![]() Book cover | |
Authors | Lawrence Lessig and Matthew Seligman |
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Language | English |
Publisher | Yale University Press |
Publication date | February 13, 2024 |
Publication place | New Haven, Connecticut |
Media type | Print (hardcover), e-book, audiobook |
Pages | 176 |
ISBN | 978-0300270792 |
How to Steal a Presidential Election is a 2024 non-fiction book written by Lawrence Lessig and Matthew Seligman which examines the various legal frameworks that the loser of a presidential election in the United States could use to assume office in spite of the election results. [1] Cataloging several courses of action a losing presidential election candidate or members of their party could take in the aftermath of a contested election, the book also examines critical failures in the Electoral Count Act of 1887 (ECA) and the Electoral Count Reform Act of 2022 (ECRA). The book was inspired by the events of the 2020 United States presidential election and the subsequent attack on the Capitol. [2]
Lessig and Seligman propose a realistic scenario for the 2024 election as the basis for their legal theories. In this scenario, Donald Trump has won the popular vote nationwide while Joe Biden has secured an Electoral College majority with 274 electoral votes. The election turns on the state of North Carolina where Biden has narrowly won the popular vote and thus the state's 16 electoral votes. The state's governor-elect is loyal to former president Trump and posits that the election in the state was marred by fraud.
Lessig and Seligman submit six viable legal theories for how a determined losing candidate and his loyalists could undermine the results of the election to assume power. [3]
1. "Faithless" electors strategy - coercing electors to vote for the losing candidate. While the Supreme Court decided in Chiafalo v. Washington that a state could enforce an elector's pledge to vote for a specified candidate, not all states have laws requiring electors to do as such. Some states may bestow fines on electors who don't vote as they pledged but not all states have a mechanism for replacing them, allowing electors in some states to vote contrary to their pledge without meaningful repercussions.
2. Rogue governors strategy – a governor aligned with a losing candidate could certify and submit to Congress a slate of electors that is contrary to the popular vote. While Congress could vote to reject this slate, a vote would require the majorities of both the House of Representatives and the Senate. If one house refuses to reject the slate, then the slate is not rejected. Federal courts may intervene to reverse the governor's decision but the court's inability to sufficiently enforce its ruling would likely not mean a failure of the gambit.
3. Force majeure strategy – the ECRA creates an ability for states to extend voting in a presidential election in the event of "force majeure events that are extraordinary and catastrophic." However, Congress failed to define or provide a list of situations that meet this criteria. Furthermore, Congress did not require judicial review of any state-level determination of a force majeure. A state legislature aligned with a losing candidate could, in theory, declare a force majeure (more than likely citing voter fraud) as the winning candidate becomes clear, allowing time for more voters to cast their ballot for the losing candidate. Likewise, a state legislature could simply refrain from declaring force majeure in the event of a catastrophic occurrence if it believes that an extension of voting would not benefit their preferred candidate.
4. Who's the judge strategy – a state could feasibly declare that the state legislature, not an independent agency that administers elections, is the final certifying authority for election results. This would give the legislature the ability to accept or reject election results. A state legislature aligned with a losing candidate could wrongly determine that the loser of the popular vote actually won, likely by citing fraud, a tainted process, or other irregularities.
5. The nuclear option – a state legislature could simply cancel an election before Election Day and assign the state's electors to its preferred candidate. The Constitution does not require states to hold popular elections to select electors. A state legislature retains the ability to select electors without popular input.
6. The most dangerous strategy – a state legislature may direct electors to vote for a specified candidate regardless of the outcome of the state's popular vote. A state may replace electors who fail to vote as directed by the legislature. Thus, a legislature could simply rule that electors must vote for a candidate even if that candidate clearly did not win the election in the state and replace electors who fail to vote in that fashion. Lessig and Seligman argue that under precedent set by Chiafalo v. Washington and Colorado Department of State v. Baca this course of action is perfectly viable.
How to Steal a Presidential Election has been received generally positively by critics. It has 3.98 stars on Goodreads. [4] Lloyd Green of The Guardian called it a "granular and disturbing examination of the vulnerabilities and pressure points in the way the US selects its president." [5]
The 1812 United States presidential election was the seventh quadrennial presidential election. It was held from Friday, October 30, 1812, to Wednesday, December 2, 1812. Taking place in the shadow of the War of 1812, incumbent Democratic-Republican President James Madison defeated DeWitt Clinton, the Lieutenant Governor of New York and Mayor of New York City, who drew support from dissident Democratic-Republicans in the North as well as Federalists. It was the first presidential election to be held during a major war involving the United States.
Lester Lawrence Lessig III is an American legal scholar and political activist. He is the Roy L. Furman Professor of Law at Harvard Law School and the former director of the Edmond J. Safra Center for Ethics at Harvard University. He is the founder of Creative Commons and of Equal Citizens. Lessig was a candidate for the Democratic Party's nomination for president of the United States in the 2016 U.S. presidential election but withdrew before the primaries.
In the United States, the Electoral College is the group of presidential electors that is formed every four years for the sole purpose of voting for the president and vice president. The process is described in Article II of the U.S. Constitution. Each state appoints electors using legal procedures determined by its legislature, equal in number to its congressional delegation totaling 535 electors. A 1961 amendment granted the federal District of Columbia three electors. Of the current 538 electors, a simple majority of 270 or more electoral votes is required to elect the president and vice president. If no candidate achieves a majority there, a contingent election is held by the House of Representatives to elect the president and by the Senate to elect the vice president. Federal office holders, including senators and representatives, cannot be electors.
In United States presidential elections, an unpledged elector is a person nominated to stand as an elector but who has not pledged to support any particular presidential or vice presidential candidate, and is free to vote for any candidate when elected a member of the Electoral College. Presidential elections are indirect, with voters in each state choosing electors on Election Day in November, and these electors choosing the president and vice president of the United States in December. Electors in practice have since the 19th century almost always agreed in advance to vote for a particular candidate — that is, they are said to have been pledged to that candidate. In several elections in the 20th century, however, competitive campaigns were mounted by candidates who made no pledge to any presidential nominee before the election. These anomalies largely arose from fissures within the Democratic Party over the issues of civil rights and segregation. No serious general election campaign has been mounted to elect unpledged electors in any state since 1964.
In the United States Electoral College, a faithless elector is an elector who does not vote for the candidates for U.S. President and U.S. Vice President for whom the elector had pledged to vote, and instead votes for another person for one or both offices or abstains from voting. As part of United States presidential elections, each state selects the method by which its electors are to be selected, which in modern times has been based on a popular vote in most states, and generally requires its electors to have pledged to vote for the candidates of their party if appointed. A pledged elector is only considered a faithless elector by breaking their pledge; unpledged electors have no pledge to break. The consequences of an elector voting in a way inconsistent with their pledge vary from state to state.
The Electoral Commission, sometimes referred to as the Hayes-Tilden or Tilden-Hayes Electoral Commission, was a temporary body created by the United States Congress on January 29, 1877, to resolve the disputed United States presidential election of 1876. Democrat Samuel J. Tilden and Republican Rutherford B. Hayes were the main contenders in the election. Tilden won 184 undisputed electoral votes, one vote shy of the 185 needed to win, to Hayes' 165, with 20 electoral votes from four states unresolved. Both Tilden and Hayes electors submitted votes from these states, and each claimed victory.
The election of the president and the vice president of the United States is an indirect election in which citizens of the United States who are registered to vote in one of the fifty U.S. states or in Washington, D.C., cast ballots not directly for those offices, but instead for members of the Electoral College. These electors then cast direct votes, known as electoral votes, for president, and for vice president. The candidate who receives an absolute majority of electoral votes is then elected to that office. If no candidate receives an absolute majority of the votes for president, the House of Representatives elects the president; likewise if no one receives an absolute majority of the votes for vice president, then the Senate elects the vice president.
Following is a table of United States presidential elections in Alabama, ordered by year. Since its admission to statehood in 1819, Alabama has participated in every U.S. presidential election except the election of 1864, during the American Civil War, when the state had seceded to join the Confederacy.
Following is a table of United States presidential elections in Colorado, ordered by year. Since its admission to statehood in 1876, Colorado has participated in every U.S. presidential election.
Following is a table of United States presidential elections in Delaware, ordered by year. Since its admission to statehood in 1787, Delaware has participated in every U.S. presidential election.
Following is a table of United States presidential elections in Indiana, ordered by year. Since its admission to statehood in 1816, Indiana has participated in every U.S. presidential election.
Following is a table of United States presidential elections in Louisiana, ordered by year. Since its admission to statehood in 1812, Louisiana has participated in every U.S. presidential election except the election of 1864, during the American Civil War. At that time, Louisiana was controlled by the Union and held elections, but electors were not ultimately counted.
Following is a table of United States presidential elections in New York, ordered by year. Since its admission to statehood in 1788, New York has participated in every U.S. presidential election except the election of 1788–1789, when it failed to appoint its allotment of eight electors because of a deadlock in the state legislature.
Following is a table of United States presidential elections in South Carolina, ordered by year. Since its admission to statehood in 1788, South Carolina has participated in every U.S. presidential election except the election of 1864 during the American Civil War, when the state had seceded to join the Confederacy.
In the 2016 United States presidential election, ten members of the Electoral College voted or attempted to vote for a candidate different from the ones to whom they were pledged. Three of these votes were invalidated under the faithless elector laws of their respective states, and the elector either subsequently voted for the pledged candidate or was replaced by someone who did. Although there had been a combined total of 155 instances of individual electors voting faithlessly prior to 2016 in over two centuries of previous US presidential elections, 2016 was the first election in over a hundred years in which multiple electors worked to alter the result of the election.
Equal Citizens is an American non-profit, non-partisan group that is "dedicated to reforms that will achieve citizen equality". It was founded in late 2016 by Harvard Law professor Lawrence Lessig to continue the effort to bring about the set of reforms he proposed during his 2016 presidential campaign. Notably, as its inaugural campaign, the group launched "Electors Trust" immediately after the 2016 general election. They did this to provide free and strictly confidential legal support to any elector who wished to vote their conscience. Working together with several other groups, such as the Hamilton Electors and celebrities, the campaign resulted in the largest number of "faithless" electoral votes ever cast in a single presidential election.
Chiafalo v. Washington, 591 U.S. ___ (2020), was a United States Supreme Court case on the issue of "faithless electors" in the Electoral College stemming from the 2016 United States presidential election. The Court ruled unanimously, by a vote of 9–0, that states have the ability to enforce an elector's pledge in presidential elections. Chiafalo deals with electors who received US$1,000 fines for not voting for the nominees of their party in the state of Washington. The case was originally consolidated with Colorado Department of State v. Baca, 591 U.S. ___ (2020), a similar case based on a challenge to a Colorado law providing for the removal and replacement of an elector who does not vote for the presidential candidate who received the most votes in the state, with the electors claiming they have discretion to vote as they choose under the Twelfth Amendment to the United States Constitution. On March 10, 2020, Justice Sonia Sotomayor recused herself in the Colorado case due to a prior relationship to a respondent, and the cases were decided separately on July 6, 2020. Baca was a per curiam decision that followed from the unanimous ruling in Chiafalo against the faithless electors and in favor of the state.
The Eastman memos, also known as the "coup memo", are documents by John Eastman, an American law professor retained by then-President Donald Trump advancing the fringe legal theory that a U.S. Vice President has unilateral authority to reject certified State electors. This would have the effect of nullifying an election in order to produce an outcome personally desired by the Vice President, such as a result in the Vice President's own party's favor, including retaining himself as Vice President, or if the Vice President is himself the presidential candidate, then to unilaterally make himself president.