Another Way To Elect The President: What Happens If It's Close In A State? (Part 3)

This podcast is part of the Democracy Group.

This is Larry Lessig. In the first episode of this miniseries of the podcast, Another Way we talked about the dynamic on election night that might create extraordinary pressure as people fear, or are told to fear, that the election results are not what's being reported. In the second episode, we're going to look back in history to three elections where the results in particular states were extraordinarily close, and consider the process that happened in each to resolve the the disputes in time to cast electoral votes or have votes counted to determine who the president would be. The three elections are 1796, which was the first contested presidential election in our history, 1960, which we forget, perhaps was an extraordinarily competitive election, very, very close. And Hawaii actually sent two slates of electors to Washington to be considered as legitimate slates to be counted. And the 2000 election in Florida, which of course is familiar to many people listening to this podcast, but in some sense has created the expectation of what we might see happen. Again, as you'll see in this conversation, in fact, we should be looking not to 2000, but to Hawaii in 1960, because our objective should be to find the precedent that allows an orderly process to count the votes in the states as completely and fairly and accurately as possible, and given that process, however long it takes, then allow those results to be recorded in a slate of electors who eventually get counted in the electoral count. Hawaii gave us a way to think about doing that. And in these three stories, I think you'll see the advantage that Hawaii offers.

Okay, so I get to drive on this episode of the Another Way to Elect a President miniseries. I'm joined by Larry Lessig, the host. Hey, Larry.

Hey, Jason. Glad to have you in the driver's seat.

It's good to be here. Mike Rosin, who's appeared on this show before and who's appeared with us talking about history for many years. He's an independent historian in New Jersey. Hey, Mike.

Good afternoon.

And Matt Seligman, who also has appeared on this series before, he's a jack of all trades. I won't go through the whole intro, but he's a lawyer, an election lawyer, a lawyer for the public interest. Former professor. Hey, Matt, how are you?

Good to be here.

Yeah. So we've been thinking about all of the stages of a presidential election, and we should set up and remind listeners that presidential elections are not direct elections for president. Now, we've talked about what that means in so many aspects. One thing that that means is that when voters go to the polls in a particular state, they do not vote directly for president. They vote for a slate of presidential electors. And it is the state working through counties and precincts that has to count those votes and determine which slate of presidential electors have been appointed using the terms that the Constitution and Congress uses. They do that according to a timetable that was set out by Congress. Mike, you can jump in here if I'm getting anything wrong. But set up by Congress Most recently in 1934, which starts to backtrack from Inauguration Day, which is January 20th, Congress counts electoral votes on January 6th. And then this year, because of the way days of the week work, that means the electoral votes will be cast on December 14th. And there's the safe harbor that we've talked about in other episodes. That comes six, six days before that. That will be December 8th this year. So that's about 30 some days after voters go to the polls on November 3rd. So that means that states themselves before Congress gets involved, states themselves have 35 days to count the votes and certify them before this looming safe harbor deadline. But what we want to talk about today is what happens if there's a recount and it starts to creep up on that 35 day limit. We've identified three times when this has happened in history. 1796, our very first contested election. 1960, a super close election in the new state of Hawaii in the Kennedy Nixon election. And then famously in 2000, where a recount was halted on that safe harbor day with George W. Bush winning the state by a margin of 537 votes. So, Mike, before we get into the modern stuff and we talk about how this might impact a close election in 2020, let's go back to what you think is rightly called from the name of a book about this election, the very first presidential contest. What happened in 1796. Why was it the first contest? The Constitution was written a decade before that. And why was there only a partial return even weeks to after voters went to the poll?

Well, I'm convinced that even if the convention had chosen to have the president chosen by picking names out of the hat, then George Washington would have been picked out of have his name picked out of the hat for however long he wanted to be president. He announced his retirement in September of 1796, jockeying for succession already begun between Thomas Jefferson and John Adams. And by the law that was passed by Congress In March of 1792, the electors would give their votes on the first Wednesday in December, which was December 7th that year. And the states could appoint the electors at any day, at any time in the 34 day interval leading up to it. Pennsylvania sent its voters to the polls on Friday, November 4, which was 33 days before the electors would give their votes. So this was just about the maximum length of time a state could have to have the votes cast and counted and importantly returned to the state capitol, which was then still in Philadelphia on The Delaware River, 300 miles away from counties in western Pennsylvania.

Interesting. So Pennsylvania has sort of set up things, right? It sounds like, Mike, they've got a lot of time, which is good. They are one of a few states we should note that actually is holding a popular election. So if they want to do that, it seems like a good idea to do it early. But it turns out returns don't come very quickly, do they, Mike? So, no, pick up the story here where the governor, Governor Mifflin sort of is receiving partial returns and figuring out what to do at that point.

Well, by statute, the returns were supposed to be received in Philadelphia, the Capitol, two weeks after the election on November 18th, and four days after that, on November 22nd, it appeared as though the entire slate of Adams electors at each gathered more votes than the entire slate of Jefferson electors. The margin wasn't that big. It was about 8 or 900 out of 22, 23,000, but that's still over 3%. So initially, it appeared as though the entire Adams slate of 15 electors had been elected. And if that had been the case, Adams would have more or less breezed to victory in the electoral college nationwide.

But, and we should add that the reason you're talking about slates of Adams Electors vs. Slates of Jefferson electors is voters were voting individually for electors they knew would support Adams or Jefferson. So remember, this is an election over 200 years ago, and the ballots were different and the system was somewhat different. Indeed, political parties are really preformed. They're sort of nationed. So we've got these partial returns. It's past the statutory deadline. It looks like Adams is gonna be elected. But m. As your research shows, there were three outstanding counties. And those three counties had a particular political tilt. And so what's a governor to do in that circumstance?

Well, the three counties were Westmoreland, Fayette and Greene counties in southwestern Pennsylvania. They were all expected to be heavily pro Jefferson. And in fact, the returns from Westmoreland and Fayette came in before the end of the month. And when Governor Mifflin got the returns, he recalled his appointment letters to the 13 of the 15 Adams electors who were now no longer in the top 15. With the revised returns from Westmoreland and Fayette, 13 of the top 15 slots were taken by Jefferson electors. Adams electors were, I think, in 13th and 14th place. So they were still, they were still appeared to be appointed. And two Jefferson electors were in, I think it was 17th and 18th places.

So basically at this time, this is revision one for the governor. It's now 13 to two in the electoral College. Jefferson has taken the lead. You said there's one outstanding county. Jefferson by all accounts is probably going to vault completely into the lead. Fifteen Jefferson electors. But technically those returns are still outstanding. When they come in, Mike, the governor sees them. It's just before the vote of the electors. Right. And this is sort of the equivalent of a recount. Right. We've got late breaking returns. And so what's the, the governor's ultimate decision? And then I want to set up what happens in the electoral college and talk about some of our favorite electors. And Larry, get your opinion on that. But before we do that. So Mike, what's the Governor Mifflin's ultimate decision here?

Well, he thinks about recalling the appointment letters to the two Adams electors, but ultimately decides not to, even after he gets the returns from Greene County. And so ultimately, Robert Coleman and Samuel Miles, who were federalist electors pledged to Adams and finished just 17 and 20 votes out of 24,000 ahead of a Jefferson elector. Ultimately, they are appointed and they appear when the Pennsylvania college of Electors meets to cast their electoral votes.

Right. But famously, Samuel Miles chooses not to vote for the person that he is expected to vote. He's one of these Adams electors that wouldn't have been appointed if the governor had certified the complete result. And so he switches and he votes for Jefferson instead of Adams and becomes what some people think is the first faithless elector. Now, Larry, you and I spent a lot of time thinking about electors and and so I want to set this up as sort of option one for solving the problem of late arriving returns. Option one is appoint whatever electors you have to at a given time, but rely on electors good judgment to change their mind and deviate from their pledge if it turns out that the popular vote goes a different way. So I want your opinion. Like one, is that a decent solution given this mess of a system we have for electing the president? And two, is that viable here in 2020?

Well, I think that if the Samuel Miles story had been understood for 200 years as an example of an elector acting to affirm the popular vote, that could have been a Very interesting safety valve for the Electoral College. The basic idea would be, like, where we see that for some reason the Electoral College is misfiring and not producing the popular result. The electors would at least have a moral freedom to step forward and to vote in a way that tried to assure the popular result. And that could have had a significant effect in 2000. People will talk a little bit about 2000, obviously, but people forget that there were Republicans in the lead up into 2000 who thought that George Bush would win the popular vote but lose in the Electoral College. And. And they were talking about making sure people in the Electoral College felt free to vote, to affirm the popular vote. They could have been following the example of Sam Miles, but of course, that's not how. I mean, the story was forgotten. I mean, it's not familiar today. I don't know how quickly it was forgotten, but it's not how the story was understood. So I don't think that we conceive of or would have conceived of this moral obligation on electors to try to conform to the popular result. And I think that's what makes people anxious about the discretion that electors might ultimately possess.

Yeah. And of course, the Supreme Court ruled that in states which are now the majority of states that do have laws binding electors, this option, the Samuel Miles option, is really sort of off the table. Matt, before we go to 1960, I want your opinion. You, at least an organization with which you were affiliated, campaign Legal center, looked at the cases about presidential electors and said, wait a minute, electors are really not the answer. They really should be bound because we need to put the votes of the people in the poll position here. We need to respect that. So I'm curious if you think like Samuel Miles, though, is someone who sort of uses electoral discretion to do just that. But at the same time, whether you agree with Larry's view that that just didn't carry the day historically. So we have to find another way.

I think that Larry's right that it didn't carry the day. And I think the fundamental challenge with relying on electors good judgment and discretion to conform their vote to what they perceive to be the ultimate popular will is that they may not use their judgment to that end. And, you know, if they have judgment, it seems to be unconstrained, so they can decide to allocate their elector's vote on whatever basis they want. You know, potentially constrained, as we talked about last time, by prohibitions on bribery and things like that. But it doesn't seem to me that there's an Easy way to limit their discretion just to effectuating the popular will. And then something that's a particular problem in 2020 is that we are, as a political society losing our grip on a shared set of facts. So now an elector who felt the moral freedom, as Larry put it, to give their vote to what they think is an expression of the popular will could say, well, the President tweeted that there were 3 million fake votes in Florida, and therefore I'm going to use my moral freedom to allocate my elector to President Trump rather than what the Board of Elections says. So, you know, in principle, the relying on the good judgment of people who are in a position of power, of legal power, can solve a lot of problems, but only if they do so in good faith. And that's the thing that I think we can't rely on to the extent that we would hope we could.

Yeah, I think it's a good point. And I think I'll summarize that. Option one for resolving a close election, which is rely on these people that are still in the Constitution calls presidential electors. I think the consensus is that could have been a viable option. It seems no longer, given history, given the Shofalo decision, which was decided by the Supreme Court, that really put a thumb on the scale of states controlling electors and having them be just party people and not really thinking about country over party, as we said, was possible for electors. Okay. But that's an interesting historical example. It takes us 150 years forward to Hawaii. In 1960, the Electoral College is cemented. We now know these are just party people. They're not going to exercise discretion. They're not going to save us. The Electoral Count act is in place, which we've talked a lot about on this show. So there's this series of rigid deadlines and not ones that are more up to the states. As we talked about in 1796. Hawaii has just recently been admitted to the union. Mike, it's 1960. They're promoting Waikiki Beach. They're entering this contested election between Kennedy and Nixon, which is the closest of the 20th century before the Bush Gore 2000 election. And it comes down to a few hundred votes in Hawaii. Richard Nixon appears to be ahead. And even though Kennedy doesn't need the electoral votes, Hawaii only had three at the time. It has four today. Had three at the time. Nonetheless, it's so close, it's within a few hundred votes that Kennedy wants a recount. He wants to challenge this. So bring us to 1960 in November. And this Election. Mike, what happens as the Kennedy people start saying, I want to recount, and Nixon seems to have a really slim margin of victory?

Well, part of the story is that the day after the election, the New York Times ran a front page table showing Kennedy with 258 electors secured, Nixon with 172, and eight states with 93 electors still too close to call. Most of the attention then and since then has been on Illinois with its 27 electors, and it ultimately was called for Kennedy by 2. 10 of 1%. But even closer was Hawaii, which originally appeared to give Nixon its three electors by a margin of 141 votes out of 185,000. As November wears on, the importance of Hawaii as a countermeasure for the Democrats greatly diminishes. But I think it's more the local Democrats are pressing the issue to get a full and final recount. There is some concern about some contaminated ballots. So I think they're pursuing this in the Hawaiian courts. And it's not until December 14, which is safe harbor day, that the recount even begins. And why don't you explain what safe harbor day is?

Yeah. So. Well, but let's back up a couple of weeks. So what that means is they're agitating for a recount. It hasn't really begun in earnest. And so the governor of Hawaii, who's then an acting governor, the governor was out of state, but an acting Republican governor does his job as he sees it and certifies the slate of Nixon electors in late November. But the Kennedy folks are still pushing for recount. The electors have not yet voted. And ultimately they do get a recount on this day, which, as we've mentioned, this safe harbor day, and I won't get into all the details because we've talked about it on other episodes, but this is the day that Congress has said if an election contest happens and it's final by that day, then Congress should presumptively kill, recount those votes. But there's nothing stopping a recount from going beyond that. And indeed, the recount starts then. So six days after Safe harbor Day, we're now at elector voting day. Mike, we have a recount going on. The recount's going really well for Kennedy. Kennedy has actually taken the lead by less than 100 votes. But the presidential electors are supposed to vote, and the governor has said Nixon are the electors from this state, from these who Hawaiians in their very first election. So what is supposed to happen at the Capitol in Honolulu on elector voting day in 1960 with Kennedy up in a recount. But the Nixon electors certified.

That's the time and place that the electors are to meet and cast their votes. And as I'm reading through the documentation, the Congressional Record and ultimately seeing the electoral votes for Kennedy, I'm wondering, how did they give their votes? And it turns out that both slates met at the Capitol on election Day and cast their ballots. The Republican slate cast its votes for Nixon. The Democratic slate cast its votes for Kennedy. Acting Governor Kay Aloha sends in the Republican slave initially with the votes for Nixon. And then it's what is it, December 28, that the recount is final and it shows a Kennedy margin of 115, I think. Two days later, on December 30, the Hawaii State judge enters an order and a judgment certifying that Kennedy has the Kennedy slate has in fact won the election in Hawaii. This is one week before Congress is to count the votes. On January 6th, Governor Burns comes back to Hawaii from wherever he was, and I'm assuming it's the morning of January 4th, which was a Wednesday, he certifies the Kennedy slate as having won the contest and provides the revised certificate of ascertainment to attach to the Democratic electors tally of their votes. And they get rushed to Washington and they show up in Washington on the morning of Friday, December 6th, just in time for Congress to count the votes, starting at 1 in the afternoon.

Yeah. So just to summarize where we are and before we decide to sort of reveal what Congress does, Larry, I want your opinion as a constitutional law professor on the remarkable series of events. But just to summarize, on this day, we have, for the first time since 1876 and the contested election, but the first time under this modern regime called the Electoral Count act, we. We have two slates of presidential electors meeting in the state capitol, one supposedly authorized with an official certificate from the governor because they won the initial count and one voting basically under their own pretenses, hoping that the courts ultimately say they are the winners because they are now ahead in a recount. The governor then sends to Congress a few weeks later and says, hey, both of these folks voted just in case. And it turned out the recount. Change the result. Congress, you. I want to let you know that the official winner in Hawaii was John F. Kennedy. That's it. You're a constitutional law professor. There is this prospect of a bunch of electors calling themselves electors meeting in a hotel room in Honolulu on elector day without authority from their governor, saying, we are the Kennedy electors. Count our votes, what we can talk about what should happen. But, but are, tell me, like, are you okay with that? Is there any analog to that? How is this possibly legal and potentially even a good solution to this problem?

Well, of course, what they were trying to do was to preserve the potential of their vote in the circumstance that it was determined that they, in fact, had won. So, I mean, it seems to me that's actually a pretty sensible procedure in the context of an ongoing contest about what the ultimate results are. The harder case, of course, is if there's no contest about the results, and we'll talk about this in later episodes in our podcast. But there's no contest about the results. But, you know, one side thinks that the whole election was fraudulent, and they decide to appoint a slate of electors or name a slate of electors, and they meet in a Ramada next to the Capitol and they cast their vote, and then they send it into Congress, whether the governor has signed it or not. That. That. That's the more troubling one, especially if you recognize, as we'll talk about, and let's not get too deep into it now, obviously, but as we'll talk about, you recognize that there's this extraordinary power that attaches to the slate of electors that happens to be certified by the governor, assuming there's no effort by the courts to question or force the governor to do something different. So that's a more troubling one than. Than Hawaii. Hawaii seems to be the sort of thing you might expect should happen in a contest where there's a genuine contest about what the results are.

Yeah. And, Matt, you wanted to add something.

Yeah. So something else that, to me that's fascinating about the history of the 1960 presidential election and the Hawaii electors is that candidate Nixon was also Vice President Nixon, and he was in that capacity serving as president of the Senate. Now, we've talked about this a little before and we'll talk about it much more, but the President of the Senate plays a role in the counting of the electoral votes. And so we saw this in 1960. We'll see it again in 2000, which we'll talk about in a few minutes. But Richard Nixon, who is perhaps the most vilified American politician of the 20th century, did not do everything that he might have done in order to change the electoral votes. Now, you know, Mike, maybe you think that's just because it wasn't. It wouldn't have made a difference in the outcome of the election. But it is still a remarkable fact that. That Nixon behaved the way he did. So can you fill in that history a little bit?

Well, first thing to bear in mind is that Hawaii, actually, they did it in alphabetical order, so it didn't come last. The congressional records starts with Alabama. Let's just skip everything else till we get to Hawaii. I forget if it made the cut, but in my initial write up, I described it as perhaps the most gracious act of Richard Nixon's long public career in office. And it was an incredibly gracious act, just as Al Gore's was in 2001 when he could not sustain and recognize an objection to the Florida electoral votes. Because, as I recall, there was no objection from the Senate. And these are public officials with a commitment to the process, however painful the outcome may be to them personally. And it's a Great Nixon in 61 and Gore in 2001 is a great lesson for all of us.

So, I mean, I think that's the way certainly it appears, although I just want to note, I don't know whether I haven't done the work to evince this, but there's a pretty strong counter narrative about Nixon, which is that while on the front, he was behaving like this. He was working tirelessly to get the votes drawn into doubt in enough states to make it so that it would flip the results. So it's not that he had given up, it's just that at that stage, there was no reason to fight anymore.

Yeah. And now that said, and Mike, I know you called it incredibly gracious. We should add as a footnote that in terms of the value of that as precedent. Right. Counting the votes that the governor says were won legitimately after a full and complete recount, which were Kennedy in that year, Nixon especially expressly says we shouldn't count this as a precedent. We're not going to debate this. And I want to just sort of accept this and move on. In a way, Grace is the right answer. Right. Because rigor is perhaps missing. There are, of course, maybe that was for the better. Mike, you've noted there is a famous incident of electoral votes that wouldn't have mattered from Wisconsin cast a day after they were supposed to be cast because of a blizzard. Congress debated the issue for two days. The result didn't matter, and we came to an inconclusive response. So maybe Nixon's just passing over and saying, let's not talk about this, let's make sure. But this doesn't set a precedent. Maybe that is the best way to deal with it and certainly the best way to take you know, not waste senators and representative time for something that won't matter. But it, I think, does give us a little bit of a question of whether this unusual procedure is the best way forward. We'll discuss, we'll return to it again. I think that it will see it is the best way forward because it's the best way to both count all the votes, all the popular votes, but also comply with the timetable that Congress has set. But that's not what happened in 2000. Right. And so this is the last option we want to present, and the last, of course, really, really closely contested statewide presidential election was the famous election in Florida in 2000. And just to set up the facts briefly so that we can put the legal issues on the table during the first official count, George W. Bush is declared the winner by a few thousand votes. There is a pretty accelerated state election contest provision in Florida. They do a recount and then a very partial additional manual recount, which results in Al Gore still losing by 537 votes. The the governor of Florida, who is at that time George W. Bush's brother Jeb in late November certifies the George W. Bush slate as having won the election. But the litigation continues. Al Gore is asking for recounts in certain counties. He's asking for specific sets of ballots to be counted, including most famously 9,000 ballots in Miami Dade county that were so called undervotes. They didn't have a vote for president. He wanted them examined by hand to see if there was an indication of voter intent. The Florida Supreme Court says yes, but the US Supreme Court famously says no, that would violate the equal protection clause because votes are not being counted equally. And we could dispute that legal principle all day. But actually we're going to take up the very last part of the Supreme Court's opinion where it says, and as a remedy, you know, it'd be great if we could have a really uniform system for counting votes. But the court says there's no time for that. Florida has indicated they want to take advantage of the safe harbor provision. That day is today, December 12, 2000. And because there's no time for any further recount, we're just going to halt things where they are and we're going to say Florida wanted to take advantage of the safe harbor. That's the deadline the Bush electors stand. No need for anybody else to convene an alternate slate of electors or for the recount to continue. I should say there was no argument to the Supreme Court as far as I found that this Hawaii procedure of dual Slates and. And continuing a recount was in the air to the court. It was in the air to the public. A Hawaii congresswoman sent a dear colleague letter proposing this as a solution, and it was not the one that the Supreme Court hit on. So let's sort of compare what happened in 1960 to what happened in 2000. I mean, Larry, that. That aspect of Florida, just. Just halting a recount and saying there's no time. Do you buy that? Is the safe harbor really a deadline or was there time to do what happened in 1960?

Well, I think there are two problems with what happened in Bush v. Gore. The one is that the interpretation that Florida law intended to take advantage of the safe harbor over anything else was an interpretation of the law. It's not in the law. There's no words that say that in the law. And yet the Supreme Court, or at least the three most conservative justices in their joint opinion, said the only thing that we can read from Florida law is what's actually in the law, because that's what the Constitution says has the power in counting or selecting electors. The word of the legislature, and the legislature here is sacrosanct. Well, if the legislature is sacrosanct, then you can't apply an interpretation of its intent to stop at the counting of the votes. And if the legislature is not sacrosanct, then why would you stop the votes? Because you think that's what they might intend? So that's the first point. But the second point is, yeah, I don't think they really understood how the Electoral Count act worked. I don't think they understood the significance or the importance of the. Or the mechanism that the safe harbor was to provide. And it's kind of astonishing, but not really, because the striking thing about that decision is just how accelerated it was, how quick it's all happening. And the exhaustion, the physical exhaustion of everybody in that institution as they're over this very quick period of time, needing to process, you know, thousands of pages of argument and documents and being directed on what to look at from lawyers who themselves aren't really the experts here. You know, the lawyers are doing as well as they can, but the range of arguments you would have thought would have put Hawaii right front and center, like that would have been. That should have been the only argument. Look, we have a way to deal with this. And then the second argument was, if you can't deal with it, then we have a backup process, which is what Congress can do. And Congress can decide to count these votes. It's the only slate from Florida that comes in, then they're free to count that. And so I just feel like the problem with Bush v. Gore is both internal and procedural. It's internal in the logic of the opinion, but it's also expecting the court in such a short amount of time to be able to understand this problem, which kind of falls on top of them without any anticipation, is maybe too much.

Matt, I want to bring you in to respond to that and especially to consider sort of the contrary. Right. Because to just present the other side, I think that you could say Hawaii in 1960, when it doesn't really matter, is one thing. And it's this weird quirk of history to have one slate be the Ramada slate and one slate be the official slate at the time and then to reverse it. But if the nation's eyes are on it, if it's dispositive, you could make an argument that Congress didn't want, that Congress wanted the states to resolve it as cleanly as possible. And the specter in even the media environment of 2000, which was different than today, but still polarized, of having a recount going on while the Gore folks meet at the Tallahassee Ramada. And footnote, I don't know if it was actually a Ramada, but we do know from history that the Gore campaign did purchase rooms at a hotel in Tallahassee to go for this alternate slate mechanism. So, but just the idea, I mean, can you imagine the cameras? Can you imagine the commentary as the recount continues and then the drama and the political brawl that might have to happen if Congress has to sort it out, which the argument is Congress didn't want that to happen. And so, Matt, with that in the background, I want you to respond to that. But also, the Supreme Court sort of addressed it, right? This famous final thought of the court in Bush v. Gore saying, when contending parties invoke the process of the courts, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront. So it was sort of forced to put a stop to this and stop that circus. What do you think of that line of argument?

Well, over the subsequent two decades, people have been skeptical about whether that was really a genuine expression of not wanting to step in, and because the alternative path the court could have taken is to let the recount continue and then to let Congress sort it out, which is something that is in both the Constitution and in the Electoral Count Act. So it's, you know, it's not clear that the court really did need to step in in that particular situation, you know, but there are other institutional actors that didn't step up. So one thing that is in law, but not in the Constitution is the date on which the electors will meet to cast their votes. And so this gets to one of the fundamental questions about close elections and recounts, which is when does the recount have to be done by. And Bush v. Gore said that at least In Florida in 2000, it had to be done by the safe harbor deadline. Another view is that it has to be done by the time that the electors actually cast their vote, which this year will be December 14th. Now the procedure that we saw in Hawaii was a way of trying to get around that by having multiple slates of electors meet and then figuring out which of those slates votes are ultimately going to be counted, counted later. But there's another option that just requires Congress to act, which is there's nothing in the Constitution that prevents the meeting of electors to take place on January 5th. Now, 200 years ago, when there was, when the nation was big enough and travel was slow enough, that would have been implausible. But these days, transmitting the slate of electors and their votes in just a few days to Washington is no problem. So what that would do theoretically is to say, okay, instead of having an early December deadline to finish a recount, we could have a late December deadline for finishing a recount. And that would just give more time. So Congress could have stepped in and changed that deadline. But it didn't. And I think it's curious to think about why Congress didn't relieve pressure on both the courts and on the political system by giving Florida more time to count its votes.

Yeah, that's been a question this cycle as well. You know, Marco Rubio proposed moving the date of the voting by the electoral college up or back, I guess, and it seemed to me that was a no brainer. I have no understanding why the Democrats didn't pick him up on that. But obviously we're stuck with this short fuse time still.

Yeah. So. So to wrap up a couple of historical points and then, and then give the Lesson for, for 2020, Mike, you have looked at this question. You've, you've got a spreadsheet of every time Congress has moved these dates. Somehow this first Tuesday after the first Monday in November as a time to vote has been stuck. Right. I mean, because another option, Matt, right to your solution is just let people vote a couple of weeks early. If you don't want to move the vote, let People vote a little earlier and hey, maybe we'll even have a little better weather in some parts of the country. Has that been considered? Why is it just people forget about presidential elections when they take office January 3rd? What's the problem here?

The higher level problem is deciding what is the most important thing to optimize little history. The Electoral vote Act of 1845 set a constant 29 day interval between election Day and Elector day. One of the lesser known features of the 1887 Electoral Count act is it expanded that by a little more than a factor of two to be somewhere between nine and 10 weeks as opposed to four weeks. And I think that was done in recognition of two things. You might need more time to resolve a dispute within a state. And transportation even from California was so much better in 1887 than it was from say Louisiana in 1845. So you didn't need as much time to get the physical evidence of the vote to Washington. And then there's great concern about. It's more actually about the lame duck session of Congress than it is about all the time it took for FDR to be inaugurated. That generates the motivation for the 20th amendment. That moves up the start of the presidential term from March 4th to January 20th and the start of the new Congress to January 3rd. And I just looked yesterday at the 1934 Act. It just goes through the timetable and makes erasures and fills in the dates and moved up the day the electors give their votes from early January to what we know as the Wednesday following the second Monday in December. And when that bill gets reported to the floor of the House, the chairman of the House Judiciary Committee says maybe we haven't left enough time for state to resolve a dispute. And then they immediately passed the bill without a recorded vote. So at least Hatton Summers recognized the issue. And until 1960. And then critically in 2000 it was an academic issue. In 2000 it may have decided the presidential election.

Yeah, well, we recognize the issue now. So it seems to me like we're in agreement that the long term solution, and maybe this is part of any HR One, if the Democrats win. Right. That couldn't be more nuts and boltsy, but just push things back for a couple weeks. But what about, I mean, I'm curious this last historical question and then we'll wrap things up. What about moving Election day? Right. The bizarre thing about Election day is it seems to have this constitutional status. It's only a statute.

No, that's correct. I mean, in fact, in say, I think it was the 1830s, there was a proposal that Election Day be in the third year of the presidential term. One of the things we need to keep a lookout for in case Donald Trump should be trounced on November 3, is how much are we wishing that the interval between Election Day and Inauguration Day is even shorter than it is.

But, you know, there's an interesting counterpoint that comes up with what you're saying, though, is imagine if Election Day had been in the third year of President Trump's presidency, then people would have cast their votes without knowing anything about the pandemic. So, and that I think points to a fundamental trade off that you talked about before, about what do we want to optimize? So one of the things that we want to optimize is holding the election as late as we can to provide so people know as much as possible in making their decision of how to cast their ballot. But then if we have Election Day too late, then we can compress the period of time within which disputes need to be resolved. And the chaos that we see in the year 2000 could be just a beginning. So trying to figure out where on the curve. So what day in 2020 do we think was the perfect day to have Election Day? And it's not clear.

Yeah, there's no perfect solution. But I do think that moving it back, if we look at other close elections, it seems like the six to eight week timeline is a good amount of time for resolving most recounts. So that's based on recent recounts and for the Washington governor's race in 2004, the Al Franken very, very close election in 2008, a statewide recount can take about six to eight weeks. So if we keep the current election day and take up Marco Rubio on his offer. So I think this podcast, our consensus is we are pro Marco Rubio, at least on this issue, that's probably at least a more optimal solution. Just a couple of concluding thoughts, though. I mean, what can I just interject one thing?

I think going into this election, we, the body politic, have lots of experience with counting the votes and recounting the votes in elections where most of them are given at the polls. And what we're going to learn this time is how much time do you need to count all the mail in ballots? And that's going to be just an additional factor to factor in.

Yeah, and we've talked about that in this series, too. So folks looking for more info on that should check out the episode about the potential blue shift, or it may be another shift, but we talked a lot about how states count. So, concluding thoughts, Larry and then Matt, the concluding thought is, we think, going through these historical examples, that Hawaii provides a nice model. Let the recount continue if it's still going during the day that electors are supposed to vote. Let two slates vote, and let the executive officials of the state tell Congress who really won the recount in the end. But that's a little weird. And again, I go back to the concern that was raised in 2000 about the specter of a rogue slate of electors in a hotel. If we are really in for a recount, could we survive that and persuade people that this is orderly and this is okay and this is not some sort of stolen election, we need to let the process play out. Or do you think that the courts will be persuaded to once again step in and say, no, we can't have that?

Well, I think that this is a great opportunity for public education. I think we should be spreading the story of Hawaii much more systematically, because this is a context where we need lots of time for recount for exactly the reason Mike just said. We've never had election where so many ballots are going to be opened on election Day because they've been mail in ballots or absentee ballots. And so that's just going to take longer. It's going to, you know, Pennsylvania is going to have hundreds of thousands of these ballots that they cannot touch until election Day. And the process for counting them is going to be extremely slow. And so the question is, how do we accommodate that reality in the context of the constitutional scheme we have? And if we were just very open about the fact that these are not rogue electors, these are just the alternative slate of electors. So to comply with the technicalities of the Constitution and federal law, they're going to have to meet on December 14th and cast ballots. And then, as the story in Hawaii shows, whether Nixon called it a precedent or not, we can then decide which slate of electors should be counted based on the ultimate result. And I think that especially if we had leaders, maybe from both parties, but at least from the Democratic Party, who said that when this is counted anyway, there's going to be a chance for unitary control of Congress if the Senate goes Democratic, then we could establish this as a precedent of a way to deal with this problem in a context where we know that recounts can go on for too long.

Matt, I'll let you get the last word. Does that make sense to you, too? And are you optimistic that people can be educated? Hey, don't worry. This is Unusual, but we can resolve this according to law rather than brute political force.

Well, I think one of the most important aspects of this project of public education is to help the electorate understand that these sorts of issues have come up before and they've been anticipated. So we have the Electoral Count act, which is designed to deal with the possibility of there being competing electoral slates. And this is not something that's unprecedented, and this is something that our country has successfully weathered before. And so instead of seeing, you know, the possibility of two slates of electors meeting as something that's extraordinary and possibly fraudulent, if we can contextualize it as rather something that is keeping with the historical practice and why, and then plays directly into the established legal structure in the Electoral Count act, then we can see that this is just the process unfolding in the way that it was designed to unfold. And so it's just an ordinary processing of a very close election that requires us to rely on Congress in a way that we very infrequently have. But nonetheless, it's not something that's operating outside the bounds of the way elections are supposed to. Supposed to be handled.

I do want to. Can I just add one more point, which is just to telegraph a bit what, what we are talking about in the episode about three USC two or the ability to declare an election failed. One weird thing about the North Carolina statute that implements 3 USC 2 is that that statute acts as if everything has to be resolved prior to the date that the electors vote. And so if it's not resolved by the day the electors are to vote, there are two separate mechanisms for selecting a slate of electors by the governor or by the legislature if called into an extraordinary session. And the particularly weird thing about that statute, as we'll discuss, is that it says that the electors are supposed to vote as they believe accords with the will of the people in North Dakota, Carolina. And nobody's allowed to second guess their judgment. There's no judicial review about whether in fact, they're right. So it seems North Carolina was trying to take advantage of 3 USC 2, but I think that the particular way they did creates all sorts of opportunities for bad behavior, because all you need to do is just slow down the process of resolving the count in North Carolina in order to create this extraordinary opportunity by the governor or the legislature. And that's not the kind of incentive we should create. Hawaii is the better incentive. Take all the time you need until the day that Congress is going to count. And that day, even that day, we could wonder what that day should be. But the point is we can wait and you can work it out and then we will count the right slate of electors based on who actually won.

Yeah, and of course that's the way that really complies with the way most people think of a presidential election, which is as an election for president where the state should just tell Congress, here's who won instead, as we know, Larry, we have this two step election. We have this day when electors are supposed to meet and they're supposed to be real people and they're supposed to have certificates. This is of course a long term project of just making it a one step process. But for now, here's the laws we've got. I think we've navigated the best way forward. We'll see if we can educate people about that and have an orderly process if it does come down to a recount in 2020. Mike, Matt, Larry, this has been great. Thank you all.

Thank you. That's the end of episode two. Stay tuned for the third episode which will address perhaps the most anxious statute in the middle of this whole electoral count process. A statute that purports to give legislatures the power to appoint slates of electors when their election, if they've allowed the people to participate, has, quote, failed. This is the statute now codified at 3 USC 2, and it's a statute that many are pointing to as a potential source of power for legislators to use to pick an alternative slate of electors that might get counted in the electoral college. These podcasts are produced by Equal Citizens. You can find us on the web at EqualCitizens US and you can find these podcasts at EqualCitizens US anotherway. You'll also find there a tool to help share this podcast and to give us feedback and ideas. Please share it with your 10,000 people best friends so that these words and ideas might find some place out there in the ether where they might, let's hope, might do some good. If you'd like to help us produce these podcasts, obviously the work that we do in preparing them and recording them is pro bono, but the cost of producing and distributing is not zero. If you'd like to help support these podcasts, you can go to Equal Citizens Us. You guessed it, donate. And you can donate to help support our work and to make these podcasts more widely available. Thanks for listening and I hope you can hear the rest. This is Larry Glassigan.