1 00:00:00,560 --> 00:00:05,360 Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,280 --> 00:00:09,240 Speaker 1: The Trump campaign has filed at least six lawsuits in 3 00:00:09,280 --> 00:00:13,080 Speaker 1: battleground states since election Day to challenge the ballot counts, 4 00:00:13,119 --> 00:00:15,760 Speaker 1: but so far the suits have not altered the racist 5 00:00:15,760 --> 00:00:19,680 Speaker 1: trajectory towards Joe Biden. Joining me is election law expert 6 00:00:19,720 --> 00:00:23,560 Speaker 1: inate personally a professor at Stanford Law School. Let's start 7 00:00:23,560 --> 00:00:27,280 Speaker 1: with Michigan. So the Trump campaigns that it filed lawsuits 8 00:00:27,320 --> 00:00:30,120 Speaker 1: to stop the count in Michigan, and they're basing it 9 00:00:30,160 --> 00:00:34,960 Speaker 1: on allegations that campaign observers haven't had enough access to 10 00:00:35,000 --> 00:00:38,240 Speaker 1: the locations where the ballots are being processed and counted. 11 00:00:38,640 --> 00:00:42,000 Speaker 1: Is there any chance that could stop the vote? No, 12 00:00:42,120 --> 00:00:44,440 Speaker 1: I don't think so. I think that, Um, you know, 13 00:00:44,479 --> 00:00:47,960 Speaker 1: they're following the law in Michigan. Uh. And you know, 14 00:00:48,080 --> 00:00:50,839 Speaker 1: the the part of the question here is how do 15 00:00:50,880 --> 00:00:54,800 Speaker 1: you ensure supervision and social distance in the vote counting process? 16 00:00:54,880 --> 00:00:58,080 Speaker 1: But um, you know, the most of the ballots have 17 00:00:58,200 --> 00:01:02,000 Speaker 1: been counted already, and I think what we're seeing is 18 00:01:02,200 --> 00:01:04,959 Speaker 1: just an effort to try to throw dust up in 19 00:01:04,959 --> 00:01:07,119 Speaker 1: the air and see how you can create a cloud 20 00:01:07,160 --> 00:01:09,880 Speaker 1: over the vote counting process. Uh. And so as we're 21 00:01:09,880 --> 00:01:14,640 Speaker 1: seeing that when in Michigan, Wisconsin, Pennsylvania and elsewhere. And 22 00:01:14,680 --> 00:01:17,039 Speaker 1: so I don't think it will succeed, but it's part 23 00:01:17,040 --> 00:01:19,960 Speaker 1: of a larger narrative. Is it part of a narrative 24 00:01:20,080 --> 00:01:23,280 Speaker 1: or is it part of a strategy of challenging the 25 00:01:23,360 --> 00:01:28,120 Speaker 1: votes in certain states to change the electoral vote in 26 00:01:28,200 --> 00:01:34,080 Speaker 1: Trump's favor? Well, the um, the issue here is whether 27 00:01:34,240 --> 00:01:37,880 Speaker 1: the abstinuctee ballots are somehow tainted, right, and so there 28 00:01:37,920 --> 00:01:41,240 Speaker 1: have been generic claims of corruption and fraud that even 29 00:01:41,280 --> 00:01:45,360 Speaker 1: precede the election itself, where Trump said that, um, the uh, 30 00:01:45,520 --> 00:01:48,120 Speaker 1: you know, the absinute ballots would be a fertile source 31 00:01:48,160 --> 00:01:50,640 Speaker 1: for fraud. Um, well, how do you have to You 32 00:01:50,640 --> 00:01:52,120 Speaker 1: can't just say that, you have to prove it. And 33 00:01:52,200 --> 00:01:54,400 Speaker 1: so the question is what in what way are they 34 00:01:54,440 --> 00:01:57,320 Speaker 1: throwing with um, what is it that that is being 35 00:01:57,360 --> 00:02:00,520 Speaker 1: done in the vote counting process to suggest because that's 36 00:02:00,520 --> 00:02:02,200 Speaker 1: the only way you can get a court to inter mean, 37 00:02:02,320 --> 00:02:05,400 Speaker 1: is to say well there's something wrong that's going on here. Uh. 38 00:02:05,440 --> 00:02:09,440 Speaker 1: And so that that argument takes different forms in different states, 39 00:02:09,440 --> 00:02:13,240 Speaker 1: depending on what the sort of process defect was that 40 00:02:13,320 --> 00:02:16,880 Speaker 1: the Trump campaign sees so let's turn to Pennsylvania now, 41 00:02:16,919 --> 00:02:19,160 Speaker 1: because he's suing also to stop the vote some of 42 00:02:19,160 --> 00:02:22,280 Speaker 1: the same allegations here that they don't have access to 43 00:02:22,520 --> 00:02:26,600 Speaker 1: the ballot process. Also, he's seeking to intervene in a 44 00:02:26,680 --> 00:02:29,600 Speaker 1: Pennsylvania case that was at the Supreme Court where the 45 00:02:29,639 --> 00:02:33,760 Speaker 1: Supreme Court by afford or four vote allowed Pennsylvania to 46 00:02:33,880 --> 00:02:37,680 Speaker 1: count ballots received three days after election day. But this 47 00:02:37,720 --> 00:02:42,080 Speaker 1: case may not necessarily be over tell us why so 48 00:02:42,160 --> 00:02:45,119 Speaker 1: the Trump campaign is seeking to intervene in the lawsuit 49 00:02:45,400 --> 00:02:49,400 Speaker 1: that already went up to the U. S Supreme Court. Uh. 50 00:02:49,440 --> 00:02:52,840 Speaker 1: And in that lawsuit, the um the state Supreme Court 51 00:02:52,880 --> 00:02:57,480 Speaker 1: in Pennsylvania ruled that ballots that are received within three 52 00:02:57,520 --> 00:03:00,840 Speaker 1: days after the election will count if they are postmarked 53 00:03:00,840 --> 00:03:05,000 Speaker 1: by election day. UM. Because that decision went away up 54 00:03:05,000 --> 00:03:07,200 Speaker 1: to the US Supreme Court was a four or four decision, 55 00:03:07,600 --> 00:03:10,120 Speaker 1: and there was some possibility that was Amy Coney Barrett 56 00:03:10,120 --> 00:03:13,360 Speaker 1: on the court, it would reach a different verdict. UH. 57 00:03:13,440 --> 00:03:18,320 Speaker 1: The the the folks in Pennsylvania decided to segregate those 58 00:03:18,360 --> 00:03:20,760 Speaker 1: ballots so that there will be a separate count of 59 00:03:20,840 --> 00:03:24,919 Speaker 1: those later arriving ballots. And as a result, UM, if 60 00:03:24,960 --> 00:03:27,240 Speaker 1: it comes down to those ballots. Well, then there may 61 00:03:27,240 --> 00:03:32,639 Speaker 1: be litigation over them. But because they're those ballots are segregated. Um, 62 00:03:32,720 --> 00:03:36,080 Speaker 1: if the margin of victory is large enough in the 63 00:03:36,120 --> 00:03:38,800 Speaker 1: other ballots, then they won't even have to deal without 64 00:03:38,880 --> 00:03:43,480 Speaker 1: legal issues. And will the Trump campaign likely be allowed 65 00:03:43,520 --> 00:03:48,040 Speaker 1: to intervene in that lawsuit? Well, either they intervene or 66 00:03:48,080 --> 00:03:52,000 Speaker 1: it becomes part of the other larger, uh set of 67 00:03:52,040 --> 00:03:55,960 Speaker 1: complaints that they have over the process, right and so um, 68 00:03:56,640 --> 00:03:59,440 Speaker 1: you know, the state Supreme Court has already ruled on 69 00:03:59,440 --> 00:04:01,920 Speaker 1: this issuees, so we know what they think. Um. The 70 00:04:02,040 --> 00:04:04,800 Speaker 1: question is whether this will be joined with a set 71 00:04:04,800 --> 00:04:07,120 Speaker 1: of claims that they are making about defects in the 72 00:04:07,200 --> 00:04:10,200 Speaker 1: vote counting process that will then lead to some kind 73 00:04:10,240 --> 00:04:13,000 Speaker 1: of federal court action, ultimately landing it at the Supreme Court. 74 00:04:14,480 --> 00:04:16,880 Speaker 1: What kind of what kind of defects would they have 75 00:04:17,000 --> 00:04:19,680 Speaker 1: to show? I mean, they're they're they're alleging that their 76 00:04:19,720 --> 00:04:23,520 Speaker 1: campaign observers aren't allowed to view where the ballots are 77 00:04:23,560 --> 00:04:27,400 Speaker 1: being processed. There's also a claim about some counties in 78 00:04:27,440 --> 00:04:32,640 Speaker 1: Pennsylvania or county in Pennsylvania allowing voters to cure their ballots. 79 00:04:33,760 --> 00:04:35,960 Speaker 1: What would they have to show to make it a 80 00:04:36,000 --> 00:04:39,360 Speaker 1: federal case, I guess so if you look sort of 81 00:04:39,480 --> 00:04:42,120 Speaker 1: underneath the complaints and try to read the minds of 82 00:04:42,160 --> 00:04:44,520 Speaker 1: people who are bringing it, this is trying to set 83 00:04:44,560 --> 00:04:47,120 Speaker 1: the stage for a similar type of argument that we 84 00:04:47,160 --> 00:04:49,599 Speaker 1: saw on Bush versus Gore, and it's two types of arguments. 85 00:04:49,680 --> 00:04:52,320 Speaker 1: One is that voters in different parts of the state 86 00:04:52,600 --> 00:04:55,039 Speaker 1: where subject to different rules. Some voters are allowed to 87 00:04:55,040 --> 00:04:58,360 Speaker 1: cure their ballots, others were not. And the second, which 88 00:04:58,400 --> 00:05:03,000 Speaker 1: is related, is that the ability to cure or the 89 00:05:03,040 --> 00:05:05,480 Speaker 1: in the ability to remedy any defects in the ballot 90 00:05:05,760 --> 00:05:08,919 Speaker 1: was pursuance the Secretary of State guidance or local rules 91 00:05:09,360 --> 00:05:12,320 Speaker 1: which go against state law that was passed by the legislature. 92 00:05:12,880 --> 00:05:16,200 Speaker 1: And what the Trump administration has been arguing a Trump 93 00:05:16,240 --> 00:05:19,800 Speaker 1: campaign has been arguing in other court cases is that 94 00:05:19,920 --> 00:05:22,279 Speaker 1: in effect, what you're doing is usurfing the power of 95 00:05:22,279 --> 00:05:25,320 Speaker 1: the legislature and that violates Article two, Section one of 96 00:05:25,320 --> 00:05:28,839 Speaker 1: the Constitution, which says that it's the state legislature which 97 00:05:28,839 --> 00:05:32,760 Speaker 1: will choose the manner of determining electors for the electoral college. Well, 98 00:05:32,800 --> 00:05:35,520 Speaker 1: I think if it if it ends up being outcome determinative, 99 00:05:35,560 --> 00:05:37,600 Speaker 1: that I do think that U s Supreme Court might 100 00:05:37,600 --> 00:05:40,080 Speaker 1: consider this, So we're a long way away from that 101 00:05:40,320 --> 00:05:43,440 Speaker 1: right now. We are in the prelitigation phase where the 102 00:05:43,520 --> 00:05:45,640 Speaker 1: ballot counting is still going on and we need to 103 00:05:45,640 --> 00:05:48,799 Speaker 1: make sure that every vote is counted um um. Once 104 00:05:49,120 --> 00:05:52,520 Speaker 1: the counse are known, then you can enter either a 105 00:05:52,600 --> 00:05:55,400 Speaker 1: recount phase or a contest phase where you're starting to 106 00:05:55,400 --> 00:05:58,320 Speaker 1: say there was something wrong with the processing and counting 107 00:05:58,400 --> 00:06:01,360 Speaker 1: these absentee ballots that we put into doubts, and then 108 00:06:01,400 --> 00:06:04,200 Speaker 1: you explain that, um you know, in litigation that might 109 00:06:04,320 --> 00:06:06,080 Speaker 1: make its way up to the U. S. Supreme Court. 110 00:06:06,160 --> 00:06:08,720 Speaker 1: But we were still just in that kind of prelitigation 111 00:06:08,800 --> 00:06:11,400 Speaker 1: stage is trying to figure out how to count each 112 00:06:11,400 --> 00:06:15,000 Speaker 1: one of these votes. The Trump campaign says it's going 113 00:06:15,040 --> 00:06:19,400 Speaker 1: to ask Wisconsin for a recount. It seems as if 114 00:06:19,400 --> 00:06:21,880 Speaker 1: that might be granted because Wisconsin has a one percent 115 00:06:22,040 --> 00:06:25,360 Speaker 1: margin is necessary for a recount. As a recount ever, 116 00:06:25,680 --> 00:06:29,159 Speaker 1: you know, resulted in a change in in votes at 117 00:06:29,080 --> 00:06:33,320 Speaker 1: a presidential election, not in a presidential election, But there 118 00:06:33,320 --> 00:06:37,160 Speaker 1: are plenty of examples of where recounts may discover ballots 119 00:06:37,520 --> 00:06:40,560 Speaker 1: or lead to the disqualish disqualification of ballots that would 120 00:06:40,640 --> 00:06:43,599 Speaker 1: change as a result um they ultimately didn't happen in 121 00:06:43,600 --> 00:06:46,800 Speaker 1: Bhish persons Gore in the two thousand presidential election controversy. 122 00:06:46,839 --> 00:06:51,360 Speaker 1: But there are situations, most famously with Al Frankin and 123 00:06:51,440 --> 00:06:54,599 Speaker 1: Norm Coleman in Minnesota and the recount that happened there 124 00:06:54,680 --> 00:06:57,240 Speaker 1: where where they sort of went back and forth, and 125 00:06:57,320 --> 00:06:59,880 Speaker 1: it really just depends on what might be the claim 126 00:07:00,200 --> 00:07:02,839 Speaker 1: as to why some votes should not be counted, or 127 00:07:02,839 --> 00:07:06,680 Speaker 1: why it might be fraudulent or others might have been excluded. 128 00:07:07,279 --> 00:07:10,040 Speaker 1: When you look at these various legal strategies that the 129 00:07:10,080 --> 00:07:13,320 Speaker 1: Trump campaign seems to be trying out, do any of 130 00:07:13,360 --> 00:07:17,240 Speaker 1: them strike you as more consequential than others? Well, I 131 00:07:17,680 --> 00:07:21,440 Speaker 1: think that right now they don't even really know what 132 00:07:21,680 --> 00:07:24,640 Speaker 1: the legal defects are in the process as it's unfolding, 133 00:07:25,040 --> 00:07:27,760 Speaker 1: But they want to preserve the possibility that they will 134 00:07:27,760 --> 00:07:30,200 Speaker 1: make these arguments later, and so they're throwing everything at 135 00:07:30,200 --> 00:07:32,520 Speaker 1: the wall to see what sticks. So a lot of 136 00:07:32,560 --> 00:07:37,280 Speaker 1: these claims are frivolous, um, but they're trying to launch 137 00:07:37,560 --> 00:07:40,520 Speaker 1: certain types of claims both to create doubt over the process, 138 00:07:40,560 --> 00:07:43,720 Speaker 1: but then also to potentially litigate other kinds of claims 139 00:07:44,080 --> 00:07:47,240 Speaker 1: if they they have an opportunity, whether in state court 140 00:07:47,320 --> 00:07:51,160 Speaker 1: or altimately federal courts. Are they also suing in Nevada 141 00:07:51,240 --> 00:07:55,440 Speaker 1: over absentee There is a dispute in arab Zona in 142 00:07:55,440 --> 00:07:58,040 Speaker 1: in Nevada, as I understand it, over the processing of 143 00:07:58,040 --> 00:08:00,840 Speaker 1: absentee balance in Clark County and how the signature matching 144 00:08:01,440 --> 00:08:03,760 Speaker 1: the process may have worked. But I have not seen 145 00:08:03,840 --> 00:08:07,320 Speaker 1: the actual legal papers there, so I've only heard this 146 00:08:07,400 --> 00:08:10,640 Speaker 1: second hand that this is perceiving when you look at this, 147 00:08:10,760 --> 00:08:13,680 Speaker 1: the way this is evolving. Is this how you expected 148 00:08:13,800 --> 00:08:17,680 Speaker 1: this election to evolve, That it would be complicated a 149 00:08:17,720 --> 00:08:19,880 Speaker 1: lot of challenges and you know it would take a 150 00:08:19,880 --> 00:08:23,800 Speaker 1: long time, or is this something it's unexpected? Well, I 151 00:08:23,840 --> 00:08:26,240 Speaker 1: was looking at the same holes as everybody else, and 152 00:08:26,320 --> 00:08:29,520 Speaker 1: so I don't know why we maintained in the rational 153 00:08:29,520 --> 00:08:31,240 Speaker 1: faith in them, given that they were so wrong four 154 00:08:31,320 --> 00:08:33,800 Speaker 1: years ago. But they showed that this election would be 155 00:08:33,800 --> 00:08:38,079 Speaker 1: beyond the margin of litigation. It still maybe that we're 156 00:08:38,120 --> 00:08:40,400 Speaker 1: not going to end up with having courts decide important 157 00:08:40,440 --> 00:08:43,760 Speaker 1: issues here. But um, I was as surprised as anyone 158 00:08:44,040 --> 00:08:46,120 Speaker 1: um and how close it was. But we all knew 159 00:08:46,200 --> 00:08:49,880 Speaker 1: going into uh November three that they were going to 160 00:08:49,880 --> 00:08:52,920 Speaker 1: be a large volume of absute ballots because in the 161 00:08:52,960 --> 00:08:56,040 Speaker 1: wake of COVID, this is the way that states adapted 162 00:08:56,080 --> 00:08:58,880 Speaker 1: to the COVID environment by by increasing the number of 163 00:08:59,040 --> 00:09:01,960 Speaker 1: mail and absinte up UM. We also knew that those 164 00:09:02,000 --> 00:09:05,599 Speaker 1: mail ballots would be different in as compared to the 165 00:09:05,640 --> 00:09:08,960 Speaker 1: same day vote because Democrats were more likely to use them. 166 00:09:09,280 --> 00:09:12,679 Speaker 1: The President knew that UH and also cast doubt um 167 00:09:12,800 --> 00:09:16,280 Speaker 1: several months before even the election day on the use 168 00:09:16,320 --> 00:09:19,360 Speaker 1: of mail ballot And so in some ways this legal 169 00:09:19,360 --> 00:09:24,439 Speaker 1: strategy was was prestiged early on with signals UM that 170 00:09:24,360 --> 00:09:27,319 Speaker 1: there would be claims of fraud in the absentee balloting process. 171 00:09:27,400 --> 00:09:30,120 Speaker 1: And now here we are where the election is coming 172 00:09:30,160 --> 00:09:32,320 Speaker 1: down to have since ballots in a in a in 173 00:09:32,360 --> 00:09:35,920 Speaker 1: a few states, UH, and if there is mitigational beyond 174 00:09:35,960 --> 00:09:38,480 Speaker 1: that basis, but we need to remember that this is 175 00:09:38,520 --> 00:09:41,880 Speaker 1: again the preltigation phase. And then we're still counting the votes, 176 00:09:42,520 --> 00:09:44,680 Speaker 1: and we need to see whether the margin might be um, 177 00:09:44,880 --> 00:09:47,640 Speaker 1: you know, too large for either candidate UH, such that 178 00:09:47,679 --> 00:09:50,680 Speaker 1: they would be able to win without resuning to the court. Finally, 179 00:09:51,400 --> 00:09:54,840 Speaker 1: the way this is evolving, and the fact that President 180 00:09:54,880 --> 00:09:59,239 Speaker 1: Trump has been saying repeatedly that mail in ballots are fraudulent. 181 00:09:59,600 --> 00:10:03,199 Speaker 1: Together with his comments today, does it make it seem 182 00:10:03,240 --> 00:10:05,400 Speaker 1: as if the American public is going to have a 183 00:10:05,440 --> 00:10:08,360 Speaker 1: hard time the majority of the American public believing in 184 00:10:09,000 --> 00:10:12,280 Speaker 1: the results. I think that was going to be true 185 00:10:12,400 --> 00:10:15,600 Speaker 1: no matter what happened in this election. There were large 186 00:10:15,960 --> 00:10:18,240 Speaker 1: sections of the American public that did not believe this 187 00:10:18,280 --> 00:10:21,080 Speaker 1: would be a free and fair election. I worried that 188 00:10:21,080 --> 00:10:23,240 Speaker 1: that's going to be even the larger share this time, 189 00:10:23,280 --> 00:10:26,040 Speaker 1: that whoever ends up using this election is going to 190 00:10:26,040 --> 00:10:29,520 Speaker 1: feel that the process is illegitimate. UM. And you know, 191 00:10:29,559 --> 00:10:32,240 Speaker 1: it doesn't help when the candidates, if the candidates themselves 192 00:10:32,559 --> 00:10:36,240 Speaker 1: say so uh, and so I am concerned about this. 193 00:10:36,320 --> 00:10:39,800 Speaker 1: I mean, we are as difficult as as the two 194 00:10:39,840 --> 00:10:42,880 Speaker 1: thousand controversy in Florida was. We were a much different 195 00:10:42,880 --> 00:10:47,079 Speaker 1: country back then, less polarized. UM. Certainly no pandemic or 196 00:10:47,120 --> 00:10:50,360 Speaker 1: recession at the time, and so we are not well 197 00:10:50,400 --> 00:10:52,920 Speaker 1: prepared for it. But we need to be patient, and 198 00:10:52,960 --> 00:10:55,000 Speaker 1: patience is in short supply these days, and we need 199 00:10:55,040 --> 00:10:57,320 Speaker 1: to let all of us be counted. Thanks for being 200 00:10:57,360 --> 00:11:01,040 Speaker 1: on the show, Nate. That's Nate personally, afessor at Stanford 201 00:11:01,080 --> 00:11:07,559 Speaker 1: Law School. President Trump seems to be pursuing a contradictory strategy, 202 00:11:07,640 --> 00:11:10,520 Speaker 1: attempting to stop vote counting in states where he thinks 203 00:11:10,559 --> 00:11:14,480 Speaker 1: he's ahead, while demanding the tallies continue or be recounted 204 00:11:14,520 --> 00:11:18,120 Speaker 1: where he's losing. Joining me his election law expert Derek Muller, 205 00:11:18,320 --> 00:11:20,679 Speaker 1: a professor at the College of Law on the University 206 00:11:20,720 --> 00:11:25,840 Speaker 1: of Iowa, is this the nightmare scenario that many election 207 00:11:26,200 --> 00:11:29,439 Speaker 1: law experts were dreading? So I wouldn't call it a 208 00:11:29,559 --> 00:11:33,840 Speaker 1: nightmare scenario, right, I think? Um, I think everyone expected 209 00:11:33,880 --> 00:11:37,360 Speaker 1: there was going to be some counting in some extension 210 00:11:37,400 --> 00:11:40,559 Speaker 1: of period of time where the ballots are going to 211 00:11:40,640 --> 00:11:43,880 Speaker 1: come in that in some states like Pennsylvania and Michigan 212 00:11:43,880 --> 00:11:47,400 Speaker 1: in particular, there wasn't a whole lot of pre processing 213 00:11:47,440 --> 00:11:50,040 Speaker 1: of ballots ahead of election day. Those absentee and mail 214 00:11:50,080 --> 00:11:52,840 Speaker 1: in ballots that um, you know, came by the millions 215 00:11:52,840 --> 00:11:55,200 Speaker 1: in those states. Um, that was just going to delay 216 00:11:55,280 --> 00:11:57,959 Speaker 1: some of the results. And so, UM, what we're seeing 217 00:11:58,040 --> 00:12:00,840 Speaker 1: is sort of the inevitable results of some of those 218 00:12:00,840 --> 00:12:04,160 Speaker 1: delays and you know, some some shift in the in 219 00:12:04,240 --> 00:12:07,680 Speaker 1: the results of the election. UM. I think the nightmare 220 00:12:07,720 --> 00:12:11,559 Speaker 1: scenario arises if it looks like one state um is 221 00:12:11,559 --> 00:12:14,160 Speaker 1: going to be the tipping point in the electoral college, 222 00:12:14,360 --> 00:12:18,120 Speaker 1: and if that one state UM is decided by a 223 00:12:18,200 --> 00:12:22,840 Speaker 1: razor thin margin or over some pool of disputed ballots. So, um, 224 00:12:22,880 --> 00:12:24,720 Speaker 1: I think we're sort of in the in the you know, 225 00:12:24,800 --> 00:12:28,000 Speaker 1: sort of uncomfortable waiting zone, but far from a nightmare 226 00:12:28,000 --> 00:12:31,360 Speaker 1: scenario at the moment. President Trump has said that we're 227 00:12:31,360 --> 00:12:33,960 Speaker 1: going straight to the Supreme Court, We're going to stop 228 00:12:34,000 --> 00:12:37,720 Speaker 1: the count and the Supreme Court did stop Florida from 229 00:12:37,760 --> 00:12:42,199 Speaker 1: recounting in two thousand. Is that a possibility, Yes, so 230 00:12:42,280 --> 00:12:45,480 Speaker 1: I think it's a very remote possibility. Um. Pretty unlikely 231 00:12:45,520 --> 00:12:48,160 Speaker 1: at this point. Um. So the first thing to keep 232 00:12:48,200 --> 00:12:51,520 Speaker 1: in mind is thinking about what kind of legal setup 233 00:12:51,559 --> 00:12:54,760 Speaker 1: you have to say that you should stop counting in 234 00:12:54,800 --> 00:12:57,600 Speaker 1: the first place. So there's difference between stopping counting and 235 00:12:57,600 --> 00:13:01,480 Speaker 1: stopping recounting. Um. So, So the counts are still happening, 236 00:13:01,480 --> 00:13:04,360 Speaker 1: and we haven't even finished those sort of final totals, 237 00:13:04,400 --> 00:13:07,520 Speaker 1: including ballots that have been received weeks ago in some states. 238 00:13:08,080 --> 00:13:11,160 Speaker 1: So there's a very difficult sort of climb to say 239 00:13:11,160 --> 00:13:14,280 Speaker 1: you shouldn't count certain ballots. Now, that's how to say 240 00:13:14,320 --> 00:13:16,120 Speaker 1: that he doesn't have a case you know there were 241 00:13:16,240 --> 00:13:20,280 Speaker 1: lawsuits in Pennsylvania in particular, saying, um, these ballots that 242 00:13:20,600 --> 00:13:23,920 Speaker 1: a state supreme court said should be counted that are 243 00:13:23,960 --> 00:13:26,520 Speaker 1: received in the three days after election day, those with 244 00:13:26,600 --> 00:13:29,280 Speaker 1: a postmark of election day or earlier, or those without 245 00:13:29,280 --> 00:13:33,480 Speaker 1: a postmark should be counted. And the states that you 246 00:13:33,480 --> 00:13:36,160 Speaker 1: know what we have acknowledge there's a legal challenge to this. 247 00:13:36,280 --> 00:13:38,480 Speaker 1: We're going to segregate these ballots. We're going to set 248 00:13:38,520 --> 00:13:40,920 Speaker 1: them off to the side, and in the events there's 249 00:13:40,960 --> 00:13:44,400 Speaker 1: a legal dispute about them later, we at least can 250 00:13:44,720 --> 00:13:47,079 Speaker 1: don't have to unscramble the egg, right, they're not mixed 251 00:13:47,080 --> 00:13:48,520 Speaker 1: in with the other ballots, and we can sort of 252 00:13:48,559 --> 00:13:51,400 Speaker 1: address it. So that's like a very narrow sort of 253 00:13:51,400 --> 00:13:53,280 Speaker 1: decision to say, oh, these are the kinds of things 254 00:13:53,320 --> 00:13:56,200 Speaker 1: that we're challenging. But in terms of like the ordinary 255 00:13:56,200 --> 00:13:58,640 Speaker 1: state process of if we have absentee ballots or we 256 00:13:58,679 --> 00:14:00,760 Speaker 1: have in person ballots and we're sort of running them 257 00:14:00,760 --> 00:14:03,320 Speaker 1: through the machine and counting them up, there's not really 258 00:14:03,360 --> 00:14:06,080 Speaker 1: just sort of a way of litigating that much last 259 00:14:06,080 --> 00:14:08,240 Speaker 1: getting the Supreme court right, you start in the state, 260 00:14:08,559 --> 00:14:12,560 Speaker 1: you start in the district court or or state lower court, state, 261 00:14:12,600 --> 00:14:15,720 Speaker 1: file court and file under some kind of cause of action. 262 00:14:15,800 --> 00:14:18,679 Speaker 1: So unless there's some sort of malfies and some legal 263 00:14:18,720 --> 00:14:21,360 Speaker 1: hook um, you know, that's not going to happen. Um. 264 00:14:21,440 --> 00:14:24,760 Speaker 1: So it's under say that that there are opportunities to 265 00:14:24,920 --> 00:14:27,720 Speaker 1: file those kinds of challenges, but but that you know, 266 00:14:27,760 --> 00:14:30,920 Speaker 1: sort of a wholesale stop accounting is just not in 267 00:14:30,960 --> 00:14:33,440 Speaker 1: the cards at the moment. So let's talk then about 268 00:14:33,480 --> 00:14:37,360 Speaker 1: some of the possible legal challenges. So let's say a 269 00:14:37,480 --> 00:14:42,600 Speaker 1: state is very close razor thin. Also you have observers 270 00:14:42,720 --> 00:14:46,320 Speaker 1: watching the counting going on. What kinds of claims could 271 00:14:46,400 --> 00:14:50,640 Speaker 1: be made? Would it just be about the absentee, the 272 00:14:50,920 --> 00:14:54,200 Speaker 1: mail in and the provisional ballots or is there a 273 00:14:54,280 --> 00:14:57,880 Speaker 1: broader claim? Yeah, I mean there's lots of different things 274 00:14:57,880 --> 00:15:00,600 Speaker 1: that could be could be challenged in different with fact um, 275 00:15:00,680 --> 00:15:05,000 Speaker 1: there could be challenges to the provisional ballots. So folks 276 00:15:05,000 --> 00:15:08,000 Speaker 1: who tried to cast the ballot the polls, but you know, 277 00:15:08,360 --> 00:15:12,040 Speaker 1: they lacked a form of identification or um, they lacked 278 00:15:12,080 --> 00:15:14,200 Speaker 1: proup of residents or whatever it might be, and so 279 00:15:14,240 --> 00:15:16,080 Speaker 1: they were turned away. But they cast a ballot with 280 00:15:16,120 --> 00:15:18,760 Speaker 1: an opportunity to come back later and cure that and 281 00:15:18,840 --> 00:15:22,480 Speaker 1: people might challenge those kinds of decisions that are happening 282 00:15:22,720 --> 00:15:24,960 Speaker 1: or um they might look at, you know, if there's 283 00:15:25,000 --> 00:15:27,240 Speaker 1: a some of these absentee ballots that might have been 284 00:15:27,280 --> 00:15:31,200 Speaker 1: rejected for some reason, or that we're counted, uh, you know, 285 00:15:31,240 --> 00:15:33,920 Speaker 1: with presumptions that the signatures were valid and that looked 286 00:15:33,960 --> 00:15:36,000 Speaker 1: like the was the identity of the voter. But we're 287 00:15:36,080 --> 00:15:38,880 Speaker 1: challenged by some observer and we're sort of set aside. 288 00:15:39,320 --> 00:15:42,360 Speaker 1: But these are sort of pretty narrow, sort of fact 289 00:15:42,400 --> 00:15:46,480 Speaker 1: by fact questions, right, sort of ballot by palette um. 290 00:15:46,600 --> 00:15:49,680 Speaker 1: And that's a long slog for a campaign. You need 291 00:15:49,800 --> 00:15:52,400 Speaker 1: a razor thin margin in order to win on that 292 00:15:52,480 --> 00:15:54,000 Speaker 1: kind of a theory. And by raise your sin, I 293 00:15:54,040 --> 00:15:56,840 Speaker 1: mean I'm talking about a couple of hundred votes, right, 294 00:15:56,880 --> 00:15:59,480 Speaker 1: I'm not talking one person. I'm talking about an exceedingly 295 00:15:59,560 --> 00:16:03,080 Speaker 1: narrow margins. So there's there's that sort of um set 296 00:16:03,120 --> 00:16:05,720 Speaker 1: of claims that can happen in narrow election. The others, 297 00:16:05,760 --> 00:16:07,600 Speaker 1: you know, maybe you can try to raise some kind 298 00:16:07,600 --> 00:16:10,880 Speaker 1: of more systemic challenge and that might be a version 299 00:16:10,920 --> 00:16:13,400 Speaker 1: of what happened in Bush versus Core in two thousand. 300 00:16:13,560 --> 00:16:15,960 Speaker 1: You know, the legal hook that really won the day 301 00:16:15,960 --> 00:16:19,680 Speaker 1: at the Supreme Court was um, some counties were proceeding 302 00:16:19,760 --> 00:16:22,640 Speaker 1: one way with a recount um, and others were proceeding 303 00:16:22,680 --> 00:16:25,880 Speaker 1: in a different way, and still others were not really 304 00:16:25,960 --> 00:16:29,000 Speaker 1: counting at all. And when the Supreme Court stepped in 305 00:16:29,040 --> 00:16:31,640 Speaker 1: and said, you had to pride provide some uniform guidance. 306 00:16:31,640 --> 00:16:33,840 Speaker 1: So to the extent that it looks like there's some 307 00:16:34,120 --> 00:16:38,840 Speaker 1: funny decisions happening in some counties but not in others, 308 00:16:38,880 --> 00:16:41,200 Speaker 1: there would be an opportunity to step in and say, oh, 309 00:16:41,200 --> 00:16:43,680 Speaker 1: you're doing something different in this county that's not available 310 00:16:43,680 --> 00:16:46,600 Speaker 1: in others. So one challenge the Trump campaign that has 311 00:16:46,640 --> 00:16:49,920 Speaker 1: been filed in state court is um that one county 312 00:16:49,920 --> 00:16:53,600 Speaker 1: in Pennsylvania was reaching out and contacting voters whose absentee 313 00:16:53,640 --> 00:16:57,680 Speaker 1: ballots were rejected for some reason, inviting them to come 314 00:16:57,800 --> 00:17:00,000 Speaker 1: cure the ballot and viting the voters to come and say, 315 00:17:00,040 --> 00:17:02,160 Speaker 1: you know, so you fail to fill out this information 316 00:17:02,320 --> 00:17:04,920 Speaker 1: or whatever it is, you know, let's fix it. Um. 317 00:17:04,920 --> 00:17:06,920 Speaker 1: And if that's the practice one of the sixty seven 318 00:17:06,920 --> 00:17:08,960 Speaker 1: counties is doing, does it put sort of the other 319 00:17:09,040 --> 00:17:11,960 Speaker 1: voters on unequal footing And is it sort of this 320 00:17:12,040 --> 00:17:15,200 Speaker 1: sort of treatment that's arbitrary, as the Supreme Court set 321 00:17:15,240 --> 00:17:17,760 Speaker 1: in Bush versus Score Right, this really in vidious sort 322 00:17:17,800 --> 00:17:20,119 Speaker 1: of decision. So you would have to come up with 323 00:17:20,160 --> 00:17:21,919 Speaker 1: a theory like that, but you know, you have to 324 00:17:21,960 --> 00:17:23,960 Speaker 1: think about it on the flip side too. Of a 325 00:17:24,000 --> 00:17:27,040 Speaker 1: couple of responses to that kind of answer. The first 326 00:17:27,119 --> 00:17:30,840 Speaker 1: is to say, well, um, you know, just because the 327 00:17:30,920 --> 00:17:34,400 Speaker 1: county is doing something differently, how problematic is it inviting 328 00:17:34,440 --> 00:17:37,680 Speaker 1: a few voters to cure um you know, doesn't seem 329 00:17:37,760 --> 00:17:40,960 Speaker 1: like the kind of um, you know, disparate treatment of 330 00:17:41,960 --> 00:17:45,000 Speaker 1: We're carefully counting ballots in one part of the state 331 00:17:45,280 --> 00:17:47,440 Speaker 1: and we're not counting them at all somewhere else. I mean, 332 00:17:47,760 --> 00:17:49,680 Speaker 1: so so we have to draw the distinctions on that front. 333 00:17:50,000 --> 00:17:53,000 Speaker 1: But another, I think the more potent one is um 334 00:17:53,600 --> 00:17:55,720 Speaker 1: is a notion of latches or the notion that you 335 00:17:55,800 --> 00:17:59,160 Speaker 1: brought this claim far too late and there's a remedial 336 00:17:59,160 --> 00:18:01,320 Speaker 1: bar that says you can't bring this claim at this 337 00:18:01,400 --> 00:18:04,520 Speaker 1: point in time. Uh, you know, particularly in this case 338 00:18:04,640 --> 00:18:07,600 Speaker 1: in Pennsylvania. Uh, this is something conti's have been doing 339 00:18:07,640 --> 00:18:09,640 Speaker 1: for a long time. This is something the Republican Party 340 00:18:09,640 --> 00:18:12,720 Speaker 1: has been unnoticed for for an extended period of time. 341 00:18:13,119 --> 00:18:15,440 Speaker 1: And if that's the case, um, you know, depending on 342 00:18:15,440 --> 00:18:16,959 Speaker 1: the length of time and how much notice they had 343 00:18:17,000 --> 00:18:18,960 Speaker 1: and when they ought to service stepped into to say 344 00:18:19,000 --> 00:18:21,960 Speaker 1: something about it, it's just too late. It's just unfair 345 00:18:22,000 --> 00:18:24,160 Speaker 1: for us to step in and change things. So unlike 346 00:18:24,160 --> 00:18:26,360 Speaker 1: Push versus Score, where their recount was sort of being 347 00:18:26,400 --> 00:18:30,040 Speaker 1: developed on the fly and there were constant, pressing, immediate 348 00:18:30,119 --> 00:18:33,720 Speaker 1: legal challenges to it, um, the more sort of longstanding 349 00:18:33,800 --> 00:18:36,360 Speaker 1: nature of the problem makes some of these litigation challenges 350 00:18:36,400 --> 00:18:38,239 Speaker 1: a little bit more difficult. So I think about that 351 00:18:38,359 --> 00:18:41,200 Speaker 1: is sort of the that the system of things at 352 00:18:41,240 --> 00:18:43,800 Speaker 1: play when we think about, you know, challenges even in 353 00:18:43,800 --> 00:18:47,639 Speaker 1: a narrowly contested state. Let's talk about the other case 354 00:18:47,720 --> 00:18:50,560 Speaker 1: at in Pennsylvania that went up to the Supreme Court 355 00:18:51,080 --> 00:18:54,919 Speaker 1: where the Supreme Court allowed the counting of ballots in 356 00:18:54,960 --> 00:18:58,879 Speaker 1: Pennsylvania for three days after election day, ballots that have 357 00:18:58,960 --> 00:19:04,240 Speaker 1: been postmarked by election day, and several of the conservative justices, 358 00:19:04,400 --> 00:19:08,639 Speaker 1: particularly Justice Alito, said, oh, well, these are being segregated, 359 00:19:08,760 --> 00:19:11,919 Speaker 1: so so we could consider this after the election. So 360 00:19:12,000 --> 00:19:14,440 Speaker 1: tell us what was said by the Supreme Court there 361 00:19:14,520 --> 00:19:18,639 Speaker 1: that may lead to this case coming back there? Yeah, No, 362 00:19:18,720 --> 00:19:21,760 Speaker 1: I mean you set it up nicely. Right, it's um. 363 00:19:22,080 --> 00:19:24,119 Speaker 1: And the heart of this dispute really harkens back to 364 00:19:24,160 --> 00:19:28,040 Speaker 1: another Bush versus Score question. Right. So, the the question 365 00:19:28,080 --> 00:19:31,320 Speaker 1: really arose in Pennsylvania over a couple of concerns. One 366 00:19:31,440 --> 00:19:34,840 Speaker 1: is so Pennsylvania has a clear and explicit statute that 367 00:19:34,920 --> 00:19:38,120 Speaker 1: says ballots are due on election day, that's when they 368 00:19:38,119 --> 00:19:41,439 Speaker 1: have to be in UM. And then there was a 369 00:19:41,480 --> 00:19:44,320 Speaker 1: litigation challenge to say, listen, we've got this huge volume 370 00:19:44,320 --> 00:19:47,400 Speaker 1: of absentee voters. UM, there are more people than ever 371 00:19:47,520 --> 00:19:50,040 Speaker 1: voting by absentee. There are more people than ever who 372 00:19:50,080 --> 00:19:53,520 Speaker 1: are aligned on the postal service. The postal service, whether 373 00:19:53,880 --> 00:19:56,960 Speaker 1: for innocent reasons or for service cuts, just can't handle 374 00:19:57,000 --> 00:20:01,320 Speaker 1: these kinds of a volume of stuff. So we're challenging 375 00:20:01,359 --> 00:20:04,840 Speaker 1: to say that we need to extend that deadline three days. 376 00:20:04,880 --> 00:20:08,560 Speaker 1: And Dependsylvania Supreme Court said, under its free and fair 377 00:20:08,600 --> 00:20:13,320 Speaker 1: Elections clause in the Constitution, which is a pretty generic phrase, right, 378 00:20:13,520 --> 00:20:17,680 Speaker 1: free their elections. Looking at that clause, that we conclude 379 00:20:18,000 --> 00:20:21,920 Speaker 1: that that there's this sort of legislative preference for us 380 00:20:22,080 --> 00:20:26,520 Speaker 1: pursue into this clause to extend this recognition of ballots, 381 00:20:26,520 --> 00:20:29,520 Speaker 1: its acceptance of bounce in extra three days, those postmark 382 00:20:29,560 --> 00:20:32,879 Speaker 1: by election day or those without a postmark um that 383 00:20:32,920 --> 00:20:35,639 Speaker 1: are received within three days will presume that they are valid, 384 00:20:35,720 --> 00:20:38,440 Speaker 1: which is a little bit more of a controversial claim. 385 00:20:38,560 --> 00:20:41,159 Speaker 1: And when it goes up to the Supreme Court, they 386 00:20:41,240 --> 00:20:43,280 Speaker 1: end up saying, well, you know, cheat us. As roberts 387 00:20:43,320 --> 00:20:46,199 Speaker 1: Is suggested, well, this is a state court decision, so 388 00:20:46,280 --> 00:20:48,640 Speaker 1: maybe it'll stay in place. But just as a leader 389 00:20:48,680 --> 00:20:51,359 Speaker 1: wrote separately, uh, you know, saying, you know, it's not 390 00:20:51,440 --> 00:20:55,080 Speaker 1: just a state court decision. It's a state court decision 391 00:20:55,680 --> 00:21:01,119 Speaker 1: that basically contravenes a direct legislative guidance from the legislature 392 00:21:01,200 --> 00:21:04,400 Speaker 1: that says ballots come in by election day. And when 393 00:21:04,440 --> 00:21:07,520 Speaker 1: you do that, the celto sort of emphasize you are 394 00:21:07,720 --> 00:21:11,680 Speaker 1: usurping the state legislative power, which is an Article two 395 00:21:11,680 --> 00:21:14,560 Speaker 1: of the Constitution each state shall appoint a number of 396 00:21:14,560 --> 00:21:18,080 Speaker 1: electors in the manner that the legislature thereof may direct. 397 00:21:18,720 --> 00:21:21,480 Speaker 1: And three justices writing in Bush versus Gore, sort of 398 00:21:21,640 --> 00:21:26,160 Speaker 1: had a sort of emphasis on this prong of the Constitution. 399 00:21:26,240 --> 00:21:29,160 Speaker 1: Chief Dolfic Rank with opinion in Bush versus Score highlights 400 00:21:29,240 --> 00:21:33,400 Speaker 1: this notion that it's principally the responsibility of the legislature. 401 00:21:33,400 --> 00:21:36,200 Speaker 1: And even before Bush versus Gore just a week before, 402 00:21:36,320 --> 00:21:38,920 Speaker 1: in the unanimous decision of the Supreme Court in the 403 00:21:38,960 --> 00:21:42,800 Speaker 1: case called Bush versus Poem Beach Campusing Board, the Court said, 404 00:21:42,800 --> 00:21:45,240 Speaker 1: you know, it's a general matter. We defer to state 405 00:21:45,320 --> 00:21:49,320 Speaker 1: interpretations of state law from the highest court, but not always. 406 00:21:49,400 --> 00:21:52,240 Speaker 1: And it's because there's this article too concern of the 407 00:21:52,359 --> 00:21:55,720 Speaker 1: legislative prerogative to make these decisions. But you know, it's 408 00:21:55,720 --> 00:21:58,240 Speaker 1: a heavy lift, as Justice Kagan wrote in a separate 409 00:21:58,240 --> 00:22:01,960 Speaker 1: opinion that was arising out these disputes, to say, well, 410 00:22:02,000 --> 00:22:05,120 Speaker 1: wait a minute. You know, when we talk about the legislature, 411 00:22:05,520 --> 00:22:08,359 Speaker 1: you can't the legislature be bound by its own constitution? 412 00:22:08,720 --> 00:22:11,960 Speaker 1: Can't the legislature be bound by the state constitution? As 413 00:22:11,960 --> 00:22:14,600 Speaker 1: opposed to this other view from Justice Alito and joined, 414 00:22:14,640 --> 00:22:18,440 Speaker 1: I think um by at least Justice is Gorsuch, Thomas, 415 00:22:18,560 --> 00:22:22,080 Speaker 1: and Kavanaugh and some separate opinions scattered throughout these uh, 416 00:22:22,200 --> 00:22:25,720 Speaker 1: these cases, shouldn't this this isn't sort of a federal 417 00:22:25,760 --> 00:22:29,399 Speaker 1: prerogative to ensure that the legislative power in trying in 418 00:22:29,440 --> 00:22:32,800 Speaker 1: the Constitution and the federal Constitution is protected and not 419 00:22:33,000 --> 00:22:36,040 Speaker 1: U served by a state authority. So that's sort of 420 00:22:36,080 --> 00:22:39,160 Speaker 1: the heart of this dispute, and Justice Alito it suggested, well, 421 00:22:39,200 --> 00:22:42,200 Speaker 1: you know what, at least because these ballots are segregated, UM, 422 00:22:42,280 --> 00:22:43,960 Speaker 1: we don't have to get back to it. We don't 423 00:22:44,000 --> 00:22:45,879 Speaker 1: have to go back. You know, we were we we 424 00:22:45,920 --> 00:22:47,600 Speaker 1: could go back to it. We don't have to worry 425 00:22:47,600 --> 00:22:50,879 Speaker 1: about the the pressing issue at the moment. But but 426 00:22:50,920 --> 00:22:53,439 Speaker 1: in my view, I'll be honest, I think it's really 427 00:22:53,560 --> 00:22:56,320 Speaker 1: top to look at these ballots. They are gonna be counted. 428 00:22:56,440 --> 00:22:58,680 Speaker 1: They're gonna be counted, and that's segregated in case there's 429 00:22:58,720 --> 00:23:00,560 Speaker 1: sort of a fight about them. It would be really 430 00:23:00,560 --> 00:23:02,199 Speaker 1: tough for the court to come back and say, you know, 431 00:23:02,240 --> 00:23:04,040 Speaker 1: at dis batch about that we were going to count 432 00:23:04,960 --> 00:23:08,040 Speaker 1: um that have been counted should not count. It's a 433 00:23:08,040 --> 00:23:10,560 Speaker 1: little different than bushources Gore, which says, whatever you're doing, 434 00:23:10,680 --> 00:23:13,680 Speaker 1: stop kind of freeze going back and undoing it. I 435 00:23:13,720 --> 00:23:15,280 Speaker 1: think it's going to be a happier lift. I think 436 00:23:15,320 --> 00:23:18,399 Speaker 1: it's sets the post election day challenge in a different 437 00:23:18,440 --> 00:23:21,600 Speaker 1: procedural posture than the pre election day. But time will tell. 438 00:23:21,680 --> 00:23:24,679 Speaker 1: We'll see if there's litigation on this that continues and 439 00:23:24,720 --> 00:23:30,080 Speaker 1: what's your take on Justice Kavanaughs concurring opinion in the 440 00:23:30,119 --> 00:23:34,600 Speaker 1: Wisconsin case that had democrats. Uh. I don't know if 441 00:23:34,600 --> 00:23:41,800 Speaker 1: the words frantic, furious, or concerns. Yeah. Yeah, So Justice 442 00:23:41,840 --> 00:23:44,800 Speaker 1: Kavanaugh really, I mean, he started down this road that 443 00:23:44,920 --> 00:23:48,359 Speaker 1: Justice Polito later joined his in this other opinion right first, 444 00:23:48,400 --> 00:23:52,200 Speaker 1: really emphasizing the sort of primacy of legislature to make 445 00:23:52,240 --> 00:23:56,240 Speaker 1: these kinds of decisions, and citing Bush versus Gore, which 446 00:23:56,280 --> 00:24:00,359 Speaker 1: is a case of Supreme Court almost never cite. You know, 447 00:24:00,480 --> 00:24:02,639 Speaker 1: since since Push versus Core was issued in two thousand, 448 00:24:02,720 --> 00:24:06,280 Speaker 1: Justice Thomas cited at once in a concurring opinion for 449 00:24:06,280 --> 00:24:10,240 Speaker 1: for a pretty um ordinary proposition um. And since then, 450 00:24:10,600 --> 00:24:13,160 Speaker 1: Justice Kavanaugh's opinion was only the second time the Supreme 451 00:24:13,200 --> 00:24:16,440 Speaker 1: Court has ever cited Push versus Score. So this is 452 00:24:16,480 --> 00:24:18,959 Speaker 1: sort of, you know, warning bells for those who are 453 00:24:19,000 --> 00:24:21,600 Speaker 1: concerned about these state court decisions to say, well, wait 454 00:24:21,600 --> 00:24:24,880 Speaker 1: a minute, maybe the United States Supreme Court is really 455 00:24:24,880 --> 00:24:28,400 Speaker 1: going to start taking these claims much more seriously um 456 00:24:28,440 --> 00:24:31,199 Speaker 1: and turn out hading. Justice Lego's opinion also pointed in 457 00:24:31,200 --> 00:24:34,280 Speaker 1: that direction. Um. But I think Justice Kavanaugh's opinion also 458 00:24:34,320 --> 00:24:38,080 Speaker 1: gets it a greater concern. It's a concern he's um 459 00:24:38,080 --> 00:24:41,000 Speaker 1: written about in a series of cases that have come 460 00:24:41,080 --> 00:24:44,720 Speaker 1: out of this pandemic. I think in particular, Um, he's 461 00:24:44,720 --> 00:24:47,280 Speaker 1: sort of written separately of his own views these are 462 00:24:47,320 --> 00:24:52,040 Speaker 1: sort of quintessentially um legislative judgments, and that these are 463 00:24:52,119 --> 00:24:55,960 Speaker 1: principally questions left to the political process and for the 464 00:24:56,080 --> 00:24:59,440 Speaker 1: legislature to make a decision about UM and this functional 465 00:24:59,480 --> 00:25:02,400 Speaker 1: at lege leasures might be. And some of these circumstances, 466 00:25:02,880 --> 00:25:08,040 Speaker 1: I think Pennsylvania, Wisconsin have had legislatures really at heads 467 00:25:08,440 --> 00:25:13,200 Speaker 1: at odds with the executives of those states and really 468 00:25:13,280 --> 00:25:15,639 Speaker 1: unable to reach some consensus or agreement. You have been 469 00:25:15,680 --> 00:25:19,400 Speaker 1: in a pandemic. UM. But Justice Kavanaugh sort of rite 470 00:25:19,400 --> 00:25:22,639 Speaker 1: separately to emphasize less and in the Constitution, it really 471 00:25:22,960 --> 00:25:27,680 Speaker 1: places this principal responsibility with legislatures to the political branches 472 00:25:27,720 --> 00:25:30,199 Speaker 1: to make political judgments. And that's not to say the 473 00:25:30,200 --> 00:25:32,960 Speaker 1: courts can't step in or don't have some responsibilities of 474 00:25:33,000 --> 00:25:35,399 Speaker 1: stepping in, but there's this sort of fum on the 475 00:25:35,520 --> 00:25:40,080 Speaker 1: scale of deference to the state legislatures in these cases. UM. 476 00:25:40,200 --> 00:25:43,640 Speaker 1: So this is the sort of ongoing challenge I think 477 00:25:43,640 --> 00:25:46,040 Speaker 1: on the Court about you know, when do you give 478 00:25:46,119 --> 00:25:49,040 Speaker 1: the deference to the state legislature versus when you don't? 479 00:25:49,280 --> 00:25:52,159 Speaker 1: Or when are those instances where a judicial decision is 480 00:25:52,200 --> 00:25:55,520 Speaker 1: something that's sort of, uh, is sort of extraordinary enough 481 00:25:55,600 --> 00:25:59,720 Speaker 1: to say, yeah, this was this needed to change the process, 482 00:25:59,760 --> 00:26:03,200 Speaker 1: the existing rule and the state versus uh something the 483 00:26:03,240 --> 00:26:05,159 Speaker 1: Court say is not so essential to do. This is 484 00:26:05,160 --> 00:26:07,960 Speaker 1: sort of the abiding concern that's cropped up in these cases. 485 00:26:08,000 --> 00:26:11,080 Speaker 1: And so, um, you know, I think the major question is, 486 00:26:11,160 --> 00:26:15,800 Speaker 1: even if there's not a sort of hotly contested Trump 487 00:26:15,920 --> 00:26:18,560 Speaker 1: feed Biden case that makes its way to the Supreme Court, 488 00:26:19,240 --> 00:26:21,760 Speaker 1: if one of these cases still makes its way to 489 00:26:21,800 --> 00:26:24,280 Speaker 1: the Supreme Court well after election day, after the dust 490 00:26:24,280 --> 00:26:27,720 Speaker 1: has settled, um, for the justices with full briefing in 491 00:26:27,840 --> 00:26:31,920 Speaker 1: oral argument to reach the merits of these controversies and 492 00:26:31,960 --> 00:26:35,879 Speaker 1: really illuminate what a majority of the Court thinks about 493 00:26:35,960 --> 00:26:39,600 Speaker 1: how legislatures are supposed to handle these election matters. As 494 00:26:39,600 --> 00:26:43,040 Speaker 1: far as recounts, any of the states that are close, 495 00:26:43,600 --> 00:26:46,840 Speaker 1: what would it take for either side to say we 496 00:26:46,880 --> 00:26:49,720 Speaker 1: want to recount and get it? Yeah, so a lot 497 00:26:50,080 --> 00:26:53,400 Speaker 1: a lot varies from state to state. Um, A lot 498 00:26:53,440 --> 00:26:57,040 Speaker 1: of states have automatic recount provisions if the margin of 499 00:26:57,160 --> 00:27:00,600 Speaker 1: victory is within say a quarter percentage point or a 500 00:27:00,640 --> 00:27:04,480 Speaker 1: half percentage point, but usually it's very narrow in order 501 00:27:04,520 --> 00:27:08,159 Speaker 1: to qualify for an automatic recount. In some other states, uh, 502 00:27:08,800 --> 00:27:12,880 Speaker 1: there's no automatic recount. And then in different jurisdictions, even 503 00:27:12,920 --> 00:27:16,280 Speaker 1: if you fall outside the automatic recount, the parties can 504 00:27:16,320 --> 00:27:18,720 Speaker 1: request a recount and that can be filed if the 505 00:27:18,760 --> 00:27:21,760 Speaker 1: margin is within half a percent or one percent or 506 00:27:21,800 --> 00:27:25,560 Speaker 1: whatever it might be. UM, So we'll know after sort 507 00:27:25,560 --> 00:27:28,440 Speaker 1: of that preliminary canvas is done at the states, once 508 00:27:28,480 --> 00:27:30,920 Speaker 1: they've gotten through counting all the ballots and provide that 509 00:27:31,040 --> 00:27:33,960 Speaker 1: sort of preliminary figure. Um. You know, they'll usually go 510 00:27:34,000 --> 00:27:37,120 Speaker 1: through another sort of round of double checking everything, making 511 00:27:37,119 --> 00:27:40,240 Speaker 1: sure everything adds up correctly before a final certification in 512 00:27:40,280 --> 00:27:43,119 Speaker 1: the state. That happens, you know, most places late December. 513 00:27:43,560 --> 00:27:46,840 Speaker 1: A few places are late November. I'm sorry. A few 514 00:27:46,840 --> 00:27:50,800 Speaker 1: places early December, a few places mid November. Um. But 515 00:27:50,800 --> 00:27:54,080 Speaker 1: but depending on the marginal it's exceedingly close, there will 516 00:27:54,119 --> 00:27:57,120 Speaker 1: be that automatic provision in some places. Otherwise it's really 517 00:27:57,119 --> 00:27:58,760 Speaker 1: in common on the parties, and the parties need to 518 00:27:58,840 --> 00:28:02,119 Speaker 1: decide how much energy they want to expend. UM. You 519 00:28:02,200 --> 00:28:04,119 Speaker 1: have didn't have to post a bond and spend some 520 00:28:04,160 --> 00:28:07,840 Speaker 1: money and order to be able to request that recount otherwise, 521 00:28:07,880 --> 00:28:10,960 Speaker 1: and maybe if the parties have some litigation money to 522 00:28:11,000 --> 00:28:13,560 Speaker 1: spare that they're willing to sort of expend it, and 523 00:28:13,760 --> 00:28:16,880 Speaker 1: and and a lot the chips fall where they may um. 524 00:28:16,920 --> 00:28:20,920 Speaker 1: But again, it's also increasingly difficult as we think about 525 00:28:21,000 --> 00:28:23,600 Speaker 1: the margin of victory. Right, wider margins are just much 526 00:28:23,640 --> 00:28:26,920 Speaker 1: harder to overcome the narrower margins. And if you're dealing 527 00:28:26,920 --> 00:28:29,400 Speaker 1: with multiple states, it's much trickier than if you're dealing 528 00:28:29,480 --> 00:28:31,760 Speaker 1: with a single state. Um, I think back to the 529 00:28:32,520 --> 00:28:34,920 Speaker 1: election where you know it was it was a few 530 00:28:34,960 --> 00:28:38,880 Speaker 1: pretty closely contested states. Yeah, one of the narrowist in Wisconsin, 531 00:28:38,960 --> 00:28:42,440 Speaker 1: Resonnald Trump won by about twenty votes Jill Sign the 532 00:28:42,440 --> 00:28:45,160 Speaker 1: Green Party can it raised enough money to to fund 533 00:28:45,200 --> 00:28:47,800 Speaker 1: a recount. There at a petition for a recount, and 534 00:28:47,920 --> 00:28:50,000 Speaker 1: the recount really didn't change very much. In fact, Donald 535 00:28:50,040 --> 00:28:52,440 Speaker 1: Trump's margin grew a little bit wider. And that's a 536 00:28:52,440 --> 00:28:54,440 Speaker 1: little bit different than if it's a hotly contested one. 537 00:28:54,520 --> 00:28:57,360 Speaker 1: The parties are litigating, as we talked about earlier, ballot 538 00:28:57,360 --> 00:29:00,160 Speaker 1: by ballot sort of walking through with these challenges, but 539 00:29:00,680 --> 00:29:03,320 Speaker 1: that's sort of the recount set up, something the parties 540 00:29:03,320 --> 00:29:06,320 Speaker 1: will probably you know, if if it's close enough, you know, 541 00:29:06,440 --> 00:29:08,920 Speaker 1: start start having the opportunity to file, uh, you know, 542 00:29:09,040 --> 00:29:13,760 Speaker 1: starting potentially next week. Thanks Derek. That's Professor Derek Muller 543 00:29:13,840 --> 00:29:16,840 Speaker 1: of the University of Iowa College of Law. And that's 544 00:29:16,840 --> 00:29:19,120 Speaker 1: it for this edition of The Bloomberg Law Show. I'm 545 00:29:19,200 --> 00:29:21,680 Speaker 1: June Grass. Thanks so much for listening, and remember to 546 00:29:21,720 --> 00:29:23,800 Speaker 1: tune to The Bloomberg Law Show every week not at 547 00:29:23,800 --> 00:29:26,400 Speaker 1: ten pm Eastern, right here on Bloomberg Radio.