1 00:00:15,356 --> 00:00:23,116 Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show 2 00:00:23,156 --> 00:00:26,276 Speaker 1: where we explored the stories behind the stories in the news. 3 00:00:26,716 --> 00:00:31,276 Speaker 1: I'm Noah Feldman. I'm speaking to you today November fourth, 4 00:00:31,316 --> 00:00:35,676 Speaker 1: twenty twenty, the day after election day in the United States. 5 00:00:36,676 --> 00:00:39,636 Speaker 1: Now I knew all along that the person I wanted 6 00:00:39,676 --> 00:00:42,556 Speaker 1: to speak to the day after the election was Professor 7 00:00:42,716 --> 00:00:46,316 Speaker 1: Richard Pildas. Rick is a professor of constitutional law at 8 00:00:46,396 --> 00:00:49,396 Speaker 1: New York University School of Law. He's one of the 9 00:00:49,476 --> 00:00:53,396 Speaker 1: key figures in the entire country focusing on how legal 10 00:00:53,436 --> 00:00:59,356 Speaker 1: issues and democracy interact. He's also an election analyst for CNN, 11 00:00:59,676 --> 00:01:02,716 Speaker 1: and when I was a baby professor at NYU, he 12 00:01:02,796 --> 00:01:07,476 Speaker 1: was an extraordinary mentor to me. Despite what is an 13 00:01:07,516 --> 00:01:11,356 Speaker 1: incredibly busy today for Rick, his true busy season, he 14 00:01:11,476 --> 00:01:14,996 Speaker 1: made time to speak to us, and we're really grateful 15 00:01:15,036 --> 00:01:26,276 Speaker 1: for that. Rick, thank you so much for joining me. 16 00:01:26,516 --> 00:01:30,156 Speaker 1: It's your busy season every four years as you try 17 00:01:30,196 --> 00:01:34,716 Speaker 1: to explain election law to you're adoring and terrified public. 18 00:01:35,396 --> 00:01:38,636 Speaker 1: So let's just start with the current state of play 19 00:01:39,196 --> 00:01:44,076 Speaker 1: as of Wednesday at around twelve thirty pm Eastern Standard time. 20 00:01:45,236 --> 00:01:50,356 Speaker 1: What litigation options does Donald Trump have after his two 21 00:01:50,396 --> 00:01:52,996 Speaker 1: thirty am rambling speech where he said he was quote 22 00:01:53,036 --> 00:01:55,356 Speaker 1: going to the Supreme Court, but didn't exactly explain what 23 00:01:55,356 --> 00:01:57,436 Speaker 1: he was going to ask for there. Well, the first 24 00:01:57,516 --> 00:01:59,956 Speaker 1: question is going to be, of course, you know, how 25 00:01:59,996 --> 00:02:03,396 Speaker 1: small are the margins in particular states, and then are 26 00:02:03,436 --> 00:02:06,876 Speaker 1: the potential legal issues you know, within that margin to 27 00:02:06,956 --> 00:02:11,156 Speaker 1: make it possibly worthwhile. So the one issue that stands 28 00:02:11,156 --> 00:02:16,676 Speaker 1: out most clearly is that in Pennsylvania, the state court 29 00:02:16,716 --> 00:02:20,316 Speaker 1: there extended the receipt deadline for absentee ballots until three 30 00:02:20,396 --> 00:02:24,396 Speaker 1: days after the election. The Republican Party has been litigating 31 00:02:24,396 --> 00:02:26,956 Speaker 1: that issue, trying to take it to the Supreme Court 32 00:02:27,036 --> 00:02:32,316 Speaker 1: already in earlier rounds. The Supreme Court issued a four 33 00:02:32,356 --> 00:02:36,756 Speaker 1: to four decision declining to stay that order. Then the 34 00:02:36,796 --> 00:02:38,876 Speaker 1: Republican Party went back to the Supreme Court and asked 35 00:02:38,876 --> 00:02:41,796 Speaker 1: for an expedited CIRT petition grant so the case could 36 00:02:41,836 --> 00:02:44,316 Speaker 1: be argued before the elections. Supreme Court said no to that. 37 00:02:44,916 --> 00:02:48,636 Speaker 1: But you can bet that this would be issue number 38 00:02:48,676 --> 00:02:51,116 Speaker 1: one that they would go right back to the Supreme 39 00:02:51,156 --> 00:02:52,756 Speaker 1: Court on or try to get back to the Supreme 40 00:02:52,756 --> 00:02:55,916 Speaker 1: Court very fast on if it turns out that Pennsylvania 41 00:02:55,996 --> 00:02:59,516 Speaker 1: could be decisive and the margin is affected by the 42 00:02:59,596 --> 00:03:01,716 Speaker 1: number of ballots that coming in this three day window. 43 00:03:01,836 --> 00:03:05,316 Speaker 1: Now my own guests, by the way, without even knowing 44 00:03:05,356 --> 00:03:07,276 Speaker 1: what the margin in Pennsylvania is going to be and 45 00:03:07,316 --> 00:03:10,436 Speaker 1: who's going to win or lose, I'm inclined to think 46 00:03:10,436 --> 00:03:13,276 Speaker 1: there aren't going to turn out to be that many 47 00:03:13,316 --> 00:03:17,076 Speaker 1: ballots to come in in this three day window. So 48 00:03:17,116 --> 00:03:19,796 Speaker 1: we'll have to see if you know, there's enough volume 49 00:03:19,836 --> 00:03:24,756 Speaker 1: there to make it worth the worth the candle. You know, 50 00:03:24,836 --> 00:03:29,596 Speaker 1: after that, it's not clear where there are big batches 51 00:03:29,596 --> 00:03:33,596 Speaker 1: of votes that might be affected by a legal challenge 52 00:03:33,676 --> 00:03:37,356 Speaker 1: of one sort or another. And part of the problem 53 00:03:37,356 --> 00:03:40,276 Speaker 1: the Trump administration has at this point, the campaign, i 54 00:03:40,356 --> 00:03:44,596 Speaker 1: should say has, is that once voters have cast ballots, 55 00:03:45,316 --> 00:03:47,356 Speaker 1: it's going to be a lot harder for courts to 56 00:03:47,436 --> 00:03:50,596 Speaker 1: say those ballots we decided we're illegal, and therefore we're 57 00:03:50,596 --> 00:03:53,156 Speaker 1: going to throw them out. So if you you know, 58 00:03:53,196 --> 00:03:57,836 Speaker 1: couldn't get courts to intervene x amte, it becomes a 59 00:03:57,956 --> 00:04:04,476 Speaker 1: much tougher and much less appropriate action for courts if 60 00:04:04,556 --> 00:04:07,556 Speaker 1: voters have relied on the state of the law, including 61 00:04:07,596 --> 00:04:10,476 Speaker 1: when the Supreme Court has it's self not intervened in 62 00:04:10,516 --> 00:04:14,556 Speaker 1: advance when it had the opportunity to do so, you know, 63 00:04:14,636 --> 00:04:17,676 Speaker 1: I'm sure that they will seek recounts if states are 64 00:04:17,676 --> 00:04:20,436 Speaker 1: close enough to warrant it. And then when you as 65 00:04:20,436 --> 00:04:22,916 Speaker 1: we learned in Florida in two thousand, when you go 66 00:04:22,956 --> 00:04:25,476 Speaker 1: through recounts and you start looking at each individual ballot, 67 00:04:25,876 --> 00:04:29,356 Speaker 1: issues can come up. There's an issue that could be 68 00:04:29,436 --> 00:04:31,916 Speaker 1: the hanging chat of this election if it really came 69 00:04:31,956 --> 00:04:35,036 Speaker 1: down to a small number of ballots, which is ongoing 70 00:04:35,076 --> 00:04:39,996 Speaker 1: fights about ballots that are not clearly postmarked by election 71 00:04:40,116 --> 00:04:46,036 Speaker 1: day even though they arrive within the deadline for that 72 00:04:46,076 --> 00:04:51,356 Speaker 1: particular state. And a lot of state courts have sort 73 00:04:51,356 --> 00:04:55,916 Speaker 1: of created presumptions that if there's not a clear postmark, 74 00:04:55,956 --> 00:04:58,996 Speaker 1: but it arise within a certain amount of time, that 75 00:04:59,076 --> 00:05:02,276 Speaker 1: should be treated as having been postmarked by election day. 76 00:05:02,316 --> 00:05:06,356 Speaker 1: I can see fights going on about that. I think 77 00:05:06,396 --> 00:05:09,596 Speaker 1: that there could easily be fights were sort of in 78 00:05:09,716 --> 00:05:13,956 Speaker 1: one like this already in Pennsylvania, where you have state 79 00:05:14,036 --> 00:05:17,676 Speaker 1: election officials not applying the same policies across the state. 80 00:05:18,516 --> 00:05:21,036 Speaker 1: So this is a minor problem that's opened up in 81 00:05:21,036 --> 00:05:25,516 Speaker 1: Pennsylvania in the last couple of days. So one of 82 00:05:25,516 --> 00:05:28,396 Speaker 1: the issues is you probably know with absentee ballots, is 83 00:05:28,436 --> 00:05:32,356 Speaker 1: if you make a mistake on the ballot envelope, do 84 00:05:32,396 --> 00:05:34,876 Speaker 1: you have a chance to get notified of that mistake 85 00:05:34,916 --> 00:05:39,836 Speaker 1: and fix it if there's time. And Pennsylvania law does 86 00:05:39,876 --> 00:05:42,396 Speaker 1: not provide that you have that opportunity. It doesn't say 87 00:05:42,436 --> 00:05:45,636 Speaker 1: you don't have that opportunity. The state Supreme Court issued 88 00:05:45,636 --> 00:05:48,036 Speaker 1: an opinion on this. It basically said the same thing. 89 00:05:48,076 --> 00:05:50,876 Speaker 1: The law doesn't prohibit it prohibit it, but it doesn't 90 00:05:50,916 --> 00:05:55,236 Speaker 1: say voters have a right to this. And then kind 91 00:05:55,236 --> 00:05:58,356 Speaker 1: of late in the day, one county started giving voters 92 00:05:58,356 --> 00:06:03,636 Speaker 1: this opportunity to fix their defective ballots. Then the Secretary 93 00:06:03,676 --> 00:06:07,356 Speaker 1: of State came in on Monday and kind of suggested. 94 00:06:07,516 --> 00:06:10,436 Speaker 1: She didn't say you must give this opportunity across the 95 00:06:10,436 --> 00:06:13,556 Speaker 1: state or you're prohibited. She sort of left it to 96 00:06:13,596 --> 00:06:19,436 Speaker 1: the counties. And this is just drives you crazy that 97 00:06:19,516 --> 00:06:22,836 Speaker 1: you know, this is the fundamental policy issue. How can 98 00:06:22,876 --> 00:06:25,596 Speaker 1: it be that the day before the election in a 99 00:06:25,676 --> 00:06:30,156 Speaker 1: state like Pennsylvania, it doesn't occur to any state policymaker 100 00:06:30,316 --> 00:06:32,076 Speaker 1: that they have to have a clear policy one way 101 00:06:32,156 --> 00:06:34,356 Speaker 1: or the other on this. But don't get me started 102 00:06:34,396 --> 00:06:37,716 Speaker 1: with Pennsylvania, because they have been in my crosshairs since 103 00:06:38,676 --> 00:06:45,236 Speaker 1: literally late March, and I actually just really did my 104 00:06:45,356 --> 00:06:49,076 Speaker 1: best to hold them accountable, let's say, on CNN recently today, 105 00:06:50,196 --> 00:06:52,916 Speaker 1: because I think the governor and the legislature there have 106 00:06:53,036 --> 00:06:57,956 Speaker 1: just acted unconscionably and they are the reason they've thrown 107 00:06:57,996 --> 00:07:01,036 Speaker 1: the country into this period where we have to wait 108 00:07:01,076 --> 00:07:05,836 Speaker 1: for Pennsylvania and maybe another day, another two days. You know, 109 00:07:05,876 --> 00:07:09,356 Speaker 1: if it's a decisive state or the decisive state, this 110 00:07:09,436 --> 00:07:15,676 Speaker 1: is just a recipe for conflict and endless challenges to 111 00:07:15,876 --> 00:07:18,956 Speaker 1: legitimacy the election. And there's just simply no reason it 112 00:07:19,076 --> 00:07:21,636 Speaker 1: had to be this way. This is just a total 113 00:07:21,716 --> 00:07:25,516 Speaker 1: failure of state policy. Is it a failure, Rick, or 114 00:07:25,556 --> 00:07:29,436 Speaker 1: was it an intentional policy driven by the state legislature's 115 00:07:29,476 --> 00:07:33,196 Speaker 1: desire for the votes that were mailed in not to 116 00:07:33,236 --> 00:07:37,436 Speaker 1: be counted in advance when there was time to do so. Well, 117 00:07:37,516 --> 00:07:42,596 Speaker 1: the story in Pennsylvania is that the Republican legislature was 118 00:07:42,676 --> 00:07:47,396 Speaker 1: willing to allow election officials to start processing three days 119 00:07:47,396 --> 00:07:50,556 Speaker 1: at advance of election day. They actually passed a bill 120 00:07:50,796 --> 00:07:55,276 Speaker 1: in the state House to do that. But like everything 121 00:07:55,276 --> 00:07:58,996 Speaker 1: else in American politics, you know, everybody has to sort 122 00:07:59,036 --> 00:08:00,916 Speaker 1: of try to figure out what else they can get, 123 00:08:01,836 --> 00:08:07,596 Speaker 1: and so they attached to that various policies that the 124 00:08:07,636 --> 00:08:10,836 Speaker 1: governor Democratic governor didn't want to accept. They were policies 125 00:08:10,876 --> 00:08:17,996 Speaker 1: about drop boxes and the like, and so election administrators 126 00:08:18,036 --> 00:08:21,916 Speaker 1: throughout the state, Republican and Democrat, were pleading with the 127 00:08:21,956 --> 00:08:24,996 Speaker 1: political leaders of the state to give them more time. 128 00:08:25,276 --> 00:08:27,676 Speaker 1: I mean, not only do they have this massive volume 129 00:08:27,996 --> 00:08:30,556 Speaker 1: you maybe close to three million of absentee ballots that 130 00:08:30,676 --> 00:08:34,076 Speaker 1: come in and just sit there idly until election day, 131 00:08:34,516 --> 00:08:37,116 Speaker 1: but on election day when they can start processing them, 132 00:08:37,276 --> 00:08:39,636 Speaker 1: they've got to run the election on top of everything else. 133 00:08:40,396 --> 00:08:46,716 Speaker 1: So it's just an enormous undertaking. And the governor put 134 00:08:46,716 --> 00:08:50,916 Speaker 1: on the table a demand that they be given twenty 135 00:08:50,916 --> 00:08:54,036 Speaker 1: one days in advance to start the processing. So that 136 00:08:54,156 --> 00:08:56,196 Speaker 1: was a position way out there. I don't know if 137 00:08:56,196 --> 00:09:00,076 Speaker 1: that was meant to be a negotiating position, but basically 138 00:09:01,116 --> 00:09:02,956 Speaker 1: what they needed to do was to find a way 139 00:09:02,996 --> 00:09:05,516 Speaker 1: to get this issue out from the other issues and 140 00:09:05,596 --> 00:09:08,956 Speaker 1: just resolve this issue. Give the election officials even three 141 00:09:09,196 --> 00:09:13,396 Speaker 1: days to get going, and I think it's a plague 142 00:09:13,436 --> 00:09:17,276 Speaker 1: on both of their houses and really a plague on 143 00:09:17,316 --> 00:09:20,356 Speaker 1: the country as a result. So our best case scenario 144 00:09:20,636 --> 00:09:24,076 Speaker 1: then of avoiding a meltdown associated with Pennsylvania is for 145 00:09:24,116 --> 00:09:27,716 Speaker 1: Pennsylvania not to be the decisive state. Oh, We've been 146 00:09:27,756 --> 00:09:31,756 Speaker 1: saying for months and months and months that Pennsylvania is 147 00:09:31,756 --> 00:09:35,716 Speaker 1: a decisive state. For additional reasons beyond the ones I've described. 148 00:09:36,396 --> 00:09:40,196 Speaker 1: We're in for a very bad, very bad time. There 149 00:09:40,196 --> 00:09:43,516 Speaker 1: are many things that are incredibly badly done as a 150 00:09:43,556 --> 00:09:46,956 Speaker 1: matter of policy. Let's talk in real time about the 151 00:09:46,996 --> 00:09:50,396 Speaker 1: scenarios where Pennsylvania could maybe appear not to be the 152 00:09:50,436 --> 00:09:53,876 Speaker 1: decisive state, but where Trump goes to court to try 153 00:09:53,876 --> 00:09:58,036 Speaker 1: to make Pennsylvania the decisive state. So one of those 154 00:09:58,036 --> 00:10:03,796 Speaker 1: examples would be that Biden needs to win Nevada, which 155 00:10:03,836 --> 00:10:08,596 Speaker 1: is quite close. Is there any legal action available to Trump? 156 00:10:09,196 --> 00:10:14,876 Speaker 1: There similar question for Georgia, which Biden doesn't need to win, 157 00:10:15,036 --> 00:10:18,516 Speaker 1: but which Biden has a shot of winning, where at 158 00:10:18,556 --> 00:10:21,036 Speaker 1: least as we're speaking now, the votes that have been 159 00:10:21,036 --> 00:10:25,356 Speaker 1: counted still have Trump ahead, but Biden is gaining fast 160 00:10:26,076 --> 00:10:29,476 Speaker 1: as they count ballots from primarily Democratic districts in and 161 00:10:29,516 --> 00:10:32,996 Speaker 1: around Atlanta. Yeah, so there was an effort already. Actually, 162 00:10:32,996 --> 00:10:35,956 Speaker 1: there were a couple of efforts with respect to Nevada. 163 00:10:36,036 --> 00:10:39,716 Speaker 1: One was the big effort to try to get the 164 00:10:39,756 --> 00:10:42,956 Speaker 1: courts to do something they clearly weren't going to do, 165 00:10:42,996 --> 00:10:45,396 Speaker 1: which is to stop Nevada from having an all vote 166 00:10:45,436 --> 00:10:49,276 Speaker 1: by mail system. So that failed. That was obviously going 167 00:10:49,316 --> 00:10:55,876 Speaker 1: to fail. But more recently, the major county in Nevada, 168 00:10:55,916 --> 00:10:59,116 Speaker 1: which is Clark County has the largest population share of 169 00:10:59,116 --> 00:11:04,556 Speaker 1: the state, has allegedly been doing signature verification, which is 170 00:11:04,556 --> 00:11:09,956 Speaker 1: how they validate absentee ballots within a machine reading device 171 00:11:10,036 --> 00:11:13,556 Speaker 1: that does the signature matching, compared to other parts of 172 00:11:13,556 --> 00:11:16,196 Speaker 1: the state that do it differently. And the Republicans claim 173 00:11:16,836 --> 00:11:20,356 Speaker 1: in Clark County, which is a Democratic county, they're validating 174 00:11:20,436 --> 00:11:22,676 Speaker 1: signatures at a higher rate than in other parts of 175 00:11:22,716 --> 00:11:25,036 Speaker 1: the state. Now, they already tried to take that through 176 00:11:25,076 --> 00:11:29,156 Speaker 1: the Nevada court system on Monday night, the Nevada courts 177 00:11:29,196 --> 00:11:33,756 Speaker 1: rejected that, And I think that's probably not likely to 178 00:11:33,796 --> 00:11:36,436 Speaker 1: be a very strong claim, even if they make some 179 00:11:36,476 --> 00:11:41,436 Speaker 1: effort to try to repackage it as a federal constitutional claim. 180 00:11:41,476 --> 00:11:47,916 Speaker 1: I think that I don't know in the canvassing process 181 00:11:48,396 --> 00:11:52,276 Speaker 1: in Nevada. I would assume if there are small margins, 182 00:11:52,676 --> 00:11:57,276 Speaker 1: there will be knife fights about each individual absentee ballot, 183 00:11:58,276 --> 00:12:01,116 Speaker 1: with the Republicans trying to throw out ballots that they 184 00:12:01,116 --> 00:12:03,196 Speaker 1: think are more likely to be Democratic votes, and the 185 00:12:03,236 --> 00:12:07,116 Speaker 1: Democrats trying to protect those votes, and you could sort 186 00:12:07,116 --> 00:12:11,916 Speaker 1: of imagine that, now, can you actually change the numbers 187 00:12:12,676 --> 00:12:17,276 Speaker 1: enough to turn the outcome? Seems pretty unlikely? Can I 188 00:12:17,316 --> 00:12:18,796 Speaker 1: ask about that? So one of the things that I'm 189 00:12:18,796 --> 00:12:21,196 Speaker 1: fascinated by, and it comes out very much from your distinctions, 190 00:12:21,636 --> 00:12:24,036 Speaker 1: is that you can think of there as being kind 191 00:12:24,076 --> 00:12:26,596 Speaker 1: of wholesale and retail ways for the Trump lawyers to 192 00:12:26,596 --> 00:12:29,036 Speaker 1: fight the outcome. The wholesale ways are obviously the best. 193 00:12:29,116 --> 00:12:31,196 Speaker 1: You want to get as block as many votes as possible, 194 00:12:31,716 --> 00:12:34,156 Speaker 1: and for that you need some argument that a certain 195 00:12:34,196 --> 00:12:37,756 Speaker 1: class of votes shouldn't be accepted. And that's a little 196 00:12:37,756 --> 00:12:40,756 Speaker 1: hard because every state has a basic principle that it 197 00:12:40,796 --> 00:12:43,396 Speaker 1: ought account the votes that are lawfully cast, and until 198 00:12:43,436 --> 00:12:46,276 Speaker 1: those are all accounted, it's a little challenging to get 199 00:12:46,636 --> 00:12:51,396 Speaker 1: whole classes excluded. Then there's retail, which is vote by vote, 200 00:12:51,396 --> 00:12:53,836 Speaker 1: by painful vote. Now, you mentioned earlier, and I know 201 00:12:53,876 --> 00:12:57,916 Speaker 1: this is the case. I remember from bushricorps that once 202 00:12:57,916 --> 00:13:01,396 Speaker 1: you're in a recount situation, you could have a Republican 203 00:13:01,436 --> 00:13:04,196 Speaker 1: and a Democratic lawyer sitting there or observer rather sitting 204 00:13:04,236 --> 00:13:07,236 Speaker 1: there while the ballots are being recounted and arguing about 205 00:13:07,276 --> 00:13:10,596 Speaker 1: each and every ballot. But ordinary early in most states 206 00:13:10,596 --> 00:13:13,196 Speaker 1: you don't have that before a recount. Right at the 207 00:13:13,276 --> 00:13:17,196 Speaker 1: regular count stage, you don't always have a Democrat and 208 00:13:17,196 --> 00:13:20,836 Speaker 1: a Republican sitting next to every voter whatever. I think 209 00:13:21,236 --> 00:13:24,996 Speaker 1: explain more about that. Yeah, So, I mean in what 210 00:13:25,076 --> 00:13:28,956 Speaker 1: we call the canvassing stage, where the state is actually 211 00:13:28,996 --> 00:13:33,436 Speaker 1: going through the process of officially determining what the vote was, 212 00:13:33,516 --> 00:13:35,756 Speaker 1: looking at the ballot, seeing if there are any mistakes 213 00:13:35,756 --> 00:13:39,236 Speaker 1: in the machine counts, things like that, before they officially 214 00:13:39,356 --> 00:13:45,476 Speaker 1: certify a winner. In many states you do have observers 215 00:13:45,476 --> 00:13:47,836 Speaker 1: from both parties. Actually, this is an issue with COVID 216 00:13:47,916 --> 00:13:51,196 Speaker 1: right now, and there have been actually some complaints, indeed, 217 00:13:51,236 --> 00:13:54,356 Speaker 1: some lawsuits that the Republicans have filed in certain states 218 00:13:54,396 --> 00:13:57,116 Speaker 1: saying you're not letting our observers get close enough to 219 00:13:57,156 --> 00:14:00,996 Speaker 1: this process physically, close enough, because it should be able 220 00:14:00,996 --> 00:14:03,236 Speaker 1: to see, because that's kind of what they're that's why 221 00:14:03,276 --> 00:14:05,636 Speaker 1: they want to be there, and and and you know, 222 00:14:05,796 --> 00:14:08,756 Speaker 1: there's a lot of good that comes from these pole 223 00:14:08,796 --> 00:14:11,316 Speaker 1: watch processes. A lot of people have a very negative 224 00:14:11,356 --> 00:14:14,676 Speaker 1: image of them because they imagine this is what leads 225 00:14:14,716 --> 00:14:18,356 Speaker 1: to violent confrontations in the light. But assuming your poll 226 00:14:18,396 --> 00:14:22,396 Speaker 1: watchers are well trained as they typically are, and they're 227 00:14:22,436 --> 00:14:24,716 Speaker 1: election officials, that will keep them in line. If they're not, 228 00:14:25,756 --> 00:14:29,516 Speaker 1: you know, it's validating of the process that the two sides. 229 00:14:29,956 --> 00:14:33,276 Speaker 1: This is not something that happens in the dark. In fact, 230 00:14:33,436 --> 00:14:36,156 Speaker 1: it's amazing. Right now, this is the first time I'm 231 00:14:36,196 --> 00:14:40,476 Speaker 1: aware of this happening. But today I was watching online 232 00:14:41,596 --> 00:14:46,516 Speaker 1: as anyone can, the signature verification process going on in 233 00:14:46,676 --> 00:14:49,636 Speaker 1: various states, and it's you know, about as boring the 234 00:14:49,676 --> 00:14:51,676 Speaker 1: thing as you'd want to watch. I mean, it's a 235 00:14:51,716 --> 00:14:55,396 Speaker 1: guy sitting and they're socially distanced in these election ministrators offices. 236 00:14:55,436 --> 00:14:57,636 Speaker 1: It's a guy sitting in front of his computer and 237 00:14:57,676 --> 00:15:00,156 Speaker 1: he has a ballot and he has a signature up 238 00:15:00,156 --> 00:15:03,316 Speaker 1: on the ballot, and he's like, you know, looking and comparing. 239 00:15:03,396 --> 00:15:05,956 Speaker 1: And they're trained, or they're supposed to be trained. They know, 240 00:15:06,516 --> 00:15:08,756 Speaker 1: you know, what to look for and all of that, 241 00:15:08,836 --> 00:15:11,476 Speaker 1: and and very few of these ballots overall end up 242 00:15:11,476 --> 00:15:16,916 Speaker 1: getting rejected for this reason. But um, were you watching 243 00:15:16,916 --> 00:15:18,436 Speaker 1: this on a live stream. Where were you watching? I 244 00:15:18,436 --> 00:15:21,356 Speaker 1: was watching it on a live stream. Yeah, I mean 245 00:15:21,556 --> 00:15:24,636 Speaker 1: watching paint dry is probably a little more dynamic, but uh, 246 00:15:25,076 --> 00:15:27,316 Speaker 1: but but it's an amazing thing that you know, obviously 247 00:15:27,436 --> 00:15:30,756 Speaker 1: create It creates a sense of you know, integrity to 248 00:15:31,196 --> 00:15:33,756 Speaker 1: trans literal transparency. You can watch it happening. I mean 249 00:15:33,756 --> 00:15:37,276 Speaker 1: they have webcams in there, you know. And uh, I 250 00:15:37,316 --> 00:15:40,316 Speaker 1: mean the frustration is really they have to be that distant. 251 00:15:40,316 --> 00:15:42,676 Speaker 1: They can't like speed this process up, you know, by 252 00:15:42,716 --> 00:15:46,156 Speaker 1: putting people a little closer together in there. But anyway, 253 00:15:46,156 --> 00:15:48,716 Speaker 1: it's it's fascinating. It's not just one state. I noticed 254 00:15:49,236 --> 00:15:52,076 Speaker 1: this in several states. But it's now possible to do this. 255 00:15:53,516 --> 00:15:57,036 Speaker 1: So um, now you have to have very small margins. 256 00:15:57,396 --> 00:16:01,076 Speaker 1: You know, in Florida in two thousand, we were in 257 00:16:01,116 --> 00:16:04,596 Speaker 1: the five hundred and thirty five vote kind of territory. 258 00:16:05,516 --> 00:16:08,316 Speaker 1: Um uh. And so you know, if the margin is 259 00:16:08,316 --> 00:16:10,716 Speaker 1: that small, then y, you know, winning enough of these 260 00:16:10,716 --> 00:16:15,716 Speaker 1: battles could make a difference. But if you're several thousand votes, 261 00:16:15,756 --> 00:16:18,356 Speaker 1: I mean, it might sound very tight, but the idea 262 00:16:18,396 --> 00:16:21,716 Speaker 1: that you're going to change a couple of thousand votes 263 00:16:22,036 --> 00:16:27,716 Speaker 1: is h that's a much bigger, much bigger hurdle. Does 264 00:16:27,716 --> 00:16:30,196 Speaker 1: the Trump legal team seem to you to be well 265 00:16:30,396 --> 00:16:34,196 Speaker 1: organized with respect to that kind of retail level, because 266 00:16:34,276 --> 00:16:37,076 Speaker 1: at the wholesale level, you know, it's sort of interesting 267 00:16:37,116 --> 00:16:39,396 Speaker 1: they despite the fact that the President, you know, said 268 00:16:39,556 --> 00:16:42,156 Speaker 1: in his speech we're going to the Supreme Court that 269 00:16:42,276 --> 00:16:45,676 Speaker 1: was now almost twelve hours ago, and so far no 270 00:16:45,796 --> 00:16:48,236 Speaker 1: filing yet. I mean, they may have to file something 271 00:16:48,276 --> 00:16:50,836 Speaker 1: at some point just to satisfy their client. So I'm 272 00:16:50,836 --> 00:16:53,796 Speaker 1: wondering how how well prepared is the Bush is sorry 273 00:16:53,836 --> 00:16:58,796 Speaker 1: to speak in an obvious way, but in any event, no, So, Look, 274 00:16:59,116 --> 00:17:03,636 Speaker 1: that's actually an interesting question because I'm sure that many 275 00:17:03,716 --> 00:17:06,116 Speaker 1: of your listeners heard all sorts of things from the 276 00:17:06,156 --> 00:17:08,836 Speaker 1: Trump campaign in advance of the election. We're going to 277 00:17:08,916 --> 00:17:11,676 Speaker 1: have fifty thousand pole watchers. We're going to have an 278 00:17:11,796 --> 00:17:17,196 Speaker 1: army of pole watchers. I actually did say to people 279 00:17:17,196 --> 00:17:20,796 Speaker 1: who were incredibly anxious about this, including on task force 280 00:17:21,316 --> 00:17:24,916 Speaker 1: task forces I was on, who wanted us to write 281 00:17:24,996 --> 00:17:27,076 Speaker 1: things about this, I said, Look, in every election I've 282 00:17:27,116 --> 00:17:29,356 Speaker 1: been involved in, there's a lot of talk about that 283 00:17:29,436 --> 00:17:33,316 Speaker 1: in advance. I've never seen it material lot materialize. I 284 00:17:33,396 --> 00:17:35,876 Speaker 1: have no idea what will happen this year. But what 285 00:17:35,996 --> 00:17:38,836 Speaker 1: did happen this year is that they didn't have that. 286 00:17:38,396 --> 00:17:40,916 Speaker 1: That just didn't happen. So what's the thing that you 287 00:17:40,956 --> 00:17:44,036 Speaker 1: expect that you expected not to materialize. I expected that 288 00:17:44,076 --> 00:17:47,636 Speaker 1: there would not be lots and lots of these challenges 289 00:17:47,876 --> 00:17:52,796 Speaker 1: from Trump lawyers or Trumps, you know, volunteers at the 290 00:17:52,796 --> 00:17:56,276 Speaker 1: polling places or during the counting of these absentee ballots. 291 00:17:56,396 --> 00:17:59,236 Speaker 1: And indeed, thus far your expectation has been born out. 292 00:17:59,356 --> 00:18:02,316 Speaker 1: They're not doing it so far, yes, And I don't 293 00:18:02,316 --> 00:18:05,516 Speaker 1: know if it's a matter of disorganization. I don't know 294 00:18:05,556 --> 00:18:08,036 Speaker 1: if it was a matter of this was just bluster, 295 00:18:08,436 --> 00:18:12,396 Speaker 1: and you know, no one was really trying to implement it. Seriously, 296 00:18:12,916 --> 00:18:15,836 Speaker 1: it's a lot harder to implement these things than kind 297 00:18:15,836 --> 00:18:18,036 Speaker 1: of people realize. You've got to get a very group people. 298 00:18:18,196 --> 00:18:20,476 Speaker 1: You know, you have to be well be able to 299 00:18:20,556 --> 00:18:24,396 Speaker 1: run a well organized organization. By the way, I should say, 300 00:18:24,436 --> 00:18:27,956 Speaker 1: the Biden campaign, my understanding, did have fifty thousand poll 301 00:18:28,036 --> 00:18:34,676 Speaker 1: watchers at various places in the country. And you know, 302 00:18:34,756 --> 00:18:39,876 Speaker 1: sometimes this language is this kind of talk in advance 303 00:18:40,676 --> 00:18:44,116 Speaker 1: I think is sometimes designed to rally your own troops, 304 00:18:44,156 --> 00:18:47,876 Speaker 1: but also maybe to discourage voters from voting from the 305 00:18:48,196 --> 00:18:50,796 Speaker 1: on the other side because they get fearful there's going 306 00:18:50,836 --> 00:18:53,516 Speaker 1: to be this army of poll watchers, this gauntlet they're 307 00:18:53,516 --> 00:18:56,556 Speaker 1: going to have to run. But we saw virtually none 308 00:18:56,556 --> 00:18:59,436 Speaker 1: of that. And the other thing that helped on that 309 00:18:59,596 --> 00:19:02,996 Speaker 1: was all of the early voting, and that's both in 310 00:19:03,076 --> 00:19:07,596 Speaker 1: person and returning mail ballots early. So states like Florida 311 00:19:07,716 --> 00:19:11,916 Speaker 1: because they have good policies on this, unlike Pennsylvania. You know, 312 00:19:11,996 --> 00:19:14,916 Speaker 1: they were processing their absentee ballots starting three weeks in 313 00:19:14,956 --> 00:19:16,636 Speaker 1: advance of the election. If there were going to be 314 00:19:16,716 --> 00:19:19,996 Speaker 1: challenges to those ballots, that was the time for those 315 00:19:20,076 --> 00:19:23,276 Speaker 1: challenges to take place, and so they weren't even taking 316 00:19:23,276 --> 00:19:27,716 Speaker 1: place before. I don't know how focused the Trump team 317 00:19:27,916 --> 00:19:32,756 Speaker 1: was on pre election day challenges or whether they focused 318 00:19:32,756 --> 00:19:36,396 Speaker 1: all their efforts on post election day, but but no, 319 00:19:37,116 --> 00:19:40,756 Speaker 1: by and large, you know, we actually had a very 320 00:19:40,756 --> 00:19:45,036 Speaker 1: smooth election. They're always glitches, you know, they're all but 321 00:19:45,036 --> 00:19:48,916 Speaker 1: but I think and we saw very little presence of this. 322 00:19:49,996 --> 00:20:01,436 Speaker 1: We'll be back in a moment. I want to change 323 00:20:01,436 --> 00:20:04,676 Speaker 1: our chronological focus now to what you might think of 324 00:20:04,756 --> 00:20:08,876 Speaker 1: as the possibility of stage two legitimation. So we're still 325 00:20:08,876 --> 00:20:12,316 Speaker 1: in stage one. But let's imagine for the sake of argument, that, say, Philip, 326 00:20:12,436 --> 00:20:15,716 Speaker 1: that Pennsylvania does not turn out to be determinative, and 327 00:20:16,236 --> 00:20:19,916 Speaker 1: over the next day or two the networks call enough 328 00:20:19,956 --> 00:20:24,796 Speaker 1: states for Biden to determine a Biden victory, and Trump 329 00:20:24,836 --> 00:20:27,116 Speaker 1: does not concede. It seems very unlikely that he would 330 00:20:27,116 --> 00:20:30,876 Speaker 1: concede and decides in what you might call stage two 331 00:20:31,436 --> 00:20:34,316 Speaker 1: de legitimation to emphasize an argument that he already made 332 00:20:34,356 --> 00:20:38,756 Speaker 1: in his first speech, namely, if we lost that means 333 00:20:38,796 --> 00:20:42,796 Speaker 1: the election was a hoax, and without any very concrete evidence, 334 00:20:42,836 --> 00:20:44,116 Speaker 1: you know, maybe he can come up with a few 335 00:20:44,116 --> 00:20:47,756 Speaker 1: cases here or there to say, I think that, you know, 336 00:20:47,756 --> 00:20:50,196 Speaker 1: the fact there were districts that heavily voted for Joe 337 00:20:50,236 --> 00:20:53,476 Speaker 1: Biden or what have you, is just a systemic proof 338 00:20:53,836 --> 00:20:57,116 Speaker 1: that I've had the election stolen from me. Now, he 339 00:20:57,116 --> 00:20:58,436 Speaker 1: could do that sort of one of two ways. He 340 00:20:58,476 --> 00:21:00,676 Speaker 1: could just keep on saying that for the next month 341 00:21:00,756 --> 00:21:03,396 Speaker 1: or so, or he could say that in conjunction with 342 00:21:03,436 --> 00:21:07,316 Speaker 1: an actual effort to try to get some state legislatures 343 00:21:07,956 --> 00:21:11,276 Speaker 1: in states that are where the vote has apparently gone 344 00:21:11,436 --> 00:21:15,676 Speaker 1: for Biden to after the fact say they're changing the 345 00:21:15,716 --> 00:21:18,876 Speaker 1: law in their state, and they the state legislatures are 346 00:21:18,916 --> 00:21:22,516 Speaker 1: now going to choose the electors rather than relying on 347 00:21:22,516 --> 00:21:26,036 Speaker 1: the vote because I'll say the vote was tainted and implausible. 348 00:21:26,876 --> 00:21:29,636 Speaker 1: I'm wondering whether you think there is a real risk 349 00:21:29,716 --> 00:21:31,876 Speaker 1: first of all, of Trump's step trying out these kinds 350 00:21:31,876 --> 00:21:35,916 Speaker 1: of stage tug of the generations, and second whether if 351 00:21:35,916 --> 00:21:38,996 Speaker 1: he does try these things, if there's any chance of 352 00:21:39,156 --> 00:21:44,396 Speaker 1: any kind of any state legislature actually listening. So this, 353 00:21:44,636 --> 00:21:48,076 Speaker 1: you know, we certainly thought about these scenarios, wrote about 354 00:21:48,116 --> 00:21:53,316 Speaker 1: these scenarios in advance, so none of this is surprising 355 00:21:53,436 --> 00:21:57,836 Speaker 1: to come up in discussion. I think the chances of 356 00:21:57,876 --> 00:22:00,916 Speaker 1: that happening have already gotten smaller than they were before 357 00:22:00,916 --> 00:22:04,636 Speaker 1: the election, because I think, in part, it would take 358 00:22:05,156 --> 00:22:09,516 Speaker 1: a real sense of chaos about the process in one 359 00:22:09,596 --> 00:22:13,596 Speaker 1: or more states, and at least as of now, we 360 00:22:13,636 --> 00:22:16,116 Speaker 1: don't have that sense. I mean, it could have been 361 00:22:16,156 --> 00:22:20,356 Speaker 1: a lot of chaos on election day. Um, it could 362 00:22:20,396 --> 00:22:24,876 Speaker 1: have been much worse. It could have started the night. 363 00:22:25,156 --> 00:22:27,356 Speaker 1: I mean, I think many of us thought that that 364 00:22:27,356 --> 00:22:30,436 Speaker 1: that the president would start saying these things, you know, 365 00:22:30,436 --> 00:22:33,076 Speaker 1: at eight or nine or ten pm last night. He 366 00:22:33,116 --> 00:22:37,156 Speaker 1: didn't took him a little bit longer. And so I 367 00:22:37,196 --> 00:22:42,836 Speaker 1: think for that move to have any kind of traction, UH, 368 00:22:43,196 --> 00:22:45,796 Speaker 1: there's going to have to be you know, some kind 369 00:22:45,916 --> 00:22:50,516 Speaker 1: of of basis. I mean, not necessarily a fully realistic basis, 370 00:22:50,556 --> 00:22:53,636 Speaker 1: but you know, something to attach it to. Um. And 371 00:22:53,676 --> 00:22:56,116 Speaker 1: then you're gonna have to have you know, state legislatures 372 00:22:56,436 --> 00:23:01,236 Speaker 1: who would go against their constituents in the state. And uh, 373 00:23:01,676 --> 00:23:04,996 Speaker 1: you know how many states now would this play have 374 00:23:05,156 --> 00:23:09,916 Speaker 1: to be made in uh to be effective? Um. You know, 375 00:23:09,956 --> 00:23:11,956 Speaker 1: I think if we come down to the election turning 376 00:23:11,996 --> 00:23:15,036 Speaker 1: on one state, it becomes more of a possibility. But 377 00:23:15,036 --> 00:23:17,396 Speaker 1: if you're talking about three or four states, you know, 378 00:23:17,476 --> 00:23:20,476 Speaker 1: it's really hard to imagine three or four state legislatures 379 00:23:20,836 --> 00:23:22,756 Speaker 1: are going to kind of agree to do this in 380 00:23:22,756 --> 00:23:25,636 Speaker 1: the face of what the reaction to that would be. 381 00:23:26,996 --> 00:23:29,996 Speaker 1: My view is that it won't happen because even died 382 00:23:30,036 --> 00:23:32,356 Speaker 1: in the will, Republicans would think it looked too much 383 00:23:32,356 --> 00:23:36,636 Speaker 1: like a coup data to replace their own constituents votes 384 00:23:36,676 --> 00:23:39,556 Speaker 1: with their own with their votes after the votes had 385 00:23:39,556 --> 00:23:42,196 Speaker 1: already been cast. You know, as you say, if there 386 00:23:42,196 --> 00:23:44,556 Speaker 1: were true chaos somewhere, maybe you could conceive of it. 387 00:23:44,756 --> 00:23:47,076 Speaker 1: But there hasn't been that kind of cast that suggests 388 00:23:47,116 --> 00:23:49,876 Speaker 1: that the relatively smooth functioning of the election thus far 389 00:23:50,956 --> 00:23:54,156 Speaker 1: is actually a pretty important factor in pushing us towards 390 00:23:54,196 --> 00:23:56,996 Speaker 1: an outcome of Biden actually being not only winning, but 391 00:23:57,076 --> 00:23:59,956 Speaker 1: being treated as the winner. Yeah, I think that's that. 392 00:24:00,076 --> 00:24:02,556 Speaker 1: That's right now. You know, of course, something could blow 393 00:24:02,676 --> 00:24:10,556 Speaker 1: up in Pennsylvania, and if Pennsylvania turns out to be decisive, 394 00:24:11,916 --> 00:24:15,756 Speaker 1: you know, the things might change. But given where we 395 00:24:15,796 --> 00:24:21,596 Speaker 1: are right now, I think the risk has been diminished, 396 00:24:21,716 --> 00:24:24,396 Speaker 1: I'll put it that way. I also think they've they've 397 00:24:24,436 --> 00:24:28,236 Speaker 1: played most of their stronger potential legal cards. One of 398 00:24:28,236 --> 00:24:32,076 Speaker 1: the advantages of this massive volume of litigation we had 399 00:24:32,116 --> 00:24:35,396 Speaker 1: in advance of the election, which wasn't necessarily good in 400 00:24:35,516 --> 00:24:37,836 Speaker 1: various ways, but one of the things it did is 401 00:24:37,876 --> 00:24:39,876 Speaker 1: it brought a lot of clarity to a lot of 402 00:24:39,876 --> 00:24:42,596 Speaker 1: the issues that could have been fought over, and instead 403 00:24:42,596 --> 00:24:46,196 Speaker 1: of fighting about them after the election, you know, we 404 00:24:46,276 --> 00:24:49,956 Speaker 1: got a fair amount of that cleared up. And in fact, 405 00:24:50,036 --> 00:24:53,076 Speaker 1: you know, on this ballot extension deadline issue, for example, 406 00:24:55,196 --> 00:25:00,076 Speaker 1: the substantial majority of states ended up having their traditional 407 00:25:00,356 --> 00:25:03,036 Speaker 1: you have to get the ballot back by election night 408 00:25:03,316 --> 00:25:07,276 Speaker 1: deadline so it's only a few states where that issue 409 00:25:07,876 --> 00:25:10,996 Speaker 1: even got opened up. One is in North Carolina, which 410 00:25:10,996 --> 00:25:14,196 Speaker 1: if Trump wins, it's unlikely that anyone's going to care 411 00:25:14,236 --> 00:25:20,076 Speaker 1: about it there. Another is in Minnesota, which Biden has 412 00:25:20,076 --> 00:25:23,716 Speaker 1: easily won before those ballots to come in after election 413 00:25:23,796 --> 00:25:25,556 Speaker 1: day or count it, so it seems like a non 414 00:25:25,556 --> 00:25:29,116 Speaker 1: issue there. So, you know, Pennsylvania's is still the one 415 00:25:29,116 --> 00:25:31,476 Speaker 1: place that it could be an issue. But as I say, 416 00:25:32,836 --> 00:25:37,876 Speaker 1: I think Democrats by election day had returned eighty four 417 00:25:37,956 --> 00:25:42,156 Speaker 1: percent of the absentee ballots that they had requested. So 418 00:25:42,196 --> 00:25:43,996 Speaker 1: the media often looks at these things, oh my gosh, 419 00:25:44,036 --> 00:25:46,556 Speaker 1: there's all these outstanding absentee ballots to come in, but 420 00:25:46,636 --> 00:25:49,756 Speaker 1: they have no baseline about what a normal return rate is. 421 00:25:50,476 --> 00:25:53,796 Speaker 1: So normally about eighty percent of absentee ballots that I 422 00:25:53,916 --> 00:25:57,316 Speaker 1: requested get voted, and the rest don't come back in 423 00:25:58,836 --> 00:26:02,436 Speaker 1: people decide to show up in vote in person, they 424 00:26:02,476 --> 00:26:04,596 Speaker 1: get nervous about whether the ballot's going to come back 425 00:26:04,596 --> 00:26:09,836 Speaker 1: on time, they forget they requested the apps T ballot. 426 00:26:11,796 --> 00:26:15,316 Speaker 1: So so even before election day, we had a very 427 00:26:15,516 --> 00:26:18,236 Speaker 1: very high return rate, at least compared to you know, 428 00:26:18,316 --> 00:26:20,316 Speaker 1: what I think of as the baseline of eighty percent, 429 00:26:21,396 --> 00:26:24,356 Speaker 1: and of course put Pennsylvania has been the focus of 430 00:26:24,436 --> 00:26:29,436 Speaker 1: both campaigns. It's been tremendous mobilizing voter field operation work, 431 00:26:30,076 --> 00:26:34,036 Speaker 1: getting people to get their ballots back early. So I 432 00:26:34,396 --> 00:26:38,356 Speaker 1: just sort of suspect that what people think in terms 433 00:26:38,356 --> 00:26:40,236 Speaker 1: of how many are going to come back, by the way, 434 00:26:40,316 --> 00:26:41,836 Speaker 1: that's something I'm going to look at in terms of 435 00:26:41,876 --> 00:26:46,396 Speaker 1: the debates about these Supreme Court decisions. When the Supreme Court, 436 00:26:46,476 --> 00:26:51,036 Speaker 1: in that recent five to three decision cut off Wisconsin 437 00:26:51,916 --> 00:26:57,716 Speaker 1: from having the extended deadlines, you know, you had lower 438 00:26:57,756 --> 00:27:00,996 Speaker 1: court judges writing dissenting writing pitons saying they're gonna be 439 00:27:01,036 --> 00:27:03,436 Speaker 1: one hundred thousand votes that are going to be thrown out. 440 00:27:04,036 --> 00:27:06,796 Speaker 1: I'm also very skeptical that we're going to be talking 441 00:27:06,796 --> 00:27:09,796 Speaker 1: about anything like that magnitude. I want to kind of 442 00:27:09,836 --> 00:27:14,476 Speaker 1: keep track see what we learn after the fact. Rick, 443 00:27:14,516 --> 00:27:17,676 Speaker 1: we've been talking, and you've been talking extremely valuably and 444 00:27:17,676 --> 00:27:20,636 Speaker 1: helpfully about the nitty gritty, you know, we've we've been 445 00:27:20,676 --> 00:27:22,796 Speaker 1: deep in it for the conversation, and before I let 446 00:27:22,796 --> 00:27:24,236 Speaker 1: you go, I want to talk a little bit about 447 00:27:24,236 --> 00:27:27,476 Speaker 1: the other aspect of your deep interest in election law, 448 00:27:27,516 --> 00:27:30,956 Speaker 1: which is the bigger, more profound constitutional structures that are 449 00:27:30,956 --> 00:27:34,516 Speaker 1: in play here. So let's just imagine for the sake 450 00:27:34,556 --> 00:27:37,396 Speaker 1: of argument. Let's start with the scenario where Biden wins 451 00:27:37,436 --> 00:27:39,836 Speaker 1: the election and is eventually recognized as the winner of 452 00:27:39,876 --> 00:27:42,116 Speaker 1: the election, maybe not by Donald Trump, but by enough 453 00:27:42,156 --> 00:27:44,236 Speaker 1: people that he can be sworn in and actually take 454 00:27:44,276 --> 00:27:47,196 Speaker 1: office in the Secret Service, smilingly escorse Donald Trump from 455 00:27:47,196 --> 00:27:51,396 Speaker 1: the building. In that scenario, we will have avoided the 456 00:27:51,436 --> 00:27:54,476 Speaker 1: scene of an electoral college that, twice in a row 457 00:27:55,236 --> 00:27:58,996 Speaker 1: gives a victory to a president who didn't win the 458 00:27:59,036 --> 00:28:03,076 Speaker 1: popular vote. Is that going to lead to some sort 459 00:28:03,116 --> 00:28:08,116 Speaker 1: of dying down of the growing rather intensive criticism of 460 00:28:08,116 --> 00:28:12,116 Speaker 1: the electoral college as unjust that we've seen an undemocratic 461 00:28:12,156 --> 00:28:15,076 Speaker 1: that we've seen building. Do you think that it will 462 00:28:15,116 --> 00:28:16,596 Speaker 1: just put it out of our heads for the next 463 00:28:16,596 --> 00:28:19,316 Speaker 1: four years, especially given the fact that it's pretty challenging 464 00:28:19,716 --> 00:28:21,196 Speaker 1: to change it. Or do you think we'll get the 465 00:28:21,236 --> 00:28:23,956 Speaker 1: opposite of more of a focus of people saying, look 466 00:28:23,956 --> 00:28:27,436 Speaker 1: how close this was this time, This is just not okay. 467 00:28:27,636 --> 00:28:29,316 Speaker 1: We just can't take this risk in the future, and 468 00:28:29,316 --> 00:28:31,756 Speaker 1: we have to double down on our attempt to find 469 00:28:32,036 --> 00:28:37,236 Speaker 1: some structural solution. So the issue I would link that too, 470 00:28:38,196 --> 00:28:40,996 Speaker 1: because they are intimately linked together, is what happens with 471 00:28:41,076 --> 00:28:44,596 Speaker 1: the Senate, and then what's the relationship between if there 472 00:28:44,676 --> 00:28:48,796 Speaker 1: is a Biden presidency and the Senate And also sort 473 00:28:48,836 --> 00:28:52,636 Speaker 1: of nationwide what percentage of votes for the Senate seats 474 00:28:52,956 --> 00:28:59,276 Speaker 1: are for Democratic candidates versus Republican ones. And there are 475 00:28:59,316 --> 00:29:01,796 Speaker 1: so many things I'd like to fix about our election system. 476 00:29:01,836 --> 00:29:04,156 Speaker 1: This is actually at a very kind of big level, 477 00:29:05,076 --> 00:29:07,756 Speaker 1: where of course it's harder to make the changes. But 478 00:29:08,676 --> 00:29:11,116 Speaker 1: I think that, you know, there is this growing sense 479 00:29:11,316 --> 00:29:17,636 Speaker 1: for sure that that their political minorities have more and 480 00:29:17,756 --> 00:29:23,076 Speaker 1: more ability to come up change between the Senate, the 481 00:29:23,116 --> 00:29:29,116 Speaker 1: electoral College, even you know, Jerrymander districts um and and 482 00:29:29,196 --> 00:29:34,036 Speaker 1: there's a lot more awareness of these issues. I used 483 00:29:34,076 --> 00:29:36,476 Speaker 1: to say when I taught that I'm surprised there's not 484 00:29:36,596 --> 00:29:39,716 Speaker 1: much debate about the Senate and how antidemocratic the Senate 485 00:29:39,716 --> 00:29:43,716 Speaker 1: in the US is m because the population disparities had 486 00:29:43,756 --> 00:29:47,276 Speaker 1: just become so enormous, But that has become a subject 487 00:29:47,276 --> 00:29:52,316 Speaker 1: of public debate in recent years. So, uh, depending on 488 00:29:54,076 --> 00:29:58,196 Speaker 1: what Biden as president, if president gets done or gets 489 00:29:58,196 --> 00:30:00,756 Speaker 1: blocked from doing by a Senate depending on how many 490 00:30:00,796 --> 00:30:04,436 Speaker 1: Senators there are. If Senate reform, which would be I 491 00:30:04,436 --> 00:30:08,076 Speaker 1: think the more immediate focal point gets on the agenda, 492 00:30:08,436 --> 00:30:11,476 Speaker 1: I think elector while college reform would be connected to 493 00:30:11,556 --> 00:30:14,036 Speaker 1: that debate. But is there any way to get to 494 00:30:14,196 --> 00:30:18,516 Speaker 1: Senate reform? I mean there's I guess there's the old 495 00:30:18,516 --> 00:30:21,876 Speaker 1: fashioned as in pre Civil war, let's add more states, 496 00:30:22,356 --> 00:30:24,236 Speaker 1: which is not a solution to the problem. It's just 497 00:30:24,276 --> 00:30:26,196 Speaker 1: a way for the Democrats to try to gain it 498 00:30:26,236 --> 00:30:28,196 Speaker 1: an advantage. But they can obviously only do that if 499 00:30:28,196 --> 00:30:30,556 Speaker 1: they actually hold a majority in the Senate. So it's 500 00:30:30,596 --> 00:30:33,036 Speaker 1: not a form of reform that's available unless they've already 501 00:30:33,116 --> 00:30:35,916 Speaker 1: to some extent one it. But beyond that, I mean, 502 00:30:35,956 --> 00:30:38,956 Speaker 1: when the small states stage their walkout in seventeen eighty seven, 503 00:30:38,996 --> 00:30:43,556 Speaker 1: they were made sure to permanently, you know, institutionalize their 504 00:30:43,556 --> 00:30:45,916 Speaker 1: gains by making it impossible under the Constitution to take 505 00:30:45,916 --> 00:30:48,916 Speaker 1: away your Senate votes without the consent of the state. 506 00:30:48,996 --> 00:30:50,836 Speaker 1: So is there a way is there a way to 507 00:30:50,876 --> 00:30:54,636 Speaker 1: even reform the Senate? So one of the perverse consequences 508 00:30:54,636 --> 00:30:59,756 Speaker 1: of having the longest running continuous constitutional democracy is institutions 509 00:30:59,796 --> 00:31:03,156 Speaker 1: are built, they're anchored into the Constitution at a certain 510 00:31:03,156 --> 00:31:08,676 Speaker 1: moment in time. Obviously things change dramatically and unanticipated ways. 511 00:31:08,796 --> 00:31:13,036 Speaker 1: Those institutions no longer function the way they were imagined 512 00:31:13,076 --> 00:31:15,796 Speaker 1: to function, and yet they become very very difficult to change. 513 00:31:15,796 --> 00:31:22,996 Speaker 1: And the Senate, you know, is certainly an example. And yes, 514 00:31:23,076 --> 00:31:27,676 Speaker 1: of course you're right that the Democrats need unified control 515 00:31:27,836 --> 00:31:30,396 Speaker 1: of all three parts of the national political process, the House, 516 00:31:30,476 --> 00:31:32,876 Speaker 1: the Senate, in the White House to be able to 517 00:31:33,356 --> 00:31:39,916 Speaker 1: make those changes. I assume that you know, there are 518 00:31:39,996 --> 00:31:45,036 Speaker 1: ways of keeping a Senate like structure that in fact, 519 00:31:45,036 --> 00:31:47,156 Speaker 1: it could be exactly the same structure, but we could 520 00:31:47,236 --> 00:31:52,916 Speaker 1: change the proportions of you know, how many senators a 521 00:31:53,036 --> 00:31:57,276 Speaker 1: state got per one million number of people or something 522 00:31:57,316 --> 00:32:01,036 Speaker 1: like that, so that you know, you could change the formula, 523 00:32:01,476 --> 00:32:05,916 Speaker 1: but it had to be a constitutional amendment that so 524 00:32:05,996 --> 00:32:10,596 Speaker 1: that the disproportion between California and Wyoming is not seventy 525 00:32:10,756 --> 00:32:13,596 Speaker 1: something to one like it is today. But that's also 526 00:32:13,636 --> 00:32:18,956 Speaker 1: assuming Rick, that the that the constitutional provision is amendable, right, 527 00:32:18,996 --> 00:32:22,116 Speaker 1: I mean, this is an arcade debate among constitutional law professors, 528 00:32:22,116 --> 00:32:24,196 Speaker 1: but it is one of the provisions at the Constitution 529 00:32:24,676 --> 00:32:28,116 Speaker 1: that has written doesn't sound like it's susceptible to Article 530 00:32:28,156 --> 00:32:31,116 Speaker 1: five amendment because it says that in the Constitution that 531 00:32:31,156 --> 00:32:34,076 Speaker 1: you can't take away a state's equal representation without its consent, 532 00:32:34,116 --> 00:32:36,236 Speaker 1: and that doesn't say unless you do it by a 533 00:32:36,236 --> 00:32:39,036 Speaker 1: constitutional amendment. So isn't there a genuine question about whether 534 00:32:39,036 --> 00:32:40,596 Speaker 1: even an amendment what could do that? Well, the way 535 00:32:40,636 --> 00:32:42,636 Speaker 1: I put the question back to you is if there 536 00:32:42,636 --> 00:32:46,396 Speaker 1: were actually a large enough political movement to amend the 537 00:32:46,436 --> 00:32:51,356 Speaker 1: Constitution in that way, do you think a court or 538 00:32:51,356 --> 00:32:54,436 Speaker 1: a Supreme Court would say, well, sorry, that was an 539 00:32:54,516 --> 00:33:00,796 Speaker 1: unconstitutional constitutional amendment and therefore, you know, we're pulling the 540 00:33:00,916 --> 00:33:02,436 Speaker 1: rug out of this. What would have to be a 541 00:33:02,476 --> 00:33:05,476 Speaker 1: massive popular movement, you know, to kind of get us 542 00:33:05,516 --> 00:33:07,636 Speaker 1: to this point, or would the court say it's a 543 00:33:07,636 --> 00:33:12,276 Speaker 1: political question, etcetera. Yeah, now I hear that argument. I 544 00:33:12,276 --> 00:33:15,516 Speaker 1: guess my one response is to get two thirds of 545 00:33:15,516 --> 00:33:18,916 Speaker 1: the members of Congress, including two thirds of the Senators 546 00:33:18,956 --> 00:33:22,156 Speaker 1: and three quarters of the state legislatures, to agree to 547 00:33:22,316 --> 00:33:25,516 Speaker 1: reform the Senate is to my mind, not within the 548 00:33:25,556 --> 00:33:28,236 Speaker 1: bounds of realistic possibility. I mean, I think the same 549 00:33:28,756 --> 00:33:32,956 Speaker 1: incentives would exist now as existed at the original convention 550 00:33:33,276 --> 00:33:37,556 Speaker 1: in Philadelphia, whereby the smaller states just basically said, you know, 551 00:33:37,596 --> 00:33:39,596 Speaker 1: we don't care if this is unfair, We're just not 552 00:33:39,676 --> 00:33:41,836 Speaker 1: backing down. And if you don't like it, like find 553 00:33:41,876 --> 00:33:45,716 Speaker 1: no constitution, and I think so, I actually, I actually 554 00:33:45,716 --> 00:33:47,876 Speaker 1: don't see Senate reform. I wish I could find a 555 00:33:47,916 --> 00:33:50,516 Speaker 1: way towards Senate reform. In the case of the electoral college, 556 00:33:50,516 --> 00:33:52,516 Speaker 1: which was the thing I was hoping to ask you about, 557 00:33:52,796 --> 00:33:55,876 Speaker 1: there is at least this idea that if enough states 558 00:33:55,956 --> 00:33:59,996 Speaker 1: agreed to engage in an interstate pact according to which 559 00:34:00,676 --> 00:34:04,596 Speaker 1: they would all cast their electoral votes according to a 560 00:34:04,676 --> 00:34:08,516 Speaker 1: majoritarian outcome, that maybe, maybe maybe you could reach some 561 00:34:08,556 --> 00:34:11,356 Speaker 1: tipping point where without amending the Constitution, we actually got 562 00:34:11,436 --> 00:34:13,916 Speaker 1: rid of the electoral college. There are definitely ways of 563 00:34:14,156 --> 00:34:17,756 Speaker 1: fixing the electoral college without a constitutional amendment. That's true. 564 00:34:18,036 --> 00:34:20,676 Speaker 1: I mean, there are a couple of ways to think about. 565 00:34:21,596 --> 00:34:24,476 Speaker 1: One is the one you mentioned, the National Popular Vote Compact, 566 00:34:24,916 --> 00:34:27,876 Speaker 1: where a number of states sign up and say we're 567 00:34:27,916 --> 00:34:30,556 Speaker 1: committed in advance to giving our electors to whoever wins 568 00:34:30,596 --> 00:34:34,556 Speaker 1: the national popular vote, and then if two seventy or 569 00:34:34,596 --> 00:34:37,236 Speaker 1: more states two hundred and seventy electoral votes are more 570 00:34:37,236 --> 00:34:40,156 Speaker 1: agreed to that than the popular vote winner would become 571 00:34:40,276 --> 00:34:45,076 Speaker 1: the winner. I've always been nervous about that solution because 572 00:34:45,156 --> 00:34:50,156 Speaker 1: my concern is that at the only moment in which 573 00:34:50,196 --> 00:34:53,556 Speaker 1: the compact would actually make a difference, which would be 574 00:34:53,636 --> 00:34:56,996 Speaker 1: when a state would have to support a president that 575 00:34:57,076 --> 00:35:03,476 Speaker 1: its people voted against, would the compact actually hold or 576 00:35:03,476 --> 00:35:09,436 Speaker 1: would the state legislature withdraw from the compact at that point. So, 577 00:35:09,476 --> 00:35:13,076 Speaker 1: I mean, I worry about that solution. The other solution 578 00:35:13,356 --> 00:35:15,756 Speaker 1: is if you could get all the states to agree 579 00:35:15,796 --> 00:35:19,196 Speaker 1: to award their electors, let's say, proportionately to the vote 580 00:35:19,196 --> 00:35:22,476 Speaker 1: in the state, so that if Canada got, you know, 581 00:35:22,676 --> 00:35:24,796 Speaker 1: fifty five percent of the vote, they'd get fifty five 582 00:35:24,836 --> 00:35:27,556 Speaker 1: percent of the electors or whatever the you know integer 583 00:35:27,756 --> 00:35:30,756 Speaker 1: was that was instead of one hundred percent of the electors, 584 00:35:31,316 --> 00:35:34,996 Speaker 1: and that there's no constitutional barrier to doing that. The 585 00:35:35,036 --> 00:35:36,796 Speaker 1: only problem with that is you have to get all 586 00:35:36,796 --> 00:35:38,756 Speaker 1: the states to agree to do it, because no state 587 00:35:38,836 --> 00:35:40,076 Speaker 1: is going to be, you know, go out there and 588 00:35:40,116 --> 00:35:43,796 Speaker 1: do it by itself and deprive itself of power in 589 00:35:43,836 --> 00:35:46,476 Speaker 1: the electoral college process unless the other states are willing 590 00:35:46,476 --> 00:35:48,236 Speaker 1: to do it as well. It's a little bit like 591 00:35:48,356 --> 00:35:50,236 Speaker 1: I don't know if this is too our kine for you, 592 00:35:50,316 --> 00:35:52,876 Speaker 1: but for the conversation at this point. But you know, 593 00:35:52,916 --> 00:35:55,836 Speaker 1: it's a little bit like the dynamic we had that 594 00:35:55,956 --> 00:35:58,716 Speaker 1: led us to use single member districts to elect members 595 00:35:58,756 --> 00:36:02,236 Speaker 1: of Congress, which is the Constitution allows states to decide 596 00:36:02,276 --> 00:36:05,516 Speaker 1: how to elect members of Congress. At the beginning, a 597 00:36:05,556 --> 00:36:08,596 Speaker 1: bunch of states elected them at large. You know, so 598 00:36:08,876 --> 00:36:13,236 Speaker 1: say majority statewide controlled all the members of Congress in 599 00:36:13,236 --> 00:36:16,676 Speaker 1: the big states which had more factions, infinite diverse interests 600 00:36:16,676 --> 00:36:19,756 Speaker 1: that that was alienating to significant parts of the population. 601 00:36:19,836 --> 00:36:22,796 Speaker 1: Those states decide, okay, let's have an individual districts to 602 00:36:22,876 --> 00:36:26,556 Speaker 1: elect members of Congress. And then Pennsylvania discovered it lost 603 00:36:26,596 --> 00:36:31,196 Speaker 1: power to a small state like Rhode Island because you're 604 00:36:31,196 --> 00:36:34,916 Speaker 1: divided now in your delegation. You know, you have maybe 605 00:36:34,956 --> 00:36:39,236 Speaker 1: half of the delegates our federalist and half our anti federalist, 606 00:36:39,716 --> 00:36:43,676 Speaker 1: and they sort of neutralize each other in the Pennsylvania delegation. 607 00:36:44,276 --> 00:36:47,476 Speaker 1: So what happened, So finally Congress in the eighteen forties 608 00:36:47,836 --> 00:36:52,156 Speaker 1: there was this collective action solution mechanism available. Congress passed 609 00:36:52,196 --> 00:36:55,876 Speaker 1: a law forcing all states to elect members of Congress 610 00:36:55,876 --> 00:36:58,876 Speaker 1: from single member districts and that's what we've had ever since. 611 00:36:59,396 --> 00:37:01,876 Speaker 1: So what you need for the electoral college would be 612 00:37:01,916 --> 00:37:05,996 Speaker 1: something like that, you know, Congress, an external body that 613 00:37:06,076 --> 00:37:09,556 Speaker 1: can say, okay, we will give you the rule that 614 00:37:09,636 --> 00:37:12,676 Speaker 1: you all agree you would be better off under, but 615 00:37:12,836 --> 00:37:16,516 Speaker 1: you can't actually make an agreement sort of one by 616 00:37:16,516 --> 00:37:20,796 Speaker 1: one to adopt. The problem is it's not clear if 617 00:37:20,836 --> 00:37:23,196 Speaker 1: Congress has the power to do that and to tell 618 00:37:23,276 --> 00:37:26,876 Speaker 1: states their electors shall be awarded on a proportional basis 619 00:37:27,116 --> 00:37:28,796 Speaker 1: anyway that may be more than you wanted on that, 620 00:37:28,956 --> 00:37:30,956 Speaker 1: but well we call it. We call it deep background 621 00:37:30,956 --> 00:37:32,476 Speaker 1: for a reason. We're willing to We're willing going to 622 00:37:32,516 --> 00:37:35,756 Speaker 1: go into the deep deep questions too. Last question for you, Rick, 623 00:37:35,876 --> 00:37:39,436 Speaker 1: before I let you go with lots of gratitude, what 624 00:37:39,556 --> 00:37:41,716 Speaker 1: am I failing to ask you that I should be 625 00:37:41,756 --> 00:37:45,276 Speaker 1: asking you? What is salient in your mind that no 626 00:37:45,316 --> 00:37:47,116 Speaker 1: one asked you when you were on TV, or that 627 00:37:47,116 --> 00:37:48,796 Speaker 1: I haven't asked you in this conversation that you would 628 00:37:48,836 --> 00:37:50,996 Speaker 1: like to leave listeners with. And look, I think we 629 00:37:52,556 --> 00:37:56,436 Speaker 1: are putting ourselves at enormous risk. I don't know if 630 00:37:56,476 --> 00:37:59,996 Speaker 1: we can go through a process like this again with 631 00:38:00,036 --> 00:38:05,196 Speaker 1: our election system. We have a political culture now that 632 00:38:05,356 --> 00:38:10,196 Speaker 1: makes a system that is so screwed up potentially you know, 633 00:38:10,476 --> 00:38:16,076 Speaker 1: dynamite in a really disturbing way for the for the country. 634 00:38:16,956 --> 00:38:22,156 Speaker 1: And it's if we dodge that situation this time, we 635 00:38:22,236 --> 00:38:26,676 Speaker 1: will have gotten lucky. Um, we have huge problems we 636 00:38:26,756 --> 00:38:28,396 Speaker 1: have to try to figure out a way to fix. 637 00:38:28,956 --> 00:38:32,916 Speaker 1: To come up with election processes and systems that are 638 00:38:33,596 --> 00:38:36,876 Speaker 1: broadly accepted, we'll be kind of stable. We won't be 639 00:38:36,916 --> 00:38:41,716 Speaker 1: fighting about them constantly. We will run elections within that 640 00:38:41,796 --> 00:38:46,276 Speaker 1: framework and accept the framework is a legitimate framework, because 641 00:38:46,276 --> 00:38:48,596 Speaker 1: I don't know how many elections like this we can 642 00:38:48,636 --> 00:38:51,676 Speaker 1: go through without putting, you know, putting the system really 643 00:38:52,396 --> 00:38:56,916 Speaker 1: in jeopardy. I hear you, and I think you're absolutely 644 00:38:56,956 --> 00:38:59,836 Speaker 1: right that we're playing with fire. And if we are 645 00:38:59,916 --> 00:39:01,756 Speaker 1: lucky enough to get out of this election without a 646 00:39:01,836 --> 00:39:05,836 Speaker 1: huge legal fight or without a deep crisis of legitimacy, 647 00:39:06,436 --> 00:39:08,436 Speaker 1: you know, it's it's it's just it's just the luck 648 00:39:08,436 --> 00:39:10,756 Speaker 1: of the draw. I mean, we've already had this extraordinary 649 00:39:10,796 --> 00:39:12,956 Speaker 1: thing in the middle of the night or the early 650 00:39:12,996 --> 00:39:16,196 Speaker 1: morning hours of the President of the United States, by 651 00:39:16,196 --> 00:39:17,876 Speaker 1: the way, in the East room of the White House, 652 00:39:17,916 --> 00:39:20,236 Speaker 1: not the place where we're expecting there to be a 653 00:39:20,236 --> 00:39:23,676 Speaker 1: political rally announcing that he had already won the election 654 00:39:23,716 --> 00:39:25,796 Speaker 1: when he plainly had not won the election, and we're 655 00:39:25,796 --> 00:39:29,276 Speaker 1: all sort of we're so desensitized to we accepted. We say, oh, well, 656 00:39:29,276 --> 00:39:30,716 Speaker 1: of course the president did that. We knew he was 657 00:39:30,716 --> 00:39:32,756 Speaker 1: going to do that. And you know, we point out, 658 00:39:32,756 --> 00:39:34,356 Speaker 1: as you and I have both pointed out, that he 659 00:39:34,356 --> 00:39:36,076 Speaker 1: can say that, we can't stop him from saying it, 660 00:39:36,116 --> 00:39:38,916 Speaker 1: but doing it as another matter. But we're really we 661 00:39:38,996 --> 00:39:42,916 Speaker 1: are in a high risk situation here, and it seems 662 00:39:42,916 --> 00:39:45,436 Speaker 1: to me that we probably do need some fundamental reform 663 00:39:46,076 --> 00:39:47,676 Speaker 1: or we're going to run into a problem that's going 664 00:39:47,716 --> 00:39:50,956 Speaker 1: to make bush Vigor look like like it was nothing. Yeah, 665 00:39:50,996 --> 00:39:53,876 Speaker 1: I've said, if we had a bush Vigor situation today, 666 00:39:54,076 --> 00:39:56,316 Speaker 1: it would that two thousand would look like a walk 667 00:39:56,356 --> 00:40:01,196 Speaker 1: in the park compared to what that would produce today. Rick, 668 00:40:01,316 --> 00:40:03,316 Speaker 1: thank you so much for your time on your busiest 669 00:40:03,396 --> 00:40:04,756 Speaker 1: day of the year, and thank you for what you 670 00:40:04,836 --> 00:40:06,476 Speaker 1: do the other three hundred and sixty four and a 671 00:40:06,556 --> 00:40:10,756 Speaker 1: quarter days explaining many aspect of constitutional electoral alarm. Really 672 00:40:10,756 --> 00:40:12,916 Speaker 1: grateful to you. It's fun to have a good excuse 673 00:40:12,956 --> 00:40:21,076 Speaker 1: to chat with you for a while. No Professor Rick 674 00:40:21,156 --> 00:40:25,796 Speaker 1: Pildus is the go to election law expert, and we're 675 00:40:25,836 --> 00:40:28,196 Speaker 1: really lucky that he was able to make time to 676 00:40:28,236 --> 00:40:30,836 Speaker 1: talk about the current election and the options with us. 677 00:40:31,836 --> 00:40:35,556 Speaker 1: Rick says that if this comes down to Pennsylvania, this 678 00:40:35,716 --> 00:40:39,796 Speaker 1: is going to be a major, major mass. At the 679 00:40:39,876 --> 00:40:44,396 Speaker 1: same time, Rick has some pieces of mild optimism for us. 680 00:40:44,916 --> 00:40:48,996 Speaker 1: For one thing, election day ran, in his view, relatively smoothly. 681 00:40:49,476 --> 00:40:53,636 Speaker 1: This smoothness takes away one of the excuses that might 682 00:40:53,676 --> 00:40:57,996 Speaker 1: have been available to a Republican state legislature to deprive 683 00:40:58,116 --> 00:41:01,596 Speaker 1: the voters of their choice of Joe Biden and instead 684 00:41:01,636 --> 00:41:06,236 Speaker 1: to substitute a slate of Trump electors, invoking the constitutional 685 00:41:06,356 --> 00:41:10,756 Speaker 1: right potentially to do so. Chaos would have been an 686 00:41:10,796 --> 00:41:14,556 Speaker 1: invitation for the Trump administration to urge state legislatures to 687 00:41:14,556 --> 00:41:19,316 Speaker 1: do this. Relative smoothness, according to Rick, makes that less likely. 688 00:41:20,276 --> 00:41:25,236 Speaker 1: Litigation is already going on, but Rick says it's relatively 689 00:41:25,276 --> 00:41:28,396 Speaker 1: difficult at this moment for the Trump administration to come 690 00:41:28,476 --> 00:41:33,436 Speaker 1: up with a systematic legal argument for disenfranchising large numbers 691 00:41:33,436 --> 00:41:36,836 Speaker 1: of voters or for blocking the count of votes on 692 00:41:37,036 --> 00:41:40,716 Speaker 1: a wholesale level. That is, by suggesting that as a 693 00:41:40,756 --> 00:41:44,316 Speaker 1: principal matter, a whole tranche of voters should be prohibited 694 00:41:44,316 --> 00:41:47,916 Speaker 1: from having their votes counted. What the Trump administration can do, 695 00:41:48,236 --> 00:41:50,956 Speaker 1: Rick points out, is to continue at the retail level 696 00:41:51,116 --> 00:41:55,716 Speaker 1: challenging individual ballots. But doing that knocks off a vote here, 697 00:41:55,876 --> 00:41:58,636 Speaker 1: a vote there, perhaps even a few hundred votes, and 698 00:41:58,876 --> 00:42:01,996 Speaker 1: will not suffice for Trump to manage to win an 699 00:42:02,036 --> 00:42:05,436 Speaker 1: election that he would not otherwise win, unless we're in 700 00:42:05,836 --> 00:42:09,716 Speaker 1: Florida in two thousand zone, where an entire our election 701 00:42:09,996 --> 00:42:12,076 Speaker 1: is going to be decided not by ten or twenty 702 00:42:12,076 --> 00:42:16,316 Speaker 1: thousand votes, but by just a few hundred votes. At 703 00:42:16,356 --> 00:42:20,316 Speaker 1: the deeper level of the structures of our democracy, Rick 704 00:42:20,396 --> 00:42:24,916 Speaker 1: Piltus's analysis is considerably darker. He points out that we 705 00:42:24,996 --> 00:42:28,556 Speaker 1: probably can't afford to have another contested election of this kind, 706 00:42:28,956 --> 00:42:31,316 Speaker 1: and he points out that the basic structure of the 707 00:42:31,316 --> 00:42:36,916 Speaker 1: electoral college is extremely difficult to change or amend and 708 00:42:37,076 --> 00:42:42,316 Speaker 1: remains a major challenge to majoritarian democratic norms in our country. 709 00:42:42,996 --> 00:42:47,036 Speaker 1: So is the United States Senate, in which nearly half 710 00:42:47,156 --> 00:42:49,756 Speaker 1: of the senators can be elected by perhaps eighteen or 711 00:42:49,836 --> 00:42:54,716 Speaker 1: nineteen percent of the population. These are long run, deep 712 00:42:54,836 --> 00:43:00,076 Speaker 1: structural problems with our constitutional democracy, and as Rick points out, 713 00:43:00,436 --> 00:43:03,276 Speaker 1: we need to think seriously about how to address them, 714 00:43:03,796 --> 00:43:08,356 Speaker 1: lest the basic legitimacy of our democracy be substantially undercut. 715 00:43:09,636 --> 00:43:12,476 Speaker 1: My takeaway from listening to Rick is that it is 716 00:43:12,516 --> 00:43:15,636 Speaker 1: possible that in the next few days we will emerge 717 00:43:15,916 --> 00:43:21,036 Speaker 1: relatively unscathed from this very close, nailbiter election, with our 718 00:43:21,076 --> 00:43:25,476 Speaker 1: institutions fully functioning. It is also still possible that it 719 00:43:25,516 --> 00:43:27,916 Speaker 1: will come down to Pennsylvania and we will have an 720 00:43:27,956 --> 00:43:31,556 Speaker 1: all out war, which Rick says would make the two 721 00:43:31,596 --> 00:43:36,156 Speaker 1: thousand Bushbegor fight seem like a small matter in comparison 722 00:43:37,036 --> 00:43:39,796 Speaker 1: at the bigger picture level. Though, even if we manage 723 00:43:39,836 --> 00:43:43,356 Speaker 1: to survive this electoral cycle, we need to think seriously 724 00:43:43,636 --> 00:43:46,956 Speaker 1: about the institutional fixes and changes that might be available 725 00:43:46,996 --> 00:43:51,116 Speaker 1: to us so as to shore up the constitutional democracy 726 00:43:51,316 --> 00:43:54,996 Speaker 1: that we all, in principle say we're committed to preserving. 727 00:43:55,756 --> 00:43:58,516 Speaker 1: Until the next time I speak to you, be careful, 728 00:43:58,996 --> 00:44:02,476 Speaker 1: be safe, and be well. Deep background is brought to 729 00:44:02,476 --> 00:44:06,116 Speaker 1: you by Pushkin Industries. Our producer is Lydia Gencott, our 730 00:44:06,156 --> 00:44:09,316 Speaker 1: engineer is Martin Gonzales, and our shorerunner is so K 731 00:44:09,316 --> 00:44:13,076 Speaker 1: Crane mckibbon. Theme music by Luis Guerra at Pushkin. Thanks 732 00:44:13,116 --> 00:44:17,076 Speaker 1: to Mia Lobell, Julia Barton, Heather Fain, Carlie mcliori, Maggie Taylor, 733 00:44:17,236 --> 00:44:20,036 Speaker 1: Eric Sandler, and Jacob Weisberg. You can find me on 734 00:44:20,076 --> 00:44:22,716 Speaker 1: Twitter at Noah R. Feldman. I also write a column 735 00:44:22,756 --> 00:44:25,356 Speaker 1: for Bloomberg Opinion, which you could find at bloomberg dot 736 00:44:25,396 --> 00:44:29,436 Speaker 1: com slash Feldman. To discover Bloomberg's original slate of podcasts, 737 00:44:29,596 --> 00:44:32,876 Speaker 1: go to Bloomberg dot com slash podcasts, and if you 738 00:44:32,916 --> 00:44:35,276 Speaker 1: liked what you've heard today, please write a review or 739 00:44:35,356 --> 00:44:37,636 Speaker 1: tell a friend. This is deep background