Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: It's a high stakes election and it's on track to
Speaker 1: be one of the most litigated in US history. It's
Speaker 1: been complicated by changes to balloting prompted by the coronavirus
Speaker 1: and President Trump repeating misinformation about voting by mail. But
Speaker 1: the mail in voting with a mail indiscriminately millions and
Speaker 1: millions of ballots to people you're never gonna know who
Speaker 1: one day election. You can't have that. There are a
Speaker 1: flood of lawsuits in forty two states and d C
Speaker 1: that will determine how easy or hard it will be
Speaker 1: to cast your ballot. Joining me is election law expert
Speaker 1: Justin Levitt, a professor at Loyola Law School. So, Justin,
Speaker 1: you've actually been tracking the cases, and at last count,
Speaker 1: there were one nine cases. I want to be clear,
Speaker 1: that's not just election law cases. There are more than that.
Speaker 1: That's only election law cases that say the pandemic change things.
Speaker 1: If you add up the disputes that were still pending
Speaker 1: before COVID nineteen were those that don't depend on the pandemic.
Speaker 1: There are quite a few more. It's a very ligitious season.
Speaker 1: It certainly is. I see your list grows all the time.
Speaker 1: Briefly or broadly described what the cases are that are
Speaker 1: non pandemic related. There's something that are still lingering from
Speaker 1: before March. If your listeners remember there was a time
Speaker 1: before March, and I know it's hard, It's really hard
Speaker 1: to get back there now. There were disputes over the
Speaker 1: rules of elections in and apart from the pandemic, about whether,
Speaker 1: for example, absentee balloting rules were too strict, about whether
Speaker 1: there were processes for notifying people about mistakes, about whether
Speaker 1: people with convictions were entitled to vote or not, or
Speaker 1: whether the state knew whether they were entitled to vote
Speaker 1: or not. There's an ongoing to spudent Florida that boils
Speaker 1: down to can the state restrict your right to vote
Speaker 1: until you've paid off fines and fees for a conviction
Speaker 1: when the state can't tell you how much you owe.
Speaker 1: A horrible state of affairs. But it has nothing to
Speaker 1: do with the pandemic. So let's turn to the pandemic cases.
Speaker 1: They also cover a broad range of issues, and most
Speaker 1: of them seem to relate to mail in balloting. Yeah,
Speaker 1: I'd say there are three or four big blocks of cases,
Speaker 1: and mail in balloting is a super big one. The
Speaker 1: first thing easiest to understand maybe cases that have to
Speaker 1: do with the primaries or petitioning on to the general election,
Speaker 1: where you have to get signatures. So lots of minor
Speaker 1: party candidates, some major party candidates, um some initiatives and
Speaker 1: citizens initiatives want to know if they can get onto
Speaker 1: the ballot or not. The main way we do that
Speaker 1: is by getting signatures and having people stand out and
Speaker 1: collect people's innatures as they walk by into large gatherings.
Speaker 1: We're have any large gatherings anymore, and so it's really
Speaker 1: hard to collect those signatures, and there's been a lot
Speaker 1: of litigation about that. There's been a lot of litigation about,
Speaker 1: as you say, the mail in ballot system about well,
Speaker 1: on one end, whether it is as available as it
Speaker 1: needs to be in a pandemic, things like they need
Speaker 1: to get notaries or witness signatures, Things like deadlines for
Speaker 1: when to request or when to submit, things like whether
Speaker 1: you need to submit with postage, things like whether you
Speaker 1: need an excuse. Those are all under contest. There are
Speaker 1: also a few pieces of litigation about emergency steps that
Speaker 1: executives have taken public health officials, governors or secretaries of
Speaker 1: state expanding access to mail balance and litigation over whether
Speaker 1: those officials had the right to do that either in
Speaker 1: the seeral constitution of the state constitution. And then there's
Speaker 1: a fourth set of issues around the in person process,
Speaker 1: because we will still have any in person process even
Speaker 1: with all of these mail ballots. The goal is not
Speaker 1: to shut out or shut down any in person baloting.
Speaker 1: It's to leave space for in person balloting for those
Speaker 1: who need it most. So there will still be people
Speaker 1: at the polls, and there's still some litigations over the
Speaker 1: conditions for actually going to the polls. This notever, election
Speaker 1: officials in many places want to consolidate the polling places
Speaker 1: to reduce in person voting, which would lead to more
Speaker 1: lines and perhaps less people voting. Well, I want to
Speaker 1: put back on that a little bit. The consolidation is right,
Speaker 1: So I think many, many, many, many many officials want
Speaker 1: there to be fewer locations, but that's not necessarily a
Speaker 1: bad thing. So just take two examples. One is a
Speaker 1: jurisdiction where there are lots of pulling places, but you
Speaker 1: have to vote at your neighborhood polling place, and that
Speaker 1: means that they have to spread out resources all over
Speaker 1: the place, which means maybe, um, your poll workers are
Speaker 1: the best trained. Maybe you're pulling place doesn't have the
Speaker 1: best disability access. Maybe you're pulling place doesn't have language access.
Speaker 1: If something breaks, it can be difficult to get to
Speaker 1: your polling place to fix it because it's decentralized. Maybe
Speaker 1: they run out of ballots right there. There are lots
Speaker 1: of pros to lots of neighborhood polling places, but also
Speaker 1: some downside. Compare that to a jurisdiction that has fewer
Speaker 1: locations that are a little more centralized, but where you
Speaker 1: can choose to go to any of them, where they're
Speaker 1: better staffed, more accessible, better resources, easier to fix. Because
Speaker 1: there are fewer locations that are bigger, they may be
Speaker 1: that may actually be a better voting experience. UM. So,
Speaker 1: I don't want to suggest that the sheer number of
Speaker 1: locations alone is despositive. Sometimes less is more, sometimes less
Speaker 1: is less, and sometimes more is more. It all depends
Speaker 1: on how you actually design these things. I mean, we
Speaker 1: saw in Milwaukee in the primary, Um, they all of
Speaker 1: a sudden, I had a whole bunch of pole workers
Speaker 1: quit and a whole bunch of locations they couldn't offer,
Speaker 1: and going from more to less without planning for it
Speaker 1: is a disaster. There's absolutely no question Milwaukee was a nightmare.
Speaker 1: Louisville is an interesting alternative. In June, Louisville had an
Speaker 1: election and they had one pulling place because they couldn't
Speaker 1: get enough pull workers. It's really hard to be a
Speaker 1: pull worker right now. Um. Because they couldn't get enough
Speaker 1: pull workers, they decided to consolidate resources as best they
Speaker 1: could in the convention center, and so it was this
Speaker 1: cavernous space where everybody could be socially distant, where they
Speaker 1: could have a relatively lean staff serving an awful lot
Speaker 1: of people, and it seemed to go really well with
Speaker 1: one point in place. So the sheer number isn't the
Speaker 1: important thing. The planning for the number is the important thing.
Speaker 1: And I think an awful lot of election officials are
Speaker 1: now yes trying to consolidate because they know they're going
Speaker 1: to have fewer people volunteering and fewer spaces that are open,
Speaker 1: and they're trying to plan how best to serve the
Speaker 1: voters in those circumstances. And this is a broad generalization
Speaker 1: but as I look through these different lines of lawsuits
Speaker 1: and the challenges to election procedures, it seems as if
Speaker 1: the main ground is that it would lead to voter fraud.
Speaker 1: So there are two different types of election cases out there.
Speaker 1: Some are trying to open the system up a bit
Speaker 1: because the current system we have wasn't designed for a pandemic,
Speaker 1: and so they're trying to create flexibility based on the pandemic.
Speaker 1: And those are based on burdens to the voters. There
Speaker 1: are another set of cases that are trying to close
Speaker 1: things down a bit. Let's say that the steps the
Speaker 1: states have taken are going too far. There are fewer
Speaker 1: of those cases. It's by no means the majority. I
Speaker 1: would say there are roughly ten eleven twelve are trying
Speaker 1: to shut things down. But you do see in the
Speaker 1: litigation over opening things up, you see people opposing that
Speaker 1: also making the same arguments, and that is, either you
Speaker 1: state official don't have the power under state law to
Speaker 1: do what you're doing. It's got to be an other
Speaker 1: body like the legislature or whoever has got the power
Speaker 1: to do it. This is going to create the conditions
Speaker 1: for lack of security, for fraud in the process. I
Speaker 1: will say the courts have not been kind to that
Speaker 1: argument without proof. Again, it's one thing to stand up
Speaker 1: in the public and assert that there will be more
Speaker 1: fraud if X or Y, or assert that things are
Speaker 1: less to effects or why. It's quite another thing to
Speaker 1: have to prove to a court that this method is
Speaker 1: that you're contesting is so problematic that the election now
Speaker 1: come is going to be and the courts so far
Speaker 1: really haven't thought it. You mentioned. It's one thing to
Speaker 1: a certain public. President Trump has repeatedly said that mail
Speaker 1: in ballots except in Florida are subject to massive fraud
Speaker 1: in his campaign, issuing the state of Nevada is mail
Speaker 1: in balloting subject to more fraud than in person balloting. Yeah,
Speaker 1: these kinds are one of the President's less charming characteristics.
Speaker 1: I would say there is a nugget of truth, but
Speaker 1: I think it's a nugget that has been wrapped in
Speaker 1: a pile of horse maneur. So the sorts of massive
Speaker 1: national scale rigging that the President is talking about, there's
Speaker 1: absolutely no evidence to support that. I would say there
Speaker 1: is incremental risk in the mail in balloting process that
Speaker 1: something will go awry, but that's more like if the
Speaker 1: in person voting process is a one, then the mail
Speaker 1: in balloting process maybe a three on a scale of
Speaker 1: a hundred or five. Things do go wrong from time
Speaker 1: to time, and they are more likely to go wrong
Speaker 1: in the mail in process than in the in person process,
Speaker 1: but not by much, and not on this is really important,
Speaker 1: not on the scale that the presidents are. Certainly on
Speaker 1: the rare occasions that you do see things go wrong
Speaker 1: in the absolute process. There either individual ballots, people casting
Speaker 1: a ballot for a dearly departed relative because they know
Speaker 1: that's how they would have wanted to vote, or in
Speaker 1: some way coercing a family member. But those are really
Speaker 1: one off things. When on the very rare occasions where
Speaker 1: there's any sort of conspiracy to rig an election of
Speaker 1: steal an election, it's invariably a local election, of municipal elections,
Speaker 1: a county election. That's not forgivable, but it's more understandable
Speaker 1: because there are simply fewer ballots that you would have
Speaker 1: to steal, and that means a less expansive conspiracy. It happens,
Speaker 1: everyone's in a bloo moon. It happened in North Carolina
Speaker 1: a few years ago. There was a big scandal in
Speaker 1: north sellin is Bladen County about taking absidency ballots and
Speaker 1: either ripping them up or rewriting them. But it didn't
Speaker 1: really affect matters statewide, and it sure wouldn't have affected
Speaker 1: matters in the national. It's incredibly hard. I mean, we
Speaker 1: have a very resilient election system. There's a good thing.
Speaker 1: The president seems to be doing his best to break it.
Speaker 1: But we have an election system that is very resilient,
Speaker 1: particularly eight four statewide races and national races, and is
Speaker 1: really quite resilient the vast majority of the time for
Speaker 1: races that are more local than that. Pennsylvania has drop
Speaker 1: off boxes for ballots, and it's being sued over them.
Speaker 1: Tell us about that. So I think most people can
Speaker 1: think of ballot drop boxes as just like a postal
Speaker 1: box a mailbox when you go down to the corner
Speaker 1: and you open up the spot and you drop your
Speaker 1: mail in. UM. They are sort of semi permanent, secure
Speaker 1: locations where people can put important stuff that they want
Speaker 1: to get delivered. Most of the time it's mail, and
Speaker 1: then for elections, election officials will occasionally put up separate
Speaker 1: ballot drop boxes. Just as you describe UM. They are
Speaker 1: ways to drop off an absent key ballot if you
Speaker 1: don't have to stamp. UM. They're ways to drop off
Speaker 1: and aps and key ballot. If you can't find a
Speaker 1: post office, there are ways to drop off and absent
Speaker 1: key ballot if a post office doesn't happen to be
Speaker 1: very accessible in your neighborhood. So there are ways for
Speaker 1: very rural, we're very urban populations to find a place
Speaker 1: to drop off a ballot, where finding a po box
Speaker 1: or finding a mailbox maybe actually harder. Um. It's a
Speaker 1: way of giving people a little added security that your
Speaker 1: ballot is going to get there, because election workers go
Speaker 1: around and pick up everything that's dropped in these drop
Speaker 1: boxes at the end of the day, actually several times
Speaker 1: a day in some jurisdictions. UM. So it's a way
Speaker 1: of giving people insurance that your ballot is going to
Speaker 1: get there without having to stand in line at a
Speaker 1: pollony place. If you've got a ballot that you can
Speaker 1: still out and drop off ahead of time, how will
Speaker 1: the court decide that kind of a case? I think so.
Speaker 1: So this is a case that's been brought in Pennsylvania. UM.
Speaker 1: And the keys that's been brought is by the Trump
Speaker 1: campaigns and it's attempting to stop the state from putting
Speaker 1: out these drop boxes. I don't think there's very good
Speaker 1: um legal support for that attempt, and so I suspect
Speaker 1: that the challenge will fail. The ostensible concern is that
Speaker 1: these drop boxes aren't secure, but there's very little proof
Speaker 1: of that. I think it's unlikely that some of the
Speaker 1: arguments that are made in the public sphere are going
Speaker 1: to fly with judges who are going to demand some evidence.
Speaker 1: Do you think the Supreme Court will have a role
Speaker 1: in the upcoming election. There will certainly be more things
Speaker 1: presented to the Supreme Court. And yet the thing that
Speaker 1: they've done is actually one of the more aggravating parts
Speaker 1: of this process. They haven't actually ruled on much. The
Speaker 1: one case was they issued a ruling and it was
Speaker 1: really just a modification of an order. Below was in Wisconsin.
Speaker 1: In the flurry of last minute pandemic caused adjustments or
Speaker 1: lack of adjustment to Wisconsin's primary election, which was a disaster.
Speaker 1: An awful lot of things went wrong because people didn't
Speaker 1: plan for the flexibility early in US. Of course, those
Speaker 1: were still in the early days. That primary was in
Speaker 1: the first week of April, and things were moving very quickly.
Speaker 1: At that point, much of the country had just entered
Speaker 1: the shutdown pays. The Supreme Court stepped into that decision
Speaker 1: in a relatively modest way. They have weighed in in
Speaker 1: other cases, but what they've done hasn't been a ruler.
Speaker 1: What they've done has largely been either a stay of
Speaker 1: an injunction below or a refusal to vacate a stay
Speaker 1: that was put in place by an apelate court. That is,
Speaker 1: it's really been pressing the pause button or failing to
Speaker 1: unpress the pause button, rather than issuing rulings on cases.
Speaker 1: Most of the cases have been resolved at lower courts.
Speaker 1: That will continue to be the case. Occasionally, the Supreme
Speaker 1: Court may step into press pause, but when they've done so,
Speaker 1: they've done so without issuing an opinion telling anybody why,
Speaker 1: and that is increasingly looking like power rather than law.
Speaker 1: When there's a real dispute over whether to press pause
Speaker 1: and the Supreme Court just says stop because I said so,
Speaker 1: without explaining why. There will probably be a number of
Speaker 1: other opportunities for the Supreme Court to press pause in
Speaker 1: the months ahead. I don't have a sense for its
Speaker 1: appetite for doing so. When it will decide to do so.
Speaker 1: Wedding won't. There's relatively little that will sort of go
Speaker 1: up for resolution by the Supreme Court rather than this
Speaker 1: procedural pause before November. I suspect does the increased number
Speaker 1: of mail and ballots we're going to see in the
Speaker 1: presidential election necessarily mean there'll be a delay in reporting
Speaker 1: the results. There may well be a delay in reporting
Speaker 1: the result. Is not a break in the system. That's
Speaker 1: the system working. So we actually have procedures for counting
Speaker 1: the vote, procedures for counting the vote on election day.
Speaker 1: We have procedures for counting the apps and key ballot
Speaker 1: of the mail ballot that arrives beforehand. Um It is
Speaker 1: some jurisdictions allow local offices to get started counting the
Speaker 1: mail ballots before election day, but inevitably, just like my
Speaker 1: students wait until the day before an exam to start,
Speaker 1: just like we all wait to file our taxes on
Speaker 1: the last day, people will wait to file their absent
Speaker 1: key ballots until the end of the process. That's inevitable,
Speaker 1: and so there'll be a lot of absence of ballots
Speaker 1: coming in at the end of the cycle. Um PS,
Speaker 1: check the rules in your states. Different states have different
Speaker 1: deadlines for when those absent key ballots have to be
Speaker 1: in UM. That's one of the things that there's a
Speaker 1: lot of litigation over right now, and so in some
Speaker 1: states you actually have to have your ballot in by
Speaker 1: election day. If you really wait until the last minute,
Speaker 1: you might be out of luck. But under anything anail
Speaker 1: that means will be an awful lot of mail in
Speaker 1: ballots arriving late in the process, and they're harder to count.
Speaker 1: They're just more conversome account and more timely to account
Speaker 1: um than the votes on election day. And what that
Speaker 1: means is, yes, we may be waiting a little bit
Speaker 1: to find out who one if a state is particularly close,
Speaker 1: and there will likely be a few states where things
Speaker 1: are particularly close. But it's really important to remember that
Speaker 1: that delay in the results doesn't mean the system is broken.
Speaker 1: It means the system is working. It means nonpartisan people
Speaker 1: are behind the scenes trying to figure out who cast
Speaker 1: ballots for whom, and that's something where we the American
Speaker 1: people are going to have to learn a great degree
Speaker 1: of patients. We're used to seeing the countdown clock to win,
Speaker 1: the polls closed, and we're used to getting an answer
Speaker 1: about who won instantly. Those answers have never been official.
Speaker 1: When CNN says we announced that X has one the
Speaker 1: great state of Wherever states, that's never official. That's a
Speaker 1: projection and an estimate. The official numbers come in a
Speaker 1: couple of weeks later, after the nonpartisan be encounters have
Speaker 1: had their time in the back room sorting out what
Speaker 1: the actual results were. We may have fewer projections this
Speaker 1: time because there will be fewer votes cast in person,
Speaker 1: because the modeling for figuring out who probably won won't
Speaker 1: be quite as robust. And if that's true, that just
Speaker 1: means that we're all going to have to be more
Speaker 1: patients in relying on the real process to work rather
Speaker 1: than getting the advanced sneak estimate answer. Thanks Justin. That's
Speaker 1: Justin Levitt, Professor, Loyola Law School. And that's it for
Speaker 1: the sedition of Bloomberg Law. I'm June Grosso. Thanks so
Speaker 1: much for listening, and remember to change the Bloomberg Law
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