Maybe this is reassuring, and maybe it isn't: Harvard Law professor Lawrence Lessig, a renowned constitutional scholar, has undertaken a detailed analysis of all the vaguely plausible methods for stealing an American presidential election. One of his conclusions is that the method actually attempted by Donald Trump and his allies in 2020 — with the slates of fake electors and the nonexistent magical powers of the vice president and all that — was, in Lessig's words, the "stupidest possible" way of doing it.
That plot had virtually no chance of success, in Lessig's judgment. Like the rest of us, he was shocked by the dramatic spectacle of Trump's followers storming the Capitol on Jan. 6, 2021 — but in constitutional terms, spectacle was all it was. Votes had been counted and certified in every state; the presidential electors had voted and sent their certificates to Congress. The outcome was settled, and nothing that could have happened on Jan. 6 — even if things had gone a whole lot worse than they did, Lessig argues — could possibly have led to a second term for Donald Trump. Or at least nothing short of a full-on Bolshevik Revolution seizure of power, which is not a scenario Lessig and co-author Matthew Seligman entertain in their new book "How to Steal a Presidential Election." (I'm sure the Oath Keepers fantasized about that. But they were about three eggs short of a two-egg omelet, in terms of logistics, planning, hardware and literally everything else.)
You've already spotted the other side of Lessig's Jan. 6 argument: There were other, smarter, better ways to steal the election that didn't rely on blatantly false documents and crackpot legal theories. With careful advance planning and competent management (qualities in which Team Trump was notably deficient), one of them might have worked. In fact, as Lessig and Seligman's book lays out in considerable detail — you'll be grateful for the summaries labeled "tl;dr" found at the end of every chapter! — there are a couple of strategies that probably would have worked in January 2021, and that present a clear and present danger to this year's election and those yet to come.
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"How to Steal a Presidential Election" outlines seven distinct scenarios in which malicious actors could manipulate the result of a close election, especially one in which the popular vote and the electoral vote are "inverted," as political science types say. I won't take up more space here by explaining them all, especially since several of them are closely related, at least to non-lawyerly eyes. As Lessig told me during our recent conversation, the most dangerous possibilities involve rogue state legislatures — and let's be real, rogue Republican state legislatures — giving themselves final power over electoral outcomes, either by finding an excuse to override the popular vote, directly appointing their own slates of electors or simply dictating exactly how the existing electors will vote. (There are several potential variations on those themes. Read the book.)
Could that kind of blatantly anti-democratic power grab possibly be constitutional? Well, none of those nightmarish hypotheticals has yet been tested in court, but Lessig and Seligman's basic answer is, yeah, it could. Until and unless Congress enacts some crucial reforms to election law (and we might be waiting a while), the danger is high.
Lessig dropped by Salon's New York studio last week, right after Donald Trump's victory in New Hampshire. The transcript below has been edited for length and clarity.
We're recording this in the immediate aftermath the New Hampshire primary. You and your co-author, Matthew Seligman, are careful to identify an unnamed "MAGA Republican" as the principal threat in 2024 throughout. I think we now know who that MAGA Republican will be. Does Trump's comeback raise the danger of a serious attempt to steal this election?
Writing this book was a little bit of a gamble because things could have resolved in a sane and normal way. But unfortunately they haven't. I think that it's clear that barring some extraordinary event, Donald Trump will be the nominee. It's clear he's even more extreme now than he was three years ago, in his willingness to push as hard as it takes to regain power. So I think the concerns we were thinking about when we began writing this book have become even more pressing today.
You outline seven specific ways that malignant forces could hypothetically steal an election, or at least try to. But before we get there I feel like there's an overarching political question, which is whether the law can do anything to stop a candidate, a party or a movement who have consistently refused to play by the rules. I mean, the rule of law only holds if we agree to observe it.
In the current political and media context, I think there's a real risk they get away with that. The media context is extremely important. We today have as many people who believe the election was stolen in 2020 as believed it was stolen on Jan. 6, 2021. Even though we have a free society, we have free press, we have access to more information than humans have ever had, the view is sustained. In a world where the public can't be brought around to the truth, it's easy for either side to play games and get away with it because denialism will reinforce itself, especially in the light of the most extreme actions taken.
There's another even larger question, which might be philosophical rather than political and speaks to that level of cynicism or mistrust. Can you really blame people who feel disillusioned about democracy in a world where the Citizens United decision, the Federalist Society, the Electoral College and systematic partisan gerrymandering have produced profoundly anti-democratic results?
That is such a great question, and I think it is so true. I find these populist urges sometimes........