Transcripts For CSPAN Campaign 2020 Aspen Institute Discussi

CSPAN Campaign 2020 Aspen Institute Discussion On Contested Election Preparations July 12, 2024

This is one hour. Vivian my name is schiller, and i am the executive director of a program of the aspen institute. Welcome to those of you joining us on zoom and also welcome to viewers watching us on cspan. This is, to say the least, no ordinary election year. Beober is already proving to an Advent Calendar of surprises. As a reminder as we countdown to election day, we are facing record levels of mailin voting. Concerns about the United States also service, confusion about drop boxes, holding paces that capacity due to the pandemic, allegations about ballots being lost and stolen, and as of last night, questions about what happens if one or more candidates is incapacitated. But it is important also to remember that only three days ago, though to many of us it seems like months ago, the president once again alleged to a national audience, and with no evidence, that mailin voting leads to fraud. He also refused to say that he what accept the results of the election. I think i speak for the nation when i say we are bracing ourselves for what happens when the polls close on november 3, although it is important to say, and we will say it often during the next hour, about that in and of itself does not indicate that the results are illegitimate. Learning we may be used to learning the results hours after the polls close. That may not happen this year, and that is ok. So what is the law, what does the constitution say . That is what today is about. We are very lucky to have four experts who will shine a light on what to expect and what to prepare for once the polls close november 3. We will get to those questions later, or we will get to at least some of them, as we usually have many more questions than we can answer, but please come at any time, you are welcome to do so. So, to kick things off, we are going to start things off, as all things must come up with the constitution. How do these actually work in determining the next president . Nathaniel brasilia in the james b mcclatchey professor of law at stanford law. His scholarship and Legal Practice focuses on american law, addressing issues Like Campaign finance, redistricting, and election administration. He is also codirector of the Stanford Cyber policy director, Stanford Program on democracy and the internet, and social science one. Nate, thanks for being with us. Nathaniel thank you so much for having me come and i should add to that long introduction, one other project, which is the healthy election object, which we now started with m. I. T. , and you can get some of our material at healthyelection. Org, including some of what we will be talking about today. I am going to do a quick Powerpoint Presentation in my seven minutes, but as i make that transition, let me just start by reflecting on the news of the last 12 hours and how it has an impact on in thinking about and everything that we are going to be talking about in which is that, in addition to all of the other questions that we are now going to deal with, we also have to talk about what happens if the candidate needs to be replaced, whether it is President Trump or Vice President biden, and there are procedures in place for this , and the event that there is the reason that a candidate, even after the ballots have been printed, needs to be replaced, that the rnc and dnc have procedures that are in place to do that, such that then when the election happens, the votes will go to that replacement candidate. In addition, if the replacement happens after the vote, then the sort of constitutional machinery goes into operation, and we have to deal with the question of how the state legislatures might direct the president ial electors for each state. That is an issue that people have been thinking about already with respect to this election, but different states are more or less wellpositioned to do that, because some of the states have laws that require the electors to vote for a particular candidate that was on the ballot, and then proceed to vote. And so there is some potential legal ambiguity there. I am happy to talk more about that in the question and answer, but let me talk about the way we thought about this as. And how to think about a contested election did lets start with a calendar and how we should think about each thing of the dispute resolution process. We will have election day on november 3, but loading has already begun, millions of ballots have already been cast. We should expect roughly half of the votes to be cast before election day. Between Election Night and two weeks later, there are various deadlines for the receive receipt of ballots and the execution of a secure period for the dispute of ballots. Some states have different rules on this, some states will not allow voters to ensure this feedback if a signature does not match with what is on file or if there are other technical problems with it and other totes give you several days secure. All that will happen after the first two weeks after the election followed by a period where we have canvassing of the ballots and a certification. The canvassing begins even earlier than november 17. The deadlines to complete the actual account of the ballots go into the beginning of december. The reason we have to get it done by approximately that date and i want to put an asterisk on december 3 because there is some possible wiggle in the joints here is that under the electoral count act which is the act that statues elections passed by congress, there is a deadline of december 8. That harbor deadline was quite important in bush versus gore, it does not mean that if the votes are not company counted that a state will not have its electors account, but the law says if they do have those counted by that date, that is the presumptive slate of electors that will go to the Electoral College which meet on december 14. In the period between december 14 and january 6, we have a presumptive list of electors from every state. May be one less, maybe more than one less depending on the controversy. Those certificates are opened and the house of representatives on january 6. At each stage of this process, there is a potential for litigation. Let me emphasize, i will make the slides publicly available on , is that theed nature of litigation in this election will be determined by several factors. As was true in the 2000 election, the margin of victory in any given state is the most important question. Although it is possible we will be going into overtime, and we have to prepare for that, it is certainly not guaranteed. It is possible we will know very soon after the election who won and who lost. Again, we should prepare ourselves and the public for a long accounting. Period, but it is possible who will know and who lost soon after Election Night. Depending on the nature of the dispute, the litigation will take different forms. Whether it is a dispute over absentee ballots or provisional ballots or recounts like we saw ,n the florida election depending on the nature of the dispute, sort of triggers will be pulled. There are the nontraditional to,gs we have to refer things like what will happen if there is violence and polling places, if there is some use of federal authority, if there are Serious Problems with the post office that make them unable to deliver the mail. Ofending on the nature dispute and depending on the nature of the forum, the different deadlines may be shifted. By forum i mean are we talking about a dispute in state court and or federal court, is it through the administrator process . You may remember in the florida recount there was administrative work, your member Katherine Harris was in charge of that. Workusly there is a lot of that is happening at local canvassing boards and at the state system and Different Actors become more or less important at different stages of this. Just run through quickly i know there is a lot of text, but i will make these available to those who request them. There is a lot of litigation already, there are over 300 cases that have been filed in this election already and they are going to set the tone for what comes afterwards. I am paying particular attention to this pennsylvania case that is now potentially on its way to the Supreme Court and how that might lay the groundwork for later litigation. If youre interested, we have a litigation tracker at healthy elections. Org which shows all the case in cases. On election day, we will have lawsuits and for that matter even as the voting is occurring in the few days before in the weeks before. Surprised if be there is litigation over polling place dysfunction or potentially violence, we have seen stuff with respect to full watchers and the like. Aftermath, itte depends on who is ahead and buy how much and with the nature of the dispute is. Weant to emphasize, although will have a flood of absentee ballots in this election, states have rules to educate and evaluate these ballots. We just need to let the state processes work themselves out. Most of the action will start in the state and at local canvassing boards and then, potentially, and up in state court and the like. Because thele that pending on the nature of dispute, you could have a federal court action to protect the right to vote. Allegations that the election has been marked by fraud. In that week or two after the election, we will see the processing of the mailin ballots. Regardingese issues the curing of absentee ballots could be litigated. As we saw in bush versus gore, litigation rules that would apply in perhaps the accounting period. That is ains closed, big if, as we approach the state harbor deadline, it becomes extremely important that the actual count be completed so that the electors can meet in the Electoral College. We assume because we went through burst bush versus gore, although many that would follow a bush versus gore path that the u. S. Supreme court would get involved, that it would be very judicial as judicial lysed. It is possible we would have litigation in Supreme Court actively involved. With the death of justice ginsburg, things become more complicated depending on if you have slipped in the court. There are also other paths which take advantage of other aspects of the constitution machinery such as date legislatures stepping into a point electors. Whether stateer legislators can ignore the will of the voters if the voters expressed preferences on election day and it is clear who they voted for. Can say ifcenario we the candidates are arguing about fraud and try to say there is a cloud over the result, it is possible you could see different slates of electors coming from the state legislature and the governor of each state that would have to be resolved before the house of representatives. Somehowte legislator subverted the will of the voters, that would raise all kinds of constitutional problems with respect to violating the right to vote. We have never really been in that situation and with the possibility of candidate replacement, you could easily see some state legislatures exercising that right. I will and with what then happens in the succeeding period. By january 6, there is accounting on the floor of the house of representatives and then january 20 is when the new president is sworn in. If no president has been chosen by that point, then the succession act kicks into play and the speaker of the house becomes president. I will end it there and turn it to my other colleagues. So much, first of all to everybody we have seen some questions saying can you share the presentation, we realize it might be hard to read. Slides, nate the will share them at his twitter feed. We will also email it to you, so yes, the answer is yes. Im sure there are questions, well get to those, but we thought it was important to start with what does the constitution say, what is known, what is unknown, so thank you for that emanate , nate. Were going to turn it over to how the news media works in these instances as a reminder, the news media does not call an election. They reject an election even though sometimes there is sometimes the wording is fast and loose. It is really just the norm in something we are used to knowing because the results have been so clear, it is possible that will not be the case which is why it is so important to start with everything nate just talked about. News turn over to the media because that is what is howie generally how we find out what is happening in the world. Here to tell us how it works is sally busby, she is executive editor of the associated press. She oversees global news operation and news content from journalists based in 250 locations around the world. She led aps coverage of the election in 2016 including polling and coverage of the white house, congress, and the pentagon. Sally, over to you. You so much, so what im going to do is talk about how news organizations fit into that constitutional structure that nate just laid out. Including our key role in protecting elections projecting elections and counting the vote. It is important to remember that the u. S. Election system is decentralized. There is no federal agency that oversees voting, the state each control how their elections are run and in practice that has led to a wide variety of practices and Different Levels of skill. On Election Night, states report to the public their Election Results as those results come in. My organization, the ap and other organizations tablet all those results, gather them from each of the 50 states and put them together cleanly so the public can see the whole picture on Election Night. The Electoral College does not meet for a long time as nate laid out. Based on that, as the vote comes in, we say he was going to win of the election. We realize we are not the official word, as vivian said, in the country. What we do is we do a very strong mathematical calculation based on the count and win a failing candidate has no path to catch up or to win, mathematically, we tell the public that that person has won that race or that state. The networks also all do this, each of us does it independently. For the record, our methodology is laid out in full transparency on our website at ap. Org. Ast is how the system works, we know, the Electoral College is how the president is decided. Why newsfact, is organizations focus on battleground states. Some states, under this system, are in fact more critical and others less critical. Some peoples votes to have more impact than others, that is just the way the system is set up. For example, if a candidate meets beat another candidate by 100 votes in florida, they get all of floridas electoral votes. That is one of the most critical thing to keep in mind when looking at News Coverage of Election Night. Anddly, absentee, early, mailin voting has been growing strongly in the u. S. 32 of americans who voted in 2016 did so i voting by mail, they did not show up at the polls on election day and that was before the pandemic. The vast majority of that happens without any fraud. This year because of the pandemic, more people want to vote by mail or early. States are having to ramp up quickly to prepare, some are ready, others are trying to get ready. I will say, as a news organization, we found that states got better at handling mailin ballots as the primary race went on. There is evidence they are getting on top of it. As nate said, there is already legislators making lastminute changes over the rules, things like how long after election day a male on mailin ballot should be counted. One thing that is important to keep in mind is that, in general, most dates tend to count mailin ballots last. Sometimes that can be days after election day. This has happened routinely over the last few years, it is not new. This is to point out that a large lack of speed on Election Night in a news organizations calling races does not mean something that is happening. It is not evil corruption or problems, it might in fact just mean a male a state is careful to count all its mailin ballot. They may be struggling more in the past then more in the past. But that does not mean they will not count all those and report them. Factchecks doing about what the president has said on mailin ballot inc. Because it does not track with the reality and accuracy. With the news whats the news organizations do on Election Night, we cannot project winners in races until we know someone has actually mathematically one or that they know we know they have no pack to victory. Even if someone is ahead, if an automatic recount is triggered at a certain level, we are not going to call that race because we know there is an automatic recount. States are going slower than normal at counting pallets because they are trying to grapple with this new world. That will, in fact a likely impact how fast race calling by the Networks Goes on Election Night. We intend to be transparent on Election Night, that is most important, if we had said that a state has not been called or we have not projected a winner, we will go on air to the people who we give our reporting to, to our customers and explain why that is so. We will tell what the public all the public what is going on in real time. That is one big chunk of the situation this year that is in some ways the most important thing, but at the same time we are doing other things. This story is sort of changing every day, we know through empirical facts a lot of people have requested ballots. If they get nervous about sending them in and decide to show up at the polls anyway, there is some indication that people are doing that. There might be a lot bigger crowds at the polls. There is a lot more uncertainty about not too people will vote for, but the actual physical way they will vote than there has been in the past. Are is just one element, we also ramped up on Election Night for what everyone else in this call will talk about, possible intimidation of voters or other types of conflict or unrest on Election Night. We

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