How to Steal a Presidential Election by Lawrence Lessig

Author:Lawrence Lessig
Language: eng
Format: epub
Publisher: Yale University Press
Published: 2024-05-15T00:00:00+00:00

6

The “Force Majeure” Game

In Georgia in 2020, there were two races for the United States Senate. That’s unusual. Senators are elected for six-year terms, but in each state the terms are staggered. Yet because of the early retirement of Senator Johnny Isakson in 2019, Senator Kelly Loeffler had been serving a shortened term—under state law, just until the next election, rather than the entire remainder of his term. She was appointed to the Senate on January 6, 2020, and had to run for reelection the next fall. One race in Georgia was thus between Loeffler, a Republican, and the Reverend Raphael Warnock, a Democrat. In the other Senate race, Democrat Jon Ossoff ran against a Republican incumbent, David Perdue.

No candidate in either race received a majority of the votes in the election in November 2020. Under Georgia law, this meant that there had to be a runoff election. On January 5, 2021, to the great surprise of many (including both of us), both Democrats beat their incumbent Republican opponents. Only four other times in American history had both of a state’s Senate seats flipped in the same election.1

Elections don’t ordinarily happen as they do in Georgia. In practically every other jurisdiction in the United States, the person who gets the most votes wins the election, whether they win a majority or not. (Alaska and Maine are the exceptions.) In one of our own congressional districts, MA-4, in 2020, nine candidates were vying for the Democratic nomination (which, because the district is heavily Democratic, effectively also meant the election). The winner received just 22.4 percent of the vote—which means that 77.6 percent of Democrats didn’t support the ultimate nominee. Georgia’s sensible policy assures that the winner must be a candidate that a majority at least finds acceptable, even if that person is not most people’s first choice. (An even more sensible policy would be to hold the run-off at the same time as the election, using a “ranked-choice voting” method. Alaska and Maine do that.)

Georgia’s policy, though now an outlier, is not new. Nor has it always been limited to candidates for Senate. At various times from the founding through the Civil War, three states—Massachusetts, New Hampshire, and Georgia—required that presidential electors receive a majority of votes cast to be appointed. A mere plurality, all that any state now requires in a presidential election, was not enough. If the initial election didn’t yield a majority winner, then the state had to take further steps to pick the electors.

Those states’ majority requirements didn’t matter much at the time. For the first handful of elections, states varied widely in their systems for selecting electors. Article II, section 1, clause 4 of the Constitution gives Congress the power to determine when states may appoint electors. At first, Congress gave the states a lot of time to appoint their electors: states could appoint electors at any time within the thirty-four days preceding the first Wednesday in December of each presidential election year.2 States complied with that requirement in a variety of ways.

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