Join Derek Muller, a leading election law scholar from Notre Dame, Ned Foley, an expert on constitutional election law, and Matthew A. Seligman, a fellow at Stanford, as they dissect the complex landscape of U.S. presidential elections. They analyze the implications of close elections on public trust and discuss the intricacies of the election certification process. The trio also examines possible reforms, the impact of recent legal changes, and the challenges posed by election disputes, emphasizing the need for clarity and stability in democratic processes.
The podcast emphasizes the fragility of the democratic process, particularly the risks of a contested election undermining public trust in democracy.
Discussion highlights the three critical stages of the electoral process, focusing on potential pitfalls that could arise during certification and counting of votes.
The impact of the newly enacted Electoral Count Reform Act is explored, aiming to simplify Congress’s role while ensuring the integrity of electoral vote objections.
Deep dives
The Importance of Election Certainty
The discussion centers around the fragility of the democratic process, particularly the potential consequences of a contested presidential election. The speaker expresses concerns that the current election system may not withstand the added stress of another close election result, emphasizing the necessity of a clear outcome for the sake of national stability. The episode highlights that even without a contested election, the perception of a failure in the electoral process can cause long-lasting damage to public trust in democracy. Given these stakes, the speaker feels it's crucial to find ways to fortify the election system against possible disputes.
Understanding the Electoral Process Stages
The electoral process is outlined in three critical stages: the appointment of electors on election day, the casting of votes by those electors on Electors Day, and the counting of those votes by Congress on January 6. Each of these steps is examined for its potential pitfalls, particularly in the context of disputed results. The speaker discusses the role of state law in determining how electors are chosen and the variations across states in their voting methods. This clarity around the procedures aims to inform the public about their rights and the electoral law.
Challenges at Electors Day and Certification
There is significant focus on the period leading up to Electors Day, where states are expected to certify their election results. The challenges surrounding the certification process are discussed, including the impact of conflicts among election boards and possible delays. The episode examines historical precedents where state actions affected the timely certification of results and how courts might respond to any failure to meet deadlines. The implications of such delays could lead to uncertainty about the legitimacy of electors' votes when Congress counts them.
Judicial Influence on Election Processes
The podcast discusses the interaction between state and federal courts and their influence on the electoral system. It highlights cases where judicial decisions have potentially altered the trajectory of elections, pointing out that legality and timeliness of any ruling is critical in an election context. The speakers suggest that timely court interventions can either consolidate or undermine electoral certainties. They emphasize the importance of having closed loopback checks within the judicial framework to safeguard against unauthorized modifications to the electoral process.
The Role of Congress in Electoral Votes Counting
Clear distinctions are made regarding the role of Congress during the counting of electoral votes, particularly the implications of the newly enacted Electoral Count Reform Act. The speakers note that the act is designed to make the process simpler and more transparent, limiting the grounds on which members of Congress can object to electoral votes. The listeners learn that objections need substantive backing and cannot merely stem from general political sentiments or unqualified claims. This shift is portrayed as an effort to restore order and adherence to the defined legal criteria in future electoral processes.
Contingent Elections and Electoral Vote Scenarios
The topic of contingent elections arises, whereby if no candidate receives a majority of electoral votes, the presidential election would then be decided in the House of Representatives. The speakers identify that the thresholds for such a situation rely heavily on the completion and verification of electoral votes. They make it clear that if genuine disputes arise over electoral votes and they are not resolved before Congress convenes to count them, it could lead to unexpected constitutional dilemmas. Furthermore, the conversation explores the potential for complexities and legal disagreements surrounding electors' certifications that could lead to a reduced number of electoral votes.
On this episode (recorded before Tuesday's election), Lessig is joined by his colleagues Matthew A. Seligman (Stris & Maher), Ned Foley (Moritz College of Law, The Ohio State), and Derek Muller (Notre Dame Law School) to discuss what could (have) happen(ed) in the period after Election Day and before the counting of electoral votes.
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