The 2020 election. And everybodys mind, i am looking at you on the screen. Will the election be over at 12 00 so i can go to sleep at 12 00 knowing who the next president is . You are on news. I apologize. The potential for long delays you can be assured sometime on election night, that certainty will grow, it goes on for months and months, the oval office, beginning late january this coming year, dont think that is going to be the case. You disagree with that. I dont disagree. I dont think you will get your midnight wish because of the volume of absentee ballots and the fact that we need a few states in the mountain and pacific time zones, but i do think there will be a clear idea of a winner by friday morning. Last time in the year 2000, the famous bush versus gore decision and case. It had usually been the case state courts were the ones that result election issues. In that situation federal courts got involved. Would you expect if there were any disputes the bush versus gore precedent would be such that bush versus gore and federal courts would really move would state courts go back to being the leading decisionmaker in this . First of all it is rare you get into a situation of birth both bush versus gore and outcome determined of state had such a narrow margin. Most of the activity you are likely to see post election will be conducted under state law and state proceedings. The way the system works, begins in precincts and builds up counties and goes to the state level. Each state has its own set of laws, National Election laws governing the time, place and manner of elections. It goes to states, their courts, except in the most extreme conditions. You agree with that . I would add the bush versus gore decision was a controversial one. It raised significant institutional issues with the court. The court will be reluctant particularly in the case one of the candidates has a substantial popular vote margin for interceding in the election or the controversy of the last one. If jim baker had been the lawyer for our gore what al gore have become the president of the United States in the year 2000 . Would not be popular then. I have Great Respect did have Great Respect and continue to for jim baker and his career. Lets not forget this part. The Gore Campaign has litigated the county rules and the Supreme Court decision on those county rules, to have a recount that would likely have been successful in the state of florida. This case of bush versus gore went against gore by one vote on the Supreme Court. In compliance of jim baker, the bush benefit, from unforeseen intervention by the United States. A lot of Young Lawyers, ted cruz was one of them, john roberts was a, Justice Brett kavanaugh was there, Amy Coney Barrett was there. Of all those lawyers who was smartest . Every time i will answer that jim baker. That is politically correct. They would all agree. Lets suppose both of you were wrong, suppose it doesnt get resolved in the courts but in congress. Can you go through how this gets resolved in the congress, congress has to come up with the decision, what the constitution and surrounding law say . This will arise if there cant be a clear winner in the Electoral College, then we go to the electoral count act 1887 and i believe there will be two sensitive sides out of that act. It is fairly indecipherable and open to many interpretations so i think you will see novel litigation should we go to that state, it has never been litigated so was i am about to say, a caveat that comes about but basically the house and senate would be called upon to play various, and probably competing slates of electors that would emerge from the states, that gets into a very arcane process with the house, the first initial matter would have to choose which they agree with. The senate plays a role, part of the answer is whether there is control between the house and senate. Would be a lot quicker resolutions should 1party control both chambers, but ultimately there has to be a winner of the Electoral College for a new president to take office. Explain this to me, make sure i understand it. The electors meet in each state, middecember, state legislature has to approve those electors. The electors, referring to the possibility legislature in a state where it is determined by the popular vote takes the position the popular vote is contaminated by fraud and the legislature itself, to determine who the elector should be. Imagine a case where candidate a, the candidate chosen by congress, legislatures said thats not the right police produced by fraud or irregularity, to the United States congress. That is what the legislature was prepared to do, intervention in bush versus gore and that is how you end up with the electorate presented to congress and Congress Congressional battles again and there is a host of bizarre developments that go from there theoretically. By the time january 20th comes around no president has been determined to the Electoral College, the neither of them, that is not going to happen. One scenario, it is so close or so clouded that there is no winning slate to come out of that, the state is unable to certify its Election Results so theres no certified slate that goes to washington, that is where the state legislatures the state legislatures have to send to the senate the names of the electors and who won in their state. Is that december . December 14th. Safe harbor. They said in december and the Vice President of the United States, if nobody gets 270 does it go to the house then . That is correct. Does it go to the new house for the new house . The new house is sworn in on january 3rd and the electoral plates are opened on january 6th. It goes to the new house, the house votes by state delegation. If california is a democratic delegation they have one vote, then they have one vote as well. Currently 26 republican state delegations, 24 democratic ones. The republicans, presumably a republican candidate would win. Is that right . That is correct. Very interesting to see nancy pelosi, Democratic CongressionalCampaign Committee target certain states where the margins and delegations are narrow, they are talking about trying in the election to win over us late. Of the house of representatives cannot agree on somebody by january 20th, the speaker of the house becomes president. Is that correct . Me but i believe the senate determines if a president isnt selected the vice presidency, the Vice President assumes office until it is resolved. To be Vice President , if they cant find somebody they cant agree, it goes to the speaker, correct . The president ial succession act. The senate might be equally muddled. Ive got to think through that. That is complicated. Both of you headed a president ial commission to look at the election. Is that your view, both of your views that theres a lot of voter fraud or there really isnt . Let me take that one first. Ive spent four decades actively involved in republican Election Day Operation which means, that go to look at problems that arise in polling places, to get all the reports from individual jurisdictions. Both parties in every polling place they wish to staff, to look for irregularities, resolve problems, and intragoal part of the system, in all the times that people have been in polling places looking for fraud, there is not evidence to sustain charges of voter fraud. There is occasional voter fraud, it is corrected, but it is occasion. You agree with that . It is surpassingly rare. Suppose it is rare but suppose he wanted to vote twice. The system works pretty well. How would you be able to vote twice, they wanted to break the system down, the system wasnt perfect, you wouldnt want to break the lies officer of the court, but suppose you vote twice, how would you vote twice . Havent given a lot of thought but i am about to give you an answer, if you vote under one name and one precinct or under a different name knowing someone is not going to show up, the problem is of this was a particularly longstanding plan about in person voting, you cant Committee Nothing person voting fraud to swing the outcome of the election. How would you vote twice if you wanted to . If you look at the case, probably the most prevalent one, this is more often by state and delivered if people vote in two states, they used to live in one state, continue to get absentee ballot in that state and moved to another state and tends to occur more in primaries, they are not on the same day and there are active programs to where who voted in different states to be able to do that. It was said by many people in the last election the russians tried to interfere or did interfere in the election. What did they do that interferes, by putting things on facebook or affecting the way people vote . Any views on that. A couple ways it might happen. Certainly disinformation through social media is one possibility. One message tends to stir up dissent and strife in the country is one. Another, the government is well aware of trying to hack into Voter Registration databases and manipulate them so that you can create chaos in the polling places were somehow messed with, there were always theories that tabulation machines that is more difficult. Maybe not for a great reason but there 10,000 jurisdictions to deal with counting and casting their ballots. A lot of those machines are very old. Really hard to hack into. How many states use the same type of voting mechanisms . If i was voting in the year 2000 what it using the same paper ballots or electronic ballots that everybody is using. With voting machinery. Congress had a major effort through the electoral process or performances, gave huge amounts of money to punch card machines during bush versus gore, that changed after 2000 but this is a remarkable amount in the electoral system, the pace of Technology Turnover is too close, they dont have the money so in many respects we dont have too many jurisdictions with these shortages that make it difficult to turn over machinery to make it more efficient. Let me ask you about the way people count these ballots. If you vote absentee ballot, mail in ballot, absentee ballot our state allowed to count them before election day . Generally . Or not . Generally they dont count them. They process them, they do the verification, then take the ballot itself in a secrecy envelope and prepare it to be put into the machines on election day or in some cases remove them from the secrecy envelope and queue them up. I dont know of any instances before election day. There is some room for canvassing and preparing, it does very by state law. One concern because of the heavy surge of mail in voting, states begin to process the votes for the quickest possible count on election day. Some states are not required to count absentee or male in ballot until as late as november 17th i think so is that true . Some states have another week or two after the election to count the absentee ballots. Is that a problem . Postmarked on election day. Created a lack to get away from going to bed at midnight on election day. The battleground states, pennsylvania and wisconsin waited until election day to begin the process. Michigan was the day before. Any of those states around comes, there will be a period when we wont know. The best state that has the best process for counting, the best process for voting, what state would that be, which state has done the best job modernizing the process. I assume you dont want to tell it from estate is the worst but which is the best . I dont think it would be highly diplomatic, there are i would say one thing generically. They fall, to keep up better with the class category. Ben and i discovered, i want to emphasize this is important because it doesnt always work. People would be surprised how hard Election Officials democratic and republican work given the possibly of resources and you will see a performance. Im not setting aside the effect of disruptive litigation and allegations of fraud but you will see better performance on election day including the vote count and reliability of the vote count. These Election Officials for the better part of the year, clearly elevating when the pandemic hit, put a major amount of effort, how to make this work. And made an enormous amount of progress. Between 6070 million americans and the number of problems that develop that have been reported have been very few. Who count the ballots . A democrat and republican have to be counting the ballots together or is it somebody supposedly impartial . Who does the counting . And most jurisdictions come when it does come down, human beings, it is democrat and republicans have people there to do it and more often than not the Human Element in this election is going to be in taking the absentee ballot and putting it through the verification process, there are democrat and republicans. When i started voting many years ago i thought you had to vote on election day. When did the idea of early voting come in, went to the idea of early voting arise . It has been a gradual progression from the 80s. One of the things we talked about, the last decade, was the advantages of being able to have early voting because if you have long lines, you want to be able to ease that pressure, the convenience of every qualified voter seems to be a paragon of virtue to strive for. Suppose you voted early and something bad happens when a candidate you voted for and you didnt select a candidate anymore and you call up and say i want to get my ballot back . It could not work. If you decide to destroy it you want to replace the ballot and you have a Second Chance but if it has been tallied there is no way. Suppose somebody votes and he or she goes to the polls and votes and publicly says on social media i voted for joe blow or somebody in the person dies the next minute. Does that ballot still count . Yes because it has been cast and submitted. You dont have to be alive were to be counted. You have to be alive when you vote. Are both campaigns to your knowledge having lawyers wind up in every precinct or every state . How do you do that . How many lawyers are available to do this . That is yours. The United States call it blessed or cursed with an abundance of voices. Recruiting senior lawyers to run litigation as necessary and lawyers that serve other functions like poll watching, there is a huge number. The core of lawyers in the midst of Data Analysis that become necessary to address litigation is in the hundreds. Talking about 50,000 poll watchers, a number of those will be lawyers. The question is in finding out lawyers. The question is finding enough caffeine to keep the lawyers going. Speaking of, what about people like my age who are administering the process . Is it hard to get younger people, people younger than me to be the poll watcher . People administer the process and check it in order its not realistic to get young people to do that job . Its an older person volunteer kind of job . This year we made significant progress, so many older voters during the pandemic resigned the commission and informed it would participate this year. A major effort in all the states was to recruit younger poll workers who could step in to replace the ones were stepping aside. That has turned out to be successful. We probably have for the first time in decades that i can remember a younger average age across the board, certainly in the bow that down states that we had before. I think thats right from all eyes here. Its interesting, Many Companies as ive learned from panels i have done feel the need to get involved in the process this year because their employers and Customer Base are so involved. One of the ways they have done that a number of companies is to give paid time off to any employee who wants to work as a poll watcher or election official and thats helped immensely. That used to be the case that the networks took great pride in calling a president ial election as soon as the possibly could and they would say we call it that night oclock or 10 00 or 11 00. You think this year they want to have, the last one to call it because they are afraid of making the state because all the ballots have been counted or is or since Networks Want to call the early . I think they are all very concerned about getting it right as opposed to getting it first. All the networks and their news leaders have said thats the paramount importance. I think the number of absentee ballots makes it even more imperative that they do that. So i think youll see a lot of coverage comparing vote totals in 2016 to whats come in so far in spotting trends but not called. President trump has made a point of saying theres a difference between an absentee ballot or about it that youre getting in the mail if you didnt request it and it comes kind of just over the transom to you. Is there a difference between one or the other in your view in terms of fraud or anything else . How many states send out a balanced anybody even without requesting that . Some do and some decided to do the cycle to sort of address the surgeon mail voting concerns of the pandemic. The distinction that mr. Trump actually does make any sense, his argument has been when you mail it out to people then the absentee ballots floating around absolute upward. Thats not the experience of mail ballot in the states. And this sort of flood the ballots that are undercounted for all of the place promote fraud. Theres no basis for that belief. I would have to say i dont credit it at a dont think theres any actual data or experience to support that. There are nine states that mail out ballots to every registered voter, and to the extent he has a point about any of this, people do move and i so there are live ballots in those nine states that theoretically could be voted aye somebody else. Im not sure theres an actual fraud problem thats been uncovered but there is an appearance of fraud but every other state requires an application to get a ballot and thats far more trustworthy. As you look at our country compared to other countries, either of the countries you think really do the voting much better than we do in terms of the systems, the celtic and so forth and registration . Is there better systems than ours in any country you would site . I dont know if i can cite a particular country might not of the top of my head. I dont know when this was ever going to happen but our commission concluded we surprisingly in the United States commit very little in the way of series resources to the electoral process. Serious. It falls off the priority list very quickly. Congress in 2000 in the florida elections than unwilling to take a hand in devoting significant money to up the state replace aging equipment. Though cloudy come states and localities who discovered in testimony before the commission by and large shuffle and Election Administration to the bottom of the priority list. It is quite surprising and disturbing and will pay a price for it. We paid a price for in 2000. It was replaced by another. Bob is totally right about that. We made a decision as a country that probably if your beginning today you wouldnt do, which is to have 10,500 jurisdictions actually with responsibility for the voting process. There will be some inconsistencies among that many jurisdictions. When i went to law school i dont member there having a course in election law. Maybe they did. How does one become an expert . Did you go to law school think this is why wanted to do and how to do drift into this very or plunge into this area . Totally by accident. I was a cub reporter and decided i did know enough about the subject i was coming and what to law school. Became an media lawyer for a while and there were some folks in my firm who are doing this interesting election law work. I did history of recounts in the house of representatives in 1982. First time i met bob bauer in a recount. In 1984 there was a major house recount in my career launched. Totally serendipitously. Bob, did you go to law school site i want to be an election law expert . No. I went to law school knowing i wanted to be involved in politics. I been fallen tree for campaigns and parties and worked on the hill when i was in college. His field opened up after the Company Began to reform its campaignfinance system in the 1970s and thats when i came out of law school. All of a sudden there was a lot of focus on the reform of the political process, campaignfinance relation to card, reform the congressional ethics code occurred, public Corruption Cases was in much larger broader numbers about what duties officeholders old the public. It seemed the route to go. It is true and i want to say its too i met ben during the recount in 1982. He gave me a really hard time but we became good friends ever since so it goes to show you dont end up having to always be enemies even if your professional adversaries. Every year, every time theres an election the Major Networks contract people to run exit polls. That means they ask people when they leave the polling booth who did you vote ports of people tell them i guess and these exit polls seems to be recently accurate but not always. 60 or 70 of of people voted before election day, when youre doing exit polls on election day how i could of these bowls . Do you think it was to be used . There are two consortiums collecting this year and both will tell you they are doing telephone poles of people who voted early. And it is possible to get a hold of the names of people who have voted. So theyre taking a sampling, they say theyre taking that into account. And either of you were going to reform the existing process we have, lets say you had one big recommendation that you could come up with an it but had to comply with it to make the election process better, what with that reform be . Other than more lawyers. [laughing] im retired. I dont even need a buyin to that. Look, i think that 10,500 jurisdictions is the largest impediment to relate and will run election system. I think you take into account the fierce federalism under which the country operates and that each state design a uniform system within its state. And i would just, i would add to that. Ongoing federal resources to accomplish things like upgrading the voting machinery and then one less very difficult reform, removing partisan control in the states over Election Administration. Its simply not sustainable and i think something other countries not all countries but of the countries avoid which is to have partisan elected official who by the way have ambition for high office in charge of Election Administration in particular states and i think this arouses suspicion of electoral process and also do something our commission very much not to see. It is attention with the goal of professionalizing Elections Administration and treating her like a public administered service like any other. Humane if the secretary of state in one state is in charge do you mean counting the ballots and the secretary of state is also running for governor, that person should be in charge of counting the ballots, you think . Yeah, i dont think an elected official, partisan elected official should be in charge of Election Administration treatment. We recommended at a minimum we would want to see the signaturef States Office employee election administrative professional sublease the ultimate responsibility for daytoday resided with them but theres an appearance problem and we saw them play out many, many times over the last several decades. I notice people are staying in line for ten hours come 11 hours and so forth. In other parts of the site you can get you can buy a super ticket ticket to get into disney ahead of other lines and break into lines. How can that is never happen in the election process . You pay extra and you get in front of the line. That doesnt work, right . Funny you should mention that. One of the things we did on our commission was to visit disney world to see how they manage to do lines. Actually, that is kind of one of the recommendations that we made, is that there at least be appointments that you can make to vote or at the very least if you go into vote and there is a line you can get a time for when you can come back and count your vote. And a number of jurisdictions have actually put that in place. And i would just that i dont think you can get people threat the resources the opportunity to buy themselves ahead of the line. That was tongue tongueinc, yes, i agree. [laughing] lets suppose do you think the networks would like to see this resolved, lets say by midnigt or actually it would be better for ratings and went on for a couple days or weeks . Any sense of whether people in the Media Business really care whether it resolved quickly or not or they are agnostic . I think they are not playing for sustained ratings. I think like virtually every american would like to see this resolved quickly but accurately. I agree with that. And if some young lawyer is watching now and he or she is think i would want to be in election law as my thigh shall take up what you highly recommend this as an airy that one come into our would you say fight a more lucrative area . Its a wonderful area. I probably wouldnt go to whether or not its a lucrative, although by the way medicating and the Voting Rights airy can be quite lucrative. However, i would say generally speaking to people who are Young Lawyers i would wait tunica specialization decision, take two or three years, sharpen up your legals skills before you take off into this very niche specialty. Thats a big decision to make to narrow yourself that quickly. I would agree with that. Sometimes elections have recounts in precincts or states. To do a recount jeff to hold the balance a certain way. How long do you have to hold the ballots and who does the recounting . Is it somebody different who did the original counting typically . Every state and jurisdiction is different. It has its own very idiosyncratic rules for recounts, which is part of what bob and and i stated this is fl these years actually. So in most instances you have to bring in many more people to help end a recount because its a more laborious process. So it is still supervised by the people who did the original account, but there often will be additional personnel brought in. Bob, you get a chance to redo 2000 in push the core is anything the al gore. Could attend a buy outcome . Im going bush v. Gore i think theres an urban myth that fell into two cards. Somehow i buy with all Great Respect to ben, phenomenal book on to jim bakker for sure and the rest of the team that ben assembled in florida that a think the Gore Campaign did a very good job of litigating its position and for want of one vote on the nested Supreme Court couldnt continue to count the probably wouldve ended up going in his direction. I think one day there will be some revisionism about history. Im going to disagree a a little bit with who wouldve won the recount, okay . [laughing] let me ask you this. As an sitting at home for the zoom. Mecca time i get calls from political polling from scripture what we do persist great and a polling exercise and they say it will take only a few new 20 minutes and i said 15 or 20 minutes. Who of the people who say i do have 15 or 20 minutes . I was looking for somebody to talk to. How many people really participate in these polling exercises . Is it hard to get people to participate, do you think . Geek it doesnt help yourself . I ignore them always. My pollster friends tell me it is harder and harder in the cell phone era to get people to participate in polls. One of the things that the reporting, the detailed reporting on polls, is telling us a little bit about what samples are used and how are the pollsters weighing of their sample. Which is kind of the magic formula for the pollsters exerting judgment based on their judgment and a little bit of history. So i think there are problems getting enough people in a crosssection to participate. So bob if i didnt want to wake up until mid that because im tired and im getting older and just wanted to go to sleep by 10 00 is a one or two states i could say based on your experience in this election and youre working on the campaign are there one or two states if they came in a certain way i could go to sleep early and of the election with a certain way . Well yes. Of course the answer depends on the current strategic position and the route, 270 phot to the candidate but its fair to say that if florida flips this year and thats one of the ways it would be clear donald trump will not be reelected. So theres some states that traditionally get the results in earlier than others that you should look at. Florida for sure is one. Georgia and North Carolina if the president has to have. The three States Hillary clinton won narrowly that if donald trump wins this time, new hampshire, minnesota and nevada, Maricopa County in arizona will be a key state. Ohio will be a key state to look at. Let me ask you a final question. In the old days i remember sometimes mayors or important politicians will hold back votes and say we havent had the votes yet. We havent counted in yet. Mated to see how many votes they might need. Is that system still remember people can hold back the votes disseminated might need to win, or thats the old days and thats desperate is a true enough. Was im not sure apocrypha. Im sure thats what Richard Nixon was done upon him in 1960 but it does not exist anymore, no. In 1960 john kennedy called mayor daley and mayor daley said, well, that help of the friends i think were going to win this state, and he did win illinois. Social media makes it much more difficult for shenanigans to take place. One of the things you see and i most minute by minute basis, networks these days is which parts of the state have come in. So if all of a sudden there is a void in a very where results are not in come you can rest assured that would be social media scrutiny but also reporters scramble to see whats up. Okay. Look, visiting very interesting. I is him both of you think the process is better than it was in 2000 in terms of voting and machines working at so forth come is that right . Both of you think its better than 2000 2000 or not pgh yes. Its not perfect but better. Better. All right. I am going to be watching up until midnight i think on electric and see whether you both all right and and i can go sleep early knowing but im not sure who really knows. Thank you both for very interesting conversation, and thank you for letting us know exactly how this process for the works a lot better than we did know before. Thanks a lot bob, and thank you, ben. It was a pleasure. Thank you. 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