WEBVTT - Noah Feldman on Axios Today about Electoral Votes 

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<v Speaker 1>Hello, Deep background listeners. Noah Feldman here. I've recently started

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<v Speaker 1>making regular appearances on Axios Today, the daily news podcast

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<v Speaker 1>from Axios. I always have great conversations with host Naila Budo,

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<v Speaker 1>and I hope I'm able to shed light on the

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<v Speaker 1>legal issues that are making headlines. Here's my latest interview

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<v Speaker 1>on Axios Today. If you like getting smarter faster, you

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<v Speaker 1>can subscribe or listen wherever you get your podcasts. I've

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<v Speaker 1>made it a daily habit, and I hope you will too.

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<v Speaker 1>At one pm Eastern time today, members of Congress will

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<v Speaker 1>meet in a joint session to officially count electoral votes

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<v Speaker 1>for the presidential election. Vice President Mike Pence will open

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<v Speaker 1>the electoral vote certificates to be read aloud, which fulfills

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<v Speaker 1>his constitutional role as President of the Senate. This happens

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<v Speaker 1>every four years after every presidential election, but it's getting

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<v Speaker 1>much more attention this year because of the dozens of

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<v Speaker 1>Senators House Republicans planning to object to the electoral results

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<v Speaker 1>from battleground states like Pennsylvania, Michigan, and Georgia. Noah Feldman

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<v Speaker 1>is a constitutional law professor at Harvard and our resident

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<v Speaker 1>legal ex hid for Axios Today. Noah, can we have

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<v Speaker 1>a free mini constitutional law class with you for a

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<v Speaker 1>second year anytime? Can you explain the twelfth Amendment in

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<v Speaker 1>what it says about what's supposed to happen today. What's

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<v Speaker 1>supposed to happen is that all of the states have

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<v Speaker 1>chosen electors. They've each only chosen one slate of electors.

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<v Speaker 1>They send that slate in on essentially a piece of paper.

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<v Speaker 1>Both houses of Congress meet in joint session. They're presided

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<v Speaker 1>over by the quote President of the Senate, better known

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<v Speaker 1>as the Vice President, Mike Pence. Mike Pence is supposed

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<v Speaker 1>to read out the votes they're supposed to be counted,

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<v Speaker 1>and if, as is the case, there's a clear majority

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<v Speaker 1>of them for one, Joe Biden, Joe Biden is supposed

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<v Speaker 1>to become the president. And that's how the process is

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<v Speaker 1>laid out in the Constitution and has written. That's pretty straightforward,

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<v Speaker 1>except in life, there's always a twist. So the twist

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<v Speaker 1>I think maybe we have to go back to the

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<v Speaker 1>Electoral Count Act. This is like eighteen eighty seven, which

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<v Speaker 1>is now so important. Can you just sort of explain

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<v Speaker 1>that process and how that has sort of further elaborated

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<v Speaker 1>on what we've seen in the Constitution. Yeah, the twist

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<v Speaker 1>is what if you can't just so simply add up

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<v Speaker 1>and count all of the electors who are sent in.

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<v Speaker 1>And in the first instance, that could happen if, for example,

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<v Speaker 1>a state can't get its act together and it sends

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<v Speaker 1>in two slates of electors, one for example, sent in

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<v Speaker 1>by the state legislature, another sent in by the governor

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<v Speaker 1>of the state. That raises a question for the person

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<v Speaker 1>doing the counting, which one do you count? And this

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<v Speaker 1>mess actually happened in eighteen seventy six when there were

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<v Speaker 1>contested slates of electors from a couple of different states,

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<v Speaker 1>and as a result, we genuinely did not know who

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<v Speaker 1>the president was. After that happened, Congress passed this law

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<v Speaker 1>in eighteen eighty seven to set up rules for what

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<v Speaker 1>should be done by Congress when they came to count

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<v Speaker 1>the votes. And those rules are actually pretty straightforward as written.

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<v Speaker 1>They say, among other things, that when there's no multiple

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<v Speaker 1>slates of electors, and that's the case this year, that

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<v Speaker 1>basically the congressman and the vice president actually have to

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<v Speaker 1>count the electors who came in unless there's some evident,

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<v Speaker 1>clear reason that they were not real slates of electors

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<v Speaker 1>that reflect the intent of the electors that were passed

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<v Speaker 1>or that were lawfully cast, so as written, that law

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<v Speaker 1>would not lead to any weirdness. Here can we part

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<v Speaker 1>something you said though? First, First, let's just talk about

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<v Speaker 1>the fact that there are not multiple slates of electors.

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<v Speaker 1>Every state has met that is not in contention here, correct,

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<v Speaker 1>And in no state did a rogue slate of electors

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<v Speaker 1>get proposed. All of the electors actually are the people

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<v Speaker 1>actually chosen by the citizens of those states, and that's

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<v Speaker 1>why there are no contested slates of electors in this election.

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<v Speaker 1>But this brings a sire second point that you made,

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<v Speaker 1>which is this idea of evidence, which is what we

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<v Speaker 1>are hearing from Republican lawmakers as to why they are

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<v Speaker 1>planning to object today. Yeah, and so just to describe

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<v Speaker 1>the mechanics, what's supposed to happen is that if there

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<v Speaker 1>are objections to the electors submitted that are proposed by

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<v Speaker 1>congressmen or by senators, then the two houses separate out.

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<v Speaker 1>They're all sitting in joint session, they separate out to

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<v Speaker 1>debate each on its own, and then they each vote.

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<v Speaker 1>And the only way that any electors could be rejected

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<v Speaker 1>by the joint session. Is if a majority of the

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<v Speaker 1>Senate and a majority of the House vote to reject

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<v Speaker 1>those electors. What, unfortunately, from my perspective, is going to

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<v Speaker 1>happen is that some Republicans are going to raise objections

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<v Speaker 1>and they're going to require a vote to happen. Elected

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<v Speaker 1>congressman and elected senators are going to say, without any

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<v Speaker 1>meaningful grounds for saying it, that the people didn't really

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<v Speaker 1>elect Joe Biden in some specific states. In other words,

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<v Speaker 1>some actual, real House of Representatives, members, actual senators are

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<v Speaker 1>calling for something very much like a constitutional coup. Data

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<v Speaker 1>and the fact that that's going to happen, even though

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<v Speaker 1>we know it's going to fail, shows you that this

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<v Speaker 1>is not just theater, that is not trivial. So can

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<v Speaker 1>I ask you about the idea of our trust in

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<v Speaker 1>the democratic process. What kind of effect do you think

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<v Speaker 1>this week will have on that? It's going to have

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<v Speaker 1>a bad effect. You know, it's bad enough that a

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<v Speaker 1>reasonable percentage of Americans now say or tell posters that

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<v Speaker 1>they don't believe that Joe Biden won the election. I

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<v Speaker 1>mean that's worrisome because what it shows you is that

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<v Speaker 1>lots of people don't accept the outcome that has been

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<v Speaker 1>independently verified by all fifty states, including states that are

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<v Speaker 1>controlled by Republicans. So that's scary because you can't really

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<v Speaker 1>run a democracy in the long run if lots of

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<v Speaker 1>the citizens believe that the only outcome they will trust

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<v Speaker 1>is the one where they win. The most fundamental principle

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<v Speaker 1>of democracy is I like my candidate, You like your candidate.

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<v Speaker 1>We vote, and we count up the votes, and whoever's

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<v Speaker 1>candidate got the most votes wins. The minute we think now,

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<v Speaker 1>I don't believe it unless it was my guy, then

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<v Speaker 1>the more it's difficult, or in fact impossible in the

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<v Speaker 1>long run, to sustain democracy, because democracy depends on the

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<v Speaker 1>idea that the next time around will count up the votes,

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<v Speaker 1>and the next time around, the person who gets the

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<v Speaker 1>most votes will win. And so when you break that norm,

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<v Speaker 1>you can't run elections in the ordinary way that they've

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<v Speaker 1>been run previously. And it's even worse than ordinary people

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<v Speaker 1>thinking that is, elected representatives whose own only validity in

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<v Speaker 1>sitting there is that they ran in elections and got

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<v Speaker 1>most votes are saying, oh, you can't trust those votes,

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<v Speaker 1>including I should say, including people who ran in this election. Yeah,

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<v Speaker 1>including it well, which in the case of the House

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<v Speaker 1>of Representatives is one hundred percent of them, right, All

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<v Speaker 1>four hundred and thirty five of them ran in this

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<v Speaker 1>election because they have to run for office every two years,

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<v Speaker 1>and so if they think that the votes are skewed

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<v Speaker 1>and are unfair, why should they even be the ones

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<v Speaker 1>sitting there. So this is very very short term thinking

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<v Speaker 1>on the part of these Republicans who are going to

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<v Speaker 1>be objecting because what they're basically doing is undermining their

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<v Speaker 1>own legitimacy in the democratic system, undermining democracy as a whole,

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<v Speaker 1>all in the hopes of pleasing their own constituency. And

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<v Speaker 1>they may be thinking, oh, it's a game, wink, wink, nudge, nudge.

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<v Speaker 1>It is not a game. Democracy operates on a very

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<v Speaker 1>very clear set of rules, and it has to because

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<v Speaker 1>it's very vulnerable to being tweaked and to being delegitimated.

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<v Speaker 1>There's no law of nature that says democracies must always survive,

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<v Speaker 1>and frankly, that includes our own democracy. Democracies are fragile.

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<v Speaker 1>If you break the norm that the person with the

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<v Speaker 1>most votes wins, you cannot be confident in maintaining democracy

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<v Speaker 1>in the long run. From a constitutional standpoint, How would

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<v Speaker 1>you suggest we try to fix this. The simplest fix

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<v Speaker 1>is to begin by amending this eighteen eighty seven law.

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<v Speaker 1>Even that might not be enough, though, because Congress would

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<v Speaker 1>have to pass any such law. We might need to

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<v Speaker 1>amend the Constitution itself. And here's where you might want

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<v Speaker 1>to look to every other country in the world. Essentially

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<v Speaker 1>every functioning democracy says we don't want the election results

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<v Speaker 1>to be judged by politicians, because politicians are themselves subject

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<v Speaker 1>to the incentive of trying to please their constituents. So

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<v Speaker 1>instead they say, let's have an independent electoral commission that

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<v Speaker 1>judges the results of elections. And our constitution doesn't allow

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<v Speaker 1>for that because there were no independent electoral commissions back

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<v Speaker 1>in seventeen eighty seven. No one had thought of that

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<v Speaker 1>idea yet. But I think it might be time for

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<v Speaker 1>us to think about amending our constitution so that the

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<v Speaker 1>foxes are no longer guarding the Henhouse, in other words,

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<v Speaker 1>so that the people judging who won the election are

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<v Speaker 1>not themselves people who ran for office in that election

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<v Speaker 1>and will run the next time. And I recognize that

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<v Speaker 1>would represent a big change from the way we've done things,

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<v Speaker 1>but it would not be a big change compared to

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<v Speaker 1>every other modern democracy in the world. Pretty much, as

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<v Speaker 1>a constitutional law scholar, how often do you recommend amending

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<v Speaker 1>the constitution? Barely? Ever, We've been very creative over the years.

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<v Speaker 1>Our constitution is alive in my opinion, It's evolved a lot,

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<v Speaker 1>and so it's continued to work even under new circumstances.

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<v Speaker 1>So I really don't like to recommend new constitutional amendments.

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<v Speaker 1>But this time, maybe that one time where we just

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<v Speaker 1>flat out and need it. You know, the frameworks were

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<v Speaker 1>very interested in incentives, and here the incentives, unfortunately, of

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<v Speaker 1>Congress don't align with the incentives of the public in

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<v Speaker 1>having the public's voices heard. What are you watching for today?

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<v Speaker 1>I am watching for how willing elected congressman and centators

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<v Speaker 1>will be to flatly, with no good reasons, say I

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<v Speaker 1>think we should throw out the vote. I'm looking for

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<v Speaker 1>how willing the Vice president Mike Pence, who of course

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<v Speaker 1>would be reelected himself if Donald Trump more elected, is

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<v Speaker 1>to appear to be non objective. You know, he should

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<v Speaker 1>be bending over backwards to be objective because his job

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<v Speaker 1>is literally on the line. Those are the questions that

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<v Speaker 1>I think will make the subtle, nuanced differences. But the

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<v Speaker 1>reality is the mere fact that these objections are going

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<v Speaker 1>to be raised is a very bad thing for democracy.

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<v Speaker 1>And my last question to you, this is the last step, right,

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<v Speaker 1>there's no other like today is the last step in

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<v Speaker 1>the process of Joe Biden taking office on January twenty.

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<v Speaker 1>It's the next to the last step. The last step

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<v Speaker 1>is the oath of office administered to Joe Biden on

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<v Speaker 1>inauguration day, you know, and you know it's a sign

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<v Speaker 1>that we're still a functioning democracy that you'd say, oh,

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<v Speaker 1>this is the last step. Right, In a true Banana Republic,

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<v Speaker 1>people would be worried that between January six and January twenty,

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<v Speaker 1>you know, the elected president could suddenly go missing or

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<v Speaker 1>appear on a different border, or the army could be

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<v Speaker 1>called into the streets. Now, I don't think any of

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<v Speaker 1>those things says any prospect of happening here in the

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<v Speaker 1>United States. But the mere fact that we're having this

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<v Speaker 1>conversation at all shows you that we're no longer in

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<v Speaker 1>the realm of reliable, stable democracies, and that's really the

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<v Speaker 1>realm we want to be in. Frankly, Noah Fellman hosts

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<v Speaker 1>a deep background podcast with our partners at Pushkin. He

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<v Speaker 1>is our resident legal expert here on Access Today. Thank

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<v Speaker 1>you for your time, Noah, Thank you for having me