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>>BOB ZALTSBERG: Welcome to NOON EDITION. I'm Bob Zaltsberg from the WFIU WTIU newsroom. My co-host today is Sara Wittmeyer, WFIU's News Bureau chief. Today we're talking about the 2020 presidential election, which was Tuesday, and all of the follow up information that's been coming in and that might come in in the week to come. We have three guests with us today. Leslie Lenkowsky is with the O'Niell School of Public Health and Environmental Affairs. He's a professor emeritus of public affairs and philanthropy. Marjorie Hershey is with us. She's professor emeritus of the Indiana University Department of Political Science. And also with us is Nicholas Almendares, who's a Mauer School of Law associate professor of law. You can follow us on Twitter at @noonedition if you have questions or comments there. You can also send us questions to the show at firstname.lastname@example.org. Well, Marjorie Hershey, you were with us just a couple of weeks ago. We previewed what might happen. A lot of what we talked about did happen. A lot of things didn't happen. Can you give us a breakdown now of where we are as we're - as, you know, we're three days after the election - after Election Day? What's happening right now? What's the latest?
>>MARJORIE HERSHEY: Sure. Thanks, Bob. Surprisingly, in spite of a total campaign spending of $14 billion - would you believe? - by parties and candidates and outside groups and months of media coverage, not much changed setting aside the presidential race for a minute. There was a big increase in voter turnout, about 67%, which is still pretty low for most democracies. But the United States Senate is still dominated by Republicans, who probably will have just one fewer seat in January than they do now with a majority of 52 to 48. Almost all of the incumbents who were up for reelection survived. The U.S. House is still dominated by the Democrats, though they lost somewhere between about six and 15 seats. So the Democrats will have a smaller majority, but still a majority. State legislatures - normally, we would see several state legislative houses change party control in a presidential year, and there was certainly an expected blue wave. And the Democrats needed a blue wave because legislators this coming year - the state legislatures will be the ones to redraw the state legislative and congressional district lines after the U.S. census. In most states, it's the majority party in the state legislature that draws those lines to help its own party win more seats. In 2010, there was a big Republican wave that led to a lot of Republican gerrymanders that gave the Republicans a big advantage in terms of those legislative races for the next decade. This year, only two or three of the state legislative houses changed party control with a slight advantage to the Republicans. So we will see continued Republican advantage in state legislative races and probably in Congress for the next decade. So now we have the presidency. It's still Vice President Biden's race to lose. He currently is reasonably sure of 253 of the 270 electoral votes that he needs. Mr. Trump has 214, probably 229 with North Carolina. But just as we expect, a lot of states have not finished counting their ballots because there was a big increase in voting by mail due to the pandemic. And there are so many safeguards built into sending out mail ballots and receiving them. If you were to talk to Karen Wheeler in our local election office, I think she'd tell you that there are something like 17 or 18 steps that poll workers have to go through in sending out a mail ballot or in receiving them and counting them, that the counting takes more time. So there are still four states to be decided - Pennsylvania, Arizona, Georgia, Nevada. Biden needs just two of the four states in order to win. Trump needs either three or four, depending on whether Pennsylvania is one of those that goes to Trump. So the ballot counting probably will take until the end of the weekend, and then we will be treated to a whole raft of lawsuits by the Trump campaign to try to exclude certain batches of votes.
>>SARA WITTMEYER: Marjorie, I'm curious, just really quick, why aren't you including Arizona and the states that have been called for Biden? Because I know the Associated Press called it and so, on our air, we have said that Arizona has gone to Biden.
>>SARA WITTMEYER: Good question, Sara, and the Associated Press has long been the gold standard with respect to calling these races. In fact, the AP still has not called Florida for the 2000 presidential race because it didn't feel that it had sufficient evidence. But statistically, there are still enough ballots out so that it's conceivable - although very, very unlikely at this point - that President Trump could catch up.
>>BOB ZALTSBERG: All right. And I know some ballots were counted - I think released at 11 o'clock from Arizona, and I think the race there had tightened just by two or three thousand. And maybe - you know, maybe we'll get some new results from Nevada while we're on the air here, because I know they were supposed to release some results at noon Eastern Time. So I want to bring Les Lenkowsky in. So Les, you've been an observer of these presidential elections for quite some time. You worked for two different presidents? Is that correct, two?
>>LESLIE LENKOWSKY: That's right.
>>BOB ZALTSBERG: George W. Bush and Bill Clinton.
>>LESLIE LENKOWSKY: Well, and Ronald Reagan.
>>BOB ZALTSBERG: And Ronald Reagan. OK. So you've been an observer for a while. So what are your - some of your takeaways to what you've seen in this election?
>>LESLIE LENKOWSKY: Well, I agree completely with everything Marjorie's just said. Seems to me this is very much a centrist election. The pendulum moved a little at the presidential race. The Democrats did not do as well in the other races as they wanted to. What I'm paying attention to are some of the more detailed data we're going to get as exit polls and other surveys start to come out. Turns out, no big surprise here, that people who decided who they wanted to vote for toward the end of the race tended to favor President Trump. Those who decided earlier tended to favor Vice President Biden. Vice President Biden was a - got high marks as a leader and a uniter and somebody who would address the coronavirus. President Trump got high marks for being strong, concerned about the economy and so on. Two of the most interesting data that we're seeing - and these are coming - the ones I'm using are coming from an organization called Edison Research. It turns out that President Trump did better than I think many people would have expected among minority groups, according to the exit polls. 57% of whites voted for him, but among Hispanics and Latinos it was 32%. Asians, 31%. Other groups, 40%. Even among African-Americans, he won 12% of the vote, according to the exit survey, which is somewhat higher, I think, than many people would have expected. Another one that might be particularly interesting here in Bloomington is that President Trump won about one third of all young people, 18 to 29 years of age, who constituted 17% of the voters. Among the other age groups, there wasn't a lot of difference, ranging from 45% to 51%. President Trump also won 42% of college graduates, although he did better - 49% people with no college degrees. So I think these are the kinds of data we'll want to be looking at in the months ahead to get a better picture of the character of the American electorate today and what it is looking for in the next president as well as Congress.
>>BOB ZALTSBERG: Made some fascinating data that - or fascinating results that'll come out of all that data. So, Nicholas Almendares, you are a professor of law - associate professor of law at the Mauer School and you have some expertise in election law. This is going to be a very litigious election, it seems to me. There have already been several attempts to - several lawsuits that have been filed. So, you know, what are some of the key things we should be looking for when it comes to these legal challenges that are going to be forthcoming?
>>NICHOLAS ALMENDARES: Yeah. And it's - it certainly going to be very litigious. And it's - there's always this challenge from a law perspective of generalising over a bunch of different lawsuits, especially because they're going to be couched in state law. So we have lots of different - subtly different legal systems. I think - and this is probably a good general advice for anything related to the election - is to be calm and deliberate. Courts - I guess one big takeaway for me is courts are not very good at handling elections, so we should not look for the courts for much. There's a whole lot of reasons around elections, especially considering kind of the time frame they work on, that courts are just not very good at kind of rescuing or navigating elections. This is not a place they're particularly strong. And I think the federal judiciary right now is in a particularly weak place for a lot of reasons. So I guess that's one big takeaway. And then the other big takeaway is that they take a while to grind through and it's very easy - or relatively easy, unless a court really wants to stop you, to make outrageous claims at the very beginning of a court case.
>>BOB ZALTSBERG: And that seems to be what's happened. A lot of courts - I think attorneys general or state courts have said that some of the claims that were made yesterday already were frivolous and have already been thrown out. One specific thing I wanted to ask you about in terms - for - just for our edification is, you know, President Trump has talked about how he's going to make sure this case gets to the Supreme Court. And they're - I think one of his generals talked yesterday about actually how he - President Trump has appointed three of these Supreme Court justices, so it's going to get to the court and then we'll see how this goes. How does a - how would this election wind up in the hands of the Supreme Court?
>>NICHOLAS ALMENDARES: Oh, I mean - so the way things get to the Supreme Court is they either work their way up through a state court and they get to the state supreme courts, so like the Indiana supreme court, and they get appealed from there or they work - more likely is they work their way through the federal system. So you start at what we call district court. And it's just a trial like any other. So - and you would find some reason to challenge some ballots, right? And you would have to hope that, you know, if you're on the Trump's legal team, you'd have to hope that you can challenge enough ballots to make a difference. So, I mean, I think whenever we're having this conversation, all of our minds are going back to Florida in the year 2000. And full disclosure, I'm a born and raised Floridian, and that election was very close so small changes can make a difference, right? So you'd have to hope that. And then that would go to a - you know, a decision at the lower court and they would appeal it to the court of appeals - and this would all happen very quickly in this context - and then it would go to the Supreme Court, right? So that's how it would get there. Just, I guess, the way any other - oddly enough, the way any other case gets there.
>>BOB ZALTSBERG: I think things get sort of a little fuzzy sometimes because, you know, the president will say something like, we're going to - we're just going to get this case to the Supreme Court. And then, you know, there's been so much attention placed on the court in - you know, in recent weeks and months and years even that I think people are confused about. So I appreciate that clarification. Sara?
>>SARA WITTMEYER: This question someone sent in and maybe, Les, you can take a pass at it first. But the question is about Terre Haute because, as you know very well, they have correctly predicted the winner of the presidential election since at least the 1905s correctly. So the question is, Terre Haute has now officially gone to Trump, so how seriously would - should we take that when we're looking at who could become the next president?
>>LESLIE LENKOWSKY: Well, I think Terre Haute reflects the voting composition of Indiana. There's a big debate - and I think Marge could probably comment on this - is whether they're what we call bellwether counties really are. It used to be the case that winning Ohio was a good thing to do if you want to become president. That does not appear to be the case anymore. So I wouldn't make too much of it. I think what we saw in Indiana was the state voted pretty much the way it had done four years ago, and I think what - the vote in Vigo County reflected that.
>>BOB ZALTSBERG: Margie?
>>MARJORIE HERSHEY: I think the general rule is that bellwethers are bellwethers until they aren't bellwethers anymore, and that's perfectly understandable. You know, there's the old story about when Maine used to be a bellwether state. As Maine goes, so goes the nation. And Maine no longer became a bellwether and the phrase was, as Maine goes, so goes Vermont. It - the problem is we should expect that bellwethers will not be bellwethers for a very long period of time except by random chance, because of the fact that they can predict the national vote only to the extent that they reflect the composition of the nation as it's involved in the campaign at the time. And the nation changes over time, and some areas change with it and some areas don't. So I think we probably ought to let go of a whole series of these kinds of rules about - Terre Haute is somehow going to predict the election result and therefore it should and therefore President Trump is going to win. It's - good try. No cigar. It just - it's just not sensible.
>>BOB ZALTSBERG: Well, I have to say, Margie, it's always been a great story for the rest of us. You know, all we Hoosier journalists would like that to be the Terre Haute story. And, in fact, WSW's Brock Turner did that story this year and both Max Jones, the longtime editor of the Tribune star and a professor - political science professor at Indiana State, predicted that Trump was going to carry Vigo County, but that they both thought that this bellwether idea was going to end this year because it looked like Biden was going to win the election. Of course, we don't have the results in, but it is looking more and more like that all might come to an end.
>>LESLIE LENKOWSKY: That's why - if I could just add one thing, that's why I think you have to really look below the level of the county or maybe even the city. So day before the election, I received a call from The New York Times asking me what they ought to be looking at in Indiana. And I said, pay attention to the early returns from the Fifth District congressional race because that might tell us something about how the suburbs were doing. And then I heard that coming back from Bob Zaltsberg on election night, who had read it. Well, what did happen? Well, it turned out there was not much change at all in the suburban parts of the 5th District. And that, I think, explains not only why Christie - why Spartz - Victoria Spartz won, but also how Trump did.
>>BOB ZALTSBERG: All right. Are phone - we don't - we aren't on the phone today, so you can't give us a call, but you can send us your questions to email@example.com. You can also follow us on Twitter at @noonedition. So, Marjie, when we talked a couple of weeks ago, you talked about and a lot of other people have talked about the idea that the early votes were going to be looking red - more red and that, when the mail in ballots started coming in and being counted, that they were going to be turning the election to more in Joe Biden's favor, and that did - does seem to have borne out. So what do you make of this idea? I mean, President Trump yesterday was talking about how - well, we had this big lead and then, miraculously, our lead disappeared in the middle of the night. So can you explain why that wasn't miraculous?
>>MARJORIE HERSHEY: Oh, goodness, it wasn't miraculous at all. Let me just say - and this may sound partisan, I don't at all mean it to be - but as I was listening to the president speak over the last couple of days, the term con man kept coming into my brain. And so I looked it up in the dictionary and found that a con man is defined as somebody who puts forward schemes or uses unscrupulous trickery to defraud other people. And I started to think, obviously, cons are pretty common in American society. We get them on the phone just about every day. But why is it that the president has been so successful at it? And my suspicion is that it's kind of like what happened in the Great Recession, when some banks were regarded as being too big to fail. If the con you present is big enough, you involve a whole lot of people in it, and then they need to rationalize their support of it in order to be not too embarrassed - so you get some rather incredible occurrences, such as people completely denying what has been predicted for weeks or the current QANON con, which I've been very fond of, that our elected leaders are actually lizard people wearing human skin who kidnap children for purposes of sexual abuse and apparently drinking their blood. I don't keep up very well with QANON, but that seems to be where it is now. President Trump is throwing mud at the barn wall in order to see what sticks. And so he's made a whole series of claims that include that somehow this was a miraculous change. And I saw one post on Twitter last night that said this is kind of like my - counting my fingers one night and I get as far as three and then I get sleepy and fall asleep, and then the next morning I wake up and count them again and I get five and so it would appear that there has been some major change that's occurred. We've had President Trump saying since the beginning that voting by mail is fraudulent and that therefore people should not do that - something that had Republican leaders all over the country tearing their hair out because so many of their supporters would have certainly preferred to vote by mail because of the pandemic. And as a result, we saw that many more Democrats were voting by mail than Republicans because Republicans were taking the president at his word. Well, that sort of means that, when you end up looking at by-mail ballots - excuse me - there are going to be a whole lot of Democrats, whereas a lot of people going to the polls on Election Day were going to be Republicans. So, you know, this is not rocket science. When you have one group that is predominantly voting by mail and another group that's voting predominantly at the polls, you're sort of going to get different results depending on when you count those votes. This is just perfectly predictable. It was, in fact, predicted and it happened. The prediction proved to be true.
>>BOB ZALTSBERG: Les Lenkowsky, I wanted to ask you about, you know, those issues and also just - you know, if you had the opportunity to watch the president on television last night before he was - the - before all the networks cut away from him - and give me your reaction as a person who has had - has been appointed to positions by President Reagan and President George W. Bush and Bill Clinton. Just - I just want to get a reaction to what we saw out of the president last night.
>>LESLIE LENKOWSKY: Well, it was was an appalling performance I thought, but it wasn't surprising. He's done that before. And here I think - well, I generally agree with Margie. I think one ought not to exaggerate President Trump's political skills. Margie already mentioned the fact that President Trump - a majority of people 65 or over voted for President Trump, according to the exit polls. But, of course, many more might have done so if they hadn't been discouraged from voting by mail. There are others as well. I think we are living in a time where there's a great deal of misinformation out there. We've been talking about this for quite a while. Just before the press conference last night, an old friend of mine who used to serve as secretary of education of the United States and has a Ph.D. in philosophy, after beginning his commentary on Fox News by saying, as a philosopher, he was dedicated to truth, repeated a rumor about some large number of votes for Biden having strangely appeared in the Pennsylvania count. There wasn't much - there was nothing at all strange about it, it just reflected the way in which the company that reported the votes was transmitting them to the media. But here you get misinformation - people will believe it. And that, I think, makes the election seem a good deal less legitimate in the eyes of some - maybe many - than it actually was. I think, you know, given everything we've been going through this year, the fact that 160 to 170 million Americans cast their vote - votes this - in this election, for the most part peacefully, is something we ought to be proud of.
>>SARA WITTMEYER: Yeah. We've gotten several questions just about the future of some issues once we do have a new president. So, Marjorie, maybe we can start with you. One is can we expect the country to have some sort of COVID lockdown after we have a new president? And then will we be looking at another stimulus package under either Trump or Biden? And I can't remember the other one, but when I find it I'll ask that one. Do you want to go ahead and address those two?
>>MARJORIE HERSHEY: Sure, I'd be glad to. Yes, of course, we certainly will be having another stimulus package. Goodness knows, the economy, regardless of what the president has said, is recovering very slowly and it's really been up and down. And I think many in Congress would have preferred to pass a new stimulus package, but they were all worried about who was going to be able to take credit for it if they did before the election. I think there's widespread agreement in Washington that a stimulus package is necessary. With respect to lockdowns and COVID-19, I trust what the candidates have had to say - that Vice President Biden has been pretty clear that he's said he's going to listen to the scientists, and he's mentioned Dr. Fauci in particular, who has suggested basically what we need to do is to have a pretty nimble response, which we have not had much at all to this point. So I think really what determines whether or not we're going to have a nationwide lockdown - I would sort of doubt it because my sense is that it's kind of like what Justice Ruth Bader Ginsburg said about the Voting Rights Act, that - when the court struck it down or struck down part...
>>BOB ZALTSBERG: We seem to have lost Margie.
>>MARJORIE HERSHEY: ...She said...
>>BOB ZALTSBERG: Sorry, Margie, your connection is a little rough for us. Sara, do you have another...
>>SARA WITTMEYER: Yeah, the other one was just about the Paris agreement, which I think we can predict that we would probably stay the course if Trump wins but, Les, can you - do you have any...
>>LESLIE LENKOWSKY: Well I'm glad you asked that because, perhaps the Paris Agreement's a bit of an exception, but for the most part foreign and national security policy didn't figure very much in this election. I think it's going to prove difficult for a variety of reasons for Vice President Biden to change some of these agreements. I just had a note from a friend in Poland about the election, and I suggested that, clearly, a president-elect Biden will not want to seem that he is weak toward Russia. And as a result, I wouldn't expect a lot of change in some of the things, such as moving American troops from Germany to Poland that we've seen in this administration. I don't know enough about what would be entailed in getting back into the Paris accord, but these are fairly complicated. And it would take some time probably for a Biden administration to negotiate the terms of that if it were so inclined to do so.
>>BOB ZALTSBERG: Professor Almendares, from a legal perspective, have you seen anything in this election this year that seems to be unusually corrupt or anything that you believe or you have seen that might lead you to believe that it's not a free and fair election?
>>NICHOLAS ALMENDARES: No, not that I've seen any - There's been - I mean, I think this is the prevailing report - no evidence. In fact, given given the pandemic right? - and everything else, it's shocking how smoothly it's it's been running. So, I mean, system-wise, I would call this kind of a win and kind of echoing a little bit of what Marjorie was saying, I think we see kind of a ginned up legal controversy, right? - to try and delay the counting the votes that say that running up against deadlines and stuff like that. But that's all kind of artificially constructed.
>>BOB ZALTSBERG: Right. So from a different perspective, a different topic on on the law - and there's been a lot of talk about campaign finance reform and about the the the money that's spent in these elections. What's this election tell us about, you know, our campaign finance laws?
>>NICHOLAS ALMENDARES: Yeah. Well, I mean, this is the world we live in, right? And I'm sure Marjorie and Leslie can speak to us as well, that we are - this is a this is a strange election, right? Because we were, again, awash with money. And this might be a question of like, does it make that big a difference? Or if both sides are equally well funded, right? - or close to equally well-funded. Does, that make a difference? Instead, you should be concerned about cases, races where one side is able to really outspend the other by orders of magnitude. Another way - and this is maybe something less we need to look at is I wonder if - like this was a campaign during a pandemic, right? So that's unique. Whether this is just an example, the power that incumbents bring because incumbents did very well in this campaign.
>>LESLIE LENKOWSKY: Yeah. The other thing I would mention - I think Marge said the totals come in to about 14 billion dollars. And that's real money, no question about it. But I'm going to guess that we probably spend at least four or five times as much on dog food every year. So we need to keep this in perspective.
>>BOB ZALTSBERG: All right. If you have a question for us, you can send it the news at Indiana Public Media dot org, or you can follow us on Twitter at noon edition.
>>NICHOLAS ALMENDARES: I was just thinking of the things that will change. And I think there's a lot of - if Biden wins the presidency, there's been a lot of kind of below the line, subtle stuff. Like he's going to have control over the federal bureaucracy to a large extent. Right? And so policy at the EPA is likely to change. And that's kind of complicated what's happened in the Trump administration over that. But like enforcement policy at EPA and DOJ and those sort of day by day decisions that are largely directed by the executive adminstration. That's the source that I think is really going to change, especially - because a lot of other things, like Leslie was saying, are complicated or they're going to involve Congress' - Congress is going to have a hand in it.
>>LESLIE LENKOWSKY: I'd also add to that, by the way, something people need to be watching for, President Trump is still going to be in office for another seventy five days. And we have seen when previous administrations were leaving office or rush to enact new regulations to change people from political appointees to civil service appointees and so on. So we're going to - I think we need to keep an eye on that. And you know, where criticism is warranted, make it.
>>BOB ZALTSBERG: Well, I have to ask, because with President Trump has been different from any other president, I think that's fair to say. And there are people who are concerned that he won't even accept the - whatever the - if Biden does win the election in a very narrow way, that he won't accept those results. I mean, could we - what could happen if he decides that it's just not going to accept them and stay put?
>>LESLIE LENKOWSKY: Well, I'll defer to my colleague at the law school on this. But as I understand it, on January 20th, Inauguration Day, his power of the presidency ceases. So, you know, I think they're not too many things he can do to stay in office after January 20th. Probably none.
>>BOB ZALTSBERG: Well, I might add that we don't know yet if he - he may still win this election, but I do need to say that. Go ahead.
>>NICHOLAS ALMENDARES: Yeah, well, that's basically it. I mean, that would be a very unprecedented scenario, but, you know, I'm going to make air quotes that no one could see. Legally, right? - it's exactly like Les said, right? - that he would be trespassing. Yes. And the same thing that happens to anyone else who happens to be trespassing in the White House or anywhere else on public land. But I mean, that requires people to carry that out. And I have a certain degree of faith that that will be done. But as I was telling some students the other day, like, it's all people all the way down. It's just people choosing to observe the law and the rules, the norms that we have in place.
>>LESLIE LENKOWSKY: I'm also - although I do not know President Trump at all, I'm also pretty confident that at some point when passions are a little bit cooler, he'll start thinking about his legacy.
>>BOB ZALTSBERG: Sara?
>>SARA WITTMEYER: Marjorie, are you back with us?
>>MARJORIE HERSHEY: Hi, I'm back with you.
>>SARA WITTMEYER: There's a bit of an echo, but I wanted to ask you about the polls because that was something we talked about a couple of weeks ago when you were on. We're hearing from a lot of folks at the polls got it wrong this time. So what's your perspective?
>>MARJORIE HERSHEY: Well - and I'm afraid my line may not be very good right now. So how about if I send you a response, and you can read it?
>>BOB ZALTSBERG: You're actually sound great. You sound great right now.
>>MARJORIE HERSHEY: Oh, all right. All right. This has been a real serious challenge as far as the polls are concerned. We ran into this a time ago in 2016 when obviously the polls underestimated President Trump's support. And so the real question is, is this President Trump or is this the polls? Now, we know for a fact that we're not just simply presenting a kind of a pound of raw meat of voters responses when we present poll data. Poll responses are so minimal now that when you call one hundred people as a pollster, you can normally expect a response only from six or seven of them. The response rate is literally that low. So we're not seeing the actual results of one hundred respondents. We're seeing a model that the pollsters have developed. And each pollster has his or her own model as to how to weight those six or seven responses so as to represent all of the different racial, economic and educational gender groups in the society. And that means that we certainly found in 2016 that we were under weighting people who had perhaps attended college but had not graduated from the poll takers learned from that. And they really waited and increased the waiting on those groups in 2020 and it still didn't work. It's possible that President Trump's appeal is unusual enough that we're simply not picking up the kinds of people in polls who believe in President Trump. I don't think that this is a question of shy Trump voters, so-called people not wanting to admit that they're voting for Trump. Goodness knows, we haven't seen a huge amount of shyness from a lot of Trump supporters in recent years. But it may be that the kinds of people who are more inclined to support President Trump are simply not picking up on polls at all, that they are refusing to respond altogether to polling perhaps because of the tremendous amount of suspicion that President Trump has succeeded in generating about the so-called mainstream media. That's another remarkable effort that he has made and has been very successful at. There are huge numbers of media outlets out there. And if we start to generalize about something called the mainstream media, that includes, for example, both The New York Times and The Wall Street Journal and we claim that they're taking the same viewpoint and trying to brainwash Americans, it kind of flies in the face of logic. So poll takers are in the midst of a real crisis right now to try to figure out what it was that went wrong. If it is the case that their models were where they can adjust the models, if it's the case that some types of people who are disproportionately Trump supporters are not responding to polls anymore, then we've got a much bigger problem. And how they're going to solve that one is anybody's guess.
>>LESLIE LENKOWSKY: Can I just add to that a minute and pick up on what Marj mentioned in the ad, because I think this is something, Bob, you've been thinking about as well, which is the media. It's not just the polling industry that will have to do a little stocktaking. I think it's - the media will have to examine how well it's been covering this administration, to what degree accusations of bias have any merit and what to do about them. And of course, if you expand this into the social media, we really need to be thinking a lot about the the sources of information that Americans are getting. That's very important in a democracy to have such sources, good sources, not only at the national level but at the state level and the local level and do we have them? What do we need to do to shore them up?
>>BOB ZALTSBERG: Well, along those lines, I just wonder about just institutions in general. And Marj, you mentioned it, but I think about pretty much any any institution that has been considered - well, the media is one that just, you know, the freedom, freedom of the press. I think the court system, if the courts don't agree or judges don't agree with particular - one particular site or another, there's a big controversy about that. I mean, how are institutions going to be viewed coming out of this election? I know that's a big, broad question. What about the law Nicholas?
>>NICHOLAS ALMENDARES: As I alluded to earlier, I think the courts are in a pretty weak position right now, in large part because just spring boarding off of your question, what they have is their legitimacy. Like that's that's it. That's all the courts have, really. And they develop that legitimacy by, I think, seeming apolitical to some extent. And I think by explaining themselves. Right? That's a big reason why they write these often incredibly long opinions that I end up spending all my time parsing and teaching about. So these that they can explain themselves to the American people, that shores up their legitimacy. I think, you know, the court that everyone pays attention to his lawyers, the Supreme Court, although some that this is true of lower courts as well, have had bruising nomination fights. Right? So their legitimacy is - I don't know if I would say an all time low, but very low right now. And I don't know. I think the - I don't know how to get out of that. Maybe that will take years of kind of doing the work I just described as seeming fair and balanced and reasonable. Even if they come to a decision you disagree with, you see the logic. You say, OK, well, that's that makes sense. That was going to - is going to take a long time. And maybe a silver lining there is we will - the rest of the branches of the government or the rest of us who have more direct effect on the rest of the government will take more responsibility for sorting out a lot of questions that the courts have in recent memory really dominated.
>>MARJORIE HERSHEY: I think that's a really important point. And I think that understanding the concept of legitimacy is crucial. The courts don't have any troops to enforce their rulings. There's a reason why judges wear robes and sit on high benches. It's to increase the legitimacy of their rulings, given that there is very little else that they have to enforce them. That's true of virtually all the other institutions of a democracy as well. And certainly it's possible to go at this by looking to the institutions themselves and saying, hey, you guys, you got to explain yourself better and you've got to be able to help people understand better. There's another approach. And that's looking at those of us who are looking at the institutions and saying, you know, we're venturing into very dangerous territory here by starting to throw around a lot of wild accusations about bias and and intentional efforts to undermine democracy and lizard people wearing human skins and stuff like that. We need to start looking at ourselves to a much greater extent and saying democracy is not guaranteed in the United States. We have managed to keep it alive for two hundred and thirty some years. We really need to think about whether or not the entertainment value of people being able to scream at one another using wild charges is worth the possible loss of something that so many people have given their lives to protect.
>>LESLIE LENKOWSKY: There was a referendum in California this week that I think has a lot of implications for higher education. There was an effort to overturn a ban on affirmative action that had been in place affecting colleges and universities, state colleges and universities in California, I think for probably twenty five years or so. And the effort to reverse that ban failed. Now, affirmative action is one of many things, maybe not the most significant of them, of criticisms that have been leveled against higher education in recent years, some of which are going up through the court system. Others are in regulation form. So I think higher education as well should pay attention to its reputation, not only on these issues, of course, but in the wake of the changes that have had to be made due to the pandemic.
>>SARA WITTMEYER: We've got a couple questions - and Marjorie, maybe you can take this one first, but the question is, how much does our government actually represent a majority rule? People feel like their vote doesn't have much power.
>>MARJORIE HERSHEY: Well, when we talk about the presidential election, obviously there's a point there because of the fact that the Electoral College is the mechanism that actually selects the president rather than the popular vote. This is an issue that we've dealt with throughout our lives as a country because of the fact that the Constitution really is not a majoritarianism document. And it wasn't intended to be. The folks who wrote the Constitution were understandably pretty worried and anxious about what majority rule would in fact result in and whether it would result in a lot of the rabble like you and me coming and taking over and dispossessing the wealthy of their wealth and distributing it among the common people. So we see element after element of the American constitution that's designed to slow down or frustrate majority rule. The Senate is a prime example. The fact that the states, whether they have a population of 800000 or 40 million all have the same representation in the United States Senate - and I know there are good reasons for that from the perspective of the founders. The fact that the Electoral College, because it includes a number of senators, every state has also limits majority rule, the simple presence of separation of powers, which is, if anything, the primary principle of the Constitution is intended to slow down the possibility that a transient majority could step in and dominate and take over the government for a period of time. So we're not a country that was designed to have complete majority rule. Many people are under the impression that we were. But if you read the Constitution, which is a really good idea, you'll find that that is not the case. So we probably have a little bit more majority rule than the people who wrote the Constitution would have intended. The problem is it's not as much as many others of people now would like to have, but constitutional change is very difficult for good reason.
>>BOB ZALTSBERG: Marjorie, early in the show - we have a couple of minutes. Early in the show, you talked about the Senate and how it didn't look like it was going to change, but it appears there are going to be two runoff elections and in Georgia. Can you explain what those runoff elections are and what is likely to happen down there?
>>MARJORIE HERSHEY: Sure. This is a kind of an interesting situation in which the elections are being run under what is called the jungle primary rule, in which whoever gets the most votes, if they get 50 percent of the vote, wins. But if they don't get 50 percent of the vote, which when you've got something like 15 candidates running, which is the case in one of these races, then there has to be a runoff afterwards so that the leading candidate does get 50 percent. The runoff primary was instituted during that Democratic solid south when various kinds of mechanisms were used in order to keep white control of the Democratic Party, because usually if there were several white candidates, they would split the vote in the first election. But then after that, once there was a runoff, the African-American candidate would tend to get defeated because there weren't as many of them and they didn't have as much support. So the chances are pretty good that the Republican will win in both of those races. In neither case, at least at the last time, I heard with respect to the Perdue race in Georgia, did the leading candidate get 50 percent of the vote? So the runoff will be scheduled in early January in both of those cases. And that will determine the two senators from Georgia.
>>BOB ZALTSBERG: OK. And we are about out of time. I do want to mention that, of course, votes are still coming in from the four key states that we talked about earlier in the show. There were some new numbers in Nevada that were released around noon. And Joe Biden, Vice President Biden's lead in Nevada is now down to about 20 thousand votes there. Still quite a few votes outstanding there, but it has shrunk in the last 24 hours, 24, 48 hours. So I want to thank our guests today. We had Leslie Lenkowsky, Marjorie Hershey and Nicholas Almendares on the program with us. Thank you all for your observations about this election. For cohost Sara Wittmeyer, producer Venta Buttie and engineer John Bailey, I'm Bob Zaltsberg. Thanks for listening to Noon Edition.