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Speaker 1: Donald Trump's victory and the presidential race is scheduled to

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Speaker 1: be made official when the Electoral College meets on December nineteen,

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Speaker 1: but not everyone is ready to concede the Trump will

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Speaker 1: become president. Green Party candidate Jill Stein has taken steps

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Speaker 1: to initiate recount proceedings in Michigan, Wisconsin, and Pennsylvania, and

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Speaker 1: with recounts proceeding in two of those states, those efforts

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Speaker 1: are now embroiled in litigation. Meanwhile, a Republican elector from

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Speaker 1: Texas has said that he will not vote for Donald Trump,

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Speaker 1: and some Democratic electors have said that they'd be willing

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Speaker 1: to vote for a different Republican to try to deny

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Speaker 1: Trump the candidacy in conjunction with Republicans who might be

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Speaker 1: willing to abandon Trump. Here to talk about these attempts

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Speaker 1: to prevent a Donald Trump presidency is Ned Foley, a

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Speaker 1: professor at Ohio State University's more It's College of Law. Ned,

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Speaker 1: Let's there's a lot going on here in all these

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Speaker 1: attempts where they'll make a difference as another story. But

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Speaker 1: what's going on? And let's start with Michigan. What's going

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Speaker 1: on there? There seemed to be two lawsuits running at

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Speaker 1: the same time. Yeah, there are a lot of moving parts. Indeed,

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Speaker 1: it's difficult for anybody to keep it all straight. But

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Speaker 1: in Michigan, as I understand it, we've got orders from

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Speaker 1: the state court last night and somewhat conflicting order from

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Speaker 1: the federal court. Uh, and they're back in federal court

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Speaker 1: today to try to sort it all out. The state

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Speaker 1: court says, don't do the recount, and the federal court says, yes,

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Speaker 1: you must do the recount. And obviously the election officials

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Speaker 1: they are need to know which order to obey because

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Speaker 1: they're essentially conflicting orders. What do you really need in

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Speaker 1: order to request a recount or does it depend on

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Speaker 1: state to state? It is completely state to state, and

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Speaker 1: that is one of the things that we're watching here. Pennsylvania,

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Speaker 1: for example, has the most stringent rules in in terms

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Speaker 1: of how it's playing out this year in terms of

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Speaker 1: getting the recount, and and Wisconsin it was the easiest

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Speaker 1: to get the recount going there. Well ned in Pennsylvania. Um,

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Speaker 1: that's the one of one of the that's the state

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Speaker 1: where the recount hasn't yet started, as opposed to Michigan

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Speaker 1: and and Wisconsin. So the Stein folks filed a lawsuit

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Speaker 1: to try to force that, and then first in state court,

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Speaker 1: then another in federal court. Right, So what's their claim

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Speaker 1: there in order to try to force Pennsylvania in court

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Speaker 1: to to do a recount. Yeah, that's a really important

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Speaker 1: point because technically they're not even seeking a recount per

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Speaker 1: se in Pennsylvania the way they are in Wisconsin and Michigan.

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Speaker 1: Recounts or administrative processes that the election officials do. But

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Speaker 1: what the Steint campaign filed is something called a judicial

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Speaker 1: contest of an election, which is a It's a different

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Speaker 1: procedure and it requires a higher burden of proof. You

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Speaker 1: have to claim that the election was illegal, uh or

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Speaker 1: rested on something unlawful about the ballot counting process. And

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Speaker 1: so they tried that in state court and then UH

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Speaker 1: realized they weren't going to be successful there essentially, and

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Speaker 1: so went to federal court in the hopes that the

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Speaker 1: federal court would order something like the an administrative recount

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Speaker 1: that is occurring in Wisconsin, for example, ned the there

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Speaker 1: are more electronic machines in Pennsylvania and making it harder

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Speaker 1: to do a recount if there is an electronic machine

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Speaker 1: without a paper backup, and they do have um. In

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Speaker 1: the state case filed on Stein's behalf, professor of computer

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Speaker 1: science and engineering at the University of Michigan, j Alex Holderman,

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Speaker 1: said that hackers can cause the machines to provide any

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Speaker 1: result of the attackers choosing, and that the state's responses

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Speaker 1: to cyber security concerns have been patchy and inconsistent in

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Speaker 1: an election where we've seen cyber security problems and hacking,

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Speaker 1: does that help to make the argument? So one thing

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Speaker 1: is again, the results of this election wouldn't change in less.

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Speaker 1: All three of these states swept from Trump to Clinton,

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Speaker 1: so I think that's important to remember. So even if

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Speaker 1: something went awry only in Pennsylvania, it wouldn't affect the

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Speaker 1: overall outcome. Second, uh, my judgment as an election law

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Speaker 1: person is that Pennsylvania should have different kinds of machines.

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Speaker 1: They should have machines that have paper records, and that

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Speaker 1: hopefully they'll fix that for the next time. So in

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Speaker 1: in essence, I think the computer scientists are right to

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Speaker 1: replace the machines. But in this year, which used the

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Speaker 1: machines that they had, there is no evidence of actual

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Speaker 1: hacking of the vote tabulating equipment. There certainly was attempts

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Speaker 1: to hack voter registration databases in Illinois and Arizona, for example.

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Speaker 1: And in theory, you could hack a tabulating machine by

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Speaker 1: a thumb drive, but you'd have to do it physically. Uh,

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Speaker 1: these machines, the tabulating machines are not hooked up to

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Speaker 1: the Internet the way the registration databases are. So as

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Speaker 1: I understand, what the computer scientists are saying is they're

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Speaker 1: identifying a theoretical risk, but no evidence this year that

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Speaker 1: the risk was anything more than theoretical. Well, now you

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Speaker 1: just said that, you know all you pointed out that

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Speaker 1: all three states would have to flip and that therefore

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Speaker 1: it's unlikely that these efforts are going to change the

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Speaker 1: election result. But you know, the the electoral college vote

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Speaker 1: is not that far away. Litigation tends to take a while.

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Speaker 1: Is it possible that any of these lawsuits or you know,

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Speaker 1: recount procedures could somehow delay the electoral College I don't

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Speaker 1: think so. I mean, I think that is something to

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Speaker 1: keep one's eye on. But but in both Pennsylvania and

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Speaker 1: in Michigan, as I understand it, there's already been a

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Speaker 1: certification of the election, which means the electors. The Republican

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Speaker 1: electors in those states have the piece of paper that

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Speaker 1: allows them to meet on Monday, December nineteenth and cast

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Speaker 1: official votes for presidents. So even if there was some

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Speaker 1: of this federal court litigation still hanging over, I think

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Speaker 1: from a constitutional perspective, the required meeting on the nineteenth

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Speaker 1: can take place, and that's what matters for when the

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Speaker 1: electoral votes get sent to Congress in January, and wisconstant.

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Speaker 1: By all accounts, looks like they're going to wrap up

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Speaker 1: in time at least by the so again, I think

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Speaker 1: there's a theoretical risk that litigation could cause a problem,

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Speaker 1: but at the moment, it doesn't look like that's going

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Speaker 1: to turn into a practical problem. Looking back at the

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Speaker 1: election recounts, as an expert in the area, NED, what's

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Speaker 1: your opinion of the value of them in this election, Well,

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Speaker 1: I think, uh, the the effort to do these recounts

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Speaker 1: is really a substitute for what in the field we

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Speaker 1: call an audit. Audits are used to verify the accuracy

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Speaker 1: of the result, and they should occur in all elections. Again,

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Speaker 1: you need the paper record to do a gold standard,

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Speaker 1: you know, best practice audit and uh, and and and

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Speaker 1: when the Steined campaign filed for the recounts, it sort

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Speaker 1: of sounded like she wanted an audit more than a recount,

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Speaker 1: meaning she was saying, I'm just doing this to make

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Speaker 1: sure we don't have hacking, to make sure this is

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Speaker 1: the right result. She didn't say, I think the outcome

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Speaker 1: is in doubt and might change. Recounts are usually used

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Speaker 1: when a candidate thinks that the result was wrong and

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Speaker 1: that the vote needs to be recounted because the outcome

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Speaker 1: might in fact be different. So it's a little bit

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Speaker 1: unusual this year to be seen recounts invoked to really

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Speaker 1: serve the function of an audit instead. Now it's a

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Speaker 1: little hard to believe that there's no paper back up

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Speaker 1: and that the kind of things they're alleging in Pennsylvania

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Speaker 1: are true, that you know, and that we in fact

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Speaker 1: have issues around the country about how we count votes

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Speaker 1: that are seems so serious. Why is it we've been

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Speaker 1: talking about this for decades? Why is it that it's

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Speaker 1: so difficult for states to have a verifiable election system? Money? Actually,

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Speaker 1: in one word, because after two thousand, we got rid

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Speaker 1: of those old punch card machines that produced the hanging chats.

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Speaker 1: Congress came up with money and in two thousand and two,

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Speaker 1: and at the time the great idea was actually use

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Speaker 1: computerized machines. Then we had the two thousand and four election,

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Speaker 1: and there was fears that the DeBolt company in particular

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Speaker 1: had ties to the Republican Party in the Bush campaign,

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Speaker 1: and maybe they'd be going into their own software and

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Speaker 1: trying to, you know, steal an election for their preferred candidate.

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Speaker 1: Didn't happen, but those were the fears. And so then

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Speaker 1: then but the money had already been spent, and so

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Speaker 1: then the next question as well, we need paper ballots,

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Speaker 1: and some states had the money for it and changed

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Speaker 1: and other states didn't. So again one hopes that that

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Speaker 1: want to stay like Pennsylvania that's been relying on purely

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Speaker 1: computerized machines, that they'll switch once they got some money

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Speaker 1: for a new machine. The Constitution sets up a two

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Speaker 1: step process for presidential elections. First, there is a state

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Speaker 1: by state vote, each state voting separately to determine who

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Speaker 1: its electors are. Then those electors from each state go

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Speaker 1: and vote for the state's winning candidate in the electoral College.

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Speaker 1: This year, the electoral college is set to meet on

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Speaker 1: December nine, and a majority of the electors are supposed

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Speaker 1: to vote for Donald Trump, but some electors have said

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Speaker 1: that they don't feel bound to vote for him, and

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Speaker 1: that they don't want to vote for him. We're going

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Speaker 1: to talk about whether there's anything to this with Ned Foley,

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Speaker 1: a professor at Ohio State University's more It's College of Law. Ned,

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Speaker 1: how much freedom do electors have? Well, this is an

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Speaker 1: unknown question. Um. One constitutional argument is that they can

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Speaker 1: do what they want and they were set up to

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Speaker 1: act that way. But that's not what state laws say. Uh.

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Speaker 1: Many states have laws that require the electors to vote

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Speaker 1: on December nineteenth according to their their pledge, and they've

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Speaker 1: pledged to support their party's nominee and and so if

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Speaker 1: you follow state law, they don't have discretion at all.

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Speaker 1: But the U. S. Constitution is the supreme law of

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Speaker 1: the land, and so if these pledge laws are unconstitutional, Uh,

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Speaker 1: then then the electors can do what they want. Tell

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Speaker 1: us about the framers original intent of the electoral college,

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Speaker 1: whether it was as a check on the popular vote,

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Speaker 1: as some are saying, Well, that argument can be made.

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Speaker 1: You can certainly cite Alexander Hamilton to that effect is

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Speaker 1: being done. But I also think it's important to remember

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Speaker 1: that the Framers design failed almost immediately. The Framers didn't

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Speaker 1: think we would have political parties. They thought that the

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Speaker 1: allowtors would exercise this deliberative judgment and picked the best

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Speaker 1: person without regard to party considerations. While right away political

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Speaker 1: parties formed, and we had our first kind of disaster

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Speaker 1: in the election of eighteen hundred where we had a

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Speaker 1: tie vote between Thomas Jefferson and Aaron Burr. There was

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Speaker 1: a constitutional crisis and that led to the Twelfth Amendment.

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Speaker 1: So the original vision was not well designed. And in fact,

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Speaker 1: James Madison, towards the end of his life in the

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Speaker 1: eighteen twenties looked back and thought that the lowest moment

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Speaker 1: of the Constitutional Convention in seven when when was when

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Speaker 1: they were thinking about the design of the electoral college.

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Speaker 1: They they saved it for the end of the convention,

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Speaker 1: and they kind of didn't have their best hours. So

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Speaker 1: you have to ask, should we judge the Framers in

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Speaker 1: seventeen eighty seven when they thought of the idea, or

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Speaker 1: in the eighteen twenties when they realized it wasn't such

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Speaker 1: a great idea after all? Well, a good idea or bad.

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Speaker 1: Let's speculate and think about what could have been here,

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Speaker 1: you know, just as a matter of procedure. If so,

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Speaker 1: let's say, you know, you've got some Democratic electors who

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Speaker 1: have said that they don't want to vote for Hillary Clinton,

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Speaker 1: they want to vote for a Republican alternative to Trump,

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Speaker 1: and join up with some Trump Trump electors who are

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Speaker 1: willing to reject him and come up with a majority,

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Speaker 1: or at least deny him a majority in the In

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Speaker 1: the electoral college, you have at least one Republican from

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Speaker 1: Texas who has now written up ed in the New

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Speaker 1: York Times saying that he's not going to vote for Trump.

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Speaker 1: Let's say they could cobble together a group to deny

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Speaker 1: him a majority in the electoral College. What happens then, right, Well,

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Speaker 1: first it would take thirty seven Republican electors to defect.

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Speaker 1: The Democratic defections aren't going to affect the Trump number,

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Speaker 1: which stands at three d and six, and it has

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Speaker 1: to get below the magic number of two seventies. So

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Speaker 1: it's quite speculative to think that that might happen. But

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Speaker 1: if it did happen, the first thing that, uh, we

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Speaker 1: need to realize is that Congress meets on January six

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Speaker 1: to receive the electoral votes from the states, and it

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Speaker 1: matters whether Congress receives one certificate from each state or

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Speaker 1: competing certificates. Has happened in eighteen seventy six, So if

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Speaker 1: there was defections from thirty seven electors against Trump, Trump

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Speaker 1: would use those state laws, the pledge laws, and say

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Speaker 1: that they avoided their right to be electors because of

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Speaker 1: violating the pledge. They need to be replaced. We're replacing

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Speaker 1: them with people who are going to follow the prep pledge,

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Speaker 1: and so we're gonna send a second certificate that is

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Speaker 1: true to the pledge. So the Congress would get these competing,

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Speaker 1: conflicting certificates and have to decide which ones to accept,

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Speaker 1: the faithless electors who vote against Trump or the substitute

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Speaker 1: electors who vote for Trump. And then it's a political

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Speaker 1: question what the Republican UH Senate and the Republican House

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Speaker 1: Trump UH certificates instead of the anti Trump certificates. About

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Speaker 1: a minute left, ned, what are the chances that we

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Speaker 1: are going to see someday the elimination of the electoral

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Speaker 1: college and president elected by the popular vote. Oh, that's

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Speaker 1: a political guest. I mean, the American people have wanted

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Speaker 1: to eliminate the electoral college for decades. Gallup poll has

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Speaker 1: consistently found that to happen. On the other hand, we've

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Speaker 1: never amended the Constitution to conform to that popular desire.

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Speaker 1: So I wouldn't hold your breath, but it is what

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Speaker 1: Americans want to do, well, Ned, So it's do you

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Speaker 1: think there's any possibility very quickly that you could get

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Speaker 1: a constitutional amendment to change this? It's that's if the

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Speaker 1: will is there. We have amended the Constitution in the past. Uh,

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Speaker 1: the twentieth Amendment changed the rules for presidential elections. We

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Speaker 1: got term limits after the Roosevelt era. So if if

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Speaker 1: the political will exists, it can happen. It just hasn't

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Speaker 1: manifested itself up to this point. Yeah. Well, our thanks

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Speaker 1: to Ned Foley of Ohio State Universities more It's College

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Speaker 1: of Law for being here on Bloomberg Law. That's it

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Speaker 1: for this edition of Bloomberg Law. Will be back tomorrow

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Speaker 1: thanks to our technical director Chris Tracomy and our producer

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Speaker 1: David So You're very welcome. Thank you coming up on

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Speaker 1: Bloomberg Radio Bloomberg Markets with Carol Master and Corey Johnson. Carol,

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Speaker 1: what will you be talking about? Lots of things on

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Speaker 1: this what is it? But the one thing I'm really

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Speaker 1: interested in is how Americans are paying Apple millions to

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Speaker 1: shelter overseas profits. So it's one of the most read

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Speaker 1: stories on the Bloomberg So I can't wait to get

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Speaker 1: to that. Well, that should be very, very interesting. You

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Speaker 1: can find more legal news at Bloomberg Law dot com

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