can adjudicate that fairly are the number of people that think Bush v. Gore is a valid decision.

Thomas:         [Laughs]

Prof. Lessig:   Yeah, that’s right.  Right, and it actually – I think we lost in the best possible way because Elena Kagan, and she’s a brilliant justice, articulated a reason why we lost that also showed why all of this effort by State legislatures to ignore what the voters in their States had done would also have failed.  What she said was look, whatever the framers thought, whatever the original understanding was, we now understand in America that here, (quote, unquote) “democracy rules.”  If electors, who are clearly intended to have discretion, no longer have any discretion, than State legislatures cannot ignore the vote of their people either.  In some sense I think it buttressed where we were in this last election so that these State legislatures wouldn’t feel that what they could do is just ignore the public’s vote and vote for Donald Trump even though their citizens had voted for Joe Biden.

Andrew:         I love that you’ve picked up on that because it’s a question I wanted to address in the context of your most recent case for which you have filed for a Petition for Certiorari to the U.S. Supreme Court, that is Rodriguez v. Newsom.  We’ll do a little bit on the fact pattern in that case, but I want to take us off the rails in advance because I hear you to be saying that what we have called on the air the, you know, the “takesies backsies” provision of Bush v. Gore, there’s dicta in the-

Prof. Lessig:   Right.

Andrew:         -per curia opinion that says “you know, State legislatures used to appoint electors directly, and they could do so again if they so chose.”  Obviously that language got ridiculously taken out of context by – I don’t think anybody who quoted it quoted it honestly.  It was sycophants and liars who used that phrasing, which, you know, if you’re reading it as a lawyer you would say right, that means if the State legislature before an election decided to change the law to say we’re no longer going to award electoral votes to the winner of this election, we’re just gonna appoint them as follows, that that would be permissible, but not that they could do it after the fact.

Prof. Lessig:   That’s precisely right.  It could be even more interesting than that.  That language was really badly crafted-

Andrew:         [Laughs]

Prof. Lessig:   -because it said the legislature could do it at (quote) “any time.”

Andrew:         Yeah.

Prof. Lessig:   Which is what people were pointing to when they said okay, fine, any time means any time, and that means after an election as well.  What that runs against is that the Constitution also gives Congress the power to say when the electors are appointed.

Andrew:         Mm-hmm.

Prof. Lessig:   And Congress said that, that’s election day.  There’s no way that States could have the power to appoint another slate of electors after election day, because that’s not when Congress said that they could appoint them.  I think that’s why that argument just ultimately failed, but that argument could be interesting in a State like Colorado.  Colorado has a Constitutional provision that says that the voters will pick the electors.  It might be that the Supreme Court would read the elector clause to say that actually the State Constitution can’t constrain the State legislature, that the State legislature could, before an election – again, you’re exactly right – say, well to hell with the Constitution, we’re gonna pick our electors directly.  That is probably consistent with what the Court has said in other contexts when interpreting language like this.

Andrew:         Mm-hmm.

Prof. Lessig:   But they certainly had no power to ignore the democratic will of the people in this election and pick another slate contrary to what the people had said.

Andrew:         Okay.  Now I want to see how that interacts with the Rodriguez case.  Let me see if I can set this up, correct me if I get anything wrong.  You have, as described earlier, there are – I know of cases that you have brought in four States, two red and two blue which I’m sure is a coincidence.  Massachusetts, California, South Carolina, and Texas.  The South Carolina decision I thought was particularly interesting, might drill down on that, but essentially the argument is an equal protection challenge to those four States awarding electors, winner take all, to the popular vote winner of the State.  In other words, Republicans win South Carolina 56/44 but 100% of those electors go to Republican voters so the Democratic votes are essentially counted up only to be thrown out.  Now the California decision, you have petitioned for Certiorari to the Supreme Court, I think the opposition is due mid-March, is that right?

Prof. Lessig:   Yes, that’s right.

Andrew:         Okay.  Number one, have I done it justice in terms of what you’re doing?

Prof. Lessig:   Exactly right.

Andrew:         Excellent.

Prof. Lessig:   But let’s be clear about the real reason, here.  Everybody who thinks about the electoral college typically focuses on the few times, six times, the electoral college has flipped the winner of the popular vote to become the loser in the election.

Andrew:         There’s a recency bias on that.  [Laughs]

Prof. Lessig:   Yeah, yeah.  2000, 2016.  We came very close in 2020 despite the fact that Joe Biden won by 7 million votes.  That’s a real problem to the way the electoral college works, but my view, and the view of others, Sam Issacharoff was the one who convinced me of this view.  My view is that the real problem with the electoral college is not the problem that happens once every nine elections, it’s the problem that happens in every election. 

In every election, because of winner take all, nobody cares about any State except the swing states, the 35% of the country that happens to live in a State which could go one way or the other.  If you’re a Republican you’re not gonna spend one dime in California, because you know there’s no chance you’re gonna win in California.  If you’re a Republican you’re not gonna spend one dime in Kentucky because you know you’re gonna win Kentucky.  The point is these non-swing States have no reason for Republicans or Democrats to compete in because it would just be a waste of campaign funds.

What we know, and research has supported this, is that means presidential candidates bend over backwards in spending and in regulatory policies to benefit these swing States against the interest of the other States.  Now, if the swing States were in some sense perfectly representative of the nation as a whole-

Andrew:         [Laughs]

Thomas:         [Laughs]

Prof. Lessig:   -you might say okay, so what?  This is a small sample and the rest of the country doesn’t have to see the stupid television commercials for presidential campaigns.  But they’re not representative of the nation as a whole.  The swing States are older, they’re whiter, their industry is kind of backwards industry.  In 2020 we saw this obsession about whether Joe Biden would end fracking, and you know, most sane people would say why are we obsessed with fracking?  And why not end fracking?  Well, the reason is fracking is extremely important to Pennsylvania, and there was no way you were gonna win without winning Pennsylvania.  Policy gets set on the basis of what’s good for Pennsylvania, but when you think about solar energy, which both Texas and California love, and I think what we’ll see after this tirade against-

Thomas:         Yeah.

Prof. Lessig:   -renewable energy in the Republicans by the Republicans in Texas.  But, you know, they’ve been the two leaders with solar energy.  Solar energy doesn’t get any playtime in a presidential election because those are not swing States. 

This is the problem: Swing State Democracy.  The only way to end swing State democracy is to end the practice in the States of allocating electoral votes in a “winner take all” fashion.  That’s not in the Constitution, there’s nothing that requires them to do it, they just adopted this strategy initially as a way to amplify the power of their own States, but when everybody did it then everybody was equally amplified or basically nobody was amplified.  We kind of got stuck in this suboptimal equilibrium and the question is how we can force our way out of it.  We thought the Equal Protection Clause was a perfect vehicle for doing this.

Actually, David Boies has been the one leading the charge.  Boies Schiller has been litigating in each of these four States, and when I talked to David Boies about this case and tried to bring him on as the counsel, I said to him, you know, the principle that shows why we win is a principle announced in Bush v. Gore.  [Laughs] The Equal Protection Clause comes to life in the presidential election in Bush v. Gore, and I said wouldn’t you love to stand before the Supreme Court and tell them you have to win-

Andrew:         [Laughs]

Prof. Lessig:   -because of what they said in Bush v. Gore!

Thomas:         [Laughs]

Andrew:         Because of his most high-profile loss? 

Prof. Lessig:   [Laughing] That’s right!  He said I have to do it, this is great!

Andrew:         [Laughs]

Prof. Lessig:   That was what got us going and it’s been an interesting battle, we can talk about the details of what’s happened, but that’s what’s teed up to the Supreme Court. 

Andrew:         I want you to sketch out that argument, but before we go, I notice, and somebody had asked you the question of compare this to the National Popular Vote Interstate Compact, and I think your answer was sort of well, you fight the war on multiple fronts.  I want to share my anxiety over the National Popular Vote Interstate Compact.  If you can talk me out of it, I would love for you to do that.

Thomas:         [Laughs]

Andrew:         But it goes something like this.  The Constitution requires that interstate compacts be approved by Congress.  That has been read out in some jurisprudence, but it seems pretty clear to me that the Tennessee v. Virginia case reads back in a requirement that it be approved by Congress if it would alter the balance of power between the States, and it seems to me very, very clear that the NPV would alter the balance of power of States. 

What I’m worried about with a heavily politicized judiciary is that it winds up being a sucker’s bed.  We’ll put the courts back in a position to do another Bush v. Gore and if the NPV results in awarding the presidency to a Republican who wins the popular vote, but would otherwise have lost in the electoral college then, you know, they will affirm it, but that if it’s the other way around we’ll have an ambiguity.  On election night we’ll have lawsuits filed and we have the potential of a Supreme Court saying oh no, that decision, if Tennessee, for example, were to sign on to NPV they’ll say no no no, Tennessee can’t sell out its electoral votes to an interstate compact that hasn’t been ratified by Congress.  Am I wrong and crazy on that, or what?

Prof. Lessig:   Well, no one’s crazy when talking about what the Supreme Court could do.  I don’t actually-

Andrew:         I’m nervous now with that introduction, though.

Prof. Lessig:   [Laughs]

[17:11.7] [Commercial]


Prof. Lessig:   I guess I would say that based on existing law, the NPV is fine.  The Compact Clause has been interpreted basically to say that when your – it’s not – I don’t understand the jurisprudence to be saying when you’re altering the balance of power, it’s when you’re increasing the power of the States vis a vie the federal government you need the authorization of Congress, but the point is the States already have all the power for allocating electors, so there’s no increase in power to the States, and that’s what at least most people I think that think there’s no obligation for ratification.  I’m sure that if, you know, we get close to 270 there will be a move to ratify it in Congress too, and I think they should.  I think there should be no T not crossed or I not dotted in something as important as this, and I think that Congress would be able to do it because I think they would be a majority.  It’s only gonna take a majority to bring that, assuming it doesn’t get stuck in filibuster.  [Laughs]

Thomas:         Do we have any chance of doing that within these two years?  Are we close at all, or not close enough?  Because I don’t know how long we’re gonna have a majority in Congress.

Prof. Lessig:   Yeah.  You know, if you talk to the NPV people, and I’m a supporter of NPV but I’m not in the organization of that fight, they think there’s a chance to get to 270 in the next couple years, and they’re moving as hard as they can to get there.  I think that – and again, I want it to happen because that would solve the swing state democracy problem immediately, that would give perfect one person, one vote.  It would be, I think, an extremely important transformation.  The thing I think you should worry about, though, with NPV, is both that the Court gets creative to strike it down.  Again, I think based on the law as it is the States are allowed to do whatever the hell they want in allocating electors.  They could decide to allocate based on what the Queen of England thinks-

Thomas:         [Laughs]

Prof. Lessig:   From the standpoint of jurisprudence, so I don’t see why they can’t decide based on what they think is gonna happen in the rest of the nation.  Hell, that’s what Virginia did in the original allocations they made.  They shifted their rules to try to take account of what was happening in the rest of the nation, to maximize the chances of their people or their party winning.  I think this is not new, the question is whether the Court would create something new.  I think the really scary thing about NPV is buyer’s remorse.

Andrew:         [Laughs]

Prof. Lessig:   I mean, what happens if a Republican wins the popular vote and California gives him all of their electoral votes and that’s what makes it so he becomes President, and he wouldn’t have become President if they’d done it the old way.  I mean, how long will NPV survive in that scenario?

Thomas:         I feel like that’s a bet I’m willing to take, personally.  [Laughs]

Andrew:         [Laughs]

Prof. Lessig:   Me too.

Thomas:         You know, because it does – in the end the problem becomes well what if Republicans win more votes than Democrats, and I would say well then that’s – they should be President if they win more votes than Democrats.  I will take that bet over the current system.

Prof. Lessig:   No no, I would too, but I’m saying that I think if that happens there’s a substantial chance that California would then say-

Thomas:         Oh, they’d back out of it?

Prof. Lessig:   They’d back out.

Thomas:         Oh, wow.

Prof. Lessig:   The question is not whether it gets the right answer, the question is whether it’s stable. 

Thomas:         Sure.

Prof. Lessig:   My view is we ought to be doing this immediately, this is the short-term solution, and we oughta be thinking about the longer-term solutions too.  What our case is trying to trigger or tee up is a motivation for the longer-term solution, because when you think about national popular vote, that’s immediately a partisan question in most people’s mind.

Thomas:         Hmm.

Prof. Lessig:   Even though, you know, I know many Republicans who would be as principled as you just were, to say the person who wins should be the person who gets the most votes, I don’t care whether it’s a Democrat or a Republican even though I’m a Republican.  I know lots of people like that.  I think most people think the reason the Republican party resists national popular vote is they don’t think they’d win, so it’s a partisan, it’s framed in a partisan way.  Again, unfairly, because some of the biggest leaders of the national popular vote movement are, you know, as red as red can be Republicans from Republican States, so this is an unfair framing, but that’s nonetheless the framing.

Andrew:         Well, I mean, Thomas Hofeller’s documents suggest it’s not entirely unfair.

Thomas:         Yeah.

Andrew:         There’s a-

Prof. Lessig:   No, you’re right.  It’s not entirely unfair, but I think there are Republicans who feel like, what am I, a potted plant?  Who are supporting this who are like-

Thomas:         [Laughs]  

Prof. Lessig:   I too believe that we oughta have a democracy where the party is trying to win the most votes, and that’s what National Popular Vote would do.  Okay, but my point is what we’re trying to get people to think about with this attack on winner take all is that there’s actually an alteration to the electoral college that the vast majority of Republicans and Democrats should support, because if there are ten swing States that means there’s 41 non-swing jurisdictions. 

What those 41 non-swing jurisdictions need to recognize is that they’re getting screwed by this system.  They don’t have as much power in our political process with respect to the President because they’re not a swing state.  The President doesn’t bend over backwards to make them happy, we don’t see supplements in their spending, we don’t see regulations that bend to them, because they’re not swing states.  So, they should say look, this is a system that is helping swing States and hurting non-swing States.  We are non-swing States, whether we are Republican or Democrat, we’re non-swing States, we oughta have a system where there isn’t this bias in favor of the swing States.

There are two ways to achieve that.  One is National Popular Vote, the other is allocate electors in a proportional way and I think at a fractional level.  If you allocate them in a fractional level and a proportional way at a fractional level, every State is equal in the sense that every State gives presidential candidates a reason to want to campaign in them and make them happy, because every new vote is another step towards 270 in the electoral college.  You know, we think that if people begin to recognize this about the way we allocate electoral votes, there’s a chance that there’s a cross-partisan recognition of this modification, this improvement, that I think gets us 95% of the way to National Popular Vote, so it would be an enormously important improvement.

Andrew:         Well, you know Thomas likes to say that there are more Trump supporters, more Trump voters in California than there are, you know, in any other State, which is true.  I guess my question – first, let me ask it as a math question, because I presume that you’ve done the math.  Does proportional allocation of electoral votes – and I’ll spin that out, I think our listeners got it, but basically it is Democrats win 60/40 in California, Democrats get 60% of 55 electoral votes, Republicans get 40% of 55 electoral votes.  Is the practical effect of that – I think you’ve said that’s 95% of the way to winner take all for national popular vote.  What are the scenarios in which that diverges?  In which that might accidentally magnify a crazy result?  Or are there any?

Prof. Lessig:   The 5% that I’m talking about, the imperfection, proportional allocation at a fractional level, is that it still puts a thumb on the scale of smaller States.

Thomas:         Hmm.

Prof. Lessig:   Because we are talking about allocating-

Andrew:         Because of the Senate.

Prof. Lessig:   Yeah, right.  Wyoming gets 3 electoral votes, which is crazy compared to California, which only gets 55 since there are, I think 270,000 votes or people in Wyoming and 33 million in California.  Wyoming, per capita, has almost four times the electoral votes that California does.  That’s a bias in favor of small States created by the additional 2 from the Senate.  That bias is a violation of a one-person, one-vote principle kind of built into the constitutional design.  But the reason I’m not as troubled by that bias is if you look at the smallest States they’re evenly divided between red States and blue States, so the bottom ten are five red, five blue.  Though there’s a bias in favor of small States, it’s not a bias that is a partisan bias, so it seems to me a kind of compromise that could be accepted, but still a compromise relative to what I personally think is the best solution, which is one-person, one-vote, which is national popular vote.

Andrew:         Yeah.

Prof. Lessig:   You know, I’m not talking about what I would craft if I were crafting a Constitution, I’m talking about what is a reasonable alternative that actually gets us extremely close to what a national popular vote would give us, but that is plausible given the political divisions that exist in the United States right now. 

Now if the Supreme Court says equal protection requires that you not throw away the votes of the loser in the State because it’s an interim stage in a multi-stage election, and you can’t just throw away the votes halfway through, which is what winner take all does, it’s not clear what their remedy would be, but I think that would be an enormous push towards an alternative, and the alternative could be exactly what we’re talking about, fractional proportional allocation.  That might be enough for people because, again, there’s no partisan advantage to the small States having extra power inside the electoral college.

Andrew:         Let’s spell that out, because I think there are two components here.  The first is the equal protection argument, then the second is the remedy, if any, the Supreme Court has the power to craft.  I think it would be helpful to lay out each of those things.  Why don’t you go ahead and start with the argument that you’re making?

Prof. Lessig:   Yeah.  The best case to see the problem is actually a case that is early in the one-person, one-vote jurisprudence, Gray v. Sanders, the early 1960s.  In Gray the Court was reviewing basically a State version of the electoral college.  They had a system for determining Statewide offices and basically each County had a certain number of delegates and the winner of the County got all of the delegates.  The question is whether that violated Equal Protection. 

The Court said two things; the Court said first, because the counties are of different sized, populations, but they get the same number of delegates, that violates one-person, one-vote because if you’re in a large county you’re getting fewer delegates per voter than if you’re in a small county.  But the Court went on to say, even if the counties were equal, even if there was no difference in population per county, so there’s no problem caused by different weights of votes, it would still violate the Equal Protection Clause because you are counting the votes in order to throw them away. 

The point is it’s a multi-stage election, in the middle stage you’re counting up the votes in this middle stage, and then you’re throwing away the votes of those who don’t happen to win in the particular jurisdiction you’re counting the votes.  In the electoral college at the federal level what happens is we count up the votes in each State and if you don’t win California, we throw away all of your votes and we give all of the votes to the other side.  That’s exactly what Gray v. Sanders was addressing, and Gray v. Sanders said in their final footnote of the case, that too would violate equal protection.

Our view is Gray v. Sanders addressed structurally identical system to the electoral college, declared it unconstitutional, and so therefore declared the winner take all dynamic unconstitutional, and so therefore the winner-take-all dynamic for the electoral college is also unconstitutional. 

What stopped that conclusion from ever being reached is that late in the 1960s, 1968, there’s a case, Williams, that is decided by a three-judge panel in Virginia where this argument is raised but the Gray v. Sanders part of the argument was not raised.  This is all prior to the vote dilution cases of Register, and all of the modern Equal Protection jurisprudence around votes, but in this three-judge panel the Court concluded it didn’t violate Equal Protection, that winner take all didn’t violate Equal Protection, and the Supreme Court summarily affirmed it.  What that summary affirmance has done is basically stop anybody from asking this question for the last 50 years.

What we’re saying is the law has changed substantially since 1968; the argument was not even presented in 1968; and at a very minimum, the Supreme Court should address the argument head on.  Does the Equal Protection Clause allow the States to allocate their electoral votes in a way that effectively throws away the votes of even a slight minority?  You know, if you look at my favorite case, it’s 1992 Nevada when Bill Clinton got 37.36% of the vote and won all of the electoral votes in Nevada.

Andrew:         [Laughs]  

Prof. Lessig:   That means that the majority of people voted against Bill Clinton, but Bill Clinton got all of the electoral votes because of winner take all.

Andrew:         Right.

Prof. Lessig:   Our point is the Supreme Court has already said a system like that violates Equal Protection.

Thomas:         How did he get all those?

Andrew:         That was Perot.

Prof. Lessig:   Yes.

Thomas:         Oh, yeah yeah yeah yeah.

Andrew:         I think was at like 30% Nevada?

Thomas:         Gotcha, yeah.

Prof. Lessig:   Yup, yup.

Andrew:         Yeah, we definitely get those counterintuitive results.  I want to footnote a little bit, the Williams decision, a summary affirmance means that the Supreme Court upheld the lower court’s ruling, but without issuing a written opinion.

Prof. Lessig:   Without even arguments, yeah.

Andrew:         Right.  It is- Oh no, go ahead, I was just clarifying for the listeners.

Prof. Lessig:   Yeah, the reason why you have summary affirmances happen is that sometimes in the older jurisprudence there are cases that were appealed as to Certiorari taken.

Andrew:         Mm-hmm.

Prof. Lessig:   This was a case which was technically appealed, and so therefore the Court was supposed to decide it, but the Court didn’t decide it in the sense of hearing arguments and making a decision, the Court just summarily affirmed it.

Andrew:         Yeah, and there’s a fairly consistent body of case law that says … [Sighs] essentially, there’s not a hard and fast rule that says summary affirmances don’t count for purposes of stare decisis.

Prof. Lessig:   Yes.

Andrew:         But basically, that you would incline less weight in that direction.  That is, as far as I can tell, the only case at the Supreme Court is sort of this dubious question.

Prof. Lessig:   Exactly right.

Andrew:         Yeah.

Prof. Lessig:   Yeah, summary affirmance jurisprudence explicitly says where there’s been substantial change in the law that would throw into doubt the foundation of the summary affirmance, then it should have very little precedential effect.  But in basically the four cases that we brought it was a really overwhelming influence in each of these cases that lead the Courts of Appeals to basically not do the brave thing and to punt on it.

Andrew:         [Laughs]  

Prof. Lessig:   That was the basis of their decisions.

Andrew:         Well, you know, Courts of Appeal do not, I would say a supermajority of the time they’re not looking to blaze new trails.

[35:28.6] [Commercial]


Andrew:         I thought you did really well in the Baten v. McMaster case.  That was the South Carolina decision before the 4th Circuit.  I have argued before the 4th Circuit on a number of occasions and I know Judge Wynn pretty well.  He’s from Maryland.  That was a 2-1 decision, held that you had standing.  It didn’t take the easy way out.  Ruled on the merits of the Equal Protection argument, ruled against you, but the dissent I think kind of laid out a roadmap that said we’re not certain how much we should be relying on a summary affirmance as precedent.

I want to ask two kind of questions about it.  The first is it does seem to be a roadmap.  On the other hand, Judge Niemeyer, probably the most conservative judge on the 4th Circuit.  If you’ve lost the conservatives and get the liberal judge, is that a roadmap to a 6-3 defeat at the Supreme Court?

Prof. Lessig:   Well, I’m not as convinced of the simply partisan view of the Supreme Court as most people are.  I embrace my naivety about the Supreme Court.

Andrew:         [Laughs]  

Thomas:         [Laughs]  

Prof. Lessig:   You know, and so many people ask why do we bring up-

Andrew:         Have you seen Sheldon Whitehouse’s amicus brief in the New York Pistol & Ri– 

Prof. Lessig:   Yes. [Laughs]  

Andrew:         Okay.

Prof. Lessig:   That was really helpful.  [Laughs] That’s exactly my point, it completely backfires.  Why would you do something like that?  But anyway, I admit that most people take a different view, but you know, one of the reasons people ask why didn’t we bring the Baten case up as opposed to the Rodriguez case.  Baten is a case where it was Democrats who were challenging the allocation against them, they’re the ones whose votes were thrown out.  But Baten also raised a Voting Rights Act claim, and in Rodriguez, which was California where the plaintiffs are Republicans, there is no Voting Rights Act claim, and so to the extent people wanted us to be careful and avoid a political court, it seems keen, it seems clear this Court is keen to do as much damage to the Voting Rights Act as they can. 

We wanted to take up a case that didn’t leave open the question of the Voting Rights Act issue, which, though, is also one we should win.  Many people are convinced we couldn’t win.  But that raised it in a way that helps the Republican justices realize this is not just a problem for Democrats.  I mean, if I were a Republican, and I used to be a Republican when I was a kid, I grew up but-

Andrew:         [Laughs]  

Prof. Lessig:   [Laughing] I was a Republican as a kid.

Thomas:         Sir, you and me both!

Prof. Lessig:   I would say I would love to have a Republican party where California Republicans and New York Republicans, and even Utah Republicans were more important than they are right now.  That kind of Republican party, I think, would be a much more interesting competitor to the Democratic party than the one that we see right now, which is so obsessively focused on these non-swing States.  You know, we’re teeing it up to say this doesn’t hurt Democrats, it hurts Democrats and Republicans, there’s no reasons for these millions of Republicans never to matter in California!  To the extent we succeed in getting them to see it, at least the motivation for it, then to begin to think about whether Equal Protection Clause should speak here if it spoke in Bush v. Gore and has spoken in all the other cases where it’s clearly mattered.

Andrew:         Let’s jump – I think it would be a tremendous victory from a jurisprudential standpoint if we had this scenario – and this is basically like the LULAC v. Perry scenario, where we thought partisan gerrymandering was pre-Rucho, and pre the realignment of the case, and I would love to have you on for like an hour debate on Rucho, but [Laughs]  we’ll table that, but I think it’s fair to say prior to Rucho there was a sense of there might be – there were all of these fractured opinions and there was a sense that partisan gerrymandering might be justiciable but there’s no practical remedy that the Court has yet seen because all of the cases that came before it had sort of complex allocations of mathematical analyses of the breakdown of the districts.  I think the hope in those 2018, 2019 cases was that presenting the surplus vote methodology would solve the implementation, and then obviously the political balance of the Court shifted and we just got “sorry, partisan gerrymandering, not justiciable.” 

I want to ask the reverse question, which is the Supreme Court takes the case and then says “yup, we think there might be an Equal Protection question here, but we’re not sure that we have the power to craft a remedy.”  Why would proportionality be the constitutionally mandated remedy?  I guess, is the way to phrase that question.

Prof. Lessig:   The first point that’s really important to keep clear is I think what motivated at least the Chief Justice in Rucho and in the earlier cases he articulated this even more explicitly in the oral arguments, it was the complexity in the remedy.

Andrew:         Yeah.

Prof. Lessig:   His constant standard was with the (quote) “ordinary intelligent man,” (end quote) look at the standard and the formula and think this was anything other than just politics hiding under statistics?  Whatever the standard is, it’s a complicated empirical standard, and I don’t doubt the integrity of the statisticians who are applying it, it’s just, I think what the Chief thought is that nobody would read it as integrity, they would read it as politics and that would put the Court in a constantly weakened position. 

Okay, the big difference between Rucho and this case is that the remedy in this case is simple.  There’s nobody who doesn’t understand proportionality.  The Court has said the Constitution doesn’t matter proportionality in general, and I agree, it doesn’t in the context of representatives that’s true, but if you conclude that the method of allocating electors violates the Equal Protection Clause, then you need to say what is the remedy, what’s the way of allocating electors that doesn’t violate the Equal Protection Clause? 

You know, we’re talking about in a context where the State has decided to allow the voters to vote.  The Court could say if they don’t allow the voters to vote, if they just allocate their electors directly, there’s no Equal Protection problem, that’s their power under the Electors Clause.  But if they allocate a right to vote to the people then what Bush v. Gore, and not just Bush v. Gore, Williams v. Rhodes, Moore v. Ogilvie, what all of these cases say is that once you decide that, Equal Protection regulates the method by which you allocate electors.  If it’s gonna guide it, and it’s gonna guide it in a proportional way, then the question is what way could the State adopt that would be consistent with that? 

One thing the State could do is it could say okay, we’ll allocate proportionally, and this is a hard question, but I think they should be allowed to say we’ll allocate it proportionally at a fractional level, even.  Another thing they could say, and this is what many people fear, is they say well no, we’ll just allocate it by district. 

Andrew:         Mm-hmm.

Prof. Lessig:   The reason why I don’t think district is a plausible remedy given the identification of equality as the Constitutional standard is that there’s no justification for district over proportional, and district is wildly unrepresentative over proportional because of the gerrymandering of congressional districts.  It would be a really wildly pro-Republican thing in Pennsylvania, for example, or in North Carolina, to allocate on the basis of districts, because those districts are wildly gerrymandered.  When you can see the remedy on the basis of districts in some cases is worse than the winner-take-all formula-

Andrew:         Yeah.

Prof. Lessig:   -for reflecting what the voters want, then there would be no justification for that alternative relative to proportionality.  It seems to me the default remedy is proportional and they have to bear the burden of anything that deviates from that default based on justifications that are not just simply political. 

Andrew:         Okay, understood with that distinction now let’s kind of break out the crystal ball.  What do you think?  Do you think this Supreme Court will take up the case?  Where do you think it will go?  Give us your best prognostication? 

Prof. Lessig:   My expectation is they take the case.  I think they kind of like being able to think about these questions outside of the context of actual elections, and that’s what this would be.  They could resolve this without their resolution deciding the case, that was the same thing in the Chiafalo case, which decided the power of electors.  I think that’s one reason to do it.  I think number two, they have a reason to address the question of the precedential weight of the summary affirmances.  There has been a lot of movement and questions raised about that, that would give them a chance to address that, too. 

Number three, I think that nobody is happy with the existing structure of the electoral college.  Everybody sees the problems that it presents, and to the extent the States themselves might be creating some of those problems I think the Court would want to be able to consider whether that was true and whether there’s an alternative that might address it.  I’m not saying there’s a 70% chance.

Andrew:         [Laughs]

Prof. Lessig:   But I think there’s a 50% chance, 50% plus 1, so that’s where I’m gonna bet.

Andrew:         I would-

Thomas:         We’ll take it.

Andrew:         I will take that every time.

Thomas:         Scheduling wise, when will we know?

Prof. Lessig:   Well, we don’t know whether the other side will ask for an extension, which my expectation is they would, so that means the Court would not have both sides until April, which means they could decide whether to grant Cert this term and then the argument would be sometime in the fall.

Thomas:         Alright, well Cert watch!  I can’t wait.

Andrew:         [Laughs]

Prof. Lessig:   [Laughs]

Thomas:         That’s really cool, it’s – boy, I really hope that one of these several methods we’ve talked about has success because the electoral college – as you point out, it’s not just the fact that recent times the President has won with fewer votes, we all lose out, or at least 40 to 41 jurisdictions, as you said, 40 States, we all lose out when campaigns only focus on these ten swing States.

Prof. Lessig:   Yes.

Thomas:         All the other States lose out, and it’s boring.  [Laughs]

Andrew:         [Laughs]

Thomas:         And it’s not good for anybody, I don’t think, that undue focus.

Prof. Lessig:   Yeah.  I mean, here’s one more point on that.  Let’s just add one more point on that.  You know, when you look at red State America, and you ask “why is red State America so red?”  Could it be that part of it is that Democrats just never compete there?  We never make our arguments there. [Laughs]

Andrew:         Hmm.

Prof. Lessig:   They never even hear them.  And maybe it’s the other way around, but the point is the ultimate objective should be that we have one conversation about who should be President and all of us participate in that as equally as we possibly can.

Thomas:         Well, and evidence to your point is Georgia. 

Prof. Lessig:   Yes.

Thomas:         You wouldn’t have thought that we could get anywhere until all of a sudden we’re there and I think that’s evidence – if Georgia could go blue, who knows what the next Georgia will be?

Prof. Lessig:   Right.

Thomas:         We could absolutely talk to you for hours.  [Laughs] I really enjoyed that, that was so much fun.  Thanks so much for coming on, Professor Lawrence Lessig.  Is there anything you wanna plug while you’re on the show before you go?

Prof. Lessig:   Nope, that’s all we can – that’s great. 

Andrew:         [Laughs]

Thomas:         Fantastic.  Well, give Professor Lessig a follow on Twitter.  How about that?  [Laughs]

Prof. Lessig:   That’s good, that’s good.  [Laughs] Great.

Thomas:         Thanks, as always, we love your work and thanks for coming on.

Prof. Lessig:   Thank you.

Andrew:         Yeah, thank you so much.

[49:29.8] [Commercial]

[51:55.0] [Patron Shout Outs]

T3BE Answer

[1:04:24.5] [Segment Intro]

Thomas:         Now it’s time for T3BE answer time, and Andrew, I decided I was gonna get this one right, so you know, I’m sure this is a formality.  Let’s just go quickly through it.  [Laughs]

Andrew:         [Laughs] It is a mere formality.  Alright, this was a man struck by a train at an unguarded crossing and sued the railroad for personal injuries.  The major issue is whether the train sounded its little [Train Whistle] Whoo Whoo! alarm-

Thomas:         [Laughs]

Andrew:         -before arriving and the cross – I figure if you could get in a Thomas the Tank Engine, I went through, that was an Alex phase as well.  I know that time right.  Anyway, question is: did the railroad sound the whistle?  The railroad has offered the testimony of a resident who has lived near the crossing for 15 years.  She was not there on the occasion in question, but she wants to testify that, you know, whenever she’s home the train always sounds its whistle before arriving at the crossing.  Is the testimony admissible? 

You were really between your answer, B, no because habit evidence is limited to the conduct of persons, not businesses; or C, yes, as evidence of routine practice.  I will tell you that eliminating D, yes as a summary of her present sense impression, good decision.

Thomas:         Yeah.

Andrew:         That’s a nonsense answer.

Thomas:         Mm-hmm.

Andrew:         The present sense impression is an exception to the rule against hearsay.  It’s just – it’s not remotely relevant here.  It requires you’ve observed something and then you say it and then you testify that you said-

Thomas:         Right.

Andrew:         Doesn’t matter, it’s crazy.  A, no due to the resident’s lack of personal knowledge regarding the incident in question; well, that’s just the predicate to the question.  Again, sometimes those can be correct-

Thomas:         Yeah.

Andrew:         -if no exceptions apply, but really the issue comes down to can you show habit evidence from an institution or can you only show it from a person?  [Laughs] And you know from the pause, Thomas-

Thomas:         [Laughs]

Andrew:         -it’s Rule 406 of the Federal Rules of Evidence.

Thomas:         You’ve gotta be kidding me.

Andrew:         It says “evidence of a person’s habit, or an organization’s routine practice may be admitted-

Thomas:         Oh, come onnnn!  It’s a train!

Andrew:         -to prove that on that particular occasion-

Thomas:         You don’t – that’s stupid!

Andrew:         [Laughs]

Thomas:         [Groans] Augh!

Andrew:         -the person or organization acted in accordance with the habit or routine.”

Thomas:         Well, I nailed this one!  I told you how I would get it wrong.

Andrew:         Yup, yup.

Thomas:         I told you what the better answer is, which is B. 

Andrew:         [Laughs]

Thomas:         And I told you how I would be wrong, which is C.  In my mind I nailed this question, perfect answer, I nailed it.

Andrew:         [Sighs] I mean, should somebody be allowed to testify that, you know, as far as they know Opening Arguments always releases normie episodes at 12:05 on Fridays?

Thomas:         Shouldn’t there be a better evidence rule for that?  You know, that’s a really indirect way to get at this question.

Andrew:         It is, but now think about this real-world case.  One of the things that this hypothetical is omitting is going to be the testimony of the conductor.

Thomas:         Yeah.

Andrew:         The conductor is gonna be like “well, I pulled the damn rope, I always pull the rope.”

Thomas:         Yeah.

Andrew:         The question is if it’s just a he-said, he-said what other kinds of evidence might you want to have come in to help corroborate?  You know, the nasty defense counsel, me, I’m gonna-

Thomas:         Mm-hmm.

Andrew:         Sorry, I guess plaintiff’s counsel, but I’m plaintiff’s counsel.  The conductor gets put up on the stand and says “I definitely pulled the whistle,” and then I’m gonna pull out his performance reviews and I’m gonna be like “Mr. Smith, you’re the conductor for this railroad company, and they pay your paychecks and they have for the last 17 years, and in fact, admitting as to whether you’ve fulfilled all of your duties is one of the things you get evaluated on on your yearly performance evaluations, isn’t it?”  and I’m just gonna go through and cast doubt.  I’m gonna say “isn’t it possible that, you know, you forgot to pull the cord this time around?” and he’s gonna say “no, absolutely not,” but the jury’s gonna be like, “yeah, maybe.”

Thomas:         Yeah.

Andrew:         He does, his job does depend on him saying-

Thomas:         [Sighs] Ahh, you’re right.

Andrew:         -he pulled the whistle.  Yeah. 

Thomas:         This sucks.

Andrew:         That’s the context of why you’d want to.

Thomas:         What happened to me?  I used to be a lawyer, Andrew.

Andrew:         I used to be somebody.

Thomas:         Did I get lucky for 200 questions?  I don’t get it.

Andrew:         Noo!

Thomas:         I cannot do this test now.  If you look at my last, I dunno, 30?  20?  I’m probably in the low 20%’s, or maybe 30%.  If you look at the – it might be worse than that actually.  What’s going on?  Do you have an explanation?  Am I stupider now?  Did I lose?

Andrew:         [Laughs]

Thomas:         Can I blame COVID?  I dunno. 

Andrew:         Look, Thomas’ 2nd Chance Bar Exam is still flying high.

Thomas:         Yeah.

Andrew:         I mean, almost all of these that’s been part of the issue, that you’ve successfully narrowed it down and you’ve just, you know, you’ve guessed wrong, but we’re only two questions into the new questions, so-

Thomas:         Yeah, I – again, it’s not – when we look at the last porked test that was definitely porked, it’s not that the questions are all too hard for the bar exam, it’s that it’s only a selection of pretty hard questions for the bar exam.  Now I don’t know, I’m reserving judgment on this new test, but there used to be questions that were like okay, well this is pretty much if you have a pulse you can reason.  There used to be at least like, I dunno, 25% of them would be pretty easy, and then I’d feel like I was able to intuit my way to what may be another 25% or so that were a little harder, and that’s how I was able to get to 55% or whatever I was at, 54%.  But now it’s like they’re all that – the ones that are the other side of that.  They’re all the ones that are really hard, and maybe if I’m lucky I accidentally get the right answer, but this is brutal.

Andrew:         Well, I mean and you are getting a bunch that sort of turn on-

Thomas:         Yeah, is there a stupid exception to this thing that I don’t know, or not?

Andrew:         [Laughs] Yeah, it’s tough.

Thomas:         Alright.

Andrew:         All I can say is, you know, get back up there on that horse.

Thomas:         Well, I just have to say, this reflects on you as a teacher, so…

Andrew:         Well, it does.  Yeah.

Thomas:         Yeah, maybe find – that’ll incentivize you to not pork the test.  [Laughs]

Andrew:         [Sighs] Okay, I will, uh, to be a better teacher.

Thomas:         Naw, it’s another one, I was this close, I could’ve maybe gotten there.  I even did the thing where I was like “how am I gonna get this wrong?  Well, here’s how I’m gonna get it wrong, C,” and then it was C.  So that’s cool.  Alright, well, let’s find out who this week’s big winner is.

Andrew:         [Laughing] Well, Thomas, this week’s winner is railroad worker Brad Kalmanson, who after asking a whole bunch of questions, and we admonished not to litigate the T3BE, just make your best guess, maybe a little petulantly, “A podcast about the law is telling me NOT to lawyer!  Fine, then.  Assuming it’s a public crossing, with no exemptions, and no train black box, then the #T3BE answer is C.  The Railroad always sounds the horn at that crossing, and testimony should be allowed regarding as such.”

[Laughs] Thanks for reluctantly guessing the correct answer.  Lots of folks got this one wrong, so a difficult question, perhaps, but Brad Kalmanson got it right.  Everyone, give him a follow, that is @BrodeurHOF, that’s a hocky reference even I got, and Brad, congratulations on being this week’s winner.

Thomas:         And that’s our show!  Thanks so much for listening, that was a ton of fun, thanks to our patrons, and by the way, if you want more us the next, you’ll hear us is on Stereo, grab that Stereo app on your phone, go follow @Torrez and @Seriouspod and you will get notified when we go live every Wednesday at 5 pm Pacific, 8 pm Eastern.  It’s so much fun, you get to submit the question, we hear your voice, it’s moderated now so don’t worry, there’s no BS ones.  That means you have an even better chance of getting your question answered, especially since we’re trying to answer more questions these days and churn through them faster so that we actually get to talk to more of you.  It’s a lot of fun!  One more time, that’s Stereo app, every Wednesday, 5 pm Pacific, 8 pm Eastern.

And that’s our show, thanks so much for listening, we’ll see you next time!

[Show Outro]

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