Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show
Speaker 1: where we explored the stories behind the stories in the news.
Speaker 1: I'm Noah Feldman. I'm speaking to you today November fourth,
Speaker 1: twenty twenty, the day after election day in the United States.
Speaker 1: Now I knew all along that the person I wanted
Speaker 1: to speak to the day after the election was Professor
Speaker 1: Richard Pildas. Rick is a professor of constitutional law at
Speaker 1: New York University School of Law. He's one of the
Speaker 1: key figures in the entire country focusing on how legal
Speaker 1: issues and democracy interact. He's also an election analyst for CNN,
Speaker 1: and when I was a baby professor at NYU, he
Speaker 1: was an extraordinary mentor to me. Despite what is an
Speaker 1: incredibly busy today for Rick, his true busy season, he
Speaker 1: made time to speak to us, and we're really grateful
Speaker 1: for that. Rick, thank you so much for joining me.
Speaker 1: It's your busy season every four years as you try
Speaker 1: to explain election law to you're adoring and terrified public.
Speaker 1: So let's just start with the current state of play
Speaker 1: as of Wednesday at around twelve thirty pm Eastern Standard time.
Speaker 1: What litigation options does Donald Trump have after his two
Speaker 1: thirty am rambling speech where he said he was quote
Speaker 1: going to the Supreme Court, but didn't exactly explain what
Speaker 1: he was going to ask for there. Well, the first
Speaker 1: question is going to be, of course, you know, how
Speaker 1: small are the margins in particular states, and then are
Speaker 1: the potential legal issues you know, within that margin to
Speaker 1: make it possibly worthwhile. So the one issue that stands
Speaker 1: out most clearly is that in Pennsylvania, the state court
Speaker 1: there extended the receipt deadline for absentee ballots until three
Speaker 1: days after the election. The Republican Party has been litigating
Speaker 1: that issue, trying to take it to the Supreme Court
Speaker 1: already in earlier rounds. The Supreme Court issued a four
Speaker 1: to four decision declining to stay that order. Then the
Speaker 1: Republican Party went back to the Supreme Court and asked
Speaker 1: for an expedited CIRT petition grant so the case could
Speaker 1: be argued before the elections. Supreme Court said no to that.
Speaker 1: But you can bet that this would be issue number
Speaker 1: one that they would go right back to the Supreme
Speaker 1: Court on or try to get back to the Supreme
Speaker 1: Court very fast on if it turns out that Pennsylvania
Speaker 1: could be decisive and the margin is affected by the
Speaker 1: number of ballots that coming in this three day window.
Speaker 1: Now my own guests, by the way, without even knowing
Speaker 1: what the margin in Pennsylvania is going to be and
Speaker 1: who's going to win or lose, I'm inclined to think
Speaker 1: there aren't going to turn out to be that many
Speaker 1: ballots to come in in this three day window. So
Speaker 1: we'll have to see if you know, there's enough volume
Speaker 1: there to make it worth the worth the candle. You know,
Speaker 1: after that, it's not clear where there are big batches
Speaker 1: of votes that might be affected by a legal challenge
Speaker 1: of one sort or another. And part of the problem
Speaker 1: the Trump administration has at this point, the campaign, i
Speaker 1: should say has, is that once voters have cast ballots,
Speaker 1: it's going to be a lot harder for courts to
Speaker 1: say those ballots we decided we're illegal, and therefore we're
Speaker 1: going to throw them out. So if you you know,
Speaker 1: couldn't get courts to intervene x amte, it becomes a
Speaker 1: much tougher and much less appropriate action for courts if
Speaker 1: voters have relied on the state of the law, including
Speaker 1: when the Supreme Court has it's self not intervened in
Speaker 1: advance when it had the opportunity to do so, you know,
Speaker 1: I'm sure that they will seek recounts if states are
Speaker 1: close enough to warrant it. And then when you as
Speaker 1: we learned in Florida in two thousand, when you go
Speaker 1: through recounts and you start looking at each individual ballot,
Speaker 1: issues can come up. There's an issue that could be
Speaker 1: the hanging chat of this election if it really came
Speaker 1: down to a small number of ballots, which is ongoing
Speaker 1: fights about ballots that are not clearly postmarked by election
Speaker 1: day even though they arrive within the deadline for that
Speaker 1: particular state. And a lot of state courts have sort
Speaker 1: of created presumptions that if there's not a clear postmark,
Speaker 1: but it arise within a certain amount of time, that
Speaker 1: should be treated as having been postmarked by election day.
Speaker 1: I can see fights going on about that. I think
Speaker 1: that there could easily be fights were sort of in
Speaker 1: one like this already in Pennsylvania, where you have state
Speaker 1: election officials not applying the same policies across the state.
Speaker 1: So this is a minor problem that's opened up in
Speaker 1: Pennsylvania in the last couple of days. So one of
Speaker 1: the issues is you probably know with absentee ballots, is
Speaker 1: if you make a mistake on the ballot envelope, do
Speaker 1: you have a chance to get notified of that mistake
Speaker 1: and fix it if there's time. And Pennsylvania law does
Speaker 1: not provide that you have that opportunity. It doesn't say
Speaker 1: you don't have that opportunity. The state Supreme Court issued
Speaker 1: an opinion on this. It basically said the same thing.
Speaker 1: The law doesn't prohibit it prohibit it, but it doesn't
Speaker 1: say voters have a right to this. And then kind
Speaker 1: of late in the day, one county started giving voters
Speaker 1: this opportunity to fix their defective ballots. Then the Secretary
Speaker 1: of State came in on Monday and kind of suggested.
Speaker 1: She didn't say you must give this opportunity across the
Speaker 1: state or you're prohibited. She sort of left it to
Speaker 1: the counties. And this is just drives you crazy that
Speaker 1: you know, this is the fundamental policy issue. How can
Speaker 1: it be that the day before the election in a
Speaker 1: state like Pennsylvania, it doesn't occur to any state policymaker
Speaker 1: that they have to have a clear policy one way
Speaker 1: or the other on this. But don't get me started
Speaker 1: with Pennsylvania, because they have been in my crosshairs since
Speaker 1: literally late March, and I actually just really did my
Speaker 1: best to hold them accountable, let's say, on CNN recently today,
Speaker 1: because I think the governor and the legislature there have
Speaker 1: just acted unconscionably and they are the reason they've thrown
Speaker 1: the country into this period where we have to wait
Speaker 1: for Pennsylvania and maybe another day, another two days. You know,
Speaker 1: if it's a decisive state or the decisive state, this
Speaker 1: is just a recipe for conflict and endless challenges to
Speaker 1: legitimacy the election. And there's just simply no reason it
Speaker 1: had to be this way. This is just a total
Speaker 1: failure of state policy. Is it a failure, Rick, or
Speaker 1: was it an intentional policy driven by the state legislature's
Speaker 1: desire for the votes that were mailed in not to
Speaker 1: be counted in advance when there was time to do so. Well,
Speaker 1: the story in Pennsylvania is that the Republican legislature was
Speaker 1: willing to allow election officials to start processing three days
Speaker 1: at advance of election day. They actually passed a bill
Speaker 1: in the state House to do that. But like everything
Speaker 1: else in American politics, you know, everybody has to sort
Speaker 1: of try to figure out what else they can get,
Speaker 1: and so they attached to that various policies that the
Speaker 1: governor Democratic governor didn't want to accept. They were policies
Speaker 1: about drop boxes and the like, and so election administrators
Speaker 1: throughout the state, Republican and Democrat, were pleading with the
Speaker 1: political leaders of the state to give them more time.
Speaker 1: I mean, not only do they have this massive volume
Speaker 1: you maybe close to three million of absentee ballots that
Speaker 1: come in and just sit there idly until election day,
Speaker 1: but on election day when they can start processing them,
Speaker 1: they've got to run the election on top of everything else.
Speaker 1: So it's just an enormous undertaking. And the governor put
Speaker 1: on the table a demand that they be given twenty
Speaker 1: one days in advance to start the processing. So that
Speaker 1: was a position way out there. I don't know if
Speaker 1: that was meant to be a negotiating position, but basically
Speaker 1: what they needed to do was to find a way
Speaker 1: to get this issue out from the other issues and
Speaker 1: just resolve this issue. Give the election officials even three
Speaker 1: days to get going, and I think it's a plague
Speaker 1: on both of their houses and really a plague on
Speaker 1: the country as a result. So our best case scenario
Speaker 1: then of avoiding a meltdown associated with Pennsylvania is for
Speaker 1: Pennsylvania not to be the decisive state. Oh, We've been
Speaker 1: saying for months and months and months that Pennsylvania is
Speaker 1: a decisive state. For additional reasons beyond the ones I've described.
Speaker 1: We're in for a very bad, very bad time. There
Speaker 1: are many things that are incredibly badly done as a
Speaker 1: matter of policy. Let's talk in real time about the
Speaker 1: scenarios where Pennsylvania could maybe appear not to be the
Speaker 1: decisive state, but where Trump goes to court to try
Speaker 1: to make Pennsylvania the decisive state. So one of those
Speaker 1: examples would be that Biden needs to win Nevada, which
Speaker 1: is quite close. Is there any legal action available to Trump?
Speaker 1: There similar question for Georgia, which Biden doesn't need to win,
Speaker 1: but which Biden has a shot of winning, where at
Speaker 1: least as we're speaking now, the votes that have been
Speaker 1: counted still have Trump ahead, but Biden is gaining fast
Speaker 1: as they count ballots from primarily Democratic districts in and
Speaker 1: around Atlanta. Yeah, so there was an effort already. Actually,
Speaker 1: there were a couple of efforts with respect to Nevada.
Speaker 1: One was the big effort to try to get the
Speaker 1: courts to do something they clearly weren't going to do,
Speaker 1: which is to stop Nevada from having an all vote
Speaker 1: by mail system. So that failed. That was obviously going
Speaker 1: to fail. But more recently, the major county in Nevada,
Speaker 1: which is Clark County has the largest population share of
Speaker 1: the state, has allegedly been doing signature verification, which is
Speaker 1: how they validate absentee ballots within a machine reading device
Speaker 1: that does the signature matching, compared to other parts of
Speaker 1: the state that do it differently. And the Republicans claim
Speaker 1: in Clark County, which is a Democratic county, they're validating
Speaker 1: signatures at a higher rate than in other parts of
Speaker 1: the state. Now, they already tried to take that through
Speaker 1: the Nevada court system on Monday night, the Nevada courts
Speaker 1: rejected that, And I think that's probably not likely to
Speaker 1: be a very strong claim, even if they make some
Speaker 1: effort to try to repackage it as a federal constitutional claim.
Speaker 1: I think that I don't know in the canvassing process
Speaker 1: in Nevada. I would assume if there are small margins,
Speaker 1: there will be knife fights about each individual absentee ballot,
Speaker 1: with the Republicans trying to throw out ballots that they
Speaker 1: think are more likely to be Democratic votes, and the
Speaker 1: Democrats trying to protect those votes, and you could sort
Speaker 1: of imagine that, now, can you actually change the numbers
Speaker 1: enough to turn the outcome? Seems pretty unlikely? Can I
Speaker 1: ask about that? So one of the things that I'm
Speaker 1: fascinated by, and it comes out very much from your distinctions,
Speaker 1: is that you can think of there as being kind
Speaker 1: of wholesale and retail ways for the Trump lawyers to
Speaker 1: fight the outcome. The wholesale ways are obviously the best.
Speaker 1: You want to get as block as many votes as possible,
Speaker 1: and for that you need some argument that a certain
Speaker 1: class of votes shouldn't be accepted. And that's a little
Speaker 1: hard because every state has a basic principle that it
Speaker 1: ought account the votes that are lawfully cast, and until
Speaker 1: those are all accounted, it's a little challenging to get
Speaker 1: whole classes excluded. Then there's retail, which is vote by vote,
Speaker 1: by painful vote. Now, you mentioned earlier, and I know
Speaker 1: this is the case. I remember from bushricorps that once
Speaker 1: you're in a recount situation, you could have a Republican
Speaker 1: and a Democratic lawyer sitting there or observer rather sitting
Speaker 1: there while the ballots are being recounted and arguing about
Speaker 1: each and every ballot. But ordinary early in most states
Speaker 1: you don't have that before a recount. Right at the
Speaker 1: regular count stage, you don't always have a Democrat and
Speaker 1: a Republican sitting next to every voter whatever. I think
Speaker 1: explain more about that. Yeah, So, I mean in what
Speaker 1: we call the canvassing stage, where the state is actually
Speaker 1: going through the process of officially determining what the vote was,
Speaker 1: looking at the ballot, seeing if there are any mistakes
Speaker 1: in the machine counts, things like that, before they officially
Speaker 1: certify a winner. In many states you do have observers
Speaker 1: from both parties. Actually, this is an issue with COVID
Speaker 1: right now, and there have been actually some complaints, indeed,
Speaker 1: some lawsuits that the Republicans have filed in certain states
Speaker 1: saying you're not letting our observers get close enough to
Speaker 1: this process physically, close enough, because it should be able
Speaker 1: to see, because that's kind of what they're that's why
Speaker 1: they want to be there, and and and you know,
Speaker 1: there's a lot of good that comes from these pole
Speaker 1: watch processes. A lot of people have a very negative
Speaker 1: image of them because they imagine this is what leads
Speaker 1: to violent confrontations in the light. But assuming your poll
Speaker 1: watchers are well trained as they typically are, and they're
Speaker 1: election officials, that will keep them in line. If they're not,
Speaker 1: you know, it's validating of the process that the two sides.
Speaker 1: This is not something that happens in the dark. In fact,
Speaker 1: it's amazing. Right now, this is the first time I'm
Speaker 1: aware of this happening. But today I was watching online
Speaker 1: as anyone can, the signature verification process going on in
Speaker 1: various states, and it's you know, about as boring the
Speaker 1: thing as you'd want to watch. I mean, it's a
Speaker 1: guy sitting and they're socially distanced in these election ministrators offices.
Speaker 1: It's a guy sitting in front of his computer and
Speaker 1: he has a ballot and he has a signature up
Speaker 1: on the ballot, and he's like, you know, looking and comparing.
Speaker 1: And they're trained, or they're supposed to be trained. They know,
Speaker 1: you know, what to look for and all of that,
Speaker 1: and and very few of these ballots overall end up
Speaker 1: getting rejected for this reason. But um, were you watching
Speaker 1: this on a live stream. Where were you watching? I
Speaker 1: was watching it on a live stream. Yeah, I mean
Speaker 1: watching paint dry is probably a little more dynamic, but uh,
Speaker 1: but but it's an amazing thing that you know, obviously
Speaker 1: create It creates a sense of you know, integrity to
Speaker 1: trans literal transparency. You can watch it happening. I mean
Speaker 1: they have webcams in there, you know. And uh, I
Speaker 1: mean the frustration is really they have to be that distant.
Speaker 1: They can't like speed this process up, you know, by
Speaker 1: putting people a little closer together in there. But anyway,
Speaker 1: it's it's fascinating. It's not just one state. I noticed
Speaker 1: this in several states. But it's now possible to do this.
Speaker 1: So um, now you have to have very small margins.
Speaker 1: You know, in Florida in two thousand, we were in
Speaker 1: the five hundred and thirty five vote kind of territory.
Speaker 1: Um uh. And so you know, if the margin is
Speaker 1: that small, then y, you know, winning enough of these
Speaker 1: battles could make a difference. But if you're several thousand votes,
Speaker 1: I mean, it might sound very tight, but the idea
Speaker 1: that you're going to change a couple of thousand votes
Speaker 1: is h that's a much bigger, much bigger hurdle. Does
Speaker 1: the Trump legal team seem to you to be well
Speaker 1: organized with respect to that kind of retail level, because
Speaker 1: at the wholesale level, you know, it's sort of interesting
Speaker 1: they despite the fact that the President, you know, said
Speaker 1: in his speech we're going to the Supreme Court that
Speaker 1: was now almost twelve hours ago, and so far no
Speaker 1: filing yet. I mean, they may have to file something
Speaker 1: at some point just to satisfy their client. So I'm
Speaker 1: wondering how how well prepared is the Bush is sorry
Speaker 1: to speak in an obvious way, but in any event, no, So, Look,
Speaker 1: that's actually an interesting question because I'm sure that many
Speaker 1: of your listeners heard all sorts of things from the
Speaker 1: Trump campaign in advance of the election. We're going to
Speaker 1: have fifty thousand pole watchers. We're going to have an
Speaker 1: army of pole watchers. I actually did say to people
Speaker 1: who were incredibly anxious about this, including on task force
Speaker 1: task forces I was on, who wanted us to write
Speaker 1: things about this, I said, Look, in every election I've
Speaker 1: been involved in, there's a lot of talk about that
Speaker 1: in advance. I've never seen it material lot materialize. I
Speaker 1: have no idea what will happen this year. But what
Speaker 1: did happen this year is that they didn't have that.
Speaker 1: That just didn't happen. So what's the thing that you
Speaker 1: expect that you expected not to materialize. I expected that
Speaker 1: there would not be lots and lots of these challenges
Speaker 1: from Trump lawyers or Trumps, you know, volunteers at the
Speaker 1: polling places or during the counting of these absentee ballots.
Speaker 1: And indeed, thus far your expectation has been born out.
Speaker 1: They're not doing it so far, yes, And I don't
Speaker 1: know if it's a matter of disorganization. I don't know
Speaker 1: if it was a matter of this was just bluster,
Speaker 1: and you know, no one was really trying to implement it. Seriously,
Speaker 1: it's a lot harder to implement these things than kind
Speaker 1: of people realize. You've got to get a very group people.
Speaker 1: You know, you have to be well be able to
Speaker 1: run a well organized organization. By the way, I should say,
Speaker 1: the Biden campaign, my understanding, did have fifty thousand poll
Speaker 1: watchers at various places in the country. And you know,
Speaker 1: sometimes this language is this kind of talk in advance
Speaker 1: I think is sometimes designed to rally your own troops,
Speaker 1: but also maybe to discourage voters from voting from the
Speaker 1: on the other side because they get fearful there's going
Speaker 1: to be this army of poll watchers, this gauntlet they're
Speaker 1: going to have to run. But we saw virtually none
Speaker 1: of that. And the other thing that helped on that
Speaker 1: was all of the early voting, and that's both in
Speaker 1: person and returning mail ballots early. So states like Florida
Speaker 1: because they have good policies on this, unlike Pennsylvania. You know,
Speaker 1: they were processing their absentee ballots starting three weeks in
Speaker 1: advance of the election. If there were going to be
Speaker 1: challenges to those ballots, that was the time for those
Speaker 1: challenges to take place, and so they weren't even taking
Speaker 1: place before. I don't know how focused the Trump team
Speaker 1: was on pre election day challenges or whether they focused
Speaker 1: all their efforts on post election day, but but no,
Speaker 1: by and large, you know, we actually had a very
Speaker 1: smooth election. They're always glitches, you know, they're all but
Speaker 1: but I think and we saw very little presence of this.
Speaker 1: We'll be back in a moment. I want to change
Speaker 1: our chronological focus now to what you might think of
Speaker 1: as the possibility of stage two legitimation. So we're still
Speaker 1: in stage one. But let's imagine for the sake of argument, that, say, Philip,
Speaker 1: that Pennsylvania does not turn out to be determinative, and
Speaker 1: over the next day or two the networks call enough
Speaker 1: states for Biden to determine a Biden victory, and Trump
Speaker 1: does not concede. It seems very unlikely that he would
Speaker 1: concede and decides in what you might call stage two
Speaker 1: de legitimation to emphasize an argument that he already made
Speaker 1: in his first speech, namely, if we lost that means
Speaker 1: the election was a hoax, and without any very concrete evidence,
Speaker 1: you know, maybe he can come up with a few
Speaker 1: cases here or there to say, I think that, you know,
Speaker 1: the fact there were districts that heavily voted for Joe
Speaker 1: Biden or what have you, is just a systemic proof
Speaker 1: that I've had the election stolen from me. Now, he
Speaker 1: could do that sort of one of two ways. He
Speaker 1: could just keep on saying that for the next month
Speaker 1: or so, or he could say that in conjunction with
Speaker 1: an actual effort to try to get some state legislatures
Speaker 1: in states that are where the vote has apparently gone
Speaker 1: for Biden to after the fact say they're changing the
Speaker 1: law in their state, and they the state legislatures are
Speaker 1: now going to choose the electors rather than relying on
Speaker 1: the vote because I'll say the vote was tainted and implausible.
Speaker 1: I'm wondering whether you think there is a real risk
Speaker 1: first of all, of Trump's step trying out these kinds
Speaker 1: of stage tug of the generations, and second whether if
Speaker 1: he does try these things, if there's any chance of
Speaker 1: any kind of any state legislature actually listening. So this,
Speaker 1: you know, we certainly thought about these scenarios, wrote about
Speaker 1: these scenarios in advance, so none of this is surprising
Speaker 1: to come up in discussion. I think the chances of
Speaker 1: that happening have already gotten smaller than they were before
Speaker 1: the election, because I think, in part, it would take
Speaker 1: a real sense of chaos about the process in one
Speaker 1: or more states, and at least as of now, we
Speaker 1: don't have that sense. I mean, it could have been
Speaker 1: a lot of chaos on election day. Um, it could
Speaker 1: have been much worse. It could have started the night.
Speaker 1: I mean, I think many of us thought that that
Speaker 1: that the president would start saying these things, you know,
Speaker 1: at eight or nine or ten pm last night. He
Speaker 1: didn't took him a little bit longer. And so I
Speaker 1: think for that move to have any kind of traction, UH,
Speaker 1: there's going to have to be you know, some kind
Speaker 1: of of basis. I mean, not necessarily a fully realistic basis,
Speaker 1: but you know, something to attach it to. Um. And
Speaker 1: then you're gonna have to have you know, state legislatures
Speaker 1: who would go against their constituents in the state. And uh,
Speaker 1: you know how many states now would this play have
Speaker 1: to be made in uh to be effective? Um. You know,
Speaker 1: I think if we come down to the election turning
Speaker 1: on one state, it becomes more of a possibility. But
Speaker 1: if you're talking about three or four states, you know,
Speaker 1: it's really hard to imagine three or four state legislatures
Speaker 1: are going to kind of agree to do this in
Speaker 1: the face of what the reaction to that would be.
Speaker 1: My view is that it won't happen because even died
Speaker 1: in the will, Republicans would think it looked too much
Speaker 1: like a coup data to replace their own constituents votes
Speaker 1: with their own with their votes after the votes had
Speaker 1: already been cast. You know, as you say, if there
Speaker 1: were true chaos somewhere, maybe you could conceive of it.
Speaker 1: But there hasn't been that kind of cast that suggests
Speaker 1: that the relatively smooth functioning of the election thus far
Speaker 1: is actually a pretty important factor in pushing us towards
Speaker 1: an outcome of Biden actually being not only winning, but
Speaker 1: being treated as the winner. Yeah, I think that's that.
Speaker 1: That's right now. You know, of course, something could blow
Speaker 1: up in Pennsylvania, and if Pennsylvania turns out to be decisive,
Speaker 1: you know, the things might change. But given where we
Speaker 1: are right now, I think the risk has been diminished,
Speaker 1: I'll put it that way. I also think they've they've
Speaker 1: played most of their stronger potential legal cards. One of
Speaker 1: the advantages of this massive volume of litigation we had
Speaker 1: in advance of the election, which wasn't necessarily good in
Speaker 1: various ways, but one of the things it did is
Speaker 1: it brought a lot of clarity to a lot of
Speaker 1: the issues that could have been fought over, and instead
Speaker 1: of fighting about them after the election, you know, we
Speaker 1: got a fair amount of that cleared up. And in fact,
Speaker 1: you know, on this ballot extension deadline issue, for example,
Speaker 1: the substantial majority of states ended up having their traditional
Speaker 1: you have to get the ballot back by election night
Speaker 1: deadline so it's only a few states where that issue
Speaker 1: even got opened up. One is in North Carolina, which
Speaker 1: if Trump wins, it's unlikely that anyone's going to care
Speaker 1: about it there. Another is in Minnesota, which Biden has
Speaker 1: easily won before those ballots to come in after election
Speaker 1: day or count it, so it seems like a non
Speaker 1: issue there. So, you know, Pennsylvania's is still the one
Speaker 1: place that it could be an issue. But as I say,
Speaker 1: I think Democrats by election day had returned eighty four
Speaker 1: percent of the absentee ballots that they had requested. So
Speaker 1: the media often looks at these things, oh my gosh,
Speaker 1: there's all these outstanding absentee ballots to come in, but
Speaker 1: they have no baseline about what a normal return rate is.
Speaker 1: So normally about eighty percent of absentee ballots that I
Speaker 1: requested get voted, and the rest don't come back in
Speaker 1: people decide to show up in vote in person, they
Speaker 1: get nervous about whether the ballot's going to come back
Speaker 1: on time, they forget they requested the apps T ballot.
Speaker 1: So so even before election day, we had a very
Speaker 1: very high return rate, at least compared to you know,
Speaker 1: what I think of as the baseline of eighty percent,
Speaker 1: and of course put Pennsylvania has been the focus of
Speaker 1: both campaigns. It's been tremendous mobilizing voter field operation work,
Speaker 1: getting people to get their ballots back early. So I
Speaker 1: just sort of suspect that what people think in terms
Speaker 1: of how many are going to come back, by the way,
Speaker 1: that's something I'm going to look at in terms of
Speaker 1: the debates about these Supreme Court decisions. When the Supreme Court,
Speaker 1: in that recent five to three decision cut off Wisconsin
Speaker 1: from having the extended deadlines, you know, you had lower
Speaker 1: court judges writing dissenting writing pitons saying they're gonna be
Speaker 1: one hundred thousand votes that are going to be thrown out.
Speaker 1: I'm also very skeptical that we're going to be talking
Speaker 1: about anything like that magnitude. I want to kind of
Speaker 1: keep track see what we learn after the fact. Rick,
Speaker 1: we've been talking, and you've been talking extremely valuably and
Speaker 1: helpfully about the nitty gritty, you know, we've we've been
Speaker 1: deep in it for the conversation, and before I let
Speaker 1: you go, I want to talk a little bit about
Speaker 1: the other aspect of your deep interest in election law,
Speaker 1: which is the bigger, more profound constitutional structures that are
Speaker 1: in play here. So let's just imagine for the sake
Speaker 1: of argument. Let's start with the scenario where Biden wins
Speaker 1: the election and is eventually recognized as the winner of
Speaker 1: the election, maybe not by Donald Trump, but by enough
Speaker 1: people that he can be sworn in and actually take
Speaker 1: office in the Secret Service, smilingly escorse Donald Trump from
Speaker 1: the building. In that scenario, we will have avoided the
Speaker 1: scene of an electoral college that, twice in a row
Speaker 1: gives a victory to a president who didn't win the
Speaker 1: popular vote. Is that going to lead to some sort
Speaker 1: of dying down of the growing rather intensive criticism of
Speaker 1: the electoral college as unjust that we've seen an undemocratic
Speaker 1: that we've seen building. Do you think that it will
Speaker 1: just put it out of our heads for the next
Speaker 1: four years, especially given the fact that it's pretty challenging
Speaker 1: to change it. Or do you think we'll get the
Speaker 1: opposite of more of a focus of people saying, look
Speaker 1: how close this was this time, This is just not okay.
Speaker 1: We just can't take this risk in the future, and
Speaker 1: we have to double down on our attempt to find
Speaker 1: some structural solution. So the issue I would link that too,
Speaker 1: because they are intimately linked together, is what happens with
Speaker 1: the Senate, and then what's the relationship between if there
Speaker 1: is a Biden presidency and the Senate And also sort
Speaker 1: of nationwide what percentage of votes for the Senate seats
Speaker 1: are for Democratic candidates versus Republican ones. And there are
Speaker 1: so many things I'd like to fix about our election system.
Speaker 1: This is actually at a very kind of big level,
Speaker 1: where of course it's harder to make the changes. But
Speaker 1: I think that, you know, there is this growing sense
Speaker 1: for sure that that their political minorities have more and
Speaker 1: more ability to come up change between the Senate, the
Speaker 1: electoral College, even you know, Jerrymander districts um and and
Speaker 1: there's a lot more awareness of these issues. I used
Speaker 1: to say when I taught that I'm surprised there's not
Speaker 1: much debate about the Senate and how antidemocratic the Senate
Speaker 1: in the US is m because the population disparities had
Speaker 1: just become so enormous, But that has become a subject
Speaker 1: of public debate in recent years. So, uh, depending on
Speaker 1: what Biden as president, if president gets done or gets
Speaker 1: blocked from doing by a Senate depending on how many
Speaker 1: Senators there are. If Senate reform, which would be I
Speaker 1: think the more immediate focal point gets on the agenda,
Speaker 1: I think elector while college reform would be connected to
Speaker 1: that debate. But is there any way to get to
Speaker 1: Senate reform? I mean there's I guess there's the old
Speaker 1: fashioned as in pre Civil war, let's add more states,
Speaker 1: which is not a solution to the problem. It's just
Speaker 1: a way for the Democrats to try to gain it
Speaker 1: an advantage. But they can obviously only do that if
Speaker 1: they actually hold a majority in the Senate. So it's
Speaker 1: not a form of reform that's available unless they've already
Speaker 1: to some extent one it. But beyond that, I mean,
Speaker 1: when the small states stage their walkout in seventeen eighty seven,
Speaker 1: they were made sure to permanently, you know, institutionalize their
Speaker 1: gains by making it impossible under the Constitution to take
Speaker 1: away your Senate votes without the consent of the state.
Speaker 1: So is there a way is there a way to
Speaker 1: even reform the Senate? So one of the perverse consequences
Speaker 1: of having the longest running continuous constitutional democracy is institutions
Speaker 1: are built, they're anchored into the Constitution at a certain
Speaker 1: moment in time. Obviously things change dramatically and unanticipated ways.
Speaker 1: Those institutions no longer function the way they were imagined
Speaker 1: to function, and yet they become very very difficult to change.
Speaker 1: And the Senate, you know, is certainly an example. And yes,
Speaker 1: of course you're right that the Democrats need unified control
Speaker 1: of all three parts of the national political process, the House,
Speaker 1: the Senate, in the White House to be able to
Speaker 1: make those changes. I assume that you know, there are
Speaker 1: ways of keeping a Senate like structure that in fact,
Speaker 1: it could be exactly the same structure, but we could
Speaker 1: change the proportions of you know, how many senators a
Speaker 1: state got per one million number of people or something
Speaker 1: like that, so that you know, you could change the formula,
Speaker 1: but it had to be a constitutional amendment that so
Speaker 1: that the disproportion between California and Wyoming is not seventy
Speaker 1: something to one like it is today. But that's also
Speaker 1: assuming Rick, that the that the constitutional provision is amendable, right,
Speaker 1: I mean, this is an arcade debate among constitutional law professors,
Speaker 1: but it is one of the provisions at the Constitution
Speaker 1: that has written doesn't sound like it's susceptible to Article
Speaker 1: five amendment because it says that in the Constitution that
Speaker 1: you can't take away a state's equal representation without its consent,
Speaker 1: and that doesn't say unless you do it by a
Speaker 1: constitutional amendment. So isn't there a genuine question about whether
Speaker 1: even an amendment what could do that? Well, the way
Speaker 1: I put the question back to you is if there
Speaker 1: were actually a large enough political movement to amend the
Speaker 1: Constitution in that way, do you think a court or
Speaker 1: a Supreme Court would say, well, sorry, that was an
Speaker 1: unconstitutional constitutional amendment and therefore, you know, we're pulling the
Speaker 1: rug out of this. What would have to be a
Speaker 1: massive popular movement, you know, to kind of get us
Speaker 1: to this point, or would the court say it's a
Speaker 1: political question, etcetera. Yeah, now I hear that argument. I
Speaker 1: guess my one response is to get two thirds of
Speaker 1: the members of Congress, including two thirds of the Senators
Speaker 1: and three quarters of the state legislatures, to agree to
Speaker 1: reform the Senate is to my mind, not within the
Speaker 1: bounds of realistic possibility. I mean, I think the same
Speaker 1: incentives would exist now as existed at the original convention
Speaker 1: in Philadelphia, whereby the smaller states just basically said, you know,
Speaker 1: we don't care if this is unfair, We're just not
Speaker 1: backing down. And if you don't like it, like find
Speaker 1: no constitution, and I think so, I actually, I actually
Speaker 1: don't see Senate reform. I wish I could find a
Speaker 1: way towards Senate reform. In the case of the electoral college,
Speaker 1: which was the thing I was hoping to ask you about,
Speaker 1: there is at least this idea that if enough states
Speaker 1: agreed to engage in an interstate pact according to which
Speaker 1: they would all cast their electoral votes according to a
Speaker 1: majoritarian outcome, that maybe, maybe maybe you could reach some
Speaker 1: tipping point where without amending the Constitution, we actually got
Speaker 1: rid of the electoral college. There are definitely ways of
Speaker 1: fixing the electoral college without a constitutional amendment. That's true.
Speaker 1: I mean, there are a couple of ways to think about.
Speaker 1: One is the one you mentioned, the National Popular Vote Compact,
Speaker 1: where a number of states sign up and say we're
Speaker 1: committed in advance to giving our electors to whoever wins
Speaker 1: the national popular vote, and then if two seventy or
Speaker 1: more states two hundred and seventy electoral votes are more
Speaker 1: agreed to that than the popular vote winner would become
Speaker 1: the winner. I've always been nervous about that solution because
Speaker 1: my concern is that at the only moment in which
Speaker 1: the compact would actually make a difference, which would be
Speaker 1: when a state would have to support a president that
Speaker 1: its people voted against, would the compact actually hold or
Speaker 1: would the state legislature withdraw from the compact at that point. So,
Speaker 1: I mean, I worry about that solution. The other solution
Speaker 1: is if you could get all the states to agree
Speaker 1: to award their electors, let's say, proportionately to the vote
Speaker 1: in the state, so that if Canada got, you know,
Speaker 1: fifty five percent of the vote, they'd get fifty five
Speaker 1: percent of the electors or whatever the you know integer
Speaker 1: was that was instead of one hundred percent of the electors,
Speaker 1: and that there's no constitutional barrier to doing that. The
Speaker 1: only problem with that is you have to get all
Speaker 1: the states to agree to do it, because no state
Speaker 1: is going to be, you know, go out there and
Speaker 1: do it by itself and deprive itself of power in
Speaker 1: the electoral college process unless the other states are willing
Speaker 1: to do it as well. It's a little bit like
Speaker 1: I don't know if this is too our kine for you,
Speaker 1: but for the conversation at this point. But you know,
Speaker 1: it's a little bit like the dynamic we had that
Speaker 1: led us to use single member districts to elect members
Speaker 1: of Congress, which is the Constitution allows states to decide
Speaker 1: how to elect members of Congress. At the beginning, a
Speaker 1: bunch of states elected them at large. You know, so
Speaker 1: say majority statewide controlled all the members of Congress in
Speaker 1: the big states which had more factions, infinite diverse interests
Speaker 1: that that was alienating to significant parts of the population.
Speaker 1: Those states decide, okay, let's have an individual districts to
Speaker 1: elect members of Congress. And then Pennsylvania discovered it lost
Speaker 1: power to a small state like Rhode Island because you're
Speaker 1: divided now in your delegation. You know, you have maybe
Speaker 1: half of the delegates our federalist and half our anti federalist,
Speaker 1: and they sort of neutralize each other in the Pennsylvania delegation.
Speaker 1: So what happened, So finally Congress in the eighteen forties
Speaker 1: there was this collective action solution mechanism available. Congress passed
Speaker 1: a law forcing all states to elect members of Congress
Speaker 1: from single member districts and that's what we've had ever since.
Speaker 1: So what you need for the electoral college would be
Speaker 1: something like that, you know, Congress, an external body that
Speaker 1: can say, okay, we will give you the rule that
Speaker 1: you all agree you would be better off under, but
Speaker 1: you can't actually make an agreement sort of one by
Speaker 1: one to adopt. The problem is it's not clear if
Speaker 1: Congress has the power to do that and to tell
Speaker 1: states their electors shall be awarded on a proportional basis
Speaker 1: anyway that may be more than you wanted on that,
Speaker 1: but well we call it. We call it deep background
Speaker 1: for a reason. We're willing to We're willing going to
Speaker 1: go into the deep deep questions too. Last question for you, Rick,
Speaker 1: before I let you go with lots of gratitude, what
Speaker 1: am I failing to ask you that I should be
Speaker 1: asking you? What is salient in your mind that no
Speaker 1: one asked you when you were on TV, or that
Speaker 1: I haven't asked you in this conversation that you would
Speaker 1: like to leave listeners with. And look, I think we
Speaker 1: are putting ourselves at enormous risk. I don't know if
Speaker 1: we can go through a process like this again with
Speaker 1: our election system. We have a political culture now that
Speaker 1: makes a system that is so screwed up potentially you know,
Speaker 1: dynamite in a really disturbing way for the for the country.
Speaker 1: And it's if we dodge that situation this time, we
Speaker 1: will have gotten lucky. Um, we have huge problems we
Speaker 1: have to try to figure out a way to fix.
Speaker 1: To come up with election processes and systems that are
Speaker 1: broadly accepted, we'll be kind of stable. We won't be
Speaker 1: fighting about them constantly. We will run elections within that
Speaker 1: framework and accept the framework is a legitimate framework, because
Speaker 1: I don't know how many elections like this we can
Speaker 1: go through without putting, you know, putting the system really
Speaker 1: in jeopardy. I hear you, and I think you're absolutely
Speaker 1: right that we're playing with fire. And if we are
Speaker 1: lucky enough to get out of this election without a
Speaker 1: huge legal fight or without a deep crisis of legitimacy,
Speaker 1: you know, it's it's it's just it's just the luck
Speaker 1: of the draw. I mean, we've already had this extraordinary
Speaker 1: thing in the middle of the night or the early
Speaker 1: morning hours of the President of the United States, by
Speaker 1: the way, in the East room of the White House,
Speaker 1: not the place where we're expecting there to be a
Speaker 1: political rally announcing that he had already won the election
Speaker 1: when he plainly had not won the election, and we're
Speaker 1: all sort of we're so desensitized to we accepted. We say, oh, well,
Speaker 1: of course the president did that. We knew he was
Speaker 1: going to do that. And you know, we point out,
Speaker 1: as you and I have both pointed out, that he
Speaker 1: can say that, we can't stop him from saying it,
Speaker 1: but doing it as another matter. But we're really we
Speaker 1: are in a high risk situation here, and it seems
Speaker 1: to me that we probably do need some fundamental reform
Speaker 1: or we're going to run into a problem that's going
Speaker 1: to make bush Vigor look like like it was nothing. Yeah,
Speaker 1: I've said, if we had a bush Vigor situation today,
Speaker 1: it would that two thousand would look like a walk
Speaker 1: in the park compared to what that would produce today. Rick,
Speaker 1: thank you so much for your time on your busiest
Speaker 1: day of the year, and thank you for what you
Speaker 1: do the other three hundred and sixty four and a
Speaker 1: quarter days explaining many aspect of constitutional electoral alarm. Really
Speaker 1: grateful to you. It's fun to have a good excuse
Speaker 1: to chat with you for a while. No Professor Rick
Speaker 1: Pildus is the go to election law expert, and we're
Speaker 1: really lucky that he was able to make time to
Speaker 1: talk about the current election and the options with us.
Speaker 1: Rick says that if this comes down to Pennsylvania, this
Speaker 1: is going to be a major, major mass. At the
Speaker 1: same time, Rick has some pieces of mild optimism for us.
Speaker 1: For one thing, election day ran, in his view, relatively smoothly.
Speaker 1: This smoothness takes away one of the excuses that might
Speaker 1: have been available to a Republican state legislature to deprive
Speaker 1: the voters of their choice of Joe Biden and instead
Speaker 1: to substitute a slate of Trump electors, invoking the constitutional
Speaker 1: right potentially to do so. Chaos would have been an
Speaker 1: invitation for the Trump administration to urge state legislatures to
Speaker 1: do this. Relative smoothness, according to Rick, makes that less likely.
Speaker 1: Litigation is already going on, but Rick says it's relatively
Speaker 1: difficult at this moment for the Trump administration to come
Speaker 1: up with a systematic legal argument for disenfranchising large numbers
Speaker 1: of voters or for blocking the count of votes on
Speaker 1: a wholesale level. That is, by suggesting that as a
Speaker 1: principal matter, a whole tranche of voters should be prohibited
Speaker 1: from having their votes counted. What the Trump administration can do,
Speaker 1: Rick points out, is to continue at the retail level
Speaker 1: challenging individual ballots. But doing that knocks off a vote here,
Speaker 1: a vote there, perhaps even a few hundred votes, and
Speaker 1: will not suffice for Trump to manage to win an
Speaker 1: election that he would not otherwise win, unless we're in
Speaker 1: Florida in two thousand zone, where an entire our election
Speaker 1: is going to be decided not by ten or twenty
Speaker 1: thousand votes, but by just a few hundred votes. At
Speaker 1: the deeper level of the structures of our democracy, Rick
Speaker 1: Piltus's analysis is considerably darker. He points out that we
Speaker 1: probably can't afford to have another contested election of this kind,
Speaker 1: and he points out that the basic structure of the
Speaker 1: electoral college is extremely difficult to change or amend and
Speaker 1: remains a major challenge to majoritarian democratic norms in our country.
Speaker 1: So is the United States Senate, in which nearly half
Speaker 1: of the senators can be elected by perhaps eighteen or
Speaker 1: nineteen percent of the population. These are long run, deep
Speaker 1: structural problems with our constitutional democracy, and as Rick points out,
Speaker 1: we need to think seriously about how to address them,
Speaker 1: lest the basic legitimacy of our democracy be substantially undercut.
Speaker 1: My takeaway from listening to Rick is that it is
Speaker 1: possible that in the next few days we will emerge
Speaker 1: relatively unscathed from this very close, nailbiter election, with our
Speaker 1: institutions fully functioning. It is also still possible that it
Speaker 1: will come down to Pennsylvania and we will have an
Speaker 1: all out war, which Rick says would make the two
Speaker 1: thousand Bushbegor fight seem like a small matter in comparison
Speaker 1: at the bigger picture level. Though, even if we manage
Speaker 1: to survive this electoral cycle, we need to think seriously
Speaker 1: about the institutional fixes and changes that might be available
Speaker 1: to us so as to shore up the constitutional democracy
Speaker 1: that we all, in principle say we're committed to preserving.
Speaker 1: Until the next time I speak to you, be careful,
Speaker 1: be safe, and be well. Deep background is brought to
Speaker 1: you by Pushkin Industries. Our producer is Lydia Gencott, our
Speaker 1: engineer is Martin Gonzales, and our shorerunner is so K
Speaker 1: Crane mckibbon. Theme music by Luis Guerra at Pushkin. Thanks
Speaker 1: to Mia Lobell, Julia Barton, Heather Fain, Carlie mcliori, Maggie Taylor,
Speaker 1: Eric Sandler, and Jacob Weisberg. You can find me on
Speaker 1: Twitter at Noah R. Feldman. I also write a column
Speaker 1: for Bloomberg Opinion, which you could find at bloomberg dot
Speaker 1: com slash Feldman. To discover Bloomberg's original slate of podcasts,
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