Richard Hasen, author of A Real Right to Vote, Sarah Isgur, senior editor of The Dispatch, and Lawrence Lessig, author of How to Steal a Presidential Election, provide a health check on the state of American democracy, and look ahead to potential areas of vulnerability in the run-up to the 2024 election. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
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Participants
Richard Hasen is professor of law and political science at the University of California, Los Angeles, School of Law, where he directs UCLA Law’s Safeguarding Democracy Project. An internationally recognized expert in election law, he served in election law analyst for CNN in 2020 and NBC News/MSNBC in 2022. Hasen also writes the Election Law Blog. His books include Cheap Speech, Election Meltdown, The Voting Wars, and his most recently A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy.
Sarah Isgur is senior editor of The Dispatch, hosts the legal podcast Advisory Opinions, and frequently appears as a legal analyst on cable news. Prior to joining The Dispatch, Isgur served in the Justice Department as the director of the Office of Public Affairs, as senior counsel to the deputy attorney general, and on three presidential campaigns.
Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School, a 2016 presidential candidate, and founder of Equal Citizens. He is the author of several books, including They Don’t Represent Us: Reclaiming Our Democracy, Fidelity & Constraint: How the Supreme Court Has Read the American Constitution, America, Compromised, among many others. And his most recent book (with Matthew Seligman) is How to Steal a Presidential Election.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy
- Lawrence Lessig and Matthew Seligman, How to Steal a Presidential Election
- Jeffrey Rosen, “The Supreme Court Says States Can’t Keep Trump Off the Ballot," We the People, National Constitution Center
- Trump v. Anderson (2024)
- Sarah Isgur and David French,“Indictment Watch: The Supreme Court Decides Whether States Can Disqualify Trump,” Advisory Opinions, The Dispatch
- Richard L. Hasen, “The Supreme Court Just Delivered a Rare Self-Own for John Roberts,” Slate (March 5, 2023)
- Conference Report, “Carter-Baker Commission: 16 Years Later” (2021)
- Trump v. Anderson, Amicus brief of Richard L. Hasen, Edward Foley and Ben Ginsburg
Excerpt from Interview: Sarah Isgur discusses the complexity of addressing voting litigation, highlights the ideological and institutional axes within the Supreme Court, and suggests that the maximalist approach in Trump v. Anderson was driven by a desire to preempt potential challenges to the political process.
Sarah Isgur: I think, though, that Rick would acknowledge you can't fix everything. You can't end all voting litigation because a lot of the problems, again, going back to 2020, but really every election have to do with mail in ballots. Last time, what was it? There was a date by which the ballot had to be received, but what about the ones that were undated, but they were received by the right time, just like silly stuff like that, that you're not gonna have a constitutional amendment to fix all of that stuff. Of course, it's a great irony. I was a former Republican campaign operative. I've worked in many of these sort of pre-recount situations of ballot misprints and everything else. I've been on the ground, my job in 2012 for the Romney campaign was election operations, which was preparing for a recount that didn't happen.
But one of the things that you're most focused on is thinking through all of the different things that can go wrong and trying to fix them ahead of time. So in some sense, I think the campaigns are both on board with trying to minimize the litigation. Because it's a huge waste of their resources during the campaign in advance. To move to Trump v. Anderson, and this gets to my overall thesis about why the court is in 6-3 and why it's better thought of as a 3-3-3 court, that you have this axis on the bottom. It's an x-axis. It's the ideological one that you're all very familiar with, conservative to liberal, although boy, we might be stopping thinking about that as a linear spectrum and more a scattered chart at this point. We seem to have three, if not seven different parties going on right now that don't fall, I think, very neatly along that.
But let's just put it on that for now. But then there's this other spectrum that's very specific to the Supreme Court on institutionalism. And I think there's different things that fall into that spectrum. I don't have a single definition of it, but institutionalism in general is going to care about how easy something is to follow for the lower courts or for the country for that matter, how much it settles an issue, how much it helps or hurts the credibility of the court moving forward. The consequences of it. Does it result in chaos or does it result in sort of the orderly administration of justice? And boy, do I think the Trump v. Anderson case, and this is whether Colorado as a state had the ability to disqualify Donald Trump under the Section 3 of the 14th Amendment Insurrection Clause, there was a lot of institutionalism going on there.
What's interesting is that that cut against what you normally see from institutionalist judges, justices. Which is minimalism, judicial minimalism, something that the chief justice cares a great deal about. Only deciding as many decisions as you can, because that's how you get the most number of people to agree to it. That's how it sort of has the least amount of impact on the institution and the credibility and all those things I mentioned. Except in this case, because the narrowest version of a Trump v. Anderson decision would have just said Colorado can't do it. It's what the four actually were advocating for, including Justice Amy Coney Barrett. And she even said, I would have just gone with the minimalist decision here.
But I think the reason that the five went with the more maximalist decision, deciding things that they didn't have to decide, technically speaking, was because they were not going to do it. In this case, the institution was better protected by ruling out some of the nonsense that was clearly gonna come down the pike if they didn't do that. The reason I bring that up is really to tell you where I think the Supreme Court sees this. They're very concerned about what happens next. They absolutely believe that this election will end up in their hands. They don't want it to. They think that will hurt the institution greatly. And they do care about the credibility of the court. And in over-deciding Trump v. Anderson, I think you can tell how open they are to sort of nonsense, what they view as nonsense challenges to what should be left of the political process.
Excerpt from Interview: Larry Lessig discusses the narrow interpretation of Section 3 enforcement, highlights concerns about potential threats to election officials' autonomy, proposing modifications to prevent the loss of electoral votes in case of a candidate's death before Electors' Day.
Larry Lessig: I think the important thing about how they've narrowed it, I think they've said, and I think people have misread what they've said, they've said that if you're gonna enforce Section 3, you're gonna need to do it through a statute that Congress has passed for federal officers. There is such a statute. 2383 is a statute that could have been invoked by Jack Smith, and he could have prosecuted under it. If you listen to the lawyers for Colorado, it was such a simple case. It sounds like it would have been a one-day trial and he would have been convicted. And had he been convicted under Trump v. Anderson, he would not be a candidate. But obviously, Jack Smith didn't think it was an easy case. And so therefore, he wasn't prosecuted under that provision. And I think all of us should stand back and say, if you don't think you can prove that he actually committed insurrection in a criminal sense.
Why do we think we ought to be allowing him to be kicked off of the ballot? I know everybody says this is just a qualification, but it's not just a qualification. It's a qualification that speaks to his culpability for a criminal, what is in essence a criminal Act. And I think like narrowing it to that is really important. But I do think it's really, I hadn't seen the essay that Rick pointed to. I'm really heartened to see Democrats are saying that they're not going to take up disqualification. But this is a reason why it's important to unpack what the rules actually are, because I don't think under the Electoral Count Reform Act, you're allowed to consider disqualification. Or age or any other qualification for deciding whether to count a state's electoral vote.
Because what the law says is that Congress can refuse to count a vote if it's not regularly given, meaning given by the electors and not regularly given by the electors. And what they were pointing to or imagining is somebody being coerced or bribed to give a vote one way or the other. And so you look at the process for the vote, and you say there's something wrong with the vote. I don't think that reaches, though there's slight legislative history to the contrary, it has no basis, I think, in the language of vote not regularly given. There's any basis for anything other than a charge about how the electoral votes were cast, and this points to Congress as a failed institution for enforcing its laws, because in 2020, when Josh Hawley tried to rally Congress to throw out Pennsylvania's votes, he completely violated the basis of the Electoral Count Act that was enforced then.
Because then again, the only basis for throwing out Pennsylvania's votes was that the votes of the electors were not properly given. But obviously, the votes of the Biden electors in Pennsylvania were properly given. They were Biden electors and they all voted for Biden. There was no question that they had been forced to vote one way or the other. So there was no legal basis for his objection. Yet he and 146 other members of Congress objected to the counting of Pennsylvania's ballots, which means he either doesn't know the law, which as a former law professor seems unlikely, or he doesn't care what the law is. And that's the real concern, that people will act contrary to what the law actually says and just do what they wanna do and do it in a way that creates this opportunity. To be clear, I didn't argue in 2020 anybody should vote contrary to how they were pledged.
...
And so while we were very proud of the electoral, election officials who stood up and did the right thing in 2020. I'm really anxious about them standing up and doing the right thing if they're being threatened by thousands of people at their house demanding that they would vote one way or the other. So I would like to lock them in. But there's a really important loophole here that we've gotta close. If the president dies or the candidate who wins the popular election dies between Election Day and Electors' Day. And the standard binding statute is in effect, which basically says you have to vote for the guy who won the popular election. Then a bunch of those electoral votes could be lost. They just couldn't be cast. This issue was actually raised with Horace Greeley in 1872, who died between the election and Electors' Day. 63 of those electors shifted sides, and three of them continued to vote for Horace Greeley. So these statutes need to be modified to make sure that if, in fact, the candidate doesn't survive to Electors' Day, and given these two candidates, it's not an improbable thing to worry about, we've got to make sure that we don't throw away electoral votes because that too would throw the integrity of the system into doubt.
Excerpt from Interview: Rick Hasen expresses concern about public acceptance of election results, potential violence, and the legal loopholes surrounding the Electoral Count Act.
Rick Hasen: Well, first, let me say it's great to be with you again at the National Constitution Center and glad to be with Sarah and with Larry having this discussion with all of you. Obviously, even if we got a constitutional amendment, I see this as a multi-year project. Nothing's going to happen before January 6th 2025. So the world we're living in, I mean, the first thing I would say is putting aside all of the legal machinations, which Larry covers in his book, I'm worried about the potential for violence. I'm worried about people not believing the results of the election because this is what we saw in 2020. You mentioned my earlier book, Cheap Speech, where I talk about how it's become so much easier to share false information about elections being stolen or rigged. We now have millions and millions of people who believe the last election was stolen or rigged, despite all the reliable evidence.
To the contrary, democracy depends upon the people who are on the losing end, agreeing that the election was fair and square and agreeing to fight fairly the next time. So I am worried about public acceptance of results. I'm worried about the potential for violence against election officials, against poll workers, against voters. We're in a very volatile and polarized moment in our history. I hope that cooler heads will prevail and that, we'll be able to get through this period. But even before we get to Congress's counting of the electoral college votes on January 6th, there's a lot that has to happen that a lot that has to go right. And there's a big part of civil society that needs to make sure it goes right. Let let me say one thing about a hole that is left open regarding January 6th 2025, a legal hole.
Some of the things that I know Larry had been worrying about and Matt for a long time involved manipulation of a old law back from the 1870s called the Electoral Count Act. Congress fixed some of the problems with that act when it passed the Electoral Count Reform Act in December of 2022. There was also this very broad theory called the Independent State Legislature Theory. There was an extreme version of it that would've let state legislatures potentially put in an alternative slate of electors. The Supreme Court seemed to shut that down in a case called Moore v. Harper that decided last term, but in a case called Trump v. Anderson, which the Supreme Court just decided weeks ago, the court left open the possibility that Congress could potentially try to disqualify an apparently winning candidate from having his or her electoral votes counted on grounds that the person participated in an insurrection and is therefore disqualified under section three of the 14th Amendment. The Trump v. Anderson case involved whether states could disqualify candidates in this case disqualify Trump, but left open in a very kind of unclear way what Congress might be able to do and when they might be able to do it. So that's another scenario in addition to all the ones that Larry lays out that I worry about in terms of legal challenges to the results in 2025.
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