About how to fix americas elections and several of you noted maybe thats on the best since our goal is precisely the opposite to figure out how to prevent american license from being fixed although will have a very wide ranging discussion of the two books that both of our panels had written in about constitutional issues in the news relating to the coronavirus in the electoral system. Please join us next week for a superb discussion of another book on his new book how to restore trust, the merck institution, that is next tuesday and you can learn more about the program and others at Constitution Center. Org live. We will be taking questions out the program so you can put your questions in the q a box and ill just offer them dry panelist 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 were going to do. It took great pleasure that i introduce her to panelist, edward is the chair in constitutional law at the Ohio State University where he directs its election law programs, he is the author of books including ballot battles, the history of disputed elections in the United States, hes coauthor of election law and litigation and politics and his new book which we will discuss tonights president ial elections and majority rules lies demise and potential restoration of the jeffersonian Electoral College. It is wonderful to welcome you. Its great to be with you and to be part of this program. Thank you so much for being here. Richard is a professor of law Political Science at the university of california irvine law school, he is the author of the often quoted in leading election law blog which i invite listeners to check out, hes the author of several books including the voting wars from florida, 2002 the meltdown in the United Campaign money in the Supreme Court and the American Election in his newest book which i urge you to read and will discuss tonight in the election meltdown, dirty tricks, distrust and the threat to american democracy. Rick it is wonderful to have you with us. Im so glad to be with you and im glad we found a way even though i couldnt join with you today virtually. It is great, zoom conveniens have been so meaningful and work onto have you and were so glad to have our audiences join as well lets jump in with the recent election case in the news and 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, case whose name suggest a high partisan steak divided decision 5 4 decision, Ricky Britton about the decision and said it was an application of what the majority justices called the principal the teller audience of what was at stake in the case, what the principle is and what the implications of the principle are for future election disputes as concisely as you can and i know you can do it because your master. Thats a lot. You can do it. Just to back up a bit, what we saw as the coronavirus hitting across United States estate that had upcoming primaries had to decide what to do and so some states went to head in ohio and arizona and florida, they all had the same primary on the same date in ohio decided to postpone in the decided to go forward, problems there, the next one up was wisconsin, the governor urge that the legislator change the date of the governor did not try to order changing the date, he went back and forth because lots of people were free to show up in person, theres a lot of uncertainty whats going to happen, at one point there was a lawsuit filed to change the rules and the deadlines for receiving absentee ballots. About five times the number of people or nearly would request absentee ballots in wisconsin primary requested them. So there was a huge surge and there were delays in getting what apices ballot process in getting ballots out. So the Federal District court in wisconsin had ordered a couple of things one of those in the Supreme Court was a world that said if you had the deal election on april 7 and if you had sent your ballot back and it was received by april 13, this would be days after the election then the ballot would count. So this part of the court order was bought to the Supreme Court to try to get the court to reverse it and thats of the court did on a 5 4 vote raking along the traditional ideological lines that we see with the courts, the conservative saying even in the context of an emergency you cannot change the rules from an election close to an election and liberals on the court say while these are really extraordinary circumstances, we have a pandemic going on in there going to be some voters who are not even going to receive their ballot in the mail that will have a chance to vote, those of be disenfranchised, voters should not have to put their health up against the right to vote. And in the end we know that voting took place, many more people voted by absentee ballots, the turnout overall was not down from what was in the past, it was certainly down in person voting and we know hundreds of voters probably thousands of voters did not get a chance to vote by absentee ballot because of the Supreme Court ruling. So it really took a classic question, when is an important election to stick to the rules as they are written in winter circumstances so exited you need to bend those roles and disenfranchise them. Thats how i would characterize the divide between the majority. Beautifully distilled, as a knee would, friend you heard rick explain the principle normally dont change the rosary before an election and he described the balance between that principle and whether circumstance required and talked about how the majority disagreed on the balance. Ned, you written a piece in politico about absentee ballots, you said while they can keep people safe and expand voting access, they come as a drawback and lots can go wrong and you said and talked about the things that can go wrong and you said that congress in the state 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 go wrong and how can we avoid it. Thank you, i think wisconsin shows what happened there can happen again in november in any state, it could be pennsylvania, it could happen in philadelphia and it could affect the michigan and detroit or wisconsin again and as rick described the key problem is voters who did everything right, these are eligible voters, registered voters, they applied for their ballots on trying but they never received them, today would be disenfranchised without a ballot and thats what Justice Ginsburg and the dissent was most concerned about. But as rick has noted, the majority was afraid that allowing someone to vote in absentee ballot after the polls closed and change the date of the election and with respect to november, that would be a problem, the election is supposed to be november 3 so the idea that some folks in one city and one state might be running for president on november 6 or seventh is anomaly. So we do need a remedy that prevents disenfranchisement it also allows all ballots to be counted by november 3 wisconsin you so fast in the district judge was trained to do the right thing, they missed a remedy that mightve brought all nine justices together and avoided the ugly ideological split. And what that remedy would be would be in emergency backup ballot, this actually exist now as a matter of federal law for military and overseas voters because Congress Said we cannot disenfranchise the people who are protecting us overseas but they often dont get their official ballot from the government on time because the meals are slow going overseas. The District Court got it wrong thing you can cast a ballot after election day. So that remedy whether enacted by state legislature would get all nine justices on board as long as it doesnt change election day to disenfranchise so the emergency backup ballot we need that for november. Thats great with the followup question, how close to the election is to close to do a mailin ballot or the national backup ballot . And how likely is it for congress and states to adopt the national backup ballot . The good news is that there is adequate political will at the state level rather than congress, we can do the november election and to get the authentic result of the electorate. That there is a lot of work to be done with a greater challenge than ever before because of the pandemic logistical as well as legal they have to have supplie supplies, equipment, personnel , the demand for absentee ballots overloaded the system. I am worried in some jurisdictions the signal will get overloaded so congress could help to put some more many 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 Fair Election in the fall. Im eager for your thoughts how the covid crisis has change your thinking about the election since he wrote the book talking about the practical things the states could do and also to throw in the question with the possible of covid resurgence in the fall how could this affect the election and what should we do about it . When i wrote my book when the covid crisis hit. I had other things that could happen as potential nightmare scenarios whether there is a cyberattack on election day in detroit most do not have emergency rules with how to deal with such a problem we see this play out stay after state and then we know what the contingency plans are. Right now we are more than six months ahead of the election. Now is the time for things to happen talk about shortages of ppe we could worry about shortages of ballot supplies or workers to process the ballots. They have to be put in place now. We hope it will be much better but there could be a surge of voting by mail may be that is not the best way for people to vote what if there is a problem with the Postal Service or postal workers are sick and they are not delivered . You have to have the variety in the most important point is we need to think about this now and october we cant decide how to run the election in november the primaries are movable but we have a hard stop you have to be done casting votes on november 3rd so how to make sure to have a safe and secure System Service many people can vote as possible. As to members of a larger group on tuesday the 28th it is a set of recommendations about things that can and should be done right now to assure not only a Fair Election but the outcome with the elections we will be pushing social media companies, congress , Mainstream Media and others to make changes now to minimize the chances of a meltdown on november. Thank you for that. There are so many good questions on this. 1 or two more would be helpful. Asking the question you address in the book the National Election should have National Election rules rather than need them one leave them to the states with 51 separate elections why cant they do 51 mailin ballots and provide guidance . Do you support National Election rules . How could they be adopted . Its important to think about longterm structural reform on the one hand versus making sure how it works under the basic architecture we have in place. Because of the pandemic we have to get through a Fair Election under the system as we know. That requires some congressional money back the legislative performance made. When we think of longterm reform then think about national changes. There is a lot to be concerned about with the system as it exist. Im not a fan of the Electoral College. Like to replace it but thats hard to do you need a constitutional amendment. Even adjusting it so that it conforms to its own expectations would require state laws to change we can get into more details but i am worried we have the pathology in the way states are implementing the Electoral College that causes a deviation from the will of the voters the electorate cast their votes but we have those plurality winners at the state level not the majority winners and that would be a more authentic expression of what the voters want. The menu of reform is large in my view. At least winning the election to the system that we have. So put that in the q a box email me that address those previous recommendations could be helpful. And the viewers ask if they can postpone the election the november election that the are the power to do that that allow the president to postpone the election with the state based reforms. I feel more certain about the website. My website will be there tuesday morning. Will put that in the box its easier to get there. And the recommendations but on specifics this is a bipartisan Diverse Group we took a lot of conversations and Virtual Meetings to hash out these recommendations im very pleased we can do that and stay tuned we will send out on social media Fair Elections crisis but on to the substance first the most common question i have been getting can donald trump postpone the election . Thats a common question the answer is no. The constitution gives congress to set the date for the electio election. That is set by a statute passed 1845. In order to conform on comply with the constitutional statute to change the day of the election. That said things could affect the election if there are reporters from governors or the president on election day. And why it is better equipped with those full ramifications and bush versus gore that most americans dont recognize that article two of the constitution that Legislature Gets that they have given that choice to voters but in bush versus gore that could the power could be taken back at any time and with the nightmare scenario and President Trump appeals to florida or pennsylvania or North Carolina and to take away that power we cant be sure you have the Electoral College votes yourself. And in the states have the democratic governor to sign off on veto power. Its a whole mess that can, try to take away those powers and that would be something that would lead to social unrest a state legislature that is constitutionally on the table and much more worth talking about. Thank you for signaling that possibility to be precipitated by the Electoral College with regard to the winner take all so what is the legal basis of the practice when they stop doing that why did they substitute and has there been other impending challenges and this is a definitive history of the rise and fall of the jeffersonian Electoral College tell us what that is and then maybe you could take of henrys question about these two states. The book was designed to address the problem of winner take all and how it arrived so to go back to look at the original understanding weve had to Electoral Colleges in history the first one was part of the original constitution dealt with George Washington in mind. And what they had in mind those to be above partisanship, above politics to help parties creating the constitution. So the disaster of 1800 which bloodshed thankfully it did not and the history is fascinating but to cut to the chase Thomas Jefferson does prevail and the Federalist Party john adams and Alexander Hamilton on one side and jefferson and James Madison on the other with intense competition like we have today hyper partisanship so to rebuild the Electoral College thinking about jeffersons reelection in 18 oh four. He is the new image where there is partisan competition it isnt a consensus anymore us versus them if one side wins the other side loses the other side should be the Majority Party not the minority party. The majority rule based on the federal constitution the United States of america a compound majority were jefferson wins the Electoral College to accumulate so that is the new idea adopted in 18 oh three ratified in 18 oh four. No one ever taught me that in constitutional law class that was ignored. And with those fundamental principles are as rich if not richer than the philadelphia convention. They had 12 years of the country under their built on belton republican form of government with the image of majority rule. That is the creation the basically to fall apart in the era of andrew jackson. After that they start to put in place the idea of winner take all not based on the majority but the plurality idea. So what that means as long as there are two parties because in a twoparty world the winner of the most votes is majority winner by definition so if you know more they move from new parties to two parties and independent candidates and thats how the system falls apart so ralph nader in 2000 is a perfect example we dont have to worry about hanging chads and bush versus gore if florida had an electoral system at the state level to require a majority winner because bush didnt get the majority only a plurality because these other candidates on the ballot so it turns out donald trump wins the Electoral College majority at the federal level they cant get 270 electoral votes the magic number with less than 50 percent so florida with 29 electoral votes get all of them winner take all less than 50 percent of the popular vote that is inconsistent with the vision you shouldnt get the Electoral College majority so the system went awry and then to assist the majority rule principle at the state level and how that can be done but thats the essence of the idea. Letter rich and creative idea. And then turn to those important arguments and your thoughts there are so many questions can you explain please explain the interstate compact the alternative. And then like any other thoughts you want to share about potential issues with the nightmare scenario . How do we avoid it . The National PopularVote Movement is to get around without amending the constitution it requires a super majority in congress and the states to agree so the idea the National Popular vote compact and enough in the Electoral College and get those to agree that once states they each upload pledge but to whoever wins the popular vote and the idea is this is a way to choose the popular vote winner through the Electoral College. Im concerned about the National Popular vote and this is what made me dead set against it because now i made arguments and one concern and in the state of california that they dont when is tremendous pressure for the states to pull out. In the compact itself its not clear it is constitutional and to our state legislatures even though i am very sympathetic with the Electoral College is not an institution from those ideas one person one vote but in terms of looking forward to the Electoral College potential problems in november im watching very closely one out of Washington State and another out of colorado but its back on the very last day of the telephonic argument of what we heard on may 13. These are cases of different nightmare questions. We dont vote directly for president but actual people who run and run for trump or biden or the thirdparty campaign and in the last election we had a handful of these electors who decided not to vote for the person they are pledge to vote for then the question becomes what do you do about that selector . Must they follow the rules that the state says . Are do you vote your conscience . People back to lawsuit support the amendment to the constitution and then to show people how terrible the Electoral Colleges and then to abandon the Electoral College. I am concerned so they can vote their consciences there is tremendous pressure but the president should not turn on the identity of a handful of people. Nobody knows and thats a lot of pressure to show the system. Thank you for all that and the National Constitution center with those live discussions with the Supreme Court arguments to convene scholars. And those watching and chat box for the secret code. And larry david asks, any productions on the Supreme Court cases give us a sense of the constitutional argument with those originalist justices inclined to enforce the meaning to be more sympathetic to bring down those state laws. And then to perform that Electoral College. And then how that comes about. I did file the amicus brief based on research to outline with the research from the book. So again, heres the two different Electoral Colleges make some difference there is no doubt the 1787 Electoral College based that electors would be deliberative so they knew that George Washington would be the first winner so how do we get the president as close as possible to George Washington . So that deliberation might lead to that consensus and then with that special mechanism to achieve that that didnt work as planned but that is the goal. By the time the 12th amendment happened in 18 oh three, there is already in place the practice of folks who want to be electors pledging to support their candidate so you have these human beings say if i am the elector i will vote for adams or jefferson based on party affiliation. It is different in the original constitution with respect to the idea and then they assume the new world and then that the states have the power to choose the method of appointing electors they also didnt say they missed you at the party once them to do. And with that interpretation if you want to be a contextual us so i dont know what the court will do even if the court signals electors are entitled with the constitutional privilege they will try to lock down those electors so they dont have anybody go rogue. So the only circumstance we could be vulnerable if we get a very close so in the Electoral College. It is conceivable to have the 269 269 tie looking at the calculators online and its not inconceivable to 69. And really there is incredible pressure to find one electorate to make a different of the outcome. And then 2016 at trump 306 and drop at 300 for but that doesnt put the 270 victory at risk. I dont think it will be a practical issue unless we are very tight. And with those feasible reforms to improve the system and then what the state of maine has just done is ranked Choice Voting is a different form a valid to allow third parties to have a low in the system without messing of the other two but they dont overtake the two main parties but ralph nader in 2000 may have made a difference even though he wasnt as popular as bush over gore. Ring Choice Voting lead avoid up problem. Only florida had the ring choice valid that would have solved the problem because it is a pivotal state. So wisconsin so it is crucial it is conceivable with the thirdparty candidate to make a difference theres rumors the congressman from michigan may run as a libertarian cadet affect the whole election. Thank you for signaling ranked Choice Voting as an alternative but to where can we learn more we post that in the chat box the link to the interactive constitution if you havent checked it out yet the most educational platform with the leading liberal and conservative scholars for what they agree about and disagree about. So i do want you to put on the table the main arguments of your important new book to summarize your introduction facing American Elections in 2020 and beyond dirty tricks and election with that rhetoric or recollection so tell us about the phenomenon and then to introduce essential arguments in the book. And what we talked about at the top of this program is my main concern is voter confidence. And those that are not confident. And we are concerned we will get to november with a close election especially and the losers of the election to make up 37 percent it is very unhappy with the result that may not accept the results the way we see the decline and then the fights laws that are passed voter fraud. To provide documentary proof of citizenship. That 30000 people have the registration put on hold because they didnt produce that piece of paper and then i talk about a trial called fish versus and then to prove that in a court of law. Kovach who is wellknown as an opponent of stricter voting rules to prevent fraud not only kansas but the issue on trial and was the tip of the iceberg and then found if there was no iceberg mostly it was administrative error. We talk how these restrictive laws passed by republican legislatures can see the other side is cheating. Because they are controlled by the elected leaders but then they think they are trying to steal elections. But they believe they are aimed at suppressing the vote. How much . It is about trust and this causes distrust determined by those that might be determined by the laws. With and on those weakest links and in Broward County florida and with the 2018 election of rick scott and everything that came from that. And then to make the point is more of that or voter fraud and then to focus on the weak links and what we are concerned about in 2020. And the social media manipulation and those databases and emails on the eve of the election so im concerned of what might happen in 2020 and one example was the republican candidate and for the ninth Congressional District it such a bad situation and then to alter them with a bipartisan basis to call a new election and with those potentially doubling dirty tricks and then here is not just donald trump but the main people that the elections are rigged. And then to vote illegally in the election also like Sherrod Brown who said and the governor in 2018 that was stolen election and then the focus is in the wrong place and those that are aimed at suppressing the vote. And then to undermine the regime. And then the situation is very volatile and the losers may not accept the results so then thinking of the selected on of the solutions and then to deal with these problems. And with this nightmare scenario pennsylvania and michigan with absentee ballots even without coronavirus. That then they could count those. And then on Election Night and later arriving absentee ballots and then the counties have the fight of those going to the Electoral College of which brings up that it is not close. The Constitution Center is nonpartisan i will not violate the establishment clause that tell us more about this nightmare scenario and with those absentee ballots what about questions of mail or her voter fraud so to respond to that question and then counting those mailin ballots and what we should do about it. We have to anticipate a close election and as we were talking before what we needed this year is one that rick identified is just counted later. We are used to tuning in in america with walter cronkite. To get the answer on Election Night so relying on vote by mail its not a complete tally and then to change the procedures for 100 precincts are in. So the average person understandably says but thats just the in person voting election day itself. And this is the u. S. Senate election 2018 the republican candidate was ahead with 20000 votes a pretty good deed. The shifted and direction in favor of the democrat of 70000 votes flipped the vote. And then the republican candidate acknowledged if he. But the president ial race it could happen again. The reason why we need to be concerned its happening in florida and 2018. Not as much but President Trump was tweeting go with Election Night returns. And with that president ial election this november we could have a missed test the size cancer which is the right result it could be bush versus gore but the reason why bush versus gore ended because al gore accepted diffie after the Supreme Court ruling. He didnt take the fight to congress. This year the loser might not accept diffie even judicially in say i will keep fighting and if it goes to congress , then they do not have adequate rules but the 12th amendment doesnt tell us what to do. It surfaced back in 1876 which nobody remembers that that was uglier than 2000. This year if we get that nightmare scenario it will look like 1876 and congress is not ready for that. Should we be concerned and those that receive no majority to stay in pennsylvania and then to be a fraud so play out these various scenarios what could go wrong . I will refer to add but as well as the question of the voter fraud database. Because this is important until the president started to say a few weeks ago that absentee ballots were suspect. The Heritage Foundation with those allegations of voter fraud going back many years many of them dont involve the actual criminal conviction. With a very good database and with those prosecutions that absentee ballot fraud made up 24 percent of the cases. And to steal ballots the mailboxes. Even though it made up 24 percent on the 491 prosecutions move in a 12 year period where the ballots have been cast. States like utah went to all vote by mail the convenience and efficiency for voters outweighs looking at those five states that has all absentee ballot ballots, there is virtually no record of friday. Other states might be different but these are very clean. Now there is a different calculation it is small but the benefits are great its a question of health and safety i cant imagine how i voter person. But the amount friday is small enough and the benefits to health and safety are so large that if we take certain steps to assure both access to the absentee ballots with other people as well. Thank you so much for that. And then we will post the report in the chat. Check it out. This is amazingly fruitful. And a whole bunch of questions. And then carol says ring choice so how does National Election laws affect house races . Wide if covid19 made that impossible . And then to walk out with a nightmare scenario. What would that be . And on monday may 4th and the university and then to have a roundtable discussion that rick is talking about. And that would be in that report. And then to have a nightmare like this and then have a genuine dispute if anyone is interested you can participate in the event. That current president ial term ends noon january 20. And then to give a finite answer. We have to know the answer by noon january 20th. I hope it never gets to that but if congress did the electoral counteract that 19th century law is ever been fixed and it should be because it gets with that statute its like not having the ppe in a pandemic. Wonderful practical solution you are suggesting perhaps the Constitution Center could persuade both of you to discuss potential reforms. I am so proud of the viewers to convene we all lost track of the day of the week to educate yourself of the constitution more than 400 have been watching live. Please keep doing that tuning into the townhall programs to learn and we the people all podcast. And educating ourselves of the u. S. Constitution. We look forward to seeing you again. With a Columbia Journalism School im pleased to welcome you with tonights conversation i am sorry we are conducting this virtually and we are back together again next year the way we celebrate these wonderful words in memory of the great nonfiction writers over a