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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. We can say pretty confidently, at this point, that President Trump's lies about massive voter fraud, costing him the election won't succeed in flipping the result, but let's take a step back, because they may have longer-term consequences for how easy or hard it is to vote in the future.

Republicans in some swing states want to reshape election laws and make it harder to vote early or vote by mail as a result of the president's claims. What a shocker it has been to many people to learn that state legislatures could override the will of the people and appoint their own electors instead, and that Congress could theoretically do so, too.

As you know, some Republican members will try to have that happen on January 6th, though it's not going to happen. Let's talk to two guests about some of the voting procedures that were used more this year because of the pandemic and what the lessons of this year might be for more normal times. With me for this, our University of Southern California law professor, Franita Tolson, an election law expert who has a forthcoming book called In Congress We Trust?: Enforcing Voting Rights from the Founding to the Jim Crow Era, and Benjamin Ginsberg, described by The Washington Post as a Republican super lawyer.

He practiced election law for 38 years, and co-chaired the bipartisan 2013 presidential commission on election administration. Among many other things, he has a Washington Post op ed last month about the baseless claims of massive voter fraud and voter suppression efforts that are real, called "My party is destroying itself on the altar of Trump." Franita Tolson, welcome back. Benjamin Ginsberg, welcome to WNYC.

Franita Tolson: Thank you very much.

Benjamin Ginsberg: Thank you.

Franita: I'm glad to be here.

Brian: Benjamin Ginsberg, you write about your experience since 1984, working with Republican poll watchers, observers and lawyers to record and litigate fraud in any other irregularities. For people who haven't heard you talk about this before, how does your 36 years of experience inform whatever happened this year?

Benjamin: I did spend a lot of time both being in polling places and helping out with the nationwide elections day operations. Part of that is the very important validation of the elections component that, in fact, you want representatives of both parties in polling places to catch any irregularities that occur to stop any fraud if they ever see it.

The presence of both Republicans and Democrats and other observers in the polling places is really important. I did that for 38 years. The truth of the matter is that, while there are occasional incidents of isolated fraud, there is certainly no systemic crime that the president claimed was there to make our election results rigged and that talk about our elections not being reliable based on no evidence that had been compiled over the last 40 years was really an unacceptable salt on a basic principle of democracy and our form of government.

Brian: Let's go down the list of some of the major components of how people voted this year, and then we'll also get into the power of the state legislatures and Congress have over the electoral votes and get your takes on them. Franita Tolson, mail-in voting massively expanded, as we all know, because of the pandemic, and also the basis of various failed Trump lawsuits that say nobody really knows the true result because absentee ballots are not vetted as well for legitimacy as in-person voting.

For better or worse, how do you see election primarily by mail? I think seven states already had all mail and systems before the pandemic. To what degree do you think they should become more common or less common in the future?

Franita: I do think it's common. First, let's start there, because I think a lot of the rhetoric that we've encountered over the past election cycle has given the impression that voting by mail is not common and that I'm as problematic, but it's been with us since the Civil War. It really is a long-standing practice that we've had in our system of elections, and the pandemic has forced us to expand it. I anticipate that it's not going away. People realize that voting by mail is something that they can do fairly easily. As you, as we saw from the turnout this year, it had a huge impact. North of 150 million people participated in this year's election.

Let's be clear. It has become this partisan issue, in a way, that wasn't true before. Even though it is something that we've had for a long time, I think most people didn't view it with the partisan lens that the president has now placed upon it. What you'll see in some spaces, efforts by Republican legislatures in particular to roll back, no excuse absentee voting, for example, which is something that they've viewed in part because of the president's rhetoric as something that hurt them.

Whereas in prior years, Republican voters were some of the voters who use vote by mail the most. In coming years, it'll probably be more common in some places, but in others, they will become this very partisan issue that it essentially became this past election cycle.

Brian: Ben Ginsberg, same question for you with your experience as a Republican election lawyer, if it were not for the events of this year and the particular perversions, if I'd call him that of Donald Trump, do you think you'd be out there saying, "This mail-in ballot, let's not have too much of it?"

Benjamin: The 2013 bipartisan commission that you mentioned that I was on embraced the idea of vote by mail, and it was accepted with bipartisan support largely because historically Republicans have done quite well in vote by mail. In fact, in 2020, you heard the president's rhetoric, but beneath that you had a number of state Republican Party entities embracing vote by mail in and urging people to vote by mail.

I think Franita is absolutely right that there will be some states that will try and restrict vote by mail now, but overall the Republican Party has always done well in vote by mail. In fact, I think the toothpaste is out of the tube in terms of it becoming a widely accepted practice. Republicans in the states with their ground games will, I think, end up embracing that in more states than not.

Brian: Do you think, Benjamin Ginsberg, that the whole controversy that was ginned up over absentee ballots was really just secondary to the polarization around the pandemic so that it was because Democrats were more fearful of getting the virus than Republicans were, largely as a result of the president downplaying it, that Democrats were known from the beginning to be more likely to vote by absentee ballot, and therefore Trump went out to discredit them. Is it all just secondary to the polarization around the pandemic?

Benjamin: I think there's polarization around the pandemic, to be sure, but I'm not sure I agree with that. I think Republicans were perfectly willing to embrace vote by mail as they have until the president's rhetoric got in the way. In his rhetoric in 2020, there were echoes of that in 2016 when he was talking about fraud in the elections. I think that part of what got messed up this time was the president's failure to make a distinction between two types of absentee voting programs in states.

There were a few states that sent out live ballots to every registered voter, and that is an actual legitimate cause for concern about fraudulent ballots. Most states, including the target presidential states that we're talking about, all required voters to fill in an application, return the application, verification procedures were part of that application, ballots within mailed out to the voters, and it was that application and then live ballot programs that I think were basically unobjectionable, but that got all messed up into one rhetorical barrage.

Brian: It's true, at first, that was the distinction that Trump was making most clearly in his rhetoric, the states like New Jersey, for example, that would just mail out ballots to all registered voters, as opposed to mailing out absentee ballot applications to all registered voters or making them apply proactively. Franita Tolson, do you agree that that might be something that's curved in the future, this idea of mailing ballots directly to every registered voter is something that has the potential for fraud?

Franita: I resist any characterization that center's fraud is the focus of our election system. Because, to me, it's like, for example, Brian, is the police spend all of their resources on carjack, and even though there are a number of crimes that occur more frequently than carjackings, right? Why would you build a system of enforcement around carjackings? Our elections should work the same way. If mail-in ballot to voters make it easier for people to vote, and states have safeguards in place to make sure that the people using the ballots are actually who they say they are, what is wrong with mail-in ballots to people?

As we saw from the way that this election unfolded, in part because of Trump's rhetoric, states were pretty transparent about how they conducted their elections, how they sent ballots to people, how they counted the ballots both on and after Election Day. Part of that transparency was because of Trump's rhetoric, but honestly, the transparency is not a bad thing because, if anything, it should restore our faith in the system. Because states have procedures in place to verify that people are who they say they are, what is wrong with mail-in ballots to people and making sure they vote.

It seems odd to me that we're so focused on fraud and the possibility of fraud, even though fraud rarely occurs, that we've built our entire election system around it. I'm not saying that states shouldn't be vigilant, that states shouldn't have measures in place to try to prevent fraud, but they do. Yet, we continually focus on fraud. It's our the most important thing in our system when that honestly should be making sure that people can vote.

Brian: Listeners, if you're just joining us, we're talking to long-time Republican election lawyer, Benjamin Ginsberg, and University of Southern California election law expert, Franita Tolson, about the big structural building blocks of this year's election year and the lessons to be learned from them for the future. We can take your comments or your questions for them at 646-435-7280, 646-435-7280, or tweet a comment or a question at @BrianLehrer.

Franita Tolson, another whole category is early voting. This has been expanding nationwide state by state, so it's not just Election Day anymore, but election season. Why is this a good thing? If people can vote before the televised presidential election debates, for example, as was the case this year?

Franita: To some extent, the polarization works both ways. Polarization is not necessarily a good thing, but it does have the effect of a large portion of people have already made up their mind. There's very little evidence that presidential debates actually moved the needle much. I do think that it is a policy that makes sense in that, as I mentioned prior, it's important for people to have opportunity to vote, especially since Election Day is not a holiday in this country.

As a result, a lot of people have to go to work. They have other childcare responsibilities, a bunch of everyday normal things that interfere with your ability to go to the polls on Election Day. Why shouldn't states make it easier for individuals in that situation to cast a ballot? It's part of our obligations as citizens, and so states should facilitate that.

Brian: Benjamin Ginsberg, same question.

Benjamin: I agree that the convenience of the voter should be the hallmark of voting in the country. I think early voting is one of those phenomenons, it's here to stay. The debate commission as a guidepost is, I think, the wrong standard to use. The debate commission, for reasons completely infathomable, has never changed really the schedule of its debates. There's nothing to stop the debate commission from holding a debate earlier in September before early voting starts.

The onus is on the debate commission rather than the states on when they start early voting. The glues cycle for 2020, I don't think there were really controversies over early voting. Controversies tended to be more about whether you could extend Election Day for the receipts of absentee ballots postmarked on Election Day, but received after, and the trade-off with that convenience of the voter versus the drama that occurred in the litigation in a number of those states that did allow ballots to be received after Election Day.

Brian: This seems to me, Benjamin Ginsberg, like just playing around the edges. I know Trump made a big deal of that in the press, but when they took that to the courts, it was such a tiny minority of the votes in Pennsylvania, which allowed the ballots to be received just three days after Election Day, as long as it was postmarked on Election Day. Why shouldn't it be just postmarked on Election Day?

Again, it's not going to be that many ballots, but it would seem a fair standard as long as the post office is actually putting postmarks on these envelopes, postmarked by Election Day, and then some reasonable period of time. Pennsylvania had 3 days, I think some states had up to 10 days or even 2 weeks. Why would postmark by Election Day, just that simple fact, not eliminate any controversy?

Benjamin: Because it does foster controversy when the results drag out. It seems to me the fair trade-off would be expanding early voting days and having the deadline for receipt on Election Day. The real-life examples of why it creates confusion and trauma really occurred in New York State, where you are, and you could see it in the primaries with how long and how contentious the close elections were. You still got two congressional races that were so extremely close, but they couldn't start counting the ballots so far after the election that there'll be two unrepresented districts.

California doesn't get its results done until early December. Imagine if either New York or California had been outcome determinative states in this presidential election.

Brian: Fair point. Franita Tolson, it is true that here in New York where I am, they weren't even allowed to start counting the absentee ballots, if I have this right, until a week after Election Day. It did take a long time for the closest races to be determined.

Franita: Yes, so that's just a pain for a lack of better description, and it makes no sense. We had a similar situation in Pennsylvania where they could have started counting earlier, but the state legislature would not allow them to. At the end of the day, what it does, as Ben mentions, it prolongs the process in a way that's unnecessary. I do think it's important for states to make those types of trade-offs.

I agree with Ben, if we have more early vote in, and I don't see anything wrong will require ballots to be postmarked by Election Day, but we also have to remember though, a lot of these states, state officials in particular, are making these trade-offs through the lands of partisan politics. This is why I keep emphasizing it, that it has to be about the voter, because then it becomes easier to have that conversation. Part of the reason why the Pennsylvania legislature, for example, didn't allow them to start counting prior to Election Day is because of the president's rhetoric.

To some extent, that helped cast some confusion and doubt about the election because of the controversy over ballots received after Election Day. I do think we have to get away from an election system where you have the fox's garden and hen house, and maybe this is a plea for non-partisan election administration, where we can have these common sense rules that make sense in our system. We can't have the conversation about the types of trade-offs that being mentioned.

Brian: You've written, Franita Tolson, with concern, about attempts to enact more stringent witness requirements for absentee ballots. I know, in New York, where I voted absentee, I didn't need a witness to verify that I was signing my ballot. What states have that and what does it do?

Franita: I know that South Carolina, for example, had a witness requirement for their absentee ballots, which in a pandemic makes absolutely no sense, and not only does it not make any sense, it's not like-- South Carolina had a fairly competitive, at least people thought it was competitive prior to Election Day, Senate race, but it actually turned out not to be very competitive on Election Day.

You do have to wonder if the litigation over the witness requirements there is because of the sense that you-- Now this race is competitive, when in fact in our system competition is what you want to see. That means that voters are conflicted, and we're having conversations about democracy and who best represents our democracy in a way that we don't have when you have a safe incumbent. When you have a witness requirement in the middle of a panic, how do you socially distance and find two witnesses when you're supposed to be at home? At the end of the day, a lot of this is about short-term partisan gain. I do think, since we're coming out of this presidential election cycle, now is the time to continue to conversation about what we want our system to look like.

I don't mean conversation in the sense of, okay, George is competitive now, and so that means that we tightened the absentee ballot rules. That's not the conversation I want to have. I want to have a conversation about, what did we learn from this pandemic? What works, what doesn't work, what do we keep in order to make voting easier for people?

Brian: Let's talk about how the votes in a presidential election can be discarded by state legislatures or by Congress, each of which could, at least in theory, throw out the popular vote if they claim a reason to do so and appoint their own electors. This is a new revelation and shocking to so many Americans. Is it really, Benjamin Ginsberg, only the personal commitment to the will of the people by these lawmakers as individuals that stands between democracy and just sheer partisan power choosing the president?

Benjamin: I think it's more nuanced than that. I think a fair reading of the constitution is that it does delegate the power to the state legislatures, but every state legislature in the country has passed a law that says its electors will be chosen according to the popular vote in the presidential contest. I think that any state legislature that tried to do with President Trump suggested would be soundly thumped in a court.

The more difficult situation is, suppose there really is a problem, and this is something that exists only on the presidential level, but suppose there is a problem with tabulating the vote. Each state has certification deadline by which the vote has to be compiled, but if instances of fraud were found or voting machines broke down, or it was like the two congressional races in New York that were so close, or almost what happened in Florida in 2000, and the state was unable to certify its results.

Then there would be no slate of electors from that particular state, and it's in that situation, but only that situation, that I think legislatures would have a case to be able to step in and name its slate of electors. I think the legal framework is actually in place that would have stopped under any circumstances, the president's fantasy from taking place, and in fact, that's what all the Republican state legislators told them.

Brian: Franita Tolson, any different take on this?

Franita: No, I think Ben's right. I will say that I think it's also a nuance with respect to Congress, too. Congress, when they-- The constitution says, and the votes shall be counted. Congress's role is actually quite narrow in terms of its counting of electoral votes, which happens on January 6th, I guess in a couple of weeks, so it's not that Congress can disregard slate in contravention of the will of the people.

It's more so that in the process, if there's a dispute oversleep, for example, for states and competing slates of electors, there's a role for Congress to decide which slate is the appropriate state slate. The Electoral Count Act lays out a process for doing so. Even in that circumstance, it's not that Congress can just step in and disregard the will of the people or that Congress can override a slate of electors that has the appropriate- it's been signed by the governor, it's reflective of the popular vote in the state. Congress's role is more passive in a sense than active as in Congress stepping in and just doing what it wants to do.

Brian: Why isn't that still just a matter of definition by the politicians who happened to be serving in Congress at the moment.? If the standard that you laid out is Congress only has a role when there's a disputed electoral vote result, while Trump is saying there is a disputed electoral vote result, because for these various claims that we've been discussing earlier in the segment, he says, you can't know who really won in these states because they didn't affect the mail-in ballots well enough.

If the individuals, on the Republican side of the aisle, were even more partisan than they are, they could say, "Yes, it's disputed. Looks to me like there was probably fraud, so we're going to seat our electors." What stops them from doing it?

Franita: The Electoral Count Act, to some extent, would make it very difficult for them to do so. Even if you have a Republican member of the House and a Republican Senator who's willing to back to the president's claims of fraud, both houses would have to agree. For example, there were some Trump electors who met on December 14th, which was the meeting of the day of the electors, and they supposedly voted and sent their slate in to the vice president, that is a circumstance in which you could conceivably see two competing slates, not really.

Brian, let's be clear, it's not really. We're just type talking hypothetically, the Trump slates from the dispute is states. They were not signed by the governor. They are not official. They have none of- anything that was suggested it is backed by state authority. It's important to understand it, but let's say that you have members of Congress who are willing to back the competed slate of the Electoral Count Act still requires both houses to agree which slate is the right slate.

Right now the Congress is, on the House side, is held by the Democrats, and that will also be true on January 6th. Even then there's a mechanism in the Electoral Count Act where, if the Houses can't agree, the governor of the state would decide which slate is the right slate. As we've mentioned, the governors have signed off on their slaves, so there's really no mechanism here for Trump to win.

Brian: No, not this year. Though, we always have to ask the question, I think, in any partisan conversation, what if the shoe was on the other foot? How would you on either side feel about that? In this case, we have to ask, at least the hypothetical, what if Congress, if the House was controlled by the Republicans this year and they had the theoretical power not to have that Senate versus House gridlock on this? For the moment that is at least hypothetical.

We have a few more minutes with University of Southern California election law professor, Franita Tolson, and long-time Republican election lawyer, Benjamin Ginsberg. I want to get each of your tape, before we run out of time on, whether you think we should abolish the Electoral College, and if so, replace it with what, simply a national popular vote or something else. Benjamin Ginsberg, do you have an opinion?

Benjamin: I don't think we should. I think the political will will not be there to do it, given the results of the 2020 election where Republicans did quite well down ballot. I think it does not have a realistic chance of passing, but the Electoral College is a compromise and has historically been the rules of the game. The grounds for that compromise were between more rural areas and more urban areas.

The nature of the Electoral College means that candidates need to go talk to both urban and rural parts of the states that are contested, a national popular vote would very much change the nature of campaigning so the much more time would be spent in highly populated areas, thereby leaving a large portion of the country ignored by the presidential candidates.

I think probably the most important reason to not amend the Electoral College is that it has been a movement that is a one-sided political movement, and to abolish the Electoral College now would be a politically outcome determinative. We want to change the way that the presidential elections are done so our team will win more. That's always the wrong reason to amend a provision of the Constitution.

Brian: Franita Tolson, your take?

Franita: I'm not sure. I agree that would be in about the question of political will. It's the political will there to change it, in part because when you come out of an election in which-- We elected a president despite his rhetoric, despite the losses, despite all of that, we elected a president. Right there, that makes it very difficult to change anything because it convinces people that the system is working, even if it's really not working. I agree about political will, but I'm not really in favor of the Electoral College.

I think that it was a compromised with slave owners who wanted to get the benefit of their property in political power wide, treating humans as property and not allowing them to vote and recognizing their humanity yet, they wanted to it to translate it's a political power at the national stage, and so the question is, do we want to continue to be governed by that type of compromise? Because, today, the way it works is that you have small states that get an outsized amount of power and attention relative to their population, and they already have influence in the Senate, which every state gets two senators, and so the question is, for a person who was supposed to represent the body politic nationally, the President as a nationally- as a person, is an office that represents every American, shouldn't every American have equal say in who that person is?

I'm not sure about, for example, the National Popular Vote Compact, I think it has some issues and other proposals on the table, but I do think we need to have the conversation about who we want to be as a democracy, and we want our system of elections to look like, in a way that's different from the Electoral College, because we are not the same country we were 250 years ago.

Brian: All right. There's the conversation, folks, about some of the structural building blocks of this year's election that were controversial from one side or another. We thank Franita Tolson, University of Southern California election law expert, and Benjamin Ginsburg, longtime republican election lawyer. Thank you both so much.

Franita: Thank you.

Benjamin: Thank you.

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