Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show
Speaker 1: where we explore the stories behind the stories in the news.
Speaker 1: I'm Noah Feldman and its voting season. North Carolina was
Speaker 1: the first state to start mailing out absentee ballots earlier
Speaker 1: this month. Minnesota will be the first state to open
Speaker 1: early in person voting this Friday. Is America ready to
Speaker 1: handle an election in the middle of our national and
Speaker 1: global pandemic? What are the risks and dangers associated with
Speaker 1: this election? What should we be worried about? And what
Speaker 1: are the possible pathways that we could use to resolve conflicts?
Speaker 1: Here to discuss these very challenging issues with us is
Speaker 1: Professor Nate Persilely of Stanford Law School. In my generation
Speaker 1: of law professors, Nate is the definitive leading scholar on
Speaker 1: election law, crises of elections, and how elections work. Everybody
Speaker 1: listens to him, and Nate says he's losing sleep. Nate,
Speaker 1: let's dive into the existential dread that keeps our nation's
Speaker 1: leading election law scholar from sleeping at nights. Describe your
Speaker 1: worst case scenarios, the ones that are keeping you awake. Well,
Speaker 1: I think that my role to some extent over the
Speaker 1: next month is to try to calm people down, because
Speaker 1: there are a lot of uncertainties in the system, and
Speaker 1: I think those of us who are working in this
Speaker 1: area should try to lessen the anxiety. But since you asked,
Speaker 1: I am worried that if this is a close election
Speaker 1: that comes down to absentee ballots in one or more
Speaker 1: of the Midwestern states, that we will have a situation
Speaker 1: of Bush versus Gore on steroids and under conditions where
Speaker 1: we have much greater partisan polarization now than we did
Speaker 1: twenty years ago. And it's not clear to me that
Speaker 1: whoever loses that fight in court or through the kind
Speaker 1: of constitutional machinery will go away quietly. Let's discuss how
Speaker 1: the fight would play itself out. I tend to see
Speaker 1: things through the lens of bushvigor, because you know, I
Speaker 1: was a young lawyer out there in Palm Beach County
Speaker 1: trying to make it up as I went along back
Speaker 1: in the day, and we had no idea if the
Speaker 1: case would upenly make it to the Supreme Court. In fact,
Speaker 1: when we started, we thought this was just going to
Speaker 1: be a state law set of cases. We started litigating
Speaker 1: in Palm Beach County Local Court, you know, Florida State
Speaker 1: Court where we won. We thought it would go to
Speaker 1: the Florida Supreme Court after that, which did, but we
Speaker 1: didn't fully anticipate that it would go to the US
Speaker 1: Supreme Court. This time, we know, because we have the
Speaker 1: retrospect of Bush Bigor that it could go to the
Speaker 1: federal courts and therefore to the Supreme Court. Do you
Speaker 1: see that as a long, slow, drawn out process the
Speaker 1: way it was in two thousand or do you think
Speaker 1: it would be a more rapid process now that we
Speaker 1: sort of know that the movie can end with the
Speaker 1: Supreme Court weighing in. Well, I mean, it depends on
Speaker 1: whether it follows the Bush versus Gore script, because, as
Speaker 1: you know, in Bush versus Gore, there were easily forty
Speaker 1: lawsuits that had been followed in Florida in one capacity
Speaker 1: or another, and there was always the possibility that it
Speaker 1: wouldn't actually go through the state system. That you actually
Speaker 1: had the Bush folks who did file in federal court
Speaker 1: and then had an Eleventh Circuit decision that didn't go
Speaker 1: up to the US Supreme Court. But depending on what
Speaker 1: the legal issues are, you could see a sort of
Speaker 1: very rapid federal pathway in order to get the Supreme
Speaker 1: Court involved. And as you know in in Bush versus
Speaker 1: Gore itself, over just a month period, you had two
Speaker 1: Supreme Court decisions, right, that went through the full sort
Speaker 1: of procedure within the state and then went up to
Speaker 1: the Supreme Court. And so I think if the lawyers
Speaker 1: wanted to go to the US Supreme Court, and the
Speaker 1: Supreme Court is willing to take it, it can be
Speaker 1: done relatively quickly, depending on what the legal questions are
Speaker 1: that are involved. Chief Justice John Roberts, who is now
Speaker 1: not only the Chief Justice but also the swing vote
Speaker 1: on the Court, has been signaling, in my view, not
Speaker 1: just this past summer, but the previous summer too, that
Speaker 1: he does not want the Court to be seen as
Speaker 1: parts in political So in several really hot button, big
Speaker 1: ticket cases, the citizenship sends this question, and then on
Speaker 1: the DACA recision question, he cast a deciding vote with
Speaker 1: the liberals, basically saying in both cases that the Trump
Speaker 1: administration hadn't crossed its teas and dotted its eyes. They
Speaker 1: had the power to do these things, but they did
Speaker 1: them wrong and illegitimately, and so he struck down both
Speaker 1: of those things. I read that as his signaling I
Speaker 1: do not want the Supreme Court to be forced to
Speaker 1: decide the election in a way that will appear to
Speaker 1: be partisan. How do you read Chief Justice Roberts and
Speaker 1: how do you think he would think about the different
Speaker 1: incentives that push in different ways should a case come
Speaker 1: before him. Well, I think you're right that Chief Justice
Speaker 1: Robert's care is very much for the institution of the
Speaker 1: Supreme Court and is worried about it being seen as
Speaker 1: part of and so all things being equal, he would
Speaker 1: try to craft a procedure in a decision that would
Speaker 1: be greater than say, a five four decision at the Court.
Speaker 1: It's not clear to me that that's possible. Depending on
Speaker 1: what the vacts are. In a case like this, it's
Speaker 1: going to be seen as a partisan decision, But it
Speaker 1: may be seen as a partisan decision even if, for example,
Speaker 1: he were to join with the four more liberal justices. Right,
Speaker 1: Because if you take Donald Trump's accusations of the Court seriously, right,
Speaker 1: he doesn't even see Chief Justice Roberts as being a
Speaker 1: faithful conservative. So I think you are right as to
Speaker 1: what his motivations are. It's not clear to me that
Speaker 1: that affects the decision. It's possible that it could affect
Speaker 1: whether they would even take the case. Right. Even though
Speaker 1: we have to push versus Gore precedent out there, there's
Speaker 1: plenty of wiggle room for the Supreme Court to deny
Speaker 1: a case like this, as you know in the partisan
Speaker 1: jerrymandering cases. He joined the four more conservative justices to
Speaker 1: say that this was a nonjsticiable political question. One little
Speaker 1: interesting piece of trivia is that John Roberts was second
Speaker 1: in line actually to argue Bush versus Gore itself. He
Speaker 1: was part of the Bush legal team and was sort
Speaker 1: of given a back seat to Ted Olson, who ended
Speaker 1: up arguing it. But as some of the folks in
Speaker 1: the Bush legal team said to me, well he's done
Speaker 1: okay for himself since then, So it's okay when I
Speaker 1: wake up at three in the morning worried about the scenario,
Speaker 1: you know, the Trump versus Biden election becomes the case
Speaker 1: if Trump versus Biden and goes to the Supreme Court,
Speaker 1: I have to say that the thing that lets me
Speaker 1: go back to sleep those nights when I can is
Speaker 1: actually John Roberts, as he has been in the last
Speaker 1: two years. And I actually want to ask you constitutional
Speaker 1: law professor to constutional law professor, or sleep loser to
Speaker 1: sleep loser. Do you think that's crazy? I mean two
Speaker 1: years ago, I would not have said this. I would
Speaker 1: have said, you know, Chief Justice Roberts is a brilliant
Speaker 1: doctrinal lawyer. He aims for conservative outcomes. He's rolled back
Speaker 1: voting rights remarkably in the Voting Rights Act case to
Speaker 1: Shelby against Holder case, which you know is historically bad decision.
Speaker 1: I know you have said that many times more politely
Speaker 1: than I just put it. But then in the last
Speaker 1: two years, his insistence, I think, in reaction to Trump's
Speaker 1: flouting of the rule of law, does make me feel
Speaker 1: like Roberts realizes that if the Supreme Court under him
Speaker 1: were thought to have given an election to Donald Trump,
Speaker 1: he would never live that down, and the Supreme Court
Speaker 1: would never live that down. And so that's what eases
Speaker 1: me back to sleep. I think to myself, it actually
Speaker 1: might be okay. Does that seem crazy to you, doctor, No,
Speaker 1: that doesn't seem crazy. I mean, and I do find
Speaker 1: solace in his influence on the Court and think that
Speaker 1: that is a possible palliative outcome to the partners of
Speaker 1: the strife that would proceed a decision like that. But
Speaker 1: there are situations under which the Supreme Court does not
Speaker 1: become the final arbiter of these controversies. That if President Trump,
Speaker 1: for example, takes advantage of the sort of full constitutional machinery,
Speaker 1: you could see a pathway which ends up going through
Speaker 1: the Pennsylvania legislature, for example, into the House of Representatives,
Speaker 1: and Vice President Pence being in a role to try
Speaker 1: to decide who is going to be the winner of
Speaker 1: the presidential election, which is sketch that out in a
Speaker 1: little bit more detail. You know, the podcast is called
Speaker 1: a deep Background, so we're allowed to geek out. That's
Speaker 1: sort of the whole point of it, all right, Great, So,
Speaker 1: under the machinery of the Twelfth Amendment and the Constitution,
Speaker 1: it is possible that if you have competing slates of
Speaker 1: electors from a state, that it will eventually end up
Speaker 1: in the House of Representatives in a process that is
Speaker 1: presided over by Vice President Pence. And there's a lot
Speaker 1: of ambiguity as to what you do, what the nation
Speaker 1: does when you have a disputed presidential election. And so
Speaker 1: there is a scenario under which Vice President Pence says
Speaker 1: that he has the authority to determine which slate of
Speaker 1: electors is the valid slate of electors, and he may say,
Speaker 1: for example, that Pensylia legislature slate of electors will be
Speaker 1: deemed as the appropriate one. Under that situation, you could
Speaker 1: see Nancy Pelosi shutting down the House of Representatives so
Speaker 1: that it cannot proceed with the counting of the electoral slates,
Speaker 1: and then we have a full on constitutional crisis. The
Speaker 1: trigger to that originally would be a take it that
Speaker 1: in this scenario, you're imagining that the Secretary of State
Speaker 1: of Pennsylvania, who's the ordinary certifying officer, certifies that Biden
Speaker 1: one and so the electors to the Electoral College from
Speaker 1: the state of Pennsylvania are the Democratic ones. And then
Speaker 1: the state legislature enacts a law or a resolution. I guess,
Speaker 1: can they do this with or without the governor? Unclear
Speaker 1: to me, and then sends in a letter to the
Speaker 1: electoral college saying, wrong, this is the set of electors
Speaker 1: the Secretary of State is wrong about whom the State
Speaker 1: of Pennsylvania has chosen. These are the people whom the
Speaker 1: State of Pennsylvania has chosen, and ps these are the
Speaker 1: Republican electors for Donald Trump. That's what's the trigger. That's right.
Speaker 1: The relevant law here is both the Constitution Article two,
Speaker 1: Section one, twelfth Amendment and the Electoral Countact. The Electoral
Speaker 1: Countact actually says that whatever slate is signed on by
Speaker 1: the governor is sort of going to be presumptively seen
Speaker 1: as the right slate. But the Constitution says that each
Speaker 1: state shall, in a manner determined by the legislature thereof
Speaker 1: determined a number of electors. And so you could see
Speaker 1: competing slates of electors going up to this House of
Speaker 1: Representatives without a clear way of resolving that controversy. Leaving
Speaker 1: aside for a moment the possible legal fights, when you
Speaker 1: look at the voting mechanics and you try to figure
Speaker 1: out where the greatest concerns in fact law, and not
Speaker 1: the ones that the candidates might insist exist, but that
Speaker 1: really exist. Where are your greatest points of concern on
Speaker 1: the mechanics side, And then we'll come to the question
Speaker 1: of external interference too. So an election in which half
Speaker 1: the voters cast absentee ballots is a different kind of
Speaker 1: election than when we are accustomed to and absentee ballots
Speaker 1: are right for legal challenge. There are many different ways
Speaker 1: that you can sort of what we say, lose votes
Speaker 1: through the absentee ballot process, whether it's in the application process,
Speaker 1: the mailing of ballots to the voters, the returning from
Speaker 1: the voters to the election authority, and then the counting
Speaker 1: of the votes. At each stage there's the possibility of
Speaker 1: a mishap, and particularly under the sort of pandemic conditions
Speaker 1: and emergency conditions which have led to this transition tabs
Speaker 1: in the balloting, I think there is a lot of
Speaker 1: concern that you could see a lot of lost votes.
Speaker 1: The side that thinks it will gain by more votes
Speaker 1: being counted will always say, well, let's move beyond those
Speaker 1: mishaps and let's try to effectuate the intention of the voter,
Speaker 1: you know, the voter. Try to get it by this state,
Speaker 1: Try to mail it back by this state, Try to
Speaker 1: put the right amount of postage on it. Try to
Speaker 1: check the box next to the person that he or
Speaker 1: she wanted to vote for. The other side will say, no,
Speaker 1: this is a technical matter and election. You have to
Speaker 1: cross your teas, you have to dot your eyes. And
Speaker 1: so this given ballot or other ballots like it should
Speaker 1: be discounted apart from the partisan side. Do you have
Speaker 1: a general philosophical view about this question. Well, I do
Speaker 1: think that the rules need to be clearly specified in advance,
Speaker 1: and if they are specified in advance, that they need
Speaker 1: to be applied that way. Are they are the rules
Speaker 1: well specified in advanced in the fifty states? No, they're not.
Speaker 1: And this is one of the reasons why I'm a
Speaker 1: fan of pre election litigation. Right, we should try to
Speaker 1: get the rules specified as early as possible and as
Speaker 1: clearly as possible. You are right that Democrats are going
Speaker 1: into court now to try to make sure that as
Speaker 1: many ballots will be counted, and that's why we have
Speaker 1: over two hundred and fifty cases that are now being
Speaker 1: followed in the courts. Let me pause you in that
Speaker 1: for a moment. We're not even a month from the
Speaker 1: election and there are already two hundred and fifty cases
Speaker 1: that have been filed. Give us the general profile of
Speaker 1: what a typical one of those cases looks like. If
Speaker 1: there is a typical one, well, there really isn't a
Speaker 1: typical one, because we're seeing different types of cases depending
Speaker 1: on the states. The sort of modal absentee ballot case
Speaker 1: is in the vein that you described before, which is
Speaker 1: that you have Democrats who are going into court, for example,
Speaker 1: to make sure that despite what the law may say,
Speaker 1: that all ballots that are cast and postmarked by say
Speaker 1: election day will be counted. And one of the reasons
Speaker 1: they make this argument is they say, look, you know
Speaker 1: there are problems with the postal service, there are problems
Speaker 1: with respect to the coronavirus epidemic, and so we need
Speaker 1: to make sure that all votes are counted if they
Speaker 1: are cast before polls closed. So that's one set of cases.
Speaker 1: Then you have some cases where, for example, Republicans have
Speaker 1: gone in in New Jersey and in Nevada to try
Speaker 1: to prevent states from moving to all male balloting, saying
Speaker 1: that that's going to lead to fraud. Or they've gone
Speaker 1: into court in Pennsylvania to say that it is illegal
Speaker 1: for the counties to have ballot drop boxes where people
Speaker 1: can drop their ballot instead of putting in the mail.
Speaker 1: And so those are the kind of cases that we're seeing,
Speaker 1: as well as all kinds of other cases that are
Speaker 1: either specific to coronavirus and the pandemic or sort of
Speaker 1: general concerns about absentee balloting. So basically what you're saying
Speaker 1: is we're going to have a heavily litigated election, whether
Speaker 1: we like it or not. The only question will be
Speaker 1: will that litigation be determinative of outcomes? And that will
Speaker 1: depend on how close the votes are in some key states.
Speaker 1: That's right. There's something called the election administrator's prayer, which is, oh, God,
Speaker 1: whatever happens, please don't let it be close. Right, And
Speaker 1: so if there's a close election, you'll end up with
Speaker 1: all kinds of lawsuits that are brought to try to
Speaker 1: work the rest to determine the outcome. If it's not
Speaker 1: a close election, well then maybe we won't have as
Speaker 1: much action in court. We'll be right back in a
Speaker 1: world where absentee ballots constitute a large number of the ballots.
Speaker 1: How will we know whether it was a close election
Speaker 1: or not? I mean, ordinarily we know that absentee bots
Speaker 1: are relatively small numbers, So once we've counted the votes
Speaker 1: on election day, we can sometimes know, well, the margin
Speaker 1: of victory is greater than the number of outstanding absentee ballots.
Speaker 1: That's the definition I guess of an election that isn't
Speaker 1: so close. Literally, will we know that under these circumstances,
Speaker 1: will we know how many absentee ballots are out there.
Speaker 1: We might know how many were sent out, but we
Speaker 1: won't know how many are coming back. That's true. I mean,
Speaker 1: we'll know several things, and we'll know that at different times. Right,
Speaker 1: we will know, as you said, the number of absentee
Speaker 1: ballots that were sent out. We will probably in most states,
Speaker 1: we will know whether they were sent out to Democrats
Speaker 1: or Republicans, so you can sort of forecast what the
Speaker 1: likely partisan split is in the absentee ballots. Most of
Speaker 1: those ballots will be received before election day, so we
Speaker 1: will have a whole swath of ballots that will will
Speaker 1: be in the hands of the election officials, and so
Speaker 1: we will know how many ballots need to be processed,
Speaker 1: will know how many ballots are at that time in dispute.
Speaker 1: But you're right, if it's a Bush versus Gore situation,
Speaker 1: then we will not know whether the outstanding absentee ballots
Speaker 1: will be determinative. And as in Bush versus Gore, if
Speaker 1: it's that close we're talking about like say five hundred votes,
Speaker 1: then every aspect of the absentee ballot process would end
Speaker 1: up being potentially outcome determinative. But I'm at least one
Speaker 1: of those people who thinks that on election night or
Speaker 1: maybe the day after, we will have a very good
Speaker 1: idea as to who won. And that's because we will
Speaker 1: have information from different states that have completed most of
Speaker 1: their absentee balloting, either because they have rules on absentee
Speaker 1: balloting they're more restrictive, or because they were quick. That
Speaker 1: then will give us an indication as to how Trump
Speaker 1: and Biden are doing in the remaining states. And so,
Speaker 1: assuming it isn't a replay from four years ago, that
Speaker 1: it's not that close, then I think we will have
Speaker 1: a good idea on election night or the day after
Speaker 1: us to who won. Speaking of a replay of four
Speaker 1: years ago, one of the many things you spent part
Speaker 1: of the last four years focused on is trying to
Speaker 1: make sense of the foreign interference components in the twenty
Speaker 1: sixteen election. You've been a leader in trying to assess
Speaker 1: what happened, to assess its effects. And if I were
Speaker 1: to summarize your teaching us on this subject is it's complicated.
Speaker 1: So I know that it's complicated, But we have a
Speaker 1: little time here, and I would love to hear from you,
Speaker 1: how you picture the threats from outside interference in this election,
Speaker 1: wherever they may be coming from, and then how serious
Speaker 1: that you take them. So my view about what happened
Speaker 1: four years ago is that the Russian hack and leak
Speaker 1: operation was determinative of the twenty sixteen election. By that,
Speaker 1: I mean that the ability of the Russian intelligence services
Speaker 1: using wiki leagues, with some assistance from people involved in
Speaker 1: the campaign, to get Hillary Clinton's emails and to dump
Speaker 1: them on the public was extremely significant. The social media
Speaker 1: strategy that the Russians pursued, which included the hacken League
Speaker 1: strategy but also involved using Facebook ads, using organic content
Speaker 1: to polarize and persuade people that that it's not clear,
Speaker 1: was as effective as most people think we are going
Speaker 1: to see for an intervention of the latter type in
Speaker 1: this election. We're already seeing it. You've seen Facebook and
Speaker 1: other platforms takedown accounts. But compared to the amount of
Speaker 1: polarization and the amount of disinformation that is organically inside
Speaker 1: the United States right now and that's being produced by
Speaker 1: domestic actors, I actually think the marginal contribution of foreign disinformation,
Speaker 1: it really gets lost in the shuffle. I mean I
Speaker 1: think that if you see, as has been reported that
Speaker 1: Russian accounts are retweeting and amplifying statements, for example, that
Speaker 1: absentee balloting is marred by fraud, I mean you don't
Speaker 1: need the Russians to do that, getting that in the
Speaker 1: domestic political conversation, and so I don't think that they
Speaker 1: will have much of an impact on that. I am
Speaker 1: much more concerned about the sort of cyber infrastructure and
Speaker 1: whether particularly the new types of technology that have been
Speaker 1: bought by jurisdictions and perhaps untested to deal with, say
Speaker 1: the rise in absentee balloting, things that are related to say,
Speaker 1: the voter registration system, the other issues dealing with say
Speaker 1: election poll books right e poll books. Those are right
Speaker 1: for exploitation by a foreign actor, but we haven't seen
Speaker 1: any of that yet. How good are the cybersecurity defenses
Speaker 1: that the States have erected. I know you've looked under
Speaker 1: the hood. What's the quality of the defense relative to
Speaker 1: what the quality of the hacking could because the quality
Speaker 1: of the hacking could be a state of the art. Well,
Speaker 1: I think that the voter registration databases are much more
Speaker 1: secure now than they were four years ago. There are
Speaker 1: other electronic or digital. All aspects to the system, though,
Speaker 1: which are more vulnerable, like anything that involves a vendor,
Speaker 1: such as the software that's involved in sending out mail
Speaker 1: ballots and the like. But the machines themselves, which is
Speaker 1: what most people spend a lot of time thinking about.
Speaker 1: I also don't think are terribly vulnerable. I think that
Speaker 1: we've had this significant move in the last ten years
Speaker 1: toward machines with paper backups, and I think in the
Speaker 1: event of a cyber breakdown or even like a power outage,
Speaker 1: that we should be able to have enough paper ballots
Speaker 1: that we can conduct a RICO. Let's talk a little
Speaker 1: bit about the social media angle and disclosure. For me
Speaker 1: and I think for you too. We've both advised Facebook
Speaker 1: on aspects of free expression, in your case more focused
Speaker 1: on the electoral side, in my case more focused on
Speaker 1: the non election context. How do you see the kind
Speaker 1: of game plan that different social media platforms have begun
Speaker 1: to roll out for how they're going to address potential
Speaker 1: difficulties that arise around the election. Well, in recent weeks
Speaker 1: we've seen more aggressive pronouncements from Facebook and Twitter about
Speaker 1: what they're going to be doing with this election, not
Speaker 1: only do. We have the twenty sixteen election and the
Speaker 1: warning that it has issued to the social media companies,
Speaker 1: and for that matter, all the pressure that has come
Speaker 1: since then. But their experience in dealing with coronavirus related
Speaker 1: disinformation has set some precedents for them as to how
Speaker 1: they will deal with election disinformation, and so, yes, there
Speaker 1: will be sort of new policies and we've seen them
Speaker 1: already being executed to deal with even candidate sponsored disinformation,
Speaker 1: whether it's coming from presidents Twitter account or Facebook account.
Speaker 1: But what has impressed me most actually is the attempt
Speaker 1: to provide good information that a lot of what Facebook
Speaker 1: has been trying to do this time is to develop
Speaker 1: its own source of accurate election information that it will
Speaker 1: then preemptively pump out to the mass public on issues
Speaker 1: such as absent balloting or the security of the election
Speaker 1: infrastructure and the like. And so they are giving election
Speaker 1: officials access to top of feed notifications so that the
Speaker 1: first thing that you see when you open up your
Speaker 1: Facebook account is sort of reliable election information from the
Speaker 1: local officials. And so that's I think a new tactic.
Speaker 1: There's a lot of interesting stuff that they're still deciding,
Speaker 1: which comes to how do you deal with disinformation after
Speaker 1: the election. That's an unprecedented move for them as well,
Speaker 1: is what do they do if a candidate, for example,
Speaker 1: declared victory but hasn't actually won the votes. In the
Speaker 1: Bush Vigor aftermath, famously, first the television networks called the
Speaker 1: election for Bush, al Gore conceded to George W. Bush,
Speaker 1: and then al Gore unconceded and the networks pulled back
Speaker 1: from their calling the election. When I hear about trying
Speaker 1: to regulate post election disinformation, I keep on seeing it
Speaker 1: through the lens of you know, how do you know
Speaker 1: what disinformation is? Al Gore thought he'd lost, he hadn't,
Speaker 1: and then of course ultimately he had. George W. Bush
Speaker 1: thought he'd won. And for someone to declare victory, for
Speaker 1: Donald Trump to say, well I won today feels to me,
Speaker 1: even though that's a factual statement in some way and
Speaker 1: it might be therefore capable of being shown false, it
Speaker 1: feels more like a political declaration. And yet I think
Speaker 1: under at least some of the proposed ways, they're thinking
Speaker 1: about what some of the big platforms might do that
Speaker 1: might be labeled as disinformation and either flagged or taken
Speaker 1: down On Twitter, or on Facebook. How does that make
Speaker 1: you feel? Well? I agree with your assessment of the
Speaker 1: terrain here. I think that people need to understand that
Speaker 1: we actually have never had official declarations in the days
Speaker 1: after an election as to who actually won. And by
Speaker 1: that I mean that there is no national election authority
Speaker 1: in the United States who says yes, in fact, this
Speaker 1: candidate won. The closest thing we have to a national
Speaker 1: election authority in the US is the associated press, right,
Speaker 1: and so we delegate to the media the ability to
Speaker 1: declare who has won in these states, even when there
Speaker 1: could be tens of millions of ballots that were outstanding.
Speaker 1: And in twenty sixteen, right, we had Hillary Clinton ending
Speaker 1: up getting millions more votes after election day. And so
Speaker 1: the platforms are put in a delicate position, which is, well,
Speaker 1: how do they deal with candidate declarations of victory when
Speaker 1: the state election authorities have not certified a winner. But
Speaker 1: if they wait for the state election authorities to certify
Speaker 1: a winner, that will be several weeks. And so what
Speaker 1: they are doing is looking at other media organizations that
Speaker 1: are in the business of projecting outcomes, and they are
Speaker 1: going to report those other declarations of victory or those
Speaker 1: other calls that the networks have done, and then based
Speaker 1: on the other media organizations, they will then decide whether
Speaker 1: the declaration of victory by the candidate is valid or not.
Speaker 1: I was trying to explain to my kids how it
Speaker 1: back in the day when, as you're saying, the networks
Speaker 1: essentially had the function of saying who won the election?
Speaker 1: And I had to pause because their attitude was, what
Speaker 1: do you mean the networks? For them, ABC, CBS, and
Speaker 1: NBC are not places where one would watch the news.
Speaker 1: Are we moving from a world where the networks called
Speaker 1: the elections and were more or less delegated it to
Speaker 1: them to a world where the social media platforms are
Speaker 1: going to declare the elections, not by ever saying that,
Speaker 1: but by de facto allowing or disallowing claims of victory
Speaker 1: by the candidates. I think that is a worrisome trend,
Speaker 1: and this is actually the first election where we're going
Speaker 1: to test that out. Right now, as I understand it
Speaker 1: from talking to the folks at the platforms, they are
Speaker 1: going to be sort of a lagging indicator as to
Speaker 1: who won, and that they will be relying on the
Speaker 1: decision desks of the networks as essentially a large fact
Speaker 1: checking institution that will decide who actually won. And so
Speaker 1: Facebook and Twitter will not themselves be in a position
Speaker 1: to say, all right, we've determined that this candidate has
Speaker 1: won or not. But they're going to say, well, here's
Speaker 1: what you can see on our dashboard, which is what
Speaker 1: they're going to have up there, Which of the decision
Speaker 1: desks has declared which candidate to be the victor? And
Speaker 1: one thing that's important, you know, in this day and age,
Speaker 1: we assume that all right, well, the networks and the
Speaker 1: sort of legacy media organizations have been totally displaced by
Speaker 1: a million websites and other self proclaimed experts. But there
Speaker 1: are only a certain number of decision desks right now
Speaker 1: with the infrastructure to look at the county returns around
Speaker 1: the country. And so if you're a social media platform
Speaker 1: and you want to rely on a relatively sort of
Speaker 1: low number of actors, you have that capacity right now
Speaker 1: because they're only let's say seven to ten real decision
Speaker 1: desks out there that are going to be doing the
Speaker 1: hard work of projecting the outcome. How important is Fox
Speaker 1: going to be this round? First of all, does Fox
Speaker 1: have a formal decision desk? Yes, not only does Fox
Speaker 1: have a decision desk? But the Fox decision desk is
Speaker 1: actually an impressive organization which is hived off from the
Speaker 1: news operations of the network. And so while our inclination
Speaker 1: would be to say, all right, the Fox decision desk
Speaker 1: would be, say, the first institution to call the election
Speaker 1: for Trump, I'm actually skeptical of that. I know some
Speaker 1: of the people at the decision desk there, and so
Speaker 1: in many ways, the Fox Decision desk is the most
Speaker 1: important media entity in this election, because depending on what
Speaker 1: they say, you could actually see Republicans sort of siding
Speaker 1: with what the Fox Decision desk says if it goes
Speaker 1: against the president. That is, by the way, what happened
Speaker 1: in twenty twelve when the Fox decision desk called the
Speaker 1: Ohio results for President Obama and Karl Rove on the
Speaker 1: News on Fox News was actually jumping up and down
Speaker 1: saying no, no, no, it's too early to call, and
Speaker 1: actually the Fox Decision desk said no, Actually, Obama's one Ohio.
Speaker 1: So Fox News could potentially say that Donald Trump has
Speaker 1: lost the election and get listened to if it goes
Speaker 1: the other way. Though, I somehow suspect that Democratic listeners
Speaker 1: are going to be skeptical of what Fox News has
Speaker 1: to say. Well, that's right. If it's only Fox News
Speaker 1: that's saying that Donald Trump has won, then that would
Speaker 1: be just seen as playing to type. Right as Similarly,
Speaker 1: if the mainstream networks quickly call it for Biden, that's
Speaker 1: not going to lead Republicans to just sort of go
Speaker 1: slowly back into that good night. I mean, I think
Speaker 1: that what you're saying is that there is incredible polarization
Speaker 1: and media consumption that you're going to need some kind
Speaker 1: of bipartisan signal as to who actually won in order
Speaker 1: for the candidates to consider conceding and not to launch
Speaker 1: into litigation. Last question for your Nate, what am I
Speaker 1: not asking you that is front of mine for you?
Speaker 1: Are there any themes or ideas or things or last
Speaker 1: words that you want to share with listeners. Well, I
Speaker 1: don't want to end on a dour note or an
Speaker 1: alarmist note, because I do see my role in the
Speaker 1: next month is trying to calm people's fears. But I
Speaker 1: do think that there's the possibility for unprecedented activity in
Speaker 1: this election, particularly as it pertains to violence, and we
Speaker 1: haven't really thought about what happens if you have violence
Speaker 1: in polling places, violence in the canvassing boards, if you
Speaker 1: have unprecedented use of federal authority. And so I think
Speaker 1: that it's really important that the attorneys general of the
Speaker 1: different states start putting into place procedures to protect against violence,
Speaker 1: and that voters start understanding that they're going to be
Speaker 1: protections in place to prevent violence in polling places. You
Speaker 1: are a voice of calm and reason, and I'm grateful
Speaker 1: for that, and I know listeners will be grateful for
Speaker 1: it too. The reason you're able to be a voice
Speaker 1: of calm and reason is that you actually go down
Speaker 1: all of the roots to explore where things could go wrong.
Speaker 1: So you can't do one without the other. And I'm
Speaker 1: really grateful too for doing that here and at other
Speaker 1: times too. So thanks for coming on the show. Look
Speaker 1: far to speaking to you again soon. Thanks very much
Speaker 1: for having me Listening to Nate, I can see why
Speaker 1: he's having trouble sleeping when he thinks about all the
Speaker 1: different things that could go wrong in the twenty twenty election.
Speaker 1: That said, Nate's perspective is to evaluate and analyze each
Speaker 1: of the different scenarios and to give a rational logical,
Speaker 1: calm account of how these things could be resolved. The
Speaker 1: result is that there's a kind of split screen. When
Speaker 1: you listen to Nate. On one side of the screen,
Speaker 1: you see problem after problem after problem, two hundred and
Speaker 1: fifty legal cases already filed, more cases to be filed
Speaker 1: after the election, potential interference in the election, potential misinformation
Speaker 1: around the election, challenges as to who has won the election.
Speaker 1: All of that is on your left screen. On your
Speaker 1: right screen are a series of much simpler, more understandable,
Speaker 1: possible pathways that would not lead to deep constitutional crisis
Speaker 1: or conflict. One is that maybe the election just won't
Speaker 1: be that close after all. The other is Nate's prediction
Speaker 1: that more likely than not, within a day or two
Speaker 1: after this election, we actually will know who's one, because
Speaker 1: the margin will be broad enough. The idea that the
Speaker 1: Supreme Court is in the hands largely of the swing
Speaker 1: vote Chief Justice John Roberts, who thus far has worked
Speaker 1: very hard to keep the Supreme Court out of partisan
Speaker 1: political conflicts and has been willing to hold the Trump
Speaker 1: administration to the rule of law. The fact that we
Speaker 1: know about attempts of foreign interference that happen in twenty sixteen,
Speaker 1: and so we're able to respond to those in a
Speaker 1: more sophisticated way now. The fact that social media platforms
Speaker 1: at least are trying to put plans in place now
Speaker 1: for how they will deal with misinformation or other challenges
Speaker 1: to these elections. The job of a scholar who's also
Speaker 1: a public intellectual like Nate is to assess the problems
Speaker 1: that we face and to propose concrete solutions for them.
Speaker 1: Nate wants us to stay calm, not because there aren't
Speaker 1: serious problems, but because there are ways that they can
Speaker 1: be addressed. Until the next time I speak to you,
Speaker 1: Be careful, be safe, and be well. Deep background is
Speaker 1: brought to you by Pushkin Industries. Our producer is Lydia
Speaker 1: Jean Kott, our engineer is Martin Gonzales, and our showrunner
Speaker 1: is Sophie mckibbon. Theme music by Luis Gara. Special thanks
Speaker 1: to the Pushkin Brass Malcolm Clodwell, Jacob Weisberg, and Mia Lobel.
Speaker 1: I'm Noah Feldman. You can find me on Twitter at
Speaker 1: Noah Urfeldt. I also have a new book out called
Speaker 1: The Arab Winter, a Tragedy. I'd be delighted if you
Speaker 1: checked it out. I write a column for Bloomberg Opinion,
Speaker 1: which you can find at bloomberg dot com slash Feldman.
Speaker 1: To discover Bloomberg's original state of podcasts, go to bloomberg
Speaker 1: dot com slash podcasts And if you like what you
Speaker 1: heard today, please write a review or tell a Frand
Speaker 1: this is deep background