Deep Dive with Shawn C. Fettig

Divide and Conquer: Presidential Election Law (w/ Dr. Norman Williams)

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What if state legislatures could override the popular vote, revolutionizing the American electoral system? What if Donald Trump contests each state election in bad faith? What if Trump demands Congress refuse to certify an election he lost? What if Trump wins and summons mobs into the streets as a show of force? And, how does the American electoral system allow for, even sometimes promote, this type of chaos? In this episode, Dr. Norman Williams, a distinguished law professor at Willamette University and expert on US election law, stops by to discuss the intricacies and vulnerabilities of the Electoral College, as well as other election laws and processes. We examine America's electoral mechanics and uncover why, despite its flaws, this system persists over a straightforward nationwide popular vote. Dr. Williams put the historical "misfires" of the Electoral College into some context, examining past elections where candidates secured the presidency without the popular vote, highlighting the significant political shifts these outcomes create.

We also explore the potential for transformative reform, focusing on initiatives like the National Popular Vote Interstate Compact, which seeks to align the Electoral College with the popular will. And, we consider alternative reforms and the challenges of overcoming entrenched political interests that favor the status quo. With state voting systems and election laws intricately linked to partisanship and race, we discuss how these elements shape electoral dynamics, emphasizing the Supreme Court's complex role in distinguishing between race-based and partisan-based laws.

Finally, we talk about the empowering act of voting and civic engagement. Understanding the weight of each vote becomes crucial in the face of restrictive election laws and voter purges. Highlighting the independent state legislature doctrine's potential impact, Dr. Williams and I reflect on its implications for federal elections and the enduring principles of democracy. Vote like democracy depends on it. 

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Dr. Williams:

for our upcoming presidential election. The real fear is that a state holds its popular election. All 50 states plus DC are conducting a popular election this year, but the legislature of a state doesn't like the results that. You know, to be blunt here, that the Republican legislature of Arizona may not like it if Kamala Harris wins the popular vote in Arizona. And so the real danger here is the legislature after the popular election says you know what? We don't care about the popular election. We are going to legislatively appoint Republican electors and they will invoke the independent state legislature doctrine to say hey, ultimately, under Article II, section 1, it's entrusted to us, the legislature, to decide how to select the electors, and we are deciding to select these electors regardless of the outcome of the popular election.

Shawn:

Welcome to Deep Dive with me, sea C Fettig. The presidential election is just two days away and if you're anything like me, you're anxious, maybe even afraid, about not just what the next couple of days hold, but months and maybe even years. The electoral landscape in the United States has changed dramatically during the Trump era, from one of relative decorum, stability and respect for the electoral process, the office of the presidency, peaceful transitions and, well, democracy itself, to utter chaos Under Trump's leadership. The Republican Party fully one-half of the two major parties in our American political system has embraced the lie that American elections are rigged against them. They've manipulated laws and processes to benefit themselves and or so confusion and refused to accept defeat. Two of the past six presidential elections have resulted in Republicans taking the presidency despite losing the popular vote, and we may be on track this year for that to happen again. The last presidential election was overshadowed by an insurrection attempt by Trump, the losing candidate, and every election since has been an opportunity taken on the part of Trump and the Republican Party to further ratchet up the temperature, spread disinformation and sow doubt about our system. Trump is signaling now that he plans to contest the outcome of this election should he lose again, which means that, regardless of whether or not he wins, the next two months at a minimum are going to be hell.

Shawn:

In anticipation of that which is, and will be driven by quirks of our American electoral system, I thought it might be a good idea to focus on that electoral system, our electoral laws, what some of the vulnerabilities are and aren't, and how they can be, have been and probably will be exploited. To help me understand all of this, my guest today is Dr Norman Williams, professor of law at Willamette University, director of the Center for Constitutional Government and author of numerous pieces of research about American electoral law, including the forthcoming book who Chooses the Battle for Control of the Presidential Nomination Process. All right, if you like this episode or any episode, please give it a like, share and follow on your favorite podcast platform and or subscribe to the podcast on YouTube. And, as always, if you have any thoughts, questions or comments, please feel free to email me at deepdivewithshawn at gmailcom. Let's do a deep dive at gmailcom. Let's do a deep dive, dr Williams, thanks for being here.

Dr. Williams:

How are you, Se? Thank you for having me on Doing well.

Shawn:

Yeah, absolutely. We're heading into another election. It's just around the corner, and an election in which the Electoral College might play a significant role, in that the Republican candidate, trump, could quite possibly win the presidency again without winning the popular vote again. Election rules are at the forefront of the conversation, with some states having implemented new voting laws, some of which have occurred in just the past month or so, and there is some doubt being cast on election integrity already before the votes have been counted, suggesting that we may be in for a repeat of the events following the 2020 election, and so I thought it might be useful to take a closer look at the unique way that the United States conducts elections, because it is somewhat unique to democracies, why we do it this way, if it needs some reform and, if so, what those reforms might look like and, I suppose, to what end. And, to my mind, you're the man to talk to about this, so I'm glad to have you here.

Dr. Williams:

Well, thank you for having me on and would love talking about the Electoral College.

Shawn:

Yeah, so let's start with the Electoral College. It's not, you know, the American election system is not the Electoral College, is not the end-all, be-all of it. There's, you know, a lot of election law and I want to talk about in our discussion here today about our 50 different states and our different laws that apply to each of those and the implications to that. But let's start with the Electoral College, because there's been a lot of attention paid to it since about 2016. We've been talking a lot about the Electoral College, primarily because Donald Trump didn't win the presidency because of the Electoral College. He didn't win the popular vote. He may be on track to do that again. I'm not entirely sure that everybody understands the Electoral College, and not just the Electoral College, but why we have it. I'm wondering if you could help us with that.

Dr. Williams:

Be delighted to, and I think it's really important to understand what we mean when we say the Electoral College, because, as I've discovered in talking with a lot of voters over the years, different voters mean different things when they say oh, the electoral college is the problem here, and perhaps the best way to understand what the electoral college is is to understand what it isn't. One way we could elect the president is simply to have a nationwide popular election. Count up all the votes for Kamala Harris nationwide, count up all the votes for Donald Trump nationwide, and whoever got the most votes becomes president. That's how France does it. That's how a number of other Western democracies do it. That's not how the United States does it.

Dr. Williams:

The Electoral College is a group of electors who are selected on a state by state basis. Each state gets a number of electors that corresponds to how many representatives and senators they have in Congress. So, for instance, oregon gets eight electoral votes this year, but California gets 54. Each state then gets to decide how its electors are chosen. 48 states plus the District of Columbia use a winner-take-all system with first-past-the-post voting, which means plurality voting. So if Kamala Harris gets 44% of the vote in California, but Donald Trump gets 43% of the vote in California. Even though Kamala Harris wouldn't have gotten a majority of the vote in that scenario, she would end up winning all 54 electoral votes of California. Again, all 48 states plus DC use that system. Maine and Nebraska use a hybrid system that can allow both candidates to split the vote, which is likely this year in both states.

Dr. Williams:

These electors are, quite frankly, probably nameless, faceless to most listeners here. Even the most politically sophisticated voters in the country probably can't identify the presidential electors for their party by name, and there's a reason for that, which is these electors are typically loyal partisans who can be trusted to vote for the presidential candidate of the party that selected them, and so Kamala Harris, for instance, is extremely likely to win all 54 electors from California. Those 54 individuals are all going to be loyal Democrats who basically can be trusted to all cast their vote for Kamala Harris when the Electoral College meets in mid-December. In mid-December and then on January 6th, congress gets together, opens all the ballots from each state, counts them up, and whichever candidate has a majority of electors becomes president, and so that's a very different system than a direct nationwide popular vote.

Shawn:

So I want to drill into this just a tiny bit, because when we talk about the 2020 election, a lot of emphasis probably rightly so is on January 6th and that kind of last step, which is wherein Congress certifies the vote right, the electoral vote anyway. But, as you said, the electors actually gather in mid-December and cast their vote, and there was a little bit of energy at that time put into kind of manipulating how electors vote or who the electors would be that did vote in mid-December and we don't really talk a lot about that, primarily because there wasn't too much energy put into that and then January 6th kind of sucked all the oxygen out of the room. But is it entirely true that electors could gather in mid-December and cast their vote unfaithfully for the candidate that did not win their state and essentially hand the election to someone that did not win both the popular or the electoral vote?

Dr. Williams:

In theory, yes. In practice, highly unlikely. So the framers of the US Constitution in 1787, at the Constitutional Convention, envisioned the electors as being independent, free actors. That almost was immediately not the case. Even in the very first presidential elections at the end of the 18th century and beginning of the 19th century, these electors were dedicated partisans. Now, over history, some of these dedicated partisans have been what we call faithless electors, who vote for someone other than the candidate to whom they were pledged. In 2016, for instance, a number of the electors pledged to Hillary Clinton actually ended up casting their vote for someone else.

Dr. Williams:

Now, a number of states have laws that require electors to vote for the candidate to whom they are pledged, either on pain of being fined or, alternatively, authorizing the secretary of state or some other state official to immediately yank that elector as they're trying to vote for someone else and replace that elector with an alternate who will obey their pledge.

Dr. Williams:

Several years ago, the US Supreme Court, in a case called Chiafalo v Washington, upheld these state laws. Basically said, if a state wants to ban having faithless electors, a state can do so, upholding Washington states and Colorado's bans on faithless electors and a number of other states not all states, but a number of other states have similar provisions, and so, while it's theoretically conceivable that the losing campaign could try to lobby an elector to switch their vote, in some states that's legally prohibited, and even in the states that don't prohibit it, that's legally prohibited. And even in the states that don't prohibit it, these are, again dedicated partisans. It's highly unlikely that Kamala Harris's campaign, for instance, could persuade a Trump elector to vote for Harris rather than Trump, or vice versa. If this is a really tight election, as it's shaping up to be, if this is a 278, excuse me, a 272 to 268 electoral college split, maybe the campaigns will try to lobby an elector or two to switch their vote.

Shawn:

But I think that would be highly, highly unlikely to succeed, right, yeah, I mean, that's an important distinction, because I'm not sure it's unlikely that one of the campaigns might not try it. Yeah, the success of it does seem probably like what you're saying is not likely. That's right. So the Electoral College, at least to my understanding of it, used to be an anomaly. It's not that we've had a significant number of elections presidential elections in our history wherein a candidate has won the popular vote but lost the electoral vote or Electoral College vote, but it does.

Shawn:

We are potentially staring down the third time that this has happened in this century, if Donald Trump does indeed win the Electoral College but lose the electoral vote, but loses the popular vote, as he did in 2016. And it starts to feel like it's then occurring with a frequency that I'm not sure it wasn't intended for, but certainly doesn't feel fair to people on the face of it. And that's notwithstanding the importance or the value that people put in the United States on the ideal of one person, one vote. And so I think, if we think about this in the reverse because I think it's easy to make arguments for why this feels unfair, but if we think about this in the reverse and maybe put this in the laps of the founders. The question I have is what's the argument for its fairness in the first place?

Dr. Williams:

Yeah, it's an excellent question and it's one, quite frankly, that we've been debating since 1787. The Electoral College, almost immediately after its creation, started coming under attack or scrutiny. There have been multiple proposed constitutional amendments for over 200 years, introduced in Congress to abolish the Electoral College. President Andrew Jackson proposed its abolition, but those proposed constitutional amendments, although they are the most numerous type of constitutional amendment proposed, have gone nowhere. Have gone nowhere in part, I think, because the Electoral College is viewed through this partisan lens right. So right now, democrats, understandably, are very hostile to the Electoral College, which they've seen as working to their disadvantage, preventing the election of Al Gore in 2000,. Preventing the election of Hillary Clinton in 2016, even though both of them won more popular votes than the Republican candidate who then goes on to become president George W Bush in 2000, donald Trump in 2016. And therefore, republicans love the Electoral College right now, and I think that's in some sense an unfortunate and sad consequence of the partisan times in which we live, because the Electoral College doesn't necessarily have to favor either party. It just happens, given the geographic distribution of both parties' voters these days, that it tends to favor the Republicans over the Democrats, but that wasn't always the case, there was a period in time in which it was favoring Democrats over Republicans and over Whigs and Federalists. So I try to look at the Electoral College not through the prism of one single election and which party is advantaged or disadvantaged by it, but rather over time.

Dr. Williams:

And the Electoral College certainly can produce what we call a misfire, meaning the candidate who wins a majority of the electoral votes came in second in the popular vote. That's happened five times in American history 1876, 1888, both of which elections I would minimize the significance of which for reasons we can talk about and then 2000,. 2016 are the most recent examples. And then the fifth example is actually 1824, which I would also minimize for an entirely different reason, namely the fact that there weren't popular elections in every state back then. So we really don't know which of the candidates truly was the most popular nationwide, but certainly 2000 and 2016, because they're so recent and because they both benefited the Republicans at the expense of the Democrats, are well as in practice, that a candidate can win the White House but have received fewer popular most American voters, is the winning candidate then governed like they had some wild mandate to do so.

Dr. Williams:

Donald Trump governed as if he had won 50 states and 140 million popular votes when in fact he'd come in second in the popular vote and he won 30 states vote. And he won 30 states, but some of those states he won very narrowly but he nevertheless governed in a very conservative, conservative fashion. Similarly, george W Bush governed ina way that you would think, oh, this person must have won an incredible electoral mandate. And I think that's the real kind of contributes to.

Dr. Williams:

The problem here is that if it's a tight election, if it's a 50-50 election, we need some system to break the tie and choose a winner. We can't just keep re-voting, re-voting, re-voting. And it's not, at least in the abstract, all that problematic in my mind if George Bush was deemed the president when he won only 500,000 more votes nationwide out of 100 million cast nationwide. I mean, that's a close popular election in 2000. And it wouldn't have been nearly so problematic if George Bush had taken the White House and said you know what I'm going to govern as a centrist, I'm going to try to meet the Democrats at least halfway on everything. I'm not going to just try to ram down the throats of everyone tax cuts and a war in Iraq over the opposition, and so in some sense kind of the vitriol and ideological polarization of our politics also contributes to the sense of unfairness that comes from these misfires.

Shawn:

You did mention something early on in your response that I think is something that contributes to I'll speak for myself a certain sense of hopelessness, as it relates to just a general sense of fairness, regardless of your ideological leaning, and that is and it's not just built into the electoral design in the United States.

Shawn:

There's other institutions that suffer from this, so you know. You mentioned the fact that you know Republicans currently benefit, so you know they're kind of loathe to mess with the Electoral College, and yet we could imagine a period of time in which Democrats do, and then at that time they would be loathe to mess with the Electoral College if it benefits them. Another example I think about is the you know, the current calls for Supreme Court reform. Right, I feel like if the shoe were on the other foot and you know Democrats were benefiting, there would be more intense, perhaps, fervor on the Republican side to reform the court, but Democrats would be stonewalling that right. And so that means to me is that the design itself, and who benefits, is always going to forestall any potential change, meaningful change, in that moment. And so then that makes me wonder what other avenues we have to reform something like the Electoral College, or make it feel or even operate in a more fair way that are short of constitutional changes.

Dr. Williams:

It's an excellent question and there are a number of possible reforms out there, short of going through the Article 5 constitutional amendment process, which seems unlikely to be, successful, right?

Dr. Williams:

Yeah, one possible reform that's been talked about for the past 18 years is called the National Popular Vote Interstate Compact. So in the wake of the 2000 election, several academics said hey, you know, we can go to the individual states and to get the individual states to agree to appoint their electors in accordance not with the state vote but in accordance with the National Popular Vote, and we'll get states agreed to do this through an interstate compact. And this interstate compact will go into effect once a sufficient number of states holding 270 electoral votes or more sign on to it, at which point, in theory, the national popular vote would determine the winner of the election. Despite almost two decades of lobbying in favor of this, the proponents or the sponsors of the MPVC haven't gotten anywhere close to 270 electoral votes. A number of states have signed on to it, but almost all of those states are reliably Democratic or blue states.

Dr. Williams:

Again, because of the partisan lens through which the electoral college is viewed, I think it's highly unlikely that we're going to see the NPVC go into effect. And even if it goes into effect, for a variety of reasons, I'm worried about it Most notably. As I tried to tell my students. Can you imagine a world in which Oregon, which will overwhelmingly vote for Kamala Harris in a couple of weeks' time, would be obligated to cast its electoral votes for Donald Trump if he won more votes nationwide. Would you want the Oregon electors to follow through on the state's commitment to appoint electors to the candidate who wins the national popular vote? In that circumstance, and unsurprisingly, most of my students say no. I want my state's electors to vote for the candidate who wins my state, which then cycles us right back to the problem, which is, at the end of the day, our commitment to the national popular vote can't really be made effective through something less than a Article 5 constitutional amendment.

Dr. Williams:

There are, however, some lesser reforms. Each state gets to choose how its electors are appointed and, yes, 48 states have chosen a winner-take-all system, and that's really the problem here. That's what causes the misfires. The fact that 48 states use that process is exactly what can produce a situation in which the popular vote winner isn't necessarily the electoral college winner, and states could choose to adopt either the hybrid system that Maine and Nebraska use, which you have one elector for each congressional district and then the two senatorial electors are decided on a statewide basis, or, even better than that. You could go to a proportional system. So if what a proportional system means is if Republicans won 40 percent of the vote in California, they should get 40% of California's 54 electoral colleges. If Democrats win 45% of the vote in Texas, they should get 45% of Texas's 40 electoral votes. And so a proportional system, if it were adopted by every state, would almost virtually eliminate not entirely eliminate, but almost virtually eliminate any possibility of a misfire.

Shawn:

So you mentioned the states, and I'm glad you do, because we can pivot a little bit from the Electoral College to talk about something else that I think is a challenge, for I'm just going to say democracy.

Shawn:

If we think about democracy as being somebody who gets the most votes wins, and everybody that lives in a bounded area, a country, perhaps all has the same access or the same rights.

Shawn:

Perhaps all has the same access or the same rights. But the way that our system works in the United States is that we, essentially because we leave the Constitution, leaves election administration to each of the states. What that does is creates a system in which each of the states kind of conducts their own election. That is a bit that's insulated from elections in the other states, and so they have their own rules and that can affect who is eligible to vote at what time or who is ineligible to vote. They draw their own districts and those can be manipulated and they can change their voting rights at any time, and so that means if I live in one state one year, my eligibility to vote could be very different than if I move the next year. And that seems one ripe for manipulation, but two, it just seems very unfair. So I guess I'm wondering what thought you've given to the reason for a design like this and if you think that this is a challenge or if there is some redeeming quality here.

Dr. Williams:

Again an excellent question and you've really highlighted a fundamental point, which is we don't have one single presidential election. What we have is 51 state elections for the presidency. They just happen on the same day, but it's 51 different elections, 50 states plus the District of Columbia, and you're absolutely right that every state runs the presidential election in its state differently, different rules for who's eligible to vote. I mean these days we're close to universal suffrage in America, but we're not entirely there. In some states have different rules for who's deemed mentally incompetent, which can make it more difficult for elderly individuals suffering from dementia or Alzheimer to be eligible to vote in some states rather than other states. We have different rules in different states as to whether convicted felons can vote even after they've completed their sentence, and so different people can vote in different states. Equally importantly, different states run their elections differently in a way that can influence at the margin the outcome of elections.

Dr. Williams:

So eight states, including Washington and Oregon, for instance, use mail-in voting, which means the government, you know, mails the ballot to each voter at their home address and that person has a couple of weeks to fill out their ballot at leisure at home and then mail it back. That makes voting very easy, and turnout in states with mail-in voting is pretty high. At the opposite extreme are states like Georgia that make it very difficult to receive an absentee ballot, that require voters to go to an actual polling place to vote. They do have early voting, but you have to go to a polling place and some of the polling places are kind of sparse, which can generate very long lines. In 2020, there were reports that some voters in the Atlanta area had to wait in line for almost six hours before they were able to vote.

Dr. Williams:

Making voting difficult in some states is going to reduce turnout, as it in fact does, and so I do worry from a Democratic perspective from a small d Democratic perspective that different states are making it more difficult to vote than need be. They're doing so, quite frankly, for partisan reasons, which is nothing new. States tend to view changes in election law through a partisan lens and, most importantly, that, I think, works against the notion of a national popular election. If we're going to tally up all the votes nationwide and decide who the winner of the White House is, based on the national popular vote, we should have a uniform election system for that vote, and we don't have anything close to it these days, unfortunately, we don't have anything close to it these days, unfortunately.

Shawn:

You mentioned, in a roundabout way, you alluded to restrictive voting laws and their impact on voter turnout. So I think there's this conventional wisdom that the more restrictive voting laws are, the less, the lower turnout will be. And yet I think and this might be just restrictions related to methodologies and how we measure this type of thing, but I do feel like I've read that in some of the states that implemented more recent or restricted voting laws more recently so in like 2018 and 2020, this might have more to do with the candidates themselves, but that there was little to suggest that it impacted turnout in such a way that it affected the result or expected result in that state. You know, I'm wondering if you've done any of your own research or if you have any knowledge of the impact that contemporarily, restrictive voting laws seem to be having on turnout or outcome.

Dr. Williams:

It's a great question, and the short answer is no. I've now read a lot of political scientists' studies on this, and I now very much am sympathetic to the political scientists' difficulty in figuring out whether changes in election law have a partisan impact. The political scientists have really documented very thoroughly that the more restrictive you make the election process, the fewer people vote right, and the easier you make voting, the more people vote, but we don't know whether that has a partisan bias to it. We don't know whether the restrictive laws discourage more Democrats than Republicans from voting or whether they operate equally to make it difficult for both parties voters to vote, and the reason that's so difficult. We just don't know and there's no way to know because of the secrecy of the ballot whether, in fact, making it more difficult to vote in a particular state costs the Democrats more vote than the Republicans, at least not in any scientifically provable way.

Dr. Williams:

What I will say, though, is we have every reason to think that these restrictive rules adopted by, for instance, georgia and Texas do operate to the detriment of Democrats. How do we think that, or kind of know that? Well, it's because the Republican legislators think so, even though the Republican-dominated legislatures disclaimed any intent to have a partisan bias in adopting these reforms. It's noticeable that it's Republican legislatures in close states that are adopting these rules. It's not Democratic legislatures in close states adopting these rules. It's not even Republican legislatures in strongly Republican states adopting these rules, and so this pattern of Republican legislatures in relatively closely divided states adopting more restrictive voting rules at least suggests that the legislators themselves see a partisan bias in these rules. Now, whether they're right to think that again is difficult to know, but clearly the two parties see this through a partisan lens.

Shawn:

So and this is a pivot, I suppose, to the influence that the Supreme Court has on how we think about voting laws at the state level the Supreme Court has essentially established that race-based voting laws, or voting laws that are targeted to either depress or, I suppose, promote race-based voting, is suspect, right, but that partisan-based isn't so much so what you'll often hear for restrictive voting laws is one is that this is about election integrity.

Shawn:

Two, worst case it is partisan-based, but hey, that's legal, that it's never race-based. But we're living through a period of time in which the two parties and this might be evolving, especially if we cleave along gender, we'll see in the next handful of elections but that the Democratic Party is made up of a much larger proportion of people of color than is the Republican Party, right, and so it's difficult to say that partisanship doesn't have implications for race, right? So even if you are making decisions that are ostensibly partisan-based as it relates to your voting laws, it has a racial component to it or racial impact. Partisan-based as it relates to your voting laws, that has a racial component to it or racial impact, and I'm wondering if you've ever given thought to the impact that this has, or if this is just subterfuge, or if this does include some type of a race-based component that is just cloaked in partisanship.

Dr. Williams:

Yeah, again, an excellent question. Given our history as a nation, it's unsurprising that race and politics, or party affiliation, tend to overlap. They've always overlapped. In the wake of the Civil War, almost every African-American in the South was a Republican right, in the same way that today 92% of of African Americans vote Democratic right. The correlation between race and partisan affiliation is a little bit less for Latinos and for Asian Americans, but it exists.

Dr. Williams:

So race and politics overlap, and so therefore it's really difficult to tease out, either for courts or for the rest of us, to tease out kind of, the motivations of a legislature that is trying to restrict voting for entirely legitimate reasons, as they claim worrying about election integrity.

Dr. Williams:

Are they trying to disenfranchise or restrict voting by Democrats? Are they trying to disenfranchise, restrict voting by African-Americans? Right, and at least with regard to that latter two, it's really tough to separate those because those are going to be largely one in the same. To be very cynical and blunt about this, if you're trying to discourage or reduce the number of Democratic voters in Georgia, an obvious strategy is to reduce the number of African-Americans able to vote, and sadly, in my opinion, the US Supreme Court has been largely indifferent to that. Because the US Supreme Court has drawn this very formalistic line that you note of hey, it's not OK to disadvantage minority, racial minority voters, and that's just. I call it a very formalistic distinction because it's easy to say that distinction in that way. But because race and politics overlaps, those two collapse into the same thing. It's the same voters you're trying to disenfranchise in both circumstances. And so I think again, I think it's unfortunate for the Supreme Court to kind of try to draw that distinction when in practice that distinction doesn't really exist.

Shawn:

So let's stick with the Supreme Court. Can we talk about the independent state legislature theory? So let's stick with the Supreme Court. Can we talk about the independent state legislature theory? Oh, do we have to? Well, so here's why I guess I want to talk a little bit about it, and that is because I think most people, myself included, don't really understand this right Like this theory made its way up I think it's via North Carolina, if I'm correct to the Supreme Court recently.

Shawn:

It was dismissed, kind of on a formality, but without going into the substance of it because I don't trust myself to do that the narrative was that this posed a significant threat. Should the Supreme Court legitimize this independent state legislature theory that it posed a legitimate threat to the integrity of election results in future presidential elections? And then the narrative, once they dismissed it was well, the threat has been neutralized. And yet the way that they dismissed it doesn't actually foreclose the potential that this makes its way up on firmer ground again to the Supreme Court. That's my understanding of just the state of play, but I'm wondering if you could explain what this theory is and if it does in some way pose a threat to elections in the United States.

Dr. Williams:

I'm sure, happy to explain it, though I'm not happy with the ultimate conclusion which I'm going to offer, which is it does pose a threat still, even after the US Supreme Court's decision last year. So the independent state legislature doctrine is derived from the text of the two clauses in the US Constitution governing federal elections. The key clause for our purposes, talking about presidential elections, is Article 2, section 1, clause 2,. Article 2, section 1, clause 2, which reads each state shall appoint in such manner as the legislature thereof may direct a number of electors. Dot, dot, dot, dot, dot. The independent state legislature doctrine really seizes on the word legislature. There it says, when the constitutional text refers to the legislature, it means the state legislature and only the state legislature, not anything else, not the governor, not the state courts, not the state constitution, not Congress. That the use of that word legislature means that it is exclusively within the power of the state legislature to decide how its electors are appointed and that the legislature can operate free of any legal constraints, such as in the state constitution. And that same type of language exists in Article 1, section 4, which governs how US representatives and senators are elected in the states.

Dr. Williams:

In a case last year called Moore v Harper, the Supreme Court rejected a strong version of the independent state legislature. So North Carolina had redrawn its congressional districts for its US representatives in Congress. The state Supreme Court concluded that North Carolina's legislature had done so in a way that was partisan gerrymandering, in violation of the state constitution. At which point the legislature said, hey, we're not bound by the state constitution because this independent state legislature doctrine means that it's solely the legislature, free of any state constitutional restriction, that gets to decide how to draw its congressional districts. And again, the Supreme Court in Moore v Harper rejected that, said no, no, no. When the constitutional text refers to the legislature, it's referring to the legislature along with all legal limitations imposed by federal or state law on the legislature. And so Moore kind of suggests that, okay, a legislature has to comply with the state constitution and it's up to the state courts, in their ordinary course of judicial review, to enforce the state constitution and therefore set aside a state legislative statute. That's a partisan gerrymander of congressional districts. Now why I say that Moore should not give us any confidence about what happens in two weeks is Moore was limited to the question of does the state constitution bind the legislature Right now, in the presidential election context.

Dr. Williams:

State constitutions don't usually say anything about how the legislature is going to select presidential electors. You know, partisan gerrymandering is an issue that really only arises in the context of state legislative and congressional redistricting. It doesn't arise in the context of state legislative and congressional redistricting. It doesn't arise in the context of statewide elections like what we have for the presidency. And so the real fear is that, for our upcoming presidential election, the real fear is that a state holds its popular election. All 50 states plus DC are conducting a popular election this year, but the legislature of a state doesn't like the results. That. You know, to be blunt here, that the Republican legislature of Arizona may not like it if Kamala Harris wins the popular vote in Arizona, and so the real danger here is the legislature after the popular election says you know what, we don't care about the popular election. We are going to legislatively appoint Republican electors, and they will invoke the independent state legislature doctrine to say hey, ultimately, ultimately, under Article 2, section 1, it's entrusted to us, the legislature, to decide how to select the electors, and we are deciding to select these electors regardless of the outcome of the popular election in November.

Dr. Williams:

Now, I personally think that would be unconstitutional. But I can't point you to a US Supreme Court decision directly on point condemning that. Why? Because no state's ever done it, which is precisely why I think it's unconstitutional.

Dr. Williams:

We've had states legislatively appoint electors. South Carolina legislatively appointed its electors all the way through the Civil War, appointed its electors all the way through the Civil War. I mean literally from 1788 to the Civil War. South Carolina never conducted a popular election but rather selected its electors by the legislature. But South Carolina didn't conduct a popular election.

Dr. Williams:

We've never had a state that said you know what? We're going to appoint our electors in accordance with the popular election and then say after the election psych, we didn't really mean that we're going to appoint our electors in accordance with the popular election and then say after the election psych, we didn't really mean that we're going to appoint different electors to the candidate who lost our popular election. That's never been done and I think it would be unconstitutional for a state to do that this year. But it would be an open question and it would undoubtedly involve litigation that would probably end up at the US Supreme Court some point in late November, december and after Bush v Gore in 2000,. None of us are really enthralled with the notion of the US Supreme Court weighing in in the middle of a presidential election.

Shawn:

So I want to try something else.

Shawn:

Another scenario out on you and you tell me where I have some faulty logic or that I'm being hysterical, because I feel like the worst iteration or the worst manifestation of this doctrine is that it also removes judicial review from the process.

Shawn:

And I couldn't imagine the Supreme Court I imagine it would be somewhat loathe to reduce its own review in certain areas. But at the same time, if this doctrine holds or they were to hold that it means that state legislatures are kind of the only and final say on administration of elections within the state, only and final say on administration of elections within the state, then that potentially leaves open a challenge to any type of judicial review. So my first concern is the courts no longer play a role in administration of election laws. But then that also, to me, misses. The scarier part is it throws back a light on all of the previous judicial decisions that have actually kind of formed the playground that we're in or the sandbox that we're playing in. Things like the idea that you can't consider there can't be a negative race-based impact on the election laws that you impose, or that the idea of one person, one vote, etc. All of these things that essentially began with the court seem like they're suddenly vulnerable.

Dr. Williams:

They are, but not as much as I think you're fearing. And that takes us back to Moore v Harper, the US Supreme Court decision last year about the independent state legislature doctrine. So in Moore v Harper the Supreme Court majority expressly said state courts can use judicial review to enforce state constitutional limitations on the legislature. So courts can check the legislature's use of its power in regulating federal or presidential elections. The problem, and where I think there is a little basis not a lot, but a little basis for your fear here, is at the very end of the opinion the Supreme Court's kind of hinted. Well, state courts might go rogue and use their power of judicial review in a way that supplants the legislature's role and that misconstrues the state constitution's limitations on the legislature. And what Chief Justice Roberts says, and more at the very end of its opinion, is we will ordinarily defer to a state court's interpretation of the state constitution. But when a state court exceeds the quote ordinary bounds of judicial review close quote we the federal courts have to step in to ensure that the state court hasn't misconstrued the state constitution. And what that little caveat at the end of Morvey Harper suggests is that, yes, a federal court or state court can enforce federal and state legal restrictions on the legislature with regard to congressional or presidential elections, but we, the US Supreme Court, reserve the right to second-guess the federal or state court in its interpretation. Now, that's clearly what the US Supreme Court is supposed to do with regard to federal courts interpreting the federal constitution.

Dr. Williams:

The US Supreme Court is supreme in its interpretation of federal law. But historically, the US Supreme Court has left it to the state courts to interpret state constitutional provisions. And so this little disclaimer at the end of more does seem to open the door to a campaign saying hey, this court found what the legislature to be doing unconstitutional, but you, the US Supreme Court, should reverse that state court decision. You, the Supreme Court, should decide whether this was a fair election in Arizona or Georgia or Pennsylvania. And given what a lot of us think about the US Supreme Court these days as itself being sharply divided in partisan ways on election law issues that's concerning right, you know do we really trust the Supreme Court to decide these questions free of its own partisan lens? Do we? After Bush v Gore, in the election law world, I think there's a great degree of concern, at best, skepticism at worst, that the US Supreme Court could intervene in the presidential election and put partisanship aside.

Shawn:

So, of the things that we've talked about so far, I guess I would categorize them as being relatively subjective, in that, you know, there are different theories and different approaches and those can change.

Shawn:

Those will be determined by state legislatures, they'll be determined by courts.

Shawn:

But there's this other category that to me seems even more subjective in how it influences elections in the United States, and that's the role of misinformation and disinformation.

Shawn:

It just seems much squishier to kind of categorize, put in a bucket and then regulate, especially considering the squishiness around what is a lie, what is just bad information, how it gets spread, the fact that we have a First Amendment, right, but yet it has been leveraged and particularly, you know, donald Trump, in each of his elections, has leveraged the legitimacy of the election, specifically the illegitimacy of each of the elections, to his benefit, and he's signaling the same in this election. Everything that we've talked about thus far has really been about how it's kind of evolved in some tangible way and the threat that it poses if A happens, if B happens, if Y happens, if Z happens, right. But misinformation and disinformation are a little bit more difficult to pin down, especially in an evolving landscape, a technological landscape. So I guess I'm wondering if you've given thought to some of the potential implications of looming and the growing environment of misinformation and disinformation as it relates to our elections.

Dr. Williams:

I have and it's really what keeps me up at night or gives me gray hair. Because in many ways I think the rise of misinformation and disinformation in many ways is the greatest single threat to American democracy, not just in this presidential election but American democracy generally, for all elections in the near term. Because we can worry about whether a state legislature would set aside popular results. That's possible and it would be horrifying and disturbing if it takes place, but that may not happen. But we do know there are going to be millions of votes cast in this presidential election by voters who've been misled by misinformation and disinformation out there, because that really calls into question, you know, whether the elections are actually electing the right people, that that, what the who the people would really want if they really understood what's going on out there. And the second part to your question is there's really very little we can do about it. Your question is there's really very little we can do about it, which is why I lose sleep at night over this Very famous English political philosopher that you're obviously aware of.

Dr. Williams:

John Stuart Mill defended free speech on the notion of the marketplace of ideas. That the truth would win out over lies in the marketplace of ideas in the same way that good products displace bad products in the marketplace, and the US Supreme Court very much bought in to this view from John Stuart Mill in its free speech. Jurisprudence basically has been very protective about free speech, in large part on the notion that the truth will drive out the falsity or lies. What keeps me up at night is that I'm not sure we're in a single marketplace anymore. The marketplace of ideas, because of the rise of cable news and social media, has become balkanized.

Dr. Williams:

We Americans don't live in one single marketplace any longer. If we ever did, we each tend to live in our own little social media, cable news, journalist bubble to which we are exposed to misinformation and rarely, sometimes never, exposed to the counter to the misinformation or disinformation, and so I really labor to find a way of how can we successfully combat the rise of misinformation or disinformation. I'm reading news reports about voters in Western North Carolina who truly believe that President Biden has ordered FEMA not to provide them relief because they're Republican-dominated counties. That's clearly not true, but there are voters who believe that's true and that may shape how they vote. And even if it doesn't shape how they vote, it really makes our political landscape far more toxic when we start to subscribe to these views that are bred from this very hyper, vitriolic misinformation.

Shawn:

Final question. You ready for it? Hit me, okay. What's something interesting you've been reading, watching, listening to or doing lately, and it can be related to this topic, but it doesn't have to be.

Dr. Williams:

All right, I'm going to show just how much of a geek I am.

Dr. Williams:

So I've been watching a lot of documentaries about 17th century England, most notably the Parliament's decision to behead Charles I and then the glorious revolution of 1888. And the reason I got interested in it, I'll be frank, is in some sense kind of what we're talking about of going back and rereading the notes of the Constitutional Convention in Philadelphia in 1787 and reading kind of what the framers were thinking about as they were drafting the US Constitution. I was struck by how much they were influenced by events in England in the 17th century, most notably the Glorious Revolution of 1888, the notion that the king was subject to law and that parliament was the supreme legislative body and, in theory, elected by ordinary Englishmen. And that view of kind of no king, that view of kind of no king the king is subject to law, the king is subject to laws passed by a popularly elected parliament all shaped how the framers thought about our constitution. And so I've enjoyed learning a lot more about English history and how that history shaped what our framers thought about our system.

Shawn:

Well, if you're a geek, you're in good company, because that's uh, that's, that's. Those are the people I want to spend time with anyway. I, uh, I have been similarly. I've been in this. I don't want to call it a rabbit hole, but I've been doing a lot of watching documentaries and reading about the great wars and so, like world war one, world war two, the cold war, and you know, when I tell people about it, they're like that's so bleak. I've been trying to figure out why and I I actually think I might be doing this because I'm very anxious about the time we live in now and it feels like we're on the edge of some potential chaos. It's almost like a comfort blanket for, as bad as those periods of time were, they ended and there was some stability and, to the extent that it's fair to say, you know, the good guys won right, and so I think maybe I'm casting back in the hopes that there's something that gives me some comfort for our future.

Dr. Williams:

I'm with you there and that's also part of my interest in history generally that I share with you that we've gone through really horrible times in American history and we've come out of them. The American experiment in democracy has not failed yet, and so, while I don't look forward to challenges to the democratic order, I worry about them. At the end of the day, I try to take some solace that if we've survived the Civil War, if we've survived World War I, world War II, the Red Scare, if we survived Watergate, we can survive Donald Trump.

Shawn:

Dr Williams, here's to a peaceful election, and thanks for chatting with me about this. Thank you, sea.

Dr. Williams:

It's been a pleasure.

Shawn:

The US election process is complex and uniquely decentralized, with 51 distinct sets of rules for choosing the next president. Each state's unique laws and procedures shape how accessible voting is, and unfortunately, those same rules can sometimes be used to make it harder for certain groups and people to participate. And we're about to feel just how messy that system can be, especially when manipulated by bad actors. We've been through this before and we should be prepared for a bumpy ride. If Trump loses, we are in for a couple months of chaos, potential violence and unrest. If Trump wins, well, same thing, but extend it for about four years.

Shawn:

But that shouldn't scare you away from voting and participating. In fact, I'd argue it should embolden you to. It's critical to remember that voting is one of the most direct ways we can influence the future of our country. This year, in 2024, voting matters more than ever, with issues like voter purges and restrictive election laws shaping access to the ballot. Your voice has real power in deciding what America looks like in the years ahead. Every vote counts, every voice matters, and it's up to each of us to make sure we're heard. So make sure you're registered, make your plan to vote and take part in shaping the future of American democracy, and I'll see you on the other side of this next week with another episode of Deep Dive Chat soon, folks. Thank you, thank you.

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Shawn C. Fettig

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