Calling All Lawyers!

A Special WhoWhatWhy Podcast

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Reading Time: 31 minutesProtecting Out Vote 2020

 

Rather than “kill all the lawyers,” as Shakespeare suggested, the election mantra today is “call all the lawyers.”

Judging from the past several presidential contests, it now seems that a crack postelection legal team is as necessary as a good campaign manager and a data-crunching “war room.” 

In this week’s special edition double WhoWhatWhy podcast, we speak to two of the most distinguished members of the election bar. First, we talk with Matthew Seligman, a DC-based legal scholar and professor at Harvard Law School. Seligman is currently teaching a seminar at Harvard on disputed presidential elections with professor Lawrence Lessig.  

We also talk with professor Joseph Fishkin, a widely quoted election law expert at the University of Texas School of Law.

In this up to-the-minute conversation, we look at the current legal challenges filed by President Trump, the legal landscape for mail-in ballots, and the false claims of stolen elections and disqualified ballots. 

We talk about the “margin of litigation” and if these current cases meet that threshold. We consider the impact of the 2000 “Brooks Brothers riot” on the current election; how preelection polling can influence the expectations that may fuel election lawsuits; and how we got to such a complex legal landscape.

Now that mail-in ballots have become so much a part of US elections, our two guests look at what needs to be changed in both state and federal law to accommodate this new reality.

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Full Text Transcript:

Jeff Schechtman: Welcome to this special WhoWhatWhy Podcast. I’m your host, Jeff Schechtman. Many of you know the line by Shakespeare in Henry the Sixth where Dick the Butcher says, “The first thing we do is kill all the lawyers.” Well, that might be paraphrased in our current political environment to read, “First thing we do is call all the lawyers.” It seems today that in every aspect of the electoral process, in the run-up to elections with greater concern about voter suppression, and after the election as we are seeing today, and as we saw with the so-called Brooks Brothers riots of 2000, lawyers are now as important to part of the electoral process as the campaign managers and the advance team. How we got here, how the courts seem to be the new ballot box, and what does it really mean when we hear each day about new lawsuits being filed?
Jeff Schechtman: We’re going to talk about all of this today with two guests that have a broad knowledge of the whole arena of electoral law. First, we’re going to talk to Matthew Seligman. His practice focuses on Supreme Court litigation and election integrity. He is currently co-teaching a seminar at Harvard Law School on disputed presidential elections with Professor Lawrence Lessig. He previously served as a lecturer on law at Harvard Law School and a visiting assistant professor of law at the Cardozo School of Law. He’s a graduate of Stanford Law School and is also currently a consultant to the Campaign Legal Center.
Jeff Schechtman: A little later on, we’re going to talk to professor Joseph Fishkin. Professor Fishkin is the Marrs McLean Professor in Law at the university of Texas, Austin. He practices in the field of election law and he received both his undergraduate and law degrees from Yale University. He has a PhD in politics from Oxford where he was a Fulbright scholar, and he’ll be joining us here in just a little while. But first I want to welcome Matthew Seligman here to the WhoWhatWhy Podcast. Matthew, thanks so much for joining us.
Matthew  Seligman: Jeff, thanks for having me.
Jeff Schechtman: I can’t imagine that there were as many lawyers involved in Hayes v. Tilden back in 1876 when we had a very contested electoral college.
Matthew  Seligman: Yeah. It’s certainly a shift that we’ve seen since the 19th century and particularly over the last 20 years. Bush v. Gore was really a turning point for this. We’ve had close presidential elections before, we’ve had disputed presidential elections before. The 1876 election that you just mentioned is probably the most viciously disputed presidential election that we’ve ever had and we can go into that in more detail for your listeners if you like. But one thing that we have now that we didn’t have previously is the idea that courts are the place to resolve disputes about elections. In some ways that’s good. It’s certainly better than, in 1876 there was the threat of the civil war reigniting, and so courts are certainly a better way to resolve disputes than guns. But, I think that there’s been an impression that has grown over the last years that we see being reinforced by the president over the last several days, that courts decide elections rather than voters, and that’s just not true.
Jeff Schechtman: What pressure has that put on the legal profession and the sense of those, like yourself, that work in this area that have suddenly taken on this responsibility in some respects of shaping, and in some cases, trying to help decide elections?
Matthew  Seligman: I think it’s important for election lawyers of all corners, of all parties, to recognize our important but also limited role in deciding these issues. The law provides a framework within which elections take place and that’s absolutely critical. Some of that legal framework has been very prominently litigated over the last decade. For example, the Voting Rights Act. In 2013 we saw the Supreme Court strike down part of the Voting Rights Act. There is a role for law and there’s an important way where law can protect the integrity of elections. It’s important that we keep the emphasis on setting up the rules of the road in a fair way where the people’s voice can be heard. But that’s the end of the role for lawyers, is making sure that the laws are followed, that’s it.
Matthew  Seligman: Now, we see a different perspective coming from the Oval Office right now. It seems, where the president said that he wants the Supreme Court to decide the election, and that’s just not how the system works. The way that courts can get involved is something along the lines of what we saw in Bush v. Gore in 2000. Whatever you think about the result of that decision, there was a clear legal claim and it would have made a difference to the outcome of the election. What happened in Bush v. Gore was, among other things, the Bush campaign claims that the recount process there was being conducted in a way that was unconstitutional. The Bush campaign made that argument because they were ahead at that point. After litigation in state courts below, they ultimately asked the Supreme Court to stop the recounts and that decided the election.
Matthew  Seligman: What we can see in that situation was there was a clear legal claim and it would have made a difference, but it wasn’t just a free-floating request from a candidate for a court to step in and decide the results of elections. From a lawyer’s perspective, what I see in most of the lawsuits that have been filed over the last couple of days is, either they’re legal claims that will ultimately affect a very, very, very small number of votes that’s very unlikely to make a difference in the outcome in any state, or they’re more free-floating requests that don’t really have legal traction. An election scholar named Justin Levitt gave probably the quip of the week when he said that, “Absent a legal theory with provable facts that show a legal violation, all a lawsuit is, is a tweet with a [inaudible 00:06:27], and ultimately it’s just not going to have any effect.”
Jeff Schechtman: One of the things about this is it really does go to the heart of, as our election system does, the very hard of federalism. The idea that there is this control of the electoral process by the states and that they have a tremendous amount of autonomy in this area. Talk about that.
Matthew  Seligman: Yeah, it’s one of the aspects of our political system that we see across the board, but it’s acutely experienced in election season in such states. In many respects, counties and local jurisdictions have an enormous amount of autonomy in how they conduct elections and how they do business in elections and otherwise. That’s something that’s a prominent feature of our political system, but it can lead to problems. In our history, the great problem that that led to was the practice, over 100 years in certain parts of the United States, of rigging elections so people of color couldn’t vote or their votes weren’t counted. That’s the most prominent historical example of this tension between local control of elections and federal involvement.
Matthew  Seligman: We have the Reconstruction Amendments to the constitution which were a response to that, but then we had Jim Crow, which led to this federal Voting Rights Act. That demonstrates the interplay between what states are doing with elections and what federal law has to say. Now, Bush v. Gore demonstrated that very same dynamic. What the Bush campaign claimed was that the way that state law was operating in the recount in Florida in 2000 violated the federal constitution. What we see today is, again, some of the same tensions that are being brought up. One of the cases that’s been in the works for some time now, and the Supreme Court has declined to weigh in several times now, is this question about the deadline for receipt of mail-in ballots in Pennsylvania.
Matthew  Seligman: The legislature passed a law. It said that mail-in ballots have to be received by election day. The Pennsylvania Supreme Court extended that deadline on the basis of the state constitution. There’s this complication in state law and the Trump campaign is ultimately asking the Supreme Court to say that the federal constitution prohibits what the Pennsylvania court did. That’s, again, this interplay between state and federal law where much of the question is about who decides what the rules of the road are going to be. Now, one of the other implications of this system is that it’s just very confusing and it’s a complicated, convoluted system where the rules are different in different parts of the country. Just with mail-in ballot deadlines, when they have to be received by in order to be counted varies by state, and it can vary by weeks between states. I don’t think that there’s a really good reason to have that type of variation in the rules of elections across the country.
Matthew  Seligman: The states are called laboratories of democracy where they can experiment with different ways of doing something and there are virtues of that approach in a lot of different areas of our civic life. But in the conduct of elections, it’s less clear that that is a virtue just because we live in a national political environment right now. People are watching national political news on CNN, on FOX News, on MSNBC, and yet the rules of elections vary so much by geography that the only implication of that, it’s not constructive adaptation to local circumstances but just confusion. When there’s confusion that can lay the seeds for doubts about electoral outcomes, and that’s something that’s destructive to our democracy.
Jeff Schechtman: It does seem like the whole debate gets mashed together into what are two very specific buckets. One in terms of who gets to vote, which goes to this whole idea of election integrity and voter suppression, and the other part being how the votes get counted. In many ways in our dialogue and our conversation of late these two things have gotten mashed together in ways that I’m not sure are helpful to either side.
Matthew  Seligman: I think that’s right. Another point to emphasize about what’s happening in the courts this week and particularly the last day or so, asking a court to order a state or a county to stop counting validly cast votes is just… that’s not a legal theory that’s viable. When there’s no question that the votes were validly cast, they have to be counted. That’s clear in our law, and that’s clear just as a first principle of democracy. Validly cast votes will be counted. There is no question about that. Where there could be questions are two. First is, if there’s a question about how to count the votes, and this is what happened in Bush v. Gore. For those of us who lived through that, we have nightmares about hanging chads.
Matthew  Seligman: What that was about is, okay so there was just some physical ambiguity on some ballots about how the vote was cast. Now, since then, some of the lessons of Bush v. Gore have been learned where that kind of ambiguity of just a ballot has a physical defect of some kind. That’s not something that’s as much of a concern now because technology has advanced and we learned how critically important it is to avoid those sorts of questions. That’s not a legal claim that we’ve heard in this election. The other question is whether a particular ballot is valid and can be counted. Now, that can affect both totals. If, for example, a court steps in and says that ballots that were received by mail after election day can’t be counted, that can ultimately affect the vote totals. But that’s also an exceptionally small number of ballots and there’s not much reason to think that it would ultimately be enough to flip the results in any states that would be decisive to the electoral college.
Jeff Schechtman: One of the things that we hear now with so many absentee ballots is this whole issue of signature matching and the ability to cure that and the degree to which that’s resulted in ballots being thrown out.
Matthew  Seligman: I think one of the things we’re going to have to look at after this election is making sure our vote by mail system is as transparent, as easy to use, and as trusted as can be. Now, the vote by mail system has worked exceptionally well. The local election authorities, state election authorities, have dealt with an unprecedented surge of mail-in ballots, and they’ve done so really remarkably well, and I think that’s the most important thing to emphasize here. In a year where it seems like every challenge has been thrown at us as a country and at election officials in particular, both the polling place workers have done such great and amazing work, the people who are physically counting ballots had done such amazing work, and states have… there are ways in which they could have responded better, and we can talk about that, but really I think we should emphasize the extent to which this has gone remarkably smoothly.
Matthew  Seligman: Some of the nightmare scenarios that I was certainly kept up at night over the last several months didn’t come to pass on election day. We didn’t see chaos on election day and, by and large we don’t see that many problems now. I think that’s the main takeaway, that this is the process working. It can be improved as every aspect of our democracy can be, but over the last couple of days the counting of ballots has extended longer than, certainly, most people watching this would like. We’d want it to be resolved one way or another more quickly. I can understand that frustration. At the same time, let’s not lose sight of the fact that this is working.
Jeff Schechtman: Why do you think that it has worked as smoothly as it has? I mean, as you say, there was so much written about, so much fear about all of these nightmare scenarios with respect to the election itself and none of that came to pass.
Matthew  Seligman: Well, I think the primary credit here goes both to election workers and to voters. One of the things that’s remarkable about this election is that in the midst of the pandemic we had the highest turnout ever. That’s an encouraging sign of our democracy. I think that people were maybe shocked into action that voters made sure that they went and they voted early because they didn’t want to risk these nightmare scenarios. I think part of the credit goes to election professionals doing heroic work and part of the credit just goes to the American people in coming out in vast numbers. One of the things that we’ll be looking at over the next couple of days is… the critical, factual context of Bush v. Gore was that the outcome of the election and the electoral college depended on Florida. And that the margin, when the recount was stopped, was 537 votes. That is just unimaginably close. I mean, if you ran an election 1,000 times, you might not get something that close again.
Matthew  Seligman: The greatest bulwark against a legally contentious decision that determines the outcome of an election, that can happen only if it’s really, really, really close. By so many people voting in so many different states, the risk of that has gone down, I think. It’s still possible that it could all come down to, for example, Pennsylvania, and that could be a razor thin margin so we can’t declare victory too soon. When I say victory I mean victory for a decisive result that we can all trust. Which I think that’s what everyone should want, is a decisive result that we can all trust. We’ll see how things unfold over the next couple of days, but it doesn’t seem to me that… it’s likely that the facts on the ground are going to be such that there’s going to be that sort of legally contentious case on such a thin margin.
Jeff Schechtman: One of the issues that we heard over, and over, and over again with respect to Bush v. Gore is an issue that we haven’t heard spoken about much in all this discussion about ballot counting this time around, and that is this notion of the intent of the voter.
Matthew  Seligman: Yeah. I think there are two reasons for that. First of all, as we talked about before, the mechanism for voting has changed. One of the things that was unfortunate about the mechanisms for voting in Florida in 2000 is that there were, for much of the state, these punch cards where you had to take a metal stylus and punch through a piece of cardboard. Sometimes people punched through but only partially, that was the hanging chad, it was a little piece of cardboard that was punched out but still hanging on. Or what was called the pregnant chad, which is where it was pushed through but not attached. Then there were dimpled chads, which were just pressed a little bit. There was all this range for interpretation about, did the person actually intend to cast a vote for a particular candidate there or not?
Matthew  Seligman: The technology in voting is just very different now than it was in 2000. After that election and all of the confusion that ensued, to our system’s credit, we recognized that there were problems with that and our voting technology needed to change and be updated to prevent those sorts of concerns. For example, I voted early in Washington DC, and I did so on a touch screen. Then it was very clear what my intent was, it printed it out on a card. I can verify by looking at the card that it matches the votes that I intended to cast. Then I turned that in and that card is counted. Now, that’s a system where the question of the intent of the voter is just not up for dispute in the same kind of way as the mechanism for voting in 2000.
Matthew  Seligman: That’s a promising story because that tells us that one, we can make improvements to the conduct of elections to make it easier for voters and to reduce uncertainty. That’s a possibility that we can seize. It also means that our political system, for all its divisiveness… that’s something that we decided to do together as a nation after the Florida election in 2000. That partisans, even those who ultimately benefited from the Supreme Court’s decision there got on board with the idea that we need to make this clear. Because one of the most important aspects of democratic elections is clear results so people can trust them. We continue to make improvements and our system now is one that we can trust so much more even than the one that we had in 2000.
Jeff Schechtman: What about the concern about systems being hacked and interference, we certainly heard a lot about this, and the machines themselves in the run-up to this election?
Matthew  Seligman: That is a concern that a lot of people have had and I shared that concern. There’s absolutely no evidence that that’s happened. I think it’s important to distinguish two types of potential foreign interference. Most of the time hacking is talked about in terms of foreign interferences. It doesn’t have to be, but for obvious reasons after 2016, that’s the focus of the concern. When we talk about foreign interference, what we’ve observed is essentially public influence campaigns either by hacking a candidate’s, emails, or a campaign’s emails and releasing allegedly embarrassing information, or having social media bots that amplify disinformation. That’s one category of, let’s say, computer malpractice in elections, and that’s really bad.
Matthew  Seligman: Now, the mechanism by which that can be bad though is, it can influence the way that people actually cast their ballots because they saw something on social media that one candidate or another was involved in some scandal when there’s no actual basis for that and they decide, “I’m going to vote for the other candidate because I saw this thing on social media.” That’s one mechanism of computer malpractice in elections. We have, unfortunately, seen a lot of that. What we haven’t seen though, is any evidence that the computers of a canvassing board in say Pennsylvania have been hacked and the vote totals have been changed, or that the software for the machine that I used to vote last week in Washington DC, that there was something that was… some code was altered in a way that would affect the results. There’s no evidence that anything like that has happened, and that’s a testament to how resilient these systems are.
Matthew  Seligman: Now, can we do more to ensure the integrity of the computer systems that are involved in tabulating votes? Sure. I think we can, and I think the fact that this is on some people’s minds as a worry, that’s reason enough to make sure that everybody has faith that our election systems are safe from that type of hacking. Yes, I think that after this election we’ll have to redouble our efforts once again to ensure that everybody’s confident in the outcome of elections and in particular on the computer systems that are used to implement elections, to administer elections. Right now though, it looks like we’ve avoided all of those problems.
Jeff Schechtman: One of the things, before I let you go, I want to talk about are these specific lawsuits that have been filed over, literally, the past 24 hours to stop the vote counting in Pennsylvania, in Michigan, et cetera. Whether you think that these lawsuits have any merit, what’s the basis of them as you understand them, and is there any chance any of them could succeed?
Matthew  Seligman: The theme of these lawsuits is that I don’t think they’ll make a difference. They fall into a couple of different categories. One concern that has been raised in some of these lawsuits is that the Trump campaign is saying that their observers in the counting process don’t have enough access, that they weren’t physically close enough to the table where the votes were being tabulated for example. Holding aside the legal merits of that claim, and those claims have generally been rejected, so A, that wouldn’t stop the counting of validly cast votes if they won. B, it wouldn’t change how the counting happens. All they’re asking is to be able to watch a little bit more closely. That’s just not going to change the outcome of the election.
Matthew  Seligman: There are some other lawsuits that are seeking to invalidate certain ballots. For example, there’s a lawsuit in Pennsylvania that is claiming that one local jurisdiction was helping people to cure their mail-in ballots in a way that violated state law. Now, what that means is, so if you send in a mail-in ballot, and there’s some sort of error in what you’ve done, so you didn’t sign it the right way, you didn’t… in Pennsylvania you have to put it in two separate envelopes like a Russian nesting doll. If you didn’t do that properly, there’s a mechanism for the local election board to reach out to you and then fix the problem. There’s a lawsuit saying that the way in which one jurisdiction in Pennsylvania was doing that was not legal under state law.
Matthew  Seligman: Even if that lawsuit succeeds, and I think it’s very unlikely that it would, this would affect a very small number of ballots. Now, on one level, every single ballot counts, that’s a principle that’s foundational in our democracy because we participate in this process to give our government legitimacy. The exclusion of any voter’s lawful vote is a real problem. But if we take the perspective of whether it’s likely to change the outcome of the state or the electoral college, it just doesn’t look like these lawsuits, even if they won, which they’re very unlikely to do, it looks like it’s going to take either zero votes in the vote tabulation or such a small number that it’s just really unlikely that it would make a difference.
Jeff Schechtman: You talk about the idea of every vote counting being foundational in terms of democracy. Is it foundational in terms of election law? I mean, is it something that is codified across the board so that it matters in that sense as well?
Matthew  Seligman: Not as much as it should be. In our federal constitution the right to vote is protected, but not as much as it should be. One of the most shocking things about our federal constitution is that there is actually no federal right to vote for president. That’s just shocking to me. The system that was set up in the original constitution and then refined a little bit in the 12th amendment sets up a system where state legislatures, the states get to decide the manner in which the electors in the electoral college are appointed. Now, for well over a century every state has used a popular election to decide how to appoint its electors, but that wasn’t true at the beginning of the 19th century, and it took decades for that to become true.
Matthew  Seligman: Now, we have other aspects of the federal constitution that prohibit denying the vote on the basis of race or denying the vote on the basis of gender. These are critical anti-discrimination measures, but one thing that we don’t have is a federal constitutional provision that says everybody has a right to vote, and the government has an obligation to make it so people can actually do that. Now, we have a patchwork of federal and state laws that do a pretty good job. We have, in this election, something approaching… I think, 145 million or more votes cast in this election is where it’s going to end up and that’s pretty good, but I think that we can do better. There are proposals out there for making election compulsory as we see in some other democracies like Australia. Making election day a holiday so people who have the legal right to vote have the means to cast their vote by taking off of work. These are all ideas that I think we need to think about just as part of our long-term, decades and centuries long process of making the right to vote more real.
Jeff Schechtman: Matthew Seligman. I thank you so much for spending time with us today.
Matthew  Seligman: Thanks for having me on.
Jeff Schechtman: Thank you. Continuing our conversation on the legal aspects of the election, I’m joined by Joseph Fishkin. He’s the Marrs McLean Professor in Law at the University of Texas at Austin School of Law. His teaching interests include employment and discrimination law, constitutional law, and election law. He’s a graduate of Yale and Yale Law School and received a PhD in politics from Oxford University where he was a Fulbright scholar. It is my pleasure to welcome Professor Joseph Fishkin to the program. Joseph, thanks so much for joining us.
Joseph Fishkin: Thanks for having me.
Jeff Schechtman: It’s great to have you here. One of the things that you talked about in a recent article, and I thought the phrase was wonderful, was this margin of litigation with respect to these elections. Talk about that.
Joseph Fishkin: The phrase, I just think about it as a little bit similar to the margin of error in polling. Sometimes if an election is really close you say, “Oh, this looks like it’s within the margin of error.” We can talk later on if you like about the way the margin of error in polls doesn’t necessarily capture the real possibility of error. But in an election result that’s very close, you might say it’s within the margin of litigation meaning that litigation might be enough to change the outcome. You should think of here Florida in 2000 in the Bush v. Gore dispute that went through the courts. Because Bush and Gore were only separated in a humongous state by 500 votes, there was plenty of possibility for minor changes to the way ballots were counted, or whether certain categories of ballots would be counted or not. There were provisional ballots, there were this and that. There was plenty of room for litigation to change the outcome.
Joseph Fishkin: I think the key thing to understand about the current situation with President Trump and former Vice President Biden is that they’re separated by too many votes, so it appears, we’ll see. They appear to be separated by too many votes for there to be any real possibility that litigation would change the outcome. In other words, it’s outside the margin of litigation.
Jeff Schechtman: Of course, this whole idea of stopping the counting of the votes. Talk about that as it relates to this idea of inside and outside this margin.
Joseph Fishkin: Yeah. I mean, look, there’s various legal actions that the Trump team has recently kind of thrown at the wall. They fall into different categories. Some of the things that they’re trying to do, for example, asking for a recount in Wisconsin, totally normal. When candidates are separated by a relatively small amount and President Trump’s down in Wisconsin by 20,000 votes or something like that, it’s normal to ask for a recount. It’s very unlikely to change the outcome. The recount will happen in a couple of weeks. That’s totally fine.
Joseph Fishkin: Much more out there and implausible are claims that the count should be stopped prematurely before you even count large numbers of the ballots on what are really thin procedural grounds. Like there’s a claim that the observers who were from the Republican side, they want closer access to more of the ballots, like maybe an observer at each table where the counting is happening instead of just in the room. There’s COVID issues that seem to be affecting how close the observers are to some of the… but really, this is stuff that is not going to change any votes at all. It’s just completely minor procedural stuff. I strongly suspect that even the most Trump-sympathetic judges are not going to see any reason to advance these claims.
Jeff Schechtman: Have we gotten to a point where too many lawyers, frankly, get involved in this process? That there’s too much legal attention paid to the outcomes of these elections.
Joseph Fishkin: Well, yeah, I mean, it’s a good question. I think we have a strange election system in which the election administration itself is relatively poorly financed and you have a lot of very, I would say, heroic public servants who are trying to do the work of getting these ballots counted under lots of pressure from outside, from journalists, from political campaigns who want it to happen fast and everything to go perfectly, smoothly. It’s a real challenge. The lawyers are, in contrast, often very well financed. Lots of lawyers have learned the lessons of Bush v. Gore, maybe the wrong lesson, which is, by bringing a lot of lawsuits at the very close of an election or even after election day, you can potentially change the result. The thing about that lesson is, it’s true but it only applies to the very unusual situation where there’s essentially a tie and there’s no indication that 2020 is in that category the way 2000 was.
Jeff Schechtman: When we look at the current situation, do you see any of these lawsuits really sticking, any of them having a real valid point of view?
Joseph Fishkin: I mean, not really. I think there’s, of course, the possibility that one or another of the claims filed will turn out to have enough merit to move forward. But I guess what I don’t see is any of the lawsuits that I’ve seen having, A, any possibility of actually moving significant numbers of votes or, B, any real likelihood of court taking it seriously. I mean, there’s a set of novel claims that build on Bush v. Gore actually that the Trump administration has filed that basically aim to overturn state Supreme Courts’ efforts to make voting a little bit easier during the pandemic. For instance, accommodating the huge wave of absentee ballots by letting ballots that were postmarked on election day, but that show up later, count. That’s probably the most prominent and maybe the most important of the lawsuits.
Joseph Fishkin: I think the Trump campaign joined that one late. That one already made it up to the Supreme Court where some Supreme Court justices would have been interested in hearing it. But it seems like there was not quite enough votes to hear that dispute. That whole claim is based on a constitutional theory that actually didn’t even get a majority in Bush v. Gore, but it had three justices in that case interested in it. Which was a theory that because the constitution says that the federal elections will be conducted in a way that the state legislature directs, therefore it has to be the state legislature and not state courts or state secretaries of state, or who knows who other important state officials, who are deciding the rules.
Joseph Fishkin: But this theory has a lot of problems, especially if you take it to its logical conclusion because state legislatures can’t really act on their own. Always, state courts interpret the law and state election officials apply it. If you start to say, “Well, only the legislature can decide anything,” it quickly runs into a set of obvious contradictions. I’m not sure that people who really are proponents of this theory have thought through its implications. But anyway, that was a deep dive into the one theory that I think the Supreme Court might have an interest in. But I think the biggest thing for your listeners to understand is that even if that lawsuit were successful, there’s just no indication that it would alter the outcome. I think that that matters in terms of whether courts are really willing to seriously entertain these suits. You don’t want to go out on a legal limb if the outcome’s not going to change.
Jeff Schechtman: Right. Is there a larger legal principle here of every vote having to count and the effort to determine the intent of the voter?
Joseph Fishkin: Yeah, sure. I mean, look, in any state’s election law you’re going to be able to see an idea that when people cast votes they’re supposed to count. I don’t think it’s really controversial to say that. It’s only a politically opportunistic argument to say that validly cast votes shouldn’t count. In fact, I don’t even think any campaign, even the Trump campaign, would agree that it’s even fair to characterize what they’re saying as not counting every vote. I think it was amusing, if the stakes weren’t so high, to watch the dueling soundbites this morning of pro-Trump protestors in Arizona, chanting, “Count all the votes,” which seems like a good idea, and pro-Trump protestors chanting, “Stop the count,” in Pennsylvania, which seems like less of a good idea. But you have to, at some point, scratch your head and say, “Wait a minute. This is all the same side chanting these two slogans, depending on where they feel they’re ahead or where they feel they’re behind.” It’s just too obviously opportunistic to take seriously.
Jeff Schechtman: Does there need to be a reexamination, at the very least, with respect to election law as it relates to mail-in ballots, absentee ballots, that we have seen so much of in this election as a result of the pandemic, but which we may see again in the future because people seem to like it?
Joseph Fishkin: Yeah. Look, I mean, part of what this pandemic voting situation showed is that it’s difficult to make big changes to the election scheme on the fly when one party doesn’t necessarily want to make those changes. The western states, like all the West Coast states, plus Utah and Colorado, I think a few others that do all mail-in ballots. You all were sitting pretty at the election administration round table here because you already had a system going that was relatively well-suited to pandemic voting conditions. States that typically conduct most of their election in person but now suddenly had a very large number of voters who wanted to vote absentee had more problems frankly, because it’s not easy to, on the fly in one cycle, stand up a full absentee system, particularly one that is going to get a lot more votes than you were used to.
Joseph Fishkin: I think there’s a real need for federal legislation and money to basically bring all of the electoral systems in the nation up to code in terms of being able to allow individuals multiple paths to casting a ballot that will work and that the system has the capacity to handle without problems or errors, and where election administrators have the money to plan and carry this out. Because, this crisis was one that obviously affected in-person voting. But there could be a crisis that makes it harder to vote by mail where large numbers of Californians would suddenly want to vote in person. I think it’s important for the system to be able to accommodate people who want to use more than one path to casting a vote. It just helps the resilience of the system. It helps avoid situations where some last minute problem is going to result in a real crisis or disenfranchisement of lots of people. We’re not there right now.
Joseph Fishkin: I think, unfortunately this has become a partisan issue in Washington with Democrats favoring a lot of these reforms and money and Republicans opposing them out of a fear that they’re bundled with too many reforms that would make it easier for Democrats to vote relative to Republicans. But I guess I hope that it’s possible to find some sort of a bill that, assuming divided government is where we end up in this coming year, that Congress can actually pass to get some money out to the states to build better systems. I think there’s a lot of local election officials and state election officials, especially local ones. Like here in Texas, the county clerk in Harris County where Houston is has done an amazing job. There’s a lot of local officials who are ready and willing to set up better systems of election administration if we give them the resources to do it.
Jeff Schechtman: Is there an inherent conflict between trying to structure this as some kind of consistent federal policy and at the same time do it within the context of local election officials and local election organizations keeping their own autonomy?
Joseph Fishkin: Yeah, I think there’s always a tension there. I don’t think that we need to mandate that every state do it exactly the same way from a federal level. But I do think that there’s a lot of room for creating a federal floor which already we have in various… we have things like the National Voter Registration Act, which revolutionized every state’s voter registration system, but still allows local officials to conduct their registration drives in various different ways. The bill that was known this last Congress as H.R. 1 in the House, federal election reform bill, included a bunch of provisions that would strengthen that federal floor through provisions like automatic voter registration that would make things a lot easier. I think you can do that while still allowing states and localities some room to implement things how they want. But I think it’s just important to set a more solid floor underneath the election system across the country.
Jeff Schechtman: Talk a little bit about the impact, as you see it, of polling and the way it sets up expectations which then play out into the vote counting themselves and what people expect.
Joseph Fishkin: Yeah. Look, obviously having failed two cycles in a row to estimate where the votes would end up, the polling profession does seem to have a lot to answer for. I think the media outlets and frankly the public who want information every day or every couple of days about where races stand, we are all part of the problem here. Because high quality, good opinion polls that follow up a lot with the people they call to try to get a better higher response rate and that use live callers, those can get a little bit more accurate of a picture than some of these other quick and dirty polling methods that get you clicks and attention. It seems like all of them end up in the averages that everybody follows and reads before the election.
Joseph Fishkin: But yeah, it’s very unfortunate. I mean, there’s no election results until there are results. The way that we have treated opinion polls as though they are a more scientific instrument than they really are has obviously caused people’s expectations to be a little bit more certain than they ought to be. I was mentioning at the top, this idea of the margin of error. All polls report a margin of error, which is just the margin really of sampling error. Which is like, if you reach your hand into the jelly bean jar, what’s the range of outcomes that 95% of the time you’d expect your handful of jelly beans to contain? Sampling error is part of any random sampling process including a poll.
Joseph Fishkin: But with polling about political questions in the United States where there’s no mandatory voting here, and so who shows up is really the biggest question. Pollsters are just trying their best to guesstimate who’s going to show up. Sometimes they’re pretty far off. They also are trying to guesstimate who exactly from their poll is better representative of the people who didn’t respond to the poll, which is by far the vast majority of people these days just hang up. I think we have spam and telemarketers and everything else to blame for that. But people don’t answer the phone when pollsters call, and so pollsters are left in this weird position of trying to say, “Well, people from some demographic groups maybe answer the phone a little more than people from other demographic groups and so we’re going to start weighting our sample in lots of different ways by race, sex, education, age, blah, blah, blah.”
Joseph Fishkin: But it seems like all those efforts didn’t really do enough to get to an accurate picture of the Trump-leaning voters in either 2016 or 2020. Maybe more of them just hang up the phone when a pollster calls and because of that, we are stuck with a wildly inaccurate picture of particular states. Especially the state polls seem to have been more wrong than the national polls. A relatively close race being off by a few points means you may get the outcome wrong and obviously educating the public about taking the polls a little less like gospel could help. But I think it would also help if pollsters themselves took the route of doing fewer more expensive, higher quality polls rather than saturating us with all these somewhat junkie poll results. But in the end, we all have to recognize that elections are about who actually votes, not what people said in some survey.
Jeff Schechtman: In this larger context of process, you’ve written recently that because of the pandemic that we’ve conducted this controlled experiment in how election organizing works, how campaigns work, talk about that.
Joseph Fishkin: Yeah. Well, right. I mean, this election, Democrats did not canvas much in person in most of the country. Usually before an election, you have, obviously people spend a lot of money in campaigns on political advertising and so on. But there’s also a lot of effort put into on-the-ground, get out the vote organizing efforts, especially when you have early voting which now you have everywhere. Campaigns are trying to go around and get their people to come out and cast their ballots, and that’s very important work. We don’t really know exactly what percentage of the votes that affects, but it seems like it makes some difference. The reason that I use the phrase controlled experiment here is because, essentially, the Democrats, because of fears of COVID, both on the part of the campaigns and also on the part of their voters who had more fear of canvassers walking up to your door and trying to talk to you during this pandemic than did Republicans. Although I’m sure there’s plenty of people on both sides who were worried about COVID, it was not symmetrical.
Joseph Fishkin: The Democrats basically said, “All right, we can’t do it so we’re going to use text messages, and calls, and a bunch of other methods instead of this usual, in-person canvassing.” The Republicans, to a much greater extent, went ahead with the normal canvassing process like both parties would do most years. I don’t know yet, but when the history of this strange election is really written, I strongly suspect that was important for the Republicans in various parts of the country that they were doing in-person canvassing, which I think is more likely to reach people than all these electronic means. I mean, I’ve gotten a ton of text messages from actually both parties who think that I’m one of their partisans who should go out to vote immediately. By the way, I had already voted weeks before, their lists were not even accurate.
Joseph Fishkin: It strongly suggest to me that there’s not really a substitute for showing up in person. I think if Democrats want to take seriously the project of actually winning a campaign during the pandemic, they’re going to have to find a way to safely act a little more like Republicans and find a way to go around in person. I think that starts now for this runoff in Georgia. There may be two runoffs in Georgia, I don’t know. By the time your listeners are hearing this, I just don’t know. There’s a strong possibility that in Georgia, Senate control could be at stake. If Democrats are serious about enacting any of their governing agenda, they really need to canvass, go door-to-door, and get Georgia voters to the polls in this Senate runoff or runoffs starting in mid-December. I’m not sure whether that’s really possible to do. I don’t blame Democrats for choosing to be safe and not campaign door-to-door during the pandemic. But I think they may now have seen what the result of that was, and it might change some minds.
Jeff Schechtman: Finally, do you see any legal issues coming out of what you’ve seen so far with respect to the vote counting that actually may gain traction and that we should be watching for?
Joseph Fishkin: Honestly, no. I mean, I think that there’s a possibility that you could have some successful lawsuits about either the late arriving absentee ballots or the signature match issues. But I just think all this stuff is very marginal compared to the tens of thousands of votes that you’re looking at so far as the margin in each state. It could be that by the time it gets to the very end it will come down to one state and that one state will be separated by just a few hundred votes. Then all bets are off. If it’s very, very close like that, then I think you’ll see a lot of legal theories that wouldn’t have seemed plausible before suddenly start to seem plausible, not only to campaigns, but even to sympathetic judges. It’s sad to say that that’s true, but I think it may be. However, if the votes are tens of thousands of votes and especially if it’s tens of thousand votes in more than one state, then there’s just not any room. It’s outside the margin of litigation. There’s not room for lawsuits to have that effect.
Joseph Fishkin: What that means is that there’s not really a need to do take long shot lawsuits especially seriously. I think that that’s key to understanding what’s happening here. We are dodging a bullet this week, not because we have a perfect, well-functioning, non-partisan system of adjudication that would never elevate some long shot claim by a candidate. We don’t have that, and we saw that in Bush v. Gore. We have a system in which the judges are, unfortunately, somewhat prone to sympathize with the co-partisans. But what we do have is a system in which judges are not going to throw out the rule book, they’re going to basically follow normal procedures. As long as it’s clear who the winner is, there’s not going to be any significant effect of any legal challenge, even though the Trump administration is throwing up a lot of them.
Joseph Fishkin: I think the thing to watch as we move forward over the next few days and weeks is about the rest of the Republican Party other than President Trump. Do they all continue… well, I won’t say continue. Do the rest of the Republicans other than President Trump amplify his false claims about biased voting counts and various forms of fraud that have no basis in evidence, or do they start to say, “I’m not going along with those claims. President Trump, I just think you need to stop making false claims. The election is over.” I think watching for that transition within the Republican Party, which I think is already underway. You already started to see some Republican elected officials break with the president on these baseless and false fraud claims. That’s the most important thing to watch as we wind down this long election.
Jeff Schechtman: Professor Joseph Fishkin, I thank you so much for spending time with us.
Joseph Fishkin: Thank you.
Jeff Schechtman: Thank you for listening and for joining us here on Radio WhoWhatWhy. I hope you join us next week for another Radio WhoWhatWhy Podcast, I’m Jeff Schechtman. If you liked this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate.

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