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I guess someone pointed Lessig at yesterday's thread about his poorly-reasoned fearporn. The linked Tweet, which condescendingly points me at instructions on how to thread (because #reasons?) is the last of Lessig's six unthreaded QTs that respond to some of what I said. https://twitter.com/lessig/status/1339178724957315080
And, yes, Lessig. The article is fearporn. And because of it and other crap like it, folks like me, @AkivaMCohen and @greg_doucette and others have real frightened people freaking out in DMs and replies asking for help understanding why you think they should still be terrified.
Your lack of concern certainly wasn't clear from the article. You scared people. Looking at these two paragraphs from the tail end of it, I really hope you can see why that might happen - especially with that concluding sentence.
https://twitter.com/lessig/status/1339178693856534530?s=20
https://twitter.com/lessig/status/1339178693856534530?s=20
And, yes, Lessig. The article is poorly reasoned. There is no other way to describe something that purports to be an article about electoral slates and Congress that effectively ignores the existence of the House of Representatives, let alone its role, but we'll get to that.
But I'll withdraw the tweet about the Hawaii precedent being weak.
I mean, if Lessig wants to use "strong" to mean "weaker than this other argument but I'll call it strong anyway because it's all they've got," who am I to argue.
Moving to the 'merits:' https://twitter.com/lessig/status/1339178622981115904?s=20
I mean, if Lessig wants to use "strong" to mean "weaker than this other argument but I'll call it strong anyway because it's all they've got," who am I to argue.
Moving to the 'merits:' https://twitter.com/lessig/status/1339178622981115904?s=20
This (& another reply) clarify that, in addition to everything else, Lessig's fearporn scenario is contingent on a majority of the Senate disregarding the law - in circumstances with less ambiguity than those in the hypo in the cited law review article. https://twitter.com/lessig/status/1339178673702903809?s=20
An article, it should be noted, which does not seem to share Lessig's radical confidence that the Supreme Court would certainly abstain in the midst of an entirely unprecedented post-January 6th crisis that leaves the country with no clear President. https://twitter.com/lessig/status/1339178704560410625?s=20
Which brings us back to what I said earlier about the House of Representatives, and the "tl:dr" bit of Lessig's article.
Because Lessig doesn't bother explaining exactly how 3 USC 2 gets the alternate slates counted - and it wouldn't automatically get them counted.
Because Lessig doesn't bother explaining exactly how 3 USC 2 gets the alternate slates counted - and it wouldn't automatically get them counted.
In fact, the hypo in the cited law review article presumes that in the "dueling slates" scenario that would result if the state legislatures tried to ratify the fake electors, the Senate would have to adopt an interpretation of the law where those states are discarded entirely.
As the article points out, this would require an interpretation of 3 USC 15 where the states would be found to have failed to qualify electors at all, so their EVs also wouldn't count for determining how many votes are a majority of the validly appointed electors.
In which case, even if PA and GA and MI and WI and AZ all manage to have their legislatures ratify the alternative slates, the "Republican" approach suggested by the cited law review article still leaves Biden with 233 electors out of 465 total - a majority.
In other words, even if Pence caused the type of trouble suggested in the law review article cited to show the type of trouble Pence can cause, Biden wins. Pence and the Senate Republicans would need to find an interpretation beyond the one the article suggests is plausible.
And all of that ignores entirely the House of Representatives, which presumably would not simply sit idly by - as the cited law review article points out, they would more likely refuse to participate, and claim that the resulting stalemate leaves Pelosi as acting President.
Lessig's Medium article confronts none of those points, seeming instead to simply assume that post-hoc ratification would somehow lead to those slates, not the slates signed by the governors, being the ones that get counted.
Now I could continue to go into detail, but I think I've said enough to make my views clear. I appreciate Lessig's input, but after reviewing the suggested reading I still think Lessig's Medium article is poorly-reasoned. And, to be blunt, I still think it's fear porn.
