WEBVTT - The Election and the Courts 0:00:15.356 --> 0:00:23.116 Pushkin from Pushkin Industries. This is Deep Background, the show 0:00:23.156 --> 0:00:26.276 where we explored the stories behind the stories in the news. 0:00:26.716 --> 0:00:31.276 I'm Noah Feldman. I'm speaking to you today November fourth, 0:00:31.316 --> 0:00:35.676 twenty twenty, the day after election day in the United States. 0:00:36.676 --> 0:00:39.636 Now I knew all along that the person I wanted 0:00:39.676 --> 0:00:42.556 to speak to the day after the election was Professor 0:00:42.716 --> 0:00:46.316 Richard Pildas. Rick is a professor of constitutional law at 0:00:46.396 --> 0:00:49.396 New York University School of Law. He's one of the 0:00:49.476 --> 0:00:53.396 key figures in the entire country focusing on how legal 0:00:53.436 --> 0:00:59.356 issues and democracy interact. He's also an election analyst for CNN, 0:00:59.676 --> 0:01:02.716 and when I was a baby professor at NYU, he 0:01:02.796 --> 0:01:07.476 was an extraordinary mentor to me. Despite what is an 0:01:07.516 --> 0:01:11.356 incredibly busy today for Rick, his true busy season, he 0:01:11.476 --> 0:01:14.996 made time to speak to us, and we're really grateful 0:01:15.036 --> 0:01:26.276 for that. Rick, thank you so much for joining me. 0:01:26.516 --> 0:01:30.156 It's your busy season every four years as you try 0:01:30.196 --> 0:01:34.716 to explain election law to you're adoring and terrified public. 0:01:35.396 --> 0:01:38.636 So let's just start with the current state of play 0:01:39.196 --> 0:01:44.076 as of Wednesday at around twelve thirty pm Eastern Standard time. 0:01:45.236 --> 0:01:50.356 What litigation options does Donald Trump have after his two 0:01:50.396 --> 0:01:52.996 thirty am rambling speech where he said he was quote 0:01:53.036 --> 0:01:55.356 going to the Supreme Court, but didn't exactly explain what 0:01:55.356 --> 0:01:57.436 he was going to ask for there. Well, the first 0:01:57.516 --> 0:01:59.956 question is going to be, of course, you know, how 0:01:59.996 --> 0:02:03.396 small are the margins in particular states, and then are 0:02:03.436 --> 0:02:06.876 the potential legal issues you know, within that margin to 0:02:06.956 --> 0:02:11.156 make it possibly worthwhile. So the one issue that stands 0:02:11.156 --> 0:02:16.676 out most clearly is that in Pennsylvania, the state court 0:02:16.716 --> 0:02:20.316 there extended the receipt deadline for absentee ballots until three 0:02:20.396 --> 0:02:24.396 days after the election. The Republican Party has been litigating 0:02:24.396 --> 0:02:26.956 that issue, trying to take it to the Supreme Court 0:02:27.036 --> 0:02:32.316 already in earlier rounds. The Supreme Court issued a four 0:02:32.356 --> 0:02:36.756 to four decision declining to stay that order. Then the 0:02:36.796 --> 0:02:38.876 Republican Party went back to the Supreme Court and asked 0:02:38.876 --> 0:02:41.796 for an expedited CIRT petition grant so the case could 0:02:41.836 --> 0:02:44.316 be argued before the elections. Supreme Court said no to that. 0:02:44.916 --> 0:02:48.636 But you can bet that this would be issue number 0:02:48.676 --> 0:02:51.116 one that they would go right back to the Supreme 0:02:51.156 --> 0:02:52.756 Court on or try to get back to the Supreme 0:02:52.756 --> 0:02:55.916 Court very fast on if it turns out that Pennsylvania 0:02:55.996 --> 0:02:59.516 could be decisive and the margin is affected by the 0:02:59.596 --> 0:03:01.716 number of ballots that coming in this three day window. 0:03:01.836 --> 0:03:05.316 Now my own guests, by the way, without even knowing 0:03:05.356 --> 0:03:07.276 what the margin in Pennsylvania is going to be and 0:03:07.316 --> 0:03:10.436 who's going to win or lose, I'm inclined to think 0:03:10.436 --> 0:03:13.276 there aren't going to turn out to be that many 0:03:13.316 --> 0:03:17.076 ballots to come in in this three day window. So 0:03:17.116 --> 0:03:19.796 we'll have to see if you know, there's enough volume 0:03:19.836 --> 0:03:24.756 there to make it worth the worth the candle. You know, 0:03:24.836 --> 0:03:29.596 after that, it's not clear where there are big batches 0:03:29.596 --> 0:03:33.596 of votes that might be affected by a legal challenge 0:03:33.676 --> 0:03:37.356 of one sort or another. And part of the problem 0:03:37.356 --> 0:03:40.276 the Trump administration has at this point, the campaign, i 0:03:40.356 --> 0:03:44.596 should say has, is that once voters have cast ballots, 0:03:45.316 --> 0:03:47.356 it's going to be a lot harder for courts to 0:03:47.436 --> 0:03:50.596 say those ballots we decided we're illegal, and therefore we're 0:03:50.596 --> 0:03:53.156 going to throw them out. So if you you know, 0:03:53.196 --> 0:03:57.836 couldn't get courts to intervene x amte, it becomes a 0:03:57.956 --> 0:04:04.476 much tougher and much less appropriate action for courts if 0:04:04.556 --> 0:04:07.556 voters have relied on the state of the law, including 0:04:07.596 --> 0:04:10.476 when the Supreme Court has it's self not intervened in 0:04:10.516 --> 0:04:14.556 advance when it had the opportunity to do so, you know, 0:04:14.636 --> 0:04:17.676 I'm sure that they will seek recounts if states are 0:04:17.676 --> 0:04:20.436 close enough to warrant it. And then when you as 0:04:20.436 --> 0:04:22.916 we learned in Florida in two thousand, when you go 0:04:22.956 --> 0:04:25.476 through recounts and you start looking at each individual ballot, 0:04:25.876 --> 0:04:29.356 issues can come up. There's an issue that could be 0:04:29.436 --> 0:04:31.916 the hanging chat of this election if it really came 0:04:31.956 --> 0:04:35.036 down to a small number of ballots, which is ongoing 0:04:35.076 --> 0:04:39.996 fights about ballots that are not clearly postmarked by election 0:04:40.116 --> 0:04:46.036 day even though they arrive within the deadline for that 0:04:46.076 --> 0:04:51.356 particular state. And a lot of state courts have sort 0:04:51.356 --> 0:04:55.916 of created presumptions that if there's not a clear postmark, 0:04:55.956 --> 0:04:58.996 but it arise within a certain amount of time, that 0:04:59.076 --> 0:05:02.276 should be treated as having been postmarked by election day. 0:05:02.316 --> 0:05:06.356 I can see fights going on about that. I think 0:05:06.396 --> 0:05:09.596 that there could easily be fights were sort of in 0:05:09.716 --> 0:05:13.956 one like this already in Pennsylvania, where you have state 0:05:14.036 --> 0:05:17.676 election officials not applying the same policies across the state. 0:05:18.516 --> 0:05:21.036 So this is a minor problem that's opened up in 0:05:21.036 --> 0:05:25.516 Pennsylvania in the last couple of days. So one of 0:05:25.516 --> 0:05:28.396 the issues is you probably know with absentee ballots, is 0:05:28.436 --> 0:05:32.356 if you make a mistake on the ballot envelope, do 0:05:32.396 --> 0:05:34.876 you have a chance to get notified of that mistake 0:05:34.916 --> 0:05:39.836 and fix it if there's time. And Pennsylvania law does 0:05:39.876 --> 0:05:42.396 not provide that you have that opportunity. It doesn't say 0:05:42.436 --> 0:05:45.636 you don't have that opportunity. The state Supreme Court issued 0:05:45.636 --> 0:05:48.036 an opinion on this. It basically said the same thing. 0:05:48.076 --> 0:05:50.876 The law doesn't prohibit it prohibit it, but it doesn't 0:05:50.916 --> 0:05:55.236 say voters have a right to this. And then kind 0:05:55.236 --> 0:05:58.356 of late in the day, one county started giving voters 0:05:58.356 --> 0:06:03.636 this opportunity to fix their defective ballots. Then the Secretary 0:06:03.676 --> 0:06:07.356 of State came in on Monday and kind of suggested. 0:06:07.516 --> 0:06:10.436 She didn't say you must give this opportunity across the 0:06:10.436 --> 0:06:13.556 state or you're prohibited. She sort of left it to 0:06:13.596 --> 0:06:19.436 the counties. And this is just drives you crazy that 0:06:19.516 --> 0:06:22.836 you know, this is the fundamental policy issue. How can 0:06:22.876 --> 0:06:25.596 it be that the day before the election in a 0:06:25.676 --> 0:06:30.156 state like Pennsylvania, it doesn't occur to any state policymaker 0:06:30.316 --> 0:06:32.076 that they have to have a clear policy one way 0:06:32.156 --> 0:06:34.356 or the other on this. But don't get me started 0:06:34.396 --> 0:06:37.716 with Pennsylvania, because they have been in my crosshairs since 0:06:38.676 --> 0:06:45.236 literally late March, and I actually just really did my 0:06:45.356 --> 0:06:49.076 best to hold them accountable, let's say, on CNN recently today, 0:06:50.196 --> 0:06:52.916 because I think the governor and the legislature there have 0:06:53.036 --> 0:06:57.956 just acted unconscionably and they are the reason they've thrown 0:06:57.996 --> 0:07:01.036 the country into this period where we have to wait 0:07:01.076 --> 0:07:05.836 for Pennsylvania and maybe another day, another two days. You know, 0:07:05.876 --> 0:07:09.356 if it's a decisive state or the decisive state, this 0:07:09.436 --> 0:07:15.676 is just a recipe for conflict and endless challenges to 0:07:15.876 --> 0:07:18.956 legitimacy the election. And there's just simply no reason it 0:07:19.076 --> 0:07:21.636 had to be this way. This is just a total 0:07:21.716 --> 0:07:25.516 failure of state policy. Is it a failure, Rick, or 0:07:25.556 --> 0:07:29.436 was it an intentional policy driven by the state legislature's 0:07:29.476 --> 0:07:33.196 desire for the votes that were mailed in not to 0:07:33.236 --> 0:07:37.436 be counted in advance when there was time to do so. Well, 0:07:37.516 --> 0:07:42.596 the story in Pennsylvania is that the Republican legislature was 0:07:42.676 --> 0:07:47.396 willing to allow election officials to start processing three days 0:07:47.396 --> 0:07:50.556 at advance of election day. They actually passed a bill 0:07:50.796 --> 0:07:55.276 in the state House to do that. But like everything 0:07:55.276 --> 0:07:58.996 else in American politics, you know, everybody has to sort 0:07:59.036 --> 0:08:00.916 of try to figure out what else they can get, 0:08:01.836 --> 0:08:07.596 and so they attached to that various policies that the 0:08:07.636 --> 0:08:10.836 governor Democratic governor didn't want to accept. They were policies 0:08:10.876 --> 0:08:17.996 about drop boxes and the like, and so election administrators 0:08:18.036 --> 0:08:21.916 throughout the state, Republican and Democrat, were pleading with the 0:08:21.956 --> 0:08:24.996 political leaders of the state to give them more time. 0:08:25.276 --> 0:08:27.676 I mean, not only do they have this massive volume 0:08:27.996 --> 0:08:30.556 you maybe close to three million of absentee ballots that 0:08:30.676 --> 0:08:34.076 come in and just sit there idly until election day, 0:08:34.516 --> 0:08:37.116 but on election day when they can start processing them, 0:08:37.276 --> 0:08:39.636 they've got to run the election on top of everything else. 0:08:40.396 --> 0:08:46.716 So it's just an enormous undertaking. And the governor put 0:08:46.716 --> 0:08:50.916 on the table a demand that they be given twenty 0:08:50.916 --> 0:08:54.036 one days in advance to start the processing. So that 0:08:54.156 --> 0:08:56.196 was a position way out there. I don't know if 0:08:56.196 --> 0:09:00.076 that was meant to be a negotiating position, but basically 0:09:01.116 --> 0:09:02.956 what they needed to do was to find a way 0:09:02.996 --> 0:09:05.516 to get this issue out from the other issues and 0:09:05.596 --> 0:09:08.956 just resolve this issue. Give the election officials even three 0:09:09.196 --> 0:09:13.396 days to get going, and I think it's a plague 0:09:13.436 --> 0:09:17.276 on both of their houses and really a plague on 0:09:17.316 --> 0:09:20.356 the country as a result. So our best case scenario 0:09:20.636 --> 0:09:24.076 then of avoiding a meltdown associated with Pennsylvania is for 0:09:24.116 --> 0:09:27.716 Pennsylvania not to be the decisive state. Oh, We've been 0:09:27.756 --> 0:09:31.756 saying for months and months and months that Pennsylvania is 0:09:31.756 --> 0:09:35.716 a decisive state. For additional reasons beyond the ones I've described. 0:09:36.396 --> 0:09:40.196 We're in for a very bad, very bad time. There 0:09:40.196 --> 0:09:43.516 are many things that are incredibly badly done as a 0:09:43.556 --> 0:09:46.956 matter of policy. Let's talk in real time about the 0:09:46.996 --> 0:09:50.396 scenarios where Pennsylvania could maybe appear not to be the 0:09:50.436 --> 0:09:53.876 decisive state, but where Trump goes to court to try 0:09:53.876 --> 0:09:58.036 to make Pennsylvania the decisive state. So one of those 0:09:58.036 --> 0:10:03.796 examples would be that Biden needs to win Nevada, which 0:10:03.836 --> 0:10:08.596 is quite close. Is there any legal action available to Trump? 0:10:09.196 --> 0:10:14.876 There similar question for Georgia, which Biden doesn't need to win, 0:10:15.036 --> 0:10:18.516 but which Biden has a shot of winning, where at 0:10:18.556 --> 0:10:21.036 least as we're speaking now, the votes that have been 0:10:21.036 --> 0:10:25.356 counted still have Trump ahead, but Biden is gaining fast 0:10:26.076 --> 0:10:29.476 as they count ballots from primarily Democratic districts in and 0:10:29.516 --> 0:10:32.996 around Atlanta. Yeah, so there was an effort already. Actually, 0:10:32.996 --> 0:10:35.956 there were a couple of efforts with respect to Nevada. 0:10:36.036 --> 0:10:39.716 One was the big effort to try to get the 0:10:39.756 --> 0:10:42.956 courts to do something they clearly weren't going to do, 0:10:42.996 --> 0:10:45.396 which is to stop Nevada from having an all vote 0:10:45.436 --> 0:10:49.276 by mail system. So that failed. That was obviously going 0:10:49.316 --> 0:10:55.876 to fail. But more recently, the major county in Nevada, 0:10:55.916 --> 0:10:59.116 which is Clark County has the largest population share of 0:10:59.116 --> 0:11:04.556 the state, has allegedly been doing signature verification, which is 0:11:04.556 --> 0:11:09.956 how they validate absentee ballots within a machine reading device 0:11:10.036 --> 0:11:13.556 that does the signature matching, compared to other parts of 0:11:13.556 --> 0:11:16.196 the state that do it differently. And the Republicans claim 0:11:16.836 --> 0:11:20.356 in Clark County, which is a Democratic county, they're validating 0:11:20.436 --> 0:11:22.676 signatures at a higher rate than in other parts of 0:11:22.716 --> 0:11:25.036 the state. Now, they already tried to take that through 0:11:25.076 --> 0:11:29.156 the Nevada court system on Monday night, the Nevada courts 0:11:29.196 --> 0:11:33.756 rejected that, And I think that's probably not likely to 0:11:33.796 --> 0:11:36.436 be a very strong claim, even if they make some 0:11:36.476 --> 0:11:41.436 effort to try to repackage it as a federal constitutional claim. 0:11:41.476 --> 0:11:47.916 I think that I don't know in the canvassing process 0:11:48.396 --> 0:11:52.276 in Nevada. I would assume if there are small margins, 0:11:52.676 --> 0:11:57.276 there will be knife fights about each individual absentee ballot, 0:11:58.276 --> 0:12:01.116 with the Republicans trying to throw out ballots that they 0:12:01.116 --> 0:12:03.196 think are more likely to be Democratic votes, and the 0:12:03.236 --> 0:12:07.116 Democrats trying to protect those votes, and you could sort 0:12:07.116 --> 0:12:11.916 of imagine that, now, can you actually change the numbers 0:12:12.676 --> 0:12:17.276 enough to turn the outcome? Seems pretty unlikely? Can I 0:12:17.316 --> 0:12:18.796 ask about that? So one of the things that I'm 0:12:18.796 --> 0:12:21.196 fascinated by, and it comes out very much from your distinctions, 0:12:21.636 --> 0:12:24.036 is that you can think of there as being kind 0:12:24.076 --> 0:12:26.596 of wholesale and retail ways for the Trump lawyers to 0:12:26.596 --> 0:12:29.036 fight the outcome. The wholesale ways are obviously the best. 0:12:29.116 --> 0:12:31.196 You want to get as block as many votes as possible, 0:12:31.716 --> 0:12:34.156 and for that you need some argument that a certain 0:12:34.196 --> 0:12:37.756 class of votes shouldn't be accepted. And that's a little 0:12:37.756 --> 0:12:40.756 hard because every state has a basic principle that it 0:12:40.796 --> 0:12:43.396 ought account the votes that are lawfully cast, and until 0:12:43.436 --> 0:12:46.276 those are all accounted, it's a little challenging to get 0:12:46.636 --> 0:12:51.396 whole classes excluded. Then there's retail, which is vote by vote, 0:12:51.396 --> 0:12:53.836 by painful vote. Now, you mentioned earlier, and I know 0:12:53.876 --> 0:12:57.916 this is the case. I remember from bushricorps that once 0:12:57.916 --> 0:13:01.396 you're in a recount situation, you could have a Republican 0:13:01.436 --> 0:13:04.196 and a Democratic lawyer sitting there or observer rather sitting 0:13:04.236 --> 0:13:07.236 there while the ballots are being recounted and arguing about 0:13:07.276 --> 0:13:10.596 each and every ballot. But ordinary early in most states 0:13:10.596 --> 0:13:13.196 you don't have that before a recount. Right at the 0:13:13.276 --> 0:13:17.196 regular count stage, you don't always have a Democrat and 0:13:17.196 --> 0:13:20.836 a Republican sitting next to every voter whatever. I think 0:13:21.236 --> 0:13:24.996 explain more about that. Yeah, So, I mean in what 0:13:25.076 --> 0:13:28.956 we call the canvassing stage, where the state is actually 0:13:28.996 --> 0:13:33.436 going through the process of officially determining what the vote was, 0:13:33.516 --> 0:13:35.756 looking at the ballot, seeing if there are any mistakes 0:13:35.756 --> 0:13:39.236 in the machine counts, things like that, before they officially 0:13:39.356 --> 0:13:45.476 certify a winner. In many states you do have observers 0:13:45.476 --> 0:13:47.836 from both parties. Actually, this is an issue with COVID 0:13:47.916 --> 0:13:51.196 right now, and there have been actually some complaints, indeed, 0:13:51.236 --> 0:13:54.356 some lawsuits that the Republicans have filed in certain states 0:13:54.396 --> 0:13:57.116 saying you're not letting our observers get close enough to 0:13:57.156 --> 0:14:00.996 this process physically, close enough, because it should be able 0:14:00.996 --> 0:14:03.236 to see, because that's kind of what they're that's why 0:14:03.276 --> 0:14:05.636 they want to be there, and and and you know, 0:14:05.796 --> 0:14:08.756 there's a lot of good that comes from these pole 0:14:08.796 --> 0:14:11.316 watch processes. A lot of people have a very negative 0:14:11.356 --> 0:14:14.676 image of them because they imagine this is what leads 0:14:14.716 --> 0:14:18.356 to violent confrontations in the light. But assuming your poll 0:14:18.396 --> 0:14:22.396 watchers are well trained as they typically are, and they're 0:14:22.436 --> 0:14:24.716 election officials, that will keep them in line. If they're not, 0:14:25.756 --> 0:14:29.516 you know, it's validating of the process that the two sides. 0:14:29.956 --> 0:14:33.276 This is not something that happens in the dark. In fact, 0:14:33.436 --> 0:14:36.156 it's amazing. Right now, this is the first time I'm 0:14:36.196 --> 0:14:40.476 aware of this happening. But today I was watching online 0:14:41.596 --> 0:14:46.516 as anyone can, the signature verification process going on in 0:14:46.676 --> 0:14:49.636 various states, and it's you know, about as boring the 0:14:49.676 --> 0:14:51.676 thing as you'd want to watch. I mean, it's a 0:14:51.716 --> 0:14:55.396 guy sitting and they're socially distanced in these election ministrators offices. 0:14:55.436 --> 0:14:57.636 It's a guy sitting in front of his computer and 0:14:57.676 --> 0:15:00.156 he has a ballot and he has a signature up 0:15:00.156 --> 0:15:03.316 on the ballot, and he's like, you know, looking and comparing. 0:15:03.396 --> 0:15:05.956 And they're trained, or they're supposed to be trained. They know, 0:15:06.516 --> 0:15:08.756 you know, what to look for and all of that, 0:15:08.836 --> 0:15:11.476 and and very few of these ballots overall end up 0:15:11.476 --> 0:15:16.916 getting rejected for this reason. But um, were you watching 0:15:16.916 --> 0:15:18.436 this on a live stream. Where were you watching? I 0:15:18.436 --> 0:15:21.356 was watching it on a live stream. Yeah, I mean 0:15:21.556 --> 0:15:24.636 watching paint dry is probably a little more dynamic, but uh, 0:15:25.076 --> 0:15:27.316 but but it's an amazing thing that you know, obviously 0:15:27.436 --> 0:15:30.756 create It creates a sense of you know, integrity to 0:15:31.196 --> 0:15:33.756 trans literal transparency. You can watch it happening. I mean 0:15:33.756 --> 0:15:37.276 they have webcams in there, you know. And uh, I 0:15:37.316 --> 0:15:40.316 mean the frustration is really they have to be that distant. 0:15:40.316 --> 0:15:42.676 They can't like speed this process up, you know, by 0:15:42.716 --> 0:15:46.156 putting people a little closer together in there. But anyway, 0:15:46.156 --> 0:15:48.716 it's it's fascinating. It's not just one state. I noticed 0:15:49.236 --> 0:15:52.076 this in several states. But it's now possible to do this. 0:15:53.516 --> 0:15:57.036 So um, now you have to have very small margins. 0:15:57.396 --> 0:16:01.076 You know, in Florida in two thousand, we were in 0:16:01.116 --> 0:16:04.596 the five hundred and thirty five vote kind of territory. 0:16:05.516 --> 0:16:08.316 Um uh. And so you know, if the margin is 0:16:08.316 --> 0:16:10.716 that small, then y, you know, winning enough of these 0:16:10.716 --> 0:16:15.716 battles could make a difference. But if you're several thousand votes, 0:16:15.756 --> 0:16:18.356 I mean, it might sound very tight, but the idea 0:16:18.396 --> 0:16:21.716 that you're going to change a couple of thousand votes 0:16:22.036 --> 0:16:27.716 is h that's a much bigger, much bigger hurdle. Does 0:16:27.716 --> 0:16:30.196 the Trump legal team seem to you to be well 0:16:30.396 --> 0:16:34.196 organized with respect to that kind of retail level, because 0:16:34.276 --> 0:16:37.076 at the wholesale level, you know, it's sort of interesting 0:16:37.116 --> 0:16:39.396 they despite the fact that the President, you know, said 0:16:39.556 --> 0:16:42.156 in his speech we're going to the Supreme Court that 0:16:42.276 --> 0:16:45.676 was now almost twelve hours ago, and so far no 0:16:45.796 --> 0:16:48.236 filing yet. I mean, they may have to file something 0:16:48.276 --> 0:16:50.836 at some point just to satisfy their client. So I'm 0:16:50.836 --> 0:16:53.796 wondering how how well prepared is the Bush is sorry 0:16:53.836 --> 0:16:58.796 to speak in an obvious way, but in any event, no, So, Look, 0:16:59.116 --> 0:17:03.636 that's actually an interesting question because I'm sure that many 0:17:03.716 --> 0:17:06.116 of your listeners heard all sorts of things from the 0:17:06.156 --> 0:17:08.836 Trump campaign in advance of the election. We're going to 0:17:08.916 --> 0:17:11.676 have fifty thousand pole watchers. We're going to have an 0:17:11.796 --> 0:17:17.196 army of pole watchers. I actually did say to people 0:17:17.196 --> 0:17:20.796 who were incredibly anxious about this, including on task force 0:17:21.316 --> 0:17:24.916 task forces I was on, who wanted us to write 0:17:24.996 --> 0:17:27.076 things about this, I said, Look, in every election I've 0:17:27.116 --> 0:17:29.356 been involved in, there's a lot of talk about that 0:17:29.436 --> 0:17:33.316 in advance. I've never seen it material lot materialize. I 0:17:33.396 --> 0:17:35.876 have no idea what will happen this year. But what 0:17:35.996 --> 0:17:38.836 did happen this year is that they didn't have that. 0:17:38.396 --> 0:17:40.916 That just didn't happen. So what's the thing that you 0:17:40.956 --> 0:17:44.036 expect that you expected not to materialize. I expected that 0:17:44.076 --> 0:17:47.636 there would not be lots and lots of these challenges 0:17:47.876 --> 0:17:52.796 from Trump lawyers or Trumps, you know, volunteers at the 0:17:52.796 --> 0:17:56.276 polling places or during the counting of these absentee ballots. 0:17:56.396 --> 0:17:59.236 And indeed, thus far your expectation has been born out. 0:17:59.356 --> 0:18:02.316 They're not doing it so far, yes, And I don't 0:18:02.316 --> 0:18:05.516 know if it's a matter of disorganization. I don't know 0:18:05.556 --> 0:18:08.036 if it was a matter of this was just bluster, 0:18:08.436 --> 0:18:12.396 and you know, no one was really trying to implement it. Seriously, 0:18:12.916 --> 0:18:15.836 it's a lot harder to implement these things than kind 0:18:15.836 --> 0:18:18.036 of people realize. You've got to get a very group people. 0:18:18.196 --> 0:18:20.476 You know, you have to be well be able to 0:18:20.556 --> 0:18:24.396 run a well organized organization. By the way, I should say, 0:18:24.436 --> 0:18:27.956 the Biden campaign, my understanding, did have fifty thousand poll 0:18:28.036 --> 0:18:34.676 watchers at various places in the country. And you know, 0:18:34.756 --> 0:18:39.876 sometimes this language is this kind of talk in advance 0:18:40.676 --> 0:18:44.116 I think is sometimes designed to rally your own troops, 0:18:44.156 --> 0:18:47.876 but also maybe to discourage voters from voting from the 0:18:48.196 --> 0:18:50.796 on the other side because they get fearful there's going 0:18:50.836 --> 0:18:53.516 to be this army of poll watchers, this gauntlet they're 0:18:53.516 --> 0:18:56.556 going to have to run. But we saw virtually none 0:18:56.556 --> 0:18:59.436 of that. And the other thing that helped on that 0:18:59.596 --> 0:19:02.996 was all of the early voting, and that's both in 0:19:03.076 --> 0:19:07.596 person and returning mail ballots early. So states like Florida 0:19:07.716 --> 0:19:11.916 because they have good policies on this, unlike Pennsylvania. You know, 0:19:11.996 --> 0:19:14.916 they were processing their absentee ballots starting three weeks in 0:19:14.956 --> 0:19:16.636 advance of the election. If there were going to be 0:19:16.716 --> 0:19:19.996 challenges to those ballots, that was the time for those 0:19:20.076 --> 0:19:23.276 challenges to take place, and so they weren't even taking 0:19:23.276 --> 0:19:27.716 place before. I don't know how focused the Trump team 0:19:27.916 --> 0:19:32.756 was on pre election day challenges or whether they focused 0:19:32.756 --> 0:19:36.396 all their efforts on post election day, but but no, 0:19:37.116 --> 0:19:40.756 by and large, you know, we actually had a very 0:19:40.756 --> 0:19:45.036 smooth election. They're always glitches, you know, they're all but 0:19:45.036 --> 0:19:48.916 but I think and we saw very little presence of this. 0:19:49.996 --> 0:20:01.436 We'll be back in a moment. I want to change 0:20:01.436 --> 0:20:04.676 our chronological focus now to what you might think of 0:20:04.756 --> 0:20:08.876 as the possibility of stage two legitimation. So we're still 0:20:08.876 --> 0:20:12.316 in stage one. But let's imagine for the sake of argument, that, say, Philip, 0:20:12.436 --> 0:20:15.716 that Pennsylvania does not turn out to be determinative, and 0:20:16.236 --> 0:20:19.916 over the next day or two the networks call enough 0:20:19.956 --> 0:20:24.796 states for Biden to determine a Biden victory, and Trump 0:20:24.836 --> 0:20:27.116 does not concede. It seems very unlikely that he would 0:20:27.116 --> 0:20:30.876 concede and decides in what you might call stage two 0:20:31.436 --> 0:20:34.316 de legitimation to emphasize an argument that he already made 0:20:34.356 --> 0:20:38.756 in his first speech, namely, if we lost that means 0:20:38.796 --> 0:20:42.796 the election was a hoax, and without any very concrete evidence, 0:20:42.836 --> 0:20:44.116 you know, maybe he can come up with a few 0:20:44.116 --> 0:20:47.756 cases here or there to say, I think that, you know, 0:20:47.756 --> 0:20:50.196 the fact there were districts that heavily voted for Joe 0:20:50.236 --> 0:20:53.476 Biden or what have you, is just a systemic proof 0:20:53.836 --> 0:20:57.116 that I've had the election stolen from me. Now, he 0:20:57.116 --> 0:20:58.436 could do that sort of one of two ways. He 0:20:58.476 --> 0:21:00.676 could just keep on saying that for the next month 0:21:00.756 --> 0:21:03.396 or so, or he could say that in conjunction with 0:21:03.436 --> 0:21:07.316 an actual effort to try to get some state legislatures 0:21:07.956 --> 0:21:11.276 in states that are where the vote has apparently gone 0:21:11.436 --> 0:21:15.676 for Biden to after the fact say they're changing the 0:21:15.716 --> 0:21:18.876 law in their state, and they the state legislatures are 0:21:18.916 --> 0:21:22.516 now going to choose the electors rather than relying on 0:21:22.516 --> 0:21:26.036 the vote because I'll say the vote was tainted and implausible. 0:21:26.876 --> 0:21:29.636 I'm wondering whether you think there is a real risk 0:21:29.716 --> 0:21:31.876 first of all, of Trump's step trying out these kinds 0:21:31.876 --> 0:21:35.916 of stage tug of the generations, and second whether if 0:21:35.916 --> 0:21:38.996 he does try these things, if there's any chance of 0:21:39.156 --> 0:21:44.396 any kind of any state legislature actually listening. So this, 0:21:44.636 --> 0:21:48.076 you know, we certainly thought about these scenarios, wrote about 0:21:48.116 --> 0:21:53.316 these scenarios in advance, so none of this is surprising 0:21:53.436 --> 0:21:57.836 to come up in discussion. I think the chances of 0:21:57.876 --> 0:22:00.916 that happening have already gotten smaller than they were before 0:22:00.916 --> 0:22:04.636 the election, because I think, in part, it would take 0:22:05.156 --> 0:22:09.516 a real sense of chaos about the process in one 0:22:09.596 --> 0:22:13.596 or more states, and at least as of now, we 0:22:13.636 --> 0:22:16.116 don't have that sense. I mean, it could have been 0:22:16.156 --> 0:22:20.356 a lot of chaos on election day. Um, it could 0:22:20.396 --> 0:22:24.876 have been much worse. It could have started the night. 0:22:25.156 --> 0:22:27.356 I mean, I think many of us thought that that 0:22:27.356 --> 0:22:30.436 that the president would start saying these things, you know, 0:22:30.436 --> 0:22:33.076 at eight or nine or ten pm last night. He 0:22:33.116 --> 0:22:37.156 didn't took him a little bit longer. And so I 0:22:37.196 --> 0:22:42.836 think for that move to have any kind of traction, UH, 0:22:43.196 --> 0:22:45.796 there's going to have to be you know, some kind 0:22:45.916 --> 0:22:50.516 of of basis. I mean, not necessarily a fully realistic basis, 0:22:50.556 --> 0:22:53.636 but you know, something to attach it to. Um. And 0:22:53.676 --> 0:22:56.116 then you're gonna have to have you know, state legislatures 0:22:56.436 --> 0:23:01.236 who would go against their constituents in the state. And uh, 0:23:01.676 --> 0:23:04.996 you know how many states now would this play have 0:23:05.156 --> 0:23:09.916 to be made in uh to be effective? Um. You know, 0:23:09.956 --> 0:23:11.956 I think if we come down to the election turning 0:23:11.996 --> 0:23:15.036 on one state, it becomes more of a possibility. But 0:23:15.036 --> 0:23:17.396 if you're talking about three or four states, you know, 0:23:17.476 --> 0:23:20.476 it's really hard to imagine three or four state legislatures 0:23:20.836 --> 0:23:22.756 are going to kind of agree to do this in 0:23:22.756 --> 0:23:25.636 the face of what the reaction to that would be. 0:23:26.996 --> 0:23:29.996 My view is that it won't happen because even died 0:23:30.036 --> 0:23:32.356 in the will, Republicans would think it looked too much 0:23:32.356 --> 0:23:36.636 like a coup data to replace their own constituents votes 0:23:36.676 --> 0:23:39.556 with their own with their votes after the votes had 0:23:39.556 --> 0:23:42.196 already been cast. You know, as you say, if there 0:23:42.196 --> 0:23:44.556 were true chaos somewhere, maybe you could conceive of it. 0:23:44.756 --> 0:23:47.076 But there hasn't been that kind of cast that suggests 0:23:47.116 --> 0:23:49.876 that the relatively smooth functioning of the election thus far 0:23:50.956 --> 0:23:54.156 is actually a pretty important factor in pushing us towards 0:23:54.196 --> 0:23:56.996 an outcome of Biden actually being not only winning, but 0:23:57.076 --> 0:23:59.956 being treated as the winner. Yeah, I think that's that. 0:24:00.076 --> 0:24:02.556 That's right now. You know, of course, something could blow 0:24:02.676 --> 0:24:10.556 up in Pennsylvania, and if Pennsylvania turns out to be decisive, 0:24:11.916 --> 0:24:15.756 you know, the things might change. But given where we 0:24:15.796 --> 0:24:21.596 are right now, I think the risk has been diminished, 0:24:21.716 --> 0:24:24.396 I'll put it that way. I also think they've they've 0:24:24.436 --> 0:24:28.236 played most of their stronger potential legal cards. One of 0:24:28.236 --> 0:24:32.076 the advantages of this massive volume of litigation we had 0:24:32.116 --> 0:24:35.396 in advance of the election, which wasn't necessarily good in 0:24:35.516 --> 0:24:37.836 various ways, but one of the things it did is 0:24:37.876 --> 0:24:39.876