Pushkin from Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. There's been a lot going on with the US Postal Service. In May, a new Postmaster General came into office, a businessman named Louis Dejoi, who is a big donor to the Trump campaign. After taking office, Dejoi instituted several cost cutting measures, like eliminating overtime pay for some workers, shortening post office hours, and other proposals that the Post Office said had long been under consideration. These changes and others led to concerns that the Post Office would not be equipped to handle an election in the middle of a pandemic because many more people than usual would be voting by mail. Many observers thought these changes were politically motivated, since Democrats might be more likely to vote by mail than Republicans. Now, DeJoy says these changes and others will be suspended until after the election. Here to help us make sense of all of this, how worried we should be and what really has been going on is Elaine Kamark. She's the director of the Center for Effective Public Management at the Brookings institution. She's been studying the post Office for years. She worked in Bill Clinton's White House on the Reinventing Government initiative, and for many years has been a participant in democratic politics. We spoke on Monday morning, Elaine, Thank you so much for joining us. I wonder if we could start with, to use an old fashioned expression, the facts which are not always prominent in our current moment of panic about the US Postal Service. So I want to start by going back before Louis Dejoi took over, and before he became the focal point of concerns about what's happening to the Postal Service? Where did this all start? In your view, Ironically, even though it's so much in the news now, this is a very very old story. I mean this is literally decades old, because the Post Office first started to get in trouble at the turn of the century, as first class mails began to disappear. The big, big hit to first class mail was when we stopped mailing in our bills and started paying our bills online, and that really decimated first class mail. And that was the post Office's highest return. I mean, that was this most profitable and the post Office has been forbidden for many years from really going into entrepreneurial activities. To make a long story short, let me say that the Post Office has been in trouble for two decades. It has needed to adjust us to the new world where we have much, much less mail, and both political parties have been really reluctant to do anything about the Post Office. And so this comes kind of as a for those of us who have studied the post Office for a long time. This is kind of like, oh my god, the whole world is suddenly discovering what the crisis is at the post Office. I want to ask you a follow up question to that before we dive into this summer's controversy, and it's this, I'm always confused, as someone who's interested in government but not a post office expert, by what seemed like two contradictory strands in the kind of discussion that you were just briefly describing. On the one hand, we hear the post office being treated like a business. It's losing money, it's not making a profit. It's lost it's customers. You know, it's a money loser for the government. On the other hand, we have this counter narrative that the post Office is a public service, a public good. We shouldn't even be thinking about it from this perspective as a competitor or as a business because it's there to deliver the mail through wind and snow and sleet and hail and to get it to everybody, none of which is designed to make money. So help me out here. You know which way should we be thinking about the post Office? Well, in two ways. First of all, the post Office is in the constitution. Okay, it's the only public agency in the constitution, and it is very important for the purpose of binding the country together. So the most important public aspect of the post Office is universal service. Is the universal service pledge that basically, no matter how far down the road you live in rural Montana, you can get something from the post office. So that's the rock bottom public service. Now, the question then gets a little bit blurry when you get to the business side, right, because the question is can post office maintain universal public service and not lose as much money? I think they can. There's going to have to be adjustments in service down the line. Now, the Post Office itself has been closing sorting facilities, they've been changing things up, they move mailboxes all the time, by the way. Okay, so that's a little bit of a paranoia that's out there. People who have been sendating pictures of mailboxes on trucks. That happens all the time. And so there's this ongoing debate about how do you maintain universal service and not lose as much money. Nobody, I think in the Congress Oran government expects the post Office to make money. But the question is they have been losing loads and loads of money, and how can you do these two things? And it's quite difficult. But one of the things discussed all the time, for instance, ending Saturday service. We all are used to get email on Saturday and just not on Sunday. The question is could we end Saturday service? And that's one of the things that's out there, and then there's a lot of other ideas out there. I can't resist mentioning, by the way, that the one time in my own academic work that I ever came across a big fight about the post office was in the early nineteenth century, so almost exactly two hundred years ago, when there was a huge fight about Sunday service. It turns out the post office used to deliver the mail on Sunday. And this became a controversy because the more secular oriented, questionable blasphemer types in small towns like to hang out in the post office. Because in a lot of places in the United States, especially in new places, the only public place to congregate that wasn't church was the post office. And ministers were really upset that there was a sort of competing venue on Sunday mornings, and they started a national movement to shut down Sunday service, and they actually succeeded astonishingly, which is sort of unbelievable. And their speeches in Congress by a congressman making the first important argument for the separation of church and state ever made in Congress, somebody saying, well, we're not a Christian country, really, so therefore we should continue to have service on Sunding. Other people saying, what are you talking about. You know, this is a terrible blasphemy. Anyway, it's a genuine digression. But sometimes on deep background we digress a little bit. That's that's terrific. I want to turn now to this summer, coming all the way up to the present, and early in the summer, the Post Office was talking about cost cutting that was already beginning to delay mail delivery by up to a week in some places. And it also was saying that it was going to decommission ten percent of the sorting machines that it uses. Were these things, in your view, continuous with the kinds of reform that happens all the time, sort of like moving around the post office boxes on a big scale, or were these things already part of some possibly coordinated plan to slow down mail in advance of the upcoming pandemic election. Well, the Post Office says these were continuous, and the Democrats think that this was part of a plan. Here's the way I would answer that if Donald Trump had not made a huge deal and a huge attack on mail in ballots, my guess is this would have passed relatively unnoticed. But Donald Trump, at about the same time began railing against mail in ballots and encouraging people not to use them and saying that these systems were corrupt, which, by the way, there is not a shred of evidence too. And so it was the conjunction of some of these cuts and some of these cost savings, some of which would have been probably business as usual, and Donald Trump railing against mail in ballots. That made everybody say, hey, wait a minute, is he trying to suppress the vote? Is he trying to keep people from voting? Now, he's been all over the place on this. Trump has, but he seems to be particularly geared up against mail in ballots in the states that are universal mail in ballots as opposed to absentee ballots. But the fact of the matter is that any slowdown in the mail in election season would in fact affect ballots. Even though the Post Office has always treated ballots this is interesting. They've always treated ballots as first class mail, as privileged mail, regardless of no stamp, what kind of stamp, bulk mail, whatever, It's always been treated as privileged mail. Many fascinating things, and what you just said, let me start with a small one and then moved to the bigger one. The small one about the Post Office traditionally treating your ballot as first class mail even if you didn't put first class postage on it. CNN reports that there were plans in place, or at least documents in the Post Office being produced over the course of the summer that said, let's change that policy and let's only deliver ballots as first class may if they have first class postage. The Post Office says those weren't official policy documents. I'm not sure what they mean by that, and Louis Dejoi has said, don't worry, we're not going to make that change. What do you think about that particular small debate. I don't think it's so small. I mean, I think that is one piece of evidence that Louie de joy was getting White House pressure on this issue. I've been in a White House, and the way it works is the President doesn't always have to say to the postmaster general, hey, you should stop treating ballots as first class mail. But if the president is spending week after week tweeting about the disastrous things that will happen if we have an election by mail, a postmaster general might say, hey, this is a good policy. We can stop this and please the White House. And they got caught, pure and simple, they got caught in something that they should have never ever considered, never considered doing this. I mean, it goes so far back that postal workers have been known to buy hand take ballots out of the sorting process in order to make sure that they were delivered first class. And delivered immediately. So this is a long tradition with the post office. It's important to democracy. The postal workers see their mission as doing this and look, they got caught. That's what happened. This is particularly fascinating at the big picture level because the detail then leads to the big impact. If I'm hearing you correctly, and tell me if I am, this is a kind of signature Trump move. He doesn't know the details. He starts out with a public attack on mail and balloting because he doesn't like it, and also because he's trying to discourage and confuse people from using it. Then he puts in place a postmaster general. He can't do it directly because of the way the post Office is set up, but via his appointees, he indirectly is able to influence the appointment of a Postmaster General who actually starts flirting in a serious way with changes that actually would potentially affect delivery of the mail. And although we don't know, I take it. How many ballots in the past have been submitted with less than a first class postage and got en treated as having postage. It's a kind of change to the culture, is what you're saying there's a kind of cultural norm in the Post Office that one of our jobs, in terms of delivering a public service is to get people's ballots in. That just seems really, really important as a civic matter. And here you have Post Office officials talking not openly but within the Post Office about just not doing that, thereby sending the message that are kind of on board with the president, and then they get caught, as you say, and then this adds up to a huge public worry and concern and debate, which maybe what Trump wanted in the first place. This is par for the course for his presidency. He says things based on no knowledge, he gets them in motion, and then time after time we see his appointees and his aids scurrying around to try to make it actually happen, and then we see blowing up in his face. I mean, one of the ironies of this is that if you try to assess rational thinking to the president, it just does work. And let me give you the clearest example. The five states that have mail in ballots and have used them for quite some time are Oregon solidly democratic, Washington solidly democratic, California solidly democratic, Hawaii, the District of Columbia solidly Democratic. Then you have Colorado, which is potentially a swing state, and Utah, which is a Republican state. Now, if Donald Trump thinks that he can argue that the election was stolen from him because without mail ballots he would have won California, that is preposterous on the face of it. And nobody's going to believe it. I mean, they'll just laugh him. But I don't even think he'll get to court on that one. But he's clearly trying to set up an excuse for why he's not going to win. And this makes no sense, right, It just makes no sense whatsoever, as are so many of Donald Trump's purported policy moves. We'll be back in a moment. One of the things that most upset me in the Post Office story over the summer was the report in the Washington Post that at the end of July, the General Counsel and Executive Vice President of the Post Office, Thomas Marshall, sent letters to forty six states and the District of Columbia basically saying, we're not at all shore. In fact, we doubt that we can get mail in ballots too you in time for you to count them in relation to the election. Now, this was done privately, so this we can't attribute to a Trumpian plan, or I can't attribute to a Trumpian plan to try to influence public opinion because they did it quietly, and in fact, it took some doing on the part of the newspaper to get the story out. What's your interpretation of what was going on with this letter? Were they making a record in advance in case things went wrong later? What's your read You spent a lot of time inside of government. You know exactly about the different motivations, including the Cya motivations that are there in play for a letter like this. Well, I think it's a Cya motivation for sure. But I think that the thing about coming November is that we had all these primaries happening in twenty twenty, and the primaries taught the states important things about what's going to happen in November. So one of the things that happened is absentee ballot. The ballots didn't arrive on time. A lot of ballots came in after election day because the mail was slow. What states have done in response to this, in other words, the Post Office said we may not be able to get these in in time for you to count. Well. At my last count, there were somewhere in the neighborhood of twenty five states about half the states that they actually have either laws or administrative regulations on the books saying that they will count ballots up to five days after election day and in some states up to ten days after election day. So as long as people are putting their ballot in the mail on election day, there are a lot of states that are going to count your ballot, even if the mail is slow, and even if it takes a while to get there. And I think that that's been a reaction to that letter, to the possibility that the mail will be slow. It's also a reaction to the fact that states are going to take longer to account the vote. Will not know the outcome of many elections on election night in November, because first of all, we will only have exi polling from the people who vote in person, and that looks like that's going to be a heavily Republican vote. In some states, the exipole people will be able to sample absentee ballot voters in the states that have that data. In other states, they won't be able to do that at all. And of course if things are close, we really may not know for days or weeks. Who want a given state. Now, if it's a landslide for Biden or for Trump, then in fact, they'll probably know pretty well on election night or certainly the day after. But we have to get ready for the fact that if you want an honest vote, you're gonna have to wait for all the votes to be counted. And it's not just the ballots arriving late in the mail. It's also the fact that the states have never counted this many absentee ballots before, so they're having to buy new scanners, they're having to increase their staff for the counting procedure, etc. And so the election night will not be what we're used to. That brings us to what I would maybe not call the nightmare scenario, but definitely they lose a lot of sleepover its scenario. So in this scenario, there are crucial swing states where Donald Trump says late at night on election night or even the next day, look, I won those states because they've counted the ballots that they've got, They've counted the people who voted and their exit polls, and they all show me winning those states because, as you mentioned, Republicans seem, at least based on current polling data, more likely to be willing to brave the dangers of COVID and show up at the polls. Meanwhile, Joe Biden is saying, wait a minute, there are still lots of votes in these swing states that are crucial to the outcome of the election that haven't been counted yet, and it's going to take Awhile, then we get legal battles in these individual states, with Trump lawyers saying, don't count these ballots for whatever reason, and Biden lawyers saying count them. And if I sound a little traumatized in describing this, it's because I was as a young lawyer in Palm Beach County in two thousand litigating on behalf of al Gore. And then that becomes a real genuine mess, which opens the door for the election to be thrown into the courts or otherwise seriously questioned. How probable is it that they will really be uncounted votes within the margin of victory for Joe Biden that are really still uncounted. Well, it's hard to say, but a lot of this is going to depend actually on the networks, because if the networks rush to judgment, they will add to the sense of chaos and uncertainty and really strengthen hand of Trump and the people who want confusion in this. So the networks need to be super super super cautious, and frankly, a lot of this is going to depend on what Fox News does. If Fox News plays along with the President, then they will call his victory way too early, way long before they should, and without regard to the other networks and the data coming in, and then you can have a mess. If Fox News behaves itself and acts like the other networks in terms of waiting for exapole data, absentee ballot sampling data and then actual key votes and key precincts to be reported and then make their call, then my guess is that Trump will file suit, but it will not have the same impact. So the player here that's kind of most crucial is in fact they are in fact networks. What is your biggest worry about the mechanics of this coming election? Of the panoply of dangers that you've mentioned for the universal mail in ballot states and we're up to nine now, interesting enough. In spite of the president's rantings, more states since he began talking about this, have adopted universal mail in ballots. In the universal mail in ballot states, I think the system will go fairly smoothly. There's only one step to take the ballot that's mailed to registered voters. The registered voter mails it back. As we've seen, the volume of mail an extra mail expected on election day in an election week is a fraction of the volume of mail that the Post office handles at Christmas. Okay, So this whole business about being overwhelmed by ballots, it's just nonsense. I mean, the Post Office can in fact take care of the ballots in those states. I think it will go fairly smoothly. I think there will be other states where the absentee ballot process will get screwed up and people won't get their ballots. And we saw that happen in the primaries. And then here's the catch, and here's where here's my biggest worry. My biggest worry is that states will see a huge volume of absentee ballot requests because the mail is slow, or because people they get their mail, but then they lose their ballot etc. A lot of those people will end up going to the polls on election day. But the States, and they did this in the primaries. The States said, oh, well, look at all these people voting apps and tee, we only need to open one polling place or two polling places. And I think what they are going to have to do, and we're urging them to do this, open as many polling places as they can, because that's the fail safe. If you ask for your absentee ballot application, you didn't get it, then okay, election day comes, you can go to a polling place. And what we saw happen in the primaries was states that tried sending out ballots for the first time to everybody, or states that sent out absentee ballots some of them just didn't arrive, or maybe they arrived and people lost them or whatever. You need to have polling places open. Whenever government is in a transition between one system and another, they have to do something which seems really inefficient in the short run. They have to keep both systems up and running. Now, a business would hate this because it's so redundant, but government is not business. Eventually, people are going to figure out, oh yeah, voting by mail is much more convenient. Those trends, by the way, we're happening long before COVID. We had a steady trend up in voting by mail beginning in nineteen ninety six, was steadily increasing. So it was happening anyway. But you cannot rush to close down the polling places because that's the fail safe in the system. Elaine, thank you very much for your clear eyed, clear thinking analysis of these tough issues and for helping us get behind the headlines into the meet and substance of the challenges that we're facing in the election regarding the Post Office and all the other challenges that we're facing at the moment. Thank you so much. Thank you, Noah, take care. Listening to Elaine Kmark helped me understand both how we may have gotten to the past that we're at and also what may be about to happen on election day and the days that follow. First, there's a Lane's account according to which potential changes in the Post Office that may not on their own necessarily have been nefarious were put into the public eye and received a lot of scrutiny because Donald Trump was simultaneously making arguments about the dangers and potential failures of mail in voting. Then the Post Office got caught in the Lane's phrase, considering some proposals that might actually have changed the way at least some mail in ballots are sent in. The upshot was to create a degree of uncertainty around the election. Elaine believes that Trump was not being rational. I think it's at least possible that Trump was being rational in the only way he knows how. That is to say, feeling out circumstances, trying to create uncertainty and hoping that at the margin that would actually lead some people who are unsure about whether they should turn out to vote or not unsure about whether to send in their ballots, to stay home, or to fail to send in their ballots on election day. To my mind, that's not entirely irrational, although it certainly may be nefarious. The upshot is that this is a classic Trump strategy of trying to muddy the waters de legitimate government, and through that delegitimation, gains some advantage in the upcoming election. What matters for election day, Elaine points out, is that we have to begin to take on board a reality that we simply may not know who's won the election when we go to bed the night of the election, or even the day after, or even for several days thereafter. If Republicans turn out to vote at the polls in larger numbers, while Democrats are disproportionately likely to mail in ballots, it may simply take a while, especially in swing states, for us to know who won the election, unless one of the two sides wins in a landslide. We need, therefore, to begin telling ourselves and telling everybody we know, that this election may in fact not be over on that day, to avoid a scenario where Donald Trump makes an effort to claim to have won the election when he has not in fact won it. At that point in time, I left my convert station with Elaine a little less worried about whether the Post Office will actually deliver people's ballots. I'm modestly convinced by what she has to say that it probably will in practice, but more worried than I was before about what might happen if we get differential numbers of Republicans and Democrats actually showing up at the polls on election day as opposed to mailing in their ballots. Here at deep background, will continue to watch this issue closely, and if there are more developments on it before the election, we will come back to you with them. No matter how you cut it, voting in a pandemic is going to be a little weird until the next time I speak to you. Be careful, be safe, and be well. Deep background is brought to you by Pushkin Industries. Our producer is Lydia gene Coott, with mastering by Martin Gonzalez. Our showrunner is Sophia mckibbon. Our theme music is composed by Luis Guerra. Special thanks to the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg, and Mia Loebell. I'm Noah Feldman to write a regular column for Bloomberg Opinion, which you can find at Bloomberg dot com slash Feldman. To discover Bloomberg's original slate of podcasts, go to Bloomberg dot com slash Podcasts. And one last thing, I just wrote a book called The Arab Winter, a Tragedy. I would be delighted if you checked it out. If you liked what you heard today, please write a review or tell a friend. You can always let me know what you think on Twitter my handle is Noah R. Feldman. This is deep background

Pushkin from Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. There's been a lot going on with the US Postal Service. In May, a new Postmaster General came into office, a businessman named Louis Dejoi, who is a big donor to the Trump campaign. After taking office, Dejoi instituted several cost cutting measures, like eliminating overtime pay for some workers, shortening post office hours, and other proposals that the Post Office said had long been under consideration. These changes and others led to concerns that the Post Office would not be equipped to handle an election in the middle of a pandemic because many more people than usual would be voting by mail. Many observers thought these changes were politically motivated, since Democrats might be more likely to vote by mail than Republicans. Now, DeJoy says these changes and others will be suspended until after the election. Here to help us make sense of all of this, how worried we should be and what really has been going on is Elaine Kamark. She's the director of the Center for Effective Public Management at the Brookings institution. She's been studying the post Office for years. She worked in Bill Clinton's White House on the Reinventing Government initiative, and for many years has been a participant in democratic politics. We spoke on Monday morning, Elaine, Thank you so much for joining us. I wonder if we could start with, to use an old fashioned expression, the facts which are not always prominent in our current moment of panic about the US Postal Service. So I want to start by going back before Louis Dejoi took over, and before he became the focal point of concerns about what's happening to the Postal Service? Where did this all start? In your view, Ironically, even though it's so much in the news now, this is a very very old story. I mean this is literally decades old, because the Post Office first started to get in trouble at the turn of the century, as first class mails began to disappear. The big, big hit to first class mail was when we stopped mailing in our bills and started paying our bills online, and that really decimated first class mail. And that was the post Office's highest return. I mean, that was this most profitable and the post Office has been forbidden for many years from really going into entrepreneurial activities. To make a long story short, let me say that the Post Office has been in trouble for two decades. It has needed to adjust us to the new world where we have much, much less mail, and both political parties have been really reluctant to do anything about the Post Office. And so this comes kind of as a for those of us who have studied the post Office for a long time. This is kind of like, oh my god, the whole world is suddenly discovering what the crisis is at the post Office. I want to ask you a follow up question to that before we dive into this summer's controversy, and it's this, I'm always confused, as someone who's interested in government but not a post office expert, by what seemed like two contradictory strands in the kind of discussion that you were just briefly describing. On the one hand, we hear the post office being treated like a business. It's losing money, it's not making a profit. It's lost it's customers. You know, it's a money loser for the government. On the other hand, we have this counter narrative that the post Office is a public service, a public good. We shouldn't even be thinking about it from this perspective as a competitor or as a business because it's there to deliver the mail through wind and snow and sleet and hail and to get it to everybody, none of which is designed to make money. So help me out here. You know which way should we be thinking about the post Office? Well, in two ways. First of all, the post Office is in the constitution. Okay, it's the only public agency in the constitution, and it is very important for the purpose of binding the country together. So the most important public aspect of the post Office is universal service. Is the universal service pledge that basically, no matter how far down the road you live in rural Montana, you can get something from the post office. So that's the rock bottom public service. Now, the question then gets a little bit blurry when you get to the business side, right, because the question is can post office maintain universal public service and not lose as much money? I think they can. There's going to have to be adjustments in service down the line. Now, the Post Office itself has been closing sorting facilities, they've been changing things up, they move mailboxes all the time, by the way. Okay, so that's a little bit of a paranoia that's out there. People who have been sendating pictures of mailboxes on trucks. That happens all the time. And so there's this ongoing debate about how do you maintain universal service and not lose as much money. Nobody, I think in the Congress Oran government expects the post Office to make money. But the question is they have been losing loads and loads of money, and how can you do these two things? And it's quite difficult. But one of the things discussed all the time, for instance, ending Saturday service. We all are used to get email on Saturday and just not on Sunday. The question is could we end Saturday service? And that's one of the things that's out there, and then there's a lot of other ideas out there. I can't resist mentioning, by the way, that the one time in my own academic work that I ever came across a big fight about the post office was in the early nineteenth century, so almost exactly two hundred years ago, when there was a huge fight about Sunday service. It turns out the post office used to deliver the mail on Sunday. And this became a controversy because the more secular oriented, questionable blasphemer types in small towns like to hang out in the post office. Because in a lot of places in the United States, especially in new places, the only public place to congregate that wasn't church was the post office. And ministers were really upset that there was a sort of competing venue on Sunday mornings, and they started a national movement to shut down Sunday service, and they actually succeeded astonishingly, which is sort of unbelievable. And their speeches in Congress by a congressman making the first important argument for the separation of church and state ever made in Congress, somebody saying, well, we're not a Christian country, really, so therefore we should continue to have service on Sunding. Other people saying, what are you talking about. You know, this is a terrible blasphemy. Anyway, it's a genuine digression. But sometimes on deep background we digress a little bit. That's that's terrific. I want to turn now to this summer, coming all the way up to the present, and early in the summer, the Post Office was talking about cost cutting that was already beginning to delay mail delivery by up to a week in some places. And it also was saying that it was going to decommission ten percent of the sorting machines that it uses. Were these things, in your view, continuous with the kinds of reform that happens all the time, sort of like moving around the post office boxes on a big scale, or were these things already part of some possibly coordinated plan to slow down mail in advance of the upcoming pandemic election. Well, the Post Office says these were continuous, and the Democrats think that this was part of a plan. Here's the way I would answer that if Donald Trump had not made a huge deal and a huge attack on mail in ballots, my guess is this would have passed relatively unnoticed. But Donald Trump, at about the same time began railing against mail in ballots and encouraging people not to use them and saying that these systems were corrupt, which, by the way, there is not a shred of evidence too. And so it was the conjunction of some of these cuts and some of these cost savings, some of which would have been probably business as usual, and Donald Trump railing against mail in ballots. That made everybody say, hey, wait a minute, is he trying to suppress the vote? Is he trying to keep people from voting? Now, he's been all over the place on this. Trump has, but he seems to be particularly geared up against mail in ballots in the states that are universal mail in ballots as opposed to absentee ballots. But the fact of the matter is that any slowdown in the mail in election season would in fact affect ballots. Even though the Post Office has always treated ballots this is interesting. They've always treated ballots as first class mail, as privileged mail, regardless of no stamp, what kind of stamp, bulk mail, whatever, It's always been treated as privileged mail. Many fascinating things, and what you just said, let me start with a small one and then moved to the bigger one. The small one about the Post Office traditionally treating your ballot as first class mail even if you didn't put first class postage on it. CNN reports that there were plans in place, or at least documents in the Post Office being produced over the course of the summer that said, let's change that policy and let's only deliver ballots as first class may if they have first class postage. The Post Office says those weren't official policy documents. I'm not sure what they mean by that, and Louis Dejoi has said, don't worry, we're not going to make that change. What do you think about that particular small debate. I don't think it's so small. I mean, I think that is one piece of evidence that Louie de joy was getting White House pressure on this issue. I've been in a White House, and the way it works is the President doesn't always have to say to the postmaster general, hey, you should stop treating ballots as first class mail. But if the president is spending week after week tweeting about the disastrous things that will happen if we have an election by mail, a postmaster general might say, hey, this is a good policy. We can stop this and please the White House. And they got caught, pure and simple, they got caught in something that they should have never ever considered, never considered doing this. I mean, it goes so far back that postal workers have been known to buy hand take ballots out of the sorting process in order to make sure that they were delivered first class. And delivered immediately. So this is a long tradition with the post office. It's important to democracy. The postal workers see their mission as doing this and look, they got caught. That's what happened. This is particularly fascinating at the big picture level because the detail then leads to the big impact. If I'm hearing you correctly, and tell me if I am, this is a kind of signature Trump move. He doesn't know the details. He starts out with a public attack on mail and balloting because he doesn't like it, and also because he's trying to discourage and confuse people from using it. Then he puts in place a postmaster general. He can't do it directly because of the way the post Office is set up, but via his appointees, he indirectly is able to influence the appointment of a Postmaster General who actually starts flirting in a serious way with changes that actually would potentially affect delivery of the mail. And although we don't know, I take it. How many ballots in the past have been submitted with less than a first class postage and got en treated as having postage. It's a kind of change to the culture, is what you're saying there's a kind of cultural norm in the Post Office that one of our jobs, in terms of delivering a public service is to get people's ballots in. That just seems really, really important as a civic matter. And here you have Post Office officials talking not openly but within the Post Office about just not doing that, thereby sending the message that are kind of on board with the president, and then they get caught, as you say, and then this adds up to a huge public worry and concern and debate, which maybe what Trump wanted in the first place. This is par for the course for his presidency. He says things based on no knowledge, he gets them in motion, and then time after time we see his appointees and his aids scurrying around to try to make it actually happen, and then we see blowing up in his face. I mean, one of the ironies of this is that if you try to assess rational thinking to the president, it just does work. And let me give you the clearest example. The five states that have mail in ballots and have used them for quite some time are Oregon solidly democratic, Washington solidly democratic, California solidly democratic, Hawaii, the District of Columbia solidly Democratic. Then you have Colorado, which is potentially a swing state, and Utah, which is a Republican state. Now, if Donald Trump thinks that he can argue that the election was stolen from him because without mail ballots he would have won California, that is preposterous on the face of it. And nobody's going to believe it. I mean, they'll just laugh him. But I don't even think he'll get to court on that one. But he's clearly trying to set up an excuse for why he's not going to win. And this makes no sense, right, It just makes no sense whatsoever, as are so many of Donald Trump's purported policy moves. We'll be back in a moment. One of the things that most upset me in the Post Office story over the summer was the report in the Washington Post that at the end of July, the General Counsel and Executive Vice President of the Post Office, Thomas Marshall, sent letters to forty six states and the District of Columbia basically saying, we're not at all shore. In fact, we doubt that we can get mail in ballots too you in time for you to count them in relation to the election. Now, this was done privately, so this we can't attribute to a Trumpian plan, or I can't attribute to a Trumpian plan to try to influence public opinion because they did it quietly, and in fact, it took some doing on the part of the newspaper to get the story out. What's your interpretation of what was going on with this letter? Were they making a record in advance in case things went wrong later? What's your read You spent a lot of time inside of government. You know exactly about the different motivations, including the Cya motivations that are there in play for a letter like this. Well, I think it's a Cya motivation for sure. But I think that the thing about coming November is that we had all these primaries happening in twenty twenty, and the primaries taught the states important things about what's going to happen in November. So one of the things that happened is absentee ballot. The ballots didn't arrive on time. A lot of ballots came in after election day because the mail was slow. What states have done in response to this, in other words, the Post Office said we may not be able to get these in in time for you to count. Well. At my last count, there were somewhere in the neighborhood of twenty five states about half the states that they actually have either laws or administrative regulations on the books saying that they will count ballots up to five days after election day and in some states up to ten days after election day. So as long as people are putting their ballot in the mail on election day, there are a lot of states that are going to count your ballot, even if the mail is slow, and even if it takes a while to get there. And I think that that's been a reaction to that letter, to the possibility that the mail will be slow. It's also a reaction to the fact that states are going to take longer to account the vote. Will not know the outcome of many elections on election night in November, because first of all, we will only have exi polling from the people who vote in person, and that looks like that's going to be a heavily Republican vote. In some states, the exipole people will be able to sample absentee ballot voters in the states that have that data. In other states, they won't be able to do that at all. And of course if things are close, we really may not know for days or weeks. Who want a given state. Now, if it's a landslide for Biden or for Trump, then in fact, they'll probably know pretty well on election night or certainly the day after. But we have to get ready for the fact that if you want an honest vote, you're gonna have to wait for all the votes to be counted. And it's not just the ballots arriving late in the mail. It's also the fact that the states have never counted this many absentee ballots before, so they're having to buy new scanners, they're having to increase their staff for the counting procedure, etc. And so the election night will not be what we're used to. That brings us to what I would maybe not call the nightmare scenario, but definitely they lose a lot of sleepover its scenario. So in this scenario, there are crucial swing states where Donald Trump says late at night on election night or even the next day, look, I won those states because they've counted the ballots that they've got, They've counted the people who voted and their exit polls, and they all show me winning those states because, as you mentioned, Republicans seem, at least based on current polling data, more likely to be willing to brave the dangers of COVID and show up at the polls. Meanwhile, Joe Biden is saying, wait a minute, there are still lots of votes in these swing states that are crucial to the outcome of the election that haven't been counted yet, and it's going to take Awhile, then we get legal battles in these individual states, with Trump lawyers saying, don't count these ballots for whatever reason, and Biden lawyers saying count them. And if I sound a little traumatized in describing this, it's because I was as a young lawyer in Palm Beach County in two thousand litigating on behalf of al Gore. And then that becomes a real genuine mess, which opens the door for the election to be thrown into the courts or otherwise seriously questioned. How probable is it that they will really be uncounted votes within the margin of victory for Joe Biden that are really still uncounted. Well, it's hard to say, but a lot of this is going to depend actually on the networks, because if the networks rush to judgment, they will add to the sense of chaos and uncertainty and really strengthen hand of Trump and the people who want confusion in this. So the networks need to be super super super cautious, and frankly, a lot of this is going to depend on what Fox News does. If Fox News plays along with the President, then they will call his victory way too early, way long before they should, and without regard to the other networks and the data coming in, and then you can have a mess. If Fox News behaves itself and acts like the other networks in terms of waiting for exapole data, absentee ballot sampling data and then actual key votes and key precincts to be reported and then make their call, then my guess is that Trump will file suit, but it will not have the same impact. So the player here that's kind of most crucial is in fact they are in fact networks. What is your biggest worry about the mechanics of this coming election? Of the panoply of dangers that you've mentioned for the universal mail in ballot states and we're up to nine now, interesting enough. In spite of the president's rantings, more states since he began talking about this, have adopted universal mail in ballots. In the universal mail in ballot states, I think the system will go fairly smoothly. There's only one step to take the ballot that's mailed to registered voters. The registered voter mails it back. As we've seen, the volume of mail an extra mail expected on election day in an election week is a fraction of the volume of mail that the Post office handles at Christmas. Okay, So this whole business about being overwhelmed by ballots, it's just nonsense. I mean, the Post Office can in fact take care of the ballots in those states. I think it will go fairly smoothly. I think there will be other states where the absentee ballot process will get screwed up and people won't get their ballots. And we saw that happen in the primaries. And then here's the catch, and here's where here's my biggest worry. My biggest worry is that states will see a huge volume of absentee ballot requests because the mail is slow, or because people they get their mail, but then they lose their ballot etc. A lot of those people will end up going to the polls on election day. But the States, and they did this in the primaries. The States said, oh, well, look at all these people voting apps and tee, we only need to open one polling place or two polling places. And I think what they are going to have to do, and we're urging them to do this, open as many polling places as they can, because that's the fail safe. If you ask for your absentee ballot application, you didn't get it, then okay, election day comes, you can go to a polling place. And what we saw happen in the primaries was states that tried sending out ballots for the first time to everybody, or states that sent out absentee ballots some of them just didn't arrive, or maybe they arrived and people lost them or whatever. You need to have polling places open. Whenever government is in a transition between one system and another, they have to do something which seems really inefficient in the short run. They have to keep both systems up and running. Now, a business would hate this because it's so redundant, but government is not business. Eventually, people are going to figure out, oh yeah, voting by mail is much more convenient. Those trends, by the way, we're happening long before COVID. We had a steady trend up in voting by mail beginning in nineteen ninety six, was steadily increasing. So it was happening anyway. But you cannot rush to close down the polling places because that's the fail safe in the system. Elaine, thank you very much for your clear eyed, clear thinking analysis of these tough issues and for helping us get behind the headlines into the meet and substance of the challenges that we're facing in the election regarding the Post Office and all the other challenges that we're facing at the moment. Thank you so much. Thank you, Noah, take care. Listening to Elaine Kmark helped me understand both how we may have gotten to the past that we're at and also what may be about to happen on election day and the days that follow. First, there's a Lane's account according to which potential changes in the Post Office that may not on their own necessarily have been nefarious were put into the public eye and received a lot of scrutiny because Donald Trump was simultaneously making arguments about the dangers and potential failures of mail in voting. Then the Post Office got caught in the Lane's phrase, considering some proposals that might actually have changed the way at least some mail in ballots are sent in. The upshot was to create a degree of uncertainty around the election. Elaine believes that Trump was not being rational. I think it's at least possible that Trump was being rational in the only way he knows how. That is to say, feeling out circumstances, trying to create uncertainty and hoping that at the margin that would actually lead some people who are unsure about whether they should turn out to vote or not unsure about whether to send in their ballots, to stay home, or to fail to send in their ballots on election day. To my mind, that's not entirely irrational, although it certainly may be nefarious. The upshot is that this is a classic Trump strategy of trying to muddy the waters de legitimate government, and through that delegitimation, gains some advantage in the upcoming election. What matters for election day, Elaine points out, is that we have to begin to take on board a reality that we simply may not know who's won the election when we go to bed the night of the election, or even the day after, or even for several days thereafter. If Republicans turn out to vote at the polls in larger numbers, while Democrats are disproportionately likely to mail in ballots, it may simply take a while, especially in swing states, for us to know who won the election, unless one of the two sides wins in a landslide. We need, therefore, to begin telling ourselves and telling everybody we know, that this election may in fact not be over on that day, to avoid a scenario where Donald Trump makes an effort to claim to have won the election when he has not in fact won it. At that point in time, I left my convert station with Elaine a little less worried about whether the Post Office will actually deliver people's ballots. I'm modestly convinced by what she has to say that it probably will in practice, but more worried than I was before about what might happen if we get differential numbers of Republicans and Democrats actually showing up at the polls on election day as opposed to mailing in their ballots. Here at deep background, will continue to watch this issue closely, and if there are more developments on it before the election, we will come back to you with them. No matter how you cut it, voting in a pandemic is going to be a little weird until the next time I speak to you. Be careful, be safe, and be well. Deep background is brought to you by Pushkin Industries. Our producer is Lydia gene Coott, with mastering by Martin Gonzalez. Our showrunner is Sophia mckibbon. Our theme music is composed by Luis Guerra. Special thanks to the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg, and Mia Loebell. I'm Noah Feldman to write a regular column for Bloomberg Opinion, which you can find at Bloomberg dot com slash Feldman. To discover Bloomberg's original slate of podcasts, go to Bloomberg dot com slash Podcasts. And one last thing, I just wrote a book called The Arab Winter, a Tragedy. I would be delighted if you checked it out. If you liked what you heard today, please write a review or tell a friend. You can always let me know what you think on Twitter my handle is Noah R. Feldman. This is deep background