Yes, I have seen Larry Lessig's thing in Medium. No, I'm not going to link it.

If you are actively seeking new ways to be freaked out about things that you really don't need to be freaked out over, it's a great article. It's not one that I find terribly convincing.

Here's a quick summary of the argument:

Lessig thinks that the Republicans may try to get state legislatures to retroactively approve the alternate slates of electors that met yesterday, and this might result in unlikely to happen or succeed shenanigans of various sorts.

In presenting this take, Lessig glosses over a number of things, the linearity of time not least among them. I'm not going to go into all of it, because I am still near my maximum tolerance for nonsense, and because I'm at a zoom talk about DMCA and the Omegaverse in 5 minutes.

That said, here are the main reasons why I'm skeptical about Lessig's thing. And when I say "skeptical" I mean in the "gee, I wonder why Lessig is fearmongering today" sense.

1: Lessig refers to the thing where Nixon approved the late and probably unlawful electoral votes from Hawaii in 1960 as a "strong precedent." This is accurate in the same way that it's accurate to describe 1-ply toilet paper in a hurricane as "strong."

That was a totally different set of circumstances, and nobody from either party objected. In fact, literally the only reason that it worked out the way it did is that nobody objected. It's barely precedent of any kind, let alone "strong" precedent in any sense.

2: In his myopic and astigmatic focus on 3 USC 2, Lessig skips over 3 USC 5 - the safe harbor. Or, rather, he simply presumes that because the slate that was certified by the safe harbor was ignored without objection in 1960, the safe harbor is meaningless.

This is, to put it mildly, a rather poor presumption. He's simply asserting that because nobody objected in 1960, the safe harbor is irrelevant. This ignores the text of that statute and the text of 3 USC 15.

In particular, it ignores the bit where 3 USC 15 explicitly states that if there are competing sets, only the one that meets 3 USC 5 shall be counted.

By the way, most of the states where there were "alternate reality electors" certified within the safe harbor.

3: It also seems to ignore the bit in 3 USC 15 that says that if the two houses disagree, the slate certified by the governor is the one that gets counted.

4: And all of that. of course, sets aside the whole question of finding legislatures that are even willing to attempt this right now, keeping in mind that they need at least 3 states to pull it off.

Not to mention the number of remaining days, and how many of those days are holidays.

5: And, given the amount of time between 6 and 20 Jan, Lessig is (I think) unduly dismissive of the possibility of judicial intervention.

So, overall, no, I do not think that Lessig's article is more than a rather outlandish hypo that is both unlikely to succeed and poorly reasoned.

Oh - almost forgot - and that assumes that legislatures can retroactively appoint electors, which is itself very much not a safe assumption.