20:00

behind this was like, well, if you have

20:02

a state that experiences like a natural disaster,

20:05

then the state can say we had a failed election.

20:07

Sorry. But in 2020, Trump

20:09

and his allies tried to argue that a

20:11

state legislature, a Republican led one,

20:14

had the power just to say, well, we

20:16

also have a failed election because we don't

20:18

like the results because the law was

20:20

pretty vague about this and then just choose

20:23

Republican electors no matter how the voters

20:25

in that state voted. So

20:27

the new law gets rid of that

20:29

ambiguity. The new law says that the

20:31

only time a state can modify electoral

20:33

results is that if there

20:35

is something that the law calls force

20:37

majeure, force majeure is just a fancy

20:39

French word for saying it, re catastrophic

20:41

event. So what Congress really is

20:43

meaning is like something extraordinary, like a hurricane

20:46

that would wipe up all of the ballots

20:48

in the state or something like that. So

20:50

no longer can Trump rely on that. And

20:53

then Roman, do you remember the role that

20:55

Trump expected Mike Pence to play during the

20:57

certification of the results? Yeah, he was

20:59

sort of ordering him or I don't know, pleading with

21:01

him to not

21:04

certify the results and accept

21:07

new faithless electors, right? Yeah, these like

21:10

fake electors, right? Yeah, fake electors, yeah.

21:12

And this idea was like, sure, sure,

21:14

Vice President Pence, you can go ahead

21:16

and just intervene in the counting of

21:18

the votes. Well, the 2022

21:21

Act makes it clear that the Vice

21:23

President's role is only ministerial. In other

21:25

words, the President of the Senate, who

21:27

is the Vice President of the United

21:30

States, and of course, that's Harris this

21:32

time, only plays a ceremonial role. They

21:34

don't have any real power. It clarifies

21:37

here what everyone had already assumed, but

21:39

Trump tried to exploit because the law

21:41

seems somewhat vague. The

21:44

new law also raises the bar for members

21:46

of Congress to object to a slate of

21:48

electors coming from a state. Now, at the

21:50

time of the 2020 election, you could just

21:52

have one member of the House and Senate

21:54

raise an objection, but there's something wrong with

21:57

this state's results. Now it has to be

21:59

one fifth. of the members of both the

22:01

House and the Senate. So it makes it

22:03

much harder to make a bad faith argument

22:05

that there's something wrong with the results. So

22:07

Congress can't certify. Okay. Then,

22:10

you know, it turns out that you

22:12

remember from the Bush versus Gore issue,

22:14

there is a deadline problem sometimes

22:16

that comes up. And so the new

22:18

law sets a hard deadline by which

22:20

the states have to get their certified

22:23

Electoral College results in. The

22:25

previous law did have a deadline, but didn't require

22:27

the states to meet it. So

22:30

under the new law, the states must

22:32

certify their Electoral results by December 11,

22:34

2024. But

22:37

there's one wrinkle that Congress didn't address here.

22:39

Okay. The wrinkle is that

22:41

the act doesn't really tell us what

22:43

happens if the states miss the deadline.

22:45

Yeah. Which probably means there

22:47

will be lawsuits if any state

22:49

misses the deadline. Yeah. Because if

22:52

Congress meets on January 6, 2025 to

22:55

certify the Electoral College results, what

22:58

if there's a lingering question because a state missed

23:00

the deadline? Does anybody get

23:02

to object? Is that a reason to object?

23:04

It's not totally clear what happens then. I

23:07

mean, it seems to me that one

23:10

of the things that could happen if a state

23:12

doesn't certify by the deadline is the Supreme Court

23:14

could step in like they did in 2000. It's

23:17

how possible is that? Well,

23:19

it depends on what you mean by a

23:21

repeat, right? So in the

23:23

Bush versus Gore opinion, the Supreme Court actually

23:25

said, this is a one-time only ticket. Don't

23:27

rely on it. Oh, okay. And at the

23:29

time, it was hard to believe. And in

23:31

fact, it's not even really true. The case

23:34

has been cited many, many times, including by

23:36

the Supreme Court itself. But

23:38

I think the larger question is, could

23:41

this particular Supreme Court, the one that

23:43

exists now, decide to step into

23:45

the 2024 election? It

23:48

has a six justice conservative majority, the

23:50

same one that decided Dobbs and the

23:52

Trump immunity case, right? Yeah. So

23:54

it seems more likely that

23:56

the closer the margin between Harris and

23:59

Trump is, there's a chance

24:01

they might step in. Because if Harris

24:03

were to win, let's say, by a

24:05

large margin across several states, is

24:07

it likely that the Supreme Court would review

24:09

a whole slew of lawsuits all at the

24:12

same time with different legal claims and then

24:14

flip them all in Trump's favor? That seems

24:16

pretty unlikely. But if the race

24:18

is really close, that could be a different story,

24:21

right? Because in the 2000 election, the

24:23

presidency came down to just one state,

24:26

Florida. And the initial vote

24:28

certification showed that Bush had won the state

24:30

by 537 votes, right? So

24:34

if you have that kind of situation, single

24:36

state, close margin, if that plays out again

24:38

in 2024, it's certainly

24:40

gonna result in a lawsuit. And

24:43

a lawsuit that will raise legal

24:45

arguments that mirror what Trump has

24:47

been claiming all along falsely. Something's

24:49

wrong here, there's fraud, there are

24:51

ineligible voters voting. And

24:53

it's that sort of situation where there's

24:56

a potential Harris win, it might turn

24:58

on a very small number of votes

25:00

that the conservative majority might step in.

25:03

And there's a reason why we

25:05

should be worried because of

25:08

a case coming from Virginia. Okay,

25:10

tell me about that one. So

25:12

in August, just 90 days

25:14

before the election, the Republican

25:17

governor of Virginia signed an order

25:19

removing what the state said were

25:21

suspected non-citizens from the state's voter

25:24

rolls. So there's a lot of

25:26

problems with this order. It's clear,

25:28

of course, that non-citizens can't vote,

25:31

but the reality is that this problem,

25:33

non-citizen voting, it hardly ever happens. It's

25:35

not a real problem. The

25:38

other big issue is that voter purges

25:40

like this aren't actually allowed under federal

25:42

law. The National Voter Registration

25:44

Act of 1993 doesn't

25:47

allow states to purge their voter

25:49

rolls within 90 days of a

25:52

federal election. And you

25:54

can understand why, because purges like this can

25:56

remove people accidentally who are actually eligible to

25:58

vote. but maybe they don't have enough time

26:01

to get their mistake fixed. So

26:03

two nonprofit groups sued the state of

26:05

Virginia over this voter purge. And it

26:08

turns out that about 1600 people have

26:11

had their voter registrations canceled because of

26:13

the governor's order. Now,

26:15

Virginia relied on DMV

26:17

information to determine citizenship.

26:20

But here's the problem. Everybody knows that those

26:22

kinds of records can be wrong. Or

26:25

they can be out of date if you were

26:27

an immigrant, a recent immigrant, but then you became

26:29

a naturalized US citizen. And you just haven't had

26:31

time to update that information. So

26:33

both the federal trial court and the

26:35

federal appeals court in this case halted

26:38

Virginia's voter purge. Both courts

26:40

said it was likely that the

26:42

state violated federal law and, in

26:44

fact, that some of the purge

26:46

voters were actually eligible voters. So

26:49

Virginia appealed. And

26:51

on October 30th, that's

26:53

yesterday, less than a week

26:55

before election day, the United States Supreme Court,

26:58

over the objection of the three liberal justices,

27:00

issued an order allowing Virginia to

27:03

continue to purge its voter rolls.

27:06

So this is an order. It's not

27:08

an opinion. So we actually don't even

27:10

know why the court decided this. There's

27:13

no way of knowing why the court

27:15

thinks it's okay to allow a state

27:18

to remove registered voters, some

27:20

of whom are eligible voters just days

27:22

before election day. And when

27:24

Congress clearly said that states can't do

27:26

this, and so you

27:29

might say, well, it's only Virginia, right?

27:31

And Virginia has consistently voted Democratic in

27:33

the past few presidential elections. So

27:35

maybe this particular instance may not affect

27:37

the results of the election, but the

27:39

reason why this is so troubling is

27:42

because it shows us the Supreme Court's

27:44

attitude, right? The

27:46

court is willing to be pretty cavalier

27:48

about stepping into elections and allowing a voter

27:50

purge that doesn't seem to be allowed by

27:53

federal law at all. And that's

27:55

not exactly confidence inspiring for the days

27:57

and weeks ahead if we're not

27:59

sure. who is the winner in right

28:02

after election day. Yeah, yeah. Oh

28:04

my God. And we don't even know

28:06

why. We don't even know why. That's

28:08

what's so weird. We don't know why, that's right. That's crazy

28:10

to me. So we don't know

28:12

who's gonna win the election. We may know right

28:14

away or we may have to wait for a

28:16

while. But I think what is

28:19

absolutely certain is that if Harris has declared

28:21

the winner, Trump is going to

28:23

unleash a flood of lawsuits. And

28:25

I think the thing to remember is that

28:27

these kinds of lawsuits brought by Trump that

28:30

he brought in the last election, and then

28:32

you will certainly bring in this

28:34

election if it seems that he's a loser, they're

28:36

both kind of substance and signal, right? Because

28:39

they raise legal substantive arguments, most of

28:41

which are probably going to be losers,

28:44

right? They're not gonna be winning claims.

28:47

But the lawsuits themselves also serve as

28:49

a signal. They serve as a signal

28:51

to a very large portion of the

28:53

public who supports Trump. And they'll see

28:55

these lawsuits, their very

28:58

existence as a kind of proof that

29:00

something has gone wrong, that some fictional

29:02

fraud has taken place. And

29:04

remember, it's those kind of bogus

29:06

legal claims. That's part of the

29:09

reason that Trump supporters questioned Biden's victory in

29:11

2020. And

29:13

that also led to the violence on January 6th.

29:16

And I think that's the most ominous part

29:18

of the election lawsuits that are likely to

29:20

be coming. Yeah. Stop

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So, let's just hope

30:02

for a decisive victory. That's

30:05

right. So that it doesn't come

30:07

to that. But it'll still happen. Like, even

30:09

if it's, you know, quite decisive, it'll still

30:11

happen. But it's really something to think about.

30:13

I mean, also just like the attitude of

30:16

that Virginia case, the

30:18

idea that it's this sort of

30:20

made-up idea that there's rampant

30:23

fraud, that this had no

30:25

evidence for people searching like

30:27

crazy for very, very long,

30:30

is more potent and powerful of

30:32

an argument than the idea

30:34

of disenfranchising people, which seems so fundamental

30:36

to being an American citizen. That

30:38

just seems like that. That just, I can't,

30:41

that doesn't make sense to me, how anyone could

30:43

think that. Yeah. And so, you

30:45

know, the fact that the court decides that the best

30:47

way to do this is to just have an

30:49

order with no explanation. Yeah. It

30:51

sort of reminds you that, well, this is a

30:53

court that thinks it's the Supreme Court because it's

30:56

supreme. And that's why it's there. It

30:58

seems like they're not really all that concerned. Like, there

31:00

seemed to be this hand-wringing for a while, the legitimacy

31:03

of the court being an issue, like making

31:05

sure that that was presented to

31:07

the public in a good way, you

31:09

know, and so that they could retain that,

31:13

you know, that Marbury versus Madison, you know,

31:15

claim that, you know, they are the last

31:17

arbiter because they are the last arbiter and

31:19

that that power is given to them because

31:21

we just, you know, like have agreed

31:23

to it. They seem to be really

31:25

nervous about that for a while, but they don't

31:27

seem nervous about that anymore. You know, it just

31:29

doesn't seem like that's a huge concern. I

31:32

think that's right. I mean, you know, what

31:35

you see here is a court that is

31:37

just willing to do what it wants, when

31:39

it wants, without explanation, and really without any

31:41

sense that the legitimacy should be at the

31:44

forefront of how they make these decisions. I

31:46

mean, maybe it is, but no evidence has

31:48

been forthcoming. No, no, with overturning things and

31:50

the sort of abandonment of starting the sizes.

31:53

All this stuff is built upon those

31:56

principles over time, and now it's just sort of,

31:58

I mean, maybe they just, think

32:00

that they can just rest upon a kind

32:02

of historical interpretation of the

32:05

court and its power, that people

32:07

will never think that their

32:09

opinions are illegitimate because they've just been thought

32:11

of this way for so long. But

32:14

they used to have some kind of notion that

32:16

you can't be capricious about your decision making and

32:18

you have to give reasoned arguments and you have

32:21

to give an argument if you're going to do

32:23

something that is significant

32:25

and substantial. And

32:27

you just don't feel that anymore from

32:30

the Supreme Court decisions. Yeah, it makes

32:32

it especially hard to think about how

32:34

the court can say anything with finality

32:36

in an election if they decide to

32:38

step in right after in a way

32:40

that is decisive. Yeah. Right.

32:43

So Roman, you want to go back to NIST for a moment? Yeah, sure.

32:46

Let's go back to NIST. All right. So

32:48

in 1976, NIST sponsored a conference on

32:50

the future of voting technology. One

32:53

prediction presented at the conference imagined that

32:56

within 10 years, that would be 1986,

32:59

a new voter could register to vote

33:01

by calling a telephone number and reporting

33:03

a few vital statistics. When

33:05

the voter arrived to the polls, they would

33:07

be verified by voice print. A

33:10

computer would register the voters' choices

33:12

and that would ensure that invalid

33:14

votes would be impossible. The

33:17

results in each polling booth would

33:19

be transmitted instantly by laser beam

33:22

to a central headquarters where a running tally

33:24

would be made public after the polls had

33:26

closed. One skeptical voice

33:29

at the conference, Roy Saltman. He

33:32

told the attendees that we have

33:34

a serious problem of public confidence

33:36

in computers and a serious problem

33:38

of public confidence in public officials.

33:41

Around election time, they tend to coalesce.

33:44

Saltman, who would go on to warn against hanging

33:47

chads in 1988, liked to say, an election is

33:52

like the launch of a space rocket. It

33:54

must work the first time. print

34:00

thing and lasers, that would be nice. That would be

34:02

awesome. I

34:06

would love to know instantly. I think that's the thing that

34:08

just like count everything as much as

34:10

possible ahead of time so you can just like turn

34:12

on like these laws that in

34:15

the states that don't allow

34:17

you to open up the envelopes until the day of so

34:19

it makes everything so much slower. That's those drive me crazy.

34:23

I just wish they could just happen so

34:25

quickly as well. I

34:27

wish us all a happy

34:29

and definitive election and

34:33

yeah, then we'll find out what's the

34:35

future tenor of this show after,

34:38

you know, if not in

34:40

November, maybe in December and then

34:42

if not that then maybe in January. Definitely

34:45

by January. Thanks Roman. Thank you.

34:48

See you after the election. This

34:52

show is produced by Elizabeth Jo, Isabelle Angel

34:54

and me, Roman Mars. It's mixed by his

34:56

ik bin Ahmad for read. Our executive producer

34:58

is Kathy to you can find us online

35:01

at learn con law.com. All the music and

35:03

what Roman Mars can learn about con laws

35:05

provided by Doomtree Records, the Midwest hip hop

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