Image for post
Image for post
Trump: Gage Skidmore (CC-BY-SA)/ Biden: Gage Skidmore (CC-BY-SA)

My Twitter feed is filling with tweets like this:

Tweet

Here’s the skinny.

In 2016, soon after the election, I wrote an essay in the Washington Post arguing that electors were free to vote contrary to their pledge, and that, like the first such “faithless” vote by any elector (Sam Miles, 1796), voting to follow the popular will over a party pledge was a legitimate reason to vote contrary to a pledge. Hillary Clinton had won the popular vote—by a lot. Electors, I believed, had a constitutional discretion to consider that fact before they voted. This belief was not uncommon among lawyers and historians studying the matter.


Image for post
Image for post
CC-Wikimedia

Three days ago, I retired this daily report. I was convinced this was settled. I am convinced now that was wrong. We need to recognize — urgently — just how dangerous what’s happening is. The other side needs to recognize—urgently— just how dangerous it would be if they succeed.

This is Birtherism all over again: Obama wasn’t President because he was born in Kenya; Biden can’t be President because he didn’t win the election. When Trump launched his birther campaign, he was politically irrelevant. As he launches his birther campaign against Biden, he is the most powerful political actor in America. His rallies and tweets and campaign—coordinated now with an Attorney General and leaders in Congress—aim at the very least to discredit the next administration. …


Image for post
Image for post
NYTimes

So if you’ve been reading these missives, you know that where I thought we were yesterday every news organization (haven’t checked OAN) declares we are today: Biden has more than 270 electoral votes and will become the 46th President of the United States. His victory is huge — a rare majority president, one of only 3 to beat an incumbent, with a Vice President who will inspire many who deserve inspiration.

As I said yesterday, the scenario some of us have feared cannot materialize now. Georgia and Arizona are the two states with GOP governors and GOP legislatures. If they go for Biden, conceivably, those Republicans could select an alternative slate. But it wouldn’t change the result — and so they won’t do it. And even if Pennsylvania Republicans somehow succeed in changing the minds of Republican leaders in their legislature—they’ve refused to consider the idea of an alternative slate, to their credit (and it makes me very proud as a former Pennsylvanian and former chairman of the PA Teenage Republicans (don’t tell anyone!))—that slate would not be signed by the Governor, and under the ECA, couldn’t compete with the certified slate, which, as of now, looks certain to satisfy the safe harbor requirements. …


Image for post
Image for post
NYTimes.com

Assuming the numbers hold as they now stand, it’s over. There are no moves that Trump could make that can overcome this result. The reason(ing) is this:

Everyone’s been focused on the vote count and the resulting electoral vote count. By that account, if the undecideds break NV/AZ/PA/GA for Biden, he has 306. With just NV and AZ he has 270. But PA looks like a safe buffer.

Jason Harrow and I have been engaging the fantasy of some — Mark Levin, Donald Trump, Jr., Sean Hannity, Lindsay Graham — that state legislatures reject the vote in their slate, and send an alternative slate for Trump. We published an essay in Lawfare Blog today that showed why our elector’s case, Chiafalo v. …


This is either the calm before the storm or the beginning of the end.

Let’s start with the latter, and more hopeful: The “red mirage” is fading, not quickly enough, given the choice by states not to update their procedures for counting votes. If it resolves soon, with Biden winning Nevada and Arizona, plus one between Pennsylvania and Georgia, it will be over.

Yet there’s a haunting that some of us have been talking about for months and that just won’t go away: The threat that state legislatures will reject the vote of the people, and select their own slate of electors. I wrote about this in The Atlantic last month. …


Image for post
Image for post
NYTimes.com

We (EqualCitizens and a bunch of HLS law students) spent an extraordinary amount of time working through just what might happen if the election was close. We prayed the election would not be close, especially if Congress remains divided. Our prayers were not answered.

I’m hopeful that this gets resolved quickly, and in the most boring way possible. But it is critically important that people understand how things could go sideways, and what the arguments either way could be. We have a website that gathers a bunch of relevant information about what might happens. …


Image for post
Image for post

On Tuesday, voters in Massachusetts will have the chance to pass Question 2, which will produce Ranked Choice Voting for most state and federal offices. That reform will give voters the chance to rank their preferences when casting their ballot for candidates — an opportunity which is especially important when more than two candidates are running. In this year’s primary in the Fourth Congressional District, for example, there were nine candidates competing to become the Democratic nominee. The winner prevailed with less than 23% of the vote. And voters in that district had an incredibly difficult strategic choice to make — not “who do I support?,” …


Image for post
Image for post
©Lessig CC-BY

The above graph updates the analysis from the article below. In essence, it is calculating the percentage of the US population living in areas where Rt>1, based on the data from RT.LIVE (which has nothing to do with Russia Today).

The data behind this graph is here. Read the article to understand this in more detail:


Image for post
Image for post
credit: AP

I rarely yell at my TV. I did so during the debate last night. Vice-President Pence taunted Senator Harris as Trump had taunted Biden — are you “going to pack the court if Judge Amy Coney Barrett is confirmed?”

Harris responded as Biden had responded: the people should have a voice. She added an interesting nugget of history — Lincoln, in 1864, even with his own party in control in the Senate, believed it wrong to appoint a justice with less than a month before the election.

But Harris didn’t even mention a little-bit-more recent snippet of history: Merrick Garland. The argument that she didn’t make, just like Biden before her, was that the Republicans denied President Obama his moderate pick 9 months before the 2016 election because of the “principle,” as the McConnell put it, that the people should speak first. It is utter hypocrisy now to ignore that same principle. That hypocrisy is what’s packing this Court — giving a man who didn’t even win a plurality in 2016 the chance to appoint 1/3 of the Supreme Court. And if — as I believe the Democrats should say—the Republicans stop that hypocrisy, and let the people’s choice determine this next appointment, then the Democrats should openly commit that they won’t pack the Court.


Image for post
Image for post
Ginsburg — John Mathew Smith (CC BY-SA); McConnell — Kentucky National Guard Public Affairs Office (CC BY)

There’s no doubt that the death of Justice Ginsburg has radically changed the dynamics of the 2020 election. But there is no reason to believe that Justice Ginsburg’s seat is lost to a Trump appointee. Mitch McConnell is playing a difficult game. At each stage between now and January 20, his actions are significantly constrained.

Before the Election

It would make no sense for McConnell to bring a nominee to the floor before the election. That’s no gain for the Republicans, but only significant costs.

It’s no gain, because by filling the seat, McConnell eliminates the turnout effect that this event is certainly going to have for Republicans. There are many who were on the fence about Trump who will now turn out for the Supreme Court seat alone. …

About

Lessig

law professor, activist.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store