November 4, 2024: Election Night Q&A. Here's What You Need to Know Ahead of the BIG Night. Plus Huge Early Voter Turnout, FCC Says NBC Violated Rule After Harris SNL Appearance, and More.
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Welcome back to Unbiased, your favorite source of unbiased news and legal analysis.

Welcome back to Unbiased. Today is Monday, November 4th. We are one day away from election day, and this is your daily news rundown. So in today's episode, we will only be spending a little bit of time on the news. We're really only doing quick hitters today. I will do the critical thinking segment, but the bulk of this episode will be an election night Q&A, and I'm basically answering your most frequently asked questions when it comes to what we can expect tomorrow night. So let's get into today's stories.

The New York Times Tech Guild, which represents hundreds of New York Times tech staffers, went on strike today. It was a pre-planned strike for election week if contractual disputes were not resolved by now. As of last night, there were disagreements over issues such as pay raises, return to office policies, and a just cause provision that would allow for termination for reasons unrelated to misconduct.

Times management said they offered workers a 2.5% annual wage hike, a 5% pay increase for minimum promotions, and a $1,000 ratification bonus. But as of this morning, there was no agreement. The tech guild's members are in charge of the back-end systems that power the newspaper's digital operations, so there is a chance that the strike could affect the paper's ability to cover the election results, but that is certainly not for sure. We'll have to see if it does.

And as of yesterday, more than 75 million Americans had already voted. That is more than 48% of the total number of people that voted in 2020. In Georgia, more than 4 million people have already voted, which is 80% of the state's total turnout in 2020. And same thing in North Carolina.

Of the states that report party registration data, Democrats do hold a slight lead per University of Florida's Election Lab's early vote tracker. That lead is 37.9% to 36.2%. If you have not voted yet, please go out tomorrow and vote. Be sure to check where your polling location is, what time that location opens and closes, and make sure if your state requires it, you bring a valid form of ID.

An FCC commissioner is claiming Harris's recent appearance on Saturday Night Live violates the commission's equal time or equal opportunity rule. In a nutshell, the FCC's equal time rule lets rival candidates ask for equal airtime.

The purpose of that rule is to ensure that no legally qualified candidate for office is unfairly given less access to the airwaves outside of bona fide news exceptions. So when it comes to this equal time rule, it's on the network hosting a candidate to file what's called an equal time notice.

This notice gives notice to both sides of what's happening. That way, in this case specifically, Trump could have requested equal time of airtime for up to a week afterwards if he wanted to, of course. To be clear, the network isn't required to reach out to the opposing candidate and offer airtime. They just have to put the opposing candidate on notice by filing this equal time notice with the FCC.

But here, NBC did not file that notice until Sunday, which was a day after Harris's appearance, and therefore didn't give Trump that one-week timeframe leading up to the election to request airtime. The FCC's commissioner also noted that NBC stations did file equal opportunity notices in the 2016 election, but not this time. It's unclear what'll happen from here, but I know some of you asked me to cover this story, so that's what's going on there.

And Missouri has filed a lawsuit against the DOJ asking a judge to block the DOJ from sending lawyers to St. Louis on election day to monitor polling locations for compliance with federal voting laws. This lawsuit comes after St. Louis' city election board agreed to allow the lawyers to come in following a settlement with the DOJ over concerns about physical barriers and other issues that could have hindered people from voting that had disabilities.

Missouri is one of 27 states the DOJ said it would be sending staff out to monitor voting locations, but Missouri's lawsuit accuses the DOJ of making an 11th hour plan that intends to, quote, displace state election authorities, end quote. And finally, remember in last Wednesday's episode when I talked about that provisional ballot lawsuit out of Pennsylvania? Well, on Friday, the Supreme Court rejected the RNC and Republican Party of Pennsylvania's request to block the counting of provisional ballots.

There were no noted dissents and there was no reasoning given, which is a standard when it comes to court orders. But essentially what this means is that Pennsylvania can count provisional ballots that are submitted by voters who submitted otherwise timely ballots, but defective ballots. And if you want to get caught up on that story, again, that was part of Wednesday's episode.

And now it's time for some critical thinking. I saw this piece from CNN over the weekend. I immediately knew I was going to share it on Monday's episode as part of the critical thinking segment because it was thought-provoking for a few reasons. One, it was CNN that covered this investigation. And two, because this overall strategy from the Harris campaign, which is at the center of the investigation, is just interesting, you know, for what it is. So I want to play the clip now and

And once you listen to the clip, I do have some questions for you. So here it is. Tonight, mixed messages, a K-file investigation this hour finds Kamala Harris is targeting crucial battleground voters with vastly different messages on Gaza and Israel. This ad is running in Michigan, which has the largest Arab population in America.

What has happened in Gaza over the past nine months is devastating. We cannot allow ourselves to become numb to the suffering, and I will not be silent. All right, well, it's a very different story for an ad in Pennsylvania targeting Jewish voters. Let me be clear. I will always stand up for Israel's right to defend itself.

And I will always ensure Israel has the ability to defend itself because the people of Israel must never again face the horror that a terrorist organization called Hamas caused on October 7.

Different message. Andrew Kaczynski is out front now. So, Andrew, those obviously do sound starkly different, to say the least. Tell me more about what you found. Yeah, that's right. And look, this really illustrates the sort of fine line that the Harris campaign is trying to walk here in the closing weeks, closing days of this campaign on the issue of

Israel here, you have two entirely different constituencies and they are getting two entirely different messages. There are often times these constituencies have very opposing views on this. If you are a Jewish person in Pennsylvania, you saw that ad that you're getting. You are getting that ad that talks about how strong, strong she is in Israel. If you're a Muslim voter in Michigan, you are getting that ad on Facebook that's talking about

talking about how she won't be silent on the issue of Gaza. Now, what's really interesting here is that ad that we just played, the one that's going to Jewish voters in Pennsylvania. Now, it sort of sounds like those two clips of her talking about Israel are together, but they actually cut part of it out. Take a listen to what they cut.

What has happened in Gaza over the past 10 months is devastating. President Biden and I are working to end this war such that Israel is secure, the hostages are released, the suffering in Gaza ends, and the Palestinian people can realize their right to dignity, security, freedom, and self-determination.

And you've seen, too, that she – obviously, they cut out that portion of the ad where they talked about Gaza from her DNC speech. Those two parts were – together they sliced them. They cut that part out. Now, look, she's also getting hammered a lot on this issue by Republicans. We talked just a couple days ago about how those robocalls were airing in Wisconsin that are made to sound like they're in support of Jill Stein talking about her position on Gaza, saying that they're highlighting her pro-Israel position.

And they're sort of trying to siphon those votes away from her. So this is a really delicate issue for her. Oh, it certainly is. I mean, the Palestinian people can realize their right to dignity, security, freedom and self-determination are being cut out. It's important to notice that.

So here are my questions. First, do you have any thoughts on CNN specifically covering this story? Does it represent any sort of shift in the modern media landscape? Maybe a micro shift, but a shift nonetheless. And the second set of questions deals with the morality component. And necessary for this part, I want you to imagine Fox News

is also covering a similar investigation into Trump's ads. Because here's the deal, you can't be mad at Harris for doing something like this and not Trump if it were to happen, just like you can't be okay with Harris doing something like this without also being okay if Trump did it. That would be a double standard. So just imagine, for purposes of this exercise, that both candidates are making similar moves.

Is this idea okay or not and why? And as always, I really implore you to come up with arguments for both sides. So come up with reasons as to why this strategy is acceptable and come up with reasons why this isn't acceptable. You may surprise yourself in thinking that way.

And finally, this is the part of the episode where I'm going to answer some questions. Tomorrow night is election night here in the United States, and I know we have a lot of questions. I know that because when I asked all of you on Instagram to submit your questions, I received thousands of them. That is not an exaggeration. There were thousands. Obviously, I can't answer every single one, but there were a handful of questions that kept popping up, so I'm going to focus on those.

Starting with, I don't really understand the Electoral College and the voting system as a whole. So I want to simplify this as best as I can, starting with its purpose. Back when our nation was founded, the Electoral College was a compromise between the election of the president by a vote in Congress and the election of the president by a popular vote of qualified citizens.

So some of our country's founders wanted it to be one way, others wanted it the other way, and they came up with the Electoral College. The Electoral College consists of 538 electors. Each state gets one elector for each member representing that state in Congress.

So each state has two senators, but the number of representatives in the House varies by state. So each state, therefore, gets two electors for each of its two senators, or sorry, one elector for each of its two senators, which adds up to two electors, and then one elector for every representative that that state has in the House. That's why, as an example, California has more electors than New Jersey. California has more members in the House than New Jersey does due to its population, and therefore, it's entitled to more electors.

Now, a simple majority of the 538 electors is required to win the presidency. That's 270. So whichever candidate accumulates at least 270 electoral votes wins the election. So each candidate needs to win whatever states will add up to at least 270 electoral votes.

And almost always, the popular vote carries the electoral vote. In fact, out of the 59 elections we've had in the United States, only five didn't match up. In those five elections, which were in 1824, 1876, 1888, 2000, and 2016, the winner of the electoral vote lost the popular vote outright.

Now, let's quickly talk about how the electors are chosen, and then we'll talk about how the electors vote. So each candidate running for president has their own group of electors. This is known as a slate of electors in each state. These slates are generally chosen by that candidate's political party in that state. But state laws do vary as to how the electors are selected. So when you vote, you are actually voting for your chosen candidate's slate of electors. Your vote then goes to a statewide tally.

In 48 states plus D.C., the winner of that state takes all electoral votes for that state. The two outliers are Maine and Nebraska, which assign electors based on a proportional system. So Maine and Nebraska give two electoral votes to the candidate who wins the most votes statewide, and the remaining electoral votes are allocated to candidates according to the winner of each congressional district.

So it's possible that the electoral votes in those two states are actually split between two candidates. But in the other 48 states, winner takes all. And if you're wondering how Maine and Nebraska are able to do that when the rest of the country does it another way, it's because the Constitution actually gives the states the ability to make their own election rules. So, you know, they come up with all of this stuff themselves.

Then, after Election Day, on the first Tuesday after the second Wednesday in December, the electors convene in person in their states to formally cast their votes.

Now, electors are not bound by the Constitution or even federal law to vote according to the popular vote in their state. But 38 states plus D.C. have state laws that require electors to do so. Furthermore, in 2020, the Supreme Court held that states can penalize electors who don't vote in accordance with the popular vote. These are called faithless electors. And these faithless electors, they can face fines, replacement, even potentially prosecution. So once the electors cast their votes,

Their votes are recorded and submitted to Congress and the vice president. And then on January 6th, Congress holds a joint session where the electoral votes are counted and certified. And that's when the president is officially elected. So that is your crash course on the Electoral College. We are going to take a quick break. When we get back, we'll answer the remainder of the questions.

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Next question, what is the point of the popular vote if it's up to the electoral college? Well, as we just explained, the popular vote is necessary to tell the electors how to vote. Remember, the electors in 38 states plus DC are legally bound to vote in line with the popular vote. So without the popular vote, the election would fall squarely within the hands of the electoral college. Now, is there a world in which we could have a popular vote without the electoral vote? Yes, but that wasn't the compromise of the founding fathers. So here we are.

Next question. Will we get a winner that night? When should we expect to find out final results?

It is possible we know who the winner is on the night of the election, but it's also possible we don't. Both have happened. For instance, in 2012, Obama was the projected winner on election night before midnight. In 2016, Trump was declared the winner around 3 a.m. Eastern time in the early morning hours after the election. However, in 2020, many networks didn't declare Biden the winner until late morning on November 7th, which was four days after the election.

And another famous exception was in 2000 when Bush and Gore ran against each other. Right. That election was on November 7th. But because of Florida's tight margins, the and of course, the legal challenges that followed, the winner wasn't officially declared until December 12th.

when the Supreme Court struck down Florida's recount process and Bush ended up winning by tiny, tiny, tiny margins. So this election, it really depends how close the election is. If we have narrow margins, we could see statewide recounts, countywide recounts. You know, for instance, Pennsylvania, which is a key swing state,

it requires a recount if there's a half percentage point difference between the candidates. And again, each state has their own rules when it comes to when recounts are required. Also worth mentioning, the ongoing litigation. We've talked on this podcast about all kinds of lawsuits dealing with voter registration, voter role management, etc. And, you know, a

Those disputes are certainly playing out. Now, with that said, I don't necessarily see a world in which these lawsuits would end up actually delaying the election results or even swaying the election results just because the amount of people that are at issue in these lawsuits isn't substantial. But perhaps if the election is close enough in certain states, this pending litigation does delay the election.

Another thing or election results. Another thing to keep in mind is that this race is likely going to come down to Pennsylvania, Georgia, Arizona, Nevada, North Carolina, Michigan and Wisconsin. Of those states, Nevada's polls are open the latest and the last polls close at 10 p.m. Eastern time. So we won't even have the final in-person votes from Nevada until later in the night on election night.

And Nevada accepts ballots even after Election Day, so long as they're postmarked by Election Day and received by November 9th. So Nevada could take days to have final results. Pennsylvania may also take longer to count their ballots because some voters just received their mail-in ballots over the weekend, roughly 17,000 voters. Plus, in Pennsylvania, election officials can't even start processing early votes until the morning of Election Day.

Also, you have North Carolina. They just had that big hurricane. They also have new voter ID laws. So we could see more provisional ballots this election, which would take longer to count. Now, with that said, North Carolina's results are currently expected by midnight on the night of the election. Same with Georgia. Georgia state law requires all early votes to be counted and reported by 8 p.m. Eastern time on election night. So again, some states just take longer than others. But whether networks are able to actually decontaminate

a projected winner on election night will come down to how close the race is. Next question, why does it take so long to count the votes? Well, for one, as we just talked about, some states just take longer than others due to their election rules. In 43 states, election workers can at least start some level of processing mail-in ballots and absentee ballots before election day. But in the other seven states, which include some battleground states like Pennsylvania and Wisconsin,

Processing can't start until election day. Now, on top of this, for the first few days after the election, the states are undergoing a reconciliation process to confirm the results. So checking the number of ballots against the number of votes, checking the machine counts and audit process to make sure they match the hand counts. Sometimes they're doing recounts if the margins are tight. So there's a lot that goes into it, but we'll touch more on this in another question. Next question, what happens if no one gets 270 votes?

In the rare situation where neither candidate has the majority of electoral votes, the vote goes to the House. As per the 12th Amendment, there would be a contingent election in the House where each state would get one vote for the presidency. The Senate would be responsible for choosing the VP, and same thing, each senator would get one vote. This has only happened three times in history, in 1800, 1824, and 1836.

If the House doesn't successfully vote by Inauguration Day, the vice president-elect would act as the president. If neither are chosen by Election Day, it would be up to Congress to determine who acts as president in the meantime.

Next question, is it legal to count votes submitted after election night? Well, as I've said a few times now, election law is varied by state. That's the one thing you're going to take away from this episode, right? I feel like I've said it a million times. But as we've talked about too, some states do count ballots that were received after election day so long as they were postmarked by election day. 18 states plus D.C. work this way. However, if a ballot is postmarked after election day, it will not be counted.

Next question, how do mail-in votes get counted before day of after the election polls close? So how mail-in ballots are counted depends on the state, but there are two steps involved, processing and counting. How each state does the processing and counting is what varies. So depending on the state, processing can include conducting signature verification, removing mail ballots from their envelopes, or running ballots through scanners in preparation for generating a tally.

And as I said, 43 states allow election officials to start processing absentee and mail-in ballots before Election Day. But the other seven states do not. In those seven states that do not, election officials have to start processing on Election Day. So they're behind the other 43 states at this point.

When it comes to counting, most states start counting absentee and mail-in ballots on Election Day before the polls close. 14 states, though, plus D.C., don't allow counting to begin until after the polls close on Election Day. So even in those 43 states that allow processing to start before Election Day, they can't start actually counting until Election Day. And the time at which they can start counting on Election Day is determined by each individual state.

So again, processing and counting are two different steps. And depending on the state, processing and or counting can either start before Election Day or on Election Day. Next question, how can they call states so early if the votes aren't all counted?

Well, in the hours and days after polls close, states will publish unofficial results that news outlets will use to project winners. The states themselves often don't declare official winners until weeks after the vote tallies have been counted and certified. So on election night, when you hear media outlets, quote unquote, calling winners, what they're doing is they're using models to project how any given state has voted because sometimes it happens before all votes have even been counted by a state.

Oftentimes, though, the networks will wait to make these calls until they believe a candidate has gained enough of a lead that their opponent cannot beat them even when all of the votes are in. Now, obviously, the media could call a winner based on early ballot counts, historical voting patterns, surveys, etc.,

And then the finalized voting result from the state ends up being different. But just note that when networks call a winner, it doesn't necessarily mean that every ballot has been counted. They're instead calling that winner based on projections, past data, etc. What is the most reliable source for keeping track of the results?

Most major media outlets nationwide will rely on several organizations to crunch the numbers and make these race calls. Common resources include the Associated Press, National Election Pool, and Decision Desk headquarters. And some news outlets will actually make calls earlier than others and have varying levels of certainty required to make a call. So for these reasons, it's really important to follow more than one source.

Many counties will actually post their vote tallies online for the public to view, and these tallies can be a really great resource to keep up with too. And one other thing I'll say about this is in the past, earlier voting results tended to favor the Republican Party, but then as time went on, numbers sort of shifted towards the Democratic Party. And this is just because Republicans have traditionally favored in-person voting on Election Day, whereas more Democrats voted by mail.

However, we may see this change a little bit this election. We have seen a much bigger Republican turnout when it comes to earlier voting, and that's because in part, Trump himself has pushed early voting. So keep your eyes out to see what kind of trends we see this year. It could be interesting just to see how this, you know, how it changes if it does change. But as always, flip between networks. Don't just tune into one network. That way you can see what's going on across the board.

And finally, the last question is, how do damaged ballots get reconciled? There are a few different protocols for this, and it really depends on how damaged the ballot is. If a ballot is damaged, but it's still recognizable, meaning you can tell who the person voted for, but the machine just can't read it, election officials will attempt to remake the ballot so the new ballot can be fed into the voting machine. This is called ballot duplication or ballot replication. This is allowed in 42 different states. For example,

let's say there's a coffee stain or a tear or maybe a voter circled a candidate's name rather than, you know, filling in the bubble. It's not that the whole ballot is ruined to the point where you can't see who a voter voted for, but maybe the machine can't read it that way. That's where ballot duplication comes in. Now, a couple of things to note here. One, in the eight states that do not use ballot duplication, these unscannable ballots are typically

hand counted. And two, in the states that do use ballot duplication, the typical duplication procedure is as follows. The damaged or defective ballot is first identified and set aside. From there, an election official who's part of an official duplication team or accompanied by witnesses reviews the ballot to find out the voter's intent, meaning find out who the voter voted for. And after that review, the election official copies the voter's choices,

from the original ballot onto a new ballot, scans the new ballot into the machine. The new ballot and the old ballot are given labels with matching serial numbers that'll show which one is the duplicate and which one is the original. They'll be put together and set aside with any other duplicated ballots and preserved as part of the election record. So that's the duplication process. Now if a ballot is so damaged to the point that a voter's intent isn't clear,

the ballot won't be used at all. And this process will vary by state, but oftentimes election officials will attempt to contact any voters that this happened to and try to help them out with a new replacement ballot. We saw this with the mailbox fires in Arizona and the Pacific Northwest. So that was your election night Q&A, and that is what I have for you today. Thank you so much for being here. As always, have a great night, and I will talk to you tomorrow.