Recount Efforts Could Impact Inauguration Date (Audio)

are now embroiled in litigation. Meanwhile, a Republican elector from Texas has said that he will not vote for Donald Trump, and some Democratic electors have said that they'd be willing to vote for a different Republican to try to deny Trump the candidacy in conjunction with Republicans who might be willing to abandon Trump. Here to talk about these attempts to prevent a Donald Trump presidency is Ned Foley, a

professor at Ohio State University's more It's College of Law. Ned, Let's there's a lot going on here in all these attempts where they'll make a difference as another story. But what's going on? And let's start with Michigan. What's going on there? There seemed to be two lawsuits running at the same time. Yeah, there are a lot of moving parts. Indeed,

it's difficult for anybody to keep it all straight. But in Michigan, as I understand it, we've got orders from the state court last night and somewhat conflicting order from the federal court. Uh, and they're back in federal court today to try to sort it all out. The state court says, don't do the recount, and the federal court says, yes, you must do the recount. And obviously the election officials they are need to know which order to obey because

they're essentially conflicting orders. What do you really need in order to request a recount or does it depend on state to state? It is completely state to state, and that is one of the things that we're watching here. Pennsylvania, for example, has the most stringent rules in in terms of how it's playing out this year in terms of getting the recount, and and Wisconsin it was the easiest

to get the recount going there. Well ned in Pennsylvania. Um, that's the one of one of the that's the state where the recount hasn't yet started, as opposed to Michigan and and Wisconsin. So the Stein folks filed a lawsuit to try to force that, and then first in state court, then another in federal court. Right, So what's their claim there in order to try to force Pennsylvania in court

to to do a recount. Yeah, that's a really important point because technically they're not even seeking a recount per se in Pennsylvania the way they are in Wisconsin and Michigan. Recounts or administrative processes that the election officials do. But what the Steint campaign filed is something called a judicial contest of an election, which is a It's a different procedure and it requires a higher burden of proof. You have to claim that the election was illegal, uh or

rested on something unlawful about the ballot counting process. And so they tried that in state court and then UH realized they weren't going to be successful there essentially, and so went to federal court in the hopes that the federal court would order something like the an administrative recount that is occurring in Wisconsin, for example, ned the there are more electronic machines in Pennsylvania and making it harder to do a recount if there is an electronic machine

without a paper backup, and they do have um. In the state case filed on Stein's behalf, professor of computer science and engineering at the University of Michigan, j Alex Holderman, said that hackers can cause the machines to provide any result of the attackers choosing, and that the state's responses to cyber security concerns have been patchy and inconsistent in an election where we've seen cyber security problems and hacking,

does that help to make the argument? So one thing is again, the results of this election wouldn't change in less. All three of these states swept from Trump to Clinton, so I think that's important to remember. So even if something went awry only in Pennsylvania, it wouldn't affect the overall outcome. Second, uh, my judgment as an election law person is that Pennsylvania should have different kinds of machines. They should have machines that have paper records, and that

hopefully they'll fix that for the next time. So in in essence, I think the computer scientists are right to replace the machines. But in this year, which used the machines that they had, there is no evidence of actual hacking of the vote tabulating equipment. There certainly was attempts to hack voter registration databases in Illinois and Arizona, for example. And in theory, you could hack a tabulating machine by

a thumb drive, but you'd have to do it physically. Uh, these machines, the tabulating machines are not hooked up to the Internet the way the registration databases are. So as I understand, what the computer scientists are saying is they're identifying a theoretical risk, but no evidence this year that

the risk was anything more than theoretical. Well, now you just said that, you know all you pointed out that all three states would have to flip and that therefore it's unlikely that these efforts are going to change the election result. But you know, the the electoral college vote is not that far away. Litigation tends to take a while. Is it possible that any of these lawsuits or you know, recount procedures could somehow delay the electoral College I don't

think so. I mean, I think that is something to keep one's eye on. But but in both Pennsylvania and in Michigan, as I understand it, there's already been a certification of the election, which means the electors. The Republican electors in those states have the piece of paper that allows them to meet on Monday, December nineteenth and cast

official votes for presidents. So even if there was some of this federal court litigation still hanging over, I think from a constitutional perspective, the required meeting on the nineteenth can take place, and that's what matters for when the electoral votes get sent to Congress in January, and wisconstant.

By all accounts, looks like they're going to wrap up in time at least by the so again, I think there's a theoretical risk that litigation could cause a problem, but at the moment, it doesn't look like that's going to turn into a practical problem. Looking back at the election recounts, as an expert in the area, NED, what's your opinion of the value of them in this election, Well, I think, uh, the the effort to do these recounts is really a substitute for what in the field we

call an audit. Audits are used to verify the accuracy of the result, and they should occur in all elections. Again, you need the paper record to do a gold standard, you know, best practice audit and uh, and and and when the Steined campaign filed for the recounts, it sort of sounded like she wanted an audit more than a recount, meaning she was saying, I'm just doing this to make sure we don't have hacking, to make sure this is the right result. She didn't say, I think the outcome

is in doubt and might change. Recounts are usually used when a candidate thinks that the result was wrong and that the vote needs to be recounted because the outcome might in fact be different. So it's a little bit unusual this year to be seen recounts invoked to really

serve the function of an audit instead. Now it's a little hard to believe that there's no paper back up and that the kind of things they're alleging in Pennsylvania are true, that you know, and that we in fact have issues around the country about how we count votes that are seems so serious. Why is it we've been talking about this for decades? Why is it that it's

so difficult for states to have a verifiable election system? Money? Actually, in one word, because after two thousand, we got rid of those old punch card machines that produced the hanging chats. Congress came up with money and in two thousand and two, and at the time the great idea was actually use

computerized machines. Then we had the two thousand and four election, and there was fears that the DeBolt company in particular had ties to the Republican Party in the Bush campaign, and maybe they'd be going into their own software and trying to, you know, steal an election for their preferred candidate.

Didn't happen, but those were the fears. And so then then but the money had already been spent, and so then the next question as well, we need paper ballots, and some states had the money for it and changed and other states didn't. So again one hopes that that want to stay like Pennsylvania that's been relying on purely computerized machines, that they'll switch once they got some money for a new machine. The Constitution sets up a two

step process for presidential elections. First, there is a state by state vote, each state voting separately to determine who its electors are. Then those electors from each state go and vote for the state's winning candidate in the electoral College. This year, the electoral college is set to meet on December nine, and a majority of the electors are supposed to vote for Donald Trump, but some electors have said that they don't feel bound to vote for him, and

that they don't want to vote for him. We're going to talk about whether there's anything to this with Ned Foley, a professor at Ohio State University's more It's College of Law. Ned, how much freedom do electors have? Well, this is an unknown question. Um. One constitutional argument is that they can do what they want and they were set up to

act that way. But that's not what state laws say. Uh. Many states have laws that require the electors to vote on December nineteenth according to their their pledge, and they've pledged to support their party's nominee and and so if you follow state law, they don't have discretion at all. But the U. S. Constitution is the supreme law of the land, and so if these pledge laws are unconstitutional, Uh,

then then the electors can do what they want. Tell us about the framers original intent of the electoral college, whether it was as a check on the popular vote, as some are saying, Well, that argument can be made. You can certainly cite Alexander Hamilton to that effect is being done. But I also think it's important to remember that the Framers design failed almost immediately. The Framers didn't

think we would have political parties. They thought that the allowtors would exercise this deliberative judgment and picked the best person without regard to party considerations. While right away political parties formed, and we had our first kind of disaster in the election of eighteen hundred where we had a tie vote between Thomas Jefferson and Aaron Burr. There was a constitutional crisis and that led to the Twelfth Amendment.

So the original vision was not well designed. And in fact, James Madison, towards the end of his life in the eighteen twenties looked back and thought that the lowest moment of the Constitutional Convention in seven when when was when they were thinking about the design of the electoral college. They they saved it for the end of the convention,

and they kind of didn't have their best hours. So you have to ask, should we judge the Framers in seventeen eighty seven when they thought of the idea, or in the eighteen twenties when they realized it wasn't such a great idea after all? Well, a good idea or bad. Let's speculate and think about what could have been here,

you know, just as a matter of procedure. If so, let's say, you know, you've got some Democratic electors who have said that they don't want to vote for Hillary Clinton, they want to vote for a Republican alternative to Trump, and join up with some Trump Trump electors who are willing to reject him and come up with a majority, or at least deny him a majority in the In the electoral college, you have at least one Republican from Texas who has now written up ed in the New

York Times saying that he's not going to vote for Trump. Let's say they could cobble together a group to deny him a majority in the electoral College. What happens then, right, Well, first it would take thirty seven Republican electors to defect. The Democratic defections aren't going to affect the Trump number, which stands at three d and six, and it has to get below the magic number of two seventies. So

it's quite speculative to think that that might happen. But if it did happen, the first thing that, uh, we need to realize is that Congress meets on January six to receive the electoral votes from the states, and it matters whether Congress receives one certificate from each state or

competing certificates. Has happened in eighteen seventy six, So if there was defections from thirty seven electors against Trump, Trump would use those state laws, the pledge laws, and say that they avoided their right to be electors because of violating the pledge. They need to be replaced. We're replacing them with people who are going to follow the prep pledge, and so we're gonna send a second certificate that is

true to the pledge. So the Congress would get these competing, conflicting certificates and have to decide which ones to accept, the faithless electors who vote against Trump or the substitute electors who vote for Trump. And then it's a political question what the Republican UH Senate and the Republican House of Representatives decides to do, and they might pick the

Trump UH certificates instead of the anti Trump certificates. About a minute left, ned, what are the chances that we are going to see someday the elimination of the electoral college and president elected by the popular vote. Oh, that's a political guest. I mean, the American people have wanted to eliminate the electoral college for decades. Gallup poll has consistently found that to happen. On the other hand, we've never amended the Constitution to conform to that popular desire.

So I wouldn't hold your breath, but it is what Americans want to do, well, Ned, So it's do you think there's any possibility very quickly that you could get a constitutional amendment to change this? It's that's if the will is there. We have amended the Constitution in the past. Uh, the twentieth Amendment changed the rules for presidential elections. We got term limits after the Roosevelt era. So if if the political will exists, it can happen. It just hasn't

manifested itself up to this point. Yeah. Well, our thanks to Ned Foley of Ohio State Universities more It's College of Law for being here on Bloomberg Law. That's it for this edition of Bloomberg Law. Will be back tomorrow thanks to our technical director Chris Tracomy and our producer David So You're very welcome. Thank you coming up on Bloomberg Radio Bloomberg Markets with Carol Master and Corey Johnson. Carol, what will you be talking about? Lots of things on

this what is it? But the one thing I'm really interested in is how Americans are paying Apple millions to shelter overseas profits. So it's one of the most read stories on the Bloomberg So I can't wait to get to that. Well, that should be very, very interesting. You can find more legal news at Bloomberg Law dot com and Bloomberg BNA dot com, plus an invaluable website at Big Law Business dot com for the legal community. Stay tuned for all of that and more here on Bloomberg Radio.

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