The Election and the Courts

New York University School of Law. He's one of the key figures in the entire country focusing on how legal issues and democracy interact. He's also an election analyst for CNN, and when I was a baby professor at NYU, he was an extraordinary mentor to me. Despite what is an incredibly busy today for Rick, his true busy season, he made time to speak to us, and we're really grateful for that. Rick, thank you so much for joining me.

It's your busy season every four years as you try to explain election law to you're adoring and terrified public. So let's just start with the current state of play as of Wednesday at around twelve thirty pm Eastern Standard time. What litigation options does Donald Trump have after his two thirty am rambling speech where he said he was quote going to the Supreme Court, but didn't exactly explain what

he was going to ask for there. Well, the first question is going to be, of course, you know, how small are the margins in particular states, and then are the potential legal issues you know, within that margin to make it possibly worthwhile. So the one issue that stands out most clearly is that in Pennsylvania, the state court there extended the receipt deadline for absentee ballots until three

days after the election. The Republican Party has been litigating that issue, trying to take it to the Supreme Court already in earlier rounds. The Supreme Court issued a four to four decision declining to stay that order. Then the Republican Party went back to the Supreme Court and asked for an expedited CIRT petition grant so the case could be argued before the elections. Supreme Court said no to that.

But you can bet that this would be issue number one that they would go right back to the Supreme Court on or try to get back to the Supreme Court very fast on if it turns out that Pennsylvania could be decisive and the margin is affected by the number of ballots that coming in this three day window. Now my own guests, by the way, without even knowing what the margin in Pennsylvania is going to be and who's going to win or lose, I'm inclined to think there aren't going to turn out to be that many

ballots to come in in this three day window. So we'll have to see if you know, there's enough volume there to make it worth the worth the candle. You know, after that, it's not clear where there are big batches of votes that might be affected by a legal challenge

of one sort or another. And part of the problem the Trump administration has at this point, the campaign, i should say has, is that once voters have cast ballots, it's going to be a lot harder for courts to say those ballots we decided we're illegal, and therefore we're

going to throw them out. So if you you know, couldn't get courts to intervene x amte, it becomes a much tougher and much less appropriate action for courts if voters have relied on the state of the law, including when the Supreme Court has it's self not intervened in advance when it had the opportunity to do so, you know, I'm sure that they will seek recounts if states are

close enough to warrant it. And then when you as we learned in Florida in two thousand, when you go through recounts and you start looking at each individual ballot, issues can come up. There's an issue that could be the hanging chat of this election if it really came down to a small number of ballots, which is ongoing fights about ballots that are not clearly postmarked by election day even though they arrive within the deadline for that

particular state. And a lot of state courts have sort of created presumptions that if there's not a clear postmark, but it arise within a certain amount of time, that should be treated as having been postmarked by election day. I can see fights going on about that. I think that there could easily be fights were sort of in one like this already in Pennsylvania, where you have state election officials not applying the same policies across the state. So this is a minor problem that's opened up in

Pennsylvania in the last couple of days. So one of the issues is you probably know with absentee ballots, is if you make a mistake on the ballot envelope, do you have a chance to get notified of that mistake and fix it if there's time. And Pennsylvania law does not provide that you have that opportunity. It doesn't say you don't have that opportunity. The state Supreme Court issued an opinion on this. It basically said the same thing. The law doesn't prohibit it prohibit it, but it doesn't

say voters have a right to this. And then kind of late in the day, one county started giving voters this opportunity to fix their defective ballots. Then the Secretary of State came in on Monday and kind of suggested. She didn't say you must give this opportunity across the state or you're prohibited. She sort of left it to the counties. And this is just drives you crazy that

you know, this is the fundamental policy issue. How can it be that the day before the election in a state like Pennsylvania, it doesn't occur to any state policymaker that they have to have a clear policy one way

or the other on this. But don't get me started with Pennsylvania, because they have been in my crosshairs since literally late March, and I actually just really did my best to hold them accountable, let's say, on CNN recently today, because I think the governor and the legislature there have just acted unconscionably and they are the reason they've thrown the country into this period where we have to wait

for Pennsylvania and maybe another day, another two days. You know, if it's a decisive state or the decisive state, this is just a recipe for conflict and endless challenges to legitimacy the election. And there's just simply no reason it had to be this way. This is just a total failure of state policy. Is it a failure, Rick, or was it an intentional policy driven by the state legislature's desire for the votes that were mailed in not to

be counted in advance when there was time to do so. Well, the story in Pennsylvania is that the Republican legislature was willing to allow election officials to start processing three days at advance of election day. They actually passed a bill in the state House to do that. But like everything else in American politics, you know, everybody has to sort of try to figure out what else they can get, and so they attached to that various policies that the

governor Democratic governor didn't want to accept. They were policies about drop boxes and the like, and so election administrators throughout the state, Republican and Democrat, were pleading with the political leaders of the state to give them more time.

I mean, not only do they have this massive volume you maybe close to three million of absentee ballots that come in and just sit there idly until election day, but on election day when they can start processing them, they've got to run the election on top of everything else. So it's just an enormous undertaking. And the governor put on the table a demand that they be given twenty one days in advance to start the processing. So that

was a position way out there. I don't know if that was meant to be a negotiating position, but basically what they needed to do was to find a way to get this issue out from the other issues and just resolve this issue. Give the election officials even three days to get going, and I think it's a plague on both of their houses and really a plague on the country as a result. So our best case scenario then of avoiding a meltdown associated with Pennsylvania is for

Pennsylvania not to be the decisive state. Oh, We've been saying for months and months and months that Pennsylvania is a decisive state. For additional reasons beyond the ones I've described. We're in for a very bad, very bad time. There are many things that are incredibly badly done as a matter of policy. Let's talk in real time about the scenarios where Pennsylvania could maybe appear not to be the decisive state, but where Trump goes to court to try

to make Pennsylvania the decisive state. So one of those examples would be that Biden needs to win Nevada, which is quite close. Is there any legal action available to Trump? There similar question for Georgia, which Biden doesn't need to win, but which Biden has a shot of winning, where at least as we're speaking now, the votes that have been counted still have Trump ahead, but Biden is gaining fast as they count ballots from primarily Democratic districts in and

around Atlanta. Yeah, so there was an effort already. Actually, there were a couple of efforts with respect to Nevada. One was the big effort to try to get the courts to do something they clearly weren't going to do, which is to stop Nevada from having an all vote by mail system. So that failed. That was obviously going

to fail. But more recently, the major county in Nevada, which is Clark County has the largest population share of the state, has allegedly been doing signature verification, which is how they validate absentee ballots within a machine reading device that does the signature matching, compared to other parts of the state that do it differently. And the Republicans claim in Clark County, which is a Democratic county, they're validating signatures at a higher rate than in other parts of

the state. Now, they already tried to take that through the Nevada court system on Monday night, the Nevada courts rejected that, And I think that's probably not likely to be a very strong claim, even if they make some effort to try to repackage it as a federal constitutional claim. I think that I don't know in the canvassing process

in Nevada. I would assume if there are small margins, there will be knife fights about each individual absentee ballot, with the Republicans trying to throw out ballots that they think are more likely to be Democratic votes, and the Democrats trying to protect those votes, and you could sort of imagine that, now, can you actually change the numbers enough to turn the outcome? Seems pretty unlikely? Can I

ask about that? So one of the things that I'm fascinated by, and it comes out very much from your distinctions, is that you can think of there as being kind of wholesale and retail ways for the Trump lawyers to fight the outcome. The wholesale ways are obviously the best. You want to get as block as many votes as possible, and for that you need some argument that a certain

class of votes shouldn't be accepted. And that's a little hard because every state has a basic principle that it ought account the votes that are lawfully cast, and until those are all accounted, it's a little challenging to get whole classes excluded. Then there's retail, which is vote by vote, by painful vote. Now, you mentioned earlier, and I know

this is the case. I remember from bushricorps that once you're in a recount situation, you could have a Republican and a Democratic lawyer sitting there or observer rather sitting there while the ballots are being recounted and arguing about each and every ballot. But ordinary early in most states you don't have that before a recount. Right at the regular count stage, you don't always have a Democrat and a Republican sitting next to every voter whatever. I think

explain more about that. Yeah, So, I mean in what we call the canvassing stage, where the state is actually going through the process of officially determining what the vote was, looking at the ballot, seeing if there are any mistakes in the machine counts, things like that, before they officially certify a winner. In many states you do have observers

from both parties. Actually, this is an issue with COVID right now, and there have been actually some complaints, indeed, some lawsuits that the Republicans have filed in certain states saying you're not letting our observers get close enough to this process physically, close enough, because it should be able to see, because that's kind of what they're that's why they want to be there, and and and you know, there's a lot of good that comes from these pole

watch processes. A lot of people have a very negative image of them because they imagine this is what leads to violent confrontations in the light. But assuming your poll watchers are well trained as they typically are, and they're election officials, that will keep them in line. If they're not, you know, it's validating of the process that the two sides. This is not something that happens in the dark. In fact, it's amazing. Right now, this is the first time I'm

aware of this happening. But today I was watching online as anyone can, the signature verification process going on in various states, and it's you know, about as boring the thing as you'd want to watch. I mean, it's a guy sitting and they're socially distanced in these election ministrators offices. It's a guy sitting in front of his computer and he has a ballot and he has a signature up on the ballot, and he's like, you know, looking and comparing.

And they're trained, or they're supposed to be trained. They know, you know, what to look for and all of that, and and very few of these ballots overall end up getting rejected for this reason. But um, were you watching this on a live stream. Where were you watching? I was watching it on a live stream. Yeah, I mean watching paint dry is probably a little more dynamic, but uh, but but it's an amazing thing that you know, obviously create It creates a sense of you know, integrity to

trans literal transparency. You can watch it happening. I mean they have webcams in there, you know. And uh, I mean the frustration is really they have to be that distant. They can't like speed this process up, you know, by putting people a little closer together in there. But anyway, it's it's fascinating. It's not just one state. I noticed this in several states. But it's now possible to do this. So um, now you have to have very small margins.

You know, in Florida in two thousand, we were in the five hundred and thirty five vote kind of territory. Um uh. And so you know, if the margin is that small, then y, you know, winning enough of these battles could make a difference. But if you're several thousand votes, I mean, it might sound very tight, but the idea that you're going to change a couple of thousand votes

is h that's a much bigger, much bigger hurdle. Does the Trump legal team seem to you to be well organized with respect to that kind of retail level, because at the wholesale level, you know, it's sort of interesting they despite the fact that the President, you know, said in his speech we're going to the Supreme Court that was now almost twelve hours ago, and so far no filing yet. I mean, they may have to file something

at some point just to satisfy their client. So I'm wondering how how well prepared is the Bush is sorry to speak in an obvious way, but in any event, no, So, Look, that's actually an interesting question because I'm sure that many of your listeners heard all sorts of things from the Trump campaign in advance of the election. We're going to have fifty thousand pole watchers. We're going to have an

army of pole watchers. I actually did say to people who were incredibly anxious about this, including on task force task forces I was on, who wanted us to write things about this, I said, Look, in every election I've been involved in, there's a lot of talk about that in advance. I've never seen it material lot materialize. I have no idea what will happen this year. But what did happen this year is that they didn't have that. That just didn't happen. So what's the thing that you

expect that you expected not to materialize. I expected that there would not be lots and lots of these challenges from Trump lawyers or Trumps, you know, volunteers at the polling places or during the counting of these absentee ballots. And indeed, thus far your expectation has been born out. They're not doing it so far, yes, And I don't know if it's a matter of disorganization. I don't know if it was a matter of this was just bluster,

and you know, no one was really trying to implement it. Seriously, it's a lot harder to implement these things than kind of people realize. You've got to get a very group people. You know, you have to be well be able to run a well organized organization. By the way, I should say, the Biden campaign, my understanding, did have fifty thousand poll

watchers at various places in the country. And you know, sometimes this language is this kind of talk in advance I think is sometimes designed to rally your own troops, but also maybe to discourage voters from voting from the on the other side because they get fearful there's going to be this army of poll watchers, this gauntlet they're going to have to run. But we saw virtually none of that. And the other thing that helped on that was all of the early voting, and that's both in

person and returning mail ballots early. So states like Florida because they have good policies on this, unlike Pennsylvania. You know, they were processing their absentee ballots starting three weeks in advance of the election. If there were going to be challenges to those ballots, that was the time for those challenges to take place, and so they weren't even taking

place before. I don't know how focused the Trump team was on pre election day challenges or whether they focused all their efforts on post election day, but but no, by and large, you know, we actually had a very smooth election. They're always glitches, you know, they're all but but I think and we saw very little presence of this. We'll be back in a moment. I want to change our chronological focus now to what you might think of as the possibility of stage two legitimation. So we're still

in stage one. But let's imagine for the sake of argument, that, say, Philip, that Pennsylvania does not turn out to be determinative, and over the next day or two the networks call enough states for Biden to determine a Biden victory, and Trump

does not concede. It seems very unlikely that he would concede and decides in what you might call stage two de legitimation to emphasize an argument that he already made in his first speech, namely, if we lost that means the election was a hoax, and without any very concrete evidence, you know, maybe he can come up with a few cases here or there to say, I think that, you know, the fact there were districts that heavily voted for Joe Biden or what have you, is just a systemic proof

that I've had the election stolen from me. Now, he

could do that sort of one of two ways. He could just keep on saying that for the next month or so, or he could say that in conjunction with an actual effort to try to get some state legislatures in states that are where the vote has apparently gone for Biden to after the fact say they're changing the law in their state, and they the state legislatures are now going to choose the electors rather than relying on the vote because I'll say the vote was tainted and implausible.

I'm wondering whether you think there is a real risk first of all, of Trump's step trying out these kinds of stage tug of the generations, and second whether if he does try these things, if there's any chance of any kind of any state legislature actually listening. So this, you know, we certainly thought about these scenarios, wrote about these scenarios in advance, so none of this is surprising

to come up in discussion. I think the chances of that happening have already gotten smaller than they were before the election, because I think, in part, it would take a real sense of chaos about the process in one or more states, and at least as of now, we don't have that sense. I mean, it could have been a lot of chaos on election day. Um, it could have been much worse. It could have started the night.

I mean, I think many of us thought that that that the president would start saying these things, you know, at eight or nine or ten pm last night. He didn't took him a little bit longer. And so I think for that move to have any kind of traction, UH, there's going to have to be you know, some kind of of basis. I mean, not necessarily a fully realistic basis, but you know, something to attach it to. Um. And then you're gonna have to have you know, state legislatures

who would go against their constituents in the state. And uh, you know how many states now would this play have to be made in uh to be effective? Um. You know, I think if we come down to the election turning on one state, it becomes more of a possibility. But if you're talking about three or four states, you know, it's really hard to imagine three or four state legislatures are going to kind of agree to do this in the face of what the reaction to that would be.

My view is that it won't happen because even died in the will, Republicans would think it looked too much like a coup data to replace their own constituents votes with their own with their votes after the votes had already been cast. You know, as you say, if there were true chaos somewhere, maybe you could conceive of it.

But there hasn't been that kind of cast that suggests that the relatively smooth functioning of the election thus far is actually a pretty important factor in pushing us towards an outcome of Biden actually being not only winning, but being treated as the winner. Yeah, I think that's that. That's right now. You know, of course, something could blow up in Pennsylvania, and if Pennsylvania turns out to be decisive,

you know, the things might change. But given where we are right now, I think the risk has been diminished, I'll put it that way. I also think they've they've

played most of their stronger potential legal cards. One of the advantages of this massive volume of litigation we had in advance of the election, which wasn't necessarily good in various ways, but one of the things it did is it brought a lot of clarity to a lot of the issues that could have been fought over, and instead of fighting about them after the election, you know, we

got a fair amount of that cleared up. And in fact, you know, on this ballot extension deadline issue, for example, the substantial majority of states ended up having their traditional you have to get the ballot back by election night deadline so it's only a few states where that issue even got opened up. One is in North Carolina, which if Trump wins, it's unlikely that anyone's going to care

about it there. Another is in Minnesota, which Biden has easily won before those ballots to come in after election day or count it, so it seems like a non issue there. So, you know, Pennsylvania's is still the one place that it could be an issue. But as I say, I think Democrats by election day had returned eighty four

percent of the absentee ballots that they had requested. So the media often looks at these things, oh my gosh, there's all these outstanding absentee ballots to come in, but they have no baseline about what a normal return rate is.

So normally about eighty percent of absentee ballots that I requested get voted, and the rest don't come back in people decide to show up in vote in person, they get nervous about whether the ballot's going to come back on time, they forget they requested the apps T ballot. So so even before election day, we had a very very high return rate, at least compared to you know, what I think of as the baseline of eighty percent, and of course put Pennsylvania has been the focus of

both campaigns. It's been tremendous mobilizing voter field operation work, getting people to get their ballots back early. So I just sort of suspect that what people think in terms of how many are going to come back, by the way, that's something I'm going to look at in terms of

the debates about these Supreme Court decisions. When the Supreme Court, in that recent five to three decision cut off Wisconsin from having the extended deadlines, you know, you had lower court judges writing dissenting writing pitons saying they're gonna be one hundred thousand votes that are going to be thrown out. I'm also very skeptical that we're going to be talking about anything like that magnitude. I want to kind of

keep track see what we learn after the fact. Rick, we've been talking, and you've been talking extremely valuably and helpfully about the nitty gritty, you know, we've we've been deep in it for the conversation, and before I let you go, I want to talk a little bit about the other aspect of your deep interest in election law, which is the bigger, more profound constitutional structures that are in play here. So let's just imagine for the sake

of argument. Let's start with the scenario where Biden wins the election and is eventually recognized as the winner of the election, maybe not by Donald Trump, but by enough people that he can be sworn in and actually take office in the Secret Service, smilingly escorse Donald Trump from the building. In that scenario, we will have avoided the scene of an electoral college that, twice in a row gives a victory to a president who didn't win the

popular vote. Is that going to lead to some sort of dying down of the growing rather intensive criticism of the electoral college as unjust that we've seen an undemocratic that we've seen building. Do you think that it will just put it out of our heads for the next four years, especially given the fact that it's pretty challenging to change it. Or do you think we'll get the opposite of more of a focus of people saying, look how close this was this time, This is just not okay.

We just can't take this risk in the future, and we have to double down on our attempt to find some structural solution. So the issue I would link that too, because they are intimately linked together, is what happens with the Senate, and then what's the relationship between if there is a Biden presidency and the Senate And also sort of nationwide what percentage of votes for the Senate seats

are for Democratic candidates versus Republican ones. And there are so many things I'd like to fix about our election system. This is actually at a very kind of big level, where of course it's harder to make the changes. But I think that, you know, there is this growing sense for sure that that their political minorities have more and more ability to come up change between the Senate, the electoral College, even you know, Jerrymander districts um and and

there's a lot more awareness of these issues. I used to say when I taught that I'm surprised there's not much debate about the Senate and how antidemocratic the Senate in the US is m because the population disparities had just become so enormous, But that has become a subject of public debate in recent years. So, uh, depending on what Biden as president, if president gets done or gets blocked from doing by a Senate depending on how many

Senators there are. If Senate reform, which would be I think the more immediate focal point gets on the agenda, I think elector while college reform would be connected to that debate. But is there any way to get to Senate reform? I mean there's I guess there's the old fashioned as in pre Civil war, let's add more states, which is not a solution to the problem. It's just a way for the Democrats to try to gain it an advantage. But they can obviously only do that if

they actually hold a majority in the Senate. So it's not a form of reform that's available unless they've already to some extent one it. But beyond that, I mean, when the small states stage their walkout in seventeen eighty seven, they were made sure to permanently, you know, institutionalize their gains by making it impossible under the Constitution to take away your Senate votes without the consent of the state. So is there a way is there a way to

even reform the Senate? So one of the perverse consequences of having the longest running continuous constitutional democracy is institutions are built, they're anchored into the Constitution at a certain moment in time. Obviously things change dramatically and unanticipated ways. Those institutions no longer function the way they were imagined to function, and yet they become very very difficult to change.

And the Senate, you know, is certainly an example. And yes, of course you're right that the Democrats need unified control of all three parts of the national political process, the House, the Senate, in the White House to be able to

make those changes. I assume that you know, there are ways of keeping a Senate like structure that in fact, it could be exactly the same structure, but we could change the proportions of you know, how many senators a state got per one million number of people or something like that, so that you know, you could change the formula, but it had to be a constitutional amendment that so that the disproportion between California and Wyoming is not seventy

something to one like it is today. But that's also assuming Rick, that the that the constitutional provision is amendable, right, I mean, this is an arcade debate among constitutional law professors, but it is one of the provisions at the Constitution that has written doesn't sound like it's susceptible to Article five amendment because it says that in the Constitution that you can't take away a state's equal representation without its consent, and that doesn't say unless you do it by a

constitutional amendment. So isn't there a genuine question about whether even an amendment what could do that? Well, the way I put the question back to you is if there were actually a large enough political movement to amend the Constitution in that way, do you think a court or a Supreme Court would say, well, sorry, that was an unconstitutional constitutional amendment and therefore, you know, we're pulling the

rug out of this. What would have to be a massive popular movement, you know, to kind of get us to this point, or would the court say it's a political question, etcetera. Yeah, now I hear that argument. I guess my one response is to get two thirds of the members of Congress, including two thirds of the Senators and three quarters of the state legislatures, to agree to reform the Senate is to my mind, not within the

bounds of realistic possibility. I mean, I think the same incentives would exist now as existed at the original convention in Philadelphia, whereby the smaller states just basically said, you know, we don't care if this is unfair, We're just not backing down. And if you don't like it, like find no constitution, and I think so, I actually, I actually don't see Senate reform. I wish I could find a

way towards Senate reform. In the case of the electoral college, which was the thing I was hoping to ask you about, there is at least this idea that if enough states agreed to engage in an interstate pact according to which they would all cast their electoral votes according to a majoritarian outcome, that maybe, maybe maybe you could reach some tipping point where without amending the Constitution, we actually got rid of the electoral college. There are definitely ways of

fixing the electoral college without a constitutional amendment. That's true. I mean, there are a couple of ways to think about. One is the one you mentioned, the National Popular Vote Compact, where a number of states sign up and say we're committed in advance to giving our electors to whoever wins the national popular vote, and then if two seventy or more states two hundred and seventy electoral votes are more agreed to that than the popular vote winner would become

the winner. I've always been nervous about that solution because my concern is that at the only moment in which the compact would actually make a difference, which would be when a state would have to support a president that its people voted against, would the compact actually hold or would the state legislature withdraw from the compact at that point. So,

I mean, I worry about that solution. The other solution is if you could get all the states to agree to award their electors, let's say, proportionately to the vote in the state, so that if Canada got, you know, fifty five percent of the vote, they'd get fifty five percent of the electors or whatever the you know integer was that was instead of one hundred percent of the electors,

and that there's no constitutional barrier to doing that. The only problem with that is you have to get all the states to agree to do it, because no state is going to be, you know, go out there and do it by itself and deprive itself of power in the electoral college process unless the other states are willing to do it as well. It's a little bit like I don't know if this is too our kine for you,

but for the conversation at this point. But you know, it's a little bit like the dynamic we had that led us to use single member districts to elect members of Congress, which is the Constitution allows states to decide how to elect members of Congress. At the beginning, a

bunch of states elected them at large. You know, so say majority statewide controlled all the members of Congress in the big states which had more factions, infinite diverse interests that that was alienating to significant parts of the population. Those states decide, okay, let's have an individual districts to elect members of Congress. And then Pennsylvania discovered it lost power to a small state like Rhode Island because you're

divided now in your delegation. You know, you have maybe half of the delegates our federalist and half our anti federalist, and they sort of neutralize each other in the Pennsylvania delegation. So what happened, So finally Congress in the eighteen forties there was this collective action solution mechanism available. Congress passed a law forcing all states to elect members of Congress from single member districts and that's what we've had ever since.

So what you need for the electoral college would be something like that, you know, Congress, an external body that can say, okay, we will give you the rule that you all agree you would be better off under, but you can't actually make an agreement sort of one by one to adopt. The problem is it's not clear if Congress has the power to do that and to tell states their electors shall be awarded on a proportional basis anyway that may be more than you wanted on that,

but well we call it. We call it deep background for a reason. We're willing to We're willing going to go into the deep deep questions too. Last question for you, Rick, before I let you go with lots of gratitude, what am I failing to ask you that I should be asking you? What is salient in your mind that no one asked you when you were on TV, or that I haven't asked you in this conversation that you would like to leave listeners with. And look, I think we

are putting ourselves at enormous risk. I don't know if we can go through a process like this again with our election system. We have a political culture now that makes a system that is so screwed up potentially you know, dynamite in a really disturbing way for the for the country. And it's if we dodge that situation this time, we will have gotten lucky. Um, we have huge problems we have to try to figure out a way to fix. To come up with election processes and systems that are

broadly accepted, we'll be kind of stable. We won't be fighting about them constantly. We will run elections within that framework and accept the framework is a legitimate framework, because I don't know how many elections like this we can go through without putting, you know, putting the system really in jeopardy. I hear you, and I think you're absolutely

right that we're playing with fire. And if we are lucky enough to get out of this election without a huge legal fight or without a deep crisis of legitimacy, you know, it's it's it's just it's just the luck

of the draw. I mean, we've already had this extraordinary thing in the middle of the night or the early morning hours of the President of the United States, by the way, in the East room of the White House, not the place where we're expecting there to be a political rally announcing that he had already won the election when he plainly had not won the election, and we're all sort of we're so desensitized to we accepted. We say, oh, well, of course the president did that. We knew he was

going to do that. And you know, we point out, as you and I have both pointed out, that he can say that, we can't stop him from saying it, but doing it as another matter. But we're really we are in a high risk situation here, and it seems to me that we probably do need some fundamental reform or we're going to run into a problem that's going to make bush Vigor look like like it was nothing. Yeah, I've said, if we had a bush Vigor situation today, it would that two thousand would look like a walk

in the park compared to what that would produce today. Rick, thank you so much for your time on your busiest day of the year, and thank you for what you do the other three hundred and sixty four and a quarter days explaining many aspect of constitutional electoral alarm. Really grateful to you. It's fun to have a good excuse

to chat with you for a while. No Professor Rick Pildus is the go to election law expert, and we're really lucky that he was able to make time to talk about the current election and the options with us. Rick says that if this comes down to Pennsylvania, this is going to be a major, major mass. At the same time, Rick has some pieces of mild optimism for us. For one thing, election day ran, in his view, relatively smoothly.

This smoothness takes away one of the excuses that might have been available to a Republican state legislature to deprive the voters of their choice of Joe Biden and instead to substitute a slate of Trump electors, invoking the constitutional right potentially to do so. Chaos would have been an invitation for the Trump administration to urge state legislatures to do this. Relative smoothness, according to Rick, makes that less likely.

Litigation is already going on, but Rick says it's relatively difficult at this moment for the Trump administration to come up with a systematic legal argument for disenfranchising large numbers of voters or for blocking the count of votes on a wholesale level. That is, by suggesting that as a principal matter, a whole tranche of voters should be prohibited from having their votes counted. What the Trump administration can do, Rick points out, is to continue at the retail level

challenging individual ballots. But doing that knocks off a vote here, a vote there, perhaps even a few hundred votes, and will not suffice for Trump to manage to win an election that he would not otherwise win, unless we're in Florida in two thousand zone, where an entire our election is going to be decided not by ten or twenty thousand votes, but by just a few hundred votes. At the deeper level of the structures of our democracy, Rick

Piltus's analysis is considerably darker. He points out that we probably can't afford to have another contested election of this kind, and he points out that the basic structure of the electoral college is extremely difficult to change or amend and remains a major challenge to majoritarian democratic norms in our country. So is the United States Senate, in which nearly half of the senators can be elected by perhaps eighteen or

nineteen percent of the population. These are long run, deep structural problems with our constitutional democracy, and as Rick points out, we need to think seriously about how to address them, lest the basic legitimacy of our democracy be substantially undercut. My takeaway from listening to Rick is that it is possible that in the next few days we will emerge relatively unscathed from this very close, nailbiter election, with our

institutions fully functioning. It is also still possible that it will come down to Pennsylvania and we will have an all out war, which Rick says would make the two thousand Bushbegor fight seem like a small matter in comparison

at the bigger picture level. Though, even if we manage to survive this electoral cycle, we need to think seriously about the institutional fixes and changes that might be available to us so as to shore up the constitutional democracy that we all, in principle say we're committed to preserving. Until the next time I speak to you, be careful, be safe, and be well. Deep background is brought to

you by Pushkin Industries. Our producer is Lydia Gencott, our engineer is Martin Gonzales, and our shorerunner is so K Crane mckibbon. Theme music by Luis Guerra at Pushkin. Thanks to Mia Lobell, Julia Barton, Heather Fain, Carlie mcliori, Maggie Taylor, Eric Sandler, and Jacob Weisberg. You can find me on Twitter at Noah R. Feldman. I also write a column for Bloomberg Opinion, which you could find at bloomberg dot

com slash Feldman. To discover Bloomberg's original slate of podcasts, go to Bloomberg dot com slash podcasts, and if you liked what you've heard today, please write a review or tell a friend. This is deep background