Harvard Law School Professors Discuss Legal Frameworks for Challenging Election Outcomes

Less than one week before the 2024 U.S. presidential election, Harvard Law School professors Laurence Lessig and Larry Schwartztol gathered in Langdell Hall to discuss legal methods of challenging election results through the Electoral College at a Wednesday talk.

At the discussion — which was organized by HLS Beyond, an HLS Library initiative intended to facilitate workshops on “cutting-edge topics” — Lessig and Schwartztol agreed that the timeline for the judicial appeal process for election outcomes is too short and doesn’t provide enough time for appeals.

The scholars framed their discussion by pointing to cases of contested outcomes during the 1960 and 2000 presidential elections, rather than providing concrete predictions for how next week’s election may be protested.

“If I’m putting myself in the position of the would-be election subverter at his whiteboard, mapping out how to subvert the election, I don’t think there’s a straight line,” Schwartztol said.

The professors said widespread confusion around the 2020 presidential election results, incited when Sen. Josh D. Hawley (R-Mo.) objected to former President Donald Trump’s loss, was a result of unclear legislation like the Electoral Count Act.

According to Lessig, Hawley’s objection to the results revealed a lack of understanding of the legal process for election appeals within Congress.

“Here in Congress, they didn’t even understand the first thing about how the law was supposed to be functioning,” Lessig said.

The ECA, which was updated when Congress passed the Electoral Count Reform Act in 2022, is intended to dictate the process of casting and counting votes within the Electoral College. But even with the ECRA, Lessig said, the timeline by which the Electoral College operates renders any objection to the results defunct.

Due to its short timeline, the ECRA has no mechanism to successfully advance an appeal after even the most basic interference in electoral votes, Lessig said.

“The judgment throwing out those votes can be appealed, of course, but the question is how quickly?” he said. “If it can’t be appealed or resolved before the electors vote, there’s nothing in the Electoral Count Reform Act that gives anybody the power to correct this mistake.”

“It’s creating an incentive to trip the process up, knowing that the process can't be corrected in time to produce the correct result,” Lessig added.

Schwartztol, who previously served as associate White House counsel and special assistant to the president under the Biden administration, also criticized the Electoral College’s legal process. According to Schwartztol, knowledge of how the ruling will impact the outcome of a presidential election may introduce bias when a court reviews an objection.

“The fact that there are novel, hard legal questions that are so consequential and that might be decided on an incredibly compressed timeline where the court knows how its decision will impact the outcome of the presidential election — that is terrible, right?” he asked.

Emily Neill, the organizer for the talk and program manager for HLS Beyond, said Wednesday’s discussion increased her feeling of “dread” about the 2024 presidential election.

“There’s a lot that is taking place where the rules aren’t quite as hard and fast as you might think they are, and that even elected officials don’t really understand what they are,” Neill said.

“We have some of the safest elections in the world, in terms of integrity,” Neill added. “But now I see that it’s not necessarily about that; it’s really just about how people spin it. And people are willing to lie.”