WEBVTT - Why a Leading Election Scholar Can’t Sleep 0:00:15.396 --> 0:00:24.476 Pushkin from Pushkin Industries. This is Deep Background, the show 0:00:24.516 --> 0:00:27.756 where we explore the stories behind the stories in the news. 0:00:28.276 --> 0:00:33.396 I'm Noah Feldman and its voting season. North Carolina was 0:00:33.436 --> 0:00:36.396 the first state to start mailing out absentee ballots earlier 0:00:36.436 --> 0:00:39.556 this month. Minnesota will be the first state to open 0:00:39.916 --> 0:00:44.756 early in person voting this Friday. Is America ready to 0:00:44.836 --> 0:00:47.836 handle an election in the middle of our national and 0:00:47.916 --> 0:00:51.876 global pandemic? What are the risks and dangers associated with 0:00:51.916 --> 0:00:54.836 this election? What should we be worried about? And what 0:00:54.996 --> 0:00:59.196 are the possible pathways that we could use to resolve conflicts? 0:00:59.836 --> 0:01:02.956 Here to discuss these very challenging issues with us is 0:01:02.996 --> 0:01:06.996 Professor Nate Persilely of Stanford Law School. In my generation 0:01:07.036 --> 0:01:11.196 of law professors, Nate is the definitive leading scholar on 0:01:11.316 --> 0:01:17.116 election law, crises of elections, and how elections work. Everybody 0:01:17.156 --> 0:01:26.196 listens to him, and Nate says he's losing sleep. Nate, 0:01:26.276 --> 0:01:30.276 let's dive into the existential dread that keeps our nation's 0:01:30.356 --> 0:01:33.796 leading election law scholar from sleeping at nights. Describe your 0:01:33.876 --> 0:01:37.116 worst case scenarios, the ones that are keeping you awake. Well, 0:01:37.156 --> 0:01:39.676 I think that my role to some extent over the 0:01:39.716 --> 0:01:42.756 next month is to try to calm people down, because 0:01:43.316 --> 0:01:45.956 there are a lot of uncertainties in the system, and 0:01:45.996 --> 0:01:47.876 I think those of us who are working in this 0:01:47.956 --> 0:01:51.476 area should try to lessen the anxiety. But since you asked, 0:01:51.996 --> 0:01:54.916 I am worried that if this is a close election 0:01:55.476 --> 0:01:58.596 that comes down to absentee ballots in one or more 0:01:58.596 --> 0:02:02.276 of the Midwestern states, that we will have a situation 0:02:02.276 --> 0:02:05.716 of Bush versus Gore on steroids and under conditions where 0:02:05.796 --> 0:02:08.716 we have much greater partisan polarization now than we did 0:02:08.756 --> 0:02:11.476 twenty years ago. And it's not clear to me that 0:02:11.556 --> 0:02:14.676 whoever loses that fight in court or through the kind 0:02:14.676 --> 0:02:19.636 of constitutional machinery will go away quietly. Let's discuss how 0:02:19.716 --> 0:02:21.716 the fight would play itself out. I tend to see 0:02:21.716 --> 0:02:25.276 things through the lens of bushvigor, because you know, I 0:02:25.316 --> 0:02:27.716 was a young lawyer out there in Palm Beach County 0:02:27.756 --> 0:02:29.396 trying to make it up as I went along back 0:02:29.436 --> 0:02:32.276 in the day, and we had no idea if the 0:02:32.276 --> 0:02:34.196 case would upenly make it to the Supreme Court. In fact, 0:02:34.196 --> 0:02:35.996 when we started, we thought this was just going to 0:02:36.076 --> 0:02:38.956 be a state law set of cases. We started litigating 0:02:39.076 --> 0:02:42.796 in Palm Beach County Local Court, you know, Florida State 0:02:42.796 --> 0:02:44.916 Court where we won. We thought it would go to 0:02:44.916 --> 0:02:47.276 the Florida Supreme Court after that, which did, but we 0:02:47.316 --> 0:02:49.196 didn't fully anticipate that it would go to the US 0:02:49.236 --> 0:02:52.276 Supreme Court. This time, we know, because we have the 0:02:52.356 --> 0:02:54.756 retrospect of Bush Bigor that it could go to the 0:02:54.876 --> 0:02:57.316 federal courts and therefore to the Supreme Court. Do you 0:02:57.356 --> 0:03:00.116 see that as a long, slow, drawn out process the 0:03:00.156 --> 0:03:02.596 way it was in two thousand or do you think 0:03:02.596 --> 0:03:05.036 it would be a more rapid process now that we 0:03:05.076 --> 0:03:06.876 sort of know that the movie can end with the 0:03:06.916 --> 0:03:10.516 Supreme Court weighing in. Well, I mean, it depends on 0:03:10.556 --> 0:03:14.596 whether it follows the Bush versus Gore script, because, as 0:03:14.636 --> 0:03:17.836 you know, in Bush versus Gore, there were easily forty 0:03:17.876 --> 0:03:20.836 lawsuits that had been followed in Florida in one capacity 0:03:20.916 --> 0:03:23.636 or another, and there was always the possibility that it 0:03:23.636 --> 0:03:26.156 wouldn't actually go through the state system. That you actually 0:03:26.156 --> 0:03:28.596 had the Bush folks who did file in federal court 0:03:28.876 --> 0:03:31.316 and then had an Eleventh Circuit decision that didn't go 0:03:31.396 --> 0:03:34.276 up to the US Supreme Court. But depending on what 0:03:34.316 --> 0:03:36.916 the legal issues are, you could see a sort of 0:03:37.036 --> 0:03:40.116 very rapid federal pathway in order to get the Supreme 0:03:40.116 --> 0:03:42.636 Court involved. And as you know in in Bush versus 0:03:42.636 --> 0:03:45.836 Gore itself, over just a month period, you had two 0:03:45.956 --> 0:03:49.716 Supreme Court decisions, right, that went through the full sort 0:03:49.756 --> 0:03:52.516 of procedure within the state and then went up to 0:03:52.556 --> 0:03:55.116 the Supreme Court. And so I think if the lawyers 0:03:55.116 --> 0:03:57.036 wanted to go to the US Supreme Court, and the 0:03:57.036 --> 0:03:59.116 Supreme Court is willing to take it, it can be 0:03:59.156 --> 0:04:01.876 done relatively quickly, depending on what the legal questions are 0:04:01.916 --> 0:04:05.316 that are involved. Chief Justice John Roberts, who is now 0:04:05.476 --> 0:04:07.516 not only the Chief Justice but also the swing vote 0:04:07.516 --> 0:04:11.076 on the Court, has been signaling, in my view, not 0:04:11.156 --> 0:04:14.396 just this past summer, but the previous summer too, that 0:04:14.516 --> 0:04:16.396 he does not want the Court to be seen as 0:04:16.436 --> 0:04:20.916 parts in political So in several really hot button, big 0:04:20.956 --> 0:04:25.556 ticket cases, the citizenship sends this question, and then on 0:04:25.596 --> 0:04:29.076 the DACA recision question, he cast a deciding vote with 0:04:29.116 --> 0:04:32.036 the liberals, basically saying in both cases that the Trump 0:04:32.076 --> 0:04:35.076 administration hadn't crossed its teas and dotted its eyes. They 0:04:35.076 --> 0:04:36.636 had the power to do these things, but they did 0:04:36.636 --> 0:04:39.636 them wrong and illegitimately, and so he struck down both 0:04:39.636 --> 0:04:43.156 of those things. I read that as his signaling I 0:04:43.276 --> 0:04:46.196 do not want the Supreme Court to be forced to 0:04:46.196 --> 0:04:48.556 decide the election in a way that will appear to 0:04:48.556 --> 0:04:52.036 be partisan. How do you read Chief Justice Roberts and 0:04:52.316 --> 0:04:54.636 how do you think he would think about the different 0:04:55.356 --> 0:04:58.996 incentives that push in different ways should a case come 0:04:59.036 --> 0:05:03.116 before him. Well, I think you're right that Chief Justice 0:05:03.196 --> 0:05:05.636 Robert's care is very much for the institution of the 0:05:05.676 --> 0:05:08.636 Supreme Court and is worried about it being seen as 0:05:08.676 --> 0:05:11.596 part of and so all things being equal, he would 0:05:12.116 --> 0:05:15.156 try to craft a procedure in a decision that would 0:05:15.196 --> 0:05:17.956 be greater than say, a five four decision at the Court. 0:05:18.436 --> 0:05:20.556 It's not clear to me that that's possible. Depending on 0:05:20.556 --> 0:05:22.396 what the vacts are. In a case like this, it's 0:05:22.476 --> 0:05:25.316 going to be seen as a partisan decision, But it 0:05:25.356 --> 0:05:27.916 may be seen as a partisan decision even if, for example, 0:05:27.916 --> 0:05:30.716 he were to join with the four more liberal justices. Right, 0:05:30.836 --> 0:05:35.916 Because if you take Donald Trump's accusations of the Court seriously, right, 0:05:35.956 --> 0:05:39.076 he doesn't even see Chief Justice Roberts as being a 0:05:39.116 --> 0:05:42.196 faithful conservative. So I think you are right as to 0:05:42.356 --> 0:05:45.356 what his motivations are. It's not clear to me that 0:05:45.356 --> 0:05:47.876 that affects the decision. It's possible that it could affect 0:05:47.876 --> 0:05:50.876 whether they would even take the case. Right. Even though 0:05:50.876 --> 0:05:53.836 we have to push versus Gore precedent out there, there's 0:05:53.876 --> 0:05:56.596 plenty of wiggle room for the Supreme Court to deny 0:05:56.636 --> 0:05:58.996 a case like this, as you know in the partisan 0:05:59.076 --> 0:06:03.236 jerrymandering cases. He joined the four more conservative justices to 0:06:03.276 --> 0:06:07.076 say that this was a nonjsticiable political question. One little 0:06:07.116 --> 0:06:11.196 interesting piece of trivia is that John Roberts was second 0:06:11.236 --> 0:06:14.836 in line actually to argue Bush versus Gore itself. He 0:06:14.956 --> 0:06:19.156 was part of the Bush legal team and was sort 0:06:19.156 --> 0:06:21.836 of given a back seat to Ted Olson, who ended 0:06:21.916 --> 0:06:24.036 up arguing it. But as some of the folks in 0:06:24.076 --> 0:06:26.276 the Bush legal team said to me, well he's done 0:06:26.316 --> 0:06:29.676 okay for himself since then, So it's okay when I 0:06:29.716 --> 0:06:33.236 wake up at three in the morning worried about the scenario, 0:06:33.716 --> 0:06:36.636 you know, the Trump versus Biden election becomes the case 0:06:36.676 --> 0:06:38.796 if Trump versus Biden and goes to the Supreme Court, 0:06:39.756 --> 0:06:41.956 I have to say that the thing that lets me 0:06:42.036 --> 0:06:44.916 go back to sleep those nights when I can is 0:06:44.956 --> 0:06:47.716 actually John Roberts, as he has been in the last 0:06:47.756 --> 0:06:50.396 two years. And I actually want to ask you constitutional 0:06:50.516 --> 0:06:53.956 law professor to constutional law professor, or sleep loser to 0:06:53.956 --> 0:06:57.276 sleep loser. Do you think that's crazy? I mean two 0:06:57.356 --> 0:06:59.316 years ago, I would not have said this. I would 0:06:59.356 --> 0:07:01.276 have said, you know, Chief Justice Roberts is a brilliant 0:07:01.316 --> 0:07:05.756 doctrinal lawyer. He aims for conservative outcomes. He's rolled back 0:07:05.836 --> 0:07:08.676 voting rights remarkably in the Voting Rights Act case to 0:07:08.716 --> 0:07:12.196 Shelby against Holder case, which you know is historically bad decision. 0:07:12.236 --> 0:07:14.796 I know you have said that many times more politely 0:07:14.796 --> 0:07:16.556 than I just put it. But then in the last 0:07:16.556 --> 0:07:20.756 two years, his insistence, I think, in reaction to Trump's 0:07:20.756 --> 0:07:23.676 flouting of the rule of law, does make me feel 0:07:23.836 --> 0:07:27.596 like Roberts realizes that if the Supreme Court under him 0:07:27.596 --> 0:07:29.876 were thought to have given an election to Donald Trump, 0:07:30.276 --> 0:07:32.276 he would never live that down, and the Supreme Court 0:07:32.276 --> 0:07:34.996 would never live that down. And so that's what eases 0:07:35.036 --> 0:07:37.676 me back to sleep. I think to myself, it actually 0:07:37.796 --> 0:07:41.676 might be okay. Does that seem crazy to you, doctor, No, 0:07:41.796 --> 0:07:44.996 that doesn't seem crazy. I mean, and I do find 0:07:45.036 --> 0:07:47.916 solace in his influence on the Court and think that 0:07:47.916 --> 0:07:51.516 that is a possible palliative outcome to the partners of 0:07:51.516 --> 0:07:54.236 the strife that would proceed a decision like that. But 0:07:54.516 --> 0:07:57.516 there are situations under which the Supreme Court does not 0:07:57.636 --> 0:08:01.876 become the final arbiter of these controversies. That if President Trump, 0:08:01.916 --> 0:08:05.916 for example, takes advantage of the sort of full constitutional machinery, 0:08:06.596 --> 0:08:09.876 you could see a pathway which ends up going through 0:08:09.876 --> 0:08:13.876 the Pennsylvania legislature, for example, into the House of Representatives, 0:08:13.916 --> 0:08:17.316 and Vice President Pence being in a role to try 0:08:17.356 --> 0:08:19.596 to decide who is going to be the winner of 0:08:19.596 --> 0:08:22.396 the presidential election, which is sketch that out in a 0:08:22.436 --> 0:08:24.076 little bit more detail. You know, the podcast is called 0:08:24.076 --> 0:08:25.796 a deep Background, so we're allowed to geek out. That's 0:08:25.796 --> 0:08:28.396 sort of the whole point of it, all right, Great, So, 0:08:28.916 --> 0:08:32.676 under the machinery of the Twelfth Amendment and the Constitution, 0:08:33.116 --> 0:08:36.396 it is possible that if you have competing slates of 0:08:36.436 --> 0:08:40.836 electors from a state, that it will eventually end up 0:08:41.476 --> 0:08:45.156 in the House of Representatives in a process that is 0:08:45.196 --> 0:08:49.716 presided over by Vice President Pence. And there's a lot 0:08:49.716 --> 0:08:53.636 of ambiguity as to what you do, what the nation 0:08:53.676 --> 0:08:58.196 does when you have a disputed presidential election. And so 0:08:58.556 --> 0:09:01.436 there is a scenario under which Vice President Pence says 0:09:01.436 --> 0:09:04.676 that he has the authority to determine which slate of 0:09:04.716 --> 0:09:08.156 electors is the valid slate of electors, and he may say, 0:09:08.236 --> 0:09:12.156 for example, that Pensylia legislature slate of electors will be 0:09:12.236 --> 0:09:16.476 deemed as the appropriate one. Under that situation, you could 0:09:16.476 --> 0:09:20.076 see Nancy Pelosi shutting down the House of Representatives so 0:09:20.116 --> 0:09:24.076 that it cannot proceed with the counting of the electoral slates, 0:09:24.076 --> 0:09:27.236 and then we have a full on constitutional crisis. The 0:09:27.316 --> 0:09:29.316 trigger to that originally would be a take it that 0:09:29.676 --> 0:09:32.796 in this scenario, you're imagining that the Secretary of State 0:09:32.836 --> 0:09:37.476 of Pennsylvania, who's the ordinary certifying officer, certifies that Biden 0:09:37.556 --> 0:09:41.676 one and so the electors to the Electoral College from 0:09:41.716 --> 0:09:44.436 the state of Pennsylvania are the Democratic ones. And then 0:09:44.516 --> 0:09:48.596 the state legislature enacts a law or a resolution. I guess, 0:09:49.396 --> 0:09:51.276 can they do this with or without the governor? Unclear 0:09:51.316 --> 0:09:54.436 to me, and then sends in a letter to the 0:09:54.476 --> 0:09:57.356 electoral college saying, wrong, this is the set of electors 0:09:57.636 --> 0:10:00.836 the Secretary of State is wrong about whom the State 0:10:00.836 --> 0:10:02.996 of Pennsylvania has chosen. These are the people whom the 0:10:02.996 --> 0:10:05.476 State of Pennsylvania has chosen, and ps these are the 0:10:05.516 --> 0:10:09.916 Republican electors for Donald Trump. That's what's the trigger. That's right. 0:10:09.996 --> 0:10:14.436 The relevant law here is both the Constitution Article two, 0:10:14.476 --> 0:10:18.396 Section one, twelfth Amendment and the Electoral Countact. The Electoral 0:10:18.476 --> 0:10:22.916 Countact actually says that whatever slate is signed on by 0:10:22.916 --> 0:10:25.836 the governor is sort of going to be presumptively seen 0:10:25.836 --> 0:10:29.236 as the right slate. But the Constitution says that each 0:10:29.276 --> 0:10:32.236 state shall, in a manner determined by the legislature thereof 0:10:32.316 --> 0:10:35.476 determined a number of electors. And so you could see 0:10:35.716 --> 0:10:38.036 competing slates of electors going up to this House of 0:10:38.076 --> 0:10:43.236 Representatives without a clear way of resolving that controversy. Leaving 0:10:43.236 --> 0:10:46.236 aside for a moment the possible legal fights, when you 0:10:46.276 --> 0:10:49.436 look at the voting mechanics and you try to figure 0:10:49.476 --> 0:10:52.756 out where the greatest concerns in fact law, and not 0:10:52.796 --> 0:10:55.116 the ones that the candidates might insist exist, but that 0:10:55.276 --> 0:10:59.356 really exist. Where are your greatest points of concern on 0:10:59.796 --> 0:11:02.476 the mechanics side, And then we'll come to the question 0:11:02.516 --> 0:11:07.596 of external interference too. So an election in which half 0:11:07.756 --> 0:11:11.276 the voters cast absentee ballots is a different kind of 0:11:11.316 --> 0:11:15.036 election than when we are accustomed to and absentee ballots 0:11:15.156 --> 0:11:19.836 are right for legal challenge. There are many different ways 0:11:19.876 --> 0:11:22.316 that you can sort of what we say, lose votes 0:11:22.356 --> 0:11:26.876 through the absentee ballot process, whether it's in the application process, 0:11:27.236 --> 0:11:29.756 the mailing of ballots to the voters, the returning from 0:11:29.796 --> 0:11:32.876 the voters to the election authority, and then the counting 0:11:32.996 --> 0:11:36.316 of the votes. At each stage there's the possibility of 0:11:36.316 --> 0:11:40.076 a mishap, and particularly under the sort of pandemic conditions 0:11:40.476 --> 0:11:43.516 and emergency conditions which have led to this transition tabs 0:11:43.516 --> 0:11:45.716 in the balloting, I think there is a lot of 0:11:45.756 --> 0:11:47.996 concern that you could see a lot of lost votes. 0:11:48.436 --> 0:11:50.516 The side that thinks it will gain by more votes 0:11:50.556 --> 0:11:54.476 being counted will always say, well, let's move beyond those 0:11:54.516 --> 0:11:57.196 mishaps and let's try to effectuate the intention of the voter, 0:11:57.316 --> 0:11:59.276 you know, the voter. Try to get it by this state, 0:11:59.356 --> 0:12:00.756 Try to mail it back by this state, Try to 0:12:00.796 --> 0:12:02.796 put the right amount of postage on it. Try to 0:12:03.316 --> 0:12:05.516 check the box next to the person that he or 0:12:05.596 --> 0:12:08.756 she wanted to vote for. The other side will say, no, 0:12:09.316 --> 0:12:11.876 this is a technical matter and election. You have to 0:12:11.916 --> 0:12:14.396 cross your teas, you have to dot your eyes. And 0:12:14.476 --> 0:12:17.276 so this given ballot or other ballots like it should 0:12:17.316 --> 0:12:21.556 be discounted apart from the partisan side. Do you have 0:12:21.596 --> 0:12:25.636 a general philosophical view about this question. Well, I do 0:12:25.796 --> 0:12:29.796 think that the rules need to be clearly specified in advance, 0:12:30.116 --> 0:12:32.516 and if they are specified in advance, that they need 0:12:32.556 --> 0:12:35.316 to be applied that way. Are they are the rules 0:12:35.316 --> 0:12:37.756 well specified in advanced in the fifty states? No, they're not. 0:12:37.956 --> 0:12:39.796 And this is one of the reasons why I'm a 0:12:39.796 --> 0:12:43.676 fan of pre election litigation. Right, we should try to 0:12:43.716 --> 0:12:47.076 get the rules specified as early as possible and as 0:12:47.116 --> 0:12:50.516 clearly as possible. You are right that Democrats are going 0:12:50.516 --> 0:12:53.116 into court now to try to make sure that as 0:12:53.156 --> 0:12:56.476 many ballots will be counted, and that's why we have 0:12:56.516 --> 0:12:59.916 over two hundred and fifty cases that are now being 0:12:59.956 --> 0:13:01.916 followed in the courts. Let me pause you in that 0:13:01.996 --> 0:13:04.436 for a moment. We're not even a month from the 0:13:04.476 --> 0:13:07.436 election and there are already two hundred and fifty cases 0:13:07.476 --> 0:13:11.156 that have been filed. Give us the general profile of 0:13:11.196 --> 0:13:13.356 what a typical one of those cases looks like. If 0:13:13.356 --> 0:13:15.716 there is a typical one, well, there really isn't a 0:13:15.756 --> 0:13:19.836 typical one, because we're seeing different types of cases depending 0:13:19.876 --> 0:13:23.756 on the states. The sort of modal absentee ballot case 0:13:24.116 --> 0:13:27.116 is in the vein that you described before, which is 0:13:27.556 --> 0:13:30.596 that you have Democrats who are going into court, for example, 0:13:31.036 --> 0:13:33.836 to make sure that despite what the law may say, 0:13:34.316 --> 0:13:38.396 that all ballots that are cast and postmarked by say 0:13:38.436 --> 0:13:42.036 election day will be counted. And one of the reasons 0:13:42.156 --> 0:13:44.316 they make this argument is they say, look, you know 0:13:44.396 --> 0:13:47.116 there are problems with the postal service, there are problems 0:13:47.356 --> 0:13:50.156 with respect to the coronavirus epidemic, and so we need 0:13:50.196 --> 0:13:52.836 to make sure that all votes are counted if they 0:13:52.916 --> 0:13:57.276 are cast before polls closed. So that's one set of cases. 0:13:57.556 --> 0:14:00.676 Then you have some cases where, for example, Republicans have 0:14:00.756 --> 0:14:04.196 gone in in New Jersey and in Nevada to try 0:14:04.196 --> 0:14:07.556 to prevent states from moving to all male balloting, saying 0:14:07.556 --> 0:14:10.036 that that's going to lead to fraud. Or they've gone 0:14:10.036 --> 0:14:14.116 into court in Pennsylvania to say that it is illegal 0:14:14.236 --> 0:14:18.156 for the counties to have ballot drop boxes where people 0:14:18.236 --> 0:14:20.836 can drop their ballot instead of putting in the mail. 0:14:20.996 --> 0:14:23.236 And so those are the kind of cases that we're seeing, 0:14:23.236 --> 0:14:25.876 as well as all kinds of other cases that are 0:14:26.236 --> 0:14:30.076 either specific to coronavirus and the pandemic or sort of 0:14:30.156 --> 0:14:33.556 general concerns about absentee balloting. So basically what you're saying 0:14:33.636 --> 0:14:36.156 is we're going to have a heavily litigated election, whether 0:14:36.196 --> 0:14:37.996 we like it or not. The only question will be 0:14:38.316 --> 0:14:40.876 will that litigation be determinative of outcomes? And that will 0:14:40.916 --> 0:14:43.396 depend on how close the votes are in some key states. 0:14:43.956 --> 0:14:48.236 That's right. There's something called the election administrator's prayer, which is, oh, God, 0:14:48.396 --> 0:14:51.236 whatever happens, please don't let it be close. Right, And 0:14:51.276 --> 0:14:53.956 so if there's a close election, you'll end up with 0:14:53.996 --> 0:14:56.356 all kinds of lawsuits that are brought to try to 0:14:56.556 --> 0:14:59.596 work the rest to determine the outcome. If it's not 0:14:59.636 --> 0:15:01.756 a close election, well then maybe we won't have as 0:15:01.836 --> 0:15:14.916 much action in court. We'll be right back in a 0:15:14.956 --> 0:15:19.316 world where absentee ballots constitute a large number of the ballots. 0:15:19.996 --> 0:15:22.156 How will we know whether it was a close election 0:15:22.356 --> 0:15:24.476 or not? I mean, ordinarily we know that absentee bots 0:15:24.476 --> 0:15:26.836 are relatively small numbers, So once we've counted the votes 0:15:26.836 --> 0:15:30.036 on election day, we can sometimes know, well, the margin 0:15:30.076 --> 0:15:32.796 of victory is greater than the number of outstanding absentee ballots. 0:15:33.036 --> 0:15:34.956 That's the definition I guess of an election that isn't 0:15:34.996 --> 0:15:38.556 so close. Literally, will we know that under these circumstances, 0:15:38.556 --> 0:15:40.836 will we know how many absentee ballots are out there. 0:15:40.956 --> 0:15:42.516 We might know how many were sent out, but we 0:15:42.556 --> 0:15:45.756 won't know how many are coming back. That's true. I mean, 0:15:45.916 --> 0:15:49.316 we'll know several things, and we'll know that at different times. Right, 0:15:49.316 --> 0:15:51.396 we will know, as you said, the number of absentee 0:15:51.396 --> 0:15:54.516 ballots that were sent out. We will probably in most states, 0:15:54.516 --> 0:15:56.996 we will know whether they were sent out to Democrats 0:15:57.076 --> 0:15:59.676 or Republicans, so you can sort of forecast what the 0:15:59.756 --> 0:16:03.316 likely partisan split is in the absentee ballots. Most of 0:16:03.356 --> 0:16:06.396 those ballots will be received before election day, so we 0:16:06.436 --> 0:16:09.276 will have a whole swath of ballots that will will 0:16:09.316 --> 0:16:12.196 be in the hands of the election officials, and so 0:16:12.236 --> 0:16:14.396 we will know how many ballots need to be processed, 0:16:14.476 --> 0:16:17.476 will know how many ballots are at that time in dispute. 0:16:17.996 --> 0:16:21.236 But you're right, if it's a Bush versus Gore situation, 0:16:21.476 --> 0:16:24.596 then we will not know whether the outstanding absentee ballots 0:16:24.636 --> 0:16:28.196 will be determinative. And as in Bush versus Gore, if 0:16:28.196 --> 0:16:30.476 it's that close we're talking about like say five hundred votes, 0:16:30.916 --> 0:16:34.476 then every aspect of the absentee ballot process would end 0:16:34.556 --> 0:16:38.076 up being potentially outcome determinative. But I'm at least one 0:16:38.076 --> 0:16:40.636 of those people who thinks that on election night or 0:16:40.676 --> 0:16:43.236 maybe the day after, we will have a very good 0:16:43.276 --> 0:16:46.436 idea as to who won. And that's because we will 0:16:46.476 --> 0:16:50.156 have information from different states that have completed most of 0:16:50.196 --> 0:16:53.436 their absentee balloting, either because they have rules on absentee 0:16:53.436 --> 0:16:56.516 balloting they're more restrictive, or because they were quick. That 0:16:56.516 --> 0:16:59.436 then will give us an indication as to how Trump 0:16:59.436 --> 0:17:01.756 and Biden are doing in the remaining states. And so, 0:17:02.156 --> 0:17:05.036 assuming it isn't a replay from four years ago, that 0:17:05.116 --> 0:17:07.556 it's not that close, then I think we will have 0:17:07.596 --> 0:17:09.476 a good idea on election night or the day after 0:17:09.516 --> 0:17:12.116 us to who won. Speaking of a replay of four 0:17:12.196 --> 0:17:14.316 years ago, one of the many things you spent part 0:17:14.316 --> 0:17:16.356 of the last four years focused on is trying to 0:17:16.396 --> 0:17:20.356 make sense of the foreign interference components in the twenty 0:17:20.356 --> 0:17:22.796 sixteen election. You've been a leader in trying to assess 0:17:22.876 --> 0:17:26.276 what happened, to assess its effects. And if I were 0:17:26.276 --> 0:17:29.356 to summarize your teaching us on this subject is it's complicated. 0:17:30.036 --> 0:17:32.436 So I know that it's complicated, But we have a 0:17:32.436 --> 0:17:35.356 little time here, and I would love to hear from you, 0:17:35.876 --> 0:17:40.516 how you picture the threats from outside interference in this election, 0:17:41.236 --> 0:17:43.476 wherever they may be coming from, and then how serious 0:17:43.476 --> 0:17:46.036 that you take them. So my view about what happened 0:17:46.076 --> 0:17:49.036 four years ago is that the Russian hack and leak 0:17:49.516 --> 0:17:54.156 operation was determinative of the twenty sixteen election. By that, 0:17:54.276 --> 0:17:58.716 I mean that the ability of the Russian intelligence services 0:17:58.876 --> 0:18:02.676 using wiki leagues, with some assistance from people involved in 0:18:02.716 --> 0:18:06.476 the campaign, to get Hillary Clinton's emails and to dump 0:18:06.516 --> 0:18:11.516 them on the public was extremely significant. The social media 0:18:11.756 --> 0:18:16.996 strategy that the Russians pursued, which included the hacken League 0:18:17.116 --> 0:18:22.516 strategy but also involved using Facebook ads, using organic content 0:18:22.596 --> 0:18:26.116 to polarize and persuade people that that it's not clear, 0:18:26.396 --> 0:18:29.596 was as effective as most people think we are going 0:18:29.636 --> 0:18:32.436 to see for an intervention of the latter type in 0:18:32.476 --> 0:18:35.716 this election. We're already seeing it. You've seen Facebook and 0:18:35.756 --> 0:18:40.596 other platforms takedown accounts. But compared to the amount of 0:18:40.596 --> 0:18:45.036 polarization and the amount of disinformation that is organically inside 0:18:45.316 --> 0:18:47.436 the United States right now and that's being produced by 0:18:47.476 --> 0:18:52.756 domestic actors, I actually think the marginal contribution of foreign disinformation, 0:18:52.916 --> 0:18:54.956 it really gets lost in the shuffle. I mean I 0:18:54.996 --> 0:18:58.076 think that if you see, as has been reported that 0:18:58.196 --> 0:19:04.556 Russian accounts are retweeting and amplifying statements, for example, that 0:19:04.836 --> 0:19:07.636 absentee balloting is marred by fraud, I mean you don't 0:19:07.676 --> 0:19:09.956 need the Russians to do that, getting that in the 0:19:10.636 --> 0:19:13.796 domestic political conversation, and so I don't think that they 0:19:13.876 --> 0:19:17.156 will have much of an impact on that. I am 0:19:17.236 --> 0:19:20.996 much more concerned about the sort of cyber infrastructure and 0:19:21.036 --> 0:19:24.436 whether particularly the new types of technology that have been 0:19:24.436 --> 0:19:28.436 bought by jurisdictions and perhaps untested to deal with, say 0:19:28.436 --> 0:19:31.756 the rise in absentee balloting, things that are related to say, 0:19:31.796 --> 0:19:35.996 the voter registration system, the other issues dealing with say 0:19:36.276 --> 0:19:40.956 election poll books right e poll books. Those are right 0:19:41.116 --> 0:19:44.356 for exploitation by a foreign actor, but we haven't seen 0:19:44.396 --> 0:19:48.676 any of that yet. How good are the cybersecurity defenses 0:19:48.956 --> 0:19:52.556 that the States have erected. I know you've looked under 0:19:52.596 --> 0:19:55.716 the hood. What's the quality of the defense relative to 0:19:55.716 --> 0:19:57.556 what the quality of the hacking could because the quality 0:19:57.556 --> 0:19:59.476 of the hacking could be a state of the art. Well, 0:19:59.636 --> 0:20:02.876 I think that the voter registration databases are much more 0:20:02.916 --> 0:20:05.996 secure now than they were four years ago. There are 0:20:06.076 --> 0:20:10.756 other electronic or digital. All aspects to the system, though, 0:20:10.796 --> 0:20:14.116 which are more vulnerable, like anything that involves a vendor, 0:20:14.596 --> 0:20:18.676 such as the software that's involved in sending out mail 0:20:18.716 --> 0:20:22.076 ballots and the like. But the machines themselves, which is 0:20:22.116 --> 0:20:24.276 what most people spend a lot of time thinking about. 0:20:24.396 --> 0:20:27.356 I also don't think are terribly vulnerable. I think that 0:20:27.756 --> 0:20:30.196 we've had this significant move in the last ten years 0:20:30.276 --> 0:20:33.116 toward machines with paper backups, and I think in the 0:20:33.116 --> 0:20:36.516 event of a cyber breakdown or even like a power outage, 0:20:36.556 --> 0:20:38.556 that we should be able to have enough paper ballots 0:20:38.596 --> 0:20:41.316 that we can conduct a RICO. Let's talk a little 0:20:41.356 --> 0:20:44.756 bit about the social media angle and disclosure. For me 0:20:44.836 --> 0:20:48.116 and I think for you too. We've both advised Facebook 0:20:48.156 --> 0:20:50.796 on aspects of free expression, in your case more focused 0:20:50.796 --> 0:20:53.076 on the electoral side, in my case more focused on 0:20:53.076 --> 0:20:57.156 the non election context. How do you see the kind 0:20:57.156 --> 0:21:00.676 of game plan that different social media platforms have begun 0:21:00.796 --> 0:21:03.956 to roll out for how they're going to address potential 0:21:04.316 --> 0:21:07.836 difficulties that arise around the election. Well, in recent weeks 0:21:07.876 --> 0:21:12.796 we've seen more aggressive pronouncements from Facebook and Twitter about 0:21:12.796 --> 0:21:15.156 what they're going to be doing with this election, not 0:21:15.196 --> 0:21:17.556 only do. We have the twenty sixteen election and the 0:21:17.636 --> 0:21:21.156 warning that it has issued to the social media companies, 0:21:21.236 --> 0:21:23.756 and for that matter, all the pressure that has come 0:21:23.876 --> 0:21:28.076 since then. But their experience in dealing with coronavirus related 0:21:28.156 --> 0:21:31.956 disinformation has set some precedents for them as to how 0:21:31.956 --> 0:21:36.196 they will deal with election disinformation, and so, yes, there 0:21:36.516 --> 0:21:39.316 will be sort of new policies and we've seen them 0:21:39.436 --> 0:21:45.316 already being executed to deal with even candidate sponsored disinformation, 0:21:45.356 --> 0:21:49.436 whether it's coming from presidents Twitter account or Facebook account. 0:21:49.876 --> 0:21:53.716 But what has impressed me most actually is the attempt 0:21:53.716 --> 0:21:56.476 to provide good information that a lot of what Facebook 0:21:56.476 --> 0:21:59.196 has been trying to do this time is to develop 0:21:59.236 --> 0:22:03.716 its own source of accurate election information that it will 0:22:03.756 --> 0:22:07.516 then preemptively pump out to the mass public on issues 0:22:07.596 --> 0:22:11.996 such as absent balloting or the security of the election 0:22:12.036 --> 0:22:15.356 infrastructure and the like. And so they are giving election 0:22:15.396 --> 0:22:19.636