tv After Words John Fortier After the People Vote - A Guide to the... CSPAN February 20, 2021 10:00pm-11:01pm EST
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institute john fortier provides his guide to understanding the electoral college process. his interviewed by author and former editor in chief of the texas review of law and politics, tara ross. about "after the people vote-a guide to the electoral college". >> it is good to see you. we both in working on these issues for a couple of case . glad to who here today per unit. john: will thank you for doing this conversation never talking about my recent book but you've had any books of the years. so thank you for having this conversation . tara: it goes both ways so is really happy to see that you had come out with a new addition and after the people vote. i relied heavily on your third edition but is working one of my earlier books. suspended talked to talk with me and is a lot about the electoral college.
to help people it. a lot of people don't understand enough of what your book is about so i thought it would make sense to start at the beginning and with the election day in november and take a step-by-step. in mock people chronologically through it to see and understand their favorite constitutional institution a little bit better. so describe what is happening on election day. people think they're going to vote for the president but of course they're not voting for the president to . what is happening on that day . can started . john: maybe i could back briefly and you mentioned this the fourth edition. there was a third edition after the election . this book is back relates almost 40 years to an earlier editor lofgren. started in 1980 with a series of questions about the electoral college. the support of the book today. there are a lot of essays are on the history and pros and cons in public opinion.
it really is trying to answer people's basic questions about the election . think you're going to start here at the beginning . but maybe a layman move you slightly before election day because there's this question of the elect door, there are people called elect doors. they are selected and ultimately for voting process. they can taste buds later in december. will he gets 11 early on before the november election, the stakes or the parties associated with the stakes are seeking groups of electors. one associated with donald trump one with joe biden and that is for each state in each state has a certain number of electors. they based on population but two of the each state because the senate has to senators and how any ever representatives the state has an congressman small
states three in the largest california has five. you have a wide range of numbers of electors. but who are these people. the non- known to the market people. somewhat anomalous. they are picked this party loyalists pray to people who are loyal to the party and donald trump would be selected in the and joe biden's elect doors. there picked by usually the party committee. but again the point really is, people very likely to be loyal to the party they support for unit in these electors in the states, you don't see them on the ballot. but there are a few states where if you look in any recognize them. but they would be plugged joe biden's name for donald trump's name and they would be those electors to that you are voting for. the other states, this is why
your voting. and you be casting about for biden or trump. which are really voting for these people. that's where the process starts. these electors are selected to sing of the ballot in a sense and when you vote in november, your vote seems like it's for comfort providing really is to elect these people will then show up later to cast votes we saw locally. electoral college. tara: people i think sometimes have a misperception that electors, just 38 people for taxes are 55 people per california . that there actually literally democratic slate in a republican slate when we get to the electoral college vote later, become supportive because makes them a lot less likely to be faithless electors . so to go back to the election day, recently people i have a right to vote for a president the
general election day. what is not quite right about that. john: think what you're getting at is there is not a generalized like vote for the president and the constitution. when you voting for president, we certainly have elevated these candidates. one of them is going to become president. but it's indirect in your votes really going to be cast for this other person. so these other people. the electors. so your vote matters. i guess we could back a little bit more to say the constitution really gives the body or institution the power to say how these electors are selected. the state legislature . the beach state in the legislature has the power to figure out how their 25th the electors and today the one thing in common is
that they all have popular elections. very different types, election code of massachusetts those difference in texas counted . that the common thread is you is a voter now going to vote under these laws. and they determined that is the path they will use to pick the electors . and just a note early on in our history, any but not all variety of things but states protect their electors directly. they would select them directly. we also have complicated district systems. there are a variety of ways in which these electors could be selected it. and from an individual's right to vote for president, there could be these arrangements. but we all realize today, we do go through these election codes
in this the way legislatures today have these in place the way in which we the voters sort of elect these electors it then elect the president. tara: received ballot in front of you may or may not have the name of the president on it . miter probably does that might the electors names instead. this is the ballot this been created by the state they decided to do that. allocate their electors through popular vote within the state . can you talk a little bit about the difference between winner take all in a congressional district allocation of those votes. john: yes. an imagined early on that we had a lot of districts and somehow the state was
a few days before that, which called the safe harbor date and that date is important for a couple of reasons. one congress passed a law a long time ago which lays out aspects of the counting of electoral votes . and it really strongly encourages the states to have their elections completed by six days before the electors vote. and the reason for that are one of the reasons is just to make sure they haven't places like doors by the 14th so that they're ready to vote. that's the date. there is some dispute about what than eight means . and if we go back to the year 2000 with art dispute in florida. a very close election we had, became significant. the court pointed to it.
that was with the gore case. and again in this case, basically said to the state of florida the counting and recounting the most and mr. deadline in any ways . that they still would be counting. in the states are really should be done by the eight. and none of florida had wanted to recap, there is no time left for them to count. so the drop dead date, think it's a very important date . really state to either elections completed by the eighth of december. so there ready to vote on the 14th. tara: you want to talk about the fact that when we got that state deadline and some of these other mechanisms that we use. john: and people the follow the
electoral college will know that we had a variety of elections of the years that we .2. frankly 1876 was our greatest election. without getting into all of the details, we had a very serious election counting crisis but we almost did not know the identity of the president until inauguration day. back then it was in march. but more even in congress and trying to sort out who the winner was. and the particular set of difficulties that your were related to that states having two different electrical appointments. i will say that this is a rare thing. and it really should never happened. but we had a couple of instances maybe 1876 when we had significant they had two
different ideas they one and therefore placing two different electors. for example sent to state governments. this was after the civil war. that posed a very difficult problem for congress. we can get to when they tell the votes later. they have a role in counting these votes when to this, it's not absolutely clear what to do. it sounds easy to discount but when you have two lists in front of you, when butting from one presidential candidate one for the other . what do you do. you have to figure out which is the right one. so they had great difficulties in doing that greatest of the electoral count was written but the reaction 1976 tried to layout the way in which we can avoid problems of this again in
one of the mess by sending this safe harbor deadline. other things as well so we've had some tough elections with the books and book actually covers tough elections rated msa in their which cover some of our 19th century elections with problems . wrote one of them in 2000. covers some of the answers to these questions. tara: 1876 was something else to say the least . i'm going to take us back to the meetings of the electors in december which was december 14th this year. starting with the basics, where to the electives go and how they vote . and what happens in the 50 states. plus dc party. john: i think you've already given away the most important point already. some people think of the
electoral college as one big place where all the electors show up together . and they vote. but the constitution lays out in the states are very important institutions in the system . and the to the state capitol. and they made as 51 separate groups . and there they have to balance. reportedly, the cast ballots for the president and vice president early on. but they cast two separate ballots. those ballots are sent onto the institutions in washington. they go on to congress and two other places which ensures that the heart of the states can off to washington. but assault on the day on december 14th.
and then there is some period of time before congress early comes into being in the new congress and cast them. the part of that especially in the days before the internet and getting making sure they had time to get the votes to washington. sisson afforded a . and it is fun that happens all across the country in various states. in getting those ballots to congress for the next step in the process. tara: so that i know that you know this is slightly more complicated russian but my question is, do electors have to vote for the winner of the popular vote in the state. john: yes it is complicated. you are right. sometimes people have heard the term the faceless select tour. refers to somebody votes in a way that was unexpected or
against what they really should do. so again, if an elect or was selected from new hampshire for joe biden and he won the state . maybe one of them would say, i'm not going to vote for joe biden like i am supposed to our lord vote for trump or a third person. and he wasn't on the ballot. in november but we have had that over the years. there different ways to count them. and mostly going to have a handful of people, the protest votes never change the outcome that way but it is something as possible to happen. the question you asked is a little trickier. are they allowed to do this. and how and why. any states not all find their electors they say, we want you
to vote the way the state told you to vote. so you're a donald trump collector, you should be voting for donald trump. clinton some states don't have a penalty for that. another stay in the past, and fines. whenever the third edition of the book, is really less like that. there was a mix, very minor penalties. or no penalty at all. there was one state north carolina, and the reason i that is because in recent years and this is important for the new edition of the book, we did have some changes in state laws and state have a number of them 60 or so have put in place stronger laws which really make it almost impossible for some of these electors to vote in the way you're not supposed to vote.
and that law basically said you selected it you go vote for somebody else, we will replace you and pull you out to do not elect her anymore and that was videos in place. and that person will perform the duties the proper way. it was a real question of whether that was constitutional or not. and these went all the way to the supreme court. and the court frankly, was all surprised by the decision but they did uphold the laws. and they said yes, the states may have these types of provisions so were left with the admission or mishmash of state laws. some don't have penalties. some are fine and then we have a group of 16 where i think it really would be almost
impossible according to the court decision for their about the other way. it had cases in 2016 was one of them, people's rally to change minds. read the third candidate. that is still possible in some states perhaps . but again some states will provide this. thus think that i will say is just from a practical standpoint, it's not that likely that these people will vote the wrong way because of how they were selected to. we talked about that in the beginning. they are selected is very loyal party people. so especially it would be throwing the election away from your own party seems very unlikely for somebody to do that but again it's possible in some places and not possible and others. it. tara: i think one thing to note about the 2016 electors as they were all on the losing side of the equation. if they had been voting for the winning person it's very
unlikely they would've change their votes. historically that's house that has been. in response to the 2016 election in particular, it states, has there been an influx in response to the 2016 election . had this wonderful appendix of the back of your book, is all these lists which states do in doubt by the electors. the third edition i found helpful. have you noticed, is not just a gradual change over time per unit or a specific response to 2016. it. john: it is a change over time but it was not really is response to 2016. it was really done before. there were formalized efforts that were following that law particularly. there is a process in the last ten plus years or so were number of state started to adopt these . there is a question of 26 team
because we had some of these laws try to be implemented for the first time. so there had been some changes. but predates 2016 but back to the 2000. extraordinarily rare. one from north carolina. that some form of this very strong method of replacing electors who don't vote the way they're supposed to. tara: will debated i guess in state legislatures. so you never really gotten this historical. i will code out there. 1960 in hawaii and what happened so the question has to do with what happened if election controversies are not resolved like when the time the electors meet. this year we don't have to have that debate but what happens when there's still an unresolved problem the meetings of the electors.
john: this is sometimes some but the thing we talked about. 1960 action john f. kennedy and richard nixon. it turns out the state of hawaii at this time, when the votes were cast in november but also by the time that the electors were casting their ballots in december, hawaii and finished all of its election counting or recounting processes. richard nixon was ahead of the initial count. in electors appointed that were in appendix and electors . in hawaii. and they voted that day as you would. there was some dispute because this election was perhaps going on at the recounting. in the democratic electors and
also decided to meet that day and cast the votes. they didn't have any official sanctions at that point and so now we've got two groups of electors. one yes and the other one notch . we have more counting. turns out the john f. kennedy wins hawaii. and so now the state governor ultimately sends a letter that says that these electors, the real ones of the jfk ones. and they voted already. so going to certify the flight . that's a very complex set of facts. a bit at one point is that we get to congress. sometimes they have to wrestle what if in front of it presented they have a slate of electors. this other slate with a letter from the governor this is no assistive.
ultimately, nixon was sitting in the chair when all of this talking is going on. and he said, i don't have a dispute with the fact that jfk on hawaii. it won't make a difference, will change the results . sort of set as long as you don't mind, which is quite account that as the son of electors. it seemed like a . honest message. it didn't undoing the election . but came up in this election as well. he raised the question can electors really vote after the date on december 14th. during this case, the voted that day but they want the real electors. there is more counting going on. i think the big answer probably is that we should not be doing any of this. nothing after the ones they vote, you should resolve the election by then.
but we opened up that little door. and the it became interesting this past election is there are several states where in some cases the donald trump electors who are the losing side pennsylvania on arizona where other people, electors on the ballots of the people supported donald trump sort of voting on the day of the electoral college on december 14th and sending in results. and sing the most part, we are waiting just like in hawaii that maybe some state legislature or the governor will say he won. that did not happen. and interestingly, the vice president mike pence was counting when presiding over the counting of the votes . interesting formulation which was different from the past.
they were going to read the votes of places who had certified the states. and not just this other group of people who say they're the electors they are. it is a complicated question. we've never gone down that road. i wish there was a much clearer line that you do need to resolve the election by december 14th party to think that would be the better practice. we have a little crack in the door from that president. tara: i had thought given that the constitution the state legislature in charge of the allocations of the presidential electors, raises a bit of a problem that so any of them are the session during this time. i'm wondering if maybe the state legislatures can fulfill the responsibility by making sure they always have an outlet to call themselves into the special session as needed. whether it makes things faster making sure things are taken care of or whatever it is . just
>> and you can imagine what if the presidential election is decided and the incumbent is thrown out by a big landslide in the incumbents party in congress is blown up by a landslide in the old system that party is still sitting there counting the votes here it really is supposed to be the new congress which is counting the votes in the election votes on november so it is that complicated to resolve that theory we would have a new congress with the new result decided.
what does that look like? is not that common but this is the big one to meet this way and ultimately it usually goes without much fanfare but the vice president is in the chair and each house appoints a couple of towers that are important committee chairs who democrats and republicans who read out loud the results that come from the states alphabetically. start with alabama and you say here we have the electors that we believe that are certified for donald trump and they could hear objections. here's where it gets tricky but but presumably they read it go through the alphabet you get a final count counted at the votes is the most official
president-elect you can argue when it comes into be but at that point congress has put its stamp on and we have a president there is the possibility of objections that electoral side to layout the process going forward but the basic point both a member of the house of representatives and a member of the senate don't have to agree to and objection for it to really be considered by the house and senate and if that happens the joint session would split the house as a body those two bodies would consider the objection should we count this set of electors are not? it's a tricky question what they would do over one or the
other but this is supposed to be a rare process after 1876 it was very rare for this to happen through 2000 and only happen once a there is any objection 1969 and something more of a technical issue related to the electors it wasn't a political issue and they had the good faith electors so starting 2000 we started to see more objections and of course this people most famously saw the horrible violence in the middle of that counting but in 2000 and number of democrats in the house objected to the results we didn't have a division of the bodies only once in 100
years had any objections and in 2004 slightly more serious warehouse members made objections on ohio the one state that divided george bush and john kerry and one senator went to the house and senate and they voted. they didn't vote over the electorate some people did vote to throw them out in 2015 some democrats making objections to the trump election no senator came along with it and then in 2020 just now significant numbers of people into states the number of house objections and large numbers in the house and one or two members of the senate supporting overthrowing these results although not enough to
change those results. it is a process you would probably be better off just realizing that congress really should adjust almost never be having discussions i should never say never maybe there are cases may be 69 the question about the electors what if we had two slates? may be in the extreme case but for the most part congress should be counting the electors as presented to them because the state made the decision so i will not say never but i will say it would be extremely rare and wise not to have objections in a regular way as we have been having or the big way in 2020 because it really is more about the states collecting based on their law.
>> we are in agreement the bar needs to be high before congress that counting should be narrow in my view. one historical view where did fit in that exception was 1872 do want to talk about that? they went to the whole process of the objection what they did was person within the meaning of the constitution. >> briefly one thing to note not that there wasn't a lot in place but the current law was not in place that didn't come until later so the quorum the way we have objections is slightly different but there is a question, and arguably i thank you are right in terms of the issue was more how the electors rather than the
states and the question of electors if you count them what was an issue and that's more of an issue more properly in congress his hands if you think about counting it is very simple but then the question of what if there is a problem with x? there are some legitimate areas where congress can get into this and we would try to circumscribe them for the most part. >> so now wrapping up with the next final phase with that contingent election but 538 electors that could be appointed so if you are than 538 can be appointed but generally what happens if nobody gets a majority?
>> the first question is a little difficult because for the most part today we do have all electors appointed in the early days we had cases where the state didn't get around to it or a couple of electors didn't show up so there was a question maybe the majority of a smaller number or if congress really does the row ballots they could throw out the slate that the state just didn't do this right and they didn't represent at all. that's controversial or they could drop the vote in that matters depending on how they do that and what the majority is if you just throughout the votes you may not get the majority but coming back to an
easier question is if no one gets the majority and that could be a tie that's another possibility to get the absolute majority 270 in the current system then as the election of the president goes to the house of representatives and the selection of the vice president would go to the senate the thing that is different in this case the house doesn't vote in the normal way. the house votes by state delegation and electoral college is connected to all of the other decisions with the legislature and representative states with the population. they made an interesting
compromise the house will vote. the state would vote the republicans would be one vote for donald trump and other state to do the same. the trick is you need 26 states not just the majority of those voting you have some delegations that are split some may have two representatives so you have to get 26 votes interestingly republicans are right around the barrier last time if he had gone into that election somehow if they would have stuck with him maybe they would have elected him that way. the senate looks like more majority votes in the vice president some reason they cannot get to the 26 then there is the vice president
may be the senate is in different hands and you would have ended up with president biden and vice president mike pence or may be president mike pence if he cannot be elected by the house. so there are some oddities we have not seen this in and extremely long time often it doesn't come about thankfully and one other thing to note that is important is sometimes people get confused the difference between the election that congress just cannot resolve and an election were nobody has a majority one were congress cannot resolve until the very end that you mean there was no majority but they were stuck and worst-case
scenario maybe they cannot take president at all until inauguration day and then the presidential succession act would come in under current laws the other scenario is somehow you do get to a final count but nobody has a majority it's a tie nobody gets 270 but the deadlocked election does not lead to that contingent election in the house. >> that's a good point think of the election of 1800 that took 36 ballots before they decided jefferson would be the winner tied with aaron burr who didn't have the good grace to bow out like he should have. there are rules that govern that contingent election not just voting in state delegation but quorum if you count majority or a plurality
of the distance between the 18 oh one and 1825 rule and what would happen to those rules if we had to do this in four years? >> the big 12.2 is just a question of what happens to a state that doesn't have the majority of their people electing someone. having a state that has a tie in their delegation will not count toward the winner but to keep someone from getting the majority. it does raise the possibility you cannot pick someone sometimes people think just
pick someone but a lot of the times we might not have a majority of state delegations. that's the bigger point. >> you alluded to it before but talk about the presidential succession if the house cannot come to a decision and throw in why the speaker occurred turned down the opportunity to be acting president. >> we have various presidential succession acts over the years and it applies in a lot of different circumstances the most obvious if the president dies or the vice president then you go to the next in line of succession but also with the impeachment or resignation, disability or if no one is selected president you get to january 20th the
office is vacant because congress can't decide and in 1876 this is an almost happened we came very very close not having a resolution. the current law the speaker becomes president of the united states some think we should have laws may be unconstitutional but to answer your direct question, if the speaker were to take over as president , would be president for four years but perhaps congress could resolve the election later so that is the tricky part. the speaker would have to leave congress and leave the position of speaker because you cannot serve in the legislative and executive branch at the same time incurred not go back on your own.
so the speaker might look at this and say we are still arguing about this in congress maybe it will be resolved next week and am i gonna show up for one week and then be out of a job? there are some problems having the speaker in the line of succession in the set of circumstances also the president pro tem has the same sort of issues but any other set of issues is the cabinet and we might just be left with the old cabinet the past presidents those people who don't have to resign and if they do think it would be very messy. put it that way obviously we've always been able to resolve so i think the chaos of that situation would be
very bad for us. >> i know they don't take sides on the electoral college but you have some essays from pro- electoral college and the others were not that side and the arguments they present? >> there is an older essay by mark diamond the political system of institutions and we have shortened that made an excerpt and then walter burns the founder of this book and wrote the first two books of this. and then another set of law professors have wrote an essay.
that's a lot to say about difference of opinion. another essay i want to point to in the book is that there's been a very comprehensive piece written about the electoral college and i bring that up because in recent have history the majority of people would say to start all over again maybe we go to the national popular vote but at various times in different ways never been a super majority to change so it leaves some arguments but also gives evidence and also the reasons sometimes have changed over the years and those circumstances are in a different direction and the public opinion side does show
there is a big polarization of the views with democrats being much more again stand republicans for it slightly changed after this election but generally speaking that's been the divide in more recent years. >> just a few minutes left the last topic is the national popular vote in the interstate compact can you talk about what that is and what's going on with it? >> and the central section of the book is a series of questions about the electoral college we update with numbers and new analysis but we did add some questions this time to talk about how you can change the electoral college and what is the new popular
vote those that wanted to move to a national popular vote was to say we should amend the constitution because not all these mechanisms are in the constitution but the core of things the way the electors vote is in the constitution. it's a very high hurdle to change that so two thirds of the state legislatures have efforts but it's very hard to do with an overwhelming consensus there is a new method that has picked up in last ten or 12 years meant to move to the national popular vote but in the indirect way that preserves institution of the electoral college any insight is state legislatures have the ability to say how those electors are appointed
these advocates are trying to persuade the legislature to write laws that say we will give our votes come our electoral votes not to the winner of our state of california that the national popular vote. so to use this example is of the national popular vote lost in california that they would actually vote for donald trump instead of joe biden who won the state. now in addition to that to say when this would take effect it would be an effective way to move to a national popular vote if you have states adding up at 270 electoral votes all agree to this. that way no matter what happens the states would
always vote for the popular vote winner and you have the electoral vote college but the president always be the popular vote winner and other aspect is a compact the advocates worry what if estate backs out they agreed to be in this so there is some questions how that would work and that's constitutional or what way that has to be done to be constitutional so there are some secondary issues. it has progressed fairly far close to 200 electoral votes have passed this primarily expand democratically oriented there have been a couple of states in recent years and democrats that decided not to go that way that was a bit of a surprise but the simple point is it is easier to change this way it's a halfway
house but if you needed to get at the 270 you have to have some slightly purple states adopt this but it is made headway much more than other reforms and probably the chief reform avenue for those that want to change the electoral college. >> full disclosure for anybody watching i testified against the national popular vote my physician is pretty well-known that your position is neutral so please tell me the arguments on either side of this from those who say it is constitutional and those who say it is not without initiative for the national popular vote. >> there are arguments that are policy arguments policy i'm not if in favor of it i'm not opposed to it that constitutional question i think there are some arguments on both sides that i will lay out. i do think the advocates do
get the core principle who are the ultimate people or institutions that decide how the electors are selected that is the state legislature because back in the day they would do so directly but also because it's for people who pass the laws that are in place for those who use to vote so they could do different things have districts, elect directly into a number of things. so from that perspective they would say we would use our power to go in a different direction is a strong insight son will argue looks funny the state legislatures are using a standard outside their stay in have nothing to do is just the other states.
that maybe we should expect them to reflect their state. and there are some practical questions that they try to resolve these things but how would you have a recount? they are only done at the state level they vote differently if you have a very close election you can enforce all the states to have recounts because it's something of a halfway house does pose a practical difficulty for states wanting to pull out of this. and then for state to appoint someone who is very different for those to be elected at their own state.
>> for sure there's definitely a new problems we are running up against the clock i want to say i'm so glad you put out this fourth edition i encourage everyone to go find it and read it the appendices are wonderful to provide great information about what is going on in the states it was so fun to talk with you today and i look forward to working with you again soon. >> thank you
. >> and i talk about those different aspects of launch just first about getting in your suit how complicated that is the process of being strapped into the space shuttle is not exactly like getting in your car and putting on a seatbelt and then all of the noise and the views and the sounds and what it felt like an just the experience of launch i had done a lot as a fighter pilot and test pilot i knew what i was getting into launching on
endeavor was unlike anything i've ever done so that launch chapter was pretty cool i like that part of the story. and another part of life in space you would expect would be spacewalking. getting in the suit that is three or 400-pound behemoth it takes hours to get into. astronauts decrease pressure they have to worry about the same problem as scuba divers to get the bends when you change pressure if you do it too quickly so and hollywood you throw on your suit and go outside and fight the aliens but in real space the whole process takes hours it is a long ordeal. and then i talk about what it's really like to be outside in the big bulky suit you have a plastic visor in front of you and on the other side is instant death. the threat level to be outside
on a space walk is a little higher than others. the views i felt i was seeing creation like humans are not supposed to see this and then i would have to get back to work. >> we are really lucky today to have three guess who will be outstanding to help us understand what is going on in our political discourse today steve, anthony scary which he and cynthia tucker obviously we are coming to you by zoom today i find it interesting to think in 19 oh three when the commonwealth club started the use of microphones was not even in our technological world and today we are presenting the commonwea