1 00:00:00,480 --> 00:00:05,720 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,440 --> 00:00:09,080 Speaker 1: It's a high stakes election and it's on track to 3 00:00:09,119 --> 00:00:12,360 Speaker 1: be one of the most litigated in US history. It's 4 00:00:12,360 --> 00:00:16,840 Speaker 1: been complicated by changes to balloting prompted by the coronavirus 5 00:00:16,920 --> 00:00:21,000 Speaker 1: and President Trump repeating misinformation about voting by mail. But 6 00:00:21,120 --> 00:00:25,159 Speaker 1: the mail in voting with a mail indiscriminately millions and 7 00:00:25,239 --> 00:00:27,840 Speaker 1: millions of ballots to people you're never gonna know who 8 00:00:27,840 --> 00:00:30,160 Speaker 1: one day election. You can't have that. There are a 9 00:00:30,160 --> 00:00:33,080 Speaker 1: flood of lawsuits in forty two states and d C 10 00:00:33,680 --> 00:00:36,239 Speaker 1: that will determine how easy or hard it will be 11 00:00:36,320 --> 00:00:39,400 Speaker 1: to cast your ballot. Joining me is election law expert 12 00:00:39,479 --> 00:00:43,160 Speaker 1: Justin Levitt, a professor at Loyola Law School. So, Justin, 13 00:00:43,200 --> 00:00:46,280 Speaker 1: you've actually been tracking the cases, and at last count, 14 00:00:46,320 --> 00:00:49,880 Speaker 1: there were one nine cases. I want to be clear, 15 00:00:50,479 --> 00:00:55,320 Speaker 1: that's not just election law cases. There are more than that. 16 00:00:55,320 --> 00:01:00,400 Speaker 1: That's only election law cases that say the pandemic change things. 17 00:01:00,720 --> 00:01:03,440 Speaker 1: If you add up the disputes that were still pending 18 00:01:03,480 --> 00:01:07,160 Speaker 1: before COVID nineteen were those that don't depend on the pandemic. 19 00:01:07,240 --> 00:01:10,160 Speaker 1: There are quite a few more. It's a very ligitious season. 20 00:01:10,680 --> 00:01:13,320 Speaker 1: It certainly is. I see your list grows all the time. 21 00:01:13,600 --> 00:01:16,720 Speaker 1: Briefly or broadly described what the cases are that are 22 00:01:16,840 --> 00:01:20,320 Speaker 1: non pandemic related. There's something that are still lingering from 23 00:01:20,400 --> 00:01:23,240 Speaker 1: before March. If your listeners remember there was a time 24 00:01:23,280 --> 00:01:26,120 Speaker 1: before March, and I know it's hard, It's really hard 25 00:01:26,160 --> 00:01:28,399 Speaker 1: to get back there now. There were disputes over the 26 00:01:28,440 --> 00:01:32,399 Speaker 1: rules of elections in and apart from the pandemic, about whether, 27 00:01:32,760 --> 00:01:36,360 Speaker 1: for example, absentee balloting rules were too strict, about whether 28 00:01:36,400 --> 00:01:40,360 Speaker 1: there were processes for notifying people about mistakes, about whether 29 00:01:40,680 --> 00:01:44,679 Speaker 1: people with convictions were entitled to vote or not, or 30 00:01:44,680 --> 00:01:46,679 Speaker 1: whether the state knew whether they were entitled to vote 31 00:01:46,720 --> 00:01:49,120 Speaker 1: or not. There's an ongoing to spudent Florida that boils 32 00:01:49,200 --> 00:01:52,480 Speaker 1: down to can the state restrict your right to vote 33 00:01:52,560 --> 00:01:55,880 Speaker 1: until you've paid off fines and fees for a conviction 34 00:01:56,160 --> 00:01:58,720 Speaker 1: when the state can't tell you how much you owe. 35 00:01:58,960 --> 00:02:01,160 Speaker 1: A horrible state of affairs. But it has nothing to 36 00:02:01,160 --> 00:02:05,080 Speaker 1: do with the pandemic. So let's turn to the pandemic cases. 37 00:02:05,360 --> 00:02:08,480 Speaker 1: They also cover a broad range of issues, and most 38 00:02:08,520 --> 00:02:12,680 Speaker 1: of them seem to relate to mail in balloting. Yeah, 39 00:02:12,760 --> 00:02:15,560 Speaker 1: I'd say there are three or four big blocks of cases, 40 00:02:15,600 --> 00:02:18,040 Speaker 1: and mail in balloting is a super big one. The 41 00:02:18,080 --> 00:02:20,919 Speaker 1: first thing easiest to understand maybe cases that have to 42 00:02:20,960 --> 00:02:24,880 Speaker 1: do with the primaries or petitioning on to the general election, 43 00:02:24,880 --> 00:02:27,919 Speaker 1: where you have to get signatures. So lots of minor 44 00:02:27,960 --> 00:02:32,840 Speaker 1: party candidates, some major party candidates, um some initiatives and 45 00:02:32,919 --> 00:02:35,720 Speaker 1: citizens initiatives want to know if they can get onto 46 00:02:35,720 --> 00:02:38,079 Speaker 1: the ballot or not. The main way we do that 47 00:02:38,320 --> 00:02:41,760 Speaker 1: is by getting signatures and having people stand out and 48 00:02:41,800 --> 00:02:44,760 Speaker 1: collect people's innatures as they walk by into large gatherings. 49 00:02:44,880 --> 00:02:47,760 Speaker 1: We're have any large gatherings anymore, and so it's really 50 00:02:47,800 --> 00:02:50,000 Speaker 1: hard to collect those signatures, and there's been a lot 51 00:02:50,040 --> 00:02:53,160 Speaker 1: of litigation about that. There's been a lot of litigation about, 52 00:02:53,200 --> 00:02:56,400 Speaker 1: as you say, the mail in ballot system about well, 53 00:02:56,440 --> 00:02:59,880 Speaker 1: on one end, whether it is as available as it 54 00:03:00,040 --> 00:03:02,919 Speaker 1: needs to be in a pandemic, things like they need 55 00:03:03,000 --> 00:03:06,919 Speaker 1: to get notaries or witness signatures, Things like deadlines for 56 00:03:07,000 --> 00:03:09,160 Speaker 1: when to request or when to submit, things like whether 57 00:03:09,200 --> 00:03:11,560 Speaker 1: you need to submit with postage, things like whether you 58 00:03:11,600 --> 00:03:15,440 Speaker 1: need an excuse. Those are all under contest. There are 59 00:03:15,480 --> 00:03:20,519 Speaker 1: also a few pieces of litigation about emergency steps that 60 00:03:20,720 --> 00:03:24,760 Speaker 1: executives have taken public health officials, governors or secretaries of 61 00:03:24,800 --> 00:03:30,000 Speaker 1: state expanding access to mail balance and litigation over whether 62 00:03:30,120 --> 00:03:32,959 Speaker 1: those officials had the right to do that either in 63 00:03:33,080 --> 00:03:35,840 Speaker 1: the seeral constitution of the state constitution. And then there's 64 00:03:35,880 --> 00:03:39,080 Speaker 1: a fourth set of issues around the in person process, 65 00:03:39,120 --> 00:03:42,200 Speaker 1: because we will still have any in person process even 66 00:03:42,200 --> 00:03:44,480 Speaker 1: with all of these mail ballots. The goal is not 67 00:03:44,560 --> 00:03:48,360 Speaker 1: to shut out or shut down any in person baloting. 68 00:03:48,680 --> 00:03:51,880 Speaker 1: It's to leave space for in person balloting for those 69 00:03:51,920 --> 00:03:54,080 Speaker 1: who need it most. So there will still be people 70 00:03:54,120 --> 00:03:57,320 Speaker 1: at the polls, and there's still some litigations over the 71 00:03:57,400 --> 00:04:00,760 Speaker 1: conditions for actually going to the polls. This notever, election 72 00:04:00,800 --> 00:04:06,400 Speaker 1: officials in many places want to consolidate the polling places 73 00:04:06,440 --> 00:04:10,400 Speaker 1: to reduce in person voting, which would lead to more 74 00:04:10,520 --> 00:04:13,640 Speaker 1: lines and perhaps less people voting. Well, I want to 75 00:04:13,640 --> 00:04:15,960 Speaker 1: put back on that a little bit. The consolidation is right, 76 00:04:16,400 --> 00:04:20,440 Speaker 1: So I think many, many, many, many many officials want 77 00:04:20,520 --> 00:04:24,719 Speaker 1: there to be fewer locations, but that's not necessarily a 78 00:04:24,760 --> 00:04:28,760 Speaker 1: bad thing. So just take two examples. One is a 79 00:04:28,839 --> 00:04:32,760 Speaker 1: jurisdiction where there are lots of pulling places, but you 80 00:04:32,880 --> 00:04:37,119 Speaker 1: have to vote at your neighborhood polling place, and that 81 00:04:37,240 --> 00:04:40,640 Speaker 1: means that they have to spread out resources all over 82 00:04:40,680 --> 00:04:45,000 Speaker 1: the place, which means maybe, um, your poll workers are 83 00:04:45,120 --> 00:04:47,800 Speaker 1: the best trained. Maybe you're pulling place doesn't have the 84 00:04:47,839 --> 00:04:52,240 Speaker 1: best disability access. Maybe you're pulling place doesn't have language access. 85 00:04:52,360 --> 00:04:54,839 Speaker 1: If something breaks, it can be difficult to get to 86 00:04:55,240 --> 00:04:58,760 Speaker 1: your polling place to fix it because it's decentralized. Maybe 87 00:04:58,760 --> 00:05:01,200 Speaker 1: they run out of ballots right there. There are lots 88 00:05:01,200 --> 00:05:04,359 Speaker 1: of pros to lots of neighborhood polling places, but also 89 00:05:04,480 --> 00:05:07,840 Speaker 1: some downside. Compare that to a jurisdiction that has fewer 90 00:05:07,880 --> 00:05:12,280 Speaker 1: locations that are a little more centralized, but where you 91 00:05:12,320 --> 00:05:14,960 Speaker 1: can choose to go to any of them, where they're 92 00:05:15,320 --> 00:05:20,799 Speaker 1: better staffed, more accessible, better resources, easier to fix. Because 93 00:05:20,800 --> 00:05:24,080 Speaker 1: there are fewer locations that are bigger, they may be 94 00:05:24,279 --> 00:05:28,200 Speaker 1: that may actually be a better voting experience. UM. So, 95 00:05:28,400 --> 00:05:30,359 Speaker 1: I don't want to suggest that the sheer number of 96 00:05:30,400 --> 00:05:36,720 Speaker 1: locations alone is despositive. Sometimes less is more, sometimes less 97 00:05:36,800 --> 00:05:39,680 Speaker 1: is less, and sometimes more is more. It all depends 98 00:05:39,680 --> 00:05:41,760 Speaker 1: on how you actually design these things. I mean, we 99 00:05:41,800 --> 00:05:45,120 Speaker 1: saw in Milwaukee in the primary, Um, they all of 100 00:05:45,160 --> 00:05:48,240 Speaker 1: a sudden, I had a whole bunch of pole workers 101 00:05:48,360 --> 00:05:51,440 Speaker 1: quit and a whole bunch of locations they couldn't offer, 102 00:05:52,200 --> 00:05:55,039 Speaker 1: and going from more to less without planning for it 103 00:05:55,080 --> 00:05:59,239 Speaker 1: is a disaster. There's absolutely no question Milwaukee was a nightmare. 104 00:06:00,000 --> 00:06:03,479 Speaker 1: Louisville is an interesting alternative. In June, Louisville had an 105 00:06:03,480 --> 00:06:08,600 Speaker 1: election and they had one pulling place because they couldn't 106 00:06:08,640 --> 00:06:11,359 Speaker 1: get enough pull workers. It's really hard to be a 107 00:06:11,360 --> 00:06:14,880 Speaker 1: pull worker right now. Um. Because they couldn't get enough 108 00:06:14,880 --> 00:06:17,960 Speaker 1: pull workers, they decided to consolidate resources as best they 109 00:06:17,960 --> 00:06:21,479 Speaker 1: could in the convention center, and so it was this 110 00:06:21,800 --> 00:06:25,400 Speaker 1: cavernous space where everybody could be socially distant, where they 111 00:06:25,400 --> 00:06:28,640 Speaker 1: could have a relatively lean staff serving an awful lot 112 00:06:28,680 --> 00:06:31,640 Speaker 1: of people, and it seemed to go really well with 113 00:06:31,800 --> 00:06:35,599 Speaker 1: one point in place. So the sheer number isn't the 114 00:06:35,640 --> 00:06:39,200 Speaker 1: important thing. The planning for the number is the important thing. 115 00:06:39,279 --> 00:06:41,440 Speaker 1: And I think an awful lot of election officials are 116 00:06:41,480 --> 00:06:45,560 Speaker 1: now yes trying to consolidate because they know they're going 117 00:06:45,600 --> 00:06:49,640 Speaker 1: to have fewer people volunteering and fewer spaces that are open, 118 00:06:50,520 --> 00:06:52,520 Speaker 1: and they're trying to plan how best to serve the 119 00:06:52,640 --> 00:06:57,440 Speaker 1: voters in those circumstances. And this is a broad generalization 120 00:06:57,600 --> 00:07:01,039 Speaker 1: but as I look through these different lines of lawsuits 121 00:07:01,160 --> 00:07:06,520 Speaker 1: and the challenges to election procedures, it seems as if 122 00:07:07,040 --> 00:07:10,280 Speaker 1: the main ground is that it would lead to voter fraud. 123 00:07:11,080 --> 00:07:14,800 Speaker 1: So there are two different types of election cases out there. 124 00:07:15,160 --> 00:07:18,000 Speaker 1: Some are trying to open the system up a bit 125 00:07:18,280 --> 00:07:22,000 Speaker 1: because the current system we have wasn't designed for a pandemic, 126 00:07:22,280 --> 00:07:25,840 Speaker 1: and so they're trying to create flexibility based on the pandemic. 127 00:07:26,040 --> 00:07:28,800 Speaker 1: And those are based on burdens to the voters. There 128 00:07:28,800 --> 00:07:30,600 Speaker 1: are another set of cases that are trying to close 129 00:07:30,640 --> 00:07:33,560 Speaker 1: things down a bit. Let's say that the steps the 130 00:07:33,640 --> 00:07:36,960 Speaker 1: states have taken are going too far. There are fewer 131 00:07:37,000 --> 00:07:39,880 Speaker 1: of those cases. It's by no means the majority. I 132 00:07:39,920 --> 00:07:43,600 Speaker 1: would say there are roughly ten eleven twelve are trying 133 00:07:43,640 --> 00:07:46,680 Speaker 1: to shut things down. But you do see in the 134 00:07:46,920 --> 00:07:50,880 Speaker 1: litigation over opening things up, you see people opposing that 135 00:07:51,320 --> 00:07:54,320 Speaker 1: also making the same arguments, and that is, either you 136 00:07:54,600 --> 00:07:58,400 Speaker 1: state official don't have the power under state law to 137 00:07:58,480 --> 00:08:00,200 Speaker 1: do what you're doing. It's got to be an other 138 00:08:00,520 --> 00:08:03,840 Speaker 1: body like the legislature or whoever has got the power 139 00:08:03,840 --> 00:08:06,560 Speaker 1: to do it. This is going to create the conditions 140 00:08:06,640 --> 00:08:10,800 Speaker 1: for lack of security, for fraud in the process. I 141 00:08:10,840 --> 00:08:14,160 Speaker 1: will say the courts have not been kind to that 142 00:08:14,280 --> 00:08:18,040 Speaker 1: argument without proof. Again, it's one thing to stand up 143 00:08:18,200 --> 00:08:21,600 Speaker 1: in the public and assert that there will be more 144 00:08:21,600 --> 00:08:24,480 Speaker 1: fraud if X or Y, or assert that things are 145 00:08:24,560 --> 00:08:27,560 Speaker 1: less to effects or why. It's quite another thing to 146 00:08:27,680 --> 00:08:31,120 Speaker 1: have to prove to a court that this method is 147 00:08:31,280 --> 00:08:34,080 Speaker 1: that you're contesting is so problematic that the election now 148 00:08:34,200 --> 00:08:36,400 Speaker 1: come is going to be and the courts so far 149 00:08:36,720 --> 00:08:39,200 Speaker 1: really haven't thought it. You mentioned. It's one thing to 150 00:08:39,200 --> 00:08:43,200 Speaker 1: a certain public. President Trump has repeatedly said that mail 151 00:08:43,240 --> 00:08:47,120 Speaker 1: in ballots except in Florida are subject to massive fraud 152 00:08:47,200 --> 00:08:50,440 Speaker 1: in his campaign, issuing the state of Nevada is mail 153 00:08:50,480 --> 00:08:55,720 Speaker 1: in balloting subject to more fraud than in person balloting. Yeah, 154 00:08:55,880 --> 00:08:59,920 Speaker 1: these kinds are one of the President's less charming characteristics. 155 00:09:00,040 --> 00:09:03,480 Speaker 1: I would say there is a nugget of truth, but 156 00:09:03,600 --> 00:09:05,800 Speaker 1: I think it's a nugget that has been wrapped in 157 00:09:05,840 --> 00:09:11,280 Speaker 1: a pile of horse maneur. So the sorts of massive 158 00:09:11,440 --> 00:09:15,440 Speaker 1: national scale rigging that the President is talking about, there's 159 00:09:15,480 --> 00:09:19,559 Speaker 1: absolutely no evidence to support that. I would say there 160 00:09:19,679 --> 00:09:23,439 Speaker 1: is incremental risk in the mail in balloting process that 161 00:09:23,640 --> 00:09:27,560 Speaker 1: something will go awry, but that's more like if the 162 00:09:27,720 --> 00:09:30,920 Speaker 1: in person voting process is a one, then the mail 163 00:09:30,960 --> 00:09:34,240 Speaker 1: in balloting process maybe a three on a scale of 164 00:09:34,240 --> 00:09:37,440 Speaker 1: a hundred or five. Things do go wrong from time 165 00:09:37,480 --> 00:09:40,120 Speaker 1: to time, and they are more likely to go wrong 166 00:09:40,400 --> 00:09:43,479 Speaker 1: in the mail in process than in the in person process, 167 00:09:43,520 --> 00:09:47,520 Speaker 1: but not by much, and not on this is really important, 168 00:09:47,559 --> 00:09:50,520 Speaker 1: not on the scale that the presidents are. Certainly on 169 00:09:50,559 --> 00:09:52,960 Speaker 1: the rare occasions that you do see things go wrong 170 00:09:52,960 --> 00:09:57,400 Speaker 1: in the absolute process. There either individual ballots, people casting 171 00:09:57,440 --> 00:10:00,560 Speaker 1: a ballot for a dearly departed relative because they know 172 00:10:00,800 --> 00:10:03,800 Speaker 1: that's how they would have wanted to vote, or in 173 00:10:03,880 --> 00:10:07,200 Speaker 1: some way coercing a family member. But those are really 174 00:10:07,200 --> 00:10:10,840 Speaker 1: one off things. When on the very rare occasions where 175 00:10:10,840 --> 00:10:13,599 Speaker 1: there's any sort of conspiracy to rig an election of 176 00:10:13,720 --> 00:10:18,840 Speaker 1: steal an election, it's invariably a local election, of municipal elections, 177 00:10:18,920 --> 00:10:23,199 Speaker 1: a county election. That's not forgivable, but it's more understandable 178 00:10:23,480 --> 00:10:26,120 Speaker 1: because there are simply fewer ballots that you would have 179 00:10:26,200 --> 00:10:30,439 Speaker 1: to steal, and that means a less expansive conspiracy. It happens, 180 00:10:30,480 --> 00:10:33,800 Speaker 1: everyone's in a bloo moon. It happened in North Carolina 181 00:10:33,840 --> 00:10:35,640 Speaker 1: a few years ago. There was a big scandal in 182 00:10:35,679 --> 00:10:39,520 Speaker 1: north sellin is Bladen County about taking absidency ballots and 183 00:10:39,559 --> 00:10:43,640 Speaker 1: either ripping them up or rewriting them. But it didn't 184 00:10:43,880 --> 00:10:47,560 Speaker 1: really affect matters statewide, and it sure wouldn't have affected 185 00:10:47,600 --> 00:10:50,760 Speaker 1: matters in the national. It's incredibly hard. I mean, we 186 00:10:50,800 --> 00:10:53,640 Speaker 1: have a very resilient election system. There's a good thing. 187 00:10:53,679 --> 00:10:55,760 Speaker 1: The president seems to be doing his best to break it. 188 00:10:55,960 --> 00:10:59,120 Speaker 1: But we have an election system that is very resilient, 189 00:10:59,280 --> 00:11:03,320 Speaker 1: particularly eight four statewide races and national races, and is 190 00:11:03,720 --> 00:11:06,000 Speaker 1: really quite resilient the vast majority of the time for 191 00:11:06,280 --> 00:11:10,360 Speaker 1: races that are more local than that. Pennsylvania has drop 192 00:11:10,400 --> 00:11:13,600 Speaker 1: off boxes for ballots, and it's being sued over them. 193 00:11:13,679 --> 00:11:17,160 Speaker 1: Tell us about that. So I think most people can 194 00:11:17,360 --> 00:11:21,040 Speaker 1: think of ballot drop boxes as just like a postal 195 00:11:21,120 --> 00:11:23,960 Speaker 1: box a mailbox when you go down to the corner 196 00:11:24,160 --> 00:11:26,120 Speaker 1: and you open up the spot and you drop your 197 00:11:26,120 --> 00:11:31,800 Speaker 1: mail in. UM. They are sort of semi permanent, secure 198 00:11:33,200 --> 00:11:36,839 Speaker 1: locations where people can put important stuff that they want 199 00:11:36,840 --> 00:11:39,120 Speaker 1: to get delivered. Most of the time it's mail, and 200 00:11:39,160 --> 00:11:43,560 Speaker 1: then for elections, election officials will occasionally put up separate 201 00:11:43,679 --> 00:11:48,200 Speaker 1: ballot drop boxes. Just as you describe UM. They are 202 00:11:48,840 --> 00:11:51,880 Speaker 1: ways to drop off an absent key ballot if you 203 00:11:51,880 --> 00:11:54,240 Speaker 1: don't have to stamp. UM. They're ways to drop off 204 00:11:54,240 --> 00:11:55,719 Speaker 1: and aps and key ballot. If you can't find a 205 00:11:55,760 --> 00:11:58,760 Speaker 1: post office, there are ways to drop off and absent 206 00:11:58,800 --> 00:12:01,680 Speaker 1: key ballot if a post office doesn't happen to be 207 00:12:01,800 --> 00:12:04,440 Speaker 1: very accessible in your neighborhood. So there are ways for 208 00:12:05,040 --> 00:12:10,280 Speaker 1: very rural, we're very urban populations to find a place 209 00:12:10,320 --> 00:12:14,800 Speaker 1: to drop off a ballot, where finding a po box 210 00:12:14,920 --> 00:12:18,880 Speaker 1: or finding a mailbox maybe actually harder. Um. It's a 211 00:12:18,920 --> 00:12:22,720 Speaker 1: way of giving people a little added security that your 212 00:12:22,720 --> 00:12:25,760 Speaker 1: ballot is going to get there, because election workers go 213 00:12:25,800 --> 00:12:29,200 Speaker 1: around and pick up everything that's dropped in these drop 214 00:12:29,240 --> 00:12:32,040 Speaker 1: boxes at the end of the day, actually several times 215 00:12:32,040 --> 00:12:34,640 Speaker 1: a day in some jurisdictions. UM. So it's a way 216 00:12:34,640 --> 00:12:36,319 Speaker 1: of giving people insurance that your ballot is going to 217 00:12:36,400 --> 00:12:39,120 Speaker 1: get there without having to stand in line at a 218 00:12:39,200 --> 00:12:41,480 Speaker 1: pollony place. If you've got a ballot that you can 219 00:12:41,520 --> 00:12:44,280 Speaker 1: still out and drop off ahead of time, how will 220 00:12:44,320 --> 00:12:49,680 Speaker 1: the court decide that kind of a case? I think so. 221 00:12:49,679 --> 00:12:53,440 Speaker 1: So this is a case that's been brought in Pennsylvania. UM. 222 00:12:53,600 --> 00:12:55,679 Speaker 1: And the keys that's been brought is by the Trump 223 00:12:55,720 --> 00:13:00,040 Speaker 1: campaigns and it's attempting to stop the state from putting 224 00:13:00,040 --> 00:13:03,720 Speaker 1: out these drop boxes. I don't think there's very good 225 00:13:04,200 --> 00:13:08,440 Speaker 1: um legal support for that attempt, and so I suspect 226 00:13:08,640 --> 00:13:13,160 Speaker 1: that the challenge will fail. The ostensible concern is that 227 00:13:13,240 --> 00:13:17,160 Speaker 1: these drop boxes aren't secure, but there's very little proof 228 00:13:17,160 --> 00:13:19,880 Speaker 1: of that. I think it's unlikely that some of the 229 00:13:20,040 --> 00:13:23,120 Speaker 1: arguments that are made in the public sphere are going 230 00:13:23,200 --> 00:13:25,760 Speaker 1: to fly with judges who are going to demand some evidence. 231 00:13:26,080 --> 00:13:27,960 Speaker 1: Do you think the Supreme Court will have a role 232 00:13:27,960 --> 00:13:31,120 Speaker 1: in the upcoming election. There will certainly be more things 233 00:13:31,160 --> 00:13:33,960 Speaker 1: presented to the Supreme Court. And yet the thing that 234 00:13:34,040 --> 00:13:37,200 Speaker 1: they've done is actually one of the more aggravating parts 235 00:13:37,240 --> 00:13:41,160 Speaker 1: of this process. They haven't actually ruled on much. The 236 00:13:41,320 --> 00:13:43,760 Speaker 1: one case was they issued a ruling and it was 237 00:13:43,800 --> 00:13:46,920 Speaker 1: really just a modification of an order. Below was in Wisconsin. 238 00:13:47,080 --> 00:13:52,000 Speaker 1: In the flurry of last minute pandemic caused adjustments or 239 00:13:52,040 --> 00:13:56,000 Speaker 1: lack of adjustment to Wisconsin's primary election, which was a disaster. 240 00:13:56,320 --> 00:13:58,640 Speaker 1: An awful lot of things went wrong because people didn't 241 00:13:58,679 --> 00:14:01,440 Speaker 1: plan for the flexibility early in US. Of course, those 242 00:14:01,480 --> 00:14:03,760 Speaker 1: were still in the early days. That primary was in 243 00:14:03,800 --> 00:14:07,160 Speaker 1: the first week of April, and things were moving very quickly. 244 00:14:07,160 --> 00:14:09,480 Speaker 1: At that point, much of the country had just entered 245 00:14:09,480 --> 00:14:12,880 Speaker 1: the shutdown pays. The Supreme Court stepped into that decision 246 00:14:13,080 --> 00:14:16,440 Speaker 1: in a relatively modest way. They have weighed in in 247 00:14:16,520 --> 00:14:19,080 Speaker 1: other cases, but what they've done hasn't been a ruler. 248 00:14:19,360 --> 00:14:22,840 Speaker 1: What they've done has largely been either a stay of 249 00:14:22,880 --> 00:14:26,800 Speaker 1: an injunction below or a refusal to vacate a stay 250 00:14:26,800 --> 00:14:28,960 Speaker 1: that was put in place by an apelate court. That is, 251 00:14:29,120 --> 00:14:32,520 Speaker 1: it's really been pressing the pause button or failing to 252 00:14:32,720 --> 00:14:36,920 Speaker 1: unpress the pause button, rather than issuing rulings on cases. 253 00:14:37,520 --> 00:14:40,480 Speaker 1: Most of the cases have been resolved at lower courts. 254 00:14:40,480 --> 00:14:43,280 Speaker 1: That will continue to be the case. Occasionally, the Supreme 255 00:14:43,280 --> 00:14:46,600 Speaker 1: Court may step into press pause, but when they've done so, 256 00:14:47,040 --> 00:14:50,360 Speaker 1: they've done so without issuing an opinion telling anybody why, 257 00:14:50,720 --> 00:14:55,000 Speaker 1: and that is increasingly looking like power rather than law. 258 00:14:55,320 --> 00:14:57,840 Speaker 1: When there's a real dispute over whether to press pause 259 00:14:58,160 --> 00:15:01,200 Speaker 1: and the Supreme Court just says stop because I said so, 260 00:15:01,640 --> 00:15:04,920 Speaker 1: without explaining why. There will probably be a number of 261 00:15:04,920 --> 00:15:07,880 Speaker 1: other opportunities for the Supreme Court to press pause in 262 00:15:07,920 --> 00:15:10,400 Speaker 1: the months ahead. I don't have a sense for its 263 00:15:10,480 --> 00:15:12,880 Speaker 1: appetite for doing so. When it will decide to do so. 264 00:15:12,960 --> 00:15:16,880 Speaker 1: Wedding won't. There's relatively little that will sort of go 265 00:15:17,000 --> 00:15:19,720 Speaker 1: up for resolution by the Supreme Court rather than this 266 00:15:19,840 --> 00:15:24,320 Speaker 1: procedural pause before November. I suspect does the increased number 267 00:15:24,320 --> 00:15:26,120 Speaker 1: of mail and ballots we're going to see in the 268 00:15:26,200 --> 00:15:31,160 Speaker 1: presidential election necessarily mean there'll be a delay in reporting 269 00:15:31,200 --> 00:15:34,600 Speaker 1: the results. There may well be a delay in reporting 270 00:15:34,600 --> 00:15:39,320 Speaker 1: the result. Is not a break in the system. That's 271 00:15:39,400 --> 00:15:44,960 Speaker 1: the system working. So we actually have procedures for counting 272 00:15:44,960 --> 00:15:47,640 Speaker 1: the vote, procedures for counting the vote on election day. 273 00:15:47,680 --> 00:15:50,080 Speaker 1: We have procedures for counting the apps and key ballot 274 00:15:50,080 --> 00:15:54,000 Speaker 1: of the mail ballot that arrives beforehand. Um It is 275 00:15:55,320 --> 00:16:00,040 Speaker 1: some jurisdictions allow local offices to get started counting the 276 00:16:00,120 --> 00:16:05,800 Speaker 1: mail ballots before election day, but inevitably, just like my 277 00:16:05,840 --> 00:16:08,280 Speaker 1: students wait until the day before an exam to start, 278 00:16:08,800 --> 00:16:11,120 Speaker 1: just like we all wait to file our taxes on 279 00:16:11,160 --> 00:16:14,320 Speaker 1: the last day, people will wait to file their absent 280 00:16:14,360 --> 00:16:16,800 Speaker 1: key ballots until the end of the process. That's inevitable, 281 00:16:16,840 --> 00:16:18,520 Speaker 1: and so there'll be a lot of absence of ballots 282 00:16:18,600 --> 00:16:22,120 Speaker 1: coming in at the end of the cycle. Um PS, 283 00:16:22,360 --> 00:16:25,760 Speaker 1: check the rules in your states. Different states have different 284 00:16:25,760 --> 00:16:27,880 Speaker 1: deadlines for when those absent key ballots have to be 285 00:16:27,920 --> 00:16:30,760 Speaker 1: in UM. That's one of the things that there's a 286 00:16:30,800 --> 00:16:33,480 Speaker 1: lot of litigation over right now, and so in some 287 00:16:33,520 --> 00:16:35,960 Speaker 1: states you actually have to have your ballot in by 288 00:16:36,000 --> 00:16:38,440 Speaker 1: election day. If you really wait until the last minute, 289 00:16:38,440 --> 00:16:41,760 Speaker 1: you might be out of luck. But under anything anail 290 00:16:42,000 --> 00:16:44,560 Speaker 1: that means will be an awful lot of mail in 291 00:16:44,640 --> 00:16:49,200 Speaker 1: ballots arriving late in the process, and they're harder to count. 292 00:16:49,480 --> 00:16:51,760 Speaker 1: They're just more conversome account and more timely to account 293 00:16:52,320 --> 00:16:56,160 Speaker 1: um than the votes on election day. And what that 294 00:16:56,200 --> 00:16:58,960 Speaker 1: means is, yes, we may be waiting a little bit 295 00:16:59,120 --> 00:17:03,200 Speaker 1: to find out who one if a state is particularly close, 296 00:17:03,360 --> 00:17:05,720 Speaker 1: and there will likely be a few states where things 297 00:17:05,720 --> 00:17:10,359 Speaker 1: are particularly close. But it's really important to remember that 298 00:17:10,480 --> 00:17:13,679 Speaker 1: that delay in the results doesn't mean the system is broken. 299 00:17:13,720 --> 00:17:17,919 Speaker 1: It means the system is working. It means nonpartisan people 300 00:17:18,280 --> 00:17:21,600 Speaker 1: are behind the scenes trying to figure out who cast 301 00:17:21,640 --> 00:17:25,600 Speaker 1: ballots for whom, and that's something where we the American 302 00:17:25,640 --> 00:17:28,439 Speaker 1: people are going to have to learn a great degree 303 00:17:28,480 --> 00:17:32,040 Speaker 1: of patients. We're used to seeing the countdown clock to win, 304 00:17:32,080 --> 00:17:34,560 Speaker 1: the polls closed, and we're used to getting an answer 305 00:17:34,600 --> 00:17:38,640 Speaker 1: about who won instantly. Those answers have never been official. 306 00:17:39,200 --> 00:17:42,199 Speaker 1: When CNN says we announced that X has one the 307 00:17:42,240 --> 00:17:45,760 Speaker 1: great state of Wherever states, that's never official. That's a 308 00:17:45,880 --> 00:17:49,520 Speaker 1: projection and an estimate. The official numbers come in a 309 00:17:49,560 --> 00:17:53,560 Speaker 1: couple of weeks later, after the nonpartisan be encounters have 310 00:17:53,640 --> 00:17:55,679 Speaker 1: had their time in the back room sorting out what 311 00:17:55,760 --> 00:18:00,080 Speaker 1: the actual results were. We may have fewer projections this 312 00:18:00,200 --> 00:18:04,399 Speaker 1: time because there will be fewer votes cast in person, 313 00:18:04,520 --> 00:18:09,119 Speaker 1: because the modeling for figuring out who probably won won't 314 00:18:09,119 --> 00:18:13,119 Speaker 1: be quite as robust. And if that's true, that just 315 00:18:13,240 --> 00:18:15,400 Speaker 1: means that we're all going to have to be more 316 00:18:15,440 --> 00:18:18,600 Speaker 1: patients in relying on the real process to work rather 317 00:18:18,640 --> 00:18:23,280 Speaker 1: than getting the advanced sneak estimate answer. Thanks Justin. That's 318 00:18:23,359 --> 00:18:26,800 Speaker 1: Justin Levitt, Professor, Loyola Law School. And that's it for 319 00:18:26,840 --> 00:18:29,960 Speaker 1: the sedition of Bloomberg Law. I'm June Grosso. Thanks so 320 00:18:30,040 --> 00:18:32,840 Speaker 1: much for listening, and remember to change the Bloomberg Law 321 00:18:32,880 --> 00:18:34,639 Speaker 1: Show every week not at ten p m. E s 322 00:18:34,680 --> 00:18:36,680 Speaker 1: journey right here on Bloomberg Radio.