Speaker 1: News of President Trump testing positive for the coronavirus has
Speaker 1: whirled the country, perhaps throwing even more chaos into an
Speaker 1: already frenetic election year. Trump has been casting doubts on
Speaker 1: the validity of any election results for some time, and
Speaker 1: during Tuesday's debate, he suggested that the presidential election will
Speaker 1: be contested and then it might get ugly if he
Speaker 1: doesn't win. I am urging my people. I hope it's
Speaker 1: going to be a fair election. If it's a fair election,
Speaker 1: I am a on board. But if I see tens
Speaker 1: of thousands of ballots being manipulated, I can't go along
Speaker 1: with that. Joining me is elections law expert Richard Brafald,
Speaker 1: a professor at Columbia Law School, where start by explaining
Speaker 1: how the law gives states the power to take electoral
Speaker 1: votes back from the voters. As everyone knows, the election
Speaker 1: for president is really an election decided by the electoral College,
Speaker 1: and every state has provided that its electoral votes will
Speaker 1: be determined by who wins the popular election on November three. However,
Speaker 1: under the Constitution, the state legislatures have the right to
Speaker 1: decide how their electoral votes are going to be cast,
Speaker 1: and although this has never happened since state legislatures have
Speaker 1: collectively decided to entrust this decision. Since the popular vote,
Speaker 1: the issue has been raised about whether or not, after
Speaker 1: election day, the state legislature of any given state could
Speaker 1: decide to cast that state's electoral vote on its own.
Speaker 1: That issue has never come up before, and we don't
Speaker 1: know what would happen if the state legislature after election
Speaker 1: day passed as a law that says we're giving our
Speaker 1: electoral votes to so and so. But that issue has
Speaker 1: come up partly because of efforts raised by the President
Speaker 1: and others to cast a cloud over the legitimacy of
Speaker 1: the popular vote at a time when more people than
Speaker 1: ever are going to be voting by mail. One issue
Speaker 1: is how long will it take to get the popular
Speaker 1: vote tabulated and what issues are going to be raised
Speaker 1: about that, and to what extent Trump from the Republicans
Speaker 1: going to try and deny the legitimacy of the popular
Speaker 1: vote if it goes against them as a way of
Speaker 1: justifying an action by a state legislature stay like in
Speaker 1: Pennsylvania or Wisconsin, to get its electoral votes to Trump.
Speaker 1: So what does the timetable for this look like? The
Speaker 1: timetable for this is partly driven by something called the
Speaker 1: Electoral Count Act. So in eight seven, following the disputed
Speaker 1: election of eighteen seventy six, Congress past a law trying
Speaker 1: to bind itself in the future as to how it
Speaker 1: would deal with disputed sets of electoral votes. And what
Speaker 1: it said is that so long as the state resolves
Speaker 1: any dispute about who's wont its electoral votes by six
Speaker 1: days before the electoral College is supposed to meet this year,
Speaker 1: it's Nomber sixte and provided that the state resolved all
Speaker 1: its disputes by six days before that, Congress has pledged
Speaker 1: to accept the winner of the states electoral votes. So
Speaker 1: that's sometimes called the safe Harvard deadline. They can still
Speaker 1: take those results later. There's nothing that prohibits them from
Speaker 1: accepting later results. Those deadlines are really an artifact of
Speaker 1: congre but it's effectively about five weeks after election day,
Speaker 1: and one question is will five weeks be enough time
Speaker 1: not just to tabulate all the absentee votes, but also
Speaker 1: to resolve the many challenges that are likely to be
Speaker 1: brought against them. Several states are involved in fights disputes
Speaker 1: over allowing election officials to begin counting absentee ballots before
Speaker 1: election day? What's the general rule? Is there a general
Speaker 1: rule about counting absentee ballots before election day? The general
Speaker 1: rule in the States is that they are not allowed to.
Speaker 1: I think it's a concern that those early tabulations will
Speaker 1: somehow get out and that will somehow influence the voting
Speaker 1: that's going to happen on election day. So nearly all
Speaker 1: states and maybe all states pre have been any counting
Speaker 1: before election day. There are some some dates allow um
Speaker 1: what's called the processing to begin earlier than that. Tabulating
Speaker 1: election absentee votes are mail only votes is trickier than
Speaker 1: regular votes because remember that they come in this outside envelope.
Speaker 1: So some states do allow, and the call is being
Speaker 1: made for more states to do this, to at least
Speaker 1: to begin the process of processing, which is to say,
Speaker 1: checking the signatures on the outside of the envelope to
Speaker 1: match them with signatures on file, uh, so that they
Speaker 1: can see if it's a velo, opening it up, getting
Speaker 1: it kind of straightening it out as if you will,
Speaker 1: and getting it ready to speed into the tabulation machines.
Speaker 1: I mean part of the it's just it's more work
Speaker 1: to process and absently vote. You really do have to
Speaker 1: check the signature on the outside, open it up, I
Speaker 1: don't know the mechanics applete that's kind of folded, and
Speaker 1: get it ready to sign it to the tabulation. And
Speaker 1: so a number of states do allow that process to
Speaker 1: begin earlier, and the call is being made to allow
Speaker 1: more states to do that. It even makes a difference
Speaker 1: when on election day this is allowed. Some states don't
Speaker 1: allow it to begin until the polls have closed. Others
Speaker 1: will allow it to start on election day itself, and
Speaker 1: that can make a big difference in terms of when
Speaker 1: we get a final count. So there's been a home
Speaker 1: in a number of states either to ease the law
Speaker 1: on this or to do administratively at least the processing,
Speaker 1: but getting it ready to be counted rather than the
Speaker 1: actual account rather than the actual account, and to have
Speaker 1: that all set to go either on election day or
Speaker 1: on election night, depending on the law of the individual state.
Speaker 1: So now this brings up a recent case in Pennsylvania,
Speaker 1: a swing state obviously, where nine military ballots were discarded.
Speaker 1: It was announced that seven of those were voting for
Speaker 1: President Trump, and the officials, the election officials said that
Speaker 1: this was caused by a temporary seasonal independent contractor on
Speaker 1: their first day at work. President Trump knew about the case,
Speaker 1: talked about the case before it was announced. So this
Speaker 1: brings up questions of well, first ballot secrecy. Yeah, now
Speaker 1: this clearly was a mistake, but it is interesting how
Speaker 1: this went straight to the White House, and how the
Speaker 1: White House, who the local U. S. Attorney who made
Speaker 1: a public statement even though normally they wouldn't do that,
Speaker 1: it would investigate first. Uh. And I think it it
Speaker 1: just also just underscores, you know, how much work it
Speaker 1: takes to process the absentee ballots, and you know they
Speaker 1: need to have a better need to just to be
Speaker 1: fully funded and to have a good system. Um. So
Speaker 1: you know, I think it it also shows that in fact,
Speaker 1: it's not clear that people have had absent to your
Speaker 1: old Democrats. Um. But it sounds like there were actual
Speaker 1: mistakes that were made also in the on the ballots themselves,
Speaker 1: and which I don't think anyone is I'm not sure
Speaker 1: anyone has challenged the fact that these ballots were properly
Speaker 1: discarded and that there were mistakes. Um. But it is
Speaker 1: interesting that the information went went straight to the justice
Speaker 1: departments of the White House. Our election officials allowed to
Speaker 1: open these ballots before the election and announced oh seven
Speaker 1: were for President Trump. Uh, I stain not allowed to
Speaker 1: do that. No, I mean where they're not to whether
Speaker 1: they were allowed to sort of begin the processing, that's
Speaker 1: a good question. And sometimes, uh, I don't know enough
Speaker 1: about the details. But as I say, sometimes you can
Speaker 1: begin the processing earlier. And I think that I think
Speaker 1: the leak on who the votes who were from came
Speaker 1: from the U. S. Attorney, not from the election officials.
Speaker 1: President John has also said that only the votes that
Speaker 1: are known on election night matter. Why is he saying that, Well,
Speaker 1: part of this I think relates to it is sometimes
Speaker 1: called the blue shift, and this year is being called
Speaker 1: the Red Mirage. Well, in the past, I don't think
Speaker 1: it made a big difference between Democrats and Republicans who
Speaker 1: votes by mail. In recent election cycles, I think you've
Speaker 1: been seeing a slightly higher percentage of Democrats vote by mail,
Speaker 1: so that the election night numbers will be a bit
Speaker 1: more Republican than the total numbers. This has certainly been
Speaker 1: true nationally because the states that have the heaviest use
Speaker 1: of mail and ballots on the West Coast, Washington, Oregon, California,
Speaker 1: and so you may remember in Hillary Clinton's election night
Speaker 1: pop a vote margin of about a half a million
Speaker 1: or more grew over time to about two and a
Speaker 1: half million as more and more votes came in from
Speaker 1: the West Coast. So the assumption is especially this year
Speaker 1: with the President's basically telling Republicans not to vote by
Speaker 1: mail that the election night vote in the close states
Speaker 1: will show a Republican lead, which will be offset over
Speaker 1: the next couple of days as the mail in votes
Speaker 1: are taculated. He's basically saying, we should ignore the late votes.
Speaker 1: We should ignore the mail in votes. Now. An article
Speaker 1: in the Atlantic said that Republicans in the swing state
Speaker 1: of Pennsylvania have considered how the state legislature could appoint
Speaker 1: electors of their own choosing in the absence of a
Speaker 1: clear election night win. At what point does the law
Speaker 1: give them the authority to do that. It's not clear
Speaker 1: that it would ever be legitimate, though it might be
Speaker 1: constitutional in that right. Remember, for example, in Bush versus Gore,
Speaker 1: it took some five weeks to figure out who wants Florida,
Speaker 1: and even then they hadn't really figured it out. With
Speaker 1: Supreme Court came in and stopped the count. So we
Speaker 1: have had many elections in which a result was not
Speaker 1: known on election night or even a week later. Remember
Speaker 1: also that under federal law, military ballots are entitled to
Speaker 1: be received and counted up until ten days after election day.
Speaker 1: To actually, under federal law, you really can't have a
Speaker 1: final result until ten days after election day. UM. Whether
Speaker 1: or not state legislature you could just step in and
Speaker 1: declare a winner. UM. A couple of questions come up.
Speaker 1: One is is that the state legislature alone or what
Speaker 1: about the governor? I mean, the Pennsylvania has a democratic governor.
Speaker 1: What if he tried to veto this. It's an unclear
Speaker 1: question as to where the legislature could do this without
Speaker 1: passing a law that the government, which that was the governor,
Speaker 1: to veto. It's also quite possible that you might have
Speaker 1: to competing set of the electors if the votes continue
Speaker 1: to be counted. Maybe there are legal challenges and those
Speaker 1: get resolved by this in the state or federal court system.
Speaker 1: You might actually have one set of electors that get
Speaker 1: certified by the Secretary of State in Pennsylvania and another
Speaker 1: who were declared by the state legislature. UM. And the governor.
Speaker 1: The governor approved the Secretary of State certification in stends
Speaker 1: of that set of electors um to Washington. Under again,
Speaker 1: under the Electoral Countact, the Congress is supposed to accept
Speaker 1: the governors certification in case there's a dispute. But of
Speaker 1: course what Congress does will be up to Congress. Uh.
Speaker 1: And Congress in this case means the two houses stating together.
Speaker 1: And we might have a Democratic House Representatives and we
Speaker 1: might still have a Republican Senate. So what Congress actually
Speaker 1: does when states with two competing sets of electors, we
Speaker 1: don't know. North Carolina is also drawing a lot of
Speaker 1: attention because two Republican members of the state election board
Speaker 1: resigned over a court settlement over mail in voting practices.
Speaker 1: How unusual is that? And are they resigning just to
Speaker 1: bring attention to this settlement? They may be doing that. Yeah,
Speaker 1: it's a kind of a protest um. So now North
Speaker 1: Carolina has I think made space insnect made subset to
Speaker 1: make absente voting easier. Uh, And they're obviously protesting it.
Speaker 1: And this could be a set up for some stepsic
Speaker 1: in action by the North Carolina legislature. I mean, that's
Speaker 1: the kind of The kind of meltdown that we're facing
Speaker 1: here is clothes votes in a number of key states
Speaker 1: where it's possible that you know that's the absentee votes,
Speaker 1: the mail and votes will be the marginal victory for
Speaker 1: the winner. Uh. And you see Republicans, although from the
Speaker 1: president on down, trying to de legitimate these absentee votes,
Speaker 1: even though absent votes have always been cast and always
Speaker 1: been counted. It is true that in many states now
Speaker 1: many more will be test and counted than ever before.
Speaker 1: Probably many more will be cast and not counting because
Speaker 1: people make mistakes with absentee votes, especially if you've never
Speaker 1: done it before. So I suspect that a lot of
Speaker 1: challenges to absentee votes that were accepted, and probably be
Speaker 1: a lot of challenges to absolute votes that weren't accepted,
Speaker 1: because there's just there is a higher error rate with
Speaker 1: absentee votes. There's more as expected of the voter, and
Speaker 1: particularly that signal sure on the outer envelope, which many
Speaker 1: people find strange given that this is supposed to be
Speaker 1: um a secret vote. Well, that signature is an effect,
Speaker 1: the equivalent of showing your idea or show or signing
Speaker 1: when you come to the polling place, and that outer
Speaker 1: ballot that out are almost supposed to be discarded or
Speaker 1: at least put separately. Um and then your inner the
Speaker 1: inter envelope is not signed, and that's the one that's
Speaker 1: then open to get your votes. Why is there almost
Speaker 1: an assumption that the Supreme Court will have to decide
Speaker 1: this presidential election. The only time they've ever done it
Speaker 1: was in two thousands, and there it all turned on
Speaker 1: kind of a narrow issue in one state. Many people
Speaker 1: were surprised that the Supreme Court took that case. So
Speaker 1: it's hard to make any predictions at all. Supreme Court
Speaker 1: is not supposed to be the judge of election return.
Speaker 1: It is possible if there will be constitutional issues that
Speaker 1: are raised that will bring the Supreme Court in, and
Speaker 1: also sometimes takes a while to get to the Supreme Court.
Speaker 1: That's really not going to come in immediately. I've been
Speaker 1: reading about that the RNC had been under a consent
Speaker 1: decree going back to the eighties when Democrats accused it
Speaker 1: of violating the rights of black and Latino voters. So
Speaker 1: now that's consent degree has expired, and the r n
Speaker 1: C is apparently making moves to bolster pole watchers and
Speaker 1: also people watching over the counting of ballots. Is that
Speaker 1: going to be allowed? Do Democrats do it? Yeah? That
Speaker 1: there was that respect the nine You're right, and there
Speaker 1: was a dispute that the Republicans trying to intimidate UM,
Speaker 1: Black and Latino voters. Um, they're depending on the rules
Speaker 1: of the state. I mean, there can there can be
Speaker 1: whole observational the usually at a distance from the poles itself. Uh.
Speaker 1: And yes, typically in the accounting of Alliser County it's
Speaker 1: only in recounts and disputes. Typically there are representatives of
Speaker 1: both parties. Most election boards are designed to be bipartisan. Um.
Speaker 1: I mean the real question is not so much watching
Speaker 1: as to how it happens. Will there be intimidation, will
Speaker 1: there be coercion, will there be force? Um? You know,
Speaker 1: as there there were some efforts along those lines in Florida.
Speaker 1: Was that kind of the so called Brooks Brothers riot
Speaker 1: when Republicans kind of protested vehemently efforts on the Miami
Speaker 1: date canvassing boards and when they were doing their recounts.
Speaker 1: It is important that this is being transparent. It is
Speaker 1: also important that people who have actually run the process
Speaker 1: not be intimidated and that voters not be intimidated. What's
Speaker 1: the most important of the cases that we've talked about,
Speaker 1: The big case is really the one that's coming out
Speaker 1: of Pennsylvania, not those nine ballots, but the Pennsylvania Supreme
Speaker 1: Court did something very important for which the Republicans are
Speaker 1: trying to take to the Supreme Court. Democrats asked for
Speaker 1: five ways of liberalizing the state's laws. The state Supreme
Speaker 1: Court gave them too. One was based on an interpretation
Speaker 1: of the states uh mail in voting law, in which
Speaker 1: the State Supreme Court upheld the decision of the Secretary
Speaker 1: of State of Pennsylvania to allow the counties to have
Speaker 1: multiple drop multiple places for drop boxes. So when you
Speaker 1: return you your a vote, your mail and vote, you
Speaker 1: can nail it through a postal mail box. But many places,
Speaker 1: although the elected the local elections will set up effectively
Speaker 1: a draw box at place where you can deposit it
Speaker 1: directly with the Board of Elections um um. The counties
Speaker 1: want to have those in many places around their jurisdiction.
Speaker 1: The Republicans are arguing that under the law they were
Speaker 1: only allowed to have one for county. There's only at
Speaker 1: the Board of Elections itself, and the state Supreme Court said,
Speaker 1: interpreting the state's own mail vote um quote by mail law,
Speaker 1: which was adopted actually before COVID. So we read that
Speaker 1: law to give the county wars discretion to have multiple
Speaker 1: draw boxes. That's being challenged UH as a mistaken interpretation
Speaker 1: of state law because it's going to lead to inequality
Speaker 1: across the counties. The other, maybe more important, possibly just
Speaker 1: as important, maybe more so, is the state Supreme Court
Speaker 1: on its own kind of equity powers, said, we're going
Speaker 1: to extend the deadline for the receipt of mail in
Speaker 1: votes from election day until three days later, until that Thursday.
Speaker 1: UM the cause, and they relied heavily on this of
Speaker 1: the statement by the US Postal Service, by the Postmaster
Speaker 1: General that delays and in the Postal Services processing things
Speaker 1: processing mail means that it could take up to five days,
Speaker 1: three more days than than before for mail to be returned.
Speaker 1: And they said, consistent with Pennsylvania's law that allows voters
Speaker 1: to request an absentee ballot up to seven days before
Speaker 1: election day. Consistent with that, voters request gating to the
Speaker 1: Board of Elections, the Board of Elections responding, and the
Speaker 1: vote and then the voter sending the ballot back. They
Speaker 1: need to have three more days uh for votes to
Speaker 1: be returned, and now that's being challenged. Both of these
Speaker 1: actions are being challenged. The Republicans Pennsylvania have actually asked
Speaker 1: the US have ben quick to hear this because it
Speaker 1: was decided by the Pennsylvania's supreme courts. In the next
Speaker 1: highest court would be the US Supreme Court. Supreme Court.
Speaker 1: Republicans are challenging both of these as going beyond what
Speaker 1: the legislature of Pennsylvania had authorized and therefore as unconstitutional
Speaker 1: given the power of given what they claim is the
Speaker 1: exclusive powerful legislature to set the rules for federal elections.
Speaker 1: So that's going to be an important taste. If the
Speaker 1: Supreme Court agrees to hear it, or agree or agrees
Speaker 1: to stay the Pennsylvania Supreme Court decision, we will possibly
Speaker 1: know that soon. That's Richards Brafault of Columbia Law School.
Speaker 1: I'm June Grasso. Thanks so much for listening, and please
Speaker 1: tune into The Bloomberg Law Show every week night at
Speaker 1: tend m Eastern on Bloomberg Radio. Ye