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 choice to voters but in bush versus gore the supreme cuts court said although every state has favored the voter the power could be taken back by state legislature at any time. One thing i worry about if were talking about nightmare scenarios is what if President Trump appeals to the legislature of wisconsin or pennsylvania or florida or North Carolina although those are states with republican legislatures and said, take away the power from voters theres too much going on with the pandemic we cant be sure people will be able to vote, you vote Electoral College vote yourself. And this subsidiary do dispute about whether in those states that have democratic governors whether democratic governor will have to sign off or have veto power or not. Theres a whole mess which is just a small part of the problem with the Electoral College that could come with trying to take away those powers i think that would be something that would lead to mass social unrest if the state legislature decided not to let the voters in the state voted for president but at least its something thats constitutionally on the table and something thats a much more worth talking about the issue of delaying the election. Thank you for signaling that possibility of crisis being precipitated by Electoral College was that we have several questions about the Electoral College including henry stoler with regards to winner take all and avoiding states delegation Electoral College from whats the legal basis for this practice, which to state stop doing it that way what was the legal basis for stopping doing that way . What are those two states substituted for winner take all and have there been pending challenges to them to states of having winner take all . Ned, your book is definitive history of what the rise and fall of what you call the jeffersonian Electoral College, what you tell us what the jeffersonian Electoral College is, how it rose and fell and then maybe you could take up henrys question about these two states. Thank you, thats exactly right, the book was designed to address this problem of winner take all and how did it arise and what was it consistent with the original understanding. When i went back to look at the original understanding of Electoral College the first thing that surprised me, is we had two Electoral Colleges in the history and the one that governs us now is not the first one, the first was a part of the original execution of the convention 1787 and it was filled with George Washington inside. That was the image of what a good winner would be and what they had in mind was the president of both publishing ship, about politics, about the fray. They hope to avoid Political Parties in the creed constitution it obviously didnt work out that way and we got one of the parties pretty quickly. Then there was this disastrous election of 1800 which almost caused bloodshed thankfully it didnt in the history is fascinating but cut to the chase, Thomas Jefferson does prevail and his party, which is the socalled federalist parties have the founders footprint, john adams and Alexander Hamilton on one side in one party, jefferson and James Madison on the other side and its intense competition like we have today, hyper partisanship. The jeffersonians refill the Electoral College thinking about jeffersons reelection in 1804 so he is the new image of an authentic winner for a world where there is partisan partition is not going to be consensus anymore, its going to be us versus them. If one side wins the other side loses at least the weather should be the majority party, not the minority party. Majority rule for them is based on the federal constitution for the United States of america so its a complicated compound majority were jefferson wins the Electoral College majority by accumulating statebased majority. Thats the new idea. This is the Fourth Amendment adopted by congress in 1803 ratified in time for 1804 and its philosophically very different from the original. No one ever taught me that in my constitutional law class the 12th amendment was ignored it turns out the debate in congress on the fundamental principles of our presidency are as rich if not richer than the Philadelphia Convention that had more time they are household names that they had experience they had 12 years with the country under their belt and rethinking federalism. They were rethinking republican form of government they reinvented the presidency with this image of majority rules. That was the creation but it basically fell apart in the era of Andrew Jackson after the disputed election of 1824. After that, states started to put in place as state law this idea of winner take all of electoral vote of each state met based on majority but based on the socalled plurality idea. And what that means is that its okay if theres two parties that they thought they would be because in a two party world the winner of the most vote is majority winner by definition, right . Theres only two if you have more you have more than 50 . They moved from no parties to two parties they didnt anticipate third parties or independent candidates. Thats how the system falls apart. Ralph nader in 2000 the perfect example, we wouldnt have had to worry about hanging chads in bush versus gore if florida had had an electoral system at the state level that required a majority winner because bush didnt get a majority, he only got a plurality because you have these other candidates on the ballot. Turns out in 2016 donald trump wins Electoral College majority at the federal level but he cant get to 270 electoral votes, the magic number, without waiting states with less than 50 . Florida, for example again have 29 electoral votes, trumpets all 29 electoral votes, thats winner take all with less than 50 of the popular vote. Thats inconsistent with the jeffersonian vision because you werent supposed to get your Electoral College majority without a majority of the state level. The system went awry, how we fix it is to insist states adopt majority rule principal at the state level. And there is details on how that could be done but thats the essence of the idea. Wonderfully summarized, what a rich and creative and important argument, thank you for sharing it. Rick, your book is not primarily about the Electoral College you say it will turn to your very important arguments in a moment but i love your thoughts on the Electoral College, theres so many questions about it in our questionandanswer Box Including leon mott to ask mckee please explain in plain language the National Popular vote interstate compact, thats an alternative seat Electoral College that ned considers and ends up rejecting and then rick, any other stocks youd like to share about potential issues he gave this nightmare scenario involving the Electoral College, how could it play out and how could we avoid it . The National Popular Vote Movement is a way to try to get around the Electoral College without actually amending the constitution, to demand the constitution is very arduous process it requires getting majorities in congress and requires getting super majority of the states to agree. So its very difficult. The idea of the National Popular vote compact is you get enough states that represent the majority in the Electoral College, and 270, you get the states to agree that what states representing the 270 vote all agree, they would each pledge there Electoral College vote not whoever gets the most vote in each state as part of the group but to whoever wins the popular vote nationally. And the idea is that this would be a way to choose the popular vote winner through the Electoral College. Im concerned about the National Popular vote and i would say i was a skeptic of it until i read neds book which may be dead set against it because ned really made some arguments about how this could go awry and one concern of course is say my state of california it looks like the state that most voters, most voters in the state candidate dont like is that a witness can be tremendous pressure for the state to pull out of this agreement. Although the compact itself says you cant do that, its not clear that its constitutional to limit states especially as we talked about article 2 gives states power to choose how to pay collectors. It created a real mess even on very sympathetic with the idea that the Electoral College is not an institution that along with usual democratic ideas but one person one vote. In terms of looking forward to Electoral College potential problems in november and watching very closely a pair of cases one out of Washington State and one out of colorado but the Supreme Court is going to hear the Supreme Court had to postpone arguments in many of its cases but its put back for argument on the very last day of its term through telephonic argument these cases will be heard on may 13. These are cases that raise some different nightmare questions which is about faithless electors. We dont vote directly for president we vote for actual people who run and are pledged to a vote for trump or biden or Third Party Candidate. In the last election and early elections weve had a handful of these electors who decided not to vote for the person they are pledged to vote for. The question becomes, what you do about a face selected. Must they follow the rules that the state says you got to vote the way that the vote goes by the voters in the state or can you vote your conscience . Some of the people backing this law said are people who support an amendment to the constitution to get rid of the Electoral College or support the National Popular vote plan and hoping that giving electors this freedom which show people how terrible the Electoral College is and would actually cause people to abandon the Electoral College and would get Something Like the National Popular vote to blow it up in order to fix it. Im concerned if the ruling stands if the Supreme Court says electors can vote their consciences, theres good to be tremendous pressure for a very close race in Electoral College for those electors to be pressured, brought, all kinds of things that happen, the fate of whos the president shouldnt not turn on the identity of a handful of these people who are not people that anyone really knows anything about. The parties are opposite going to do a best job they can to vet these electors but i think it will puts a lot of pressure on these human beings and shows the rickety nature of the Electoral College system as we have right now. Thank you for all of that and thanks for singling those two cases. The National Constitution center is going to run live discussions right after the Supreme Court arguments will convene scholars like ned and rick we can persuade them and others liberal and conservative scholars to unpack the cases we can tune in for that. Now is the time of the show were about halfway through where have to tell those of you who are watching for cle to look in the chat box for the secret code is so exciting i cant possibly reveal it because then people would know it on youtube but if you want the credit go to the chat box you will see this incredible coming in well devised code. Ned, larry david asks, any predictions on the results and effects of the pending Supreme Court case about laws . Maybe give us a sense of the constitutional arguments on both sides naturally i wonder whether originalist justices who are inclined to enforce the original meaning of the college would be more sympathetic to striking down state laws that forbid electors from exercising their conscience and then you can piggyback from there into what you think your preferred alternative to performing Electoral College is better and then practically several of our questioners ask how could actually come about . I should disclose i did file an amicus brief based on the research of the book in support of Neither Party would just outlining for the benefit of the court the research from the book. Heres where the two different Electoral College make potentially some difference. I think theres no doubt the 1787 Electoral College was based on the assumption that electors were supposed to be independently deliberative. They were entitled to vote their conscience that was one way, they knew that George Washington would be the first winter they figured, what can happen when he leaves the scene . How do we get the president as close as possible to George Washington . They wanted a consensus choice so they thought deliberation among the electors might lead to that kind of consensus. They devised special mechanism in the hope to achieve that. It didnt work as planned but that was the goal. By the time the 12th amendment happened and congress adopted in 1803 ratified 1804, there is already in place this practice of folks who want to be electors pledging the support their party and the candidate. In both 1796 and 1800 you have these human beings saying, if im a lector, and voting for adams or in voting for jefferson based on party affiliation. The 12th amendment is adopted on an assumption thats quite different from the original constitution with respect to this idea. I also think its important to recognize that they didnt change this feature, they just assumed a new world based on this new practice and just like they left in place the speech states have the power to change the method of appointing the electors, they also didnt say that electors must do what the party wants them to do. I think it depends on your theory of constitutional interpretation and whether you want to be a textual list or more faithful to their faithful philosophy. I dont know what the court is actually going to do. I think its a practical political matter even if the court signaled the electors are entitled to the states with the matter of constitutional privilege the parties are going to try to avoid that. There gonna try to lock down fully faithful electors so that they dont have anybody go logo on them. I think the only circumstances in which we might be vulnerable is if we get a very close vote in the Electoral College, its conceivable, you could have a 269o69 ties, i play with these Electoral College calculators online maybe some of the audience does, it is not inconceivable this year we end up to 70o68 or even 269b69. It would be that scenario where i think there would be incredible pressure on to find one elect door to flip to make a difference in the outcome. If we get as a result like in 2016 with trump at 306 remember he drops to 304 because he did have two electors but it didnt put his 270 victory at risk. I dont think its going to be a practical issue unless we are very tight. If you dont mind, you had asked about feasible reforms to improve the system. What i recommend is what states do with the state of maine has just done which is adopt something called ranked Choice Voting which we can go into if you want to, as a different form of ballot that will allow third parties to have a role in the system without messing up the competition between the two main parties that the third parties are really going to get very far. Third parties get only five percent or three percent they dont overtake the two main parties that they operate with some people pejoratively call spoilers. Ralph nader in 2000 might make a difference even though he wasnt nearly as popular as bush or gore but he mightve been influential in who wins. Ranked Choice Voting would avoid that problem you dont need an interstate compact for that you dont need a constitutional amendment if only florida had had a right choice ballot in 2000, that wouldve solved the problem because it was the pivotal state. If wisconsin for example pivotal state this year, its crucial what its rules are. And its conceivable we could still have a Third Party Candidate that could make a difference, theres rumors of justin unwashed member of congress from michigan might run as libertarian, that could be the factor that affects the whole election. Thanks very much for singling right Choice Voting as an alternative. I will ask more about it in a moment. I want to say first several of our questioners have asked, where can we learn more about the Electoral College we posted in the chat box a link to the National Constitution centers interactive constitution, friends, this is the most amazing resource if you have it checked out yet its the most meaningful educational platform all of us at the center have ever been involved in building and brings together leading liberal and conservative scholars in america to write about every clause of the constitution describing what they agree about and what they disagree about and you can check out the explainers on the Electoral College. Rick, i do want to ask you to put on the table the main arguments of your important new book annually clearly summarize them in your introduction we identify for principal dangers facing American Elections and mockery democracy in 2020 and beyond Voter Suppression pockets of electoral incompetence dirty tricks and election and rising incendiary rhetoric about stolen or rigged election can you tell us about those phenomena and what you think we can do about it. The big question but introduced the central arguments of your book. Let me say, this goes back to i think we talked about at the very top of this program which is my main concern is about voter confidence in the process. If you look at recent polling by npr and gallop you over 40 of the American Public theyre not confident that their vote will be fairly and accurately counted. Im very concerned really gets november will be postelection and especially given covid19 theres gonna be problems with how the elections administered and the losers of the election those on the losing side we know there probably make up at least 47 percent of the American Population they can be very unhappy with the result that they may not accept the results as legitimate. What i do in election meltdown is i offer for reasons why think we are seeing this decline in confidence and then what we can do about it. The four reasons first as these fights over laws that are passed in the name of preventing voter fraud that have been challenged in court and i focus on a particular case involving a law in kansas that said you have to provide documentary proof of citizenship like your drivers license aba birth certificate or naturalization certificate if you want to be able to register to vote we know 30,000 people had their registration suspended or put on hold because they didnt produce that piece of paper by the time the court looked at this question and talk about a child that took place in kansas over the small called fish versus go back where it was really the chance for those who claim voter fraud to prove it in a court of law. Kris kobach, whose wellknown as a proponent of stricter voting rules in the name of preventing fraud was not only secretary of state of kansas but put this issue on trial he claimed that what he could prove was the tip of iceberg. District court after a long trial found there was no iceberg there was only an icicle made up mostly of administrative error. I talk about all these spikes over restrictive laws that are passed almost always by republican legislatures and republican officials convince both sides the other side is cheating. Republicans believe because they were told by some of their leaders like the president and call back that voter fraud is rampant they think democrats are trying to steal elections, democrats see that these laws are not preventing an appreciable amount of fraud and belief these laws are aimed at suppressing the vote. In the question about how much it might suppress the vote but my concern of the book is about trust and this causes distrust this kind of fighting regardless of the number of people that might be deterred by these laws. Second, we are pockets of incompetent Election Administration it doesnt matter what a very close election 95 or 90 of Election Administration is doing a very good job it matters in a very close election the focus is gonna be on the weakest link. I use the example of a democratic election administrator in Broward County florida and the problem she had with the recount of a very close 2018 election for u. S. Senate and flirted with between bill nelson and rick scott and all the problems that got revealed a net. So i had a long piece in the wall street journal making the point youre more likely to be disenfranchised because of poor Election Administration and because of Voter Suppression or fraud. I think we need more focus on these weak links. I was talking about problems and how to aba place and very much concerned about in 2020. Third problem are dirty tricks we all know about what the russians did in 2016. Social media manipulation, hacking into state Voter Registration databases, stealing election emails and releasing them on the eve of the election to try to influence the election and so im concerned about the dirty tricks that might happen in 2020 whether theyre done by foreign or domestic actors. One example we had is tampering with absentee ballots done to favor republican candidate hannah 2018 u. S. Congressional race for North Carolina night Congressional District was such a bad situation in terms of stealing ballots from voters or altering them on a bipartisan basis the North Carolina election board called new election. We have to be concerned about these rare but potentially troubling dirty tricks. And then the last problem is increasingly incendiary rhetoric about rigged or stolen elections. Its not just donald trump talking about this although hes one of the main people that claim elections are rigged or stolen without evidence. He famously claimed 3 million voters voted illegally in the 2016 election theres no proof of that but its also people like sharon brown United States senator who said Stacey Abrams election for governor in 2018 was stolen talk about stolen elections without proof i think puts the focus in the wrong place it certainly find to say that george did some things aimed at suppressing the vote but when you Start Talking about election being stolen are regularly getting to undermining the very legitimacy of our process. But it all together these four things leads to a situation where think its very volatile and there is a sense that the losers might not reset except the results. The worker try to do at the end of the book and thinking about solutions in the work that ned and i are doing on this committee is aimed at trying to think about how to deal with these problems. I will just end with this one nightmare scenario which ned and i have been talking about for months pennsylvania and michigan have moved to no excuse absentee balloting. Theres going to be a flood of absentee ballots even without coronavirus, a flood of absentee ballots coming and we dont know Election Administrators in detroit a philadelphia organ to be able to count those vote quickly. What happens if trump is ahead on Election Night and he declares victory and says all those later arriving absentee ballots are tainted by fraud, which is a claim hes already made invited claims victory we potentially have a fight over who wins the states potentially competing electorals going to Electoral College thats one of the things im really worried about which brings up finally, the Election Administrations prayer which is that the election not be close. The National Constitution center is nonpartisan and i will does violate the establishment clause by encouraging or not encouraging anyone to pray. Tell us more about this nightmare scenario that you and rick have been discussing of late arriving absentee ballots. James were back asks, what about questions of mail in voter fraud . Respond to that question and ends play out the kinds of disputes about celtic mail and belts that might arise and what you think we should do about it if election is close one of the problems is the one that rick identified which is that they just get counted later we are used to in america tuning in on Election Night and we got this from roster to cronkite in the 1960s. To get out your screen and get the answer. We changed our voting practice and by relying much more on both by mail, it means the elections ignitability is not a fleet tally. There is nothing nefarious about that is just we change our procedures. The networks still tell us that 100 of precincts in and so the average person understandably thinks if 100 of precincts are in, you must have a result. Thats just the in person voting on election day itself. There still absentee ballots to count. They can shift the results. Arizona had u. S. Senate election in 2018 and on Election Night the republican candidate was ahead considerably i think around 20,000 vote. A pretty good lead. The shift in direction and favor of the democrats was 70,000 vote. And flip to the results. To their credit they didnt actually have allout litigation in arizona over that. The republican candidate acknowledged defeat but what if this happens to the president ial race . It could happen in pennsylvania, michigan again and the reason why we need to be concerned is because there was Something Like this happening in florida in 2018 not as much i didnt flip the u. S. Senate seat there or governors race there but President Trump was tweeting, go with Election Night returns, dont allow the other vote to affect the results. We dont trust them. So if that affected the president ial election this november, we could have a metastasizing cancer if you will as urges lawsuit after lawsuit debating on which is the right result. It could be another bush versus gores going to the courts but as rick pointed out the reason why bush versus gore ended the election was al gore accepted defeat after the Supreme Court ruling. He didnt take his fight on to congress. This years flu losers, as rick said, might not accept defeat even a judicial defeat and says im still gonna keep fighting and if the dispute goes to congress, congress does not have adequate rules goes back to the 12th amendment we talked about different aspects of the 12th amendment to 12 the number doesnt tell us what to do if there is a fight over who won. This surface back in 1876 which number your members because we were in not around them but that was a fight even uglier than 2000. Im worried that this year forgive the kind of nightmare scenario rick is talking about it will look more like 1876 then it will 2000 and congress is not ready for that and that worries me. Wow. Some of our viewers have more questions about these nightmare scenarios. Stephen smith asked should be concerned the house and senate may be unable to meet in january to count the electoral votes and certified the winner or in the event of no candidate receives a majority to select a winner can moskowitz says in pennsylvania absentee altar, the precinct level provisional vote is not holding in absentee ballots would be a fraud. Rick, play out these various scenarios in the wake of covid what could go wrong . Im going to defer to ned on what happens if congress cant meet. We would be in a situation of the 20th amendment but hes the Electoral College expert here. Let me pick up on the other question. About the Heritage Foundations voter fraud database. What we know about absentee fraud . I think this is very poor. This is not an issue that was really on the radar until the president started saying a few weeks ago in the wake of attempt to move to more vote by mail that absentee balloting somehow suspect. The Heritage Foundation website lists all allegations of voter fraud going back for many years and some of them involve absentee ballots many of them dont many dont involve actual criminal conviction or even prosecution. Id like to rely on a very good database put together by news 21 an organization out of Asu Cronkite School for journalism they looked at all election prosecutions across the United States for it to 12 year period. What they found was that absentee ballot fraud made up about 24 percent of the cases by far the largest category of fraud. This is usually not fraud committed by voters, fraud against voters like stealing ballots of mailboxes or applying for peoples absentee ballots without their permission. Even though it made up 24 percent of this database, only 491 prosecutions, not all of them convictions in a 12 year period in which billions of ballots had been cast. What i would like to say is that states like utah have republican state, one of five states and will to all vote by mail have said the convenience and efficiency of voting by mail for voters outweighs the small risk of fraud. If you look at the five states that have all mail absentee balloting there is virtually no record of fraud. In other pricks the country things might be different but in those states its very clean. Here with the coronavirus we have a different calculation. The potential for fraud is still small but the benefits are great, its no longer just a question of convenience, is a question of health and safety. I will move voter that always likes to vote in person i can imagine things are like they are now the negative vote in person. Many people are going to choose to vote by mail is not a perfect system but the amount of fraud is small enough and the benefits to health and safety are so large that if we take certain steps to ensure access and integrity to absentee ballots and convicts we could have a Fair Election and we need to convince other people of that as well. Thank you so much for that. James were back postelection report under the chat if folks want to check it out. The Constitution Center town hall Supreme Court has to end on time so, ned, you have the last word theres so much to say this is an amazingly fruitful and eliminating illuminating discussion. There are a whole bunch of questions i will put a few on the Table Including carol raffaella says rake choices easy to use, why hasnt it gotten more traction . And then can moskowitz asked how would National Election laws affect sudden inhouse races and others a lot of interest in the Electoral College scenario, tell us what would happen if covid made it impossible for the house and the Electoral College vote to be counted . You can walk us out with your nightmare scenario and if you have one form you could have to avoid it what would it be . The good news is that the audience is interested in this particular topic ohio state is going to run an event may 4, monday, may 4 c can go to our website www. Election law at morris you will be a webinar format kind of like this where we will have a roundtable discussion that builds on the report that rick is talking about and i dont want to steal ricks thunder but the may 4 event is a follow on to what idea that i think is going to be in that report. It focuses on what if we have a nightmare like this in congress on january 6, 2021 has a genuine dispute where both candidates are claiming victory still in what happens. If anybodys interested, we welcome you to participate in that event. One clear answer is that the current president ial term ends at noon on january 20. Thus the 20th amendment in the constitution and that gives a finite answer. We need a new winner we need to know who the winner is by noon january 20 and if we dont, then we are enacting president scenario. I hope it never gets to that. With the bad statute thats like not having the ppe hospitals need in a pandemic. Wonderful practical solution, this was at course at bush the gore and this is excellent and the Constitution Center might persuade both of you to come back to discuss the potential reforms. So friends, im so proud of you viewers for convening at 7 00 p. M. On whatever day it is because of all lost track of it to exit edge and educate yourself on the constitution more than 400 have been listening to the arguments on both sides please keep doing that please continue to come into the town hall centers learn our weekly we the people podcast which brings the best scholars available join the light hot live classes for high school and college kids which i am learning from us all of you nuts certainly interactive i think that is awake under great learning tool. Lets keep educating ourselves on the u. S. Constitution brace a big virtual clap lease join me and thanking these gentlemen and look forward to seeing you all again soon, thank you. Announced cspan2 book tv more television for serious readers. So hello everyone good afternoon welcome to pnp life at lunch. I am heidi lewis the director of Corporate Events and sales for politics or prose a bookstore in washington d. C. 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