Lawrence Lessig: No More “Loophole Presidents”

With Hillary Clinton’s lead surpassing President-elect Donald Trump by two million in the popular vote, the role of the electoral college is being debated everywhere.

Lessig spoke to Jim Braude and Margery Eagan on Boston Public Radio over the phone while on a trip to Iceland. Highlights below.

JIM: Thank you so much for joining us.

MARGERY: Before we ask you to make your case, professor, what are you doing in Iceland?

LESSIG: I’ve been here with my family for the whole term— I’m on sabbatical and there’s an incredible process of constitutional change happening here, I just wanted to be here and watch it.

JIM: You haven’t left the country for good, is that correct?

LESSIG: No, I’m coming back, don’t worry.

MARGERY: Alright, let’s hear your case about the electoral college.

LESSIG: When the framers set up the electoral college, they set it up because they didn’t know their first-best choice, —Democratic selection of the president— would work! No country had ever done it before. They said, okay, we’ll set up this procedure, states can choose the electors that they want, and then the electoral college is supposed to make a judgement, look at the choice, and decide whether to affirm it. ...it’s kind of the way a judge looks at a jury verdict, it says, okay, here’s what the jury says; is there any reason why I am compelled to overturn it? That presumption, that the Democratic choice should win has occurred in the electoral college in all but two cases. Twice in our history has the electoral college reversed what the popular will said. Once in 1888, in a completely corrupt play by [political organization] Tammany Hall to steal the election from Grover Cleveland, and once in 2000 with George Bush beating Al Gore. My point is—look, those precedents should not outweigh a fundamental value in American democracy, which is that all of our votes should count equally, one person, one vote. If you count our votes equally, Hillary Clinton is the clear winner. If she’s the winner, then the electoral college should reflect that by not vetoing the people’s choice.

JIM: Are you suggesting that electors are mandated, that they’re compelled to do it because of the popular vote outcome?

LESSIG: If I were an elector, I would think, what are the values that I need to uphold in exercising my judgement? Those values should reflect a fundamental principle of equality of citizens— the one person, one vote principle. So I should not vote in a way that allows that principle to be overrun. That’s why a lot of the people pushing on the electors to defect, as they say, are calling on them to vote for somebody other than Donald Trump. Maybe Paul Ryan, or somebody else to at least throw it into the House that Donald Trump is not elected. I don’t think they have the moral standing to take that position. I think what they ought to say is, we need to vote for a person who the people have supported, and the principle that shows us which one is supported is the person who has won by more than two million votes.

MARGERY: Are you arguing this because you don’t like Donald Trump, or because she’s got a wider margin than others in the past, or what?

LESSIG: I certainly did not support Donald Trump for president. The other way of making this case is to say, of all the presidential nominees that the electoral college should think long and hard about affirming, this is at the top of the list. This person has incredible questions of character that I think ought to weigh on the electoral college, but that’s not my argument. Sixty-two million Americans believe he’s fit to be president, and who am I to disagree with them. I’m not saying because he’s not qualified, I’m saying because the principle of equality, one person, one vote, is fundamental. If they can vote in a way to affirm it, which they easily can, they ought to, so that the person who won the popular vote, clearly won the popular vote, should be president.

MARGERY: I thought that this decision by the Supreme Court in the 1960s had to do with redistricting on a local level, and the electoral college was a stop-gap for people to prevent the people from going crazy, to prevent somebody totally unqualified from getting into office. The constitution and the one-person, one-vote thing from the ‘60s seems to say something else.

LESSIG: You’re exactly right. These are two principles that are in some tension. The Supreme Court in Baker vs. Carr (1962) announced this principle. The court realized that it was going to be working through an extraordinary range of governmental structures and remaking them, on the basis of one person, one vote. Originally, it was about how legislative districts can be crafted, then they ask the question, could states create senates, like the United States Senate, which were not equally populated. The answer was no, they could not, even though the United States does, they couldn’t do it at the state level. This principle has even been applied in the context of the electoral college, so when Illinois set up a procedure by which electors had to get access to the ballot, the court applied a one person, one vote principle to strike down that procedure, because it didn’t uphold this fundamental idea. This is a modern idea, no doubt, but it is fundamental to our understanding of the constitution. When the framers created the electoral college, in 1787, there was no 14th amendment to the constitution that created this principle of equality. What we have to do in our tradition is to ask ourselves what is more fundamental. In my view, the principle of equality is fundamental, and we ought to be counting every citizen equally and selecting every citizen’s president. That is who the president is—the person who has to stand for everybody in the nation, not just those who happen to live in the middle part of the country.

JIM: Hillary Clinton didn’t run based on the principles you’re suggesting, neither did Donald Trump. You’re suggesting, essentially, that the rules of the game be superimposed after the fact, on an election that was not run like you think it should have been run?

LESSIG: Look, if we had a history of every third or fourth president being elected as this kind of loophole president, [with] a minority popular vote, but majority electoral college, that would be a strong argument. You’d say, look, America has accepted the idea that every once in awhile we’re going to have a loophole president, somebody who doesn’t have the popular support. But my point is, that is not our tradition. Our tradition is, the person who gets to be president has won the popular vote, and by virtue of the way the electoral college is set up, also wins the electoral college vote. What we’re talking about is this incredibly rare exception, which for those of us living now, unfortunately is repeating itself, and may now repeat itself pretty frequently. That’s the reason to have an argument right now about what the principle should be when the loophole president is selected.

I think we should embrace the idea, from now going forward, that we will not allow the electoral college —maybe in extreme cases, this isn’t true, where it’s really close, like Bush v. Gore, basically a tie, so let the system works the way it works— but in an extreme case, the question is, how should they exercise their judgement? I’m not saying that it’s new that they should be exercising their judgement, I think many people are conceding that the constitution means [for] them to exercise their judgement.

To hear Lawrence Lessig’s full interview with Boston Public Radio, click on the audio link above.