1 00:00:15,396 --> 00:00:24,476 Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show 2 00:00:24,516 --> 00:00:27,756 Speaker 1: where we explore the stories behind the stories in the news. 3 00:00:28,276 --> 00:00:33,396 Speaker 1: I'm Noah Feldman and its voting season. North Carolina was 4 00:00:33,436 --> 00:00:36,396 Speaker 1: the first state to start mailing out absentee ballots earlier 5 00:00:36,436 --> 00:00:39,556 Speaker 1: this month. Minnesota will be the first state to open 6 00:00:39,916 --> 00:00:44,756 Speaker 1: early in person voting this Friday. Is America ready to 7 00:00:44,836 --> 00:00:47,836 Speaker 1: handle an election in the middle of our national and 8 00:00:47,916 --> 00:00:51,876 Speaker 1: global pandemic? What are the risks and dangers associated with 9 00:00:51,916 --> 00:00:54,836 Speaker 1: this election? What should we be worried about? And what 10 00:00:54,996 --> 00:00:59,196 Speaker 1: are the possible pathways that we could use to resolve conflicts? 11 00:00:59,836 --> 00:01:02,956 Speaker 1: Here to discuss these very challenging issues with us is 12 00:01:02,996 --> 00:01:06,996 Speaker 1: Professor Nate Persilely of Stanford Law School. In my generation 13 00:01:07,036 --> 00:01:11,196 Speaker 1: of law professors, Nate is the definitive leading scholar on 14 00:01:11,316 --> 00:01:17,116 Speaker 1: election law, crises of elections, and how elections work. Everybody 15 00:01:17,156 --> 00:01:26,196 Speaker 1: listens to him, and Nate says he's losing sleep. Nate, 16 00:01:26,276 --> 00:01:30,276 Speaker 1: let's dive into the existential dread that keeps our nation's 17 00:01:30,356 --> 00:01:33,796 Speaker 1: leading election law scholar from sleeping at nights. Describe your 18 00:01:33,876 --> 00:01:37,116 Speaker 1: worst case scenarios, the ones that are keeping you awake. Well, 19 00:01:37,156 --> 00:01:39,676 Speaker 1: I think that my role to some extent over the 20 00:01:39,716 --> 00:01:42,756 Speaker 1: next month is to try to calm people down, because 21 00:01:43,316 --> 00:01:45,956 Speaker 1: there are a lot of uncertainties in the system, and 22 00:01:45,996 --> 00:01:47,876 Speaker 1: I think those of us who are working in this 23 00:01:47,956 --> 00:01:51,476 Speaker 1: area should try to lessen the anxiety. But since you asked, 24 00:01:51,996 --> 00:01:54,916 Speaker 1: I am worried that if this is a close election 25 00:01:55,476 --> 00:01:58,596 Speaker 1: that comes down to absentee ballots in one or more 26 00:01:58,596 --> 00:02:02,276 Speaker 1: of the Midwestern states, that we will have a situation 27 00:02:02,276 --> 00:02:05,716 Speaker 1: of Bush versus Gore on steroids and under conditions where 28 00:02:05,796 --> 00:02:08,716 Speaker 1: we have much greater partisan polarization now than we did 29 00:02:08,756 --> 00:02:11,476 Speaker 1: twenty years ago. And it's not clear to me that 30 00:02:11,556 --> 00:02:14,676 Speaker 1: whoever loses that fight in court or through the kind 31 00:02:14,676 --> 00:02:19,636 Speaker 1: of constitutional machinery will go away quietly. Let's discuss how 32 00:02:19,716 --> 00:02:21,716 Speaker 1: the fight would play itself out. I tend to see 33 00:02:21,716 --> 00:02:25,276 Speaker 1: things through the lens of bushvigor, because you know, I 34 00:02:25,316 --> 00:02:27,716 Speaker 1: was a young lawyer out there in Palm Beach County 35 00:02:27,756 --> 00:02:29,396 Speaker 1: trying to make it up as I went along back 36 00:02:29,436 --> 00:02:32,276 Speaker 1: in the day, and we had no idea if the 37 00:02:32,276 --> 00:02:34,196 Speaker 1: case would upenly make it to the Supreme Court. In fact, 38 00:02:34,196 --> 00:02:35,996 Speaker 1: when we started, we thought this was just going to 39 00:02:36,076 --> 00:02:38,956 Speaker 1: be a state law set of cases. We started litigating 40 00:02:39,076 --> 00:02:42,796 Speaker 1: in Palm Beach County Local Court, you know, Florida State 41 00:02:42,796 --> 00:02:44,916 Speaker 1: Court where we won. We thought it would go to 42 00:02:44,916 --> 00:02:47,276 Speaker 1: the Florida Supreme Court after that, which did, but we 43 00:02:47,316 --> 00:02:49,196 Speaker 1: didn't fully anticipate that it would go to the US 44 00:02:49,236 --> 00:02:52,276 Speaker 1: Supreme Court. This time, we know, because we have the 45 00:02:52,356 --> 00:02:54,756 Speaker 1: retrospect of Bush Bigor that it could go to the 46 00:02:54,876 --> 00:02:57,316 Speaker 1: federal courts and therefore to the Supreme Court. Do you 47 00:02:57,356 --> 00:03:00,116 Speaker 1: see that as a long, slow, drawn out process the 48 00:03:00,156 --> 00:03:02,596 Speaker 1: way it was in two thousand or do you think 49 00:03:02,596 --> 00:03:05,036 Speaker 1: it would be a more rapid process now that we 50 00:03:05,076 --> 00:03:06,876 Speaker 1: sort of know that the movie can end with the 51 00:03:06,916 --> 00:03:10,516 Speaker 1: Supreme Court weighing in. Well, I mean, it depends on 52 00:03:10,556 --> 00:03:14,596 Speaker 1: whether it follows the Bush versus Gore script, because, as 53 00:03:14,636 --> 00:03:17,836 Speaker 1: you know, in Bush versus Gore, there were easily forty 54 00:03:17,876 --> 00:03:20,836 Speaker 1: lawsuits that had been followed in Florida in one capacity 55 00:03:20,916 --> 00:03:23,636 Speaker 1: or another, and there was always the possibility that it 56 00:03:23,636 --> 00:03:26,156 Speaker 1: wouldn't actually go through the state system. That you actually 57 00:03:26,156 --> 00:03:28,596 Speaker 1: had the Bush folks who did file in federal court 58 00:03:28,876 --> 00:03:31,316 Speaker 1: and then had an Eleventh Circuit decision that didn't go 59 00:03:31,396 --> 00:03:34,276 Speaker 1: up to the US Supreme Court. But depending on what 60 00:03:34,316 --> 00:03:36,916 Speaker 1: the legal issues are, you could see a sort of 61 00:03:37,036 --> 00:03:40,116 Speaker 1: very rapid federal pathway in order to get the Supreme 62 00:03:40,116 --> 00:03:42,636 Speaker 1: Court involved. And as you know in in Bush versus 63 00:03:42,636 --> 00:03:45,836 Speaker 1: Gore itself, over just a month period, you had two 64 00:03:45,956 --> 00:03:49,716 Speaker 1: Supreme Court decisions, right, that went through the full sort 65 00:03:49,756 --> 00:03:52,516 Speaker 1: of procedure within the state and then went up to 66 00:03:52,556 --> 00:03:55,116 Speaker 1: the Supreme Court. And so I think if the lawyers 67 00:03:55,116 --> 00:03:57,036 Speaker 1: wanted to go to the US Supreme Court, and the 68 00:03:57,036 --> 00:03:59,116 Speaker 1: Supreme Court is willing to take it, it can be 69 00:03:59,156 --> 00:04:01,876 Speaker 1: done relatively quickly, depending on what the legal questions are 70 00:04:01,916 --> 00:04:05,316 Speaker 1: that are involved. Chief Justice John Roberts, who is now 71 00:04:05,476 --> 00:04:07,516 Speaker 1: not only the Chief Justice but also the swing vote 72 00:04:07,516 --> 00:04:11,076 Speaker 1: on the Court, has been signaling, in my view, not 73 00:04:11,156 --> 00:04:14,396 Speaker 1: just this past summer, but the previous summer too, that 74 00:04:14,516 --> 00:04:16,396 Speaker 1: he does not want the Court to be seen as 75 00:04:16,436 --> 00:04:20,916 Speaker 1: parts in political So in several really hot button, big 76 00:04:20,956 --> 00:04:25,556 Speaker 1: ticket cases, the citizenship sends this question, and then on 77 00:04:25,596 --> 00:04:29,076 Speaker 1: the DACA recision question, he cast a deciding vote with 78 00:04:29,116 --> 00:04:32,036 Speaker 1: the liberals, basically saying in both cases that the Trump 79 00:04:32,076 --> 00:04:35,076 Speaker 1: administration hadn't crossed its teas and dotted its eyes. They 80 00:04:35,076 --> 00:04:36,636 Speaker 1: had the power to do these things, but they did 81 00:04:36,636 --> 00:04:39,636 Speaker 1: them wrong and illegitimately, and so he struck down both 82 00:04:39,636 --> 00:04:43,156 Speaker 1: of those things. I read that as his signaling I 83 00:04:43,276 --> 00:04:46,196 Speaker 1: do not want the Supreme Court to be forced to 84 00:04:46,196 --> 00:04:48,556 Speaker 1: decide the election in a way that will appear to 85 00:04:48,556 --> 00:04:52,036 Speaker 1: be partisan. How do you read Chief Justice Roberts and 86 00:04:52,316 --> 00:04:54,636 Speaker 1: how do you think he would think about the different 87 00:04:55,356 --> 00:04:58,996 Speaker 1: incentives that push in different ways should a case come 88 00:04:59,036 --> 00:05:03,116 Speaker 1: before him. Well, I think you're right that Chief Justice 89 00:05:03,196 --> 00:05:05,636 Speaker 1: Robert's care is very much for the institution of the 90 00:05:05,676 --> 00:05:08,636 Speaker 1: Supreme Court and is worried about it being seen as 91 00:05:08,676 --> 00:05:11,596 Speaker 1: part of and so all things being equal, he would 92 00:05:12,116 --> 00:05:15,156 Speaker 1: try to craft a procedure in a decision that would 93 00:05:15,196 --> 00:05:17,956 Speaker 1: be greater than say, a five four decision at the Court. 94 00:05:18,436 --> 00:05:20,556 Speaker 1: It's not clear to me that that's possible. Depending on 95 00:05:20,556 --> 00:05:22,396 Speaker 1: what the vacts are. In a case like this, it's 96 00:05:22,476 --> 00:05:25,316 Speaker 1: going to be seen as a partisan decision, But it 97 00:05:25,356 --> 00:05:27,916 Speaker 1: may be seen as a partisan decision even if, for example, 98 00:05:27,916 --> 00:05:30,716 Speaker 1: he were to join with the four more liberal justices. Right, 99 00:05:30,836 --> 00:05:35,916 Speaker 1: Because if you take Donald Trump's accusations of the Court seriously, right, 100 00:05:35,956 --> 00:05:39,076 Speaker 1: he doesn't even see Chief Justice Roberts as being a 101 00:05:39,116 --> 00:05:42,196 Speaker 1: faithful conservative. So I think you are right as to 102 00:05:42,356 --> 00:05:45,356 Speaker 1: what his motivations are. It's not clear to me that 103 00:05:45,356 --> 00:05:47,876 Speaker 1: that affects the decision. It's possible that it could affect 104 00:05:47,876 --> 00:05:50,876 Speaker 1: whether they would even take the case. Right. Even though 105 00:05:50,876 --> 00:05:53,836 Speaker 1: we have to push versus Gore precedent out there, there's 106 00:05:53,876 --> 00:05:56,596 Speaker 1: plenty of wiggle room for the Supreme Court to deny 107 00:05:56,636 --> 00:05:58,996 Speaker 1: a case like this, as you know in the partisan 108 00:05:59,076 --> 00:06:03,236 Speaker 1: jerrymandering cases. He joined the four more conservative justices to 109 00:06:03,276 --> 00:06:07,076 Speaker 1: say that this was a nonjsticiable political question. One little 110 00:06:07,116 --> 00:06:11,196 Speaker 1: interesting piece of trivia is that John Roberts was second 111 00:06:11,236 --> 00:06:14,836 Speaker 1: in line actually to argue Bush versus Gore itself. He 112 00:06:14,956 --> 00:06:19,156 Speaker 1: was part of the Bush legal team and was sort 113 00:06:19,156 --> 00:06:21,836 Speaker 1: of given a back seat to Ted Olson, who ended 114 00:06:21,916 --> 00:06:24,036 Speaker 1: up arguing it. But as some of the folks in 115 00:06:24,076 --> 00:06:26,276 Speaker 1: the Bush legal team said to me, well he's done 116 00:06:26,316 --> 00:06:29,676 Speaker 1: okay for himself since then, So it's okay when I 117 00:06:29,716 --> 00:06:33,236 Speaker 1: wake up at three in the morning worried about the scenario, 118 00:06:33,716 --> 00:06:36,636 Speaker 1: you know, the Trump versus Biden election becomes the case 119 00:06:36,676 --> 00:06:38,796 Speaker 1: if Trump versus Biden and goes to the Supreme Court, 120 00:06:39,756 --> 00:06:41,956 Speaker 1: I have to say that the thing that lets me 121 00:06:42,036 --> 00:06:44,916 Speaker 1: go back to sleep those nights when I can is 122 00:06:44,956 --> 00:06:47,716 Speaker 1: actually John Roberts, as he has been in the last 123 00:06:47,756 --> 00:06:50,396 Speaker 1: two years. And I actually want to ask you constitutional 124 00:06:50,516 --> 00:06:53,956 Speaker 1: law professor to constutional law professor, or sleep loser to 125 00:06:53,956 --> 00:06:57,276 Speaker 1: sleep loser. Do you think that's crazy? I mean two 126 00:06:57,356 --> 00:06:59,316 Speaker 1: years ago, I would not have said this. I would 127 00:06:59,356 --> 00:07:01,276 Speaker 1: have said, you know, Chief Justice Roberts is a brilliant 128 00:07:01,316 --> 00:07:05,756 Speaker 1: doctrinal lawyer. He aims for conservative outcomes. He's rolled back 129 00:07:05,836 --> 00:07:08,676 Speaker 1: voting rights remarkably in the Voting Rights Act case to 130 00:07:08,716 --> 00:07:12,196 Speaker 1: Shelby against Holder case, which you know is historically bad decision. 131 00:07:12,236 --> 00:07:14,796 Speaker 1: I know you have said that many times more politely 132 00:07:14,796 --> 00:07:16,556 Speaker 1: than I just put it. But then in the last 133 00:07:16,556 --> 00:07:20,756 Speaker 1: two years, his insistence, I think, in reaction to Trump's 134 00:07:20,756 --> 00:07:23,676 Speaker 1: flouting of the rule of law, does make me feel 135 00:07:23,836 --> 00:07:27,596 Speaker 1: like Roberts realizes that if the Supreme Court under him 136 00:07:27,596 --> 00:07:29,876 Speaker 1: were thought to have given an election to Donald Trump, 137 00:07:30,276 --> 00:07:32,276 Speaker 1: he would never live that down, and the Supreme Court 138 00:07:32,276 --> 00:07:34,996 Speaker 1: would never live that down. And so that's what eases 139 00:07:35,036 --> 00:07:37,676 Speaker 1: me back to sleep. I think to myself, it actually 140 00:07:37,796 --> 00:07:41,676 Speaker 1: might be okay. Does that seem crazy to you, doctor, No, 141 00:07:41,796 --> 00:07:44,996 Speaker 1: that doesn't seem crazy. I mean, and I do find 142 00:07:45,036 --> 00:07:47,916 Speaker 1: solace in his influence on the Court and think that 143 00:07:47,916 --> 00:07:51,516 Speaker 1: that is a possible palliative outcome to the partners of 144 00:07:51,516 --> 00:07:54,236 Speaker 1: the strife that would proceed a decision like that. But 145 00:07:54,516 --> 00:07:57,516 Speaker 1: there are situations under which the Supreme Court does not 146 00:07:57,636 --> 00:08:01,876 Speaker 1: become the final arbiter of these controversies. That if President Trump, 147 00:08:01,916 --> 00:08:05,916 Speaker 1: for example, takes advantage of the sort of full constitutional machinery, 148 00:08:06,596 --> 00:08:09,876 Speaker 1: you could see a pathway which ends up going through 149 00:08:09,876 --> 00:08:13,876 Speaker 1: the Pennsylvania legislature, for example, into the House of Representatives, 150 00:08:13,916 --> 00:08:17,316 Speaker 1: and Vice President Pence being in a role to try 151 00:08:17,356 --> 00:08:19,596 Speaker 1: to decide who is going to be the winner of 152 00:08:19,596 --> 00:08:22,396 Speaker 1: the presidential election, which is sketch that out in a 153 00:08:22,436 --> 00:08:24,076 Speaker 1: little bit more detail. You know, the podcast is called 154 00:08:24,076 --> 00:08:25,796 Speaker 1: a deep Background, so we're allowed to geek out. That's 155 00:08:25,796 --> 00:08:28,396 Speaker 1: sort of the whole point of it, all right, Great, So, 156 00:08:28,916 --> 00:08:32,676 Speaker 1: under the machinery of the Twelfth Amendment and the Constitution, 157 00:08:33,116 --> 00:08:36,396 Speaker 1: it is possible that if you have competing slates of 158 00:08:36,436 --> 00:08:40,836 Speaker 1: electors from a state, that it will eventually end up 159 00:08:41,476 --> 00:08:45,156 Speaker 1: in the House of Representatives in a process that is 160 00:08:45,196 --> 00:08:49,716 Speaker 1: presided over by Vice President Pence. And there's a lot 161 00:08:49,716 --> 00:08:53,636 Speaker 1: of ambiguity as to what you do, what the nation 162 00:08:53,676 --> 00:08:58,196 Speaker 1: does when you have a disputed presidential election. And so 163 00:08:58,556 --> 00:09:01,436 Speaker 1: there is a scenario under which Vice President Pence says 164 00:09:01,436 --> 00:09:04,676 Speaker 1: that he has the authority to determine which slate of 165 00:09:04,716 --> 00:09:08,156 Speaker 1: electors is the valid slate of electors, and he may say, 166 00:09:08,236 --> 00:09:12,156 Speaker 1: for example, that Pensylia legislature slate of electors will be 167 00:09:12,236 --> 00:09:16,476 Speaker 1: deemed as the appropriate one. Under that situation, you could 168 00:09:16,476 --> 00:09:20,076 Speaker 1: see Nancy Pelosi shutting down the House of Representatives so 169 00:09:20,116 --> 00:09:24,076 Speaker 1: that it cannot proceed with the counting of the electoral slates, 170 00:09:24,076 --> 00:09:27,236 Speaker 1: and then we have a full on constitutional crisis. The 171 00:09:27,316 --> 00:09:29,316 Speaker 1: trigger to that originally would be a take it that 172 00:09:29,676 --> 00:09:32,796 Speaker 1: in this scenario, you're imagining that the Secretary of State 173 00:09:32,836 --> 00:09:37,476 Speaker 1: of Pennsylvania, who's the ordinary certifying officer, certifies that Biden 174 00:09:37,556 --> 00:09:41,676 Speaker 1: one and so the electors to the Electoral College from 175 00:09:41,716 --> 00:09:44,436 Speaker 1: the state of Pennsylvania are the Democratic ones. And then 176 00:09:44,516 --> 00:09:48,596 Speaker 1: the state legislature enacts a law or a resolution. I guess, 177 00:09:49,396 --> 00:09:51,276 Speaker 1: can they do this with or without the governor? Unclear 178 00:09:51,316 --> 00:09:54,436 Speaker 1: to me, and then sends in a letter to the 179 00:09:54,476 --> 00:09:57,356 Speaker 1: electoral college saying, wrong, this is the set of electors 180 00:09:57,636 --> 00:10:00,836 Speaker 1: the Secretary of State is wrong about whom the State 181 00:10:00,836 --> 00:10:02,996 Speaker 1: of Pennsylvania has chosen. These are the people whom the 182 00:10:02,996 --> 00:10:05,476 Speaker 1: State of Pennsylvania has chosen, and ps these are the 183 00:10:05,516 --> 00:10:09,916 Speaker 1: Republican electors for Donald Trump. That's what's the trigger. That's right. 184 00:10:09,996 --> 00:10:14,436 Speaker 1: The relevant law here is both the Constitution Article two, 185 00:10:14,476 --> 00:10:18,396 Speaker 1: Section one, twelfth Amendment and the Electoral Countact. The Electoral 186 00:10:18,476 --> 00:10:22,916 Speaker 1: Countact actually says that whatever slate is signed on by 187 00:10:22,916 --> 00:10:25,836 Speaker 1: the governor is sort of going to be presumptively seen 188 00:10:25,836 --> 00:10:29,236 Speaker 1: as the right slate. But the Constitution says that each 189 00:10:29,276 --> 00:10:32,236 Speaker 1: state shall, in a manner determined by the legislature thereof 190 00:10:32,316 --> 00:10:35,476 Speaker 1: determined a number of electors. And so you could see 191 00:10:35,716 --> 00:10:38,036 Speaker 1: competing slates of electors going up to this House of 192 00:10:38,076 --> 00:10:43,236 Speaker 1: Representatives without a clear way of resolving that controversy. Leaving 193 00:10:43,236 --> 00:10:46,236 Speaker 1: aside for a moment the possible legal fights, when you 194 00:10:46,276 --> 00:10:49,436 Speaker 1: look at the voting mechanics and you try to figure 195 00:10:49,476 --> 00:10:52,756 Speaker 1: out where the greatest concerns in fact law, and not 196 00:10:52,796 --> 00:10:55,116 Speaker 1: the ones that the candidates might insist exist, but that 197 00:10:55,276 --> 00:10:59,356 Speaker 1: really exist. Where are your greatest points of concern on 198 00:10:59,796 --> 00:11:02,476 Speaker 1: the mechanics side, And then we'll come to the question 199 00:11:02,516 --> 00:11:07,596 Speaker 1: of external interference too. So an election in which half 200 00:11:07,756 --> 00:11:11,276 Speaker 1: the voters cast absentee ballots is a different kind of 201 00:11:11,316 --> 00:11:15,036 Speaker 1: election than when we are accustomed to and absentee ballots 202 00:11:15,156 --> 00:11:19,836 Speaker 1: are right for legal challenge. There are many different ways 203 00:11:19,876 --> 00:11:22,316 Speaker 1: that you can sort of what we say, lose votes 204 00:11:22,356 --> 00:11:26,876 Speaker 1: through the absentee ballot process, whether it's in the application process, 205 00:11:27,236 --> 00:11:29,756 Speaker 1: the mailing of ballots to the voters, the returning from 206 00:11:29,796 --> 00:11:32,876 Speaker 1: the voters to the election authority, and then the counting 207 00:11:32,996 --> 00:11:36,316 Speaker 1: of the votes. At each stage there's the possibility of 208 00:11:36,316 --> 00:11:40,076 Speaker 1: a mishap, and particularly under the sort of pandemic conditions 209 00:11:40,476 --> 00:11:43,516 Speaker 1: and emergency conditions which have led to this transition tabs 210 00:11:43,516 --> 00:11:45,716 Speaker 1: in the balloting, I think there is a lot of 211 00:11:45,756 --> 00:11:47,996 Speaker 1: concern that you could see a lot of lost votes. 212 00:11:48,436 --> 00:11:50,516 Speaker 1: The side that thinks it will gain by more votes 213 00:11:50,556 --> 00:11:54,476 Speaker 1: being counted will always say, well, let's move beyond those 214 00:11:54,516 --> 00:11:57,196 Speaker 1: mishaps and let's try to effectuate the intention of the voter, 215 00:11:57,316 --> 00:11:59,276 Speaker 1: you know, the voter. Try to get it by this state, 216 00:11:59,356 --> 00:12:00,756 Speaker 1: Try to mail it back by this state, Try to 217 00:12:00,796 --> 00:12:02,796 Speaker 1: put the right amount of postage on it. Try to 218 00:12:03,316 --> 00:12:05,516 Speaker 1: check the box next to the person that he or 219 00:12:05,596 --> 00:12:08,756 Speaker 1: she wanted to vote for. The other side will say, no, 220 00:12:09,316 --> 00:12:11,876 Speaker 1: this is a technical matter and election. You have to 221 00:12:11,916 --> 00:12:14,396 Speaker 1: cross your teas, you have to dot your eyes. And 222 00:12:14,476 --> 00:12:17,276 Speaker 1: so this given ballot or other ballots like it should 223 00:12:17,316 --> 00:12:21,556 Speaker 1: be discounted apart from the partisan side. Do you have 224 00:12:21,596 --> 00:12:25,636 Speaker 1: a general philosophical view about this question. Well, I do 225 00:12:25,796 --> 00:12:29,796 Speaker 1: think that the rules need to be clearly specified in advance, 226 00:12:30,116 --> 00:12:32,516 Speaker 1: and if they are specified in advance, that they need 227 00:12:32,556 --> 00:12:35,316 Speaker 1: to be applied that way. Are they are the rules 228 00:12:35,316 --> 00:12:37,756 Speaker 1: well specified in advanced in the fifty states? No, they're not. 229 00:12:37,956 --> 00:12:39,796 Speaker 1: And this is one of the reasons why I'm a 230 00:12:39,796 --> 00:12:43,676 Speaker 1: fan of pre election litigation. Right, we should try to 231 00:12:43,716 --> 00:12:47,076 Speaker 1: get the rules specified as early as possible and as 232 00:12:47,116 --> 00:12:50,516 Speaker 1: clearly as possible. You are right that Democrats are going 233 00:12:50,516 --> 00:12:53,116 Speaker 1: into court now to try to make sure that as 234 00:12:53,156 --> 00:12:56,476 Speaker 1: many ballots will be counted, and that's why we have 235 00:12:56,516 --> 00:12:59,916 Speaker 1: over two hundred and fifty cases that are now being 236 00:12:59,956 --> 00:13:01,916 Speaker 1: followed in the courts. Let me pause you in that 237 00:13:01,996 --> 00:13:04,436 Speaker 1: for a moment. We're not even a month from the 238 00:13:04,476 --> 00:13:07,436 Speaker 1: election and there are already two hundred and fifty cases 239 00:13:07,476 --> 00:13:11,156 Speaker 1: that have been filed. Give us the general profile of 240 00:13:11,196 --> 00:13:13,356 Speaker 1: what a typical one of those cases looks like. If 241 00:13:13,356 --> 00:13:15,716 Speaker 1: there is a typical one, well, there really isn't a 242 00:13:15,756 --> 00:13:19,836 Speaker 1: typical one, because we're seeing different types of cases depending 243 00:13:19,876 --> 00:13:23,756 Speaker 1: on the states. The sort of modal absentee ballot case 244 00:13:24,116 --> 00:13:27,116 Speaker 1: is in the vein that you described before, which is 245 00:13:27,556 --> 00:13:30,596 Speaker 1: that you have Democrats who are going into court, for example, 246 00:13:31,036 --> 00:13:33,836 Speaker 1: to make sure that despite what the law may say, 247 00:13:34,316 --> 00:13:38,396 Speaker 1: that all ballots that are cast and postmarked by say 248 00:13:38,436 --> 00:13:42,036 Speaker 1: election day will be counted. And one of the reasons 249 00:13:42,156 --> 00:13:44,316 Speaker 1: they make this argument is they say, look, you know 250 00:13:44,396 --> 00:13:47,116 Speaker 1: there are problems with the postal service, there are problems 251 00:13:47,356 --> 00:13:50,156 Speaker 1: with respect to the coronavirus epidemic, and so we need 252 00:13:50,196 --> 00:13:52,836 Speaker 1: to make sure that all votes are counted if they 253 00:13:52,916 --> 00:13:57,276 Speaker 1: are cast before polls closed. So that's one set of cases. 254 00:13:57,556 --> 00:14:00,676 Speaker 1: Then you have some cases where, for example, Republicans have 255 00:14:00,756 --> 00:14:04,196 Speaker 1: gone in in New Jersey and in Nevada to try 256 00:14:04,196 --> 00:14:07,556 Speaker 1: to prevent states from moving to all male balloting, saying 257 00:14:07,556 --> 00:14:10,036 Speaker 1: that that's going to lead to fraud. Or they've gone 258 00:14:10,036 --> 00:14:14,116 Speaker 1: into court in Pennsylvania to say that it is illegal 259 00:14:14,236 --> 00:14:18,156 Speaker 1: for the counties to have ballot drop boxes where people 260 00:14:18,236 --> 00:14:20,836 Speaker 1: can drop their ballot instead of putting in the mail. 261 00:14:20,996 --> 00:14:23,236 Speaker 1: And so those are the kind of cases that we're seeing, 262 00:14:23,236 --> 00:14:25,876 Speaker 1: as well as all kinds of other cases that are 263 00:14:26,236 --> 00:14:30,076 Speaker 1: either specific to coronavirus and the pandemic or sort of 264 00:14:30,156 --> 00:14:33,556 Speaker 1: general concerns about absentee balloting. So basically what you're saying 265 00:14:33,636 --> 00:14:36,156 Speaker 1: is we're going to have a heavily litigated election, whether 266 00:14:36,196 --> 00:14:37,996 Speaker 1: we like it or not. The only question will be 267 00:14:38,316 --> 00:14:40,876 Speaker 1: will that litigation be determinative of outcomes? And that will 268 00:14:40,916 --> 00:14:43,396 Speaker 1: depend on how close the votes are in some key states. 269 00:14:43,956 --> 00:14:48,236 Speaker 1: That's right. There's something called the election administrator's prayer, which is, oh, God, 270 00:14:48,396 --> 00:14:51,236 Speaker 1: whatever happens, please don't let it be close. Right, And 271 00:14:51,276 --> 00:14:53,956 Speaker 1: so if there's a close election, you'll end up with 272 00:14:53,996 --> 00:14:56,356 Speaker 1: all kinds of lawsuits that are brought to try to 273 00:14:56,556 --> 00:14:59,596 Speaker 1: work the rest to determine the outcome. If it's not 274 00:14:59,636 --> 00:15:01,756 Speaker 1: a close election, well then maybe we won't have as 275 00:15:01,836 --> 00:15:14,916 Speaker 1: much action in court. We'll be right back in a 276 00:15:14,956 --> 00:15:19,316 Speaker 1: world where absentee ballots constitute a large number of the ballots. 277 00:15:19,996 --> 00:15:22,156 Speaker 1: How will we know whether it was a close election 278 00:15:22,356 --> 00:15:24,476 Speaker 1: or not? I mean, ordinarily we know that absentee bots 279 00:15:24,476 --> 00:15:26,836 Speaker 1: are relatively small numbers, So once we've counted the votes 280 00:15:26,836 --> 00:15:30,036 Speaker 1: on election day, we can sometimes know, well, the margin 281 00:15:30,076 --> 00:15:32,796 Speaker 1: of victory is greater than the number of outstanding absentee ballots. 282 00:15:33,036 --> 00:15:34,956 Speaker 1: That's the definition I guess of an election that isn't 283 00:15:34,996 --> 00:15:38,556 Speaker 1: so close. Literally, will we know that under these circumstances, 284 00:15:38,556 --> 00:15:40,836 Speaker 1: will we know how many absentee ballots are out there. 285 00:15:40,956 --> 00:15:42,516 Speaker 1: We might know how many were sent out, but we 286 00:15:42,556 --> 00:15:45,756 Speaker 1: won't know how many are coming back. That's true. I mean, 287 00:15:45,916 --> 00:15:49,316 Speaker 1: we'll know several things, and we'll know that at different times. Right, 288 00:15:49,316 --> 00:15:51,396 Speaker 1: we will know, as you said, the number of absentee 289 00:15:51,396 --> 00:15:54,516 Speaker 1: ballots that were sent out. We will probably in most states, 290 00:15:54,516 --> 00:15:56,996 Speaker 1: we will know whether they were sent out to Democrats 291 00:15:57,076 --> 00:15:59,676 Speaker 1: or Republicans, so you can sort of forecast what the 292 00:15:59,756 --> 00:16:03,316 Speaker 1: likely partisan split is in the absentee ballots. Most of 293 00:16:03,356 --> 00:16:06,396 Speaker 1: those ballots will be received before election day, so we 294 00:16:06,436 --> 00:16:09,276 Speaker 1: will have a whole swath of ballots that will will 295 00:16:09,316 --> 00:16:12,196 Speaker 1: be in the hands of the election officials, and so 296 00:16:12,236 --> 00:16:14,396 Speaker 1: we will know how many ballots need to be processed, 297 00:16:14,476 --> 00:16:17,476 Speaker 1: will know how many ballots are at that time in dispute. 298 00:16:17,996 --> 00:16:21,236 Speaker 1: But you're right, if it's a Bush versus Gore situation, 299 00:16:21,476 --> 00:16:24,596 Speaker 1: then we will not know whether the outstanding absentee ballots 300 00:16:24,636 --> 00:16:28,196 Speaker 1: will be determinative. And as in Bush versus Gore, if 301 00:16:28,196 --> 00:16:30,476 Speaker 1: it's that close we're talking about like say five hundred votes, 302 00:16:30,916 --> 00:16:34,476 Speaker 1: then every aspect of the absentee ballot process would end 303 00:16:34,556 --> 00:16:38,076 Speaker 1: up being potentially outcome determinative. But I'm at least one 304 00:16:38,076 --> 00:16:40,636 Speaker 1: of those people who thinks that on election night or 305 00:16:40,676 --> 00:16:43,236 Speaker 1: maybe the day after, we will have a very good 306 00:16:43,276 --> 00:16:46,436 Speaker 1: idea as to who won. And that's because we will 307 00:16:46,476 --> 00:16:50,156 Speaker 1: have information from different states that have completed most of 308 00:16:50,196 --> 00:16:53,436 Speaker 1: their absentee balloting, either because they have rules on absentee 309 00:16:53,436 --> 00:16:56,516 Speaker 1: balloting they're more restrictive, or because they were quick. That 310 00:16:56,516 --> 00:16:59,436 Speaker 1: then will give us an indication as to how Trump 311 00:16:59,436 --> 00:17:01,756 Speaker 1: and Biden are doing in the remaining states. And so, 312 00:17:02,156 --> 00:17:05,036 Speaker 1: assuming it isn't a replay from four years ago, that 313 00:17:05,116 --> 00:17:07,556 Speaker 1: it's not that close, then I think we will have 314 00:17:07,596 --> 00:17:09,476 Speaker 1: a good idea on election night or the day after 315 00:17:09,516 --> 00:17:12,116 Speaker 1: us to who won. Speaking of a replay of four 316 00:17:12,196 --> 00:17:14,316 Speaker 1: years ago, one of the many things you spent part 317 00:17:14,316 --> 00:17:16,356 Speaker 1: of the last four years focused on is trying to 318 00:17:16,396 --> 00:17:20,356 Speaker 1: make sense of the foreign interference components in the twenty 319 00:17:20,356 --> 00:17:22,796 Speaker 1: sixteen election. You've been a leader in trying to assess 320 00:17:22,876 --> 00:17:26,276 Speaker 1: what happened, to assess its effects. And if I were 321 00:17:26,276 --> 00:17:29,356 Speaker 1: to summarize your teaching us on this subject is it's complicated. 322 00:17:30,036 --> 00:17:32,436 Speaker 1: So I know that it's complicated, But we have a 323 00:17:32,436 --> 00:17:35,356 Speaker 1: little time here, and I would love to hear from you, 324 00:17:35,876 --> 00:17:40,516 Speaker 1: how you picture the threats from outside interference in this election, 325 00:17:41,236 --> 00:17:43,476 Speaker 1: wherever they may be coming from, and then how serious 326 00:17:43,476 --> 00:17:46,036 Speaker 1: that you take them. So my view about what happened 327 00:17:46,076 --> 00:17:49,036 Speaker 1: four years ago is that the Russian hack and leak 328 00:17:49,516 --> 00:17:54,156 Speaker 1: operation was determinative of the twenty sixteen election. By that, 329 00:17:54,276 --> 00:17:58,716 Speaker 1: I mean that the ability of the Russian intelligence services 330 00:17:58,876 --> 00:18:02,676 Speaker 1: using wiki leagues, with some assistance from people involved in 331 00:18:02,716 --> 00:18:06,476 Speaker 1: the campaign, to get Hillary Clinton's emails and to dump 332 00:18:06,516 --> 00:18:11,516 Speaker 1: them on the public was extremely significant. The social media 333 00:18:11,756 --> 00:18:16,996 Speaker 1: strategy that the Russians pursued, which included the hacken League 334 00:18:17,116 --> 00:18:22,516 Speaker 1: strategy but also involved using Facebook ads, using organic content 335 00:18:22,596 --> 00:18:26,116 Speaker 1: to polarize and persuade people that that it's not clear, 336 00:18:26,396 --> 00:18:29,596 Speaker 1: was as effective as most people think we are going 337 00:18:29,636 --> 00:18:32,436 Speaker 1: to see for an intervention of the latter type in 338 00:18:32,476 --> 00:18:35,716 Speaker 1: this election. We're already seeing it. You've seen Facebook and 339 00:18:35,756 --> 00:18:40,596 Speaker 1: other platforms takedown accounts. But compared to the amount of 340 00:18:40,596 --> 00:18:45,036 Speaker 1: polarization and the amount of disinformation that is organically inside 341 00:18:45,316 --> 00:18:47,436 Speaker 1: the United States right now and that's being produced by 342 00:18:47,476 --> 00:18:52,756 Speaker 1: domestic actors, I actually think the marginal contribution of foreign disinformation, 343 00:18:52,916 --> 00:18:54,956 Speaker 1: it really gets lost in the shuffle. I mean I 344 00:18:54,996 --> 00:18:58,076 Speaker 1: think that if you see, as has been reported that 345 00:18:58,196 --> 00:19:04,556 Speaker 1: Russian accounts are retweeting and amplifying statements, for example, that 346 00:19:04,836 --> 00:19:07,636 Speaker 1: absentee balloting is marred by fraud, I mean you don't 347 00:19:07,676 --> 00:19:09,956 Speaker 1: need the Russians to do that, getting that in the 348 00:19:10,636 --> 00:19:13,796 Speaker 1: domestic political conversation, and so I don't think that they 349 00:19:13,876 --> 00:19:17,156 Speaker 1: will have much of an impact on that. I am 350 00:19:17,236 --> 00:19:20,996 Speaker 1: much more concerned about the sort of cyber infrastructure and 351 00:19:21,036 --> 00:19:24,436 Speaker 1: whether particularly the new types of technology that have been 352 00:19:24,436 --> 00:19:28,436 Speaker 1: bought by jurisdictions and perhaps untested to deal with, say 353 00:19:28,436 --> 00:19:31,756 Speaker 1: the rise in absentee balloting, things that are related to say, 354 00:19:31,796 --> 00:19:35,996 Speaker 1: the voter registration system, the other issues dealing with say 355 00:19:36,276 --> 00:19:40,956 Speaker 1: election poll books right e poll books. Those are right 356 00:19:41,116 --> 00:19:44,356 Speaker 1: for exploitation by a foreign actor, but we haven't seen 357 00:19:44,396 --> 00:19:48,676 Speaker 1: any of that yet. How good are the cybersecurity defenses 358 00:19:48,956 --> 00:19:52,556 Speaker 1: that the States have erected. I know you've looked under 359 00:19:52,596 --> 00:19:55,716 Speaker 1: the hood. What's the quality of the defense relative to 360 00:19:55,716 --> 00:19:57,556 Speaker 1: what the quality of the hacking could because the quality 361 00:19:57,556 --> 00:19:59,476 Speaker 1: of the hacking could be a state of the art. Well, 362 00:19:59,636 --> 00:20:02,876 Speaker 1: I think that the voter registration databases are much more 363 00:20:02,916 --> 00:20:05,996 Speaker 1: secure now than they were four years ago. There are 364 00:20:06,076 --> 00:20:10,756 Speaker 1: other electronic or digital. All aspects to the system, though, 365 00:20:10,796 --> 00:20:14,116 Speaker 1: which are more vulnerable, like anything that involves a vendor, 366 00:20:14,596 --> 00:20:18,676 Speaker 1: such as the software that's involved in sending out mail 367 00:20:18,716 --> 00:20:22,076 Speaker 1: ballots and the like. But the machines themselves, which is 368 00:20:22,116 --> 00:20:24,276 Speaker 1: what most people spend a lot of time thinking about. 369 00:20:24,396 --> 00:20:27,356 Speaker 1: I also don't think are terribly vulnerable. I think that 370 00:20:27,756 --> 00:20:30,196 Speaker 1: we've had this significant move in the last ten years 371 00:20:30,276 --> 00:20:33,116 Speaker 1: toward machines with paper backups, and I think in the 372 00:20:33,116 --> 00:20:36,516 Speaker 1: event of a cyber breakdown or even like a power outage, 373 00:20:36,556 --> 00:20:38,556 Speaker 1: that we should be able to have enough paper ballots 374 00:20:38,596 --> 00:20:41,316 Speaker 1: that we can conduct a RICO. Let's talk a little 375 00:20:41,356 --> 00:20:44,756 Speaker 1: bit about the social media angle and disclosure. For me 376 00:20:44,836 --> 00:20:48,116 Speaker 1: and I think for you too. We've both advised Facebook 377 00:20:48,156 --> 00:20:50,796 Speaker 1: on aspects of free expression, in your case more focused 378 00:20:50,796 --> 00:20:53,076 Speaker 1: on the electoral side, in my case more focused on 379 00:20:53,076 --> 00:20:57,156 Speaker 1: the non election context. How do you see the kind 380 00:20:57,156 --> 00:21:00,676 Speaker 1: of game plan that different social media platforms have begun 381 00:21:00,796 --> 00:21:03,956 Speaker 1: to roll out for how they're going to address potential 382 00:21:04,316 --> 00:21:07,836 Speaker 1: difficulties that arise around the election. Well, in recent weeks 383 00:21:07,876 --> 00:21:12,796 Speaker 1: we've seen more aggressive pronouncements from Facebook and Twitter about 384 00:21:12,796 --> 00:21:15,156 Speaker 1: what they're going to be doing with this election, not 385 00:21:15,196 --> 00:21:17,556 Speaker 1: only do. We have the twenty sixteen election and the 386 00:21:17,636 --> 00:21:21,156 Speaker 1: warning that it has issued to the social media companies, 387 00:21:21,236 --> 00:21:23,756 Speaker 1: and for that matter, all the pressure that has come 388 00:21:23,876 --> 00:21:28,076 Speaker 1: since then. But their experience in dealing with coronavirus related 389 00:21:28,156 --> 00:21:31,956 Speaker 1: disinformation has set some precedents for them as to how 390 00:21:31,956 --> 00:21:36,196 Speaker 1: they will deal with election disinformation, and so, yes, there 391 00:21:36,516 --> 00:21:39,316 Speaker 1: will be sort of new policies and we've seen them 392 00:21:39,436 --> 00:21:45,316 Speaker 1: already being executed to deal with even candidate sponsored disinformation, 393 00:21:45,356 --> 00:21:49,436 Speaker 1: whether it's coming from presidents Twitter account or Facebook account. 394 00:21:49,876 --> 00:21:53,716 Speaker 1: But what has impressed me most actually is the attempt 395 00:21:53,716 --> 00:21:56,476 Speaker 1: to provide good information that a lot of what Facebook 396 00:21:56,476 --> 00:21:59,196 Speaker 1: has been trying to do this time is to develop 397 00:21:59,236 --> 00:22:03,716 Speaker 1: its own source of accurate election information that it will 398 00:22:03,756 --> 00:22:07,516 Speaker 1: then preemptively pump out to the mass public on issues 399 00:22:07,596 --> 00:22:11,996 Speaker 1: such as absent balloting or the security of the election 400 00:22:12,036 --> 00:22:15,356 Speaker 1: infrastructure and the like. And so they are giving election 401 00:22:15,396 --> 00:22:19,636 Speaker 1: officials access to top of feed notifications so that the 402 00:22:19,636 --> 00:22:21,356 Speaker 1: first thing that you see when you open up your 403 00:22:21,396 --> 00:22:25,236 Speaker 1: Facebook account is sort of reliable election information from the 404 00:22:25,276 --> 00:22:28,836 Speaker 1: local officials. And so that's I think a new tactic. 405 00:22:28,996 --> 00:22:31,236 Speaker 1: There's a lot of interesting stuff that they're still deciding, 406 00:22:31,356 --> 00:22:34,836 Speaker 1: which comes to how do you deal with disinformation after 407 00:22:34,876 --> 00:22:38,316 Speaker 1: the election. That's an unprecedented move for them as well, 408 00:22:38,396 --> 00:22:41,036 Speaker 1: is what do they do if a candidate, for example, 409 00:22:41,196 --> 00:22:44,956 Speaker 1: declared victory but hasn't actually won the votes. In the 410 00:22:44,996 --> 00:22:50,676 Speaker 1: Bush Vigor aftermath, famously, first the television networks called the 411 00:22:50,716 --> 00:22:55,476 Speaker 1: election for Bush, al Gore conceded to George W. Bush, 412 00:22:55,876 --> 00:23:01,276 Speaker 1: and then al Gore unconceded and the networks pulled back 413 00:23:01,356 --> 00:23:04,996 Speaker 1: from their calling the election. When I hear about trying 414 00:23:05,036 --> 00:23:07,516 Speaker 1: to regulate post election disinformation, I keep on seeing it 415 00:23:07,596 --> 00:23:10,196 Speaker 1: through the lens of you know, how do you know 416 00:23:10,276 --> 00:23:13,556 Speaker 1: what disinformation is? Al Gore thought he'd lost, he hadn't, 417 00:23:14,116 --> 00:23:17,356 Speaker 1: and then of course ultimately he had. George W. Bush 418 00:23:17,356 --> 00:23:20,716 Speaker 1: thought he'd won. And for someone to declare victory, for 419 00:23:20,796 --> 00:23:24,236 Speaker 1: Donald Trump to say, well I won today feels to me, 420 00:23:24,636 --> 00:23:26,836 Speaker 1: even though that's a factual statement in some way and 421 00:23:26,876 --> 00:23:29,316 Speaker 1: it might be therefore capable of being shown false, it 422 00:23:29,356 --> 00:23:32,556 Speaker 1: feels more like a political declaration. And yet I think 423 00:23:32,636 --> 00:23:35,036 Speaker 1: under at least some of the proposed ways, they're thinking 424 00:23:35,076 --> 00:23:38,036 Speaker 1: about what some of the big platforms might do that 425 00:23:38,156 --> 00:23:41,636 Speaker 1: might be labeled as disinformation and either flagged or taken 426 00:23:41,676 --> 00:23:44,196 Speaker 1: down On Twitter, or on Facebook. How does that make 427 00:23:44,236 --> 00:23:47,796 Speaker 1: you feel? Well? I agree with your assessment of the 428 00:23:47,916 --> 00:23:50,956 Speaker 1: terrain here. I think that people need to understand that 429 00:23:50,996 --> 00:23:56,756 Speaker 1: we actually have never had official declarations in the days 430 00:23:56,796 --> 00:23:59,156 Speaker 1: after an election as to who actually won. And by 431 00:23:59,316 --> 00:24:01,476 Speaker 1: that I mean that there is no national election authority 432 00:24:01,476 --> 00:24:03,876 Speaker 1: in the United States who says yes, in fact, this 433 00:24:04,036 --> 00:24:06,596 Speaker 1: candidate won. The closest thing we have to a national 434 00:24:06,596 --> 00:24:09,476 Speaker 1: election authority in the US is the associated press, right, 435 00:24:09,476 --> 00:24:12,756 Speaker 1: and so we delegate to the media the ability to 436 00:24:12,796 --> 00:24:16,356 Speaker 1: declare who has won in these states, even when there 437 00:24:16,356 --> 00:24:19,276 Speaker 1: could be tens of millions of ballots that were outstanding. 438 00:24:19,476 --> 00:24:24,196 Speaker 1: And in twenty sixteen, right, we had Hillary Clinton ending 439 00:24:24,356 --> 00:24:28,516 Speaker 1: up getting millions more votes after election day. And so 440 00:24:28,956 --> 00:24:31,956 Speaker 1: the platforms are put in a delicate position, which is, well, 441 00:24:32,516 --> 00:24:36,596 Speaker 1: how do they deal with candidate declarations of victory when 442 00:24:36,716 --> 00:24:40,476 Speaker 1: the state election authorities have not certified a winner. But 443 00:24:40,516 --> 00:24:43,116 Speaker 1: if they wait for the state election authorities to certify 444 00:24:43,156 --> 00:24:45,716 Speaker 1: a winner, that will be several weeks. And so what 445 00:24:45,756 --> 00:24:49,436 Speaker 1: they are doing is looking at other media organizations that 446 00:24:49,476 --> 00:24:51,956 Speaker 1: are in the business of projecting outcomes, and they are 447 00:24:51,996 --> 00:24:56,276 Speaker 1: going to report those other declarations of victory or those 448 00:24:56,276 --> 00:24:59,476 Speaker 1: other calls that the networks have done, and then based 449 00:24:59,516 --> 00:25:03,356 Speaker 1: on the other media organizations, they will then decide whether 450 00:25:03,436 --> 00:25:05,956 Speaker 1: the declaration of victory by the candidate is valid or not. 451 00:25:06,876 --> 00:25:08,876 Speaker 1: I was trying to explain to my kids how it 452 00:25:09,396 --> 00:25:12,236 Speaker 1: back in the day when, as you're saying, the networks 453 00:25:12,356 --> 00:25:15,156 Speaker 1: essentially had the function of saying who won the election? 454 00:25:15,236 --> 00:25:18,236 Speaker 1: And I had to pause because their attitude was, what 455 00:25:18,276 --> 00:25:21,476 Speaker 1: do you mean the networks? For them, ABC, CBS, and 456 00:25:21,596 --> 00:25:24,876 Speaker 1: NBC are not places where one would watch the news. 457 00:25:25,716 --> 00:25:29,316 Speaker 1: Are we moving from a world where the networks called 458 00:25:29,316 --> 00:25:31,196 Speaker 1: the elections and were more or less delegated it to 459 00:25:31,236 --> 00:25:34,596 Speaker 1: them to a world where the social media platforms are 460 00:25:34,596 --> 00:25:37,236 Speaker 1: going to declare the elections, not by ever saying that, 461 00:25:37,636 --> 00:25:41,916 Speaker 1: but by de facto allowing or disallowing claims of victory 462 00:25:42,316 --> 00:25:46,516 Speaker 1: by the candidates. I think that is a worrisome trend, 463 00:25:46,676 --> 00:25:48,996 Speaker 1: and this is actually the first election where we're going 464 00:25:49,036 --> 00:25:52,396 Speaker 1: to test that out. Right now, as I understand it 465 00:25:52,436 --> 00:25:55,116 Speaker 1: from talking to the folks at the platforms, they are 466 00:25:55,156 --> 00:25:58,756 Speaker 1: going to be sort of a lagging indicator as to 467 00:25:58,796 --> 00:26:01,676 Speaker 1: who won, and that they will be relying on the 468 00:26:01,716 --> 00:26:07,316 Speaker 1: decision desks of the networks as essentially a large fact 469 00:26:07,436 --> 00:26:11,876 Speaker 1: checking institution that will decide who actually won. And so 470 00:26:11,996 --> 00:26:14,556 Speaker 1: Facebook and Twitter will not themselves be in a position 471 00:26:14,596 --> 00:26:17,156 Speaker 1: to say, all right, we've determined that this candidate has 472 00:26:17,196 --> 00:26:18,836 Speaker 1: won or not. But they're going to say, well, here's 473 00:26:18,876 --> 00:26:21,556 Speaker 1: what you can see on our dashboard, which is what 474 00:26:21,596 --> 00:26:23,836 Speaker 1: they're going to have up there, Which of the decision 475 00:26:23,876 --> 00:26:27,236 Speaker 1: desks has declared which candidate to be the victor? And 476 00:26:27,276 --> 00:26:29,836 Speaker 1: one thing that's important, you know, in this day and age, 477 00:26:29,836 --> 00:26:32,396 Speaker 1: we assume that all right, well, the networks and the 478 00:26:32,556 --> 00:26:36,356 Speaker 1: sort of legacy media organizations have been totally displaced by 479 00:26:36,476 --> 00:26:39,876 Speaker 1: a million websites and other self proclaimed experts. But there 480 00:26:39,876 --> 00:26:43,076 Speaker 1: are only a certain number of decision desks right now 481 00:26:43,476 --> 00:26:46,716 Speaker 1: with the infrastructure to look at the county returns around 482 00:26:46,796 --> 00:26:50,156 Speaker 1: the country. And so if you're a social media platform 483 00:26:50,156 --> 00:26:53,196 Speaker 1: and you want to rely on a relatively sort of 484 00:26:53,356 --> 00:26:56,276 Speaker 1: low number of actors, you have that capacity right now 485 00:26:56,316 --> 00:27:00,836 Speaker 1: because they're only let's say seven to ten real decision 486 00:27:00,876 --> 00:27:02,636 Speaker 1: desks out there that are going to be doing the 487 00:27:02,796 --> 00:27:06,476 Speaker 1: hard work of projecting the outcome. How important is Fox 488 00:27:06,596 --> 00:27:09,036 Speaker 1: going to be this round? First of all, does Fox 489 00:27:09,196 --> 00:27:12,396 Speaker 1: have a formal decision desk? Yes, not only does Fox 490 00:27:12,436 --> 00:27:14,956 Speaker 1: have a decision desk? But the Fox decision desk is 491 00:27:14,956 --> 00:27:19,156 Speaker 1: actually an impressive organization which is hived off from the 492 00:27:19,196 --> 00:27:22,956 Speaker 1: news operations of the network. And so while our inclination 493 00:27:22,996 --> 00:27:25,156 Speaker 1: would be to say, all right, the Fox decision desk 494 00:27:25,196 --> 00:27:28,556 Speaker 1: would be, say, the first institution to call the election 495 00:27:28,596 --> 00:27:30,836 Speaker 1: for Trump, I'm actually skeptical of that. I know some 496 00:27:30,876 --> 00:27:33,316 Speaker 1: of the people at the decision desk there, and so 497 00:27:33,596 --> 00:27:36,876 Speaker 1: in many ways, the Fox Decision desk is the most 498 00:27:36,916 --> 00:27:40,996 Speaker 1: important media entity in this election, because depending on what 499 00:27:41,076 --> 00:27:45,676 Speaker 1: they say, you could actually see Republicans sort of siding 500 00:27:45,676 --> 00:27:49,156 Speaker 1: with what the Fox Decision desk says if it goes 501 00:27:49,196 --> 00:27:51,556 Speaker 1: against the president. That is, by the way, what happened 502 00:27:51,556 --> 00:27:55,276 Speaker 1: in twenty twelve when the Fox decision desk called the 503 00:27:55,396 --> 00:27:59,276 Speaker 1: Ohio results for President Obama and Karl Rove on the 504 00:27:59,356 --> 00:28:02,076 Speaker 1: News on Fox News was actually jumping up and down 505 00:28:02,116 --> 00:28:04,356 Speaker 1: saying no, no, no, it's too early to call, and 506 00:28:04,436 --> 00:28:07,516 Speaker 1: actually the Fox Decision desk said no, Actually, Obama's one Ohio. 507 00:28:08,276 --> 00:28:12,236 Speaker 1: So Fox News could potentially say that Donald Trump has 508 00:28:12,236 --> 00:28:15,436 Speaker 1: lost the election and get listened to if it goes 509 00:28:15,476 --> 00:28:19,996 Speaker 1: the other way. Though, I somehow suspect that Democratic listeners 510 00:28:20,036 --> 00:28:21,996 Speaker 1: are going to be skeptical of what Fox News has 511 00:28:22,036 --> 00:28:24,396 Speaker 1: to say. Well, that's right. If it's only Fox News 512 00:28:24,396 --> 00:28:27,476 Speaker 1: that's saying that Donald Trump has won, then that would 513 00:28:27,476 --> 00:28:30,796 Speaker 1: be just seen as playing to type. Right as Similarly, 514 00:28:30,836 --> 00:28:34,116 Speaker 1: if the mainstream networks quickly call it for Biden, that's 515 00:28:34,156 --> 00:28:37,716 Speaker 1: not going to lead Republicans to just sort of go 516 00:28:38,156 --> 00:28:40,236 Speaker 1: slowly back into that good night. I mean, I think 517 00:28:40,276 --> 00:28:43,636 Speaker 1: that what you're saying is that there is incredible polarization 518 00:28:43,636 --> 00:28:46,396 Speaker 1: and media consumption that you're going to need some kind 519 00:28:46,396 --> 00:28:50,236 Speaker 1: of bipartisan signal as to who actually won in order 520 00:28:50,276 --> 00:28:53,836 Speaker 1: for the candidates to consider conceding and not to launch 521 00:28:53,876 --> 00:28:57,076 Speaker 1: into litigation. Last question for your Nate, what am I 522 00:28:57,276 --> 00:28:59,596 Speaker 1: not asking you that is front of mine for you? 523 00:28:59,636 --> 00:29:02,316 Speaker 1: Are there any themes or ideas or things or last 524 00:29:02,356 --> 00:29:05,396 Speaker 1: words that you want to share with listeners. Well, I 525 00:29:05,436 --> 00:29:08,196 Speaker 1: don't want to end on a dour note or an 526 00:29:08,196 --> 00:29:10,676 Speaker 1: alarmist note, because I do see my role in the 527 00:29:10,676 --> 00:29:13,116 Speaker 1: next month is trying to calm people's fears. But I 528 00:29:13,156 --> 00:29:18,476 Speaker 1: do think that there's the possibility for unprecedented activity in 529 00:29:18,516 --> 00:29:22,596 Speaker 1: this election, particularly as it pertains to violence, and we 530 00:29:22,716 --> 00:29:27,036 Speaker 1: haven't really thought about what happens if you have violence 531 00:29:27,076 --> 00:29:29,956 Speaker 1: in polling places, violence in the canvassing boards, if you 532 00:29:29,996 --> 00:29:34,196 Speaker 1: have unprecedented use of federal authority. And so I think 533 00:29:34,236 --> 00:29:36,636 Speaker 1: that it's really important that the attorneys general of the 534 00:29:36,636 --> 00:29:41,156 Speaker 1: different states start putting into place procedures to protect against violence, 535 00:29:41,556 --> 00:29:44,956 Speaker 1: and that voters start understanding that they're going to be 536 00:29:45,116 --> 00:29:49,316 Speaker 1: protections in place to prevent violence in polling places. You 537 00:29:49,356 --> 00:29:52,236 Speaker 1: are a voice of calm and reason, and I'm grateful 538 00:29:52,236 --> 00:29:53,996 Speaker 1: for that, and I know listeners will be grateful for 539 00:29:54,036 --> 00:29:56,596 Speaker 1: it too. The reason you're able to be a voice 540 00:29:56,596 --> 00:29:58,996 Speaker 1: of calm and reason is that you actually go down 541 00:29:59,076 --> 00:30:01,916 Speaker 1: all of the roots to explore where things could go wrong. 542 00:30:02,236 --> 00:30:04,516 Speaker 1: So you can't do one without the other. And I'm 543 00:30:04,516 --> 00:30:06,516 Speaker 1: really grateful too for doing that here and at other 544 00:30:06,556 --> 00:30:09,276 Speaker 1: times too. So thanks for coming on the show. Look 545 00:30:09,276 --> 00:30:10,876 Speaker 1: far to speaking to you again soon. Thanks very much 546 00:30:10,876 --> 00:30:19,676 Speaker 1: for having me Listening to Nate, I can see why 547 00:30:19,756 --> 00:30:22,756 Speaker 1: he's having trouble sleeping when he thinks about all the 548 00:30:22,836 --> 00:30:26,236 Speaker 1: different things that could go wrong in the twenty twenty election. 549 00:30:27,276 --> 00:30:31,236 Speaker 1: That said, Nate's perspective is to evaluate and analyze each 550 00:30:31,516 --> 00:30:35,476 Speaker 1: of the different scenarios and to give a rational logical, 551 00:30:35,836 --> 00:30:39,836 Speaker 1: calm account of how these things could be resolved. The 552 00:30:39,916 --> 00:30:42,036 Speaker 1: result is that there's a kind of split screen. When 553 00:30:42,036 --> 00:30:44,476 Speaker 1: you listen to Nate. On one side of the screen, 554 00:30:44,636 --> 00:30:48,276 Speaker 1: you see problem after problem after problem, two hundred and 555 00:30:48,276 --> 00:30:51,196 Speaker 1: fifty legal cases already filed, more cases to be filed 556 00:30:51,276 --> 00:30:55,996 Speaker 1: after the election, potential interference in the election, potential misinformation 557 00:30:56,036 --> 00:30:59,516 Speaker 1: around the election, challenges as to who has won the election. 558 00:31:00,076 --> 00:31:02,556 Speaker 1: All of that is on your left screen. On your 559 00:31:02,676 --> 00:31:07,156 Speaker 1: right screen are a series of much simpler, more understandable, 560 00:31:07,236 --> 00:31:11,276 Speaker 1: possible pathways that would not lead to deep constitutional crisis 561 00:31:11,396 --> 00:31:14,716 Speaker 1: or conflict. One is that maybe the election just won't 562 00:31:14,716 --> 00:31:17,756 Speaker 1: be that close after all. The other is Nate's prediction 563 00:31:17,836 --> 00:31:19,996 Speaker 1: that more likely than not, within a day or two 564 00:31:19,996 --> 00:31:23,156 Speaker 1: after this election, we actually will know who's one, because 565 00:31:23,196 --> 00:31:26,076 Speaker 1: the margin will be broad enough. The idea that the 566 00:31:26,116 --> 00:31:28,836 Speaker 1: Supreme Court is in the hands largely of the swing 567 00:31:28,916 --> 00:31:32,836 Speaker 1: vote Chief Justice John Roberts, who thus far has worked 568 00:31:32,956 --> 00:31:35,236 Speaker 1: very hard to keep the Supreme Court out of partisan 569 00:31:35,236 --> 00:31:37,876 Speaker 1: political conflicts and has been willing to hold the Trump 570 00:31:37,876 --> 00:31:42,036 Speaker 1: administration to the rule of law. The fact that we 571 00:31:42,076 --> 00:31:45,836 Speaker 1: know about attempts of foreign interference that happen in twenty sixteen, 572 00:31:45,996 --> 00:31:47,956 Speaker 1: and so we're able to respond to those in a 573 00:31:47,996 --> 00:31:51,996 Speaker 1: more sophisticated way now. The fact that social media platforms 574 00:31:52,196 --> 00:31:54,396 Speaker 1: at least are trying to put plans in place now 575 00:31:54,676 --> 00:31:57,636 Speaker 1: for how they will deal with misinformation or other challenges 576 00:31:57,836 --> 00:32:02,196 Speaker 1: to these elections. The job of a scholar who's also 577 00:32:02,236 --> 00:32:05,076 Speaker 1: a public intellectual like Nate is to assess the problems 578 00:32:05,076 --> 00:32:08,636 Speaker 1: that we face and to propose concrete solutions for them. 579 00:32:09,356 --> 00:32:12,236 Speaker 1: Nate wants us to stay calm, not because there aren't 580 00:32:12,236 --> 00:32:16,356 Speaker 1: serious problems, but because there are ways that they can 581 00:32:16,436 --> 00:32:19,756 Speaker 1: be addressed. Until the next time I speak to you, 582 00:32:20,236 --> 00:32:25,756 Speaker 1: Be careful, be safe, and be well. Deep background is 583 00:32:25,756 --> 00:32:28,796 Speaker 1: brought to you by Pushkin Industries. Our producer is Lydia 584 00:32:28,876 --> 00:32:32,436 Speaker 1: Jean Kott, our engineer is Martin Gonzales, and our showrunner 585 00:32:32,516 --> 00:32:36,516 Speaker 1: is Sophie mckibbon. Theme music by Luis Gara. Special thanks 586 00:32:36,516 --> 00:32:40,156 Speaker 1: to the Pushkin Brass Malcolm Clodwell, Jacob Weisberg, and Mia Lobel. 587 00:32:40,996 --> 00:32:43,916 Speaker 1: I'm Noah Feldman. You can find me on Twitter at 588 00:32:43,996 --> 00:32:47,076 Speaker 1: Noah Urfeldt. I also have a new book out called 589 00:32:47,196 --> 00:32:50,116 Speaker 1: The Arab Winter, a Tragedy. I'd be delighted if you 590 00:32:50,236 --> 00:32:52,956 Speaker 1: checked it out. I write a column for Bloomberg Opinion, 591 00:32:53,076 --> 00:32:56,236 Speaker 1: which you can find at bloomberg dot com slash Feldman. 592 00:32:56,796 --> 00:33:00,276 Speaker 1: To discover Bloomberg's original state of podcasts, go to bloomberg 593 00:33:00,316 --> 00:33:03,436 Speaker 1: dot com slash podcasts And if you like what you 594 00:33:03,516 --> 00:33:06,236 Speaker 1: heard today, please write a review or tell a Frand 595 00:33:06,756 --> 00:33:08,236 Speaker 1: this is deep background