Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: The Trump campaign has filed at least six lawsuits in
Speaker 1: battleground states since election Day to challenge the ballot counts,
Speaker 1: but so far the suits have not altered the racist
Speaker 1: trajectory towards Joe Biden. Joining me is election law expert
Speaker 1: inate personally a professor at Stanford Law School. Let's start
Speaker 1: with Michigan. So the Trump campaigns that it filed lawsuits
Speaker 1: to stop the count in Michigan, and they're basing it
Speaker 1: on allegations that campaign observers haven't had enough access to
Speaker 1: the locations where the ballots are being processed and counted.
Speaker 1: Is there any chance that could stop the vote? No,
Speaker 1: I don't think so. I think that, Um, you know,
Speaker 1: they're following the law in Michigan. Uh. And you know,
Speaker 1: the the part of the question here is how do
Speaker 1: you ensure supervision and social distance in the vote counting process?
Speaker 1: But um, you know, the most of the ballots have
Speaker 1: been counted already, and I think what we're seeing is
Speaker 1: just an effort to try to throw dust up in
Speaker 1: the air and see how you can create a cloud
Speaker 1: over the vote counting process. Uh. And so as we're
Speaker 1: seeing that when in Michigan, Wisconsin, Pennsylvania and elsewhere. And
Speaker 1: so I don't think it will succeed, but it's part
Speaker 1: of a larger narrative. Is it part of a narrative
Speaker 1: or is it part of a strategy of challenging the
Speaker 1: votes in certain states to change the electoral vote in
Speaker 1: Trump's favor? Well, the um, the issue here is whether
Speaker 1: the abstinuctee ballots are somehow tainted, right, and so there
Speaker 1: have been generic claims of corruption and fraud that even
Speaker 1: precede the election itself, where Trump said that, um, the uh,
Speaker 1: you know, the absinute ballots would be a fertile source
Speaker 1: for fraud. Um, well, how do you have to You
Speaker 1: can't just say that, you have to prove it. And
Speaker 1: so the question is what in what way are they
Speaker 1: throwing with um, what is it that that is being
Speaker 1: done in the vote counting process to suggest because that's
Speaker 1: the only way you can get a court to inter mean,
Speaker 1: is to say well there's something wrong that's going on here. Uh.
Speaker 1: And so that that argument takes different forms in different states,
Speaker 1: depending on what the sort of process defect was that
Speaker 1: the Trump campaign sees so let's turn to Pennsylvania now,
Speaker 1: because he's suing also to stop the vote some of
Speaker 1: the same allegations here that they don't have access to
Speaker 1: the ballot process. Also, he's seeking to intervene in a
Speaker 1: Pennsylvania case that was at the Supreme Court where the
Speaker 1: Supreme Court by afford or four vote allowed Pennsylvania to
Speaker 1: count ballots received three days after election day. But this
Speaker 1: case may not necessarily be over tell us why so
Speaker 1: the Trump campaign is seeking to intervene in the lawsuit
Speaker 1: that already went up to the U. S Supreme Court. Uh.
Speaker 1: And in that lawsuit, the um the state Supreme Court
Speaker 1: in Pennsylvania ruled that ballots that are received within three
Speaker 1: days after the election will count if they are postmarked
Speaker 1: by election day. UM. Because that decision went away up
Speaker 1: to the US Supreme Court was a four or four decision,
Speaker 1: and there was some possibility that was Amy Coney Barrett
Speaker 1: on the court, it would reach a different verdict. UH.
Speaker 1: The the the folks in Pennsylvania decided to segregate those
Speaker 1: ballots so that there will be a separate count of
Speaker 1: those later arriving ballots. And as a result, UM, if
Speaker 1: it comes down to those ballots. Well, then there may
Speaker 1: be litigation over them. But because they're those ballots are segregated. Um,
Speaker 1: if the margin of victory is large enough in the
Speaker 1: other ballots, then they won't even have to deal without
Speaker 1: legal issues. And will the Trump campaign likely be allowed
Speaker 1: to intervene in that lawsuit? Well, either they intervene or
Speaker 1: it becomes part of the other larger, uh set of
Speaker 1: complaints that they have over the process, right and so um,
Speaker 1: you know, the state Supreme Court has already ruled on
Speaker 1: this issuees, so we know what they think. Um. The
Speaker 1: question is whether this will be joined with a set
Speaker 1: of claims that they are making about defects in the
Speaker 1: vote counting process that will then lead to some kind
Speaker 1: of federal court action, ultimately landing it at the Supreme Court.
Speaker 1: What kind of what kind of defects would they have
Speaker 1: to show? I mean, they're they're they're alleging that their
Speaker 1: campaign observers aren't allowed to view where the ballots are
Speaker 1: being processed. There's also a claim about some counties in
Speaker 1: Pennsylvania or county in Pennsylvania allowing voters to cure their ballots.
Speaker 1: What would they have to show to make it a
Speaker 1: federal case, I guess so if you look sort of
Speaker 1: underneath the complaints and try to read the minds of
Speaker 1: people who are bringing it, this is trying to set
Speaker 1: the stage for a similar type of argument that we
Speaker 1: saw on Bush versus Gore, and it's two types of arguments.
Speaker 1: One is that voters in different parts of the state
Speaker 1: where subject to different rules. Some voters are allowed to
Speaker 1: cure their ballots, others were not. And the second, which
Speaker 1: is related, is that the ability to cure or the
Speaker 1: in the ability to remedy any defects in the ballot
Speaker 1: was pursuance the Secretary of State guidance or local rules
Speaker 1: which go against state law that was passed by the legislature.
Speaker 1: And what the Trump administration has been arguing a Trump
Speaker 1: campaign has been arguing in other court cases is that
Speaker 1: in effect, what you're doing is usurfing the power of
Speaker 1: the legislature and that violates Article two, Section one of
Speaker 1: the Constitution, which says that it's the state legislature which
Speaker 1: will choose the manner of determining electors for the electoral college. Well,
Speaker 1: I think if it if it ends up being outcome determinative,
Speaker 1: that I do think that U s Supreme Court might
Speaker 1: consider this, So we're a long way away from that
Speaker 1: right now. We are in the prelitigation phase where the
Speaker 1: ballot counting is still going on and we need to
Speaker 1: make sure that every vote is counted um um. Once
Speaker 1: the counse are known, then you can enter either a
Speaker 1: recount phase or a contest phase where you're starting to
Speaker 1: say there was something wrong with the processing and counting
Speaker 1: these absentee ballots that we put into doubts, and then
Speaker 1: you explain that, um you know, in litigation that might
Speaker 1: make its way up to the U. S. Supreme Court.
Speaker 1: But we were still just in that kind of prelitigation
Speaker 1: stage is trying to figure out how to count each
Speaker 1: one of these votes. The Trump campaign says it's going
Speaker 1: to ask Wisconsin for a recount. It seems as if
Speaker 1: that might be granted because Wisconsin has a one percent
Speaker 1: margin is necessary for a recount. As a recount ever,
Speaker 1: you know, resulted in a change in in votes at
Speaker 1: a presidential election, not in a presidential election, But there
Speaker 1: are plenty of examples of where recounts may discover ballots
Speaker 1: or lead to the disqualish disqualification of ballots that would
Speaker 1: change as a result um they ultimately didn't happen in
Speaker 1: Bhish persons Gore in the two thousand presidential election controversy.
Speaker 1: But there are situations, most famously with Al Frankin and
Speaker 1: Norm Coleman in Minnesota and the recount that happened there
Speaker 1: where where they sort of went back and forth, and
Speaker 1: it really just depends on what might be the claim
Speaker 1: as to why some votes should not be counted, or
Speaker 1: why it might be fraudulent or others might have been excluded.
Speaker 1: When you look at these various legal strategies that the
Speaker 1: Trump campaign seems to be trying out, do any of
Speaker 1: them strike you as more consequential than others? Well, I
Speaker 1: think that right now they don't even really know what
Speaker 1: the legal defects are in the process as it's unfolding,
Speaker 1: But they want to preserve the possibility that they will
Speaker 1: make these arguments later, and so they're throwing everything at
Speaker 1: the wall to see what sticks. So a lot of
Speaker 1: these claims are frivolous, um, but they're trying to launch
Speaker 1: certain types of claims both to create doubt over the process,
Speaker 1: but then also to potentially litigate other kinds of claims
Speaker 1: if they they have an opportunity, whether in state court
Speaker 1: or altimately federal courts. Are they also suing in Nevada
Speaker 1: over absentee There is a dispute in arab Zona in
Speaker 1: in Nevada, as I understand it, over the processing of
Speaker 1: absentee balance in Clark County and how the signature matching
Speaker 1: the process may have worked. But I have not seen
Speaker 1: the actual legal papers there, so I've only heard this
Speaker 1: second hand that this is perceiving when you look at this,
Speaker 1: the way this is evolving. Is this how you expected
Speaker 1: this election to evolve, That it would be complicated a
Speaker 1: lot of challenges and you know it would take a
Speaker 1: long time, or is this something it's unexpected? Well, I
Speaker 1: was looking at the same holes as everybody else, and
Speaker 1: so I don't know why we maintained in the rational
Speaker 1: faith in them, given that they were so wrong four
Speaker 1: years ago. But they showed that this election would be
Speaker 1: beyond the margin of litigation. It still maybe that we're
Speaker 1: not going to end up with having courts decide important
Speaker 1: issues here. But um, I was as surprised as anyone
Speaker 1: um and how close it was. But we all knew
Speaker 1: going into uh November three that they were going to
Speaker 1: be a large volume of absute ballots because in the
Speaker 1: wake of COVID, this is the way that states adapted
Speaker 1: to the COVID environment by by increasing the number of
Speaker 1: mail and absinte up UM. We also knew that those
Speaker 1: mail ballots would be different in as compared to the
Speaker 1: same day vote because Democrats were more likely to use them.
Speaker 1: The President knew that UH and also cast doubt um
Speaker 1: several months before even the election day on the use
Speaker 1: of mail ballot And so in some ways this legal
Speaker 1: strategy was was prestiged early on with signals UM that
Speaker 1: there would be claims of fraud in the absentee balloting process.
Speaker 1: And now here we are where the election is coming
Speaker 1: down to have since ballots in a in a in
Speaker 1: a few states, UH, and if there is mitigational beyond
Speaker 1: that basis, but we need to remember that this is
Speaker 1: again the preltigation phase. And then we're still counting the votes,
Speaker 1: and we need to see whether the margin might be um,
Speaker 1: you know, too large for either candidate UH, such that
Speaker 1: they would be able to win without resuning to the court. Finally,
Speaker 1: the way this is evolving, and the fact that President
Speaker 1: Trump has been saying repeatedly that mail in ballots are fraudulent.
Speaker 1: Together with his comments today, does it make it seem
Speaker 1: as if the American public is going to have a
Speaker 1: hard time the majority of the American public believing in
Speaker 1: the results. I think that was going to be true
Speaker 1: no matter what happened in this election. There were large
Speaker 1: sections of the American public that did not believe this
Speaker 1: would be a free and fair election. I worried that
Speaker 1: that's going to be even the larger share this time,
Speaker 1: that whoever ends up using this election is going to
Speaker 1: feel that the process is illegitimate. UM. And you know,
Speaker 1: it doesn't help when the candidates, if the candidates themselves
Speaker 1: say so uh, and so I am concerned about this.
Speaker 1: I mean, we are as difficult as as the two
Speaker 1: thousand controversy in Florida was. We were a much different
Speaker 1: country back then, less polarized. UM. Certainly no pandemic or
Speaker 1: recession at the time, and so we are not well
Speaker 1: prepared for it. But we need to be patient, and
Speaker 1: patience is in short supply these days, and we need
Speaker 1: to let all of us be counted. Thanks for being
Speaker 1: on the show, Nate. That's Nate personally, afessor at Stanford
Speaker 1: Law School. President Trump seems to be pursuing a contradictory strategy,
Speaker 1: attempting to stop vote counting in states where he thinks
Speaker 1: he's ahead, while demanding the tallies continue or be recounted
Speaker 1: where he's losing. Joining me his election law expert Derek Muller,
Speaker 1: a professor at the College of Law on the University
Speaker 1: of Iowa, is this the nightmare scenario that many election
Speaker 1: law experts were dreading? So I wouldn't call it a
Speaker 1: nightmare scenario, right, I think? Um, I think everyone expected
Speaker 1: there was going to be some counting in some extension
Speaker 1: of period of time where the ballots are going to
Speaker 1: come in that in some states like Pennsylvania and Michigan
Speaker 1: in particular, there wasn't a whole lot of pre processing
Speaker 1: of ballots ahead of election day. Those absentee and mail
Speaker 1: in ballots that um, you know, came by the millions
Speaker 1: in those states. Um, that was just going to delay
Speaker 1: some of the results. And so, UM, what we're seeing
Speaker 1: is sort of the inevitable results of some of those
Speaker 1: delays and you know, some some shift in the in
Speaker 1: the results of the election. UM. I think the nightmare
Speaker 1: scenario arises if it looks like one state um is
Speaker 1: going to be the tipping point in the electoral college,
Speaker 1: and if that one state UM is decided by a
Speaker 1: razor thin margin or over some pool of disputed ballots. So, um,
Speaker 1: I think we're sort of in the in the you know,
Speaker 1: sort of uncomfortable waiting zone, but far from a nightmare
Speaker 1: scenario at the moment. President Trump has said that we're
Speaker 1: going straight to the Supreme Court, We're going to stop
Speaker 1: the count and the Supreme Court did stop Florida from
Speaker 1: recounting in two thousand. Is that a possibility, Yes, so
Speaker 1: I think it's a very remote possibility. Um. Pretty unlikely
Speaker 1: at this point. Um. So the first thing to keep
Speaker 1: in mind is thinking about what kind of legal setup
Speaker 1: you have to say that you should stop counting in
Speaker 1: the first place. So there's difference between stopping counting and
Speaker 1: stopping recounting. Um. So, So the counts are still happening,
Speaker 1: and we haven't even finished those sort of final totals,
Speaker 1: including ballots that have been received weeks ago in some states.
Speaker 1: So there's a very difficult sort of climb to say
Speaker 1: you shouldn't count certain ballots. Now, that's how to say
Speaker 1: that he doesn't have a case you know there were
Speaker 1: lawsuits in Pennsylvania in particular, saying, um, these ballots that
Speaker 1: a state supreme court said should be counted that are
Speaker 1: received in the three days after election day, those with
Speaker 1: a postmark of election day or earlier, or those without
Speaker 1: a postmark should be counted. And the states that you
Speaker 1: know what we have acknowledge there's a legal challenge to this.
Speaker 1: We're going to segregate these ballots. We're going to set
Speaker 1: them off to the side, and in the events there's
Speaker 1: a legal dispute about them later, we at least can
Speaker 1: don't have to unscramble the egg, right, they're not mixed
Speaker 1: in with the other ballots, and we can sort of
Speaker 1: address it. So that's like a very narrow sort of
Speaker 1: decision to say, oh, these are the kinds of things
Speaker 1: that we're challenging. But in terms of like the ordinary
Speaker 1: state process of if we have absentee ballots or we
Speaker 1: have in person ballots and we're sort of running them
Speaker 1: through the machine and counting them up, there's not really
Speaker 1: just sort of a way of litigating that much last
Speaker 1: getting the Supreme court right, you start in the state,
Speaker 1: you start in the district court or or state lower court, state,
Speaker 1: file court and file under some kind of cause of action.
Speaker 1: So unless there's some sort of malfies and some legal
Speaker 1: hook um, you know, that's not going to happen. Um.
Speaker 1: So it's under say that that there are opportunities to
Speaker 1: file those kinds of challenges, but but that you know,
Speaker 1: sort of a wholesale stop accounting is just not in
Speaker 1: the cards at the moment. So let's talk then about
Speaker 1: some of the possible legal challenges. So let's say a
Speaker 1: state is very close razor thin. Also you have observers
Speaker 1: watching the counting going on. What kinds of claims could
Speaker 1: be made? Would it just be about the absentee, the
Speaker 1: mail in and the provisional ballots or is there a
Speaker 1: broader claim? Yeah, I mean there's lots of different things
Speaker 1: that could be could be challenged in different with fact um,
Speaker 1: there could be challenges to the provisional ballots. So folks
Speaker 1: who tried to cast the ballot the polls, but you know,
Speaker 1: they lacked a form of identification or um, they lacked
Speaker 1: proup of residents or whatever it might be, and so
Speaker 1: they were turned away. But they cast a ballot with
Speaker 1: an opportunity to come back later and cure that and
Speaker 1: people might challenge those kinds of decisions that are happening
Speaker 1: or um they might look at, you know, if there's
Speaker 1: a some of these absentee ballots that might have been
Speaker 1: rejected for some reason, or that we're counted, uh, you know,
Speaker 1: with presumptions that the signatures were valid and that looked
Speaker 1: like the was the identity of the voter. But we're
Speaker 1: challenged by some observer and we're sort of set aside.
Speaker 1: But these are sort of pretty narrow, sort of fact
Speaker 1: by fact questions, right, sort of ballot by palette um.
Speaker 1: And that's a long slog for a campaign. You need
Speaker 1: a razor thin margin in order to win on that
Speaker 1: kind of a theory. And by raise your sin, I
Speaker 1: mean I'm talking about a couple of hundred votes, right,
Speaker 1: I'm not talking one person. I'm talking about an exceedingly
Speaker 1: narrow margins. So there's there's that sort of um set
Speaker 1: of claims that can happen in narrow election. The others,
Speaker 1: you know, maybe you can try to raise some kind
Speaker 1: of more systemic challenge and that might be a version
Speaker 1: of what happened in Bush versus Core in two thousand.
Speaker 1: You know, the legal hook that really won the day
Speaker 1: at the Supreme Court was um, some counties were proceeding
Speaker 1: one way with a recount um, and others were proceeding
Speaker 1: in a different way, and still others were not really
Speaker 1: counting at all. And when the Supreme Court stepped in
Speaker 1: and said, you had to pride provide some uniform guidance.
Speaker 1: So to the extent that it looks like there's some
Speaker 1: funny decisions happening in some counties but not in others,
Speaker 1: there would be an opportunity to step in and say, oh,
Speaker 1: you're doing something different in this county that's not available
Speaker 1: in others. So one challenge the Trump campaign that has
Speaker 1: been filed in state court is um that one county
Speaker 1: in Pennsylvania was reaching out and contacting voters whose absentee
Speaker 1: ballots were rejected for some reason, inviting them to come
Speaker 1: cure the ballot and viting the voters to come and say,
Speaker 1: you know, so you fail to fill out this information
Speaker 1: or whatever it is, you know, let's fix it. Um.
Speaker 1: And if that's the practice one of the sixty seven
Speaker 1: counties is doing, does it put sort of the other
Speaker 1: voters on unequal footing And is it sort of this
Speaker 1: sort of treatment that's arbitrary, as the Supreme Court set
Speaker 1: in Bush versus Score Right, this really in vidious sort
Speaker 1: of decision. So you would have to come up with
Speaker 1: a theory like that, but you know, you have to
Speaker 1: think about it on the flip side too. Of a
Speaker 1: couple of responses to that kind of answer. The first
Speaker 1: is to say, well, um, you know, just because the
Speaker 1: county is doing something differently, how problematic is it inviting
Speaker 1: a few voters to cure um you know, doesn't seem
Speaker 1: like the kind of um, you know, disparate treatment of
Speaker 1: We're carefully counting ballots in one part of the state
Speaker 1: and we're not counting them at all somewhere else. I mean,
Speaker 1: so so we have to draw the distinctions on that front.
Speaker 1: But another, I think the more potent one is um
Speaker 1: is a notion of latches or the notion that you
Speaker 1: brought this claim far too late and there's a remedial
Speaker 1: bar that says you can't bring this claim at this
Speaker 1: point in time. Uh, you know, particularly in this case
Speaker 1: in Pennsylvania. Uh, this is something conti's have been doing
Speaker 1: for a long time. This is something the Republican Party
Speaker 1: has been unnoticed for for an extended period of time.
Speaker 1: And if that's the case, um, you know, depending on
Speaker 1: the length of time and how much notice they had
Speaker 1: and when they ought to service stepped into to say
Speaker 1: something about it, it's just too late. It's just unfair
Speaker 1: for us to step in and change things. So unlike
Speaker 1: Push versus Score, where their recount was sort of being
Speaker 1: developed on the fly and there were constant, pressing, immediate
Speaker 1: legal challenges to it, um, the more sort of longstanding
Speaker 1: nature of the problem makes some of these litigation challenges
Speaker 1: a little bit more difficult. So I think about that
Speaker 1: is sort of the that the system of things at
Speaker 1: play when we think about, you know, challenges even in
Speaker 1: a narrowly contested state. Let's talk about the other case
Speaker 1: at in Pennsylvania that went up to the Supreme Court
Speaker 1: where the Supreme Court allowed the counting of ballots in
Speaker 1: Pennsylvania for three days after election day, ballots that have
Speaker 1: been postmarked by election day, and several of the conservative justices,
Speaker 1: particularly Justice Alito, said, oh, well, these are being segregated,
Speaker 1: so so we could consider this after the election. So
Speaker 1: tell us what was said by the Supreme Court there
Speaker 1: that may lead to this case coming back there? Yeah, No,
Speaker 1: I mean you set it up nicely. Right, it's um.
Speaker 1: And the heart of this dispute really harkens back to
Speaker 1: another Bush versus Score question. Right. So, the the question
Speaker 1: really arose in Pennsylvania over a couple of concerns. One
Speaker 1: is so Pennsylvania has a clear and explicit statute that
Speaker 1: says ballots are due on election day, that's when they
Speaker 1: have to be in UM. And then there was a
Speaker 1: litigation challenge to say, listen, we've got this huge volume
Speaker 1: of absentee voters. UM, there are more people than ever
Speaker 1: voting by absentee. There are more people than ever who
Speaker 1: are aligned on the postal service. The postal service, whether
Speaker 1: for innocent reasons or for service cuts, just can't handle
Speaker 1: these kinds of a volume of stuff. So we're challenging
Speaker 1: to say that we need to extend that deadline three days.
Speaker 1: And Dependsylvania Supreme Court said, under its free and fair
Speaker 1: Elections clause in the Constitution, which is a pretty generic phrase, right,
Speaker 1: free their elections. Looking at that clause, that we conclude
Speaker 1: that that there's this sort of legislative preference for us
Speaker 1: pursue into this clause to extend this recognition of ballots,
Speaker 1: its acceptance of bounce in extra three days, those postmark
Speaker 1: by election day or those without a postmark um that
Speaker 1: are received within three days will presume that they are valid,
Speaker 1: which is a little bit more of a controversial claim.
Speaker 1: And when it goes up to the Supreme Court, they
Speaker 1: end up saying, well, you know, cheat us. As roberts
Speaker 1: Is suggested, well, this is a state court decision, so
Speaker 1: maybe it'll stay in place. But just as a leader
Speaker 1: wrote separately, uh, you know, saying, you know, it's not
Speaker 1: just a state court decision. It's a state court decision
Speaker 1: that basically contravenes a direct legislative guidance from the legislature
Speaker 1: that says ballots come in by election day. And when
Speaker 1: you do that, the celto sort of emphasize you are
Speaker 1: usurping the state legislative power, which is an Article two
Speaker 1: of the Constitution each state shall appoint a number of
Speaker 1: electors in the manner that the legislature thereof may direct.
Speaker 1: And three justices writing in Bush versus Gore, sort of
Speaker 1: had a sort of emphasis on this prong of the Constitution.
Speaker 1: Chief Dolfic Rank with opinion in Bush versus Score highlights
Speaker 1: this notion that it's principally the responsibility of the legislature.
Speaker 1: And even before Bush versus Gore just a week before,
Speaker 1: in the unanimous decision of the Supreme Court in the
Speaker 1: case called Bush versus Poem Beach Campusing Board, the Court said,
Speaker 1: you know, it's a general matter. We defer to state
Speaker 1: interpretations of state law from the highest court, but not always.
Speaker 1: And it's because there's this article too concern of the
Speaker 1: legislative prerogative to make these decisions. But you know, it's
Speaker 1: a heavy lift, as Justice Kagan wrote in a separate
Speaker 1: opinion that was arising out these disputes, to say, well,
Speaker 1: wait a minute. You know, when we talk about the legislature,
Speaker 1: you can't the legislature be bound by its own constitution?
Speaker 1: Can't the legislature be bound by the state constitution? As
Speaker 1: opposed to this other view from Justice Alito and joined,
Speaker 1: I think um by at least Justice is Gorsuch, Thomas,
Speaker 1: and Kavanaugh and some separate opinions scattered throughout these uh,
Speaker 1: these cases, shouldn't this this isn't sort of a federal
Speaker 1: prerogative to ensure that the legislative power in trying in
Speaker 1: the Constitution and the federal Constitution is protected and not
Speaker 1: U served by a state authority. So that's sort of
Speaker 1: the heart of this dispute, and Justice Alito it suggested, well,
Speaker 1: you know what, at least because these ballots are segregated, UM,
Speaker 1: we don't have to get back to it. We don't
Speaker 1: have to go back. You know, we were we we
Speaker 1: could go back to it. We don't have to worry
Speaker 1: about the the pressing issue at the moment. But but
Speaker 1: in my view, I'll be honest, I think it's really
Speaker 1: top to look at these ballots. They are gonna be counted.
Speaker 1: They're gonna be counted, and that's segregated in case there's
Speaker 1: sort of a fight about them. It would be really
Speaker 1: tough for the court to come back and say, you know,
Speaker 1: at dis batch about that we were going to count
Speaker 1: um that have been counted should not count. It's a
Speaker 1: little different than bushources Gore, which says, whatever you're doing,
Speaker 1: stop kind of freeze going back and undoing it. I
Speaker 1: think it's going to be a happier lift. I think
Speaker 1: it's sets the post election day challenge in a different
Speaker 1: procedural posture than the pre election day. But time will tell.
Speaker 1: We'll see if there's litigation on this that continues and
Speaker 1: what's your take on Justice Kavanaughs concurring opinion in the
Speaker 1: Wisconsin case that had democrats. Uh. I don't know if
Speaker 1: the words frantic, furious, or concerns. Yeah. Yeah, So Justice
Speaker 1: Kavanaugh really, I mean, he started down this road that
Speaker 1: Justice Polito later joined his in this other opinion right first,
Speaker 1: really emphasizing the sort of primacy of legislature to make
Speaker 1: these kinds of decisions, and citing Bush versus Gore, which
Speaker 1: is a case of Supreme Court almost never cite. You know,
Speaker 1: since since Push versus Core was issued in two thousand,
Speaker 1: Justice Thomas cited at once in a concurring opinion for
Speaker 1: for a pretty um ordinary proposition um. And since then,
Speaker 1: Justice Kavanaugh's opinion was only the second time the Supreme
Speaker 1: Court has ever cited Push versus Score. So this is
Speaker 1: sort of, you know, warning bells for those who are
Speaker 1: concerned about these state court decisions to say, well, wait
Speaker 1: a minute, maybe the United States Supreme Court is really
Speaker 1: going to start taking these claims much more seriously um
Speaker 1: and turn out hading. Justice Lego's opinion also pointed in
Speaker 1: that direction. Um. But I think Justice Kavanaugh's opinion also
Speaker 1: gets it a greater concern. It's a concern he's um
Speaker 1: written about in a series of cases that have come
Speaker 1: out of this pandemic. I think in particular, Um, he's
Speaker 1: sort of written separately of his own views these are
Speaker 1: sort of quintessentially um legislative judgments, and that these are
Speaker 1: principally questions left to the political process and for the
Speaker 1: legislature to make a decision about UM and this functional
Speaker 1: at lege leasures might be. And some of these circumstances,
Speaker 1: I think Pennsylvania, Wisconsin have had legislatures really at heads
Speaker 1: at odds with the executives of those states and really
Speaker 1: unable to reach some consensus or agreement. You have been
Speaker 1: in a pandemic. UM. But Justice Kavanaugh sort of rite
Speaker 1: separately to emphasize less and in the Constitution, it really
Speaker 1: places this principal responsibility with legislatures to the political branches
Speaker 1: to make political judgments. And that's not to say the
Speaker 1: courts can't step in or don't have some responsibilities of
Speaker 1: stepping in, but there's this sort of fum on the
Speaker 1: scale of deference to the state legislatures in these cases. UM.
Speaker 1: So this is the sort of ongoing challenge I think
Speaker 1: on the Court about you know, when do you give
Speaker 1: the deference to the state legislature versus when you don't?
Speaker 1: Or when are those instances where a judicial decision is
Speaker 1: something that's sort of, uh, is sort of extraordinary enough
Speaker 1: to say, yeah, this was this needed to change the process,
Speaker 1: the existing rule and the state versus uh something the
Speaker 1: Court say is not so essential to do. This is
Speaker 1: sort of the abiding concern that's cropped up in these cases.
Speaker 1: And so, um, you know, I think the major question is,
Speaker 1: even if there's not a sort of hotly contested Trump
Speaker 1: feed Biden case that makes its way to the Supreme Court,
Speaker 1: if one of these cases still makes its way to
Speaker 1: the Supreme Court well after election day, after the dust
Speaker 1: has settled, um, for the justices with full briefing in
Speaker 1: oral argument to reach the merits of these controversies and
Speaker 1: really illuminate what a majority of the Court thinks about
Speaker 1: how legislatures are supposed to handle these election matters. As
Speaker 1: far as recounts, any of the states that are close,
Speaker 1: what would it take for either side to say we
Speaker 1: want to recount and get it? Yeah, so a lot
Speaker 1: a lot varies from state to state. Um, A lot
Speaker 1: of states have automatic recount provisions if the margin of
Speaker 1: victory is within say a quarter percentage point or a
Speaker 1: half percentage point, but usually it's very narrow in order
Speaker 1: to qualify for an automatic recount. In some other states, uh,
Speaker 1: there's no automatic recount. And then in different jurisdictions, even
Speaker 1: if you fall outside the automatic recount, the parties can
Speaker 1: request a recount and that can be filed if the
Speaker 1: margin is within half a percent or one percent or
Speaker 1: whatever it might be. UM, So we'll know after sort
Speaker 1: of that preliminary canvas is done at the states, once
Speaker 1: they've gotten through counting all the ballots and provide that
Speaker 1: sort of preliminary figure. Um. You know, they'll usually go
Speaker 1: through another sort of round of double checking everything, making
Speaker 1: sure everything adds up correctly before a final certification in
Speaker 1: the state. That happens, you know, most places late December.
Speaker 1: A few places are late November. I'm sorry. A few
Speaker 1: places early December, a few places mid November. Um. But
Speaker 1: but depending on the marginal it's exceedingly close, there will
Speaker 1: be that automatic provision in some places. Otherwise it's really
Speaker 1: in common on the parties, and the parties need to
Speaker 1: decide how much energy they want to expend. UM. You
Speaker 1: have didn't have to post a bond and spend some
Speaker 1: money and order to be able to request that recount otherwise,
Speaker 1: and maybe if the parties have some litigation money to
Speaker 1: spare that they're willing to sort of expend it, and
Speaker 1: and and a lot the chips fall where they may um.
Speaker 1: But again, it's also increasingly difficult as we think about
Speaker 1: the margin of victory. Right, wider margins are just much
Speaker 1: harder to overcome the narrower margins. And if you're dealing
Speaker 1: with multiple states, it's much trickier than if you're dealing
Speaker 1: with a single state. Um, I think back to the
Speaker 1: election where you know it was it was a few
Speaker 1: pretty closely contested states. Yeah, one of the narrowist in Wisconsin,
Speaker 1: Resonnald Trump won by about twenty votes Jill Sign the
Speaker 1: Green Party can it raised enough money to to fund
Speaker 1: a recount. There at a petition for a recount, and
Speaker 1: the recount really didn't change very much. In fact, Donald
Speaker 1: Trump's margin grew a little bit wider. And that's a
Speaker 1: little bit different than if it's a hotly contested one.
Speaker 1: The parties are litigating, as we talked about earlier, ballot
Speaker 1: by ballot sort of walking through with these challenges, but
Speaker 1: that's sort of the recount set up, something the parties
Speaker 1: will probably you know, if if it's close enough, you know,
Speaker 1: start start having the opportunity to file, uh, you know,
Speaker 1: starting potentially next week. Thanks Derek. That's Professor Derek Muller
Speaker 1: of the University of Iowa College of Law. And that's
Speaker 1: it for this edition of The Bloomberg Law Show. I'm
Speaker 1: June Grass. Thanks so much for listening, and remember to
Speaker 1: tune to The Bloomberg Law Show every week not at
Speaker 1: ten pm Eastern, right here on Bloomberg Radio.