How the 2024 U.S. presidential election could be stolen

There are several perfectly legal ways to steal a U.S. presidential election, according to election law expert Lawrence Lessig.

Lessig says the U.S.’s election and legal systems are vulnerable – and need immediate correction.

Today, On Point: How to steal an election.

Lawrence Lessig, Roy L. Furman professor of law and leadership at Harvard Law School. Co-author of the new book “How to Steal a Presidential Election."

Jessica Marsden, director of impact programs for free and fair elections at Protect Democracy, a nonpartisan anti-authoritarianism group.

Bertrall Ross, Justice Thurgood Marshall distinguished professor of law and director of the Karsh Center for Law and Democracy at the University of Virginia School of Law.

Part I

ANTHONY BROOKS: This hour, how to steal an election. It almost happened in 2020. And ever since former president Donald Trump has repeated the lie again and again that he won that election.

DONALD TRUMP: That was a rigged election. And it's a shame that we had to go through it.

It's very bad for our country. All over the world. They looked at it.

BROOKS: Trump and his team tried several strategies to overturn the election, including that infamous call in January of 2021 to Georgia Secretary of State Brad Raffensperger.

TRUMP: So look, all I want to do is this. I just want to find 11,780 votes, which is one more than we have, because we won the state.

BROOKS: Trump did not win the state of Georgia. Raffensperger, a Republican who had supported Trump, resisted Trump's pressure. But four days later on January 6, 2021, rioters attacked the U.S. Capitol as lawmakers were voting to certify Joe Biden's victory. Many of the attackers were motivated by the false claims that the election had been stolen.

Even the guardrails of democracy held, but now, as Trump runs for president again, election law expert Lawrence Lessig is worried that American democracy faces an even greater risk. He says Trump could try to steal the election again, and this time he could do it legally. Unless Congress or the courts take action.

Lessig is the Roy L. Furman professor of law and leadership at Harvard Law School. He is co-author, along with Matthew Seligman, of the book, "How to Steal a Presidential Election." And he's with us now. Professor Lessig, good to have you. Welcome to On Point.

LAWRENCE LESSIG: Thanks for having me, Anthony.

BROOKS: Yeah, it's really great to have you.

A lot to think about. And before we talk about how the election could be stolen this time around, let's go back to the riot at the Capitol. On January 6th, you say that as tragic as that day was, the guardrails of democracy held, and you say that, in fact, it was the dumbest thing Trump and his supporters could have done, and the other strategies that they were employing explain that.

LESSIG: In the lead up to that election Matt Seligman and I taught a course at Harvard called Wargaming 2020. And we had the students work through the strategies that would have been available to flip an otherwise determined, decided election. And of all the strategies, of course, we never imagined the idea of marching on the Capitol.

The marching on the Capitol strategy was the one certain to fail. Now, I'm honestly not convinced in Donald Trump's mind there was the idea of coercing through force Congress to flip its results. I think that what he intended to do was to get Congress to send the results back to the states, or at least send them.

And had he done that, there would have been no precedent. There would have been no power to do that. But had he done that, the pressure could have built so that eventually Congress caved. But the idea that you were going to march people with violence to threaten the vice president, or members of Congress to flip their vote, was just crazy.

BROOKS: Just crazy. So this leads us to what you call as a result of workshopping these various scenarios, what you call one of the most alarming scenarios made possible by the Supreme Court itself. And this relates to a 2020 decision in a case that you were involved in. So explain what we're talking about here.

LESSIG: Right. So in 2016 there were a number of presidential electors across the country who were troubled by the fact that Donald Trump had lost the popular vote but was going to win in the Electoral College. And these electors started trying to recruit Republican electors to join them to vote for somebody other than Donald Trump, so that the decision would go to the House and the House could decide whether the guy who lost the election should be president or somebody else. And when they did this in Colorado and in Washington, they were punished for voting contrary to how they were pledged.

So I volunteered to help them resolve the question, whether they could constitutionally be punished. Because the Constitution creates what's called electors, seemed pretty intuitive that an elector is somebody who is free to decide how they're going to vote. These people were trying to decide to vote in a way that would at least create the opportunity for a decision other than the election of Donald Trump, which of course, when people voted for Hillary Clinton in their states, that's what they certainly wanted.

And so the question was whether the state could punish them. We took it to the Supreme Court and my primary hope was just to resolve it one way or the other when it wasn't going to matter in a real election. And the Supreme Court basically decided 9 to 0 that the states have the power to control how electors vote a vote.

And as the Supreme Court said, the electors, quote, have no rights. So that creates what we're most anxious, the scenario we're most anxious about. Imagine the state of Wisconsin is extremely close in this next election.

BROOKS: Wait, can I just stop you. Because I want to be absolutely, I want to get to Wisconsin, but just to be clear.

So in your reading, the court held that state legislatures have the power essentially to direct electors how to cast their electoral votes. Electors do not have the power to say, I'm going to vote this way because I think that's where the will of the people is.

LESSIG: Yeah. The court had been led to be very fearful of electors.

My friend Rick Hasen had written a paper that basically said a handful of electors could flip the result. Actually, in the history of the 24,000 votes that electors had given since the beginning of the Republic, there had been exactly one elector who ever flipped his vote to favor the other side.

And the reason he did it in 1796 was because he was trying to vote for the person who actually got more votes in his state. So I think electors were badly maligned in this whole process cause I think that we should have trusted them. But anyway, the court said the state legislatures have the power to tell them how to vote.

Okay. So where does that lead us? So again, imagine Wisconsin is extremely close. It still has an overwhelmingly Republican state legislature because of gerrymandering that's been eliminated by the courts. But in 2024, they will still be in control on Election Day. Imagine it is extremely close and the Republicans start saying even though Joe Biden won the state by a slim majority, they don't believe the results were valid.

They think that in fact Donald Trump won, there were lots of illegal votes or whatever else they want to say. So they create this kind of impression that in fact the wrong person won. And then they conceivably pass a resolution in the legislature, because there are some who believe, on the Supreme Court too, that the state legislature alone has the power to tell the electors what to do. Because the Constitution gives to the legislature the power to set the way in which electors are chosen.

So the state legislature tells the Biden electors, vote for Trump. And under a companion case to the one I argued in the Supreme Court, the Colorado electors' case, the court upheld a procedure by which the electors who fail to vote in the way they are supposed to vote can be removed. In the scenario we're talking about, the Biden electors, I'm sure, will say, no, I'm not going to vote for Trump, I'm going to vote for Joe Biden.

They would be removed under the procedure that we're describing, and they would be replaced with a Trump elector. So here is a way that within the midst of the fog of war, given the rules of the way the court has articulated them, you could produce the opposite result.

Now, look, we don't believe Elena Kagan when she wrote that opinion, intended that.

BROOKS: I was just going to ask you about that. Because she writes that, the decision ends with a promise here. We the people rule. That certainly doesn't sound like an opinion that intended this particular outcome that you're worried about.

LESSIG: Exactly right. But the opinion also says the electors have no rights. So the question is, Who's going to have the power to say no to the state legislature? Ordinarily, that's what we imagine rights are for. I have the right to the Massachusetts legislature can't tell everybody they have to vote Republican or Democrat.

And if somebody, if they did, then somebody wanted to vote Republican, I'm assuming the legislature would tell them they have to vote Democrat in Massachusetts. If somebody wanted to vote Republican, that person would say, look, I have a right as an elector to vote however I want. The court said there's no, they have no rights here.

But my point is, I'm sure that if we could get the case up to the court quickly enough, the court would find a way to say no, that's not quite what we mean. You can't do that. But the challenge is the timing in this period is so narrow. Now in the case recently argued, Trump v. Anderson, which was whether Trump could be kicked off of the Colorado ballot.

Justice Alito asked about this hypothetical, and we were hopeful that would lead to a footnote in that opinion, saying obviously you can't change the vote after the election, but they didn't do that. So we're vulnerable now to this innovation. And if it's made, then there's a race to get to the court to get it corrected.

BROOKS: So I'm curious about this. So let's stick with Wisconsin, Republican majority. But there's a democratic governor. Doesn't the governor get involved with having to sign a law that would basically say, the electors have to vote this way or that way? Or is the governor out of the picture?

There's a theory, the independent state legislature doctrine, that says that the legislature can't be bound, because the Constitution says it's the legislature that sets the manner by which electors are chosen. I don't agree with that theory. I think the governor should be involved. But my point is not about what the ultimate legal answer would be. Because again, my view is the ultimate legal answer is the Supreme Court would say, you can't change the result after the election.

It's just in the timing of this fight. Will there be enough time for the court to get involved and resolve it before the electors vote? Because another whole chapter of the problem that the next election will face is that Congress, through the Electoral Count Reform Act, has narrowed the time during which we can try to resolve the election.

So if it's not resolved by the time the electors vote, it's not clear a result could be changed after the electors' vote.

BROOKS: So is there any legal argument that might prevent a legislature from taking the vote away from its people in this way. In other words, if you could get this to the court?

LESSIG: Yeah. So if I argued in the court, or when it's argued in the court, I would say what the court should say is, "Congress has the power to say when electors are chosen, and you can't choose electors after that." What the electors case said is that states have the power to direct how electors vote, but states can't change that after the day that the electors are to be selected either.

Now that's out of whole cloth. There's nothing in the text of anything that would say that, but that's the safest way to say, "No. You can't make this change."

Part II

BROOKS: We've been talking about how a Republican state legislature, in the state, for example, of Wisconsin could tell electors how to vote contrary to the will of voters.

It sounds Doomsday-ish to some people, but you make an important point about the power of state legislators and the way we currently run elections, and that is because of state laws, most states award presidential electors on a winner-take-all basis. Which effectively subverts the will of millions and millions of voters across the country.

So can you explain that, and just how this sort of step from that to the scenario that you're outlining, it's not a big reach.

LESSIG: Yeah. The scenario that I think every constitutional lawyer would concede is legal is for the legislature before election day to say, "Look, we've decided we're not going to have an election."

Or if we have an election, that's not how we're going to pick electors. We're just going to vote for who the elector is going to be. And so Wisconsin, in this case, would say, we're going to vote for the Republican slate of electors, whatever the election is. People hear that and they're like, that's outrageous.

How could that be? But the point to see is that because states, all states except two, Nevada and Nebraska and Maine, allocate their electors in what's called winner-take-all fashion, all but about eight states in the country have decided who their electors will be given to before election day. Like in Massachusetts, we take winner take all.

There is no way the Republican candidate, any Republican candidate, probably, would win in Massachusetts. Same thing in Utah, which is winner take all. There's no way a Democratic candidate will win in Utah. Which means that no Republican or Democrat will care about Utah or Massachusetts or New York or Kentucky or any state.

Where this winner-take-all fashion means that the result can't change regardless of what you do. And what that means is that people who decide America are the swing states. So in the next election, it's going to be Wisconsin, Michigan, Pennsylvania, Georgia, Nevada, Arizona are the key swing states, maybe New Hampshire, maybe North Carolina.

The rest of the country is irrelevant. And what that means is presidential campaigns, in some sense, don't really care about the rest of the country. There's been great academic work demonstrating that policies get bent to favor the swing states. And so the swingers actually decide the presidency.

But the challenge is the swing states, the swingers of America don't represent America. And that's a decision the state legislatures have made for no constitutionally obligated reason. Like they could decide tomorrow to allocate electors proportionally. I think even at a fractional level. So if you get 45% of the vote, you get exactly 45% of the electors. They could make that choice, but they haven't. And because they haven't, the vast majority of America's electors, votes on Election Day for president just don't matter.

BROOKS: They could make that choice, and your argument is they could also make this choice, essentially instructing electors to vote contrary to the will of the people. It's not a big, a second scenario that you point to is something you call a rogue governor scenario. A governor decides to flip the results of the presidential election. You call this the greatest long term threat to U.S. democracy. Explain how that works.

LESSIG: Yeah, so we the word long term is important. Because fortunately, coming into this election, the only potential, or the only governor who could be rogue, or potentially rogue, is not even elected yet.

The candidate Robinson in North Carolina is a clear MAGA candidate, and if anybody is going to go rogue, he would go rogue. The rest of the states, the swing states, at least, have Democratic governors or the two Republican governors, Kemp and Sununu, in Georgia and in New Hampshire are reasonable.

They're not going to go rogue. But the long-term concern is that under the Electoral Count Act, the governor's signature is really critical for determining how the electoral votes are counted. And if you have a governor who believes, again, that the election was stolen or believes that the right candidate did not win according to the electoral board, and they certify the wrong candidate.

It will take Congress going through a lot of hoops to be able to reverse that result. Now, if Congress is unified, both houses are controlled by the same party, they will do what that party wants them to do. But the challenge is if they're split, if one is Democratic and one is Republican, then the law will set the governor's signature as the presumptive winner, and that could mean the wrong person actually wins.

BROOKS: So let's hear a voice that pushes back a little bit on some of what you say. Here's Bertrall Ross. He's the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia. He also directs the Karsh Center for Law and Democracy there. Ross says it's not impossible that the 2024 election could be stolen, but he says it's unlikely.

And part of the reason why is that the Electoral Count Reform Act that Congress passed in 2022 puts a lot of protections in place.

ROSS: It set forth standards that limit who can send their slate of electors from the state so that only the executive of the state has that responsibility with respect to sending state electors, so that there's not that multiple elector problem.

The higher burdens on members of Congress to object to electors that are sent to Congress is also provided for expedited judicial procedures for disputes over elections.

BROOKS: So that's Bertrall Ross, the University of Virginia. Larry Lessig, respond to that. Did the reform that Congress passed, essentially the Electoral Count Reform Act, does that help this situation, make you sleep a little, help you sleep a little better at night?

LESSIG: There are parts of it that are great and parts of it that create more problems. So here's a simple example of a problem it creates. In 1960, in Hawaii, Nixon was declared the winner originally, and he was certified as the winner. And then the Democrats noticed an error in the tabulation of the vote, so they asked for a recount.

The recount couldn't be completed until after the electors voted. But the Nixon and Kennedy electors both gathered on Elector Day and cast their votes. The Kennedy electors were the first so called fake electors in our tradition. And when the recount was completed at the end of December, the recount went for Kennedy.

And so the governor certified for Kennedy, and they sent the certification in and the certification for Kennedy was eventually counted. If that same scenario happened under the Electoral Count Act of 2022, it would be Nixon's votes that would be counted. Because first of all, it's not clear any electors going to sit and vote.

Any Kennedy elector in the story would sit and vote because of the prosecution against the so-called fake electors. But even if they did, under the electoral count reform act, the only way to object is if you can say that the electors were not properly certified, but at the time they were certified, they were properly certified.

It was the result the governor was acting under. And so what the Electoral Count Reform Act has done is basically mean that if you can slow a recount down so that it's not resolved before the elector's vote. It could never go against you. Now, this is a problem that doesn't benefit Republicans alone.

It could be Republicans or Democrats who benefit from this. And this obvious incentive then, if you've won, and then there's a recount going on, your incentive is to do everything you can to slow that process down, which is not hard in the context of electoral, the way these procedures work. If you slow it down until after the elector's vote, then you can't lose.

But of course, that means the American democracy could lose if, in fact, the result was not correct, and the recount goes for the other candidates. So that's a problem created by the Electoral Count Reform Act. It could have solved this, in a completely different way. It could have fixed this problem.

And we actually have a solution. I think that Congress should have a sufficient reason, because it's not partisan, to fix it before 2024. And the simplest way to fix it would be to say that there's a category called contingent electors. So if you think that there's a judicial proceeding that could finally resolve the state in your favor, then you as the electors can meet on electors' day and sign the electors' certificates. But mark them contingent and then let the recount procedure continue.

And if the courts eventually rule in favor of you, then your votes would be counted. That would be a simple change to the Electoral Count Reform Act. And if it were changed, then this problem would go away.

BROOKS: Larry, I want to introduce another voice in this conversation. Jessica Marsden is Director of Impact Programs for Free and Fair Elections at Protect Democracy.

That's a nonpartisan anti-authoritarianism group. And Jessica Marsden, welcome. Good to have you.

JESSICA MARSDEN: Happy to be here, Anthony.

BROOKS: Yeah, it's really good to have you. What do you make of the sort of alarm that Lawrence Lessig is putting out here about the possibility of stealing an election legally in 2024?

MARSDEN: I want to start by saying, I think legally stealing an election is a contradiction in terms, so it's really important to understand the procedural vulnerabilities that Professor Lessig has been describing, but also to underline that these tactics at bottom are no different than stuffing a ballot box, and they're the kind of tactics that we've seen in authoritarian regimes that have slid from democracy into authoritarianism.

We've seen it Russia, for example, where Putin has blown through term limits, jailed opponents, allowed only stooge opponents to run. And so I think we have to be clear that although these strategies would take advantage of legal loopholes, they're not legal in any meaningful sense of the word.

BROOKS: But go ahead. So what do you see out there? What's currently happening in states that either encourages you or discourages you?

MARSDEN: So big picture, I think we're in a much better place in many ways than we were in 2020. We heard a moment ago about the important reforms in the Electoral Count Reform Act.

We also saw that in 2022 election deniers running for statewide office in swing states lost across the board. So that means we have reasonable, good faith pro-democracy actors in virtually all critical statewide positions in key states. And that election also showed that democracy was an important issue for some voters.

A couple other things to mention, the Supreme Court mostly rejected the independent state legislature theory, which would have given hyper partisan state legislators much more power to manipulate elections. And then finally, Former President Trump is not in power and does not control the levers of the federal government.

To the extent that he is the leader of an effort to steal an election, he doesn't have the same amount of power that he did in 2020.

BROOKS: Sure.

MARSDEN: Now that said --

BROOKS: Yeah, no, go ahead. I just want to throw those ideas over to Larry. And that was something on top of my list, Larry, this idea that Trump is no longer president.

He doesn't have control of the levers of power. The Justice Department, he reportedly even considered ordering the U.S. military to seize voting machines to look for fraud. He's not going to be able to do that. So what do you think of the basic idea that Jessica laid out there that while there may be some risks to be worried about, we're better off than we were four years ago.

LESSIG: She's certainly true that we're better off in the sense that we're more prepared and we've seen some questions resolved in a way that reduces the risk. And it's certainly true, the President Trump is not president. So he has limited access to the tools that he might otherwise want to deploy.

It's also true that he's wildly more motivated now than he was in 2020.

BROOKS: Explain.

LESSIG: Because if he loses, there's a huge chance he goes to jail. There's certainly a huge chance he loses his whole, all of his wealth. So the risk that he faces in losing is huge. And I think that's going to motivate him to do everything he can to win.

But I think, I want to make clear one very basic point about why we wrote this book. This is not a book betting that the election is going to be stolen. It's not a book offering the probability that the election is going to be stolen. It's a book trying to help people to see the risks so that we all, especially groups like Protect Democracy, that has been one of the most important groups in building the resistance to make sure we have free and fair elections.

We all begin to see the strategies we need to be prepared to respond to. So in the critical sense that there is this risk. There are these holes, these loopholes that I think that we need to identify and be prepared to respond to and recognize that we can't shift into automatic pilot just because it seems like we've learned something from 2020. And we won't make the same mistakes again.

The reality is the number of people today who believe the election was stolen is the same as a number who believed it was stolen on January 6th, 2021, and that reality creates a condition if things are close enough, that these techniques could be exploited. And that's exactly what we're working on.

BROOKS: Jessica Marsden. What do you think of that? It is striking what Larry was saying. This idea of the depth of belief in the idea, in the mistaken idea that the election was stolen hasn't budged since 3 plus years ago.

MARSDEN: That's absolutely true. And that's one of the things that we're most worried about when we look out across the states.

And think about how this election might go off the rails. The spread of mis- and disinformation has really not let up since 2020. And that has had real concrete effects on election officials in particular who have faced a wave of threats and other interference with their ability to do their jobs.

That's like nothing we've seen in previous election cycles, and it's also impacted voters, some of whom have been subject to intimidation campaigns like we saw in Arizona in 2022, where you had folks with video cameras and even guns stationed outside drop boxes looking for voter fraud.

So there's absolutely real consequences to this voter fraud that professor Lessig was describing.

BROOKS: So let's hear some tape about how central the big lie has become in this political climate. Stephen Richer is a local election official in Maricopa County, Arizona. He's also a Republican. Richard sued U.S. Senate candidate Kari Lake for defamation because she falsely accused him of cheating her out of winning the governor's race in 2022.

So here's Richard on MSNBC last month, talking about the big lie.

STEPHEN RICHER: Unfortunately, it has become something of a litmus test in some quarters. Many of those candidates who won their primary based off of the big lie, that didn't carry over to the median Arizona voter. It's a losing strategy. It's lost in '23.

It's lost in '22. It's lost in '21. It lost in '20, but more than that, it's immoral and people know better and leaders need to stop.

BROOKS: Larry Lessig, what do you think about that? It's been a losing argument and yet it's still there creating the soil, for the things that you're worried about.

LESSIG: Yeah. When Trump's family took over RNC and fired everybody at RNC and gave them all a chance to apply for their jobs back, one condition of getting their jobs back was certifying that they agree with the election in 2020 was stolen. I think that this has potential.

It's gunpowder. And if it's dry enough and you have a spark, the fear that many of us have is that it blows up and that's what we have to be prepared to fight against.

Part III

BROOKS: I want to talk about a couple of potential solutions. Larry, and let's start with what needs to be fixed. Where is the quickest, not the quickest, but the most important sort of set of solutions that you're proposing?

LESSIG: I think one category could be organized under the slogan Elena Kagan gave us in the elector's case, which is her We the people rule. And what that means is we've got to build recognition. That any steps the legislature might take to change the results of an election, whether by cancelling the election, effectively, deciding that the state legislature will pick the electors, or by changing how the electors vote, is just illegitimate.

It's wrong, and I think Jessica's way of characterizing it is, it's what authoritarians do. It's not what's legal under our constitutional system. The second is, I think there should be no reason why Republicans and Democrats would resist the idea of allowing the process to work itself out and making it so that if, in fact, it has to take beyond the time electors are to vote, there would be a strategy to make sure that the correct result gets counted.

So this is the Hawaii 2.0 problem. And I think the simplest thing would be to make it so that you could have electors who vote a contingent slate. And then if, in fact, the courts determine their candidate wins, that's the slate that gets counted. And finally, I think there's an enormous amount of work, and Protect Democracy, again, has been the leader here, in just making sure on the ground, in every single contested space, we have process to make sure people are not afraid to vote and not afraid and not blocked from their ability to vote.

So that when this election is over, we can look at it and feel like it really confirms the very best of our traditions, not the fear that I think Matt and I have about what could happen.

BROOKS: Jessica, add to that in terms of the work you do. Talk about the sort of importance of that last point that Larry was talking about and the progress or the challenges you're seeing on the ground.

MARSDEN: Yeah. So to add a couple of things to that list of potential solutions. I think one thing, a common thread throughout the scenarios described in the book is uncertainty and delay in uncovering or reaching the true outcome of the election. And one thing we have been working on at Protect Democracy after the passage of the Electoral Count Reform Act is working with states to ensure that they are able to meet that new deadline, that their recount procedures where possible can be sped up so that the outcome of the election is clear before the governor has to certify the results and before the electors meet.

And we've had successes even in swing states like Arizona and Michigan, where bipartisan coalitions came together to support these changes, which ultimately are about getting clarity about who really won the election and not falling into this period of legal uncertainty or sort of fog of war. I think the other two things that I'd emphasize is there's a lot of work going on right now in states to rebuild trust in elections across the political spectrum.

That work is critically important, because these strategies of legislative intervention or gubernatorial intervention to certify the wrong winner of the election only work if that looks like a politically palatable strategy. And rebuilding trust in elections is part of making that look unpalatable.

And then the final thing I'll mention is we did see some aspects of strategies like this tried in 2020 and the work to ensure that the folks who led those efforts are held accountable through prosecutions of fake electors, disbarment proceedings of some of the lawyers who made bogus arguments that these were truly legal strategies.

Those are important in sending a message to people who might be involved in similar attempts this year that, Is it illegal? And there will be consequences.

BROOKS: So I want to talk, Larry, get you to respond to that. One of those ideas which seems so important here in this idea of rebuilding trust, because what do you do about the fact that the cynicism is a result, among other things, of a number of real things.

Too much money in politics, which I know is one of the things that you've been concerned about for decades. Citizens United, the anti-democratic nature of the electoral college, which we talked about. Partisan gerrymandering. In a sense, you could almost be led to conclude, no wonder people can be made to believe that an election was fixed or stolen.

How do we deal with that?

LESSIG: I think the root behind the ability to create these alternative realities is the reality that we increasingly live in a media environment where people have their own bubbles and they're tuned into them and they learn the lessons from those bubbles. An astonishing statistic, a poll came out about six weeks ago, found that the majority of Americans believe the Republican Party is more committed to protecting democracy than the Democratic Party.

Now, people in the Democratic Party look at that and say, How is that possibly true? You have a guy that tried to overturn the results of the elections. But the answer is, you have a bunch of people who've heard for the last six years this story about the constant efforts to witch hunt and take down through political means a candidate for president creating this impression.

I don't think it's true, but an impression that you have partisan motivation inside of our election process. I don't know how we get out of that reality of media. The only way we get out of it is if people face to face, one to one, begin to just talk to each other and engage on about this reality of our division and how we need to get beyond it.

That's a big thing to hope for, given the nature of this kind of fight right now and the many years we've been in the middle of what feels like an existential struggle. But we're not going to change the way media functions. And if anything, social media is going to be less disciplined in the way it involves itself in the selection between X, formerly Twitter and Facebook.

And I'm even more concerned about how they might play a negative role.

BROOKS: Larry, before we went on the air, I said to you pretty bluntly, I said thank you for this book, it's given me a ton to think about. It hasn't made me feel really good.

LESSIG: Yeah.

BROOKS: Is there something encouraging in here that you can offer?

Is there a reason to be optimistic or hopeful that something might be changing for the better?

LESSIG: Yes.

BROOKS: Good. Lemme hear it.

LESSIG: And that is that the work to fix our democracy has made enormous progress in the past 10 years. It wasn't long ago when I felt like I was doing everything I could to get this democracy reform package in the center of Congress's attention.

Congress took that up in the For the People Act, which would have been the most important democracy reform package passed by Congress, I think, since the Civil War. It came within two votes of actually doing that. Now, that a decade ago would have been incomprehensible. And I think that many people are recognizing this isn't a partisan problem.

It's a democracy problem. And we have to find a way to motivate people to demand that we get a democracy we can trust. And there are things we can do. This book is not saying there's nothing we can do. It's saying there's a lot we can do. And we need to step up and do it, not just for the 2024 election, but for every election that happens afterwards.

BROOKS: Jessica, reasons from you to be hopeful about where we are?

MARSDEN: I think I take greatest hope from the results of the election in 2022, when we saw that for many voters, the election denialism coming from folks who were running for statewide office to run elections was not appealing, and those candidates all lost.

I think that shows that democracy is an important issue for some voters when the stakes are presented so clearly to them. And this election is going to put those stakes front and center, not just in terms of the issue that gets labeled democracy, but issues like abortion rights are at the forefront.

And I think the ways in which those issues have been, or policy on those issues has been shaped by some undemocratic forces in our structure, is going to be at the top of many voters' minds.

BROOKS: Jessica, you mentioned those election deniers are running for positions that oversaw elections in 2022, that they were all defeated.

And I've heard a lot about those races. We were focused on them for quite a time, but do we know roughly the number of election deniers that are still in positions of power in the country that could exert real influence to overturn an election in 2024?

MARSDEN: So because of the decentralized way that our elections are run, it's hard to, we're talking about thousands of officials across the country who have some influence over our elections, so it's hard to get a firm number nationwide. But a report from the States United Democracy Center has identified 25 election deniers who are in statewide office with some amount of election responsibility.

Those officials are overwhelmingly in very red states that are not likely to be highly contested in 2024. And then at the local level, research has focused on kind of the key swing states. And a report from Informing Democracy found 94 local officials across 59 jurisdictions in the seven key swing states, Arizona, Georgia, Michigan, North Carolina, Pennsylvania.

And Wisconsin. So it's not a huge number, but it's definitely some. There are some officials, especially at the local level. And that's something that at Protect Democracy, we're tracking quite closely, as we think ahead to November and December.

BROOKS: And Larry Lessig, a question for you about, I was thinking as I was reading through your arguments, it's troubling when you think about the legal levers that are there that could be exploited and used to overturn the will of voters.

But my question is, what about the political reality of making that? There may be a legal way to do it, but would it survive politically? Because at the end of the day, if you're taking people's rights away, it just seems like there would be such an outcry against that.

LESSIG: We have to be sure not to simplify what's going on in the heads of people who are acting in ways that we criticize now. The January 6th protesters, the vast majority of them had an honest, genuine belief that the election had been stolen. Now, not everybody, obviously not the leaders. I don't even think Donald Trump believed that.

But the point is the story had been told to them in a way that they were convinced. And if you're convinced, what's the appropriate response? I don't know if you saw the series Succession, the penultimate, maybe one before, episode involved Wisconsin. There was a fire at the Milwaukee polling station, so the Democratic votes from Milwaukee weren't counted, and the result went for the Republican.

What would Democrats do in a case like that? They would genuinely believe that their election had been stolen, and there were steps that could be taken, especially under the new Electoral Count Reform Act, and maybe they wouldn't. And so the condition that we need to put our minds in is when we've got people who believe in good faith, their side is right, and the other side is evil, what tools do we have, could they deploy? Because they'll do whatever they can, because they think they're saving our democracy, and I can understand that's their actions.

If that's their belief, we need to fight on making sure that is not their belief, right?

BROOKS: So former President Donald Trump is in court today in Manhattan facing criminal charges in this hush money case that relates to campaign finance violations, alleged campaign finance violations and more. What's the effect, do you think, of that on this issue? In other words, does it begin to erode the folks that are following him, believe in him, their confidence in him? And how might that relate to the concerns that you have?

LESSIG: I think it does both. There's a number of people who will read this as this is just another example of the banana republic nation America has become.

Joe Biden has exercised power to continue the prosecutions. But I actually believe that on balance, many people are going to look at this and say, this man is just too damaged. He's just too damaged by what's happened. And between this and the money that he's needed to raise, and the sources of that money, people will increasingly think this is a compromised candidate.

And whether they like his policies or not, it'll be too hard to rally to support him. So I can't think that this is going to help his campaign, even though there are a lot of people who are going to be really motivated because of it.

BROOKS: Jessica, what's your thinking about that question?

MARSDEN: I think that's right.

It's hard to see how this helps him. And indeed, the polling of voters, including in swing states, has shown that if he's ultimately convicted in this trial, that is one thing that could significantly erode support among some folks who are not part of that diehard base.

BROOKS: Really interesting stuff.

Jessica, I'm going to say goodbye to you. Jessica Marsden, Director of the Impact Programs for Free and Fair Elections at Protect Democracy, a nonpartisan anti authoritarianism group. Thank you so much for joining us today. We really appreciate it.

MARSDEN: Thanks so much for having it me.

BROOKS: And Larry, we have you for another minute or so.

I guess I'd love to give you a chance to wrap this up with a concluding idea that I might not have given you a chance to express as we head toward what could be another messy and dangerous election.

LESSIG: Yeah, Anthony, you did give me a chance and I want to emphasize that chance you gave me, which is, this is not a hopeless story. It's a hopeful story, and I actually think that if we can rally to get through this election and make the changes to make it safe, we can continue that work to fix the 25 other critical problems that our democracy faces. So that people can have confidence that the result actually reflects the will of all of America, not just swing state America, and that we have politicians who care mainly about us as opposed to mainly about their funders of their super expensive campaigns.

BROOKS: So you're talking among other things about fixing the impact, for example, of Citizens United, and finally dealing with the coercive of effects of too much money in politics.

LESSIG: Yeah, because this is actually, I think what's at root about the cynicism that many Trump supporters have about the system.

They look at it and they think this is just a corrupted system. And I would agree that in this sense, it is a corrupted and broken system.