How to legally 'Cheat' in The Presidential Election

[00:00:02] This isn't your average business podcast, and he's not your average host. This is The James Altucher Show.

[00:00:16] So in a few hours, as I am saying this, the election of 2024 will begin. I'm doing this podcast on Monday

[00:00:24] evening, and I wanted to address a couple of important issues that people don't seem to know

[00:00:30] about in terms of how a presidential election in the United States works. In particular, there are

[00:00:37] a couple of loopholes where I think it is possible to legally cheat in this election. And I'm not

[00:00:45] talking about either candidate, but the big question that has been on my mind and on many

[00:00:51] people's minds, is it possible to quote unquote legally cheat in an election? And I'm not talking

[00:00:58] about will the Democrats cheat? Will the Republicans cheat? I am not talking about whether they could

[00:01:05] rig an election machine or more people vote than are living. You know, all these kinds of like

[00:01:11] what you think of when you think of election cheating. I am talking about legal cheating,

[00:01:16] meaning does the Constitution provide a way for one party to change the results of an election

[00:01:24] to support their party? And again, I'm not talking about Republicans doing this. I'm not talking about

[00:01:30] Democrats doing this. I'm talking about does the Constitution of the United States of America allow

[00:01:35] for somehow the results of the election to change after the fact. And in order to understand this,

[00:01:43] we have to understand how the election is actually. And by the way, when we were figuring out how to

[00:01:49] title this podcast, we're a little nervous. Like Jay and I were talking earlier, and can we call this

[00:01:56] podcast how to cheat in an election? Well, I'm afraid if we call it that, maybe we get banned from

[00:02:01] different social media platforms, not understanding what we're really talking about. We're just trying

[00:02:05] to educate people on kind of the loopholes and the intricacies that at least I have found in the

[00:02:12] Constitution of the United States of America. It's very interesting because there were a lot of

[00:02:16] things I did not realize. And now I sort of do. I don't think anybody fully does, which is why

[00:02:22] there are still issues being fought in the Supreme Court to this day. But it's so interesting. And I'm

[00:02:28] going to tell you, it is legally possible to cheat in the U.S. election according to the Constitution.

[00:02:35] But first, we got to take a step back. And there's some subtleties to really understand about how the

[00:02:41] U.S. does elections. And even if you think you know about the Electoral College or the popular vote,

[00:02:46] I can guarantee you probably don't know everything that you need to know. So first off,

[00:02:51] why don't we have a popular vote? And we did a podcast about this a few months ago.

[00:02:56] And the more I think about it, the more annoyed I am. Because look, the founders of the United

[00:03:03] States of America agreed on an Electoral College for a particular reason. By the way, many countries,

[00:03:10] they don't have a direct democracy, which means everybody just votes for president. And they don't

[00:03:14] have an Electoral College, but they have what's called a parliamentary system. So a parliamentary system,

[00:03:20] if it was in the U.S., it would mean Congress would vote for the president. In other words,

[00:03:26] if Congress votes for the president, then the Speaker of the House, Mike Johnson, would be

[00:03:29] president of the United States. Or previously, Nancy Pelosi would have been president of the

[00:03:33] United States. If the U.S. was a parliamentary system, that's what would have happened.

[00:03:37] The people vote in their districts for a congressman, and then that congressman cast one vote to see who

[00:03:45] would be the leader of the United States. And that winner, which would be the Speaker of the House,

[00:03:49] Mike Johnson, he would become the president. Note, I said the House and not the Senate. In a

[00:03:54] parliamentary system, the House is representative of the people, and the Senate is sort of more

[00:04:01] representative of the states or pieces of the country that make up the country. Note that each

[00:04:08] state in the Senate has exactly two senators. It doesn't matter if you're Wyoming that has very few

[00:04:13] people living in it, or New York that has 20 million people living in it. Every state has two senators,

[00:04:19] so it's not as representative of the public. The House of Representatives, each district is

[00:04:23] determined by population, by the census. So it's more representative of a, it's more close to a popular

[00:04:30] vote than the Senate is. So that's why in a parliamentary system, Congress that looks like the House of

[00:04:35] Representatives that votes for the leader of the country. So obviously, the founders of the

[00:04:40] Constitution said, no way, we don't want a parliamentary system. We just broke free from England.

[00:04:45] We don't want to have the same political system they have. Also, another problem with the parliamentary

[00:04:51] system, and again, the idea that members of Congress pick the president, is that it doesn't

[00:04:58] really count for separation of powers as much. The Constitution is all about how do we separate the

[00:05:03] three branches of government, the legislative, judicial, and executive. So the president would

[00:05:09] be too reliant on pleasing the legislative branch, aka Congress, and so would always be kissing up to

[00:05:16] them so that they would vote for him or her to be president. So we really didn't want a congressional

[00:05:23] or parliamentary system. The other thing is, it's a little easier for foreign interference in a pure

[00:05:29] congressional system. A country can basically bribe members of Congress and the Senate over the years

[00:05:34] that those people are in office, the senators and congressmen are in office, than it would be in an

[00:05:37] electoral college system, which I'll describe in a second. Again, the popular vote is considered a

[00:05:43] direct democracy. Some countries do it, but it doesn't really work here in the U.S., and I'll describe why.

[00:05:49] So again, popular vote is you have one big national vote. Whoever gets the most votes becomes

[00:05:55] Trump's president. Only five times in U.S. history has the president of the United States lost the popular

[00:06:03] vote, but won the electoral college. I'll give you a second to just think about it. What are the five

[00:06:09] times? Now, obviously, 2016, Trump lost the popular vote to Hillary Clinton by about two million votes,

[00:06:17] but won the electoral college by almost a landslide. And the time before that was in 2000,

[00:06:24] with Bush Gore. Gore won the popular vote, and Bush won the electoral college, but just by 579 votes

[00:06:31] in Florida. And we'll discuss that in a little bit, because there was the Supreme Court got involved,

[00:06:35] and it was the electoral college is related. So Bush did not win the popular vote, but he won the

[00:06:39] election because he won the electoral college. And by the way, when they finally did do all the

[00:06:44] recounts, he did legitimately win Florida. He did legitimately win the electoral college. He was

[00:06:49] legitimately president of the United States. And before that, there was 1876, Rutherford B. Hayes

[00:06:57] lost to Samuel Tilden in the popular vote, and then basically did some deals and won the electoral

[00:07:03] college. So that was a very weird election. And Benjamin Harrison, he was the grandson of a

[00:07:09] president, interestingly, but he lost the popular vote, won the electoral college. And 1824, which is a

[00:07:15] very important election constitutionally. Andrew Jackson won the popular vote. Andrew Jackson

[00:07:22] won the electoral college, and he still lost the election to John Quincy Adams, the son of John

[00:07:28] Adams. So how can that happen? Well, there were four candidates for president, and it's not the person

[00:07:34] who wins the most electors wins. And this is crucial for the later part of this. It's not the person with

[00:07:40] the most electors that wins in the electoral college. That's called a plurality when you get

[00:07:46] the most, but you have to win a majority. So there were four candidates, and they kind of

[00:07:51] all got about a quarter. Andrew Jackson got a little bit more than a quarter. So he won the electoral

[00:07:56] college, but he did not win the majority. So it was thrown into the House, and the House

[00:08:02] picked John Quincy Adams. A lot of people thought it was unfair because the theory was John Quincy Adams

[00:08:08] told Henry Clay, who was the Speaker of the House, very influential House member, hey, I'll make you

[00:08:12] Secretary of State. You throw all your votes to me. And then John Quincy Adams got elected by the

[00:08:17] House. So if no candidate wins a majority of the electoral college, then the House of Representatives

[00:08:23] selects the president, and the Senate selects the vice president. There's one more rule, which is the

[00:08:29] House of Representatives doesn't select the president one vote at a time. Like what happens is each state

[00:08:34] delegation meets, then the congressman from that state vote, and then each state casts one vote in

[00:08:41] the House of Representatives. And that's what selects the president. A majority selects the president.

[00:08:46] So that's a basic summary of what happens, but it's important to know also the vice president is

[00:08:51] selected by the Senate. Note that, again, this is designed to combine a parliamentary system

[00:08:58] with a popular vote system. The House, again, representing closer to a popular vote system.

[00:09:04] The Senate, representing close to a more republic style of system. And now, here's the argument for

[00:09:10] a popular vote, is that if I'm from Wyoming and you're from New York, my vote is worth more than your

[00:09:17] vote. Because no matter what, Wyoming gets at least three electors, and New York gets 40, but Wyoming is

[00:09:24] more than 10 times smaller than New York. So each vote in Wyoming counts more towards electing electors

[00:09:32] than each vote in New York. So is that fair that the voters from small states should have

[00:09:38] proportionately more power than the voters in very large states? Okay, let's just leave that

[00:09:44] hanging there. Let me describe the Electoral College just for a second. The Electoral College,

[00:09:48] basically, it says that when you vote in your state, you're not actually voting for

[00:09:54] Kamala Harris or Donald Trump. It says Kamala Harris or Donald Trump on your ballot, but they're not

[00:10:00] actually up for election in your state. The presidential election is not one election. It is

[00:10:05] 51 separate elections. One election in each state and one election in the Washington DC. Again, you're not

[00:10:11] electing a president. What you're doing is you're electing a slate, a bunch of people called electors.

[00:10:16] There's a bunch of Democrat electors, and there's a bunch of Republican electors. And you vote for

[00:10:22] all the electors simultaneously. So I'm either voting for all the Republican electors or all the Democrat

[00:10:27] electors. And then the electors on December 17th will vote each in their respective state capitals

[00:10:36] for who they want to be president. By the way, it's not necessarily the case they have to vote

[00:10:43] Democrat or Republican, even if they were a Democrat or Republican elector. I'll get to that in a second.

[00:10:47] And then once they vote for who they think they should be president, each state sends the results

[00:10:55] of the electors' choices to the Congress. And on January 6th, famously, the Congress opens the results

[00:11:02] and declares who the quote-unquote electoral college picked as president. Electoral college is not a place.

[00:11:09] The words electoral college are not even mentioned in the Constitution. There's no laws that mention

[00:11:14] electoral college. It's just what it's called. But again, just to clarify, you're voting for a slate

[00:11:20] of electors. Those electors then vote for president. And by the way, the number of electors is roughly

[00:11:26] equal to the number of members in Congress of each state. If you vote for Kamala Harris, if Kamala Harris

[00:11:32] wins in your state, then all of her electors that were chosen by her or by the Democratic Party

[00:11:37] in her state are the ones that pick the president in that state. So if you're in Colorado,

[00:11:41] if Kamala Harris wins a majority of Colorado, all of her electors are the ones who cast their vote

[00:11:48] for president. Now, on December 17th, when the electors cast their vote, they don't have to vote

[00:11:54] for Kamala Harris. It's called a faithless elector, and it's happened before, where somebody who's an

[00:12:01] elector for Kamala Harris or for Donald Trump, they don't have to vote for Kamala Harris or Donald Trump.

[00:12:06] Now, in most of the states, I think about 35 of the states, they are required to vote for the person

[00:12:14] who they were elected to vote for. But in many of the states, about 15 of the states, they don't have

[00:12:20] to vote. And it's been the case. Like in 2016, after it was clear that Hillary Clinton was going to lose,

[00:12:26] some of the electors were faithless. They voted for Bernie Sanders. They voted for other people.

[00:12:31] They voted for Elizabeth Warren. This has never swayed an election. And that's why many states

[00:12:36] have also made laws requiring electors to vote for who the popular vote says they have to vote for.

[00:12:41] It could sway an election. I'm not saying, this is not a way of cheating. Most states, again,

[00:12:48] have laws against this. And I really think no state would allow an elector to be so faithless as to

[00:12:55] sway the results of an election. So let's get rid of that for a second. Again, this is what happens.

[00:13:01] Or today, if you're listening to this, you cast a vote. You're not voting for Kamala Harris or

[00:13:05] Donald Trump. You're voting for the slate of electors. And if that candidate wins, that slate

[00:13:10] has to vote for that candidate, more or less. And then on December 17th, the electors vote. And on

[00:13:15] January 6th, the Congress, the House of Representatives, but led by the vice president

[00:13:22] of the United States, basically certifies that vote. So why have an electoral college? Why not

[00:13:32] a popular vote? Well, I'll give you a couple of dangerous scenarios. First off, there is a way to

[00:13:38] win the popular vote in a very odd way. And this is just kind of a mathematical thing. So something like

[00:13:44] this would never happen, but it just shows you how the popular vote might be unfair.

[00:13:48] So let's say a candidate wins New York and California. It's a landslide in New York and

[00:13:54] California by 20% or more in New York and California. They just crush it. But then they

[00:13:59] lose the other 48 states by just 3%. So again, if you win California and New York by 20% and then

[00:14:08] lose the other 48 states by just 3%, you could win the popular vote, but you will lose 48 states to two.

[00:14:18] And that doesn't seem fair. It means that all of the states, including Texas, Illinois, Michigan,

[00:14:26] Wyoming, Montana, Ohio, New Jersey, Maine, all the other states could potentially in a popular vote,

[00:14:33] never have any influence in an election. The only two places where a candidate should ever campaign

[00:14:39] or make promises to are New York and California. And you never have to care about any of the other

[00:14:45] states. If you're the president, you only have to care about making the people in New York and

[00:14:49] California super happy and you could still win the election every time. So that's one reason why

[00:14:55] people don't like just a popular vote solution. The other reason that's kind of important is let's say

[00:15:00] the national election is really, really close. How do you do a nationwide recount in time for

[00:15:07] January 20th or maybe hold another election? Like it just seems almost impossible. If there's

[00:15:12] questions of fraud or if things are very close, you want to make it as local as possible. So the

[00:15:18] problem is only isolated to a small local area. So there's time to do a recount or fix the problem

[00:15:24] or whatever. So a nationwide recount would be too hard to do. And so that's another reason why

[00:15:31] a popular vote has not happened. Another reason why is the, and this is an ugly reason,

[00:15:36] and it's obviously a reason I disagree with and everybody should disagree with. Another reason

[00:15:41] is slavery. So when the constitution was written in 1787, but was put into action starting around 1789

[00:15:47] or 1788, there was simply more population in the North. So the Southern states thought that the North

[00:15:53] would instantly vote away slavery, which they would of course. And the Southern state wanted to feel like

[00:15:59] that wouldn't happen. So they were very much in favor of the electoral college. So that's an ugly

[00:16:04] reason to be against a popular vote and for an electoral college. By the way, right now, 60% of

[00:16:10] people prefer a popular vote to electoral college, but I think they don't really understand the math

[00:16:14] of that New York and California example that I mentioned before, where it really is possible,

[00:16:20] not likely, but possible for only two states out of 50 to have any influence at all in the

[00:16:26] presidential election. The electoral college, while it's smaller, it does allow for a broad representation

[00:16:32] of people throughout the United States. So kind of the so-called fire over states have more influence.

[00:16:38] By the way, no other country other than the U.S. does an electoral college. Everybody who tried

[00:16:43] an electoral college got rid of it, usually in favor of direct democracy, a pure vote, but the U.S.

[00:16:48] still has it. One thing I like about the electoral college is not only this broad representation,

[00:16:53] but, you know, I mentioned earlier how a parliamentary system could be influenced by foreign

[00:16:58] powers. Like maybe, you know, I don't know, Putin could bribe people in Congress, but an electoral

[00:17:03] college only exists for like a few weeks. They're elected November 5th, they vote December 17th,

[00:17:11] and then they're gone. And you don't know who's going to be in the electoral college until election

[00:17:15] day in November. And then just a few weeks later, they make their vote and they're gone. It's much

[00:17:19] harder, I should say, to influence. And it also doesn't make the president rely on a specific group of

[00:17:26] people like Congress. He doesn't have to kiss ass to the electors. All these electors have to vote for

[00:17:31] him or her. So I'll mention there was, there's been many attempts, but there was one almost attempt

[00:17:35] to get this changed. In order to make a popular vote now, you have to make a constitutional amendment.

[00:17:41] You can't just make a law. Because this is in Article 2, Section 3 of the Constitution,

[00:17:48] you have to change the Constitution with a constitutional amendment. In order to make a constitutional

[00:17:52] amendment, as opposed to a law, you need two-thirds of the House and Senate to vote for it, as opposed

[00:17:58] to just 50.1%. And you need three-fourths of the state legislatures to vote for it. Obviously, 48 states

[00:18:07] have no incentive to change this from electoral college to a popular vote. So this will never be

[00:18:13] a constitutional amendment. But in 1969, Senator Birch Bayh led a push. He proposed in the House,

[00:18:23] or he got someone to propose in the House, for a constitutional amendment to change the election.

[00:18:28] The House, it was a landslide. The House voted 339 to 70 to request the states consider this

[00:18:36] constitutional amendment. But the Senate didn't even look at the law, so it never got passed.

[00:18:41] By the way, just a footnote about Senator Birch Bayh. In 1980, on my birthday, I was turning 12 years

[00:18:48] old. And my father took me to Washington, D.C. for my first trip there. And it was Senator Birch Bayh's

[00:18:56] birthday as well. And so I went to his office, and his office was very kind to me. I was a 12-year-old

[00:19:04] kid. They brought out a cake, and they sang happy birthday to both of us. And my moment in the sun

[00:19:10] on Capitol Hill. Anyway, here is the issue. Here is the issue. I'm going to talk about two issues

[00:19:15] whereby I think someone can cheat. Oh, by the way, I just want to mention, in the electoral college,

[00:19:21] this is very important, it's 48 of the states have winner-take-all. Even if I only win 51% of the

[00:19:28] votes in Colorado, I get 100% of the electors. So 48 states have a winner-take-all for the slate of

[00:19:33] electors that they send to the electoral college. But two aren't Maine and Nebraska. It's a combination

[00:19:40] of winner-take-all against some of the electoral votes, and also each congressional district

[00:19:44] votes for an elector. So it makes a small difference, but who knows? It could make the

[00:19:50] difference of an election. Now, again, if nobody wins a majority of the electoral votes, then it goes

[00:19:57] into the House to pick the presidency and the Senate for the vice presidency. That could only occur in this

[00:20:03] election if it's a tie, 270 to 270. Now, I said 270. How many electors do you need to win the election?

[00:20:10] Well, there's 538 electors. That's how many people on November 5th we select or we elect to the electoral

[00:20:17] college. And 269 to 269 is a tie. And if you get 270, you win the presidency. And this is not quite

[00:20:28] accurate according to the Constitution. But everyone says this. Like, the Secretary of State of Alabama

[00:20:34] has an FAQ about the election. And one of the questions was, how many electors does a person

[00:20:39] need to win the presidency? And it specifically says 270. This is not true. And many states say this

[00:20:45] on their FAQs about the election. And I've seen many articles in the New York Times, in the Washington

[00:20:51] Post, on both left and right websites. You need 270 electoral votes to win the election. This

[00:20:58] is not true. And this is the biggest possibility for cheating. Here's what you need. You need a

[00:21:05] majority of the electors. Well, you can say, you just said there's 538 electors. 269, 269

[00:21:12] is a tie. So 270 is a majority. Yes, that's true. If 538 electors are elected and sent to the electoral

[00:21:23] college, that is true. So a couple things to mention. And how does someone get to be an elector?

[00:21:29] Well, right now, you're elected an elector if the majority of your state votes for you. But it wasn't

[00:21:36] always the case. And by the way, this is not what the Constitution says. The Constitution actually says

[00:21:41] the state legislature is 100% in charge of who the electors are that go from your state to

[00:21:51] the electoral college to then elect a president on December 17th when the electoral college votes.

[00:21:56] So if I'm the state House of Representatives of Georgia, for instance, or Colorado or Maine or

[00:22:03] whatever, I can say, you know what? We're just going to pick the electors by lottery. We're going to make

[00:22:08] a law where we're going to put everybody who lives in Colorado in a big basket and we're going to pull

[00:22:14] out 13 names or however many people are electors from Colorado. And those are going to be the electors.

[00:22:19] We're not going to have a vote. We're just going to do it by lottery. That actually is a legal method

[00:22:25] that the state legislatures can choose to select their electors. It doesn't have to be by a popular vote.

[00:22:31] In fact, in the first presidential races, like in the early 1800s, it was about half and half whether

[00:22:37] states used the popular vote or not. Now, ever since 1868, all the electors, each election has been

[00:22:45] chosen by popular vote. But that's because the state legislature of each state made a law saying

[00:22:51] that the electors have to be chosen in that state by popular vote. Now notice 48 states made it winner

[00:22:59] take all, but two states made in Nebraska, their state legislature voted. We don't want it to be

[00:23:03] winner take all. We're going to make it this way. Congressional districts get an elector and then

[00:23:08] the state as a whole gets electors. So they made their own laws. And this was very important to note

[00:23:14] that this was a state by state way of choosing the electors from that state. So let's get to the

[00:23:22] heart of it now. And then the state legislature is the body of people who certify, here's who the

[00:23:30] electors are. They have to do this by December 8th this year. We're telling Washington, D.C.,

[00:23:35] we're telling the Capitol, here's who our electors are. And then on December 17th, we're going to vote

[00:23:40] with those electors and then we're going to send the results of the votes to you. So again, it has

[00:23:44] nothing to do with the popular vote. It has nothing to do with the Constitution. It's just by law in each

[00:23:51] state individually. And again, this only started around 1868 where all the states chose their

[00:23:57] electors via popular vote. But again, I will remind you, and this is critical for the cheating I am

[00:24:02] about to get to, the possible cheating. In the Constitution, the state legislatures have 100%

[00:24:08] of the power to pick the electors of that state. The Constitution does not mention the popular vote at

[00:24:14] all. Now, what could that mean? Well, it could mean that let's say a state votes red.

[00:24:20] But the state legislature is blue, meaning the state House of Representatives has a majority of

[00:24:25] Democrats over Republicans. Even if the state votes for a Republican candidate, the state legislature,

[00:24:33] again, according to the Constitution, can technically say, hey, we hear you, popular vote, but we're going

[00:24:40] to send a Democrat slate of electors instead. Now, this has never happened, but it is a potential way,

[00:24:47] according to the Constitution, for it to happen. Will it happen? No. Because there is a little bit

[00:24:53] of a precedent thanks to Bush-Gore 2000. What happened was, is that when they initially counted

[00:25:01] the votes in Florida, it looked like Bush won by a thousand. Now, they did a little bit of recounting,

[00:25:08] and his count slimmed down to 300. So Gore obviously wanted a bigger recount. And Bush did not want a

[00:25:18] bigger recount because he was only winning by 300, but it was 300 people out of 300 million people in

[00:25:23] the United States. But that was big enough for him to say, look, I'm president of the United States,

[00:25:28] no more recount. And there wasn't any laws that specified in Florida how a recount could or should

[00:25:34] happen. Gore obviously said, no, no, no, we need a recount. And the Florida Supreme Court said, yeah, yeah,

[00:25:39] we agree with Gore. We're going to have a recount. And it went, of course, it was appealed to the U.S.

[00:25:45] Supreme Court. And the U.S. Supreme Court said, you could have a recount if you want next election,

[00:25:50] but the law in Florida does not say anything about having a recount in this election. So there's no laws

[00:25:59] provisioning for a possible recount. In other words, they said, you cannot change state law

[00:26:06] after the election has already occurred. You could change state law for future elections,

[00:26:11] but you cannot change state law for the election that just occurred. Now, a lot of people screamed

[00:26:18] and yelled and said, well, that means Bush might be winning unfairly. Luckily, when they really did do a

[00:26:23] full recount after the fact, you know, and this was after Bush was already president, Gore had conceded,

[00:26:29] but they still went ahead and wanted to see who really won. Bush did win officially by 579 votes in

[00:26:36] Florida. It didn't really matter. It didn't change the election, but it did set a precedent that the

[00:26:42] states cannot change their laws after the fact. By the way, there's a slight loophole in this decision in

[00:26:47] that the Supreme Court says we're just making a ruling about this one situation and not in general,

[00:26:52] but pretty much that set the precedent that states cannot change the laws by which they certify a

[00:27:00] slate of electors after the election has occurred. Now, since all 50 states have laws saying the slate

[00:27:07] of electors is chosen by popular vote, the state legislature cannot change the law after the election.

[00:27:14] It has to be by the popular vote, but there is a loophole to this. There is no timeline by which

[00:27:21] the state legislature has to send in to Washington, hey, here's who our electors are and here's how

[00:27:30] they vote. There's no timeline. I'll use the opposite example. Let's say Florida, for instance,

[00:27:36] has a Republican state legislature. Let's say Florida votes for Kamala Harris. The popular vote of

[00:27:42] Florida is for Kamala Harris. Okay, so now it's Kamala Harris. The state has to use the slate of electors

[00:27:48] that was elected, which is Kamala Harris's electors. And the state legislature could say, fine, we approve,

[00:27:56] but you know, we're just going to think about it for a few weeks. And they send it in on December 18th.

[00:28:02] Guess what? It's too late. Once you pass the deadline, then you're out. You opted your state

[00:28:09] out of that election. And you could think to yourself, this is ridiculous. No state is ever going to do that.

[00:28:15] Well, there is precedent. So for instance, in 1864, the Civil War was going on. The Southern states

[00:28:21] did not send in their slate of electors. You know, the Northern states, which was called the United

[00:28:27] States, they did not agree that the Southern states have conceded. So they waited for their

[00:28:33] slate of electors and the slate of civil electors for the Southern states never came in. And those states

[00:28:40] simply did not vote for the presidency in 1864. By the way, in 1792, or whenever the first election

[00:28:47] was, New York hadn't gotten their act together to figure out how to ratify a slate of electors.

[00:28:52] So New York state did not vote in the first election because they never sent in a slate of electors.

[00:28:57] So there is some precedent for not sending in. Like it has happened. Now, these are extreme examples,

[00:29:04] but I'll give you some examples. So for instance, Florida, right now, if you look at all the polls,

[00:29:08] it looks like Florida is leaning towards Trump and the Florida state legislature is Republican.

[00:29:14] But if hypothetically Florida went for Kamala, hypothetically, this could happen in Florida.

[00:29:20] They could say, you know what, we're just not going to send in our electors. And I will explain

[00:29:24] what happens next in a second. And so they would just opt out of the race if that happened.

[00:29:29] The Florida voters would not get a chance to vote for president. On the flip side, let's say California

[00:29:34] votes for the popular voters for Donald Trump. It's almost certainly not going to be, I would say

[00:29:39] 100% chance it's not going to be for Donald Trump, but let's just say it's for Donald Trump.

[00:29:45] Kamala supporters could call up the state legislature and say, listen, do not send in

[00:29:48] that slate of electors. Just wait until December 18th to send it in. And then it's too late.

[00:29:53] And then California would not vote for Trump. It would not vote for anybody. Now, what happens

[00:29:58] then? Do you still need 270 electors? No. The number 270 is not written in the law. To win the

[00:30:04] presidency, you need a majority of the electoral college. If, for instance, Texas did not send

[00:30:11] in a slate of electors, Texas has 40 electors out of the 538. The electoral college would not have

[00:30:18] 538 electors. It would have 498 electors. And then you would only need 250 electoral votes to

[00:30:26] win the presidency. And you don't need 270. So anybody, any article that says you need 270

[00:30:33] electoral votes to win, they're sort of correct, assuming that 538 electors are sent in. But

[00:30:39] they're not constitutionally correct when they say that. You need half of the electors that are sent in.

[00:30:45] And so, again, this is a way to cheat. So if one candidate wins the popular vote of a state,

[00:30:51] but the state legislature delays, because let's say if a Democrat wins Florida or a Republican wins

[00:30:59] California, California could say, look, we're not going to send anything in. Or if a Democrat wins

[00:31:04] Florida, the Republican state legislature could say, oh, we thought it's in the mail. We thought

[00:31:10] we sent it, but we didn't send it. So people are worried. They're worried either way. It's not going

[00:31:15] to go to the House. If they're cheating, this could spiral out of control though. Like basically you

[00:31:21] could only win in the states where you control the state legislature because both sides will start

[00:31:25] doing this and it would go crazy. But here's what would actually happen. This has been suggested on

[00:31:30] both sides as a potential method for cheating. And by the way, this would be a completely legal way to

[00:31:36] cheat. There is no way constitutionally to avoid it. Now, obviously it'll go up to the Supreme Court

[00:31:43] and the Supreme Court could say, well, the law is these are the electors. And you know, there wasn't

[00:31:51] a good reason for the state legislature to delay. So you were basically doing election interference by

[00:31:57] not sending in your slate of electors. They could say that, but that there's no law about this. And

[00:32:01] the constitution does give the state legislature some discretion on this. So yes, it'll go up to the

[00:32:07] Supreme Court. Probably the side of, you know, whoever doesn't want this to happen would say this

[00:32:15] is interference in the Supreme Court would probably agree with that. But again, this is a loophole in

[00:32:20] the constitution. And I've seen articles, people are actually worried about this. I see more that

[00:32:24] people are worried that Republicans will do this. There's another reason too. Like let's say Florida,

[00:32:30] a Democrat wins and the state legislature, and by the way, state legislature is more or less run by

[00:32:37] the governor. So Ron DeSantis is a Republican. Florida state legislature is Republican. Let's say

[00:32:42] they don't send in a blue slate of electors. Well, the blue people were the majority in Florida,

[00:32:51] in my hypothetical scenario. So anybody who's Republican is just never going to get elected

[00:32:56] again because the popular vote wanted blue. So basically everybody's going to lose faith in

[00:33:00] any Republican candidate because they're not really following the ethos of the law.

[00:33:05] And Ron DeSantis doesn't want to vote himself out of a job. The Republicans in the state legislature

[00:33:09] don't want to vote themselves out of the job. So even if there was some giant conspiracy to rig or

[00:33:14] legally cheat in this election, this is not going to happen. And on top of just the ethics,

[00:33:21] there's people want job security. They're not going to vote themselves out of their job.

[00:33:25] And then there's this potential for the Supreme Court to override it anyway,

[00:33:29] even though the Supreme Court does not have to override that. That's just, you know,

[00:33:33] that's a very hypothetical, but that is one legal way to change the results of election.

[00:33:40] There is another legal way, and this would affect the Republicans more than the Democrats.

[00:33:45] You know, Trump's been impeached for insurrection in the house. Like after January 6th,

[00:33:50] you kind of wonder, so Biden was inaugurated on January 20th, 2021.

[00:33:56] On January 6th, 2021, there was the, you know, the certification of the electoral college. And of

[00:34:03] course there was the mob attack on Capitol Hill. And you wonder, and everybody wondered this,

[00:34:11] why between January 6th and January 20th, was it so important to impeach Donald Trump for causing

[00:34:17] that insurrection? I'm not arguing whether he did or didn't. I just want to know,

[00:34:21] why did they need to impeach him? He only had 14 days left in the office and the Senate was clearly

[00:34:27] not going to convict him in those 14 days. You know, in order to throw someone out of office,

[00:34:32] the house impeaches, and then the Senate convicts, and then the person is thrown out of office.

[00:34:37] So it's only after those two parts. So why were they so hurried to impeach him when he only had

[00:34:44] 14 days left in office anyway? And he was probably not going to get convicted by the Senate in those 14

[00:34:49] days. It didn't really matter. Well, it turns out it did matter because after the civil war,

[00:34:54] people were worried that maybe someone like Jefferson Davis, who was the president of the

[00:34:59] Confederates, would somehow run for Congress or Senate or even president in the United States.

[00:35:06] And so the states passed a new constitutional amendment, the 14th amendment. And specifically,

[00:35:13] the 14th amendment basically says that anyone who's ever been impeached for an insurrection,

[00:35:20] that's an important word. Anyone who's ever impeached for an insurrection cannot hold any

[00:35:26] federal public office again. So specifically says, and this language is important,

[00:35:31] no person shall be a Senator or representative in Congress or elector of president and vice president,

[00:35:37] or hold any office civil or military under the United States or under any state who having

[00:35:42] previously taken an oath as member of Congress or as an officer of the U S or as a member of any state

[00:35:49] legislature or as an executive or judicial officer of any state to support the constitution of the U S

[00:35:56] shall have engaged in an insurrection. So what does that mean? It means that all the offices I just

[00:36:01] mentioned, like you cannot be a Senator or representative or elector or hold any office

[00:36:07] under the U S or as an officer of the United States, you can't be any of those things if you

[00:36:15] have engaged in insurrection. So the fact that they use the word insurrection when they impeached Donald

[00:36:19] Trump, that's the argument for he cannot be president of the United States. So you can be sure if he is

[00:36:26] elected president, and again, I am not speaking with any bias. This is what's going to happen. These are facts.

[00:36:31] Just like if there's election fraud, it's a fact that either side is going to pursue the case. This

[00:36:37] is what's going to happen is that if Trump is elected, the Democrats will say, that's fine. You're

[00:36:41] elected, but you can't be president because you were impeached for insurrection. And you've had some

[00:36:47] other criminal cases against you, which mentioned the word insurrection and Colorado, the state of

[00:36:51] Colorado and Maine did this as well actually took Donald Trump's name off of the ballot because they

[00:36:58] said, the state Supreme court said, look guys, it says in the constitution, if you're convicted or if

[00:37:04] you've engaged in any insurrection and the house of representatives said Donald Trump engaged in

[00:37:10] insurrection, you can't be president. So we're taking him off the ballot for president of the United States.

[00:37:14] The Colorado Supreme court said this was fine. The Supreme court stepped in and said, no, no, no,

[00:37:19] you are a state. You cannot have anything to do with the election of a federal official. And

[00:37:26] president of the United States is a federal position and not a state position. So Colorado was forced to

[00:37:33] put Donald Trump's name back on the ballot. Note, the Supreme court did not say anything about

[00:37:39] insurrection. They just said that the state does not have power to remove anybody from a presidential

[00:37:44] ballot because a presidential ballot is not a state office. It's a federal, but now Donald Trump's

[00:37:50] argument, I'm just saying as lawyers, his argument is that he's not an officer of the United States.

[00:37:55] He's not on the list of people mentioned in the 14th amendment. Again, the Supreme court is going to

[00:38:02] have to decide who knows, but I might guess it's going to be politically very unpopular for the

[00:38:08] Democrats to take that all away and fight it in the Supreme court. And here's the other thing.

[00:38:13] Let's say they win and let's say Donald Trump wins the election, but then because of the 14th

[00:38:18] amendment, which again was really made just for, to stop people who fought for the South in the civil

[00:38:24] war, it was to stop them correctly from becoming president of the United States again, or a

[00:38:28] congressman or a Senator. So let's say Donald Trump is no longer going to become president because of

[00:38:34] this. Well, what happens according to the constitution? The constitution specifically says if the

[00:38:39] president elect, i.e. the person who was elected president, the president elect cannot assume the office

[00:38:45] of the presidency, then the vice president elect will assume the office of the presidency.

[00:38:49] The vice president elect is J.D. Vance. So let's say they do something to get rid of J.D. Vance.

[00:38:56] Well, next in line to become president is the speaker of the house. Although it will be determined

[00:39:00] in the election happening on November 5th, the speaker of the house is almost certainly going to

[00:39:04] be Mike Johnson, who is the current speaker of the house, who's a Republican. And my guess is what

[00:39:09] Mike Johnson would do is he would appoint Donald Trump, his vice president, and then resign from office

[00:39:17] immediately. Donald Trump will be president and then they would have to impeach and then convict him

[00:39:21] to remove him from the presidency, which they won't do because the Republicans control the house.

[00:39:26] So this is another reason why the Democrats won't do it because it'll be a convoluted way

[00:39:30] to destroy the faith in our system. And again, correctly or incorrectly, they don't want to do that.

[00:39:38] I think they shouldn't do that. And I don't think that will happen. So although there are legal ways to

[00:39:44] cheat and all of these legal ways might be pursued somewhat, they won't really result in things. So

[00:39:51] I've seen articles written, and this is how Donald Trump could win. This is how Kamala could win. Don't

[00:39:55] have the state legislatures send in the results in time or have the state legislators change the

[00:40:00] results. They can't change the results because again, that would probably go against the Bush versus

[00:40:06] Gore U.S. Supreme Court case, meaning you cannot retroactively change the state law about how electors

[00:40:14] are elected. And also the precedent it sets, it would ruin whatever party is in power in that state

[00:40:20] probably forever. It would destroy the faith in that party forever. Probably would cost Republicans

[00:40:26] or Democrats future presidential elections if they pursued that method of cheating. Second,

[00:40:30] I don't think the Democrats, they have said, I've seen it in the New York Times, Washington Post, NBC,

[00:40:37] CNN, NPR. They have said that they will pursue the 14th amendment, but at the end of the day,

[00:40:43] I do not think they will. So you might see articles about these things. You might see all sorts of

[00:40:48] debates on TV. My advice is to ignore it. I hope you learned a little bit more about why we have an

[00:40:55] electoral college versus a popular vote. And please share this with anybody concerned about kind of

[00:41:02] legal cheating after the election takes place. It's possible, but I don't think it will happen.

[00:41:08] Thanks so much. You feel free to ask me any questions you want. Share this friends. You can find me at

[00:41:14] Jay Altucher to ask questions and I hope you all have a safe election.