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 and its voting season. North Carolina was the first state to start mailing out absentee ballots earlier this month. Minnesota will be the first state to open early in person voting this Friday. Is America ready to handle an election in the middle of our national and global pandemic? What are the risks and dangers associated with this election? What should we be worried about? And what are the possible pathways that we could use to resolve conflicts? Here to discuss these very challenging issues with us is Professor Nate Persilely of Stanford Law School. In my generation of law professors, Nate is the definitive leading scholar on election law, crises of elections, and how elections work. Everybody listens to him, and Nate says he's losing sleep. Nate, let's dive into the existential dread that keeps our nation's leading election law scholar from sleeping at nights. Describe your worst case scenarios, the ones that are keeping you awake. Well, I think that my role to some extent over the next month is to try to calm people down, because there are a lot of uncertainties in the system, and I think those of us who are working in this area should try to lessen the anxiety. But since you asked, I am worried that if this is a close election that comes down to absentee ballots in one or more of the Midwestern states, that we will have a situation of Bush versus Gore on steroids and under conditions where we have much greater partisan polarization now than we did twenty years ago. And it's not clear to me that whoever loses that fight in court or through the kind of constitutional machinery will go away quietly. Let's discuss how the fight would play itself out. I tend to see things through the lens of bushvigor, because you know, I was a young lawyer out there in Palm Beach County trying to make it up as I went along back in the day, and we had no idea if the case would upenly make it to the Supreme Court. In fact, when we started, we thought this was just going to be a state law set of cases. We started litigating in Palm Beach County Local Court, you know, Florida State Court where we won. We thought it would go to the Florida Supreme Court after that, which did, but we didn't fully anticipate that it would go to the US Supreme Court. This time, we know, because we have the retrospect of Bush Bigor that it could go to the federal courts and therefore to the Supreme Court. Do you see that as a long, slow, drawn out process the way it was in two thousand or do you think it would be a more rapid process now that we sort of know that the movie can end with the Supreme Court weighing in. Well, I mean, it depends on whether it follows the Bush versus Gore script, because, as you know, in Bush versus Gore, there were easily forty lawsuits that had been followed in Florida in one capacity or another, and there was always the possibility that it wouldn't actually go through the state system. That you actually had the Bush folks who did file in federal court and then had an Eleventh Circuit decision that didn't go up to the US Supreme Court. But depending on what the legal issues are, you could see a sort of very rapid federal pathway in order to get the Supreme Court involved. And as you know in in Bush versus Gore itself, over just a month period, you had two Supreme Court decisions, right, that went through the full sort of procedure within the state and then went up to the Supreme Court. And so I think if the lawyers wanted to go to the US Supreme Court, and the Supreme Court is willing to take it, it can be done relatively quickly, depending on what the legal questions are that are involved. Chief Justice John Roberts, who is now not only the Chief Justice but also the swing vote on the Court, has been signaling, in my view, not just this past summer, but the previous summer too, that he does not want the Court to be seen as parts in political So in several really hot button, big ticket cases, the citizenship sends this question, and then on the DACA recision question, he cast a deciding vote with the liberals, basically saying in both cases that the Trump administration hadn't crossed its teas and dotted its eyes. They had the power to do these things, but they did them wrong and illegitimately, and so he struck down both of those things. I read that as his signaling I do not want the Supreme Court to be forced to decide the election in a way that will appear to be partisan. How do you read Chief Justice Roberts and how do you think he would think about the different incentives that push in different ways should a case come before him. Well, I think you're right that Chief Justice Robert's care is very much for the institution of the Supreme Court and is worried about it being seen as part of and so all things being equal, he would try to craft a procedure in a decision that would be greater than say, a five four decision at the Court. It's not clear to me that that's possible. Depending on what the vacts are. In a case like this, it's going to be seen as a partisan decision, But it may be seen as a partisan decision even if, for example, he were to join with the four more liberal justices. Right, Because if you take Donald Trump's accusations of the Court seriously, right, he doesn't even see Chief Justice Roberts as being a faithful conservative. So I think you are right as to what his motivations are. It's not clear to me that that affects the decision. It's possible that it could affect whether they would even take the case. Right. Even though we have to push versus Gore precedent out there, there's plenty of wiggle room for the Supreme Court to deny a case like this, as you know in the partisan jerrymandering cases. He joined the four more conservative justices to say that this was a nonjsticiable political question. One little interesting piece of trivia is that John Roberts was second in line actually to argue Bush versus Gore itself. He was part of the Bush legal team and was sort of given a back seat to Ted Olson, who ended up arguing it. But as some of the folks in the Bush legal team said to me, well he's done okay for himself since then, So it's okay when I wake up at three in the morning worried about the scenario, you know, the Trump versus Biden election becomes the case if Trump versus Biden and goes to the Supreme Court, I have to say that the thing that lets me go back to sleep those nights when I can is actually John Roberts, as he has been in the last two years. And I actually want to ask you constitutional law professor to constutional law professor, or sleep loser to sleep loser. Do you think that's crazy? I mean two years ago, I would not have said this. I would have said, you know, Chief Justice Roberts is a brilliant doctrinal lawyer. He aims for conservative outcomes. He's rolled back voting rights remarkably in the Voting Rights Act case to Shelby against Holder case, which you know is historically bad decision. I know you have said that many times more politely than I just put it. But then in the last two years, his insistence, I think, in reaction to Trump's flouting of the rule of law, does make me feel like Roberts realizes that if the Supreme Court under him were thought to have given an election to Donald Trump, he would never live that down, and the Supreme Court would never live that down. And so that's what eases me back to sleep. I think to myself, it actually might be okay. Does that seem crazy to you, doctor, No, that doesn't seem crazy. I mean, and I do find solace in his influence on the Court and think that that is a possible palliative outcome to the partners of the strife that would proceed a decision like that. But there are situations under which the Supreme Court does not become the final arbiter of these controversies. That if President Trump, for example, takes advantage of the sort of full constitutional machinery, you could see a pathway which ends up going through the Pennsylvania legislature, for example, into the House of Representatives, and Vice President Pence being in a role to try to decide who is going to be the winner of the presidential election, which is sketch that out in a little bit more detail. You know, the podcast is called a deep Background, so we're allowed to geek out. That's sort of the whole point of it, all right, Great, So, under the machinery of the Twelfth Amendment and the Constitution, it is possible that if you have competing slates of electors from a state, that it will eventually end up in the House of Representatives in a process that is presided over by Vice President Pence. And there's a lot of ambiguity as to what you do, what the nation does when you have a disputed presidential election. And so there is a scenario under which Vice President Pence says that he has the authority to determine which slate of electors is the valid slate of electors, and he may say, for example, that Pensylia legislature slate of electors will be deemed as the appropriate one. Under that situation, you could see Nancy Pelosi shutting down the House of Representatives so that it cannot proceed with the counting of the electoral slates, and then we have a full on constitutional crisis. The trigger to that originally would be a take it that in this scenario, you're imagining that the Secretary of State of Pennsylvania, who's the ordinary certifying officer, certifies that Biden one and so the electors to the Electoral College from the state of Pennsylvania are the Democratic ones. And then the state legislature enacts a law or a resolution. I guess, can they do this with or without the governor? Unclear to me, and then sends in a letter to the electoral college saying, wrong, this is the set of electors the Secretary of State is wrong about whom the State of Pennsylvania has chosen. These are the people whom the State of Pennsylvania has chosen, and ps these are the Republican electors for Donald Trump. That's what's the trigger. That's right. The relevant law here is both the Constitution Article two, Section one, twelfth Amendment and the Electoral Countact. The Electoral Countact actually says that whatever slate is signed on by the governor is sort of going to be presumptively seen as the right slate. But the Constitution says that each state shall, in a manner determined by the legislature thereof determined a number of electors. And so you could see competing slates of electors going up to this House of Representatives without a clear way of resolving that controversy. Leaving aside for a moment the possible legal fights, when you look at the voting mechanics and you try to figure out where the greatest concerns in fact law, and not the ones that the candidates might insist exist, but that really exist. Where are your greatest points of concern on the mechanics side, And then we'll come to the question of external interference too. So an election in which half the voters cast absentee ballots is a different kind of election than when we are accustomed to and absentee ballots are right for legal challenge. There are many different ways that you can sort of what we say, lose votes through the absentee ballot process, whether it's in the application process, the mailing of ballots to the voters, the returning from the voters to the election authority, and then the counting of the votes. At each stage there's the possibility of a mishap, and particularly under the sort of pandemic conditions and emergency conditions which have led to this transition tabs in the balloting, I think there is a lot of concern that you could see a lot of lost votes. The side that thinks it will gain by more votes being counted will always say, well, let's move beyond those mishaps and let's try to effectuate the intention of the voter, you know, the voter. Try to get it by this state, Try to mail it back by this state, Try to put the right amount of postage on it. Try to check the box next to the person that he or she wanted to vote for. The other side will say, no, this is a technical matter and election. You have to cross your teas, you have to dot your eyes. And so this given ballot or other ballots like it should be discounted apart from the partisan side. Do you have a general philosophical view about this question. Well, I do think that the rules need to be clearly specified in advance, and if they are specified in advance, that they need to be applied that way. Are they are the rules well specified in advanced in the fifty states? No, they're not. And this is one of the reasons why I'm a fan of pre election litigation. Right, we should try to get the rules specified as early as possible and as clearly as possible. You are right that Democrats are going into court now to try to make sure that as many ballots will be counted, and that's why we have over two hundred and fifty cases that are now being followed in the courts. Let me pause you in that for a moment. We're not even a month from the election and there are already two hundred and fifty cases that have been filed. Give us the general profile of what a typical one of those cases looks like. If there is a typical one, well, there really isn't a typical one, because we're seeing different types of cases depending on the states. The sort of modal absentee ballot case is in the vein that you described before, which is that you have Democrats who are going into court, for example, to make sure that despite what the law may say, that all ballots that are cast and postmarked by say election day will be counted. And one of the reasons they make this argument is they say, look, you know there are problems with the postal service, there are problems with respect to the coronavirus epidemic, and so we need to make sure that all votes are counted if they are cast before polls closed. So that's one set of cases. Then you have some cases where, for example, Republicans have gone in in New Jersey and in Nevada to try to prevent states from moving to all male balloting, saying that that's going to lead to fraud. Or they've gone into court in Pennsylvania to say that it is illegal for the counties to have ballot drop boxes where people can drop their ballot instead of putting in the mail. And so those are the kind of cases that we're seeing, as well as all kinds of other cases that are either specific to coronavirus and the pandemic or sort of general concerns about absentee balloting. So basically what you're saying is we're going to have a heavily litigated election, whether we like it or not. The only question will be will that litigation be determinative of outcomes? And that will depend on how close the votes are in some key states. That's right. There's something called the election administrator's prayer, which is, oh, God, whatever happens, please don't let it be close. Right, And so if there's a close election, you'll end up with all kinds of lawsuits that are brought to try to work the rest to determine the outcome. If it's not a close election, well then maybe we won't have as much action in court. We'll be right back in a world where absentee ballots constitute a large number of the ballots. How will we know whether it was a close election or not? I mean, ordinarily we know that absentee bots are relatively small numbers, So once we've counted the votes on election day, we can sometimes know, well, the margin of victory is greater than the number of outstanding absentee ballots. That's the definition I guess of an election that isn't so close. Literally, will we know that under these circumstances, will we know how many absentee ballots are out there. We might know how many were sent out, but we won't know how many are coming back. That's true. I mean, we'll know several things, and we'll know that at different times. Right, we will know, as you said, the number of absentee ballots that were sent out. We will probably in most states, we will know whether they were sent out to Democrats or Republicans, so you can sort of forecast what the likely partisan split is in the absentee ballots. Most of those ballots will be received before election day, so we will have a whole swath of ballots that will will be in the hands of the election officials, and so we will know how many ballots need to be processed, will know how many ballots are at that time in dispute. But you're right, if it's a Bush versus Gore situation, then we will not know whether the outstanding absentee ballots will be determinative. And as in Bush versus Gore, if it's that close we're talking about like say five hundred votes, then every aspect of the absentee ballot process would end up being potentially outcome determinative. But I'm at least one of those people who thinks that on election night or maybe the day after, we will have a very good idea as to who won. And that's because we will have information from different states that have completed most of their absentee balloting, either because they have rules on absentee balloting they're more restrictive, or because they were quick. That then will give us an indication as to how Trump and Biden are doing in the remaining states. And so, assuming it isn't a replay from four years ago, that it's not that close, then I think we will have a good idea on election night or the day after us to who won. Speaking of a replay of four years ago, one of the many things you spent part of the last four years focused on is trying to make sense of the foreign interference components in the twenty sixteen election. You've been a leader in trying to assess what happened, to assess its effects. And if I were to summarize your teaching us on this subject is it's complicated. So I know that it's complicated, But we have a little time here, and I would love to hear from you, how you picture the threats from outside interference in this election, wherever they may be coming from, and then how serious that you take them. So my view about what happened four years ago is that the Russian hack and leak operation was determinative of the twenty sixteen election. By that, I mean that the ability of the Russian intelligence services using wiki leagues, with some assistance from people involved in the campaign, to get Hillary Clinton's emails and to dump them on the public was extremely significant. The social media strategy that the Russians pursued, which included the hacken League strategy but also involved using Facebook ads, using organic content to polarize and persuade people that that it's not clear, was as effective as most people think we are going to see for an intervention of the latter type in this election. We're already seeing it. You've seen Facebook and other platforms takedown accounts. But compared to the amount of polarization and the amount of disinformation that is organically inside the United States right now and that's being produced by domestic actors, I actually think the marginal contribution of foreign disinformation, it really gets lost in the shuffle. I mean I think that if you see, as has been reported that Russian accounts are retweeting and amplifying statements, for example, that absentee balloting is marred by fraud, I mean you don't need the Russians to do that, getting that in the domestic political conversation, and so I don't think that they will have much of an impact on that. I am much more concerned about the sort of cyber infrastructure and whether particularly the new types of technology that have been bought by jurisdictions and perhaps untested to deal with, say the rise in absentee balloting, things that are related to say, the voter registration system, the other issues dealing with say election poll books right e poll books. Those are right for exploitation by a foreign actor, but we haven't seen any of that yet. How good are the cybersecurity defenses that the States have erected. I know you've looked under the hood. What's the quality of the defense relative to what the quality of the hacking could because the quality of the hacking could be a state of the art. Well, I think that the voter registration databases are much more secure now than they were four years ago. There are other electronic or digital. All aspects to the system, though, which are more vulnerable, like anything that involves a vendor, such as the software that's involved in sending out mail ballots and the like. But the machines themselves, which is what most people spend a lot of time thinking about. I also don't think are terribly vulnerable. I think that we've had this significant move in the last ten years toward machines with paper backups, and I think in the event of a cyber breakdown or even like a power outage, that we should be able to have enough paper ballots that we can conduct a RICO. Let's talk a little bit about the social media angle and disclosure. For me and I think for you too. We've both advised Facebook on aspects of free expression, in your case more focused on the electoral side, in my case more focused on the non election context. How do you see the kind of game plan that different social media platforms have begun to roll out for how they're going to address potential difficulties that arise around the election. Well, in recent weeks we've seen more aggressive pronouncements from Facebook and Twitter about what they're going to be doing with this election, not only do. We have the twenty sixteen election and the warning that it has issued to the social media companies, and for that matter, all the pressure that has come since then. But their experience in dealing with coronavirus related disinformation has set some precedents for them as to how they will deal with election disinformation, and so, yes, there will be sort of new policies and we've seen them already being executed to deal with even candidate sponsored disinformation, whether it's coming from presidents Twitter account or Facebook account. But what has impressed me most actually is the attempt to provide good information that a lot of what Facebook has been trying to do this time is to develop its own source of accurate election information that it will then preemptively pump out to the mass public on issues such as absent balloting or the security of the election infrastructure and the like. And so they are giving election officials access to top of feed notifications so that the first thing that you see when you open up your Facebook account is sort of reliable election information from the local officials. And so that's I think a new tactic. There's a lot of interesting stuff that they're still deciding, which comes to how do you deal with disinformation after the election. That's an unprecedented move for them as well, is what do they do if a candidate, for example, declared victory but hasn't actually won the votes. In the Bush Vigor aftermath, famously, first the television networks called the election for Bush, al Gore conceded to George W. Bush, and then al Gore unconceded and the networks pulled back from their calling the election. When I hear about trying to regulate post election disinformation, I keep on seeing it through the lens of you know, how do you know what disinformation is? Al Gore thought he'd lost, he hadn't, and then of course ultimately he had. George W. Bush thought he'd won. And for someone to declare victory, for Donald Trump to say, well I won today feels to me, even though that's a factual statement in some way and it might be therefore capable of being shown false, it feels more like a political declaration. And yet I think under at least some of the proposed ways, they're thinking about what some of the big platforms might do that might be labeled as disinformation and either flagged or taken down On Twitter, or on Facebook. How does that make you feel? Well? I agree with your assessment of the terrain here. I think that people need to understand that we actually have never had official declarations in the days after an election as to who actually won. And by that I mean that there is no national election authority in the United States who says yes, in fact, this candidate won. The closest thing we have to a national election authority in the US is the associated press, right, and so we delegate to the media the ability to declare who has won in these states, even when there could be tens of millions of ballots that were outstanding. And in twenty sixteen, right, we had Hillary Clinton ending up getting millions more votes after election day. And so the platforms are put in a delicate position, which is, well, how do they deal with candidate declarations of victory when the state election authorities have not certified a winner. But if they wait for the state election authorities to certify a winner, that will be several weeks. And so what they are doing is looking at other media organizations that are in the business of projecting outcomes, and they are going to report those other declarations of victory or those other calls that the networks have done, and then based on the other media organizations, they will then decide whether the declaration of victory by the candidate is valid or not. I was trying to explain to my kids how it back in the day when, as you're saying, the networks essentially had the function of saying who won the election? And I had to pause because their attitude was, what do you mean the networks? For them, ABC, CBS, and NBC are not places where one would watch the news. Are we moving from a world where the networks called the elections and were more or less delegated it to them to a world where the social media platforms are going to declare the elections, not by ever saying that, but by de facto allowing or disallowing claims of victory by the candidates. I think that is a worrisome trend, and this is actually the first election where we're going to test that out. Right now, as I understand it from talking to the folks at the platforms, they are going to be sort of a lagging indicator as to who won, and that they will be relying on the decision desks of the networks as essentially a large fact checking institution that will decide who actually won. And so Facebook and Twitter will not themselves be in a position to say, all right, we've determined that this candidate has won or not. But they're going to say, well, here's what you can see on our dashboard, which is what they're going to have up there, Which of the decision desks has declared which candidate to be the victor? And one thing that's important, you know, in this day and age, we assume that all right, well, the networks and the sort of legacy media organizations have been totally displaced by a million websites and other self proclaimed experts. But there are only a certain number of decision desks right now with the infrastructure to look at the county returns around the country. And so if you're a social media platform and you want to rely on a relatively sort of low number of actors, you have that capacity right now because they're only let's say seven to ten real decision desks out there that are going to be doing the hard work of projecting the outcome. How important is Fox going to be this round? First of all, does Fox have a formal decision desk? Yes, not only does Fox have a decision desk? But the Fox decision desk is actually an impressive organization which is hived off from the news operations of the network. And so while our inclination would be to say, all right, the Fox decision desk would be, say, the first institution to call the election for Trump, I'm actually skeptical of that. I know some of the people at the decision desk there, and so in many ways, the Fox Decision desk is the most important media entity in this election, because depending on what they say, you could actually see Republicans sort of siding with what the Fox Decision desk says if it goes against the president. That is, by the way, what happened in twenty twelve when the Fox decision desk called the Ohio results for President Obama and Karl Rove on the News on Fox News was actually jumping up and down saying no, no, no, it's too early to call, and actually the Fox Decision desk said no, Actually, Obama's one Ohio. So Fox News could potentially say that Donald Trump has lost the election and get listened to if it goes the other way. Though, I somehow suspect that Democratic listeners are going to be skeptical of what Fox News has to say. Well, that's right. If it's only Fox News that's saying that Donald Trump has won, then that would be just seen as playing to type. Right as Similarly, if the mainstream networks quickly call it for Biden, that's not going to lead Republicans to just sort of go slowly back into that good night. I mean, I think that what you're saying is that there is incredible polarization and media consumption that you're going to need some kind of bipartisan signal as to who actually won in order for the candidates to consider conceding and not to launch into litigation. Last question for your Nate, what am I not asking you that is front of mine for you? Are there any themes or ideas or things or last words that you want to share with listeners. Well, I don't want to end on a dour note or an alarmist note, because I do see my role in the next month is trying to calm people's fears. But I do think that there's the possibility for unprecedented activity in this election, particularly as it pertains to violence, and we haven't really thought about what happens if you have violence in polling places, violence in the canvassing boards, if you have unprecedented use of federal authority. And so I think that it's really important that the attorneys general of the different states start putting into place procedures to protect against violence, and that voters start understanding that they're going to be protections in place to prevent violence in polling places. You are a voice of calm and reason, and I'm grateful for that, and I know listeners will be grateful for it too. The reason you're able to be a voice of calm and reason is that you actually go down all of the roots to explore where things could go wrong. So you can't do one without the other. And I'm really grateful too for doing that here and at other times too. So thanks for coming on the show. Look far to speaking to you again soon. Thanks very much for having me Listening to Nate, I can see why he's having trouble sleeping when he thinks about all the different things that could go wrong in the twenty twenty election. That said, Nate's perspective is to evaluate and analyze each of the different scenarios and to give a rational logical, calm account of how these things could be resolved. The result is that there's a kind of split screen. When you listen to Nate. On one side of the screen, you see problem after problem after problem, two hundred and fifty legal cases already filed, more cases to be filed after the election, potential interference in the election, potential misinformation around the election, challenges as to who has won the election. All of that is on your left screen. On your right screen are a series of much simpler, more understandable, possible pathways that would not lead to deep constitutional crisis or conflict. One is that maybe the election just won't be that close after all. The other is Nate's prediction that more likely than not, within a day or two after this election, we actually will know who's one, because the margin will be broad enough. The idea that the Supreme Court is in the hands largely of the swing vote Chief Justice John Roberts, who thus far has worked very hard to keep the Supreme Court out of partisan political conflicts and has been willing to hold the Trump administration to the rule of law. The fact that we know about attempts of foreign interference that happen in twenty sixteen, and so we're able to respond to those in a more sophisticated way now. The fact that social media platforms at least are trying to put plans in place now for how they will deal with misinformation or other challenges to these elections. The job of a scholar who's also a public intellectual like Nate is to assess the problems that we face and to propose concrete solutions for them. Nate wants us to stay calm, not because there aren't serious problems, but because there are ways that they can be addressed. 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 Jean Kott, our engineer is Martin Gonzales, and our showrunner is Sophie mckibbon. Theme music by Luis Gara. Special thanks to the Pushkin Brass Malcolm Clodwell, Jacob Weisberg, and Mia Lobel. I'm Noah Feldman. You can find me on Twitter at Noah Urfeldt. I also have a new book out called The Arab Winter, a Tragedy. I'd be delighted if you checked it out. I write a column for Bloomberg Opinion, which you can find at bloomberg dot com slash Feldman. To discover Bloomberg's original state of podcasts, go to bloomberg dot com slash podcasts And if you like what you heard today, please write a review or tell a Frand 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 and its voting season. North Carolina was the first state to start mailing out absentee ballots earlier this month. Minnesota will be the first state to open early in person voting this Friday. Is America ready to handle an election in the middle of our national and global pandemic? What are the risks and dangers associated with this election? What should we be worried about? And what are the possible pathways that we could use to resolve conflicts? Here to discuss these very challenging issues with us is Professor Nate Persilely of Stanford Law School. In my generation of law professors, Nate is the definitive leading scholar on election law, crises of elections, and how elections work. Everybody listens to him, and Nate says he's losing sleep. Nate, let's dive into the existential dread that keeps our nation's leading election law scholar from sleeping at nights. Describe your worst case scenarios, the ones that are keeping you awake. Well, I think that my role to some extent over the next month is to try to calm people down, because there are a lot of uncertainties in the system, and I think those of us who are working in this area should try to lessen the anxiety. But since you asked, I am worried that if this is a close election that comes down to absentee ballots in one or more of the Midwestern states, that we will have a situation of Bush versus Gore on steroids and under conditions where we have much greater partisan polarization now than we did twenty years ago. And it's not clear to me that whoever loses that fight in court or through the kind of constitutional machinery will go away quietly. Let's discuss how the fight would play itself out. I tend to see things through the lens of bushvigor, because you know, I was a young lawyer out there in Palm Beach County trying to make it up as I went along back in the day, and we had no idea if the case would upenly make it to the Supreme Court. In fact, when we started, we thought this was just going to be a state law set of cases. We started litigating in Palm Beach County Local Court, you know, Florida State Court where we won. We thought it would go to the Florida Supreme Court after that, which did, but we didn't fully anticipate that it would go to the US Supreme Court. This time, we know, because we have the retrospect of Bush Bigor that it could go to the federal courts and therefore to the Supreme Court. Do you see that as a long, slow, drawn out process the way it was in two thousand or do you think it would be a more rapid process now that we sort of know that the movie can end with the Supreme Court weighing in. Well, I mean, it depends on whether it follows the Bush versus Gore script, because, as you know, in Bush versus Gore, there were easily forty lawsuits that had been followed in Florida in one capacity or another, and there was always the possibility that it wouldn't actually go through the state system. That you actually had the Bush folks who did file in federal court and then had an Eleventh Circuit decision that didn't go up to the US Supreme Court. But depending on what the legal issues are, you could see a sort of very rapid federal pathway in order to get the Supreme Court involved. And as you know in in Bush versus Gore itself, over just a month period, you had two Supreme Court decisions, right, that went through the full sort of procedure within the state and then went up to the Supreme Court. And so I think if the lawyers wanted to go to the US Supreme Court, and the Supreme Court is willing to take it, it can be done relatively quickly, depending on what the legal questions are that are involved. Chief Justice John Roberts, who is now not only the Chief Justice but also the swing vote on the Court, has been signaling, in my view, not just this past summer, but the previous summer too, that he does not want the Court to be seen as parts in political So in several really hot button, big ticket cases, the citizenship sends this question, and then on the DACA recision question, he cast a deciding vote with the liberals, basically saying in both cases that the Trump administration hadn't crossed its teas and dotted its eyes. They had the power to do these things, but they did them wrong and illegitimately, and so he struck down both of those things. I read that as his signaling I do not want the Supreme Court to be forced to decide the election in a way that will appear to be partisan. How do you read Chief Justice Roberts and how do you think he would think about the different incentives that push in different ways should a case come before him. Well, I think you're right that Chief Justice Robert's care is very much for the institution of the Supreme Court and is worried about it being seen as part of and so all things being equal, he would try to craft a procedure in a decision that would be greater than say, a five four decision at the Court. It's not clear to me that that's possible. Depending on what the vacts are. In a case like this, it's going to be seen as a partisan decision, But it may be seen as a partisan decision even if, for example, he were to join with the four more liberal justices. Right, Because if you take Donald Trump's accusations of the Court seriously, right, he doesn't even see Chief Justice Roberts as being a faithful conservative. So I think you are right as to what his motivations are. It's not clear to me that that affects the decision. It's possible that it could affect whether they would even take the case. Right. Even though we have to push versus Gore precedent out there, there's plenty of wiggle room for the Supreme Court to deny a case like this, as you know in the partisan jerrymandering cases. He joined the four more conservative justices to say that this was a nonjsticiable political question. One little interesting piece of trivia is that John Roberts was second in line actually to argue Bush versus Gore itself. He was part of the Bush legal team and was sort of given a back seat to Ted Olson, who ended up arguing it. But as some of the folks in the Bush legal team said to me, well he's done okay for himself since then, So it's okay when I wake up at three in the morning worried about the scenario, you know, the Trump versus Biden election becomes the case if Trump versus Biden and goes to the Supreme Court, I have to say that the thing that lets me go back to sleep those nights when I can is actually John Roberts, as he has been in the last two years. And I actually want to ask you constitutional law professor to constutional law professor, or sleep loser to sleep loser. Do you think that's crazy? I mean two years ago, I would not have said this. I would have said, you know, Chief Justice Roberts is a brilliant doctrinal lawyer. He aims for conservative outcomes. He's rolled back voting rights remarkably in the Voting Rights Act case to Shelby against Holder case, which you know is historically bad decision. I know you have said that many times more politely than I just put it. But then in the last two years, his insistence, I think, in reaction to Trump's flouting of the rule of law, does make me feel like Roberts realizes that if the Supreme Court under him were thought to have given an election to Donald Trump, he would never live that down, and the Supreme Court would never live that down. And so that's what eases me back to sleep. I think to myself, it actually might be okay. Does that seem crazy to you, doctor, No, that doesn't seem crazy. I mean, and I do find solace in his influence on the Court and think that that is a possible palliative outcome to the partners of the strife that would proceed a decision like that. But there are situations under which the Supreme Court does not become the final arbiter of these controversies. That if President Trump, for example, takes advantage of the sort of full constitutional machinery, you could see a pathway which ends up going through the Pennsylvania legislature, for example, into the House of Representatives, and Vice President Pence being in a role to try to decide who is going to be the winner of the presidential election, which is sketch that out in a little bit more detail. You know, the podcast is called a deep Background, so we're allowed to geek out. That's sort of the whole point of it, all right, Great, So, under the machinery of the Twelfth Amendment and the Constitution, it is possible that if you have competing slates of electors from a state, that it will eventually end up in the House of Representatives in a process that is presided over by Vice President Pence. And there's a lot of ambiguity as to what you do, what the nation does when you have a disputed presidential election. And so there is a scenario under which Vice President Pence says that he has the authority to determine which slate of electors is the valid slate of electors, and he may say, for example, that Pensylia legislature slate of electors will be deemed as the appropriate one. Under that situation, you could see Nancy Pelosi shutting down the House of Representatives so that it cannot proceed with the counting of the electoral slates, and then we have a full on constitutional crisis. The trigger to that originally would be a take it that in this scenario, you're imagining that the Secretary of State of Pennsylvania, who's the ordinary certifying officer, certifies that Biden one and so the electors to the Electoral College from the state of Pennsylvania are the Democratic ones. And then the state legislature enacts a law or a resolution. I guess, can they do this with or without the governor? Unclear to me, and then sends in a letter to the electoral college saying, wrong, this is the set of electors the Secretary of State is wrong about whom the State of Pennsylvania has chosen. These are the people whom the State of Pennsylvania has chosen, and ps these are the Republican electors for Donald Trump. That's what's the trigger. That's right. The relevant law here is both the Constitution Article two, Section one, twelfth Amendment and the Electoral Countact. The Electoral Countact actually says that whatever slate is signed on by the governor is sort of going to be presumptively seen as the right slate. But the Constitution says that each state shall, in a manner determined by the legislature thereof determined a number of electors. And so you could see competing slates of electors going up to this House of Representatives without a clear way of resolving that controversy. Leaving aside for a moment the possible legal fights, when you look at the voting mechanics and you try to figure out where the greatest concerns in fact law, and not the ones that the candidates might insist exist, but that really exist. Where are your greatest points of concern on the mechanics side, And then we'll come to the question of external interference too. So an election in which half the voters cast absentee ballots is a different kind of election than when we are accustomed to and absentee ballots are right for legal challenge. There are many different ways that you can sort of what we say, lose votes through the absentee ballot process, whether it's in the application process, the mailing of ballots to the voters, the returning from the voters to the election authority, and then the counting of the votes. At each stage there's the possibility of a mishap, and particularly under the sort of pandemic conditions and emergency conditions which have led to this transition tabs in the balloting, I think there is a lot of concern that you could see a lot of lost votes. The side that thinks it will gain by more votes being counted will always say, well, let's move beyond those mishaps and let's try to effectuate the intention of the voter, you know, the voter. Try to get it by this state, Try to mail it back by this state, Try to put the right amount of postage on it. Try to check the box next to the person that he or she wanted to vote for. The other side will say, no, this is a technical matter and election. You have to cross your teas, you have to dot your eyes. And so this given ballot or other ballots like it should be discounted apart from the partisan side. Do you have a general philosophical view about this question. Well, I do think that the rules need to be clearly specified in advance, and if they are specified in advance, that they need to be applied that way. Are they are the rules well specified in advanced in the fifty states? No, they're not. And this is one of the reasons why I'm a fan of pre election litigation. Right, we should try to get the rules specified as early as possible and as clearly as possible. You are right that Democrats are going into court now to try to make sure that as many ballots will be counted, and that's why we have over two hundred and fifty cases that are now being followed in the courts. Let me pause you in that for a moment. We're not even a month from the election and there are already two hundred and fifty cases that have been filed. Give us the general profile of what a typical one of those cases looks like. If there is a typical one, well, there really isn't a typical one, because we're seeing different types of cases depending on the states. The sort of modal absentee ballot case is in the vein that you described before, which is that you have Democrats who are going into court, for example, to make sure that despite what the law may say, that all ballots that are cast and postmarked by say election day will be counted. And one of the reasons they make this argument is they say, look, you know there are problems with the postal service, there are problems with respect to the coronavirus epidemic, and so we need to make sure that all votes are counted if they are cast before polls closed. So that's one set of cases. Then you have some cases where, for example, Republicans have gone in in New Jersey and in Nevada to try to prevent states from moving to all male balloting, saying that that's going to lead to fraud. Or they've gone into court in Pennsylvania to say that it is illegal for the counties to have ballot drop boxes where people can drop their ballot instead of putting in the mail. And so those are the kind of cases that we're seeing, as well as all kinds of other cases that are either specific to coronavirus and the pandemic or sort of general concerns about absentee balloting. So basically what you're saying is we're going to have a heavily litigated election, whether we like it or not. The only question will be will that litigation be determinative of outcomes? And that will depend on how close the votes are in some key states. That's right. There's something called the election administrator's prayer, which is, oh, God, whatever happens, please don't let it be close. Right, And so if there's a close election, you'll end up with all kinds of lawsuits that are brought to try to work the rest to determine the outcome. If it's not a close election, well then maybe we won't have as much action in court. We'll be right back in a world where absentee ballots constitute a large number of the ballots. How will we know whether it was a close election or not? I mean, ordinarily we know that absentee bots are relatively small numbers, So once we've counted the votes on election day, we can sometimes know, well, the margin of victory is greater than the number of outstanding absentee ballots. That's the definition I guess of an election that isn't so close. Literally, will we know that under these circumstances, will we know how many absentee ballots are out there. We might know how many were sent out, but we won't know how many are coming back. That's true. I mean, we'll know several things, and we'll know that at different times. Right, we will know, as you said, the number of absentee ballots that were sent out. We will probably in most states, we will know whether they were sent out to Democrats or Republicans, so you can sort of forecast what the likely partisan split is in the absentee ballots. Most of those ballots will be received before election day, so we will have a whole swath of ballots that will will be in the hands of the election officials, and so we will know how many ballots need to be processed, will know how many ballots are at that time in dispute. But you're right, if it's a Bush versus Gore situation, then we will not know whether the outstanding absentee ballots will be determinative. And as in Bush versus Gore, if it's that close we're talking about like say five hundred votes, then every aspect of the absentee ballot process would end up being potentially outcome determinative. But I'm at least one of those people who thinks that on election night or maybe the day after, we will have a very good idea as to who won. And that's because we will have information from different states that have completed most of their absentee balloting, either because they have rules on absentee balloting they're more restrictive, or because they were quick. That then will give us an indication as to how Trump and Biden are doing in the remaining states. And so, assuming it isn't a replay from four years ago, that it's not that close, then I think we will have a good idea on election night or the day after us to who won. Speaking of a replay of four years ago, one of the many things you spent part of the last four years focused on is trying to make sense of the foreign interference components in the twenty sixteen election. You've been a leader in trying to assess what happened, to assess its effects. And if I were to summarize your teaching us on this subject is it's complicated. So I know that it's complicated, But we have a little time here, and I would love to hear from you, how you picture the threats from outside interference in this election, wherever they may be coming from, and then how serious that you take them. So my view about what happened four years ago is that the Russian hack and leak operation was determinative of the twenty sixteen election. By that, I mean that the ability of the Russian intelligence services using wiki leagues, with some assistance from people involved in the campaign, to get Hillary Clinton's emails and to dump them on the public was extremely significant. The social media strategy that the Russians pursued, which included the hacken League strategy but also involved using Facebook ads, using organic content to polarize and persuade people that that it's not clear, was as effective as most people think we are going to see for an intervention of the latter type in this election. We're already seeing it. You've seen Facebook and other platforms takedown accounts. But compared to the amount of polarization and the amount of disinformation that is organically inside the United States right now and that's being produced by domestic actors, I actually think the marginal contribution of foreign disinformation, it really gets lost in the shuffle. I mean I think that if you see, as has been reported that Russian accounts are retweeting and amplifying statements, for example, that absentee balloting is marred by fraud, I mean you don't need the Russians to do that, getting that in the domestic political conversation, and so I don't think that they will have much of an impact on that. I am much more concerned about the sort of cyber infrastructure and whether particularly the new types of technology that have been bought by jurisdictions and perhaps untested to deal with, say the rise in absentee balloting, things that are related to say, the voter registration system, the other issues dealing with say election poll books right e poll books. Those are right for exploitation by a foreign actor, but we haven't seen any of that yet. How good are the cybersecurity defenses that the States have erected. I know you've looked under the hood. What's the quality of the defense relative to what the quality of the hacking could because the quality of the hacking could be a state of the art. Well, I think that the voter registration databases are much more secure now than they were four years ago. There are other electronic or digital. All aspects to the system, though, which are more vulnerable, like anything that involves a vendor, such as the software that's involved in sending out mail ballots and the like. But the machines themselves, which is what most people spend a lot of time thinking about. I also don't think are terribly vulnerable. I think that we've had this significant move in the last ten years toward machines with paper backups, and I think in the event of a cyber breakdown or even like a power outage, that we should be able to have enough paper ballots that we can conduct a RICO. Let's talk a little bit about the social media angle and disclosure. For me and I think for you too. We've both advised Facebook on aspects of free expression, in your case more focused on the electoral side, in my case more focused on the non election context. How do you see the kind of game plan that different social media platforms have begun to roll out for how they're going to address potential difficulties that arise around the election. Well, in recent weeks we've seen more aggressive pronouncements from Facebook and Twitter about what they're going to be doing with this election, not only do. We have the twenty sixteen election and the warning that it has issued to the social media companies, and for that matter, all the pressure that has come since then. But their experience in dealing with coronavirus related disinformation has set some precedents for them as to how they will deal with election disinformation, and so, yes, there will be sort of new policies and we've seen them already being executed to deal with even candidate sponsored disinformation, whether it's coming from presidents Twitter account or Facebook account. But what has impressed me most actually is the attempt to provide good information that a lot of what Facebook has been trying to do this time is to develop its own source of accurate election information that it will then preemptively pump out to the mass public on issues such as absent balloting or the security of the election infrastructure and the like. And so they are giving election officials access to top of feed notifications so that the first thing that you see when you open up your Facebook account is sort of reliable election information from the local officials. And so that's I think a new tactic. There's a lot of interesting stuff that they're still deciding, which comes to how do you deal with disinformation after the election. That's an unprecedented move for them as well, is what do they do if a candidate, for example, declared victory but hasn't actually won the votes. In the Bush Vigor aftermath, famously, first the television networks called the election for Bush, al Gore conceded to George W. Bush, and then al Gore unconceded and the networks pulled back from their calling the election. When I hear about trying to regulate post election disinformation, I keep on seeing it through the lens of you know, how do you know what disinformation is? Al Gore thought he'd lost, he hadn't, and then of course ultimately he had. George W. Bush thought he'd won. And for someone to declare victory, for Donald Trump to say, well I won today feels to me, even though that's a factual statement in some way and it might be therefore capable of being shown false, it feels more like a political declaration. And yet I think under at least some of the proposed ways, they're thinking about what some of the big platforms might do that might be labeled as disinformation and either flagged or taken down On Twitter, or on Facebook. How does that make you feel? Well? I agree with your assessment of the terrain here. I think that people need to understand that we actually have never had official declarations in the days after an election as to who actually won. And by that I mean that there is no national election authority in the United States who says yes, in fact, this candidate won. The closest thing we have to a national election authority in the US is the associated press, right, and so we delegate to the media the ability to declare who has won in these states, even when there could be tens of millions of ballots that were outstanding. And in twenty sixteen, right, we had Hillary Clinton ending up getting millions more votes after election day. And so the platforms are put in a delicate position, which is, well, how do they deal with candidate declarations of victory when the state election authorities have not certified a winner. But if they wait for the state election authorities to certify a winner, that will be several weeks. And so what they are doing is looking at other media organizations that are in the business of projecting outcomes, and they are going to report those other declarations of victory or those other calls that the networks have done, and then based on the other media organizations, they will then decide whether the declaration of victory by the candidate is valid or not. I was trying to explain to my kids how it back in the day when, as you're saying, the networks essentially had the function of saying who won the election? And I had to pause because their attitude was, what do you mean the networks? For them, ABC, CBS, and NBC are not places where one would watch the news. Are we moving from a world where the networks called the elections and were more or less delegated it to them to a world where the social media platforms are going to declare the elections, not by ever saying that, but by de facto allowing or disallowing claims of victory by the candidates. I think that is a worrisome trend, and this is actually the first election where we're going to test that out. Right now, as I understand it from talking to the folks at the platforms, they are going to be sort of a lagging indicator as to who won, and that they will be relying on the decision desks of the networks as essentially a large fact checking institution that will decide who actually won. And so Facebook and Twitter will not themselves be in a position to say, all right, we've determined that this candidate has won or not. But they're going to say, well, here's what you can see on our dashboard, which is what they're going to have up there, Which of the decision desks has declared which candidate to be the victor? And one thing that's important, you know, in this day and age, we assume that all right, well, the networks and the sort of legacy media organizations have been totally displaced by a million websites and other self proclaimed experts. But there are only a certain number of decision desks right now with the infrastructure to look at the county returns around the country. And so if you're a social media platform and you want to rely on a relatively sort of low number of actors, you have that capacity right now because they're only let's say seven to ten real decision desks out there that are going to be doing the hard work of projecting the outcome. How important is Fox going to be this round? First of all, does Fox have a formal decision desk? Yes, not only does Fox have a decision desk? But the Fox decision desk is actually an impressive organization which is hived off from the news operations of the network. And so while our inclination would be to say, all right, the Fox decision desk would be, say, the first institution to call the election for Trump, I'm actually skeptical of that. I know some of the people at the decision desk there, and so in many ways, the Fox Decision desk is the most important media entity in this election, because depending on what they say, you could actually see Republicans sort of siding with what the Fox Decision desk says if it goes against the president. That is, by the way, what happened in twenty twelve when the Fox decision desk called the Ohio results for President Obama and Karl Rove on the News on Fox News was actually jumping up and down saying no, no, no, it's too early to call, and actually the Fox Decision desk said no, Actually, Obama's one Ohio. So Fox News could potentially say that Donald Trump has lost the election and get listened to if it goes the other way. Though, I somehow suspect that Democratic listeners are going to be skeptical of what Fox News has to say. Well, that's right. If it's only Fox News that's saying that Donald Trump has won, then that would be just seen as playing to type. Right as Similarly, if the mainstream networks quickly call it for Biden, that's not going to lead Republicans to just sort of go slowly back into that good night. I mean, I think that what you're saying is that there is incredible polarization and media consumption that you're going to need some kind of bipartisan signal as to who actually won in order for the candidates to consider conceding and not to launch into litigation. Last question for your Nate, what am I not asking you that is front of mine for you? Are there any themes or ideas or things or last words that you want to share with listeners. Well, I don't want to end on a dour note or an alarmist note, because I do see my role in the next month is trying to calm people's fears. But I do think that there's the possibility for unprecedented activity in this election, particularly as it pertains to violence, and we haven't really thought about what happens if you have violence in polling places, violence in the canvassing boards, if you have unprecedented use of federal authority. And so I think that it's really important that the attorneys general of the different states start putting into place procedures to protect against violence, and that voters start understanding that they're going to be protections in place to prevent violence in polling places. You are a voice of calm and reason, and I'm grateful for that, and I know listeners will be grateful for it too. The reason you're able to be a voice of calm and reason is that you actually go down all of the roots to explore where things could go wrong. So you can't do one without the other. And I'm really grateful too for doing that here and at other times too. So thanks for coming on the show. Look far to speaking to you again soon. Thanks very much for having me Listening to Nate, I can see why he's having trouble sleeping when he thinks about all the different things that could go wrong in the twenty twenty election. That said, Nate's perspective is to evaluate and analyze each of the different scenarios and to give a rational logical, calm account of how these things could be resolved. The result is that there's a kind of split screen. When you listen to Nate. On one side of the screen, you see problem after problem after problem, two hundred and fifty legal cases already filed, more cases to be filed after the election, potential interference in the election, potential misinformation around the election, challenges as to who has won the election. All of that is on your left screen. On your right screen are a series of much simpler, more understandable, possible pathways that would not lead to deep constitutional crisis or conflict. One is that maybe the election just won't be that close after all. The other is Nate's prediction that more likely than not, within a day or two after this election, we actually will know who's one, because the margin will be broad enough. The idea that the Supreme Court is in the hands largely of the swing vote Chief Justice John Roberts, who thus far has worked very hard to keep the Supreme Court out of partisan political conflicts and has been willing to hold the Trump administration to the rule of law. The fact that we know about attempts of foreign interference that happen in twenty sixteen, and so we're able to respond to those in a more sophisticated way now. The fact that social media platforms at least are trying to put plans in place now for how they will deal with misinformation or other challenges to these elections. The job of a scholar who's also a public intellectual like Nate is to assess the problems that we face and to propose concrete solutions for them. Nate wants us to stay calm, not because there aren't serious problems, but because there are ways that they can be addressed. 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 Jean Kott, our engineer is Martin Gonzales, and our showrunner is Sophie mckibbon. Theme music by Luis Gara. Special thanks to the Pushkin Brass Malcolm Clodwell, Jacob Weisberg, and Mia Lobel. I'm Noah Feldman. You can find me on Twitter at Noah Urfeldt. I also have a new book out called The Arab Winter, a Tragedy. I'd be delighted if you checked it out. I write a column for Bloomberg Opinion, which you can find at bloomberg dot com slash Feldman. To discover Bloomberg's original state of podcasts, go to bloomberg dot com slash podcasts And if you like what you heard today, please write a review or tell a Frand this is deep background