Hello, Deep background listeners. Noah Feldman here. I've recently started making regular appearances on Axios Today, the daily news podcast from Axios. I always have great conversations with host Naila Budo, and I hope I'm able to shed light on the legal issues that are making headlines. Here's my latest interview on Axios Today. If you like getting smarter faster, you can subscribe or listen wherever you get your podcasts. I've made it a daily habit, and I hope you will too. At one pm Eastern time today, members of Congress will meet in a joint session to officially count electoral votes for the presidential election. Vice President Mike Pence will open the electoral vote certificates to be read aloud, which fulfills his constitutional role as President of the Senate. This happens every four years after every presidential election, but it's getting much more attention this year because of the dozens of Senators House Republicans planning to object to the electoral results from battleground states like Pennsylvania, Michigan, and Georgia. Noah Feldman is a constitutional law professor at Harvard and our resident legal ex hid for Axios Today. Noah, can we have a free mini constitutional law class with you for a second year anytime? Can you explain the twelfth Amendment in what it says about what's supposed to happen today. What's supposed to happen is that all of the states have chosen electors. They've each only chosen one slate of electors. They send that slate in on essentially a piece of paper. Both houses of Congress meet in joint session. They're presided over by the quote President of the Senate, better known as the Vice President, Mike Pence. Mike Pence is supposed to read out the votes they're supposed to be counted, and if, as is the case, there's a clear majority of them for one, Joe Biden, Joe Biden is supposed to become the president. And that's how the process is laid out in the Constitution and has written. That's pretty straightforward, except in life, there's always a twist. So the twist I think maybe we have to go back to the Electoral Count Act. This is like eighteen eighty seven, which is now so important. Can you just sort of explain that process and how that has sort of further elaborated on what we've seen in the Constitution. Yeah, the twist is what if you can't just so simply add up and count all of the electors who are sent in. And in the first instance, that could happen if, for example, a state can't get its act together and it sends in two slates of electors, one for example, sent in by the state legislature, another sent in by the governor of the state. That raises a question for the person doing the counting, which one do you count? And this mess actually happened in eighteen seventy six when there were contested slates of electors from a couple of different states, and as a result, we genuinely did not know who the president was. After that happened, Congress passed this law in eighteen eighty seven to set up rules for what should be done by Congress when they came to count the votes. And those rules are actually pretty straightforward as written. They say, among other things, that when there's no multiple slates of electors, and that's the case this year, that basically the congressman and the vice president actually have to count the electors who came in unless there's some evident, clear reason that they were not real slates of electors that reflect the intent of the electors that were passed or that were lawfully cast, so as written, that law would not lead to any weirdness. Here can we part something you said though? First, First, let's just talk about the fact that there are not multiple slates of electors. Every state has met that is not in contention here, correct, And in no state did a rogue slate of electors get proposed. All of the electors actually are the people actually chosen by the citizens of those states, and that's why there are no contested slates of electors in this election. But this brings a sire second point that you made, which is this idea of evidence, which is what we are hearing from Republican lawmakers as to why they are planning to object today. Yeah, and so just to describe the mechanics, what's supposed to happen is that if there are objections to the electors submitted that are proposed by congressmen or by senators, then the two houses separate out. They're all sitting in joint session, they separate out to debate each on its own, and then they each vote. And the only way that any electors could be rejected by the joint session. Is if a majority of the Senate and a majority of the House vote to reject those electors. What, unfortunately, from my perspective, is going to happen is that some Republicans are going to raise objections and they're going to require a vote to happen. Elected congressman and elected senators are going to say, without any meaningful grounds for saying it, that the people didn't really elect Joe Biden in some specific states. In other words, some actual, real House of Representatives, members, actual senators are calling for something very much like a constitutional coup. Data and the fact that that's going to happen, even though we know it's going to fail, shows you that this is not just theater, that is not trivial. So can I ask you about the idea of our trust in the democratic process. What kind of effect do you think this week will have on that? It's going to have a bad effect. You know, it's bad enough that a reasonable percentage of Americans now say or tell posters that they don't believe that Joe Biden won the election. I mean that's worrisome because what it shows you is that lots of people don't accept the outcome that has been independently verified by all fifty states, including states that are controlled by Republicans. So that's scary because you can't really run a democracy in the long run if lots of the citizens believe that the only outcome they will trust is the one where they win. The most fundamental principle of democracy is I like my candidate, You like your candidate. We vote, and we count up the votes, and whoever's candidate got the most votes wins. The minute we think now, I don't believe it unless it was my guy, then the more it's difficult, or in fact impossible in the long run, to sustain democracy, because democracy depends on the idea that the next time around will count up the votes, and the next time around, the person who gets the most votes will win. And so when you break that norm, you can't run elections in the ordinary way that they've been run previously. And it's even worse than ordinary people thinking that is, elected representatives whose own only validity in sitting there is that they ran in elections and got most votes are saying, oh, you can't trust those votes, including I should say, including people who ran in this election. Yeah, including it well, which in the case of the House of Representatives is one hundred percent of them, right, All four hundred and thirty five of them ran in this election because they have to run for office every two years, and so if they think that the votes are skewed and are unfair, why should they even be the ones sitting there. So this is very very short term thinking on the part of these Republicans who are going to be objecting because what they're basically doing is undermining their own legitimacy in the democratic system, undermining democracy as a whole, all in the hopes of pleasing their own constituency. And they may be thinking, oh, it's a game, wink, wink, nudge, nudge. It is not a game. Democracy operates on a very very clear set of rules, and it has to because it's very vulnerable to being tweaked and to being delegitimated. There's no law of nature that says democracies must always survive, and frankly, that includes our own democracy. Democracies are fragile. If you break the norm that the person with the most votes wins, you cannot be confident in maintaining democracy in the long run. From a constitutional standpoint, How would you suggest we try to fix this. The simplest fix is to begin by amending this eighteen eighty seven law. Even that might not be enough, though, because Congress would have to pass any such law. We might need to amend the Constitution itself. And here's where you might want to look to every other country in the world. Essentially every functioning democracy says we don't want the election results to be judged by politicians, because politicians are themselves subject to the incentive of trying to please their constituents. So instead they say, let's have an independent electoral commission that judges the results of elections. And our constitution doesn't allow for that because there were no independent electoral commissions back in seventeen eighty seven. No one had thought of that idea yet. But I think it might be time for us to think about amending our constitution so that the foxes are no longer guarding the Henhouse, in other words, so that the people judging who won the election are not themselves people who ran for office in that election and will run the next time. And I recognize that would represent a big change from the way we've done things, but it would not be a big change compared to every other modern democracy in the world. Pretty much, as a constitutional law scholar, how often do you recommend amending the constitution? Barely? Ever, We've been very creative over the years. Our constitution is alive in my opinion, It's evolved a lot, and so it's continued to work even under new circumstances. So I really don't like to recommend new constitutional amendments. But this time, maybe that one time where we just flat out and need it. You know, the frameworks were very interested in incentives, and here the incentives, unfortunately, of Congress don't align with the incentives of the public in having the public's voices heard. What are you watching for today? I am watching for how willing elected congressman and centators will be to flatly, with no good reasons, say I think we should throw out the vote. I'm looking for how willing the Vice president Mike Pence, who of course would be reelected himself if Donald Trump more elected, is to appear to be non objective. You know, he should be bending over backwards to be objective because his job is literally on the line. Those are the questions that I think will make the subtle, nuanced differences. But the reality is the mere fact that these objections are going to be raised is a very bad thing for democracy. And my last question to you, this is the last step, right, there's no other like today is the last step in the process of Joe Biden taking office on January twenty. It's the next to the last step. The last step is the oath of office administered to Joe Biden on inauguration day, you know, and you know it's a sign that we're still a functioning democracy that you'd say, oh, this is the last step. Right, In a true Banana Republic, people would be worried that between January six and January twenty, you know, the elected president could suddenly go missing or appear on a different border, or the army could be called into the streets. Now, I don't think any of those things says any prospect of happening here in the United States. But the mere fact that we're having this conversation at all shows you that we're no longer in the realm of reliable, stable democracies, and that's really the realm we want to be in. Frankly, Noah Fellman hosts a deep background podcast with our partners at Pushkin. He is our resident legal expert here on Access Today. Thank you for your time, Noah, Thank you for having me

Hello, Deep background listeners. Noah Feldman here. I've recently started making regular appearances on Axios Today, the daily news podcast from Axios. I always have great conversations with host Naila Budo, and I hope I'm able to shed light on the legal issues that are making headlines. Here's my latest interview on Axios Today. If you like getting smarter faster, you can subscribe or listen wherever you get your podcasts. I've made it a daily habit, and I hope you will too. At one pm Eastern time today, members of Congress will meet in a joint session to officially count electoral votes for the presidential election. Vice President Mike Pence will open the electoral vote certificates to be read aloud, which fulfills his constitutional role as President of the Senate. This happens every four years after every presidential election, but it's getting much more attention this year because of the dozens of Senators House Republicans planning to object to the electoral results from battleground states like Pennsylvania, Michigan, and Georgia. Noah Feldman is a constitutional law professor at Harvard and our resident legal ex hid for Axios Today. Noah, can we have a free mini constitutional law class with you for a second year anytime? Can you explain the twelfth Amendment in what it says about what's supposed to happen today. What's supposed to happen is that all of the states have chosen electors. They've each only chosen one slate of electors. They send that slate in on essentially a piece of paper. Both houses of Congress meet in joint session. They're presided over by the quote President of the Senate, better known as the Vice President, Mike Pence. Mike Pence is supposed to read out the votes they're supposed to be counted, and if, as is the case, there's a clear majority of them for one, Joe Biden, Joe Biden is supposed to become the president. And that's how the process is laid out in the Constitution and has written. That's pretty straightforward, except in life, there's always a twist. So the twist I think maybe we have to go back to the Electoral Count Act. This is like eighteen eighty seven, which is now so important. Can you just sort of explain that process and how that has sort of further elaborated on what we've seen in the Constitution. Yeah, the twist is what if you can't just so simply add up and count all of the electors who are sent in. And in the first instance, that could happen if, for example, a state can't get its act together and it sends in two slates of electors, one for example, sent in by the state legislature, another sent in by the governor of the state. That raises a question for the person doing the counting, which one do you count? And this mess actually happened in eighteen seventy six when there were contested slates of electors from a couple of different states, and as a result, we genuinely did not know who the president was. After that happened, Congress passed this law in eighteen eighty seven to set up rules for what should be done by Congress when they came to count the votes. And those rules are actually pretty straightforward as written. They say, among other things, that when there's no multiple slates of electors, and that's the case this year, that basically the congressman and the vice president actually have to count the electors who came in unless there's some evident, clear reason that they were not real slates of electors that reflect the intent of the electors that were passed or that were lawfully cast, so as written, that law would not lead to any weirdness. Here can we part something you said though? First, First, let's just talk about the fact that there are not multiple slates of electors. Every state has met that is not in contention here, correct, And in no state did a rogue slate of electors get proposed. All of the electors actually are the people actually chosen by the citizens of those states, and that's why there are no contested slates of electors in this election. But this brings a sire second point that you made, which is this idea of evidence, which is what we are hearing from Republican lawmakers as to why they are planning to object today. Yeah, and so just to describe the mechanics, what's supposed to happen is that if there are objections to the electors submitted that are proposed by congressmen or by senators, then the two houses separate out. They're all sitting in joint session, they separate out to debate each on its own, and then they each vote. And the only way that any electors could be rejected by the joint session. Is if a majority of the Senate and a majority of the House vote to reject those electors. What, unfortunately, from my perspective, is going to happen is that some Republicans are going to raise objections and they're going to require a vote to happen. Elected congressman and elected senators are going to say, without any meaningful grounds for saying it, that the people didn't really elect Joe Biden in some specific states. In other words, some actual, real House of Representatives, members, actual senators are calling for something very much like a constitutional coup. Data and the fact that that's going to happen, even though we know it's going to fail, shows you that this is not just theater, that is not trivial. So can I ask you about the idea of our trust in the democratic process. What kind of effect do you think this week will have on that? It's going to have a bad effect. You know, it's bad enough that a reasonable percentage of Americans now say or tell posters that they don't believe that Joe Biden won the election. I mean that's worrisome because what it shows you is that lots of people don't accept the outcome that has been independently verified by all fifty states, including states that are controlled by Republicans. So that's scary because you can't really run a democracy in the long run if lots of the citizens believe that the only outcome they will trust is the one where they win. The most fundamental principle of democracy is I like my candidate, You like your candidate. We vote, and we count up the votes, and whoever's candidate got the most votes wins. The minute we think now, I don't believe it unless it was my guy, then the more it's difficult, or in fact impossible in the long run, to sustain democracy, because democracy depends on the idea that the next time around will count up the votes, and the next time around, the person who gets the most votes will win. And so when you break that norm, you can't run elections in the ordinary way that they've been run previously. And it's even worse than ordinary people thinking that is, elected representatives whose own only validity in sitting there is that they ran in elections and got most votes are saying, oh, you can't trust those votes, including I should say, including people who ran in this election. Yeah, including it well, which in the case of the House of Representatives is one hundred percent of them, right, All four hundred and thirty five of them ran in this election because they have to run for office every two years, and so if they think that the votes are skewed and are unfair, why should they even be the ones sitting there. So this is very very short term thinking on the part of these Republicans who are going to be objecting because what they're basically doing is undermining their own legitimacy in the democratic system, undermining democracy as a whole, all in the hopes of pleasing their own constituency. And they may be thinking, oh, it's a game, wink, wink, nudge, nudge. It is not a game. Democracy operates on a very very clear set of rules, and it has to because it's very vulnerable to being tweaked and to being delegitimated. There's no law of nature that says democracies must always survive, and frankly, that includes our own democracy. Democracies are fragile. If you break the norm that the person with the most votes wins, you cannot be confident in maintaining democracy in the long run. From a constitutional standpoint, How would you suggest we try to fix this. The simplest fix is to begin by amending this eighteen eighty seven law. Even that might not be enough, though, because Congress would have to pass any such law. We might need to amend the Constitution itself. And here's where you might want to look to every other country in the world. Essentially every functioning democracy says we don't want the election results to be judged by politicians, because politicians are themselves subject to the incentive of trying to please their constituents. So instead they say, let's have an independent electoral commission that judges the results of elections. And our constitution doesn't allow for that because there were no independent electoral commissions back in seventeen eighty seven. No one had thought of that idea yet. But I think it might be time for us to think about amending our constitution so that the foxes are no longer guarding the Henhouse, in other words, so that the people judging who won the election are not themselves people who ran for office in that election and will run the next time. And I recognize that would represent a big change from the way we've done things, but it would not be a big change compared to every other modern democracy in the world. Pretty much, as a constitutional law scholar, how often do you recommend amending the constitution? Barely? Ever, We've been very creative over the years. Our constitution is alive in my opinion, It's evolved a lot, and so it's continued to work even under new circumstances. So I really don't like to recommend new constitutional amendments. But this time, maybe that one time where we just flat out and need it. You know, the frameworks were very interested in incentives, and here the incentives, unfortunately, of Congress don't align with the incentives of the public in having the public's voices heard. What are you watching for today? I am watching for how willing elected congressman and centators will be to flatly, with no good reasons, say I think we should throw out the vote. I'm looking for how willing the Vice president Mike Pence, who of course would be reelected himself if Donald Trump more elected, is to appear to be non objective. You know, he should be bending over backwards to be objective because his job is literally on the line. Those are the questions that I think will make the subtle, nuanced differences. But the reality is the mere fact that these objections are going to be raised is a very bad thing for democracy. And my last question to you, this is the last step, right, there's no other like today is the last step in the process of Joe Biden taking office on January twenty. It's the next to the last step. The last step is the oath of office administered to Joe Biden on inauguration day, you know, and you know it's a sign that we're still a functioning democracy that you'd say, oh, this is the last step. Right, In a true Banana Republic, people would be worried that between January six and January twenty, you know, the elected president could suddenly go missing or appear on a different border, or the army could be called into the streets. Now, I don't think any of those things says any prospect of happening here in the United States. But the mere fact that we're having this conversation at all shows you that we're no longer in the realm of reliable, stable democracies, and that's really the realm we want to be in. Frankly, Noah Fellman hosts a deep background podcast with our partners at Pushkin. He is our resident legal expert here on Access Today. Thank you for your time, Noah, Thank you for having me