WEBVTT - Legal Fights Over Vote Counts 0:00:00.560 --> 0:00:05.360 This is Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:06.280 --> 0:00:09.240 The Trump campaign has filed at least six lawsuits in 0:00:09.280 --> 0:00:13.080 battleground states since election Day to challenge the ballot counts, 0:00:13.119 --> 0:00:15.760 but so far the suits have not altered the racist 0:00:15.760 --> 0:00:19.680 trajectory towards Joe Biden. Joining me is election law expert 0:00:19.720 --> 0:00:23.560 inate personally a professor at Stanford Law School. Let's start 0:00:23.560 --> 0:00:27.280 with Michigan. So the Trump campaigns that it filed lawsuits 0:00:27.320 --> 0:00:30.120 to stop the count in Michigan, and they're basing it 0:00:30.160 --> 0:00:34.960 on allegations that campaign observers haven't had enough access to 0:00:35.000 --> 0:00:38.240 the locations where the ballots are being processed and counted. 0:00:38.640 --> 0:00:42.000 Is there any chance that could stop the vote? No, 0:00:42.120 --> 0:00:44.440 I don't think so. I think that, Um, you know, 0:00:44.479 --> 0:00:47.960 they're following the law in Michigan. Uh. And you know, 0:00:48.080 --> 0:00:50.839 the the part of the question here is how do 0:00:50.880 --> 0:00:54.800 you ensure supervision and social distance in the vote counting process? 0:00:54.880 --> 0:00:58.080 But um, you know, the most of the ballots have 0:00:58.200 --> 0:01:02.000 been counted already, and I think what we're seeing is 0:01:02.200 --> 0:01:04.959 just an effort to try to throw dust up in 0:01:04.959 --> 0:01:07.119 the air and see how you can create a cloud 0:01:07.160 --> 0:01:09.880 over the vote counting process. Uh. And so as we're 0:01:09.880 --> 0:01:14.640 seeing that when in Michigan, Wisconsin, Pennsylvania and elsewhere. And 0:01:14.680 --> 0:01:17.039 so I don't think it will succeed, but it's part 0:01:17.040 --> 0:01:19.960 of a larger narrative. Is it part of a narrative 0:01:20.080 --> 0:01:23.280 or is it part of a strategy of challenging the 0:01:23.360 --> 0:01:28.120 votes in certain states to change the electoral vote in 0:01:28.200 --> 0:01:34.080 Trump's favor? Well, the um, the issue here is whether 0:01:34.240 --> 0:01:37.880 the abstinuctee ballots are somehow tainted, right, and so there 0:01:37.920 --> 0:01:41.240 have been generic claims of corruption and fraud that even 0:01:41.280 --> 0:01:45.360 precede the election itself, where Trump said that, um, the uh, 0:01:45.520 --> 0:01:48.120 you know, the absinute ballots would be a fertile source 0:01:48.160 --> 0:01:50.640 for fraud. Um, well, how do you have to You 0:01:50.640 --> 0:01:52.120 can't just say that, you have to prove it. And 0:01:52.200 --> 0:01:54.400 so the question is what in what way are they 0:01:54.440 --> 0:01:57.320 throwing with um, what is it that that is being 0:01:57.360 --> 0:02:00.520 done in the vote counting process to suggest because that's 0:02:00.520 --> 0:02:02.200 the only way you can get a court to inter mean, 0:02:02.320 --> 0:02:05.400 is to say well there's something wrong that's going on here. Uh. 0:02:05.440 --> 0:02:09.440 And so that that argument takes different forms in different states, 0:02:09.440 --> 0:02:13.240 depending on what the sort of process defect was that 0:02:13.320 --> 0:02:16.880 the Trump campaign sees so let's turn to Pennsylvania now, 0:02:16.919 --> 0:02:19.160 because he's suing also to stop the vote some of 0:02:19.160 --> 0:02:22.280 the same allegations here that they don't have access to 0:02:22.520 --> 0:02:26.600 the ballot process. Also, he's seeking to intervene in a 0:02:26.680 --> 0:02:29.600 Pennsylvania case that was at the Supreme Court where the 0:02:29.639 --> 0:02:33.760 Supreme Court by afford or four vote allowed Pennsylvania to 0:02:33.880 --> 0:02:37.680 count ballots received three days after election day. But this 0:02:37.720 --> 0:02:42.080 case may not necessarily be over tell us why so 0:02:42.160 --> 0:02:45.119 the Trump campaign is seeking to intervene in the lawsuit 0:02:45.400 --> 0:02:49.400 that already went up to the U. S Supreme Court. Uh. 0:02:49.440 --> 0:02:52.840 And in that lawsuit, the um the state Supreme Court 0:02:52.880 --> 0:02:57.480 in Pennsylvania ruled that ballots that are received within three 0:02:57.520 --> 0:03:00.840 days after the election will count if they are postmarked 0:03:00.840 --> 0:03:05.000 by election day. UM. Because that decision went away up 0:03:05.000 --> 0:03:07.200 to the US Supreme Court was a four or four decision, 0:03:07.600 --> 0:03:10.120 and there was some possibility that was Amy Coney Barrett 0:03:10.120 --> 0:03:13.360 on the court, it would reach a different verdict. UH. 0:03:13.440 --> 0:03:18.320 The the the folks in Pennsylvania decided to segregate those 0:03:18.360 --> 0:03:20.760 ballots so that there will be a separate count of 0:03:20.840 --> 0:03:24.919 those later arriving ballots. And as a result, UM, if 0:03:24.960 --> 0:03:27.240 it comes down to those ballots. Well, then there may 0:03:27.240 --> 0:03:32.639 be litigation over them. But because they're those ballots are segregated. Um, 0:03:32.720 --> 0:03:36.080 if the margin of victory is large enough in the 0:03:36.120 --> 0:03:38.800 other ballots, then they won't even have to deal without 0:03:38.880 --> 0:03:43.480 legal issues. And will the Trump campaign likely be allowed 0:03:43.520 --> 0:03:48.040 to intervene in that lawsuit? Well, either they intervene or 0:03:48.080 --> 0:03:52.000 it becomes part of the other larger, uh set of 0:03:52.040 --> 0:03:55.960 complaints that they have over the process, right and so um, 0:03:56.640 --> 0:03:59.440 you know, the state Supreme Court has already ruled on 0:03:59.440 --> 0:04:01.920 this issuees, so we know what they think. Um. The 0:04:02.040 --> 0:04:04.800 question is whether this will be joined with a set 0:04:04.800 --> 0:04:07.120 of claims that they are making about defects in the 0:04:07.200 --> 0:04:10.200 vote counting process that will then lead to some kind 0:04:10.240 --> 0:04:13.000 of federal court action, ultimately landing it at the Supreme Court. 0:04:14.480 --> 0:04:16.880 What kind of what kind of defects would they have 0:04:17.000 --> 0:04:19.680 to show? I mean, they're they're they're alleging that their 0:04:19.720 --> 0:04:23.520 campaign observers aren't allowed to view where the ballots are 0:04:23.560 --> 0:04:27.400 being processed. There's also a claim about some counties in 0:04:27.440 --> 0:04:32.640 Pennsylvania or county in Pennsylvania allowing voters to cure their ballots. 0:04:33.760 --> 0:04:35.960 What would they have to show to make it a 0:04:36.000 --> 0:04:39.360 federal case, I guess so if you look sort of 0:04:39.480 --> 0:04:42.120 underneath the complaints and try to read the minds of 0:04:42.160 --> 0:04:44.520 people who are bringing it, this is trying to set 0:04:44.560 --> 0:04:47.120 the stage for a similar type of argument that we 0:04:47.160 --> 0:04:49.599 saw on Bush versus Gore, and it's two types of arguments. 0:04:49.680 --> 0:04:52.320 One is that voters in different parts of the state 0:04:52.600 --> 0:04:55.039 where subject to different rules. Some voters are allowed to 0:04:55.040 --> 0:04:58.360 cure their ballots, others were not. And the second, which 0:04:58.400 --> 0:05:03.000 is related, is that the ability to cure or the 0:05:03.040 --> 0:05:05.480 in the ability to remedy any defects in the ballot 0:05:05.760 --> 0:05:08.919 was pursuance the Secretary of State guidance or local rules 0:05:09.360 --> 0:05:12.320 which go against state law that was passed by the legislature. 0:05:12.880 --> 0:05:16.200 And what the Trump administration has been arguing a Trump 0:05:16.240 --> 0:05:19.800 campaign has been arguing in other court cases is that 0:05:19.920 --> 0:05:22.279 in effect, what you're doing is usurfing the power of 0:05:22.279 --> 0:05:25.320 the legislature and that violates Article two, Section one of 0:05:25.320 --> 0:05:28.839 the Constitution, which says that it's the state legislature which 0:05:28.839 --> 0:05:32.760 will choose the manner of determining electors for the electoral college. Well, 0:05:32.800 --> 0:05:35.520 I think if it if it ends up being outcome determinative, 0:05:35.560 --> 0:05:37.600 that I do think that U s Supreme Court might 0:05:37.600 --> 0:05:40.080 consider this, So we're a long way away from that 0:05:40.320 --> 0:05:43.440 right now. We are in the prelitigation phase where the 0:05:43.520 --> 0:05:45.640 ballot counting is still going on and we need to 0:05:45.640 --> 0:05:48.799 make sure that every vote is counted um um. Once 0:05:49.120 --> 0:05:52.520 the counse are known, then you can enter either a 0:05:52.600 --> 0:05:55.400 recount phase or a contest phase where you're starting to 0:05:55.400 --> 0:05:58.320 say there was something wrong with the processing and counting 0:05:58.400 --> 0:06:01.360 these absentee ballots that we put into doubts, and then 0:06:01.400 --> 0:06:04.200 you explain that, um you know, in litigation that might 0:06:04.320 --> 0:06:06.080 make its way up to the U. S. Supreme Court. 0:06:06.160 --> 0:06:08.720 But we were still just in that kind of prelitigation 0:06:08.800 --> 0:06:11.400 stage is trying to figure out how to count each 0:06:11.400 --> 0:06:15.000 one of these votes. The Trump campaign says it's going 0:06:15.040 --> 0:06:19.400 to ask Wisconsin for a recount. It seems as if 0:06:19.400 --> 0:06:21.880 that might be granted because Wisconsin has a one percent 0:06:22.040 --> 0:06:25.360 margin is necessary for a recount. As a recount ever, 0:06:25.680 --> 0:06:29.159 you know, resulted in a change in in votes at 0:06:29.080 --> 0:06:33.320 a presidential election, not in a presidential election, But there 0:06:33.320 --> 0:06:37.160 are plenty of examples of where recounts may discover ballots 0:06:37.520 --> 0:06:40.560 or lead to the disqualish disqualification of ballots that would 0:06:40.640 --> 0:06:43.599 change as a result um they ultimately didn't happen in 0:06:43.600 --> 0:06:46.800 Bhish persons Gore in the two thousand presidential election controversy. 0:06:46.839 --> 0:06:51.360 But there are situations, most famously with Al Frankin and 0:06:51.440 --> 0:06:54.599 Norm Coleman in Minnesota and the recount that happened there 0:06:54.680 --> 0:06:57.240 where where they sort of went back and forth, and 0:06:57.320 --> 0:06:59.880 it really just depends on what might be the claim 0:07:00.200 --> 0:07:02.839 as to why some votes should not be counted, or 0:07:02.839 --> 0:07:06.680 why it might be fraudulent or others might have been excluded. 0:07:07.279 --> 0:07:10.040 When you look at these various legal strategies that the 0:07:10.080 --> 0:07:13.320 Trump campaign seems to be trying out, do any of 0:07:13.360 --> 0:07:17.240 them strike you as more consequential than others? Well, I 0:07:17.680 --> 0:07:21.440 think that right now they don't even really know what 0:07:21.680 --> 0:07:24.640 the legal defects are in the process as it's unfolding, 0:07:25.040 --> 0:07:27.760 But they want to preserve the possibility that they will 0:07:27.760 --> 0:07:30.200 make these arguments later, and so they're throwing everything at 0:07:30.200 --> 0:07:32.520 the wall to see what sticks. So a lot of 0:07:32.560 --> 0:07:37.280 these claims are frivolous, um, but they're trying to launch 0:07:37.560 --> 0:07:40.520 certain types of claims both to create doubt over the process, 0:07:40.560 --> 0:07:43.720 but then also to potentially litigate other kinds of claims 0:07:44.080 --> 0:07:47.240 if they they have an opportunity, whether in state court 0:07:47.320 --> 0:07:51.160 or altimately federal courts. Are they also suing in Nevada 0:07:51.240 --> 0:07:55.440 over absentee There is a dispute in arab Zona in 0:07:55.440 --> 0:07:58.040 in Nevada, as I understand it, over the processing of 0:07:58.040 --> 0:08:00.840 absentee balance in Clark County and how the signature matching 0:08:01.440 --> 0:08:03.760 the process may have worked. But I have not seen 0:08:03.840 --> 0:08:07.320 the actual legal papers there, so I've only heard this 0:08:07.400 --> 0:08:10.640 second hand that this is perceiving when you look at this, 0:08:10.760 --> 0:08:13.680 the way this is evolving. Is this how you expected 0:08:13.800 --> 0:08:17.680 this election to evolve, That it would be complicated a 0:08:17.720 --> 0:08:19.880 lot of challenges and you know it would take a 0:08:19.880 --> 0:08:23.800 long time, or is this something it's unexpected? Well, I 0:08:23.840 --> 0:08:26.240 was looking at the same holes as everybody else, and 0:08:26.320 --> 0:08:29.520 so I don't know why we maintained in the rational 0:08:29.520 --> 0:08:31.240 faith in them, given that they were so wrong four 0:08:31.320 --> 0:08:33.800 years ago. But they showed that this election would be 0:08:33.800 --> 0:08:38.079 beyond the margin of litigation. It still maybe that we're 0:08:38.120 --> 0:08:40.400 not going to end up with having courts decide important 0:08:40.440 --> 0:08:43.760 issues here. But um, I was as surprised as anyone 0:08:44.040 --> 0:08:46.120 um and how close it was. But we all knew 0:08:46.200 --> 0:08:49.880 going into uh November three that they were going to 0:08:49.880 --> 0:08:52.920 be a large volume of absute ballots because in the 0:08:52.960 --> 0:08:56.040 wake of COVID, this is the way that states adapted 0:08:56.080 --> 0:08:58.880 to the COVID environment by by increasing the number of 0:08:59.040 --> 0:09:01.960 mail and absinte up UM. We also knew that those 0:09:02.000 --> 0:09:05.599 mail ballots would be different in as compared to the 0:09:05.640 --> 0:09:08.960 same day vote because Democrats were more likely to use them. 0:09:09.280 --> 0:09:12.679 The President knew that UH and also cast doubt um 0:09:12.800 --> 0:09:16.280 several months before even the election day on the use 0:09:16.320 --> 0:09:19.360 of mail ballot And so in some ways this legal 0:09:19.360 --> 0:09:24.439 strategy was was prestiged early on with signals UM that 0:09:24.360 --> 0:09:27.319 there would be claims of fraud in the absentee balloting process. 0:09:27.400 --> 0:09:30.120 And now here we are where the election is coming 0:09:30.160 --> 0:09:32.320 down to have since ballots in a in a in 0:09:32.360 --> 0:09:35.920 a few states, UH, and if there is mitigational beyond 0:09:35.960 --> 0:09:38.480 that basis, but we need to remember that this is 0:09:38.520 --> 0:09:41.880 again the preltigation phase. And then we're still counting the votes, 0:09:42.520 --> 0:09:44.680 and we need to see whether the margin might be um, 0:09:44.880 --> 0:09:47.640 you know, too large for either candidate UH, such that 0:09:47.679 --> 0:09:50.680 they would be able to win without resuning to the court. Finally, 0:09:51.400 --> 0:09:54.840 the way this is evolving, and the fact that President 0:09:54.880 --> 0:09:59.239 Trump has been saying repeatedly that mail in ballots are fraudulent. 0:09:59.600 --> 0:10:03.199 Together with his comments today, does it make it seem 0:10:03.240 --> 0:10:05.400 as if the American public is going to have a 0:10:05.440 --> 0:10:08.360 hard time the majority of the American public believing in 0:10:09.000 --> 0:10:12.280 the results. I think that was going to be true 0:10:12.400 --> 0:10:15.600 no matter what happened in this election. There were large 0:10:15.960 --> 0:10:18.240 sections of the American public that did not believe this 0:10:18.280 --> 0:10:21.080 would be a free and fair election. I worried that 0:10:21.080 --> 0:10:23.240 that's going to be even the larger share this time, 0:10:23.280 --> 0:10:26.040 that whoever ends up using this election is going to 0:10:26.040 --> 0:10:29.520 feel that the process is illegitimate. UM. And you know, 0:10:29.559 --> 0:10:32.240 it doesn't help when the candidates, if the candidates themselves 0:10:32.559 --> 0:10:36.240 say so uh, and so I am concerned about this. 0:10:36.320 --> 0:10:39.800 I mean, we are as difficult as as the two 0:10:39.840 --> 0:10:42.880 thousand controversy in Florida was. We were a much different 0:10:42.880 --> 0:10:47.079 country back then, less polarized. UM. Certainly no pandemic or 0:10:47.120 --> 0:10:50.360 recession at the time, and so we are not well 0:10:50.400 --> 0:10:52.920 prepared for it. But we need to be patient, and 0:10:52.960 --> 0:10:55.000 patience is in short supply these days, and we need 0:10:55.040 --> 0:10:57.320 to let all of us be counted. Thanks for being 0:10:57.360 --> 0:11:01.040 on the show, Nate. That's Nate personally, afessor at Stanford 0:11:01.080 --> 0:11:07.559 Law School. President Trump seems to be pursuing a contradictory strategy, 0:11:07.640 --> 0:11:10.520 attempting to stop vote counting in states where he thinks 0:11:10.559 --> 0:11:14.480 he's ahead, while demanding the tallies continue or be recounted 0:11:14.520 --> 0:11:18.120 where he's losing. Joining me his election law expert Derek Muller, 0:11:18.320 --> 0:11:20.679 a professor at the College of Law on the University 0:11:20.720 --> 0:11:25.840 of Iowa, is this the nightmare scenario that many election 0:11:26.200 --> 0:11:29.439 law experts were dreading? So I wouldn't call it a 0:11:29.559 --> 0:11:33.840 nightmare scenario, right, I think? Um, I think everyone expected 0:11:33.880 --> 0:11:37.360 there was going to be some counting in some extension 0:11:37.400 --> 0:11:40.559 of period of time where the ballots are going to 0:11:40.640 --> 0:11:43.880 come in that in some states like Pennsylvania and Michigan 0:11:43.880 --> 0:11:47.400 in particular, there wasn't a whole lot of pre processing 0:11:47.440 --> 0:11:50.040 of ballots ahead of election day. Those absentee and mail 0:11:50.080 --> 0:11:52.840 in ballots that um, you know, came by the millions 0:11:52.840 --> 0:11:55.200 in those states. Um, that was just going to delay 0:11:55.280 --> 0:11:57.959 some of the results. And so, UM, what we're seeing 0:11:58.040 --> 0:12:00.840 is sort of the inevitable results of some of those 0:12:00.840 --> 0:12:04.160 delays and you know, some some shift in the in 0:12:04.240 --> 0:12:07.680 the results of the election. UM. I think the nightmare 0:12:07.720 --> 0:12:11.559 scenario arises if it looks like one state um is 0:12:11.559 --> 0:12:14.160 going to be the tipping point in the electoral college, 0:12:14.360 --> 0:12:18.120 and if that one state UM is decided by a 0:12:18.200 --> 0:12:22.840 razor thin margin or over some pool of disputed ballots. So, um, 0:12:22.880 --> 0:12:24.720 I think we're sort of in the in the you know, 0:12:24.800 --> 0:12:28.000 sort of uncomfortable waiting zone, but far from a nightmare 0:12:28.000 --> 0:12:31.360 scenario at the moment. President Trump has said that we're 0:12:31.360 --> 0:12:33.960 going straight to the Supreme Court, We're going to stop 0:12:34.000 --> 0:12:37.720 the count and the Supreme Court did stop Florida from 0:12:37.760 --> 0:12:42.199 recounting in two thousand. Is that a possibility, Yes, so 0:12:42.280 --> 0:12:45.480 I think it's a very remote possibility. Um. Pretty unlikely 0:12:45.520 --> 0:12:48.160 at this point. Um. So the first thing to keep 0:12:48.200 --> 0:12:51.520 in mind is thinking about what kind of legal setup 0:12:51.559 --> 0:12:54.760 you have to say that you should stop counting in 0:12:54.800 --> 0:12:57.600 the first place. So there's difference between stopping counting and 0:12:57.600 --> 0:13:01.480 stopping recounting. Um. So, So the counts are still happening, 0:13:01.480 --> 0:13:04.360 and we haven't even finished those sort of final totals, 0:13:04.400 --> 0:13:07.520 including ballots that have been received weeks ago in some states. 0:13:08.080 --> 0:13:11.160 So there's a very difficult sort of climb to say 0:13:11.160 --> 0:13:14.280 you shouldn't count certain ballots. Now, that's how to say 0:13:14.320 --> 0:13:16.120 that he doesn't have a case you know there were 0:13:16.240 --> 0:13:20.280 lawsuits in Pennsylvania in particular, saying, um, these ballots that 0:13:20.600 --> 0:13:23.920 a state supreme court said should be counted that are 0:13:23.960 --> 0:13:26.520 received in the three days after election day, those with 0:13:26.600 --> 0:13:29.280 a postmark of election day or earlier, or those without 0:13:29.280 --> 0:13:33.480 a postmark should be counted. And the states that you 0:13:33.480 --> 0:13:36.160 know what we have acknowledge there's a legal challenge to this. 0:13:36.280 --> 0:13:38.480 We're going to segregate these ballots. We're going to set 0:13:38.520 --> 0:13:40.920 them off to the side, and in the events there's 0:13:40.960 --> 0:13:44.400 a legal dispute about them later, we at least can 0:13:44.720 --> 0:13:47.079 don't have to unscramble the egg, right, they're not mixed 0:13:47.080 --> 0:13:48.520 in with the other ballots, and we can sort of 0:13:48.559 --> 0:13:51.400 address it. So that's like a very narrow sort of 0:13:51.400 --> 0:13:53.280 decision to say, oh, these are the kinds of things 0:13:53.320 --> 0:13:56.200 that we're challenging. But in terms of like the ordinary 0:13:56.200 --> 0:13:58.640 state process of if we have absentee ballots or we 0:13:58.679 --> 0:14:00.760 have in person ballots and we're sort of running them 0:14:00.760 --> 0:14:03.320 through the machine and counting them up, there's not really 0:14:03.360 --> 0:14:06.080 just sort of a way of litigating that much last 0:14:06.080 --> 0:14:08.240 getting the Supreme court right, you start in the state, 0:14:08.559 --> 0:14:12.560 you start in the district court or or state lower court, state, 0:14:12.600 --> 0:14:15.720 file court and file under some kind of cause of action. 0:14:15.800 --> 0:14:18.679 So unless there's some sort of malfies and some legal 0:14:18.720 --> 0:14:21.360 hook um, you know, that's not going to happen. Um. 0:14:21.440 --> 0:14:24.760 So it's under say that that there are opportunities to 0:14:24.920 --> 0:14:27.720 file those kinds of challenges, but but that you know, 0:14:27.760 --> 0:14:30.920 sort of a wholesale stop accounting is just not in 0:14:30.960 --> 0:14:33.440 the cards at the moment. So let's talk then about 0:14:33.480 --> 0:14:37.360 some of the possible legal challenges. So let's say a 0:14:37.480 --> 0:14:42.600 state is very close razor thin. Also you have observers 0:14:42.720 --> 0:14:46.320 watching the counting going on. What kinds of claims could 0:14:46.400 --> 0:14:50.640 be made? Would it just be about the absentee, the 0:14:50.920 --> 0:14:54.200 mail in and the provisional ballots or is there a 0:14:54.280 --> 0:14:57.880 broader claim? Yeah, I mean there's lots of different things 0:14:57.880 --> 0:15:00.600 that could be could be challenged in different with fact um, 0:15:00.680 --> 0:15:05.000 there could be challenges to the provisional ballots. So folks 0:15:05.000 --> 0:15:08.000 who tried to cast the ballot the polls, but you know, 0:15:08.360 --> 0:15:12.040 they lacked a form of identification or um, they lacked 0:15:12.080 --> 0:15:14.200 proup of residents or whatever it might be, and so 0:15:14.240 --> 0:15:16.080 they were turned away. But they cast a ballot with 0:15:16.120 --> 0:15:18.760 an opportunity to come back later and cure that and 0:15:18.840 --> 0:15:22.480 people might challenge those kinds of decisions that are happening 0:15:22.720 --> 0:15:24.960 or um they might look at, you know, if there's 0:15:25.000 --> 0:15:27.240 a some of these absentee ballots that might have been 0:15:27.280 --> 0:15:31.200 rejected for some reason, or that we're counted, uh, you know, 0:15:31.240 --> 0:15:33.920 with presumptions that the signatures were valid and that looked 0:15:33.960 --> 0:15:36.000 like the was the identity of the voter. But we're 0:15:36.080 --> 0:15:38.880 challenged by some observer and we're sort of set aside. 0:15:39.320 --> 0:15:42.360 But these are sort of pretty narrow, sort of fact 0:15:42.400 --> 0:15:46.480 by fact questions, right, sort of ballot by palette um. 0:15:46.600 --> 0:15:49.680 And that's a long slog for a campaign. You need 0:15:49.800 --> 0:15:52.400 a razor thin margin in order to win on that 0:15:52.480 --> 0:15:54.000 kind of a theory. And by raise your sin, I 0:15:54.040 --> 0:15:56.840 mean I'm talking about a couple of hundred votes, right, 0:15:56.880 --> 0:15:59.480 I'm not talking one person. I'm talking about an exceedingly 0:15:59.560 --> 0:16:03.080 narrow margins. So there's there's that sort of um set 0:16:03.120 --> 0:16:05.720 of claims that can happen in narrow election. The others, 0:16:05.760 --> 0:16:07.600 you know, maybe you can try to raise some kind 0:16:07.600 --> 0:16:10.880 of more systemic challenge and that might be a version 0:16:10.920 --> 0:16:13.400 of what happened in Bush versus Core in two thousand. 0:16:13.560 --> 0:16:15.960 You know, the legal hook that really won the day 0:16:15.960 --> 0:16:19.680 at the Supreme Court was um, some counties were proceeding 0:16:19.760 --> 0:16:22.640 one way with a recount um, and others were proceeding 0:16:22.680 --> 0:16:25.880 in a different way, and still others were not really 0:16:25.960 --> 0:16:29.000 counting at all. And when the Supreme Court stepped in 0:16:29.040 --> 0:16:31.640 and said, you had to pride provide some uniform guidance. 0:16:31.640 --> 0:16:33.840 So to the extent that it looks like there's some 0:16:34.120 --> 0:16:38.840 funny decisions happening in some counties but not in others, 0:16:38.880 --> 0:16:41.200 there would be an opportunity to step in and say, oh, 0:16:41.200 --> 0:16:43.680 you're doing something different in this county that's not available 0:16:43.680 --> 0:16:46.600 in others. So one challenge the Trump campaign that has 0:16:46.640 --> 0:16:49.920 been filed in state court is um that one county 0:16:49.920 --> 0:16:53.600 in Pennsylvania was reaching out and contacting voters whose absentee 0:16:53.640 --> 0:16:57.680 ballots were rejected for some reason, inviting them to come 0:16:57.800 --> 0:17:00.000 cure the ballot and viting the voters to come and say, 0:17:00.040 --> 0:17:02.160 you know, so you fail to fill out this information 0:17:02.320 --> 0:17:04.920 or whatever it is, you know, let's fix it. Um. 0:17:04.920 --> 0:17:06.920 And if that's the practice one of the sixty seven 0:17:06.920 --> 0:17:08.960 counties is doing, does it put sort of the other 0:17:09.040 --> 0:17:11.960 voters on unequal footing And is it sort of this 0:17:12.040 --> 0:17:15.200 sort of treatment that's arbitrary, as the Supreme Court set 0:17:15.240 --> 0:17:17.760 in Bush versus Score Right, this really in vidious sort 0:17:17.800 --> 0:17:20.119 of decision. So you would have to come up with 0:17:20.160 --> 0:17:21.919 a theory like that, but you know, you have to 0:17:21.960 --> 0:17:23.960 think about it on the flip side too. Of a 0:17:24.000 --> 0:17:27.040 couple of responses to that kind of answer. The first 0:17:27.119 --> 0:17:30.840 is to say, well, um, you know, just because the 0:17:30.920 --> 0:17:34.400 county is doing something differently, how problematic is it inviting 0:17:34.440 --> 0:17:37.680 a few voters to cure um you know, doesn't seem 0:17:37.760 --> 0:17:40.960 like the kind of um, you know, disparate treatment of 0:17:41.960 --> 0:17:45.000 We're carefully counting ballots in one part of the state 0:17:45.280 --> 0:17:47.440 and we're not counting them at all somewhere else. I mean, 0:17:47.760 --> 0:17:49.680 so so we have to draw the distinctions on that front. 0:17:50.000 --> 0:17:53.000 But another, I think the more potent one is um 0:17:53.600 --> 0:17:55.720 is a notion of latches or the notion that you 0:17:55.800 --> 0:17:59.160 brought this claim far too late and there's a remedial 0:17:59.160 --> 0:18:01.320 bar that says you can't bring this claim at this 0:18:01.400 --> 0:18:04.520 point in time. Uh, you know, particularly in this case 0:18:04.640 --> 0:18:07.600 in Pennsylvania. Uh, this is something conti's have been doing 0:18:07.640 --> 0:18:09.640 for a long time. This is something the Republican Party 0:18:09.640 --> 0:18:12.720 has been unnoticed for for an extended period of time. 0:18:13.119 --> 0:18:15.440 And if that's the case, um, you know, depending on 0:18:15.440 --> 0:18:16.959 the length of time and how much notice they had 0:18:17.000 --> 0:18:18.960 and when they ought to service stepped into to say 0:18:19.000 --> 0:18:21.960 something about it, it's just too late. It's just unfair 0:18:22.000 --> 0:18:24.160 for us to step in and change things. So unlike 0:18:24.160 --> 0:18:26.360 Push versus Score, where their recount was sort of being 0:18:26.400 --> 0:18:30.040 developed on the fly and there were constant, pressing, immediate 0:18:30.119 --> 0:18:33.720 legal challenges to it, um, the more sort of longstanding 0:18:33.800 --> 0:18:36.360 nature of the problem makes some of these litigation challenges 0:18:36.400 --> 0:18:38.239 a little bit more difficult. So I think about that 0:18:38.359 --> 0:18:41.200 is sort of the that the system of things at 0:18:41.240 --> 0:18:43.800 play when we think about, you know, challenges even in 0:18:43.800 --> 0:18:47.639 a narrowly contested state. Let's talk about the other case 0:18:47.720 --> 0:18:50.560 at in Pennsylvania that went up to the Supreme Court 0:18:51.080 --> 0:18:54.919 where the Supreme Court allowed the counting of ballots in 0:18:54.960 --> 0:18:58.879 Pennsylvania for three days after election day, ballots that have 0:18:58.960 --> 0:19:04.240 been postmarked by election day, and several of the conservative justices, 0:19:04.400 --> 0:19:08.639 particularly Justice Alito, said, oh, well, these are being segregated, 0:19:08.760 --> 0:19:11.919 so so we could consider this after the election. So 0:19:12.000 --> 0:19:14.440 tell us what was said by the Supreme Court there 0:19:14.520 --> 0:19:18.639 that may lead to this case coming back there? Yeah, No, 0:19:18.720 --> 0:19:21.760 I mean you set it up nicely. Right, it's um. 0:19:22.080 --> 0:19:24.119 And the heart of this dispute really harkens back to 0:19:24.160 --> 0:19:28.040 another Bush versus Score question. Right. So, the the question 0:19:28.080 --> 0:19:31.320 really arose in Pennsylvania over a couple of concerns. One 0:19:31.440 --> 0:19:34.840 is so Pennsylvania has a clear and explicit statute that 0:19:34.920 --> 0:19:38.120 says ballots are due on election day, that's when they 0:19:38.119 --> 0:19:41.439 have to be in UM. And then there was a 0:19:41.480 --> 0:19:44.320 litigation challenge to say, listen, we've got this huge volume 0:19:44.320 --> 0:19:47.400 of absentee voters. UM, there are more people than ever 0:19:47.520 --> 0:19:50.040 voting by absentee. There are more people than ever who 0:19:50.080 --> 0:19:53.520 are aligned on the postal service. The postal service, whether 0:19:53.880 --> 0:19:56.960 for innocent reasons or for service cuts, just can't handle 0:19:57.000 --> 0:20:01.320 these kinds of a volume of stuff. So we're challenging 0:20:01.359 --> 0:20:04.840 to say that we need to extend that deadline three days. 0:20:04.880 --> 0:20:08.560 And Dependsylvania Supreme Court said, under its free and fair 0:20:08.600 --> 0:20:13.320 Elections clause in the Constitution, which is a pretty generic phrase, right, 0:20:13.520 --> 0:20:17.680 free their elections. Looking at that clause, that we conclude 0:20:18.000 --> 0:20:21.920 that that there's this sort of legislative preference for us 0:20:22.080 --> 0:20:26.520 pursue into this clause to extend this recognition of ballots, 0:20:26.520 --> 0:20:29.520 its acceptance of bounce in extra three days, those postmark 0:20:29.560 --> 0:20:32.879 by election day or those without a postmark um that 0:20:32.920 --> 0:20:35.639 are received within three days will presume that they are valid, 0:20:35.720 --> 0:20:38.440 which is a little bit more of a controversial claim. 0:20:38.560 --> 0:20:41.159 And when it goes up to the Supreme Court, they 0:20:41.240 --> 0:20:43.280 end up saying, well, you know, cheat us. As roberts 0:20:43.320 --> 0:20:46.199 Is suggested, well, this is a state court decision, so 0:20:46.280 --> 0:20:48.640 maybe it'll stay in place. But just as a leader 0:20:48.680 --> 0:20:51.359 wrote separately, uh, you know, saying, you know, it's not 0:20:51.440 --> 0:20:55.080 just a state court decision. It's a state court decision 0:20:55.680 --> 0:21:01.119 that basically contravenes a direct legislative guidance from the legislature 0:21:01.200 --> 0:21:04.400 that says ballots come in by election day. And when 0:21:04.440 --> 0:21:07.520 you do that, the celto sort of emphasize you are 0:21:07.720 --> 0:21:11.680 usurping the state legislative power, which is an Article two 0:21:11.680 --> 0:21:14.560 of the Constitution each state shall appoint a number of 0:21:14.560 --> 0:21:18.080 electors in the manner that the legislature thereof may direct. 0:21:18.720 --> 0:21:21.480 And three justices writing in Bush versus Gore, sort of 0:21:21.640 --> 0:21:26.160 had a sort of emphasis on this prong of the Constitution. 0:21:26.240 --> 0:21:29.160 Chief Dolfic Rank with opinion in Bush versus Score highlights 0:21:29.240 --> 0:21:33.400 this notion that it's principally the responsibility of the legislature. 0:21:33.400 --> 0:21:36.200