Another Way To Elect The President: A Red Mirage? (Part 2)

This podcast is part of the Democracy group.

So election nights historically have been interesting and boring. They've been interesting because, of course, they've determined who's the president, who controls the Congress, who's going to control the governorships across the nation. But they've been boring because typically they're over pretty quickly. We know early into the evening who's won and what the layout of the nation is going to be. The expectation is this year is likely to be different, and it's going to be different both because of actual facts on the ground and also because of the narrative that has been built up to explain the expected facts on the ground. So the facts on the ground, obviously, are that we're in the middle of a pandemic that has led many people to change the way in which they vote. Many more people have decided to take up absentee ballot voting or mail in ballot voting. And so it's shifted a huge number of votes to before election Day. As of this date, 19 October, close to 25 million votes have been cast before election Day. So that shift obviously will have profound effects on how votes get reported. And the topic of today's discussion is a dynamic that's been referred to as either the red mirage or the blue shift. And the basic idea of the red mirage or the blue shift is that on election night, it will seem as if the Republicans have performed better than it will seem after those mail in or absentee ballots are counted, that the red victory is a mirage or there will be a shift towards blue votes. Now, the reason that dynamic is really significant is that the narrative that we have been introduced to in the lead up to this election, supported by the President and by the President's supporters. Steve Bannon most expressly talking about this narrative is the claim that there's a dynamic of theft that will explain the dynamic of the shift, that what's going to happen on election night is that the winning votes that Donald Trump will have received will be taken away through a process of fraud or corruption or whatever. So that when the next day the votes are reported differently from what they seemed on election night, it won't be because that's reflecting the actual ballots that have been cast. It's because it's reflecting the consequence of the corrupt intervention that's alleged to be in the works in these critical states. In this conversation, we're going to try to unpack a little bit of the dynamics of the data that might explain the red mirage or the blue shift to understand a little bit about the state law that makes this so possible, where we're likely to see the problem most pronounced and where we're likely to see it resolved very quickly. This conversation is going to include three of the law students at the Harvard Law School Wargaming 2020 seminar. And they're going to describe the work that they're doing and all of their work and all of this. These data will be made available on a website, EC FAQs. That's electoral college facs. EC FAQs US. And on that website, there will be a dashboard that will help us, help you, help anybody interested watch the dynamic of this red mirage or blue shift as we gather data leading up to the election and on election night and afterwards, trying to account for what exactly happens. So with that, we'll turn to the conversation. Okay, so our first conversation about the red mirage or the blue shift. Before we start, I want to make sure that we understand who's in the room. We've got a room now with six people. Even though we're in different parts of the the world, three of us are going to be part of this conversation as regularly as we can. I'm going to try to be part of almost every one of them. And Jason and Matthew will also as well. But let me start with somebody who many of you have heard, if you've heard this podcast, Jason Harrow. Jason, why don't you just introduce yourself and tell us a little bit about where you're coming from here?

Yeah, I'm Jason Harrow. I'm the director and chief counsel of Equal Citizens. So, yeah, listeners have heard me in this feed, though not on this miniseries, which is new. And we're gonna give you lots of great content over the next couple weeks. But you've heard me before talk about the Electoral College, Money in Politics, HR1, and other topics because of all the work we do at Equal Citizens. And now we're really focused on this, how we're gonna have this election, whether there will be another way to elect the president. So, Larry, I'm excited for this conversation.

Great. Thank you. And Matt Seligman is somebody who is responsible for totally ruining my life by getting me to think about this issue. And it led to us launching this seminar who will have students from the seminar talking in this podcast as well. But, Matt, why don't you introduce yourself?

Hi. Thanks for having me on. I'm Matthew Seligman. I am currently an attorney with Public citizen in Washington, D.C. and I'm also doing work on potential election crises with the Campaign Legal center and the National Task Force on Election Crises. Prior to this, I've been a law professor, but circumstances this year have pulled me to D.C. to try to get my hands deep into the issues that are not quite unprecedented, but unprecedented in most of our lifetimes.

Okay, great. And then we have three students who are part of our seminar. We're going to lead the conversation, to be led primarily by one who is working with someone else to focus exclusively on the topic that we'll be talking about today. So I want to start with him. Jack, why don't you introduce yourself?

Hi, I'm Jack Jacobson. I'm a 2L, and I am working with Jacob Arkatov on the Red Mirage project for this seminar. So I've been doing quite a bit of research on this lately. Great.

Mason, why don't you go next? Hi, I'm Mason.

I am a 3L, and I've been

working on a variety of different issues

pertaining to this upcoming election, but I'm very interested in contributing more on this particular topic.

Great. And then finally, Stephen, why don't you introduce yourself?

Yeah. Best for the last. Yeah. Hi, guys. I'm Stephen. I'm at the real. I'm working with Mesa, not only on the kind of definition around what a failed election might look like, but also around just creating a dashboard for understanding holistically what we might be dealing with on election day and afterwards. Another thing that might be material to our conversation here today is that I am currently in a beautiful state of Texas, so I'll be sure to bring that perspective here as much as possible.

Okay. We won't tell anybody, just in case. Okay. So the subject of tonight is, or the subject of this podcast is the Red Mirage or the Blue Shift. So the naive way we think of elections working is everybody votes. The votes get counted, and usually on election night, we know who wins. But the dynamics of the current election this cycle, plus the dynamics of how we've seen elections developing over the last few cycles, convinces us, not just us, everyone focusing on this, that we're going to see a pretty dramatic dynamic in the way the results will be revealed. And that's important because there is a storyline being peddled primarily by the president. The storyline is that the president will have a won on election night, and then that victory will be taken away by the Deep state, or. I don't know who it'll be taken away by. But the point is that over the course of this couple days, maybe weeks, when votes are counted and the margin of victory that he will be claiming begins to shrink the suggestion will be that it's shrinking for reasons other than accurate counts of the votes. And so we want to understand why it makes sense to believe there will be something like a blue shift or a red mirage and whether there's some way to track and understand what it is. So we're going to bring in, as the first lead expert on this, Jack Jacobson. So, Jack, help us understand when we began to recognize, obviously before this election, that there was something like a red mirage or a blue shift developing in the context of national or United States elections.

So specifically for this election, I think it's a little bit unique, it's a little abnormal because of just the quantity of mail in ballots. I think historically it has depended a lot on the state specifically, and this holds true in this election as well, on how they process their processing and balloting and ballot counting rules and when they're permitted to begin. And then logically, it makes sense. I mean, it tracks that the way in which you count these ballots, the order in which you count your ballots, and then the way in which you count the mail in ballots will impact the result of the vote over time. And so when you have your people who vote in person and those votes are all counted the day of, and all they have to do is tabulate those votes, then those will be reported much more quickly than the votes, which are not even beginning to be open and processed and taken out of the envelope until the same time that those people, the counterpart group, is voting in person. And so I think that's just kind of how it makes sense that it plays out historically. I do not have a ton of examples to recall off memory of research that we've done in the past elections. But I think Stephen said that he knows of some.

Stephen, you know everything here. What do we know about past elections?

Yeah, so in past elections, I think the reason, like there's a reason why we, like, have the point have the term itself around the red mirage and then around the blue shift. Right. Which is that I think historically, in past elections, if you think about, like which votes are counted when then typically what happens, like once polls close is that you count all the votes are cast maybe in person, including on election day. And then afterwards are the maybe votes that come in maybe from absentee ballots that just are later arriving or from provisional ballots or from other kinds of ballots. And I think historically those kinds of ballots have skewed Democratic, I think a large part because maybe there was a maybe strategic reason why the Democratic Party wanted to have a lot of voters kind of sign up for provisional ballots if they don't have kind of other registration documents immediately available. So I think there is this kind of like a reason why different kinds of people might tend to have, you know, have just simply submitted different kinds of ballots and those ballots just kind of get counted differently.

So but that's an important point. I mean, you know, you would imagine that if it were perfectly evenly divided between Republicans, Democrats and independents, how exactly they vote, whether they vote on election day or they vote by absentee ballot or however, then it wouldn't matter exactly when they're counted. They have the same influence as it's counted. The reason people are wondering or kind of puzzled about it is why do we think that Republicans are voting less in these ways that they get counted later? And what explains, what explains it in general? I mean, in 2018, we saw this dramatically. I think when I went to bed 2018 night, it Democrats looked like I'd won, but not dramatically. And then you woke up the next day and it was a dramatic blowout across the country. So do we have, is there any theoretical understanding of why there would be this difference even before we get to the question of why there's the effect of the pandemic?

So I think something that we saw a lot in data, and I mean as far as data that the states are publishing, a lot of it is who registered like based on registered party. And so something that we saw a lot with the data is sometimes it wasn't actually that skewed in plenty of states, it was actually not even, but closer to even historically. And in like a state where you have 6% of people voting by mail, I think North Carolina had 6% of people vote by mail in 2016. The numbers were close enough that it wasn't hugely impactful. But across the board, even in states where there was a Democrat lean before, in terms of vote by mail, things have become much more polarized this year where you are seeing, and I mean, I think it's in large part due to the rhetoric that's being peddled by the parties and obviously Covid as well. But you're seeing the number of Democrats and the gap between Democrats and Republicans in terms of mail in voting just skyrocket. And so this year more than ever, it is becoming like a hyper partisan issue where it seems very clear that the Democrats generally are going to dominate the vote by mail and the Republicans in large part are voting in person.

So, Jack, I have a quick question about that. So you say this year already we see that there's a partisan disparity where Democrats are voting by mail more than Republicans. Now, of course, the election isn't over yet. So how do we know that so far?

So the data that we've been using for our modeling is reported by states. And basically they give you two numbers. So first they give you a number that says this is how many people by each party have requested a mail in ballot. And then they give you a number that says this is how many people by each party we've given a mail in ballot to. And then we can look at 2016 to see proportionally how many people generally return those ballots out of the people that receive them. And so all the data we are looking at technically is not based on votes that have been submitted, but people who have chosen the mail in ballot option for voting.

And so what we've seen so far is that many, many, many more Democrats have requested mail in ballots than have Republicans.

Yes. And importantly, very importantly for this red mirage blueshift idea, not just many, many more Democrats, but many, many more people across the board. And so a big, I think a big part of this this year isn't just the breakdown, but the pure quantity because kind of an important part of the idea that everything is going to be delayed so far is that these people processing the ballots are going to be overwhelmed by just the pure quantity of ballots. And so when you look at people talking like Pennsylvania is a state that first of all is hugely important in this election. And second of all is what we've classified as a slow counting state, but just generally a state that is likely going to do a very poor job of counting their mail in ballots. And although they haven't reported exact numbers, a lot of estimates are saying 15 to 18 times as many mail in ballots as they've ever had. And so it's just like there when you, when you see an interview with a county election official who's saying, we're doing this in a high school gym and we're going to get 100,000 mail in ballots, that's when you start to see how can they possibly. And then you look at the state laws which will say, Pennsylvania, you can't even open the envelope until voting starts. And so now you have 100,000 envelopes that you have to open. You have to go through this extensive list of requirements for a mail in vote and then you move them on to someone else who can actually start counting them. And that's when you start to see that it makes sense that these mail in Votes are not going to get counted at the same speed as someone who walks in and punches their ballot in person.

Mason?

Yeah, I wouldn't go back to this issue about why we're starting to see such a big discrepancy between Democrats versus Republicans with mail in ballots. And I think without the pandemic, obviously, the pandemic puts a pretty large influence on that, given the democratic platform of COVID 19 being a big issue for the country. I think another part of it, if we look at 2018, I think a lot of younger voters are trying to vote this election, and there are also people who don't want their ballots to be counted late, so they want to get their ballots in early. And so the confluence of younger voters and voters who are wary about their ballots being lost or being late or, or counted or not even being counted because of the experience of 2016 has resulted in more people on the Democratic side putting in their mail in ballots versus voting in person. Now, I think the more curious question is why aren't Republicans doing it? Is it because they're older? Is there a demographic reason for it? That I think is the more interesting question that we should also be thinking about here.

Yeah, I mean, it is puzzling, although what we've seen as these early voting states have begun to open their polls is the extraordinary number of people who are showing up right away. I mean, we've already had close to 25 million people register a vote, you know, unprecedented in history, but mainly because I think there's such anxiety that if they don't get it in, if they don't get it done, it might not count, might not matter. And it's obviously hard to figure out how the President's rhetoric is playing into this. You know, it's almost we've made a partisan issue into whether you vote early or you vote by mail, just like we've made a partisan issue about whether you wear a mask. And so, like real voters show up on election day and everybody else, the wimps, kind of do it earlier, do it by mail. But for some reason we do see and we recognize there is this big difference. Now, Jack, you've talked about slow counting states and fast counting states. So what is that referring to?

So for our project, we've attempted to identify the magnitude of the red shift across various important states. Right. Because it's one thing to say nationally, this is how the red shift will look, but it will be different in some states than others. And that's based on a couple of factors that we've Grouped into states that are slow counting versus fast counting. And so the main factors are when the state can start processing the ballot. So that is take your ballot out of the envelope, check to make sure you've met all the requirements out of the second envelope and effectively check off everything saying this ballot is okay to be counted. And then the next factor is when can the state begin counting? And so when can the state actually tabulate these envelopes? And then finally it is how comfortable is the state or how common is it for the state to receive such a high quantity of mail in ballots? And so two of the states that we're focusing on that will be influential states in this election, and you could term them swing states or states that are highly contested and should be very close, are Florida and Pennsylvania. Because Florida pretty much is the perfect example of a fast state and Pennsylvania is a very good example of a slow state. And so what you see in Florida is they are very, in 2016, they had 2.6 million mail in ballots. And so they are used to a very robust mail in ballot system. And their counting and tabulating processes are great. 22 days before election day, they're allowed to start processing ballots. And then also 22 days before election day, they're allowed to start actually counting and tabulating up the bill ballots. And so what you could see in Florida is if they, if they have everything working well, you could actually see almost a reverse effect where they get all of the mail in ballots counted in those three weeks before people start voting in person. And then when they can officially report them, all the mail in ballots are already counted before the in person ballots even are. And Florida's a.

Nobody knows anything about what the results are until after election, right?

No, there's, you're not allowed to say anything. And I think, I think maybe some group of people, I mean, it makes sense that some group of people must be able to see the tally. But I know some state statutes will say, like, if you're one of the people that sees the tally and you say anything, it's a felony or something like that. And so, I mean, there will not be robust reporting of these numbers. If anything, it'll be like, you know, rumors at best. But what you will see, I think, is if they do get those, get those tallies completed before the mail or before the actual election day, then you will see just a dump of mail in ballots on election day that could potentially come in before the in person ballots. And, and Florida is, let me stress, a very extreme example. I mean, Other than the states who do fully mail in voting, Florida probably has the best system and we would say is most prepared for this.

Pennsylvania is at the opposite extreme.

Yes, Pennsylvania is the exact opposite of this. Pennsylvania. You cannot open a ballot, you cannot open an envelope to start processing a ballot until election day. You also cannot start counting. Well, pretty obviously, since you can't even open the envelope until election day. And Pennsylvania is, traditionally, they don't release very good numbers on the quantity of early vote in Pennsylvania or the quantity of vote by mail in Pennsylvania. But they, from the way that the election officials are discussing this, like I said earlier, 15 to 18 times the quantity that they're used to, and the legislature has not been eagerly amending anything to make it easier on them. And so you could see Pennsylvania have a very significant vote counting rate at which you don't see results for. I mean, you won't see all of the results for, say, five days or six days.

And so the technology of counting in a state like Pennsylvania, is it coming in and it's then optical scan, is that the technology?

So I think for the specific ballot, yes. Like, for. They have, they, they've used machines to count the ballots. But in terms of checking all of the requirements, I think there's like a significant amount of, like, human capital needed to do all of that. And so I think really processing seems to be more important than counting in terms of trying to estimate the effect, the total effect of the red mirage or the blue shift.

So this is the part that I'm puzzled about. So obviously, when you open these ballots, there can be lots of things that go wrong. And one of the things that can go wrong is you're not confident that the signature is a correct signature. And I know in some states they will actually reach out and ask you to come in and sign again or to do something to validate your ballot. But if Pennsylvania's got hundreds of thousands of these ballots, there's not going to be any process for actually giving people a chance to validate their signature or anything like that, or is it expected that there should be?

So this, and the thing is, the way the state statutes are written, you can see a pretty clear difference between states that are willing to accept mail in ballots and states that are eager to count all mail in ballots. And so if you look at, say, Florida, they have what the, the term of art here is curing ballots. Okay, so it's, if your ballot has a defect, what can you do to cure that defect and ensure that your vote is counted? Florida In Florida, Florida law requires election offices to contact those people who have the ballot defects. And they have until 5pm on the Thursday after election day to complete the process for signing or verifying their signatures. And you see with, with states that are, that we would consider a fast count state or states that have good processes for this, it seems like the legislation is written so that people's votes are meant to be counted. If you cast a ballot and there's a problem, they'll reach back out and try and fix it. In other states like Pennsylvania, they have very ambiguous or no specific rules regarding how you're supposed to reach out to someone for curing their ballot or, and, or they will have a hard deadline. So Pennsylvania's deadline to receive a ballot is Election Day, the night of election day by 8pm and in a lot of other states you'll see as long as it's postmarked by election day, or if it's postmarked within three days of election day, or as long as it gets in within six days after the election and is postmarked by election day, we'll accept it. And so it's just, I think in terms of curing the ballots, in terms of people being able to fix the errors on their envelope or on their. The. The naked ballot was a big issue. I think that was also in Pennsylvania.

Yes. What's a naked ballot?

So that is. I actually just filled out my Texas absentee ballot last week and got a firsthand look at how this works because we have this too. There's like a two folder, two envelope system. So you take all of these pieces of paper out, you fill out all your ballot, and then you put it in one envelope which you seal up and then put that inside of another envelope which you seal up and then do the signatures on, the witness signature and your own signature on. And so the naked ballot problem was when people would take all these papers out, fill out their ballot, put it in the main envelope, close it, sign it and send it in. And those wouldn't get counted because they didn't have the second envelope within it. So like a Russian nesting doll of envelopes. And so something like that is an issue when you have to count, when all ballots have to be ready by election day at 8pm if they get my ballot on election day, there's no way they're going to be able to reach out to me, have me cure my ballot and bring it back by

8pm so in Pennsylvania, there's no curing opportunity if they're going to be opening them all on election day. And it's got to be done by election day.

So there's none that we found so far. And there could be something in there, but I think that if there was one that was used frequently and was intended to be something that people, you know, that election officials were going to use on election day, then we probably would have found it. And so there may be some small state statute or some, some regulation that allows it to happen, but it definitely does not happen in the same way that it does in a state like Florida.

Jack, I'm curious, I don't know if you tabulated this or not, but do you have a sense of how many of these tipping point or battleground states are quick versus slow counting? Because if you think about this, if a lot of them are quick counting, for example, and then by the time the say Pennsylvania finish its counting, Biden already has 270 votes, 270 electoral votes, in which case then the red barrage or the blue shift wouldn't even happen.

Right.

But if there's a lot of flow counting states and we would expect to see that effect to be larger.

So we found kind of a healthy mix. The five states which we focus the most on that are also some form of, of swing state. You'd say Pennsylvania, Florida, Arizona, North Carolina and Wisconsin. And so Florida has, Florida's fast counting. They're very good about their counting. We think if anything there could possibly be the opposite of a, of a red mirage effect there. Pennsylvania almost certainly will have like a very severe red mirage effect. Arizona does not be. Arizona begins tallying and processing, begins processing 14 days before the election and begins tallying, can begin tallying 14 days before the election but will not release any of the tallies until an hour after the closing of the polls. And so it might not be early in the sense that it comes out before all of the in person voting. But, but I imagine you will just see a flood where it's like we've been tallying and now say an hour into people projecting, we see a big flood of all of these mail in votes. And then you have Wisconsin, which is almost the same as Pennsylvania. It's not as bad as Pennsylvania, but it is very similar in the fact that nothing is happening until the election. And so we've started looking into that for sort of a broader range of states. But at least for the five we've chosen, we've got two that seem like they will be very slow counting and three that seem like they will be different to Some degree, but fast counting.

And, Jack, I feel like that heterogeneity is just really important for us as well. Right. In terms of which states that we look at on Election Day to see how the overall national election might be going. Right. So I think that based off of what you said, it sounds like, obviously Wisconsin and Pennsylvania both have laws on the books that prevent processing of mail in ballots until basically the polls close, which is not ideal. And I think my understanding is that Michigan is similar. I think they passed a law recently where they moved up the processing date by one day, which is, you know, apparently it was a really big conundrum to just get that one simple extension passed. But I think, just like the point about the heterogeneity here is important, that if we were to want to think about what an overall national trajectory of a Biden win could look like, then we shouldn't be focusing on Michigan, Wisconsin, or Pennsylvania, actually, even though these are the ones that we would consider to be the tipping point states, we should rather think about states like Florida or Arizona or even Texas, honestly, that have much faster kind of ballot counting times that can then be much more predictive, kind of bellwethers for where the election can go. And so I think it's important, therefore, I think observers understand that certain states will be more predictive than others. While at the same time, I think it's also important to note that because there is heterogeneity here, it sounds like there is still an opening for either side to kind of pick what it wants out of the kind of situation that it sees and then use that as a basis for framing an argument. And so it sounds like this heterogeneity is challenging, but it is just a fact of how we're gonna have to deal with Election Day.

But if there's a story, a narrative that the president will spin, that there's some conspiracy to take away his victory, you also got to think of, like, where does that narrative make sense? I mean, you know, it might make sense in a state like California or Massachusetts, but of course they're not going to matter in this ultimate result. It's hard to imagine it could make sense to say that of Florida. I mean, you know, Florida's a bunch of Republicans, so maybe Pennsylvania is the place where it could play the most, because you got a Republican gov. You got a Democratic governor and a Republican legislature. But where does the narrative work? Where's the narrative really the most compelling here? Jack,

that is such an interesting question, because I don't know how much there is in terms of a reality check on the narrative. I almost feel like the narrative will be most compelling where it's most convenient. And especially in a state like Pennsylvania, which Trump has had, I wouldn't say unprecedented, but surprising success in, in the past. And, you know, he's peddling the, like, they're trying to steal this election from me. All the polls are wrong. And so I think it, it works where there's the most dramatic red mirage, wherever the most dramatic red mirage blue shift is, will be the easiest place for him to say, you went to bed watching Fox News and I was up by 4 points in Pennsylvania and you woke up and I lost by six. Like, this is voter fraud. They stole my election. And I also think a lot of the palatability of the narrative depends on whether, depends on the nature of the reporting during the night of. But also whether they start calling the races and whether they say, oh, well, Trump's up by 4 points in Pennsylvania, it's over. You know, if they say, hey, there's a lot of votes that are not going to be counted tonight, then maybe it makes the narrative a little tougher when nobody's saying it's over. But I think as soon as these news stations start to call things for Trump, then it really looks like, oh, he got this stolen. They told me last night he had it, he won it and now he lost. How'd that happen?

So, one thing we're going to do out of this class, we've set up a website called EC FAQs, ECFAX US. And on EC facts, there's going to be a whole section devoted to this redshift, blue, red mirage, blue shift dynamic. And so, Jack, you've begun to describe, you and your partner Jacob, have begun to map out exactly what kind of real time data you're going to have and what people could look at if they went to that site before the election and actually on election day. So why don't you give us a sense of what will be there?

So our site has, it has sort of as much as you want, as much as you, it's a make build your own adventure. There's first of all, at the very top, there is an FAQ and basic explanation of what is the red mirage, why does it exist and how are we going to see it, measure it. Then there is going to be a visualization tool that takes a bunch of data we've collected from past selections and projected for this election to see sort of a visual depiction of the red Mirage. So what we show is we take those five states I mentioned earlier, and for each state we have four time points and the time points will say, or three time points, they'll say at the night of the election, right? When you're, when you're, or when you're going to bed after the election, what are the numbers going to look like in terms of how many Democrats, Republicans and Independents have voted? And then it'll say 12 hours after or two days after. What's it going to look like then? And then it'll say five days after when all the votes have been counted. What is it going to look like then? Once you've actually tallied up all of the Democrat, Republican, independent votes. And as you flip through these different visuals, you get to see the vote counts change over time. And you get to see that on the night of, the majority of the votes tallied are all from people who registered as Republicans. And you can see on a bar graph this, like only 60% of the Democrat votes that have been submitted have actually been counted. And I mean, that's really what the Red Mirage is, is, is this fictional idea where you're seeing, you're seeing numbers that have been counted and taking that as a representation of who's voted, but it's not actually representative of who's voted. And so that's what you get to see when you scroll through. And then there's, there's state spotlights we've constructed for each state so you can look at all these swing states and say, is it fast or slow counting? You get to read about why it is the way that it is and just a little bit of history about the elections in the state. And then Jacob's building a GIF or GIF, depending on how you want to pronounce it. He took the like path to 270 electoral map and shaded the states either red or blue, depending on how we think they will look at given times throughout the night. And so then you get to see how maybe the map will look if you're watching on, on CNN or something. And you see, you know, when they start shading, oh, this is leaning Trump, leaning Biden over the course of the night, how it could look really red at the beginning and then eventually turn and become very blue by the end.

And so this will be fed by real data as we're getting it.

This, the, the GIFs as of right now are projections. And the, the actual visualization, yeah, is the best data that we have right now. And we anticipate updating it and then the state spotlight specifically where we have just the raw data is something that we're going to continue to update as we get new data saying actually this many people have registered for vote by mail or this many ballots have been returned in Florida or something like that.

So when states are reporting like 70% of the precincts have been counted, are they reporting 70% of the votes have been counted or are the precincts, including the absentee ballots, within that precinct too?

I am, I am unsure about that. I don't. And when it says precincts reporting like 70%, precincts reporting, I don't know if that is if that is like at the when the precincts count all of their ballots or when they just count like a critical mass of ballots. And so I'm unsure how that specifically.

Yeah, that's an important thing for us to fill in. Matt. Just notices. We got some pretty important news while we're talking. So what's happened, Matt?

So we are recording this on Monday evening. It's about 7:40 right now. And within the last half an hour, the Supreme Court denied a request by the Republican Party of Pennsylvania. It was the Republican Party of Pennsylvania had requested a stay from the Supreme Court of a Pennsylvania Supreme Court decision. And what that state court decision had done is it had said that ballot mail in ballots that were received within three days of Election Day, so up to three days after Election Day had to be counted unless they were postmarked after Election Day. And so what the effect of this state Supreme Court decision was is that if somebody mails their ballot on Election Day, then it would be counted as long as it was received within three days. And that was a change to the prior counting practice in Pennsylvania. The Republican Party asked the Supreme Court to intervene and it wouldn't. Now one of the interesting things and potentially ominous aspects of this decision is that it was 4 4. So there were no opinions issued in this case. But we can tell that the application for the stay was denied. And then in the court's order, it noted that four of the justices would have granted the stay. So they would have agreed with the Republican Party here. And so right now, as we all may know, we have a 44 Supreme Court. And this week we are looking at the possibility of a confirmation of a new Supreme Court justice who has been nominated by one of the contestants in this election. So it looks like we do have a 4, 4 deadlock on at least some of these election mechanics decisions and that the addition of Judge Barrett to the Supreme Court could change that balance.

So the issue that the Pennsylvania Republican Party was attempting to raise is the Purcell principle, that you shouldn't be changing law. So close, I thought the legislature. So what's the basic reason why the state's not allowed to decide how it's going to be counting its votes?

So looking here that the. So the Republican Party of Pennsylvania argued that the remedy here violated federal law and it violated the Constitution. So just looking at their application for a stay here, what they argued is that the electors and elections clauses required the Pennsylvania Supreme Court to uphold the General Assembly's election day received by deadline. That's one argument they made. And then the Pennsylvania Supreme Court offered no basis for usurping the General Assembly's constitutional authority. So this is an interesting different argument than we might have anticipated. So there's a principle that the Supreme Court has announced in a case called Purcell about 15 years ago that says the courts shouldn't change the rules too close to an election, even if there might be a constitutional problem. They should just exercise restraint. So we can see right now that all of the rules seem to be changing as people are voting. And that's pretty disruptive. So you might think that the Purcell principle makes some sense, but that's not, it seems, what the Republican Party here argued. You might have thought they would have said, well, the Pennsylvania Supreme Court shouldn't have stepped in and changed things. Now, I think the reason why they didn't argue that is because it's not clear that the Purcell principle applies to state courts. And this was the Pennsylvania state court. So what they argued instead was that the Pennsylvania state legislature had set up some rules about how the presidential elector should be selected. And something that we've talked about in our class is that there is a case from over 100 years ago that said that state legislatures have, quote, plenary authority to decide how presidential electors are chosen. And so the argument that the Republican Party was making here is that it didn't, that this Pennsylvania state court decision violated that principle. So coming back to the red mirage and the blue shift. So the relationship between what the Supreme Court didn't do just now and what Jack is telling us about how all of the complicated idiosyncrasies of state rules and laws and practices about mail in ballots are counted. So is there a relationship there? What can we learn from what the Supreme Court refused to do tonight?

Well, let me jump in before Jack comes back, Matt, and I just want to use the Supreme Court's lack of saying anything but upholding this decision from Pennsylvania Permitting ballots to count if they are received even up to the Friday before, but the Friday after Election Day to note. And Jack or the others, if you have some data here, please share them. That we should be remembering. This is not all about counting and processing. We've heard a lot about that and a lot of great figures. But this is also the fact that in some states, there are actually going to be ballots that cannot be counted on election night because they won't be in the hands of election administrators on election night. We now know, as of this podcast, that in Pennsylvania, there will be a group of ballots coming in up to three days after election Day. California, where I'm standing right now, has changed its law to permit ballots to be counted up to 17 days following election Day. Even some states like Texas, with relatively strict election laws, do permit counting of ballots received one day after Election Day, again assuming that they're postmarked by Election Day. And there is a federal law permitting absentee and military overseas absentee and military ballots to be counted if received up to seven days after election Day. So I want to throw it to Jack or Steven or Mason and say, do we know? Because states do have some discretion in this, right? They have to accept military ballots up to seven days after, but they can, like Florida, they can cut off all received ballots on election night, or they can extend it three days like in Pennsylvania, 17 days like in California, or somewhere in between. Do we have a sense of how many ballots that is, how big a group of ballots this is in various states and how it may affect the results we see on election night and in the days after.

So we don't have specific data on the time that ballot, the date that ballots are received in terms of how many people are going to fall into that category or how many people's ballots are going to fall into that category, but based on just which states are going to cut them off. In the five states that we've done a lot of the research in so far, North Carolina is the only, only one that will accept them after. And so it seems like it may be pretty common for that, like that phenomenon as a whole, where people who vote late, like non military people who vote late, may be common, but I don't have specific numbers on how many people that will affect. And I assume it'll affect more this year with just way more people voting by mail when they never have.

So when California says it's going to count ballots up to. You said 17 days afterwards.

Yeah, new law, 17 days.

So does that mean it still has to be postmarked on election day, right?

It has to be postmarked by election day. But the California legislature decided there was evidence that the mail could be so slow and things could get lost in the mail for up to two weeks that they wanted to make sure that every vote arriving in an election center was counted. And so they're giving vote. They're basically giving the USPS an additional week or two than they normally would so that they can be sure they're counting all ballots.

Okay. But then again, we know that California doesn't matter. So the real estates that matter. What's interesting is Jack's saying only North Carolina among the real estates that are going to matter, going to permit ballots from non military people after election day to be received and counted.

But of course, I do think, just to add one more thing, it also depends on what we mean by matter as well, right? I mean my understanding and trust. Jack, correct me if I'm wrong. I believe Ohio has for a while by law permitted ballots to be counted for quite a while. They have to be postmarked by election Day and up to 10 days after election day can be received. The Ohio Secretary of State has said that in order to account for this fact, the state is going to give hard numbers of how many mail ballots have not been returned by that date. And so at least we'll know about this gap. But the Governor and the Secretary have both said, look, it's actually impossible for you to give us a definitive certified result because we have ballots coming in 3, 4, 5, 6 days after election day that must by law be counted. And that's not by a court decision. That one's by statute in Ohio.

So we should. So this is a clear idea that we can help with, which is to produce a dashboard that will give for all of these key states as much data as we can gather in one place about how many ballots are outstanding, what the expectation is with respect to the ballots that are outstanding so that there's a clear way to get a sense of when the election can be called with certainty in any of these particular states. I mean, every one of these networks is going to have their own little modeling going on, but at least this can be in some sense a neutral, non network connected source of data for that.

So one, one thing I would also say in response to that is just that in 2016, there in some states is a very large discrepancy between mail in ballots sent or requested and mail in ballots returned. And it seems like maybe a lot of These people request a mail in ballot and then end up voting early in person. But in some states, there's a pretty substantial discrepancy there.

So we could use that historical discrepancy and discount the numbers that we see for 2020. So if you saw that 40% were not returned, then okay, we can discount the 2020 numbers by 40% and still see what could be returned or what's likely to be returned. But I think our objective should be to get to a place where we have a single graphic or visual that tries to represent in the most succinct way, in a tweetable way, exactly what the current status is for any particular state. Like how you know, because if you see that so and so is ahead by X points and you know, X percent are still outstanding, we should have an easy way to know whether there's something to count or something not to count.

So a couple, I think we could do some sort of reasonable approximation of that, but a couple confounding factors. Maybe a lot of these states do not. Some of these states, the ones that like, like a Michigan that we've, you know, could potentially be a swing state, but we've excluded, don't report by party. So it's like you could say there's this many mail in ballots outstanding, but you just have no clue who those people are. And then also I saw a Nate Silver tweet on this recently. The ballots, the mail in ballots that have been returned thus far are favoring the Democrats by 31%. Although overall requested is only supposed to favor the Democrats by say, I think 17% is what he says. And so there could be a question of the actual breakdown of the votes as they're being counted, assuming the states count the votes that get in first first. And so then it would be like in this graphic, we could say this is the overall breakdown of people who vote by mail in this state. This is what percentage of those votes we expect have not been counted yet. But it might be difficult to account for. Did all the Democrats already get their votes counted? And the back half of these mail in ballots are actually like a little more even or maybe Republican leaning.

So we should be able to figure out what their procedure is. I mean, we can research that to see whether that's true. But what's interesting about that is that if that's true, if what you're seeing is a lot of Democrats sending in early because they really want to make sure it gets counted, and then the ones that come in late are Republicans and Then the Republican votes get thrown out because there are very strict rules about making sure they get received and processed prior to or one day after the election. That could be an unintended consequence from the strictness, at least from a partisan perspective,

an issue related to the factual context in which this election is taking place. So Jack's done a great job of looking at the historical data and then projecting how if things work the way they have in the past, but the numbers are higher, how things might unfold. But we're obviously having this election in a pandemic, and that can affect voting patterns and how people vote and when people vote in some pretty unpredictable ways. So for example, just to hypothesize, maybe it turns out that, that voters over the age of 65 who are traditionally more Republican leaning than the electorate at large, are more concerned about voting in person because of risks to their health. It's a reasonable thing to think. And so it could be that we see a surge of older conservative voters that are voting at the last minute by mail because we once next week rolls around, they realize that actually the pandemic is not going away like a miracle. So as a result of that, we may have difficulty projecting and predicting how these mail in vote patterns are going to operate in this pretty unprecedented situation.

And I would just add even another wrinkle to that, which is that polls suggest to us that the over 65 vote has also shifted in and of itself from favoring Republicans by a pretty large margin to actually potentially coming out on the side of the Democrats. And so there's, you know, it's a really useful exercise to understand what precedent is and then use that to reject to this election. But at the same time, there's only so much that we can do given the fact that this election is so unique and has cut against all the trends that we know about. How about how votes are processed?

And it would be interesting to look at that group and say, of the people who say my, I am facing a serious health risk from COVID 19, I've traditionally been a Republican, how many of those people can, can sit in their house and vote by mail because they're afraid of the health risk and vote for the man who it seems like the vast majority of Americans blame for the existence of this health risk at this point, you know, at month number seven. And so you wonder if maybe those people who are voting by mail, although they had supported the Republican Party in the past, would like those would be the people who are really driving the shift to the left. Of 65 and over people this time around.

Okay? So here our commitment is we're going to try to present as clearly and succinctly as possible the data, including as much real time data as we can about where the outs out the mail in and absentee ballots stand in each of these critical five states and maybe something beyond that so that there will be a dashboard people can look at on election night or after election night to see how things are progressing. Again, the site for that is going to be EC Facts, F A Q S as in frequently asked questions. And there's more than one us. And you can find the link at our website at Equal citizens us. And the objective of the whole series of this podcast is to provide as much information, especially about the post election process as we can. Because obviously this is a process that historically has not been as significant or salient to the ultimate choice of the president. But I'd like to thank everybody for participating. Are there any last fears or promises or hopes or jokes you guys have to offer? Because we've got to keep the listeners, you know, you got to keep them interested. So anything to offer before we close?

Well, can I offer? I like to end hopefully. You know that, Larry, sometimes that's how we like to do these things. The hopeful part is we've been here before. We have had vote shifts before and people's memories are short. But in 2004, the people have to remember the election wasn't called on election night. Bush was stuck at 269 electoral votes with Ohio still being uncalled. And in reverse of what we're sort of seeing today, CNN had Ohio going for Kerry late into the hours of Tuesday night, Wednesday morning until it switched to Bush ahead, perhaps because of late counting ballots. So there we did see a kind of a red shift and a little bit of a blue mirage. And we got through it. There was a little bit of a scuffle. Kerry conceded it to people Eastern on Wednesday, November 3rd. This tradition goes back many years. I was digging into some history. The 1960 presidential election in California, Kennedy, Nixon wasn't called for two weeks. And absentee ballots once again changed the result there from Kennedy to Nixon. And we've done it. We've done it before. So I understand that we all think this is an election unlike any other for so many reasons. But I'm hopeful personally that past is prologue because we have been able to just calmly count every ballot, no matter when they arrive and see what happens.

I like hopeful. That's good. It's not my brand. But that's why Jason works with me. We have to keep it balanced. Thank you, Jack. Thank you, Stephen. Thank you, Mason, for your work and I look forward to seeing how we get this represented on the website. And Matt and Jason will will be back together for later episodes. Thanks very much. Okay, so that helps us understand what more we need to do to pull together the information that will help people on Election Night exactly understand what exactly is going to happen in the next episode of this mini series of the podcast. Another Way we're going to look back to historical examples of close elections in the states and and the ordinary process that has determined the ultimate result in those close elections. That history is prologue to the fight that people expect we will see in this 2020 election. So stay tuned and thank you for listening. These podcasts are produced by Equal Citizens US. You can find the podcast at EqualCitizens US another way. Please share the podcast or point anyone you think might be interested to the podcast. Our aim is to provide as much information in as slow and digestible manner as we can about this extraordinary election so that people can understand what's happening as it's happening and understand how they should react given what they see is happening. You can see suggest ideas and reactions on the website at EqualCitizens US. Anotherway, there's a place to give your feedback and your ideas and possibly even your support of this project. We're doing this project for free. The production costs are not free. So any support you can help us with that would be enormously appreciated by me and by everyone associated with Equal Citizens. Stay tuned for the next episode. Stay focused on this extraordinarily important election and stay calm, recognizing all those who are keen to wind you up and to turn you into crazy people. To make this even more exciting, I think we've had excitement enough. It's time for some cool and calm consideration of what the results in this election should be. This is Larry Lessig.