Transcripts For CSPAN2 Author Discussion On Presidential Ele

Two of americas leading election scholars for a discussion about the constitution and the electoral system. We advertise this as a show about how to fix americas elections, some of you noted thats maybe not the best verb. Our goal is precisely the opposite to figure out how to prevent American Elections to be fixed. We will have a very wide ranging discussion of the two books that both of our panelists have written and about constitutional issues in news relating to the coronavirus and the electoral system. Please join us next week for a superb discussion of another book that is by you of all leaven on his new book about how to restore trust in the americans institution thats next tuesday and you can learn more about that program constitution alcenter. Org awe will be taking questions throughout the program so you can put your questions in the q a box and i will offer them to our panelists when it seems right during the discussion. Please be interactive these are very meaningful opportunities to have a conversation about the meaning of the constitution and thats exactly what we are going to do. Its with great pleasure that i introduce our two panelists, edward foley is the ebersol chair and constitutional law at the Ohio State University where he directs election law programs. He is the author of books including ballot battles the history of disputed elections in the United States, his coauthor of election law and litigation the judicial regulation of politics and his new book working to discuss tonight is again quote president ial elections and majority rule the rise, demise, potential restoration of the jeffersonian Electoral College. Edit, it is wonderful to welcome you. Its great to be with you, jeff, and a part of this program. Thank you so much for being here. And Richard Hasen is chancellor suppressor of law and clinical science at the university of california irvine law school. He is the author of the often quoted and leading election law blog, which i invite listeners to check out, he is the author of several books including the voting wars from florida 2000 to the next election meltdown. Plutocrats United Campaign money to Supreme Court and the distortion of American Election in his newest book which i urge you to read and which we will discuss tonight is election meltdown dirty tricks, distrust, and the threat to american democracy. Rick, its wonderful to have you with us. Im so glad to be with you and im glad we found a way, even though i couldnt abto be able to join with you today virtually. Its great, these zoom convenings have been so meaningful and we are so glad to have you and so glad our great audience has joined as well. Lets jump right in with the most recent election case in the news. That arises out of wisconsin and recently i think it was two weeks ago the Supreme Court decided Republican National committee versus Democratic National committee, a case whose name suggests the high partisan stakes it was divided decision 5 a4 decision. Rick, you written about the decision and said it was an application of what the majority of justice is called, the personal principal, tell our audience what was at stake in the case. What the court decided. What the personal principal is. And what the applications of that a thats a lot a tall order let me see. You can do it. To back up a bit, what we saw as the coronavirus was hitting across the United States is states that had upcoming primaries had to decide what to do. Some states went ahead like ohio and arizona and florida. They all had the same primary and the same date and ohio decided to postpone, illinois, florida, arizona decided to go forward, there were problems there. Next was wisconsin, the governor urged the legislature change the date that the governor didnt try to order changing the date. He went back and forth because lots of people were afraid to show up in person. There was a lot of uncertainty about what was going to happen and at one point it was a lawsuit filed to try to change some of the deadlines for receiving absentee ballots. Boat five times the number of people who ordinarily would request absentee ballots was primary requested them in the selection so there was a huge surge and there were delays in getting those absentee ballots applications processed and getting ballots out. The trial court Federal District court in wisconsin had ordered a couple of things. One of those going to the Supreme Court was a rule that said that if the daily election was april 7, if you had sent to her ballot back and it was received by april 13, this would be days after the election, then the ballot would count. This parts of the court order was brought by republicans to the Supreme Court to try to get the courts to reverse it and thats what the courts did on 5 a4 vote breaking along the traditional ideological lines weve seen with the courts the conservatives saying even in the context of emergency you cant change the rules for election close to an election, thats the per abthere are going to be some voters who will not even receive their ballots absentee ballots in the mail we will have a chance to bow, those voters will be disenfranchised, voters should have to put their health up against the right to vote. In the end we know that voting took place many more people voted by a valid turnout overall was not abwe know at least hundreds of voters probably thousands of voters did not get a chance to vote by absentee ballot because of the Supreme Court ruling. It really put this classic question, when is it important to in elections to sit to rules and winter circumstances so exigent you need to bend those rules in the name of preventing disenfranchised. Thats how i would characterize the divide between majority and ed, youve written a piece in politico about absentee ballots. They come with a drawback a greater chance of litigation theres lots can go wrong and you said you talked about some of the things that could go wrong and you said congress in the states should prepare for the increased risk of disputes over the results of the november election. Tell us what can go wrong with absentee voting, what might roe go wrong and how can we avoid it . Wisconsin shows that what happened there could happen again in november in any state, could be pennsylvania, could happen in philadelphia come affect michigan and detroit wisconsin again and as rick described, the key problem with voters who did everything right, these are eligible voters, registered voters they applied for their ballots on time but never received them. They would be disenfranchised without a ballot. Thats obviously what Justice Ginsburg and the dissent was most concerned about. As rick has noted, majority was afraid that allowing someone to vote in absentee ballot after the polls closed in effect changes the date of the election. With respect to november, that would be a problem. Elections are supposed to be november 3 and so the idea that some folks in one city or one state might be voting for president november 6 or seven is anomalous. We do need a remedy that prevents disenfranchisement but also allows all ballots to be cast by november 3. Wisconsin moves so fast and unfortunately the district judge was trying to do the right thing missed a remedy that mightve brought all nine justices together and avoided this ugly 5 a4 ideological split. What that remedy would be would be an emergency backup ballot, this actually exists now as a matter of federal law for military and overseas voters. Because congress said, we cant disenfranchised the people who are protecting us overseas. But they often dont get their official ballot from the State Government on time because the mail is slow going overseas. They can cast a generic ballot any state any race and election and it will still count but it has to be cast by election day, it can arrive later but the divide between majority and dissent in the Supreme Court was over this timing point. The majority was willing to accept ballots that would deliver late as long as they were cast on time. The District Court got it wrong by saying, you could cast the ballot after election day. I think a remedy whether enacted by congress or state legislature or judicially adopted is to avoid disenfranchisement would get all nine justices on board as long as it doesnt change election day and prevent just enfranchisement. This idea of emergency backup ballot. We need that for november. Thats great. David bernstein ask a followup question which i will post, how close to the election is close seven months to the present election too close to but more widespread safer mail in balloting in place for National President ial election or national backup ballot and how practically likely do you think it is for congress in the states to adopt the national backup ballot . I will take that initially and rick can jump in. The good news is, if there is adequate political will, probably mostly at the state level rather than congress, we can do the november election where everybody has a fair opportunity to cast a ballot and we can get an authentic result that reflects the will of the electorate. Under the system we have. But theres a lot of work to be done and its going to be a greater challenge than ever before because of the pandemic. Its a logistical challenge as much as a legal one the states have to have the right number of supplies and equipment and personnel one of the things that wisconsin taught us was the demand for absentee ballots overloaded the system thats why they couldnt send it out. I am worried that in some jurisdictions that the system is going to get overloaded. We need more money, congress could really help there, congress put some more money into the system but not enough. We have to exercise political will to get this done but if we have the agreement on this, we can run a store election in the fall. Thanks for that. Rick, for your thoughts about how the covid crisis has changed your thinking about the election since you wrote the book talking about some of the practical things that congress and the states could do and i will also throw in the question from steve carson, there is talk about possible covid resurgence in the fall coupled with seasonal flu and what ways this could threaten the election especially with mail in voting and what should we do about it . Cristobol when i wrote my book election meltdown it was before the covid crisis hits. I had all kinds of other horrible things that could happen as potential nightmare scenarios, for example, what if theres a cyber attack in detroit on election day. One of the points i make is that states do not most states do not have in place emergency rules for how to deal with such strong interest we see this playing out in state after state. Rules to be put in place so no what the contingency plans are. Right now a little more than six months ahead of the election now is the time that things have to happen. Already weve been talking about shortages of ppe for medical providers, you might be worried about shortages of ballot supplies and shortages of workers were going to be able to pocket process absentee ballots. Things have to be put in place now the thinking has to be we dont know what november is going to look like. We hope that things are going to be much better but there might be a surge of request for voting by mail. Voting by mail me for some reason not be the best way for many people to vote. What if you have a problem with the Postal Service . What if many postal workers are out sick and balloting not being delivered . We need to have a variety of methods of ensuring voting but the most important point is that we need to think about this now. You cant in october decide heres how will you run the election in november. We see a lot of scrambling during primary season and primaries are somewhat movable and as ned said, we got a hard stop can we have to think now about how to make sure we have a safe and secure system so as many people can vote as possible. And let me just add finally on this point that ned and i are two members of a larger group thats going to be releasing a report on tuesday the 28th will be available at law. Uci. Ecu 2020 election report. Its a set of recommendations for leaders in law, politics, tech and media about things that can and should be done right now to assure that people not only will have a Fair Election but that people will have confidence in the outcome of the election. We will be pushing social media companies, congress, state Election Administrators Mainstream Media and others to make some changes now to minimize the chances of a meltdown in november. Thank you for that heads up. I think around or two on this would be more help. Jonathan broder asked the question you addressed in your book, ned, for National Elections should we have National Election rules rather than leave them to the states and relatedly, Ronald Ellison says unfortunately 51 separate elections like the states that do strictly male in ballots Like Washington and oregon provide guidance to the others ned, what do you support or not to National Election rules and how can they be adopted if you think they should be. I think its important to think about longterm Structural Reforms on the one hand versus making sure that the selection works under the basic architecture we have in place. I think because of the pandemic in the real acute emergencies at the moment, weve got to get through this year that counts as a fair ballot election under the system as we know. I do think that requires some congressional money but mostly legislative reform at the state level. When we think about longterm reform then i think we could think more about national changes and National Rules. I think theres a lot to be concerned about about our system as it exists. Not a big fan of the Electoral College. Elect to replace it but thats hard to do you need a constitutional amendment for that. Even adjusting the Electoral College so it conforms to its own expectations required some state laws to change and we can get into more details on this but im worried that weve got pathologies in the way states are implementing the Electoral College that causes a deviation from the will of the voters, the electorates that cast their vote but we have were called plurality winners at the state level not majority winners, majority winners i think would be a more authentic expression of what the voters actually want. The menu of reform is large in my view but for this year we should make sure we at least run election according to the system we have. Thank you for that. Rick, several of our viewers have asked us to send the website you just cited, could you repeat it for taxi if you email it to me i could put it in the q a box. Since everyones interested in it, if you can preview some recommendations i think that will be helpful in your thoughts about the question of whether National Rules would be good or not we were viewers asked whether the president skin postpone the election and Michelle Cisco the president postpone november elections does he have the power to do that . Would that create a constitutional crisis . Would there be a danger of centralizing rules that would allow the president to postpone the election and tell us more about your views about national as opposed to state based. The first thing i could tell you about them i feel more certain about his website which i will read law. Uci. Edu 2020 election report. What can folks google . Election law blog. Org which is my website up and running since 2003 it will be there Tuesday Morning right at the top the recommendations are going to hold my fire on the specifics but i will say this was a bipartisan Diverse Group it took a lot of conversations and a lot of Virtual Meetings to hash out these recommendations so im very pleased we were able to do that and, stay tuned, we will be sending out on social media with the hashtag Fair Elections crisis because thats part of the name of the report. Onto the substance. First i would say the most common question ive been getting over the last month is, can donald trump postpone the election its very common question. I think the answer to that question is no. The constitution gives congress the power to set the date for the election, that date is set by a statute that i think Congress Passed in 1845 so in order to comply with the way things are in the constitution we take a constitutional statute to change the datable election. That said, there are things that affect the election. For example, if there are orders from governors or potentially from the president , shutting down polling places and cities on election day collected affect the outcome of the election even though thats not election delay. The other thing and maybe ned is better equipped to talk about the full ramifications of this is that if you go back to bush versus gore the case that ended disputed 2000 election where floridas electoral votes were at stake, the Supreme Court reiterated the principle that most americans probably dont recognize about the constitution in article 2 of the constitution it says each state Legislature Gets a direct the manner for choosing president ial electors. Every state in the United States state legislatures have given that cho