Buskin. Good morning, Welcome to Axios today. I'm Nila Boodoo and we've made it to election day. Unless you've been under a rock, you should know. It's Tuesday, November three, and here's how we're going to make you smarter, not just this morning, but for the next twenty four hours. Starting this afternoon, we'll be here with you every few hours for special mini episodes of the podcast answering the
urgent questions about this election. It's going to be a long night, but we will be there with you, so make sure you subscribe to our podcast so you don't miss out. We get things started this morning with why voting is a sacred right, plus how the election could all come down to Pennsylvania. But first, Joe Biden's election plan is today's one big thing. Yesterday we talked about Jonathan swan scoop that President Trump might declare a preemptive
victory even well before all the ballots are counted. Axio says, Margaret Talive and Mike Allen are just a few of the people in the newsroom who are preparing for other scenarios, and they're here with us now. First of the two of you teamed up for a story that's about what lessons Joe Biden has learned from the disastrous election night back in two thousand. To remind everyone, George Bush declared victory early, Al Gore conceded, and then he took back
his concession. Biden obviously does not want to repeat of that. So how is that affecting his plans for tonight? No, Nile, You're exactly right, I think from Joe Biden, if it starts to look like mathematically he's the president elect, I think that you will see him being asserted. I think that you will see him starting to talk to the nation as the president. Alight, now, he's not going to
jump the gun. This is only after it's clear. But I think that you will hear the Biden campaign say we are beginning our transition and start to talk about healing the country. So that's one scenario we might see, Margaret. Another is this idea of a red mirage that we first heard of back in August, where Republicans may look like they have a solid lead on election night before all the votes are counted, but what are the updated
models showing now on that front. This is the notion that we first heard about from a democratic analytics firm that's funded by Mike Bloomberg called Hawkfish, and they have updated that modeling based on some changes. And those changes include the fact that actually more Republicans did end up early voting in some places than they initially expected. They're holding by their prediction that there is going to be a red mirage at the same time saying that that
mirage might look smaller than initially expected. Mike, do you anticipate a blue mirage? Well, now, what we could have that because in some states you will see that mail in and absentee vote coming in first, so that could look a little bit like a blue whereas some states they will instantly have both votes available and some states will be just the in person vote at first. So the Axios advice to you is be patient. This is history,
soak it in. Stick to trustworthy information that is from reliable sources, and those sources are going to be super cautious, super careful. As one editor said to me, there's no point in being the first one to be wrang Margaret, Mike, thank you. You guys are going to be back with us. We're gonna be around all day and night. Thank you. Nila have the best election day. We'll be back in fifteen seconds with how litigation over Pennsylvania's vote could decide
the election. Welcome back to Axios today. We've been talking for months about how both sides are preparing for potential lawsuits and court battles. We've also been talking about how President Trump made a clear victory before all the votes are counted. Noah Feldman is a constitutional law professor at Harvard. He also hosts the Deep Background podcast from our partners at Pushkin Industries. Hey, Noah, thanks for taking the time
with us this morning. Thanks for having me. I wanted to start by asking about something you've been writing, which is that President Trump can't claim reelection victory if the votes haven't been counted without significant help. What did you mean by that. I think what we need to really do is distinguish between stuff that Donald Trump can say and stuff that he can actually do to actually attempt
to hold onto the reins of power. That wouldn't be simply a violation of the unwritten norm that you don't claim to be elected if you're not elected. That would be a violation of some actual laws that say it's not up to the president to decide who wins the presidency. One of the places where this could get messy is in Pennsylvania. So how much of the outcome could hinge
on that state? Right now, it's the consensus of Supreme Court watchers and election watchers that the most probable location of a disastrous Bush figure kind of scenario is Pennsylvania. So for that to happen, first of all, the election has to basically come down to Pennsylvania. Second of all, what would then have to happen is there have to be a lot of ballots still coming in after eight
pm on election day. Now, what's happened in terms of the current state of play can be summarized relatively simply. The state law says you've got to get your ballot in by eight o'clock on election day. The state Supreme Court interpreted the Pennsylvania constitution to say, it's COVID, we're giving a three day extension. The US Supreme Court declined to reverse their decision, but some of the justices basically said to Trump's lawyers, come back to us after the
election is over and try again. And among other things, there's been a request by Trump's lawyers that the Pennsylvania election authorities separate out or segregate out all the ballots that are received after eight pm on election day, so that if the issue goes back to the Supreme Court,
those ballots could then be discounted. Well, we'd be talking about here, would be actually stopping the ballots from ever being counted in the first place, directly blocking people who voted from having their ballots counted, and maybe design their presidency on that basis. How are you feeling about all of this? What are you thinking? My brain is like
a split screen on this. On the one hand, I'm trying to calmly, rationally lay out each of the steps so that I can understand what's going on, which is my first job, and then try to explain it to people, which is my second job, and so I can figure out what I think about it, which is my third job. The other part of my brain is in full on fantasy mode. You know, if only we could get a definitive win, I would prefer it to be for Joe Biden, but even a definitive win for Donald Trump would be
better than a major national crisis over this. Noah Feldman is a constitutional law professor at Harvard and he's also host. As he said of the Deep Background podcast, Hey Noah, thanks for taking the time to speak with us, to appreciate it. Thank you for having me. I think the irony of this election is that while so many people are voting, we're just talking about the result, and it's easy to overlook how important actually voting is and how many Americans didn't have the right to do this just
a few decades ago. The Reverend doctor Otis Moss the Third is the grandson of Otis Moss Senior, who in nineteen sixty four set out to exercise his right to vote. Dressed in his Sunday best, he walked six miles to the closest polling site in Georgia. He was turned away, so he walked miles to the next and was turned away again. When he walked to the third place, he was told they were closed. His grandson thinks about that
story every time he casts a ballot. The first time I had the opportunity to vote was in nineteen eighty eight. Reverend Moss is the pastor of Chicago's Trinity United Church of Christ. My father took me to Mercer Elementary School in Shaker Heights, Ohio. It was a very emotional moment as I realized that my grandfather was spiritually with me. But when I came out of the booth, there was
my father, which is about tears in his eyes. My grandfather's footsteps could be heard, as my father would say, in the voting booth, and it's a story he tells over and over again. It's not as a story of African Americans. This is an American story. Everybody has their right in the band to bring something unique to the table, and we have to fight to ensure that every community, in every voice is heard. Reverend Doctor Otis Moss the Third is the pastor of Chicago's Trinity United Church of Christ.
Thank you for taking the time to speak with us. Thank you so much. Reverend Doctor Otis Moss the Third has turned this into a film called Otis's Dream, and stay tuned to hear the rest of his story and a bonus episode we'll have for you later this week. And don't forget to subscribe to us to get not just that, but all of our special mini episodes. The start this afternoon. I'm Nila Boodoo. Thanks for listening, Stay safe and we'll see you back in just a few hours for axio selection twenty twenty