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Lawrence Lessig: The Electoral College Is Constitutionally Allowed to Choose Clinton Over Trump

Harvard Law professor Lawrence Lessig sparks debate over the issue of the Electoral College with his recent op-ed published in The Washington Post.

As we continue to talk about the U.S. election system, we turn now to Harvard Law professor Lawrence Lessig, who sparked debate over the issue of the Electoral College with his recent op-ed published in The Washington Post titled “The Constitution lets the electoral college choose the winner. They should choose Clinton.” Lessig is a Harvard Law professor who briefly ran for the Democratic nomination for president in 2015. He also is the author of Republic, Lost: How Money Corrupts Congress — and a Plan to Stop It.


AMY GOODMAN: Well, as we continue to talk about the U.S. election system, we turn now to Harvard Law professor Lawrence Lessig, who sparked debate over the issue of the Electoral College with his recent op-ed published in The Washington Post headlined “The Constitution lets the electoral college choose the winner. They should choose Clinton.” Lessig writes, “Electors were to apply, in Hamilton’s words, ‘a judicious combination of all the reasons and inducements which were proper to govern their choice’ — and then decide. The Constitution says nothing about ‘winner take all.’ It says nothing to suggest that electors’ freedom should be constrained in any way. Instead, their wisdom — about whether to overrule ‘the people’ or not — was to be free of political control yet guided by democratic values. They were to be citizens exercising judgment, not cogs turning a wheel,” unquote. The electors will meet on December 19th.

Those are the words of Lawrence Lessig, writing in The Washington Post. He’s joining us now, Lawrence Lessig, Harvard Law professor, who briefly ran for the Democratic nomination for president in 2015, also the author of Republic, Lost: How Money Corrupts Congress — and a Plan to Stop It.

Lawrence, thanks so much for joining us from Amsterdam, where you are right now. Well, why don’t you lay out what you’re calling for?

LAWRENCE LESSIG: Well, as I — as you described in summarizing the op-ed, the framers meant for the electors to exercise judgment. And it’s a judgment which is really asking the question: Should we overrule what the people have done? Now, there are some cases where I think they plainly should overrule what the people have done. For example, if a candidate is a crazy person or if it turns out not to be qualified or is a criminal, those would be good reasons to overrule what the people have done. But in this case, there’s no reason for the electors to overrule the popular choice. The popular choice, by more than 2 million votes, is a completely qualified candidate for president. And the principle, that should be a fundamental principle in our democracy, the principle of “one person, one vote,” says that the vote of every American should count equally. And if it does, Hillary Clinton should be the president of the United States.

AMY GOODMAN: So, explain the Electoral College. Explain how it works, what electors will be doing on December 19th and what you feel they should do.

LAWRENCE LESSIG: Well, the Electoral College is a group of electors, selected in the states, who will meet in the states on December 19th and cast their ballots for who they believe should be president and who they believe should be vice president. And then those ballots get transmitted to Washington, and then they’re opened in Washington in the Senate, and the results are read. Now, their decision, that they exercise on December 19th, is a decision of judgment. They were to be people who reflected on all the issues presented and have to make a decision. And that decision, I think, should be guided by the principles we should all take as uncontested. And that uncontested principle, that I’ve advanced, the idea that votes should count equally, that everybody’s vote should count equally in the United States, should have an overwhelming influence on their decision. And what they should do, in my view, is to say state laws that tell me I have to vote for the winner, even though the, quote, “loser” might have gotten 48 percent of the vote, shouldn’t constrain me so that I have to go against this fundamental idea of equality. So, I think that they should vote in a way that respects the actual winner in this election and make Hillary Clinton the next president.

AMY GOODMAN: What does it mean for the electors not to vote the way their state did, but the way the nation did? What are the rules?

LAWRENCE LESSIG: Well, first of all, they don’t have to vote the way the nation did necessarily. They could vote the way a significant proportion of their state did. Look, in Michigan, if Donald Trump is found to be the winner by some 10,000 votes out of four-and-a-half million cast, what the Michigan electors could say is, “OK, I’m going to vote in a way that reflects Michigan.” So, half of Michigan was essentially for Clinton, half was essentially for Trump — maybe one more for Trump than for Clinton. That division goes against the laws of the state of Michigan that say they have to allocate the electors’ votes to the winner — all the electors’ votes to the winner. But my point is — and this is now increasingly uncontested among constitutional scholars — winner take all does not exist in the Constitution. It’s a restriction imposed on the electors by the states. And if you think that the electors are, as Hamilton described them, people who are supposed to exercise judgment, that restriction is the flaw which ought to be resisted. So they should vote reflecting the votes of the people in their state. And if they did, I think that would be enough to make it so that the winner in January will be Hillary Clinton.

AMY GOODMAN: I interviewed Bernie Sanders on Monday night in Philadelphia, and I asked him about the Electoral College.

SEN. BERNIE SANDERS: No, I think that’s an archaic concept. I think nobody — I mean, nobody voted for the electors; 99.9 percent of the people don’t even know who the electors are. They voted for Hillary Clinton. They voted for Donald Trump. And their obligation is to support the candidate that the people in the state voted for.

AMY GOODMAN: So, he says they got to vote for the way their state went. Lawrence Lessig?

LAWRENCE LESSIG: Yeah, well, I think the archaic idea is actually winner take all, because the principle of “one person, one vote” is a principle that was introduced as a fundamental principle in American law in 1962, long after states had moved to “one person, one vote.” And exactly 50 years ago, the state of Delaware went to the Supreme Court, and they said, “Look, winner take all seems to us to be inconsistent with your principle of ‘one person, one vote,’ so which should stand, and which should fall?” And the Supreme Court ducked that issue. So I think that if you believe in the fundamental principle of equality, we shouldn’t be giving so much deference to an idea of winner take all that was — that was born at the time slavery reigned in the United States. We ought to be respecting the principle of equality. And under the principle of equality, we should get as close to respecting equal votes of every citizen as we can, given our constitutional structure. And I think if we did that, then the will of the people would not be overturned.

It’s only happened twice before. This is the point that people miss. Only twice has the Electoral College voted against a candidate who had won the popular vote — once in 1881, when Grover Cleveland had the election stolen from him by Tammany Hall in New York, and once in 2000, where most people think the election was essentially a tie, and they went with Electoral College. Those two precedents should not be enough to overwhelm the fundamental precedent of equality that ought to define how our democratic system works. And that principle says Hillary Clinton is our president.

AMY GOODMAN: Professor Lessig, your column prompted a number of rebuttals. One was that electors are simply unvetted party loyalists who are ill-equipped to make the independent — to make independent judgments. Your response?

LAWRENCE LESSIG: Well, it’s true we don’t know who they are. But I’m not asking them to make a judgment based on their own preferences. I’m asking them to recognize a principle that should be common to all of us. And that principle is the principle of equality. Now, if it turned out that the candidate was insane or the candidate was a criminal, we’d also be calling on them, these people we don’t know, to make a judgment, as the framers of the Constitution expected they would, not to ratify the choice of the people for that candidate. So, the Electoral College is a project that calls on their judgment. If we don’t like it, we can talk about how to eliminate it. I’m not quite convinced we should eliminate it completely. I think it’s important to have a final check be somebody other than the Supreme Court. But given that it’s there, we should take it seriously. And taking it seriously says they should exercise their judgment according to the moral values, the principles that are part of our constitutional tradition today. And those principles say equality.

AMY GOODMAN: Donald Trump tweeted, albeit in 2012, “The electoral college is a disaster for a democracy.”


AMY GOODMAN: He’s not saying the same thing today, but do you agree?

LAWRENCE LESSIG: Well, I think in this — in the case that he was talking about, he expected that Barack Obama was going to lose the popular vote but win in the Electoral College. And he said it was a disaster for democracy if that would happen. And I agree with him. Absolutely, it’s disaster for democracy. But that’s just one in a long list of things that Donald Trump has said that at one point I agreed with him, and then he changed his view, and now I don’t agree with him anymore. But I think it’s a lot of fun to repeat those, and I just blogged about a bunch of these, where he was saying that we ought to have a revolution if the popular voice — the popular choice is not elected as president. Well, I’d rather just have 37 electors vote for Hillary Clinton than have a revolution. But either way, I think the popular choice in this case ought to be president of the United States.

AMY GOODMAN: Lawrence Lessig, there’s also the concern, since the election was held under the current electoral system, that to change it after the fact would be improper. Your response?

LAWRENCE LESSIG: I agree it’s improper, but I’m not changing anything. Right? If the Constitution says they are supposed to exercise judgment, which is, in fact, what I think the right interpretation of their power is, then I’m just saying, “What are the values that ought to inform the judgment?” The value of “one person, one vote,” the value of equality, is a value that was given to us more than 50 years ago as a central part of our constitutional tradition. So, under that principle, we ought to be applying the same standard today that I would have said we should have applied a year ago. We made a mistake in 2000 when we allowed that decision about who should be president, Bush v. Gore, to be decided by the Supreme Court rather than raising this issue then, because, in that case, too, we should have said, “Look, this is the product of a radically unequal way of allocating — counting votes.” The votes of people in California are a fraction of the weight of the votes of people in Wyoming or in other of these states. And so, what we ought to be doing is looking at that inequality and saying, “Does it make sense?” And if we adopted the rule that I’m saying, where the Electoral College basically looks at the results and says, “Is there a reason to disqualify the winner of the popular election?” we would actually have presidential campaigns that did something more than just spend all their time in 10 states in the United States. We’d have presidential campaigns which were focused on the broad swath of Americans to convince them to support the candidate for president.

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