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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. We start today even deeper into uncharted territory in the wilds of trying to nullify the election results than we were yesterday. As the Washington Post reports it this morning, President Trump is using the power of his office to try to reverse the results of the election, orchestrating a far-reaching pressure Campaign to persuade republican officials in Michigan, Georgia, and elsewhere to overturn the will of voters in what critics decried yesterday as an unprecedented subversion of democracy.

For example, reports the Post, he has invited leaders of Michigan's Republican-controlled state senate and house to the White House today, ahead of next Monday state canvassing board meeting to certify results. This despite Biden winning Michigan by a margin of 157,000 votes, with no specific allegations of widespread fraud to come anywhere close to closing that gap. Now, listeners, you've heard about Rudy Giuliani by now probably or maybe you saw him in the news conference on behalf of President Trump yesterday making wild claims about a nationwide Democratic Party conspiracy with connections to vote rigging in Venezuela.

Like something from the movie My Cousin Vinny, he said, to pad the results in swing-state cities, but he offered no evidence. Since there was no evidence we will not dignify it with a soundbite just to have you gawk at his language so you don't get to hate-laugh at Rudy Giuliani here. Also, not laughing is Christopher Krebs, who President Trump fired on Tuesday from his department of homelan4d security job, overseeing election security. Krebs said of Giuliani's event, "That press conference was the most dangerous hour and 45 minutes of television in American history."

As NPR reports it, the Trump Campaign has made no secret that it hopes to achieve a far-fetched scenario delay, and challenge the results enough in the hopes of getting GOP controlled state legislatures to override the popular vote totals and appoint the electors instead. We will try to get the best answer we can now to the question, could state legislators do that even if they want to? With us for this is Robert Alexander, political science professor at Ohio Northern University, whose Twitter handle describes him as a frustrated centrist and author of the book released last year Representation and the Electoral College. Professor Alexander, thanks so much for coming on. Welcome to WNYC.

Robert Alexander: Thanks for having me, Brian.

Brian: Can we start with Michigan, just north of you since those republican legislative leaders have already gone so far as to accept this invitation to the White House today to be asked to nullify the election results. What's supposed to happen in Michigan on Monday? What even is a state canvassing board? Explain that to our listeners, and how much power does the legislature have to nullify whatever it does?

Robert: Well, the last few days have been a true roller coaster for those following the events in Michigan, with the local Wayne County, tried to not certify votes, and the arguments over Zoom there, pretty crazy times. On Monday, the State Board of Canvassers is supposed to meet and certify the votes across the counties in the state of Michigan. Ultimately, however, and this is going to be true across all states, its state executive officials, the governors are the ones that sign off on all certificates of ascertainment for electoral votes across the country.

The Electoral Count Act, dusting that off from 1887 is going to prescribe it in the case of any disputed votes that Congress will lean on executive officials in particular governors. Given that Gretchen Whitmer, that woman from Michigan Democrat [crosstalk] as he calls her, that she has and her Secretary of State Jocelyn Benson has shown fully that they intend to certify Biden's Electoral College members. I don't anticipate too much trouble there. The interesting thing, of course, is that these entreaties by President Trump to try and entice state legislators to at least hear him out and not only state legislators but governors as well he's adding people on Twitter, Governor Brian Kemp there do something.

It's a big contrast from 2016, just point this out that in that case, you had some Republican electors, as well as a number of democratic electors that were requesting to have a meeting with Barack Obama's Director of National Intelligence prior to their electoral college vote because they were concerned about Russian interference in 2016, the Obama administration denied that meeting. Here four years later, we have a situation where the President of United States is actively inviting interference, or he's interfering in the duties that are going on.

Brian: Well, let's stay on Michigan for a minute, then we'll get to Governor Brian Kemp in Georgia and the pressure that Trump is putting on him and what Kemp could or could not actually do, but one of the Michigan legislative leaders going to the White House today is senate majority leader that state senate majority leader, Mike Shirkey. Last week, a spokesperson for Shirkey said Michigan law does not include a provision for the legislature to directly select electors, or to award electors to anyone other than the person who received the most votes. That's a direct quote, that would seem to say case closed. Then why is senator Shirkey meeting with the President today?

Robert: Well, I think that the trappings of the office, the trappings of perhaps hanging out with President Trump and going to the White House might be an awful lot for a state legislator, certainly in Michigan. The point is very clear that state legislatures, the constitution does allow them to have the right to direct the appointment of electors and all-state legislatures, including Michigan, have already done that. They did that prior to the election.

They said that that would be through a popular vote. I think getting the ear of the president and having the opportunity to have that conversation, maybe is too much. He just didn't want to set it aside. It certainly invites additional drama, where most would suggest that there should be no drama, given the fact that the margin of victory in Michigan is pretty substantial. It's well over 2% right now, which was much, much more than what we saw four years ago.

Brian: That 2% is 157,000 votes at last count. The President and Giuliani and anyone else interested would have to find that much voter fraud in order to legitimately nullify the election. I am still concerned about whether they might just change the perception enough, and the politics for the state legislators that they would do it anyway because as I'm looking to parse Shirkey statement, the one that I just quoted from last week, I wonder if it leaves him an out, because it said, "Michigan law does not include a provision for the legislature to directly select electors or toward electors to anyone other than the person who received the most votes."

The whole Giuliani state show yesterday was designed to give political cover even without evidence to legislators who want to say there is doubt, there is uncertainty about who won the most votes in my State, we can't really say with certainty because there's the possibility of electoral fraud, that even though we can't prove it, we can't disprove it, therefore, we don't know, therefore, the legislature gets it. Is there anything in the law that would stop them from doing that on that basis?

Robert: Well, I think politically, I think that's the bigger issue is, they could appoint their own electors if they so chose. They could submit those to Congress. I think politically, that part that you said, "Without evidence," and that's huge, that's really important piece to say there is that if you have no evidence to suggest that the Joe Biden did not win the popular vote in the state of Michigan, then those state legislators are on the hook for that. You have to produce something that would suggest that. I think much of what we're seeing right now--

Brian: If they try to do it, then the Democrats would go to court and that's where we would be. Since your book is about the Electoral College, what if they were still in court on December 14, the day the Electoral College electors are supposed to vote?

Robert: Well, they're supposed to have all disputes settled by December 8th. Many of your listeners might be hearing about the safe harbor deadline, and that's what that safe harbor deadline is, is to resolve all disputes, so that the electors are indeed selected. Now, what's interesting is on December 14th, which is the day that the electors meet, we had a situation in 1960 in Hawaii where Republican electors and Democrat electors both met, they both cast votes, they both sent them forward to be counted in Congress because the election was so close in Hawaii.

The recount ultimately determined that John F. Kennedy did win the state and Richard Nixon and the joint session of Congress when they opened up the two sets of electoral slates said, "I moved to not count those Republican electoral votes in Hawaii." We could see a situation like that. If it were to go all the way to that joint session of Congress in January 6th. Again, hopefully, that drama would be avoided and we'll know that relatively quickly.

Brain: Listeners your questions. Welcome here for electoral college expert, Robert Alexander 646-435-7280, 646-435-7280 author of the book Representation In The Electoral College, or you can tweet a question @BrianLehrer. Georgia, the Washington Post story today says after the recount their reaffirmed Biden had won that state's popular vote that came last night, the official recount. I don't know if certification is the right word, but the announcement of the recount, it reaffirmed that Biden had won that state's popular vote.

It's supposed to be certified today. That certification would then go to Republican governor Brian Kemp for his signature, but the Post says Trump has for the past several days been publicly badgering Kemp to intervene in the recount to reject ballots and flip the results. Now, Biden won that state by more than 12,000 votes, according to the count, but Trump actually tweeted at Kemp yesterday, "Republicans must get tough." My question for you, Professor Alexander is what does governor Kemp have the power to do and what does he not?

Robert: Well, I suppose he could refuse to certify or he could refuse to sign off when the electoral votes are being cast. His secretary of state has given every indication that he is going to certify those results and in fact, has pushed back on Republican attempts to, I guess in Trump's term get tough, as we saw in calling out Lindsay Graham. Again, politically, there's not much will to go against the, I don't know, the popular vote in the state.

I think that would be truly problematic, especially in the sense that they're in this runoff election there in Georgia for two Senate seats. I think that if anything were to spur Democrats to get to the polls, it would be something extraordinary like Kemp interfering with his own secretary of state who has essentially said this was fair and square and Biden won. I think the politics of that would be the thing that would prevent Kemp from interfering more than anything.

Brain: That's an interesting political analysis because some people say the politics of it are with these two Georgia US Senate runoffs coming and such high stakes elections, those are to determine which party controls the US Senate, that the Republicans have incentive to hang together and stay tough and motivate their base. You're saying the politics of backlash to something as extreme as Kemp nullifying the popular vote might inflame Democrats and maybe some moderates that it would impair those Republican senators.

The Giuliani news conference yesterday alleging widespread conspiracies to place fraudulent votes in swing State cities, and that voting machines by a company called Dominion are pre-programmed to help Biden win like they did for Hugo Chavez in Venezuela. He said, of course, again, they didn't present any evidence of any of this. If they have evidence, we're going to talk about it and we're going to parse the evidence and we're going to look at the strength of these pieces of evidence and the disputes over those pieces of evidence. They didn't present any evidence though. Do you know what venue they have left to present any such evidence and they've lost almost 30 post-election lawsuits?

Robert: I do not, but one thing that I think is undergirding all of this in some of the silence that you have from a lot of Republicans, Mitt Romney came out last night and showed his own disgust for it. I think that part of what we're seeing here in the Republican silence is a pretext to engage increased voter suppression laws moving forward to close any potential fraud in the future. I think that might be another game that's being played here, not just about Donald Trump, but really about trying to limit accessibility to the polls moving forward in 2022 and 2024.

Brain: The really scary question I think is if Georgia governor Brian Kemp and the Michigan state legislative leaders coming to the White House today are willing to join authoritarian world, can a lack of evidence even stop them? I think that's what you're saying with a few narrow paths still open to them has yet to be seen.

Robert: I think some of this is certainly about the politics. In fact, most of it is about the politics. We have seen very little evidence and if were evidence, we would've seen it. If we're talking about widespread voter fraud, you've got President Trump's own official saying this was the most secure election ever, and then getting axed the very next day. These are not happy times for those that liked the practice of democracy.

Brain: Before we go to some phone calls, does your book about the electoral college go into any of these scenarios, or when your book was published in the old days of 2019, was this thing too far fetched to even do research and write about for a 20-year electoral college expert like yourself?

Robert: Well, it's great that hopefully, now I've got a second edition to certainly write on this, but I got to tell you, no. I went into a little bit on contingency elections a little bit on the electoral count act of 1887, but no. The fact that you're calling me and that others are calling right now, again, it's not a happy vision for democracy because when people go and they vote and they cast their vote, they expect it to be legitimate. When shenanigans are happening in the five weeks after we vote and there's a potential to overturn those results and you can find all kinds of potential loopholes there that's truly problematic for the Republic.

Brain: By the way, those dominion voting machines were used in States that Trump won too. Just for the record, Lisa in Nassau County you're on WNYC with electoral college expert, Robert Alexander. Hi.

Lisa: Hi. I wanted to ask, so suppose Trump gets the electors in Michigan to change and vote for him, wouldn't he need all the other States as well, is that even enough for him to take the results and make them his?

Robert: A couple of things. One is when electors are chosen, we have two slates of electors. If indeed on November 3rd what happened was that the democratic electors were selected. I think that the scenario that is being thrown her out is that the Republican state legislature would put their own electors in there as well. The fact that you have a Democrat governor there, those democratic electors will cast votes on December 14th. I have no doubt about that.

The big question is whether or not you would then have the Republican state legislature throw their own electors in there. Now, along with that, you're absolutely right. You do need 270 electoral college votes. If you fall under that 270 electoral college vote threshold, then that's when we would have a contingency election in the house of representatives, and in Michigan alone would not be enough to make that happen.

Brain: I think for our listeners who are keeping score at home, we should remind people of the math. Biden has 306 electoral voters based on the States that he won. He needs 270, so he's 36 votes above that. That means it would take three States at least taking that authoritarian leap to give Trump the majority, Pennsylvania has 20 electoral votes. That's the biggest, the other States in play have 16 or less. It would take at least three states.

Robert: It would. Again, those votes would be challenged. I would have absolute confidence that they would be challenged in that joint session of Congress when they open those electoral college votes and they read them aloud before the Senate and the House. I would expect that even if that doesn't happen, which will very, very unlikely happen that Trump is able to make the scheme occur, that Republicans in the House and the Senate may have an objection on the basis of fraudulent voting or whatever, it will create more drama, but I don't think it will go anywhere even January 6th when they meet.

Brian: Tell me this, if everybody sticks to their parties in Congress, in that scenario who wins?

Robert: Well, in that joint session, it would take an affirmative vote in both the House and the Senate. There has to be an objection from at least one House member and from one Senate member to entertain that objection. Once the objection is entertained, then they would retire to their own chambers, the House and the Senate and they would hear arguments on whatever that objection is. It would require a majority in the House, which is controlled by Democrats right now.

That's the ace in the hole that they have and a majority in the Senate. You've already seen at least three Republican senators come out with some frustration with President Trump right now. Again, the numbers in the joint session of Congress do not work for Donald Trump in any kind of disputed election situation.

Brian: Have heard another version, and maybe you can clear up whether this is accurate or not, because I feel like it's out there in the public as well. That analyzes that scenario with more of an advantage to Trump than what you just said. That is that if the vote goes to the House of Representatives, then it's not the sheer House majority, which we know the Democrats have right now, it's each state's congressional delegation gets one vote. Because there are more States that have Republican majority congressional delegations than democratic ones, then Trump would win.

Robert: That would be if-- What I was talking about initially or if there's an objection to any of those electoral college votes, if indeed neither candidate is able to get to 270 electoral college votes, they cannot agree, they deadlock on what electoral college votes to accept or not accept, then it would move to that House contingency election and the House of representatives voting as state blocks. New York would get one vote, right along there with Montana and Wyoming. Yes, Trump could prevail in that type of scenario. I don't want to say likely because, again, the politics of it would be pretty bad.

Brian: Who wrote this constitution and why do we revere them as so smart? That's another show, Suzanne, go ahead.

Robert: I was going to say that the electoral college that the framers created is not the electoral college that we have today. They really did expect that those presidential electors would be wise and use their own discretion and that the political parties would not be part of the process. That fell by the wayside within just a few elections. When we think about what the framers created and what we have today, it's not the same thing.

Brian: Robert Alexander political science professor at Ohio Northern University, and the author of the book released last year Representation And The Electoral College. Suzanne in long beach California, you're on WNYC. Hi, Suzanne, thanks for getting up early to call us.

Suzanne: Hi, Brian, I'm up every day to listen to you I'm a former New Yorker, so I love your show.

Brian: Thank you.

Suzanne: Anyway, I'm very concerned that on our side, on the democratic side, we have been expecting for four years that political pressure will stop Trump from doing everything he can to maintain his hold on power. I think it's dangerous for us to continue to falsely believe that anyone is going to stop this man. Certainly not the Congress, certainly not, if it goes to a vote in the House, the gentleman that's on the show knows that there's a very strong possibility that the chaos causes the legislatures to change the slate of electors and that's the gain. I'm very concerned.

Brian: Suzanne, thank you. professor.

Robert: Well, I think that I'm certainly seeing a lot-- As you mentioned in my Twitter bio, I am a frustrated centrist. The thing is that a lot of these shenanigans that we've seen or shenanigans that political elites could put a stop to pretty quickly. I think the hope is that Mitt Romney and Ben Sasse and Susan Collins and the rest of these so-called more reasonable Republicans will stand up and say, "Enough is enough. It's time to move forward and accept the results of this election." Without that type of leadership, yes, we're going to have a lot of people that are pretty freaked out that anything could possibly happen given the kinds of things that we've seen over the last four years.

Brian: David in Manhattan, you're on WNYC. Hi, David.

David: Hi. I'm curious about this question of the state legislature deciding who the electors are going to be. Surely they made up the law a long time ago about this. It's not that they waited until after the election. These are long-standing walls. Are they not that every state has those?

Brian: Yes, but I think what we're talking about is finding the loopholes within those laws, that hyperpartisan Republican legislators, if they choose to be hyperpartisan could try to give themselves an excuse with, and then see if the courts uphold it. In fact, I'll throw out another example of that, but go ahead, Professor Alexander, what did you want to say?

Robert: Your caller is absolutely right that these laws have been made in advance. In any kind of attempt to then staff electors with state legislatures own appointments would be seen as beyond the scope of the law. Even going back to your previous callers concerned about-- It's not just about the politics, there are laws in place here and in the Supreme court, in Bush versus Gore, that a lot of people are pointing out that, "Look there's a little passage there that says the state legislatures have plenary authority."

If you read a little bit further in there, it's putting in the context that over the history of the country, that authority has really devolved to the people and the Supreme Court just this past summer in arguing the case on faithless electors in a rare, unanimous opinion, this was a big surprise to a lot of people, but in their unanimous opinion they said, "Look, nobody expects that electors are going to unilaterally just overturn the will of the people."

I think what would likely happen to your point, Brian, earlier when you said that Democrats would then take these things to court, I think they would. In spite of the fact that President Trump has had a lot of Supreme court appointees, he's done pretty well for himself for the last four years. I think it would be really, really hard for them in light of even just this past summer what they were saying as far as overturning the will of the people through a faithless elector, then to have a state legislature make a law after the fact.

In the Electoral Count Act that was one of the key parts of it is that they said, "Look, you can't change the rules in the middle of the game," doing so now it would be changing the rules in the middle of the game. It'd be really, really difficult if not impossible for those state legislatures to follow through with that, and then have constitutional heft.

Brian: We talked about that Supreme court decision when it happened this summer, but it was considered a fairly obscure, unlikely scenario kind of thing. It isn't exactly what we're talking about with the state legislatures. As you just said, the Supreme court unanimously, and they don't do a lot unanimously, at least a lot that makes the news because what makes the news is the things that are close calls and controversial.

That Supreme court decision affirmed that states may prohibit electors from going faithless, but that's to prohibit individual electors from just going rogue as, "Oh, I was elected as a Biden elector, but now, today I feel like voting for Trump." They can't do that as an individual, but does it bind state legislatures in any way?

Robert: Well, I think that the same rationale would hold. The electors, in that case, were arguing that this was the original intent of the framers. If you wanted to change the original intent of the framers, then you need to change the constitution. It's no secret that we do have a number of originalists on the court, and yet they also recognize the practice has changed and because the practice has changed the interpretation of the constitution has changed right along with it.

That's why they then permitted States to be able to bind electors as a state would wish to do. I think that the same rationale would hold with state legislatures who have not appointed an elector since 1876, when Colorado was first admitted to the union and after that, it's always been by popular vote. Again, to change that after electors were already selected on November third would be truly remarkable.

Brian: Why are we talking about all these state laws, and I'm the one bringing them up if there is this federal law that you cite called the Electoral Count Act of 1887, which you say mandates that any of these election law changes be made before each given election?

Robert: The Electoral Count Act-- It all came in response to the disputed election of 1876, which was a real disputed election. A lot of the same types of issues that we are seeing today about questions of fraud and partisanship were at play then. One of the key attributes of that act is to rely upon state election law. They want to defer to the laws that are in place in those States then that are ultimately abided by the state executive official in those States. They really did defer to the States with that. Again, if it's not codified in state law, then it's not codified in state law, you can't change it after the fact. That's what it appears is trying to be meddled with right now.

Brian: Let me stay in the weeds for one more detailed question about Michigan and then I'll ask you one closing big picture question. About Michigan, according to the Washington Post today, state law there directs the canvassing board, which is supposed to vote on Monday to certify the election to follow the popular vote in its decision to certify. If they break the law in that regard, Governor Gretchen Whitmer, who's a Democrat, has the power to replace the canvassing board members for violating the law and put interim people in their place.

My question is this, she can't fire the state legislature. If we get to that point, and this is a big headline on Monday that canvassing board members are going rogue in Michigan and not voting for the person who won the popular vote and Whitmer fires them and puts in her own people, would replacing rogue canvassing board members do any good?

Robert: Well, my understanding is it's split two to two in Michigan. Even in Wayne County, my understanding is-- Dispute were hundreds of votes, not thousands upon thousands of votes. Again, it's really hard. I say it's hard, we've seen a lot of crazy things over the last few years, but it would take some serious imagination, which a lot of us have right now to see a scenario where-- Again, we're still looking for evidence of those thousands upon thousands of votes that would be disputed.

I don't expect any big surprises. There could be some fireworks between the canvassing board there. If anything's determined how we've seen the world over the last four years it's been drama. I would anticipate that we might see a little bit more drama there, but I think at the end of it Gretchen Whitmer is going to certify those electoral college votes in Michigan.

Brian: What was it Trump said in 2015? "I could shoot somebody in broad daylight in the middle of Fifth Avenue and Mitch McConnell would still elect me--" I don't know if it went exactly like that, but you get the idea. To that point, is there a lesson here, last question, that would say our laws are not actually enough to protect democracy it also takes voluntary adherence to norms on the part of people in power, or would that be overstating it?

Robert: Well, or perhaps that norms haven't meant anything. We need the laws to protect us from those who are unwilling to follow so-called guard rails. That's to me one of the big lessons over the last few years is that for those that say, "Oh, the guard rails will keep things in place." The guard rails have failed us in a lot of different ways. It may be to the letter of the law that that is able to preserve this victory for Joe Biden and move things forward come January 20th when he takes the oath of office.

Brian: Robert Alexander, political science professor at Ohio Northern University and author of the book Representation In The Electoral College. Thank you so much for coming on today.

Robert: It's a real honor, Brian.

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