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 will have to be able to cover that in real time to show the world what is going on. Of course, we are completely ramped up for either realtime or nextday legal battles. We assume those will emanate from the states and that they will be hardfought. That is sort of a very quick overview of the role of the press on Election Night and also some of the things most news organizations are trying to prepare themselves for in case there is a contested election. Fromve a lot of experience 2000 of something going to the Supreme Court, we have, thankfully, reporters in every state who can follow all of these local lawsuits as they play out. I think the most important thing think we need to do [no audio] sally i think we lost her audio therefore second, but you were just wrapping up. Hopefully everybody can hear me, i am assume someone will tell me if you cant. Thank you so much for that really terrific context. I want to remind everybody, if you have questions, click on the q and a button, do not put it in the chat. Please click on the q and a button, add your name, affiliation, and location if you are comfortable doing so and ask your question in aces synced manner asus inc. Just days ago we learned that President Trumps 2016 campaign was accused of actively trying to deter 3. 5 million black americans in the battleground states from voting. They did so with targeting them with negative Hillary Clinton ads specifically towards those individuals on facebook. Sadly, not the sole instance in attempt to present suppress voters. To talk about that and more we are pleased to have the president and director council of the naacp Legal Defense and Education Fund of the premier Legal Rights Organization fighting for Racial Justice and equality of positions she has held since 2015. Previously was she was with the aclu where she taught civil procedure and constitutional law maryland for of almost 20 years. We are thrilled to have get another wonderful expert on these topics. You all for thank joining this important convening. We heard earlier there will be litigation around this election and i can assure you there will be. Let me give a lens into the way we are looking at this in terms of the Africanamerican Community and i think that might be of interest to you. We have a number of concerns, two of them are top of mind at this moment, the first is around intimidation itself. The issue of potential violence, the issue of individuals and groups intimidating black voters at the polls. A lot of what we have heard over the last two weeks suggests this is not an irrational concern and fear for us to have. So we can expect there are going to be a number of concerns about whether there has been Voter Suppression that happens in real time at the polls and frankly, as we have already started to see, early voting is in place as well. This may mean there are real concerns on the back end of whether all voting in particular pulling faces were able to participate equally in the process. These issues will be taken up by one of our suspect subsequent speakers, but they also fall into intimidation. We should remember intimidation is not about independent militia groups, we also have concerns about state actors. You heard the president talk about bringing out sheriffs and so forth. We are also on the lookout for that. There are a number of statutes that will help us on the back some prevent against conspiracies to interfere with the right to vote. Those are back end litigations that will be available to us and might form the basis for being able to challenge Election Results that come into particular pulling places. It is critical to be aware of that. The second big problem is adding to voting. That is because during this pandemic, Many Organizations have stranded tried to push absentee voting for black will voters. The black and latino commune he has been hit by the pandemic and a number of us including the Legal Defense fund have really honed in on some of these onerous absentee voting requirements in some states. We just recently one hourly get litigation in louisiana. Three days ago, we received a favorable decision in alabama. What this means is we will see something we generally dont see. Africanamerican voters are less likely, traditionally, to vote absentee. Africanamerican voters often have true mistrusted the absentee process, it is part of an acknowledgment of history and so, traditionally, we have not wanted to vote absentee. It is also true that the votes of africanamericans who cast absentee votes are more often not counted then those of white voters because of errors in how the absentee vote was returned to the polls. I think this year we will see something quite different because we have been encouraging particularly elderly africanamericans who are more likely to come out to the polls to vote absentee to protect against covid19. What this means is there is also the application on the back and to count all of the alton t votes. Election night is one issue, but the week after the election is going to be critical to counter those votes particularly in prices where africanamerican places where africanamerican turnout is important to elections. Thereect and fear that may be intimidation of vote counters. Many of us are old enough to remember the Brooks Brothers riot in 2000 during the bush versus gore election. Our fear this year is that rather than wearing khakis, they will be strapped with ar15s. It is critical to engage with attorney generals, governors to prepare to protect the election counters the week after the election so we can ensure all absentee votes are counted. To the extent there are problems are on election day, and this we expect to be an incredible turnout on day, there will be more provisional ballots cast a been usual. These are the ballots that are cast when you come to the table and you know this is your polling place, but somehow your name is not on the books. You are placed on an inactive list or there are other issues associated with your ballot. You may be able to provoke vote provisionally. The following week, you have to come back into the board of elections to cure the provisional ballots. To frame why you should have been allowed to vote at that point place. This is not a big deal because the elections are not that close, but in a number of states and jurisdictions, when the elections may be close, even the provisional ballots will be important. To the extent that we have seen massive Voter Suppression targeted at the Africanamerican Community, pulling places targeted at the Africanamerican Community, we should expect a disproportionate number of people who will be captaining ballots will be black voters. Pressingn, we will be to make sure africanamerican voters who voted provisionally will have an opportunity to of those ballots on the back end. We have issues of intimidation, absentee votes, provisional votes, i should also mention the issue of the polling place itself on election day and to the need to extend polling place hours is likely to be the subject of litigation in a number of jurisdictions. We are going to have long lines especially to the extent that we have problems that exist with machines and we have seen this in 2018 and 2016, machines that mysteriously switch the vote from a one party to another. They have to bring out then a technician to calibrate the machines. In georgia, you may recall the polling place open for hours late because for some reason the power cords were not in the polling place. Dayo into court on election to seek an extension of hours. The last vote in the primary in nevada just the summer was cast at 1 00 in the morning. There is going to be litigation that day to try to extend the hours of the polling place and that, too maybe the cause and some of the delay to cause the elections but also some of the confusion that may happen at the polls and we fear intimidation that may happen particularly if the president frankly uses social media to suggest that people regular illegal evidence of fraud. I want to add one thing on the counter that has not been discussed and may not be discussed today. This is about what happens on january 6. You recall during bush versus gore on january 6 when the electrodes were all to be excepted by congress, it was members of the black caucus who stood and opposed the acceptance of the 25 electors from florida. They were acting in accordance section 15 in which they were raising an election. Under that statute, the objection can only be received if it is also found by at least one member of the senate. No member of the senate was willing in in january, 2001 to signed that objection raised by members of the Congressional Black Caucus. This year, given all we have talked about and the very many legitimate reasons why people may have concerns about the votes that were cast and Voter Suppression in a number of states, we have to keep in mind that the new senate is seated on january 3 and this meeting does not happen until january 6. There may be a senator who is willing to sign on with the objections raised by members of the house, to carry the Congressional Black Caucus if they believe racial Voter Suppression happened in either the casting or counting of ballots. This is one of the reasons why the senate races are so important. As we think about calling the election and what is going to happen in the count, we should remember alabama which normally is written off in the election as a red date red state. We should think about georgia, south carolina, places in which there are Close Senate Races and obviously arizona and colorado more traditionally looked at as potential battleground states. Are focused on those states, we are nonpartisan, but we believe it is critical that every vote is counted. I would draw your attention to the fact that we really have to take this all the way to january 6 and that potential statutory challenge that may be received quite differently in 2021 then it was received in 2001. I will stop there and happy to take questions later. Vivian thank you so much, there are so many variables and i am so grateful to all of the panelists for shedding light on all of them. In the debates of you may rect told the White Supremacist Group proud boys stand back and stand by. Evidence that farright and neofascist groups are preparing to act. In the event of demonstrations by supporters of the Vice President , in the event of intimidation at the polling places, what does the constitution say about armed militia and demonstrators . Shed light on that topic. We are pleased to have the legal director at the institute for constitutional advocacy and protection and visiting professor of law at Georgetown University law center pre. Mary was the Principal Deputy assistant attorney general for the National Security division and was with the u. S. Attorneys office for the district of columbia. Mary, thinks for joining us. Over to you. Mary thank you so much for my fellow and to all panelists. I know our focus here is on the day after, but in light of vivians comments and in light of what we all heard on tuesday night during the president ial debates, i think it is worth talking also a little bit about the prospect of armed groups intimidating voters at the polls. The president the other night was unwilling to denounce the possibility of civil unrest following the election. Towas urging his supporters go to the polls to pull watch poll watch, and was reaching out to the proud boys to standby. This is a dog whistle for farright groups in the country that operate wholly outside of Governmental Authority and have shown particularly in this last year, particularly since the pandemic started and torture floyd was killed, have shown themselves to be coming out in public much more frequently and certainly in response to things the president says. That is both in opposition to government, such as what we saw earlier this spring, when groups of armed individuals storm state houses and governors mansions in lansing, michigan and in kentucky and elsewhere, in opposition to public orders, shut down orders and stayathome orders, and more recently in response to mask orders. We have also seen arms supporting an augmentation of Governmental Authority, and that is usually in response to Racial Justice protests, where they ostensibly deployed to downtown streets during demonstrations and peaceful marches in order to protect property, often in response to false rumors of violent anarchists coming into those communities. This has had tragic results, as we have seen in kenosha, albuquerque, and other places, with people being shot, wounded, and of course killed in kenosha. Two people killed. These armed groups of a history of responding to the president s statements. Not just recently, but over the past several years. Several groups responded to the southwest quarter after the president complained about the Migrant Caravan threatening the u. S. They of course have no authority. They werent called into action by any Governmental Authority, but they came to the southwest border and took migrants into custody and held them for customs and border patrol. To protrumpeploy rallies, extensible to protect rallygoers, and we have seen them callout over social media willingness to come to the president s aid during the impeachment proceedings, in the event that the president should have been impeached and removed from office. Now we have the daily dose of disinformation about mailin ballot being being susceptible to fraud and about any delay in the tabulations being the result of a rigged election, and so based on the past, we can expect that that really will be a call for some of these armed organizations to self deploy to the polls to protect the vote, protect against fraud, and post elections to protect the counting of the votes. If the results dont go their way, there is already talk on social media about civil unrest. To make sure is if you only take three things away from what i have said today, it is first that armed groups of individuals have no authority under federal or state or, that is constitutional statutory law, to call themselves into service as a militia. The Second Amendment, the individual right to bear arms, does not protect paramilitary activity or militia activity by unauthorized armed individuals. And it does not prevent states from prohibiting it. Third, all 50 states prohibit it. Let me unpack that a little bit for you. Groups will often resort to the use of the terms militia in the u. S. Constitution and in state constitutions to say, thats us. We have authority under the constitution to exist, to muster, and to self deploy when we think that its necessary. But militia historically, and before independence here in the u. S. , refers to all ablebodied residents between certain ages who are available to the government to call forth in defense of the state. There is no authority in federal or state law for armed groups of individuals to self activate or call themselves forth. In fact, every state has a very comprehensive scheme by which the governor in times of need can call forth ablebodied individuals. Once he does so this would be to augment the national guard, which already exists in all 50 states if he does so, they would then become subordinate to and must report up through the civilian government. 48 states have baked into their constitutions the requirement that in all cases, the military be subordinate to the sworn in government. Areas ofor all the gray in the Second Amendment, this is not one of them. The Supreme Court in 1886 upheld reconstructionar upheld a law that still exists to this day in 29 states that prohibits bodies of men from associating together as military units or parading or drilling in public with firearms. The Supreme Court upheld that statute against constitutional it wasge in 1886, saying without question that states had to have the ability to prevent such private paramilitary organizations in order to protect peace and good order. In 2008, the Supreme Court in district of columbia versus for our the Holding First time in that case that the Second Amendment protects an individual right to bear arms for individual self protection. It pointedly contrasted that with its statements in 1886, and we affirmed that the Second Amendment does not prevent states from banning private paramilitary organizations. Through the states, constitutional provisions i mentioned, through the antimalicious statutes which are criminal statutes in 29 states, or whether it is through antiparamilitary activity statutes, which barred training, instructing, demonstrating, or practicing the use of firearms or techniques capable of causing injury or death during civil disorder, or whether it is through statutes that bar the false assumption of the duties and functions of law enforcement. There is no state that authorizes this type of private armed activity. There is no state that doesnt prohibit it explicitly in its laws. So it is incumbent about i dont think going into this election, pre, during and post, where we rely on the federal government to protect voter safety and Public Safety, this will fall on state and local officials to know these laws, make public statements right now about the importance of voters being able to feel safe at the polls, the importance for Public Safety after the election, both while we are tabulating the votes and after a winner is declared, and the fact that the laws do not permit this type of vigilante activity by private armed organizations. They can be investigating now, issuing civil orders, they could be doing even criminal prosecutions where necessary. It really should stretch across the ideologicalpolitical divide. The republican commissioner of elections in philadelphia yesterday came out strongly against voter intimidation. That is the kind of thing we need to see. Support the validity of the election. There is no reason to believe that there is going to be any type of massive fraud. No reason to believe that the disinformation that is circulating on social media, and urge peace, calm, and the peaceful transition of power, should that be the result of the election. You so much. Thank i thank you so much. All of our panelists have been so clear. While we all must remain vigilant, we do not want to undermine confidence in systems that are in place and that work. We are going to jump right into, our remaining minutes, into the questions. Nate, this first one is for you, and it comes from adam in new york. States like pennsylvania, which is a swing state, with the republicancontrolled legislature, under what circumstances cannot legislature decide on its electors rather than the electors that were voted in by majority . What are the standards for this happening . Under pennsylvania law let me emphasize that this varies statebystate, so what i will say about pennsylvania does not necessarily apply everywhere but under pennsylvania law, of as to be the choice normal lawmaking process that involves the governor, right . There are several levels at which this question is being asked. The first question is, suppose there is a clear winner in the popular vote in pennsylvania, and in the state legislature wants to essentially overturn that election. Can it do that . The short answer is not under pennsylvania law, but then you get into an interesting debate under the u. S. Constitution, because article two of the u. S. Constitution says each state shall determine in a manner determined by the legislature thereof a number of electorates. Fore, you have the possibility that legislators could make the argument that they have the authority to choose. It is not the end of the story there, because we have robust jurisdictions on voting rights, so if you overturn a popular election the courts will have something to say about it. I do want to emphasize one thing, because i may have spoken in error in my presentation. Ynam glad that sherril mentioned this. Adjudication of the final certificates of the Electoral College is done by congress. It would be both the senate and the house that would do it. The certificates are opened on the floor of the house of representatives, but the dispute is done by both houses of congress. Thanks, nate. The next question, sally, this in comes from david borgman pennsylvania, who is a legendary editor and journalist. The question is, sally, has there been any discussions among the major news players, ap, other wire services, the new york times, the Washington Post and the networks, on working together on ground rules for winter projections this year, given the unique circumstances . Sally you mean around race calling and other things. That is a great question. That is a double edged sword. I think there has been some i thought of that question and things like that. I think the media is very worried about if i went to other news organizations and said hey, here is how we are going to do Election Night, i think that would be open to some , you know, people in this country perhaps saying the media was colluding or Something Like that. I think there has been no. We all have our ethical standards. Other news organizations that are factbased and credible and have high standards, we consult with regularly to make sure that, you know, are we doing things the right way and is there a better way we can do something, Something Like that. There has not been, actually, but i would answer the question another way. We have been participating in every panel like this we could ever find so we can throw out what we do in the most transparent way as possible. How we call races is on our website. We are doing that so the public and other news organizations have the right to contact us, saying hey, we dont agree with this, we criticize this, whatever. That is the transparency we are trying to have this year. I would say it is incredibly higher than any past year. You know, i know a fair amount everyone race calls independently, ok . Everyone projects races independently. We it is a small world and all know what each others standards are. I fundamentally think of that group of people, including the people at fox there was a super interesting column the other day about the race calling operation at fox, which is a very good operation, by the way. And very independent from its, you know, talking head people. I think everyone is trying to do the right thing. We have talked about some of that, but i think i am a little leery of the idea that all the news organizations in america are getting together and describing what to do. What we are trying to do is stick to our standards, be transparent about our standards, and then in real time be transparent about our standards, which are setting the things for us to do that we did not always do historically in the past. But we are willing any panel that is talking to the public about what the media is doing, i am willing to show up at and we are willing to lay everything out there before election day. Anything that anyone has any ideas about, ways to open up the books of the news media, we are open to that idea. Much. thanks, sally, so the next question comes from catherine. She writes, hello from washington state. Something i have heard our secretary of state say by the way, the secretary of state is kim wyman, a republican, in washington state. Washington state has had decades of experience with mailin voting. Something that an Election Administrators job is to they didthe that lose. I would a interested to hear all the panelists talk on this issue. Like ton, would you take that one . Sure that i am not is the job of an elected administrator, and i think many candidates will be impervious to that this year. Thatople have whole teams they are using to advise them on the count. I think these exalted as factors we have all been talking about are very much going to influence whether candidates are willing to accept the count. Think thee hand, i Election Administrators want to be able to do their jobs. This is one of the reasons why i think the potential intimidation of counters after the election is so harmful. Obviously it would be a terrible thing, but it would also increase the likelihood that candidates would not accept the result if they feel pressure has been brought to bear on those counting the ballots, and it will undermine confidence in what Election Administrators say is the outcome. It is very important that the counting, that there be a wide berth around the counting so that people can feel confident in that subsequent week that the ballots are in fact being counted without intimidation, without Election Administrators , withoutxed undermining peoples ability to believe that they should have confidence and account, and in fact undermines the confidence and account. I want to point out in the last question come about whether news media have come together, we should remember social media. Facebook has announced that it will not allow posts by campaigns of the Campaign Calling the election until readers at ap have called the election. So there is, in many conversations with the Facebook Team about our fears about some of how facebook will be used. One thing they have agreed to do is that, that they will not allow the platform to be used for candidates and their campaigns to socalled call the election, and they are relying as theirs and ap official sources, and they will not allow it until those races have been called by those two platforms. Vivian thanks. That is an important addition. The next question comes from sonja jarvis. Theld we be worried that president ordered the attorney general to impound voting boxes in key swing states, or could the president invoke the insurrection act . Mary, i dont know if you want to take that one. If not, we can give it over to nate. Mary i will take the second piece of that, and i will let others take the first piece of that. When it comes to the insurrection act, the president does have some authority to call forward state militias. By that, that means official militias, the national guard, who are reporting through state authority. He has authority to do that in certain circumstances, including tourrection or the inability really protect federal and state law, to enforce and protect federal and state law. The question then is, he can also ask voluntarily for states to send their militias. Saw anmple, what we washington, d. C. On may 30, 31st, june 1, just after george floyd was killed, when we saw the president asking for state and National Guards to send their units to d. C. To quell the civil unrest, that was not a use of the insurrection act. That was a request for them to voluntarily come. A number of states said yes, but overnors of states g also said no to that request. A request, not a demand. Are the circumstances of insurrection or rebellion, the predicates in the statute actually met based on whats going on . I think it would be a misuse of that authority for the president to suggest, for example, that he didnt think the outcome was fair, he didnt think it was right, and to hetect against civil unrest, would invoke the insurrection act. If there is no reason to believe that the election is unfair, it seems that that would be an abuse of that authority. Have an attorney general who is very much a believer in the unitarian executive authority, which holds a great deal of authority in the president. Legalains to be seen what advice or argument the attorney general would make. I think this is another area where potentially we could see litigation if this authority is misused. Thanks, mary. Michelle, do you want to take the first part of that question . Michelle we know the president can order the attorney general to do anything, the question is whether or not he will do it. With this attorney general, sadly, this is the random factor. Whether he could lawfully do it, i would say no. Unfortunately, this attorney general has taken positions that many of us thought are quite alarming, particularly in relation to state power and state authority. This is one of the things that we have to keep talking mind top of mind. All of these things that i mentioned earlier, potential bases for challenging elections and being concerned about what happens during the count, we would normally reach out to the department of justice to assist us or the local u. S. Attorneys to assist us with. I will say that this year, in many states, we dont feel that way. Certainly in terms of what the attorney general is likely to do, there is no confidence in the Civil Rights Community that the attorney general would be protecting the ballot for voters rather than for the president at this moment. Sherrilyn, thank you for that. I am sorry to say we are out of time, because there are a lot of great questions. There are a lot of questions in particular about the specific impacts of President Trumps illness and the various scenarios there. Thank you for touching on that a bit. I am sorry we could not get to them, but thank you. We will post a recording of this on our digital twitter handle. Bealso will, this will broadcast on cnbc. I want to thank all of our speakers and participants, and it is going to be an interesting fall. Im glad you could all be with us. Thanks very much. Night on q a, the cato institutes ian shapiro talks about his book supreme disorder , on the history of Supreme Court nominations and confirmations. Although curiously, roe v. Wade and the issue of abortion in not play to larger role the first couple nominations after it came down. Two years later, president ford nominated john paul stevens, moderate republican in his day, but sort of to the left but wasdentially, not asked about that case, which had been