Welcome 2 of americas leading election law scholars for a discussion about the constitution and the electoral system. We advertised this as a show about how to fix americas elections and several of you noted maybe thats not the best verb. Our goal is precisely the opposite, to figure out how to vent American Elections from being fixed theres a wide ranging discussion of the two books that both of our panelists have written and about constitutional issues in the news relating to the coronavirus and the electoral system. Please join us next week for a super discussion of another book that is by you all 11 and its on his new book about how to restore trust in the american institutions. Thats next tuesday and you can learn more about that program at Constitution Center. Org live and we will be taking questions throughout the program you can put your questions in the q a thoughts and i will just offer them to our panelists when it seems right or the discussion so please be interactive. These are very meaningful opportunities to have a conversation about the meaning of the constitution and thatsexactly what were going to do. Its with great pleasure that i introduce are two panelists. Edward foley is the chair in constitutional law at the Ohio State University where he directs its election law programs. Hes the author of books including ballot battles, the history of disputed elections in the United States and is coauthor of election law and litigation, the digital judicial regulation of politics in his new book which were going to discuss tonight is the potential restoration of the jeffersonian Electoral College. It is wonderful to welcome you. Its great to bewith you and to be part of this program, thank you. And richard is chancellor professor of law andpolitical 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 to thousand to the next election meltdown. The plutocrats united, campaign money, the Supreme Court and the distortion ofan American Election and his new 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 glad we found a way even though i couldnt get to philadelphia with ned to be able to join with you today virtually. Its great and these and zoom convening have been meaningful and were so glad that our great audience has joined as well. So lets jump right in with the most recent election case in the news and that arises out of wisconsin area and recently i think it was two weeks ago the Supreme Court decided Republican National committee versus Democratic National committee, a case of whose name suggests a high partisan stakes. It was a divided decision, 5 to 4 decision. Rick, youve written about the decision and said it was an application of what the majority justices called the persaud principal. Tell our audience what was its stake in the case, what the court decided and what the persaud principle is and what the implications are for future election disputes as precisely as you can and i know you can do it because youre a master at this. Its a tall order. So to back up a bit, what we saw as the coronavirus was getting across the United States is states that had upcoming primaries had to decide what to do so some states went ahead like ohio and arizona and florida. They all have the same primary on the same date and ohio decided to postpone. Arizona had to go forward and there were problems there. The next one up was wisconsin and the governor urged that the legislature change the date but the governordidnt try to order the date. It went back and forth because lots of people were afraid to show up in person and theres a lot of uncertainty about what was going to happen and at some point was all lawsuit filed to change some of the deadlines for the city absentee ballots. About five times the number of people who ordinarily would request absentee ballots in wisconsin requested them in this election so there was a huge surge and there were delays in getting those absentee ballot applications process and getting ballots out so the trial courts, Federal District court of wisconsin had ordered a couple of things. One of those which ends up going to the Supreme Court was a rule that said that if you had, the day of the election was april 7 and if you had since your ballot back and it was received by april 13, there were supposed to be dates after the election, then the ballot would count and this part of the courts order was brought by republicans to the Supreme Court to try to get the court to reverse it and thats what the court did on a 5 to 4 vote, breaking the law in a traditional ideological line to be seen at the court with conservatives saying even in those contexts of emergency you cant change the rules for an electionthat close to an election. And the liberals on the court saying well, these are really extraordinary circumstances. We have a pandemic going on and we really, there are going to be some voters were not going to receive their balance in the mail and will have a chance to have those voters disenfranchised and voters shouldnt have to put their health up against the right to vote. And in the end, we know that voting took place. Many more people voted by absentee ballot. Turnout overall was not down from where it was in the past. It was certainly down by in person voting and we know at least hundreds of voters, probably thousands of voters did not get a chance to vote by absentee ballot because of this Supreme Court ruling so its kind of this classic question. When is an important question to stick to the rules and when our circumstances so accident you need to bend these rules in the name of preventing disenfranchisement . Thats how i would characterize the divide between the majority. Beautifully distilled and friends, you heard rick explain the persaud principle. Normally you dont change the rules before an election and he described the balance between that principle and whether accident circumstances required it and talked about how the majority in the dissent disagreed on that. You have written a piece in politico about absentee ballots and the you have said absentee ballots have a greater chance for litigation and the slots can go wrong and you talked about some of the things that can go wrong and you said that president congress and the states to prepare for the increased risk of disputes over the results of the november elections so tell us what can go wrong with absentee voting and what might go wrong and how can we avoid it. Thank you. I think wisconsin shows that what happened there could happen again in november in any state, could be pennsylvania. Could happen in philadelphia, could affect michigan or detroit or wisconsin and as rick describes the key problem which with voters who did everything right, eligible registered voters. They applied for their ballot on time but they never received them so they would be disenfranchised without a ballot. And thats obviously what Justice Ginsburg in her dissent was most concerned about that as rick has noted the majority was afraid that allowing someone to vote and absentee ballots after the polls close in effect changes the date of the election and with respect to november that would be a problem. Elections are supposed to be november 3 so the idea that some folks in one city or one state might be voting for president on november 6 or seven is anomalous so we do need a remedy to prevent disenfranchisement but also allows all ballots to be cast bynovember 3. Wisconsin moved so fast that unfortunately the district judge was trying to do the right thing. Missed a remedy that might have brought all nine justices together and avoided this ugly 5 to 4 ideological split and what that remedy would be would be an emergency backupballot. This actually exists now as a matter of federal law for military and overseas voters because Congress Said we cant disenfranchise the people who are protection ice overseas but they often dont get their official ballots from the State Government on time because the mail is slow going overseas so they can cast a generic ballot. Any state, any race in the election and it will still count but it has to be cast by election day. It can arrive later, but the divide between the majority and the dissent in the Supreme Court was over this timing point. The majority was willing to accept ballots that were delivered late as long as they were cast ontime. The District Court got it wrong by saying you could cast the ballot after election day so a remedy what weather enacted by state, congress or legislature to avoid disenfranchisement would get all nine justices on board as long as it doesnt changeelection day and prevent disenfranchisement so its this idea of an emergency backup ballot. We need that for november. Thats great and David Bernstein asks a followup question which ill pose. How close to the election is close, is seven months to close to put more widespread mail in balloting in place for National Elections or this national backup ballot and how practically likely do you think it is forcongress and the states to adopt the national backup ballot . Ill take that initially and rick can jump in. The good news is if theres adequate political will, probably mostly at the state level rather than in 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 that 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 and its a logistical challenge as much is a legalone. 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 just overloaded the system. Thats why they couldnt send it out so i am worried that in some jurisdictions that the system is going to get overloaded. So we need more money, congress there could really help. Congress could put more money into the system but not enough so we have to exercise political will to get this done but if we have the agreement on this we can run a Fair Election in the fall. Thanks for all that. Rick, im eager for your thoughts on how the covid19 crisis has changed your thinking about the election since you wrote the book, just practical thingsthe state could do and i also throw in the question from Steve Parsons , theres a possible resurgence in the fall and how could this threaten the election with mailin voting . When i wrote my book election meltdown it was before the covid crisis hit. I had all kinds of other horrible things that could happen as potential nightmare scenarios. For example what if theres a cyber attack on detroit on election day and one of the points i make an election meltdown is that most do not have in place emergency rules for how to deal with such a problem and we see this playing out in state after state. Rules to be put in place so that we know what the contingency plans are and right now, we are a little bit more than six months ahead of the election. Now is the time that things have to happen. Already weve been talking about surges of ppe for medical providers. We may be wearing worrying about surges of Power Supplies and surges of workers who are going to be able to process absentee ballots. Things have to be put in place now and thinking has to be we dont know what november is going to look like. We hope that things are going to be much better butthere may be a surge of requests for voting by mail. Voting by mail maybe for some reason not be the best way for many people to vote. If we have a problem with the Postal Service . What if many postal workers are out sick and ballots are not being delivered so we need to have a variety of methods of ensuring voting because the most important point is that we need to think about this now. You cant in october decide heres how were going to run the election in november. Weve seen a lot of scrambling during the primary season and primaries are somewhat movable but as ned said we got a hard stop. The election has to be done with casting votes on november 3 so 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 add finally on this point that ned and i are two members of a larger group that is going to be releasing a report on tuesday the 28th. It will be available at law. Uci. Edu 20 20 election report and it is a set of recommendations were leaders in law, politics, tech and media about things that can and should be done right now to ensure that people not only will have a Fair Election but that people will have confidence in the outcome of that election so were going to be pushing social media companies, congress, the election administrators, Mainstream Media and others to make changes now to minimize the chances of a meltdown in november. Asked for that. And theres so many good questions on this point thati think around or two more on this would be helpful. John, Jonathan Broder asks a question that you address in your book. National elections, should we have National Election rules rather than leave the state and relatedly, Ronald Ellison says unfortunately we have 51 separate elections, why cant the state do quickly mailin ballots. The others, ned. What event do you support or not National Elections rules and how could they be adopted and if you think they should be i think its important to think about longterm structural reform on the one hand versus making sure that this election works under the basic architecture that we have in place read and that because of the pandemic and 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. And i do think that requires some congressional money but mostly legislative reform at the state level. Now, when we think about longterm reform, then i think we could think more about national changes and National Rules. And i think theres a lot to be concerned about about our system as it exists. Imnot a big fan of the Electoral College. Id like to replace it but thats hard to do. You need a constitutional amendment for that. Even eight adjusting the Electoral College so that its conformed to its own expectations would require some state laws to change. And we can get into more details on this but i am worried that we got pack ologies if you will in the way states are lamenting the Electoral College that causes a deviation from the will of the voters, the electorates cast their votes but we have what are called plurality winners at the state level. Not majority winners. And the majority winners i think would be a more authenticexpression of what the voters actually want so theres a lot , the menu of reform is large in my view. But for this year we should make sure thatwe at least run an election according to the system that we have. Thank you for that. , several of our viewers have asked us to send the website that you just cited , could you repeat it one more time and if many of you could email it to me i could put in the q a box. Since everyones interested if you can preview some of the recommendations that would be helpful in your thoughts about this question of whether National Rules would be good or not. One of our viewers asked whether the president can postpone the election, michelle says the president postpone the november election, does he have the power to do that . In other words with there be a danger of federalizing rules that would allow the president postpone the election tell us more about your views about national as opposed to state based reforms. The first thing i can tell you is i feel more certain about the website which is law. Uci. Edu 20 20 election report. What can fall to google . Election law. Org which is my website, thats since 2003 and it will be there tuesday morning. We created a checkbox to. Election law. Org would be easier to get there red recommendations, board to hold my fire on the specifics but say thiswas a bipartisan diverse group. It took a lot of conversations and a lot of Virtual Meetings to, or 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 a hashtag Fair Elections prices. Because that is part of the name of the report. On to the substance. First i would say the most common question ive been getting over the last month is and donald trump postpone the election . Its a common question. The answer to that question is number the constitution gives congress the power to set the date for the election. That date is set by statute Congress Passed in 1845 in order to comply with that, it would take a constitutional statute to change the date of the election. That said there are things that could affect theelection. If there were orders from governors or potentially even the president shutting down polling places and cities on election day that could affect the outcome of the election even though thats not an election delay. The other thing which may be 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 the disputed 2000 election where florid