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Safeguarding The Electoral Vote47:24
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A man fills in his ballot for the Democratic presidential primary elections at the Sleepy Hollow Elementary School polling location on Super Tuesday, March 3, 2020 in Arlington, Virginia. (Samuel Corum/Getty Images)
A man fills in his ballot for the Democratic presidential primary elections at the Sleepy Hollow Elementary School polling location on Super Tuesday, March 3, 2020 in Arlington, Virginia. (Samuel Corum/Getty Images)

Worried about voting integrity — or what happens after your ballot is cast? We discuss what we know about the integrity of the votes cast by America's 538 electors.  

Guests

Barton Gellman, staff writer at The Atlantic. Senior fellow at the Century Foundation, a progressive think tank. Author of “Dark Mirror” and “Angler.” (@bartongellman)

Jason Harrow, executive director and chief counsel of Equal Citizens, a nonprofit.  Publisher of Take Care, a legal blog. Executive producer and co-host of Take Care’s Versus Trump podcast.

Bertrall Ross, chancellor’s professor of law at the University of California, Berkeley School of Law. (@Bertrall_Ross)

Interview Highlights

What is the interregnum?

Barton Gellman: “The interregnum is the transition time between Election Day and the swearing in of the new president 79 days later. And there are a number of intermediate steps that normally don't count for much. They're mostly pro forma. But this year may not be.”

What are the dates between November 3rd and January 20th that people ought to be paying close attention to?

Barton Gellman: “We're accustomed to getting a count, a result on election night or maybe the earlier hours of the next day. That is not the formal count. Each precinct will report up through counties that there are something like 10,500 local jurisdictions that actually administer elections. They're not a federal job. And then these feed in to a certified count by the state sooner or later, well after Election Day.

"Then on December 8th is an obscure deadline known as the Safe Harbor date, by which each state must choose a final slate of electors — the actual human beings who cast the electoral votes, which actually elect a president. Then, December 14th, the Electoral College meets in its separate delegations in the 50 states. Then on January 6th, not until January 6th, is the president selected. The actual formal count of electoral votes is done in Congress in a joint session presided over by the vice president of the United States. And any of these milestones could be occasions of conflict this year.”

Is it possible that we may have a situation come December 8th and December 14th where the electors who are going to formally make up the Electoral College are not actually representing the popular vote in their states?

Barton Gellman: “We don't have to imagine it. In my story in The Atlantic, I describe conversations with national and state representatives of the Trump campaign who are themselves imagining it. Who are making contingency plans in which they would consider going to the legislatures, Republican legislatures in important swing states where the elections are close and saying, ‘You ought to exercise your power to appoint electors.’ And let's just clarify this. It says in the Constitution, Article 2, that electors 'shall be chosen in the several states, by such means as the legislature shall decide.'

"And it used to be the case that legislatures routinely appointed the electors. There was no popular vote that meant anything. We've been accustomed for more than a century now to voting for our president. But there's nothing in the Constitution that says we have to do it that way. Now, it may feel a bit like a coup to set aside the popular vote. But the Republican legislators who might do this, if they did it, would not say they were disregarding the popular vote. They would say that the popular vote had been poisoned by fraud, and vote rigging and couldn't be determined.”

How does the Trump campaign see this question of electors?

Barton Gellman: “I was surprised, frankly, that when I had sources telling me that the Trump campaign was considering a strategy in which they would ask state legislators to bypass the popular vote, I was surprised that the Trump campaign did not deny that. And they did not deny that. They simply attacked the whole piece and said that this was another case of fake media vilifying Trump, as you say, for looking for a free and fair election. They did not respond to any specific questions in which I gave them an opportunity to say, No, of course, we would not try to set aside the popular vote.”

On confidence that ballots will be counted

Jason Harrow: “I am also pretty confident that most elections just are not that close. And what that means is that there's much less wiggle room here and room to maneuver for the various campaigns, whether it's Trump or Biden, trying to challenge results. There's been some remarkable reports put out. There's a group called ‘Fair Vote’ that does terrific work and research on this. They looked at recounts in statewide elections since 2000. About 1 in 200 elections statewide go to recounts.

"And when they do go to recounts, the average number of votes changed is 282 votes. So these have to be extremely close elections. We're talking Florida in 2000. Which since you went back to the history, the vault of the 2000 election, you may remember the final tally was 537 votes separated Bush and Gore in Florida in 2000. And that state was determinative of the outcome. If something like that happens, we're in for the nightmare scenario. Agree with you. Agree with Bart. That's going to be really bad and potentially even more destructive and polarizing than 2000."

Bertrall Ross: “I want to feel a sense of calm and confidence, but I do not. I still have a bit of worry. I agree with Jason that it's important not to be too alarmist, but it's also important not to be complacent. We don't want to talk ourselves into a constitutional crisis involving selection, but we also don't want to be entirely unprepared. And I guess my worry is that Jason noted that, you know, good faith in the system would have to break down everywhere. And I don't think it has to break down everywhere. I just think it needs to break down somewhere. And to provide a basis for a claim that there is something amiss with this particular election. And we have a Republican candidate, Donald Trump, who's been notorious about breaking norms. And a party that has been unusually loyal to him from the federal level down to the state and down to the local level.

“And we live in an environment in which we have a very difficult time agreeing upon any set of facts and little trust in the system. And so, given that context, it's ripe for some sort of crisis that could occur. But I agree … it has to be a very close election for this crisis to arise. And the scenario is much more likely in which Biden wins by a clear victory or Trump wins the election. In either scenario, I don't think you have this issue of a crisis. But I do worry that it doesn't have to be as close as 2000 for a crisis to occur. And given that these absentee ballots are coming in at unprecedented levels, states are pretty unprepared for the absentee ballot count. It could lead to a situation in which there is no determination of the victor for several days after the election, and it gives opportunity to sow more distrust in a system that could contribute to a crisis that occurs afterwards.”

On what to look for on Election Day 

Jason Harrow: "The first thing for me to look for will be what Fox News is saying candidly, because the media is an important part of this. I think Bart has talked about this in his article, too. And it's important to remember that the message has to get disseminated somehow."

Bertrall Ross: "I'm looking to see whether Pennsylvania and Wisconsin or Michigan will turn into the pivotal states and seeing how they're processing ballots. And if it's going slowly and under disputes, I'm seeing problems ahead."

From The Reading List

The Atlantic: "The Election That Could Break America" — "There is a cohort of close observers of our presidential elections, scholars and lawyers and political strategists, who find themselves in the uneasy position of intelligence analysts in the months before 9/11."

NPR: "Supreme Court Rules State 'Faithless Elector' Laws Constitutional" — "The U.S. Supreme Court has unanimously upheld laws across the country that remove or punish rogue Electoral College delegates who refuse to cast their votes for the presidential candidate they were pledged to support."

Take Care Blog: "Can We — And The Press — Maybe Take A Breath On The Whole Stolen Election Thing?" — "It seems like a stolen election is all anyone can talk about these days. Will Trump have state legislatures appoint electors despite losing the vote, as the blockbuster Atlantic article mentioned as a real possibility?"

The Atlantic: "The Mess Congress Could Make" — "If it’s close, don’t forget Congress. In the current anxiety over the possibility of a disputed election, attention has focused most on the battle that could rage in America’s courts to count the votes."

Boston Herald: "More than 10% of Americans ‘not prepared’ to accept Trump, Biden election results: FPU-Herald poll" — "A new Franklin Pierce University-Boston Herald poll shows double-digit percentages of Americans say they’re 'not prepared' to accept the outcome of either President Trump or former Vice President Joe Biden winning the election."

This program aired on October 20, 2020.

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