2020 Election is a Legal Logjam

one day election. You can't have that. There are a flood of lawsuits in forty two states and d C that will determine how easy or hard it will be to cast your ballot. Joining me is election law expert Justin Levitt, a professor at Loyola Law School. So, Justin, you've actually been tracking the cases, and at last count, there were one nine cases. I want to be clear, that's not just election law cases. There are more than that. That's only election law cases that say the pandemic change things.

If you add up the disputes that were still pending before COVID nineteen were those that don't depend on the pandemic. There are quite a few more. It's a very ligitious season. It certainly is. I see your list grows all the time. Briefly or broadly described what the cases are that are non pandemic related. There's something that are still lingering from before March. If your listeners remember there was a time before March, and I know it's hard, It's really hard

to get back there now. There were disputes over the rules of elections in and apart from the pandemic, about whether, for example, absentee balloting rules were too strict, about whether there were processes for notifying people about mistakes, about whether people with convictions were entitled to vote or not, or whether the state knew whether they were entitled to vote

or not. There's an ongoing to spudent Florida that boils down to can the state restrict your right to vote until you've paid off fines and fees for a conviction when the state can't tell you how much you owe. A horrible state of affairs. But it has nothing to do with the pandemic. So let's turn to the pandemic cases. They also cover a broad range of issues, and most of them seem to relate to mail in balloting. Yeah, I'd say there are three or four big blocks of cases,

and mail in balloting is a super big one. The first thing easiest to understand maybe cases that have to do with the primaries or petitioning on to the general election, where you have to get signatures. So lots of minor party candidates, some major party candidates, um some initiatives and citizens initiatives want to know if they can get onto

the ballot or not. The main way we do that is by getting signatures and having people stand out and collect people's innatures as they walk by into large gatherings. We're have any large gatherings anymore, and so it's really hard to collect those signatures, and there's been a lot

of litigation about that. There's been a lot of litigation about, as you say, the mail in ballot system about well, on one end, whether it is as available as it needs to be in a pandemic, things like they need to get notaries or witness signatures, Things like deadlines for when to request or when to submit, things like whether you need to submit with postage, things like whether you

need an excuse. Those are all under contest. There are also a few pieces of litigation about emergency steps that executives have taken public health officials, governors or secretaries of state expanding access to mail balance and litigation over whether those officials had the right to do that either in the seeral constitution of the state constitution. And then there's a fourth set of issues around the in person process, because we will still have any in person process even

with all of these mail ballots. The goal is not to shut out or shut down any in person baloting. It's to leave space for in person balloting for those who need it most. So there will still be people at the polls, and there's still some litigations over the conditions for actually going to the polls. This notever, election officials in many places want to consolidate the polling places to reduce in person voting, which would lead to more lines and perhaps less people voting. Well, I want to

put back on that a little bit. The consolidation is right, So I think many, many, many, many many officials want there to be fewer locations, but that's not necessarily a bad thing. So just take two examples. One is a jurisdiction where there are lots of pulling places, but you have to vote at your neighborhood polling place, and that means that they have to spread out resources all over the place, which means maybe, um, your poll workers are

the best trained. Maybe you're pulling place doesn't have the best disability access. Maybe you're pulling place doesn't have language access. If something breaks, it can be difficult to get to your polling place to fix it because it's decentralized. Maybe they run out of ballots right there. There are lots of pros to lots of neighborhood polling places, but also

some downside. Compare that to a jurisdiction that has fewer locations that are a little more centralized, but where you can choose to go to any of them, where they're better staffed, more accessible, better resources, easier to fix. Because there are fewer locations that are bigger, they may be that may actually be a better voting experience. UM. So, I don't want to suggest that the sheer number of locations alone is despositive. Sometimes less is more, sometimes less

is less, and sometimes more is more. It all depends on how you actually design these things. I mean, we saw in Milwaukee in the primary, Um, they all of a sudden, I had a whole bunch of pole workers quit and a whole bunch of locations they couldn't offer, and going from more to less without planning for it is a disaster. There's absolutely no question Milwaukee was a nightmare.

Louisville is an interesting alternative. In June, Louisville had an election and they had one pulling place because they couldn't get enough pull workers. It's really hard to be a

pull worker right now. Um. Because they couldn't get enough pull workers, they decided to consolidate resources as best they could in the convention center, and so it was this cavernous space where everybody could be socially distant, where they could have a relatively lean staff serving an awful lot of people, and it seemed to go really well with one point in place. So the sheer number isn't the important thing. The planning for the number is the important thing.

And I think an awful lot of election officials are now yes trying to consolidate because they know they're going to have fewer people volunteering and fewer spaces that are open, and they're trying to plan how best to serve the voters in those circumstances. And this is a broad generalization but as I look through these different lines of lawsuits and the challenges to election procedures, it seems as if the main ground is that it would lead to voter fraud.

So there are two different types of election cases out there. Some are trying to open the system up a bit because the current system we have wasn't designed for a pandemic, and so they're trying to create flexibility based on the pandemic. And those are based on burdens to the voters. There are another set of cases that are trying to close things down a bit. Let's say that the steps the states have taken are going too far. There are fewer

of those cases. It's by no means the majority. I would say there are roughly ten eleven twelve are trying to shut things down. But you do see in the litigation over opening things up, you see people opposing that also making the same arguments, and that is, either you state official don't have the power under state law to do what you're doing. It's got to be an other body like the legislature or whoever has got the power to do it. This is going to create the conditions

for lack of security, for fraud in the process. I will say the courts have not been kind to that argument without proof. Again, it's one thing to stand up in the public and assert that there will be more fraud if X or Y, or assert that things are less to effects or why. It's quite another thing to have to prove to a court that this method is that you're contesting is so problematic that the election now come is going to be and the courts so far

really haven't thought it. You mentioned. It's one thing to a certain public. President Trump has repeatedly said that mail in ballots except in Florida are subject to massive fraud in his campaign, issuing the state of Nevada is mail in balloting subject to more fraud than in person balloting. Yeah, these kinds are one of the President's less charming characteristics. I would say there is a nugget of truth, but I think it's a nugget that has been wrapped in

a pile of horse maneur. So the sorts of massive national scale rigging that the President is talking about, there's absolutely no evidence to support that. I would say there is incremental risk in the mail in balloting process that something will go awry, but that's more like if the in person voting process is a one, then the mail in balloting process maybe a three on a scale of

a hundred or five. Things do go wrong from time to time, and they are more likely to go wrong in the mail in process than in the in person process, but not by much, and not on this is really important, not on the scale that the presidents are. Certainly on the rare occasions that you do see things go wrong in the absolute process. There either individual ballots, people casting a ballot for a dearly departed relative because they know that's how they would have wanted to vote, or in

some way coercing a family member. But those are really one off things. When on the very rare occasions where there's any sort of conspiracy to rig an election of steal an election, it's invariably a local election, of municipal elections, a county election. That's not forgivable, but it's more understandable because there are simply fewer ballots that you would have to steal, and that means a less expansive conspiracy. It happens, everyone's in a bloo moon. It happened in North Carolina

a few years ago. There was a big scandal in north sellin is Bladen County about taking absidency ballots and either ripping them up or rewriting them. But it didn't really affect matters statewide, and it sure wouldn't have affected matters in the national. It's incredibly hard. I mean, we have a very resilient election system. There's a good thing. The president seems to be doing his best to break it.

But we have an election system that is very resilient, particularly eight four statewide races and national races, and is really quite resilient the vast majority of the time for races that are more local than that. Pennsylvania has drop off boxes for ballots, and it's being sued over them. Tell us about that. So I think most people can think of ballot drop boxes as just like a postal box a mailbox when you go down to the corner and you open up the spot and you drop your

mail in. UM. They are sort of semi permanent, secure locations where people can put important stuff that they want to get delivered. Most of the time it's mail, and then for elections, election officials will occasionally put up separate ballot drop boxes. Just as you describe UM. They are ways to drop off an absent key ballot if you don't have to stamp. UM. They're ways to drop off

and aps and key ballot. If you can't find a post office, there are ways to drop off and absent key ballot if a post office doesn't happen to be very accessible in your neighborhood. So there are ways for very rural, we're very urban populations to find a place to drop off a ballot, where finding a po box

or finding a mailbox maybe actually harder. Um. It's a way of giving people a little added security that your ballot is going to get there, because election workers go around and pick up everything that's dropped in these drop boxes at the end of the day, actually several times a day in some jurisdictions. UM. So it's a way of giving people insurance that your ballot is going to get there without having to stand in line at a

pollony place. If you've got a ballot that you can still out and drop off ahead of time, how will the court decide that kind of a case? I think so. So this is a case that's been brought in Pennsylvania. UM. And the keys that's been brought is by the Trump campaigns and it's attempting to stop the state from putting out these drop boxes. I don't think there's very good um legal support for that attempt, and so I suspect

that the challenge will fail. The ostensible concern is that these drop boxes aren't secure, but there's very little proof of that. I think it's unlikely that some of the arguments that are made in the public sphere are going to fly with judges who are going to demand some evidence. Do you think the Supreme Court will have a role in the upcoming election. There will certainly be more things

presented to the Supreme Court. And yet the thing that they've done is actually one of the more aggravating parts of this process. They haven't actually ruled on much. The one case was they issued a ruling and it was really just a modification of an order. Below was in Wisconsin. In the flurry of last minute pandemic caused adjustments or lack of adjustment to Wisconsin's primary election, which was a disaster. An awful lot of things went wrong because people didn't

plan for the flexibility early in US. Of course, those were still in the early days. That primary was in the first week of April, and things were moving very quickly. At that point, much of the country had just entered the shutdown pays. The Supreme Court stepped into that decision in a relatively modest way. They have weighed in in other cases, but what they've done hasn't been a ruler. What they've done has largely been either a stay of an injunction below or a refusal to vacate a stay

that was put in place by an apelate court. That is, it's really been pressing the pause button or failing to unpress the pause button, rather than issuing rulings on cases. Most of the cases have been resolved at lower courts. That will continue to be the case. Occasionally, the Supreme Court may step into press pause, but when they've done so, they've done so without issuing an opinion telling anybody why, and that is increasingly looking like power rather than law.

When there's a real dispute over whether to press pause and the Supreme Court just says stop because I said so, without explaining why. There will probably be a number of other opportunities for the Supreme Court to press pause in the months ahead. I don't have a sense for its appetite for doing so. When it will decide to do so. Wedding won't. There's relatively little that will sort of go up for resolution by the Supreme Court rather than this

procedural pause before November. I suspect does the increased number of mail and ballots we're going to see in the presidential election necessarily mean there'll be a delay in reporting the results. There may well be a delay in reporting the result. Is not a break in the system. That's the system working. So we actually have procedures for counting the vote, procedures for counting the vote on election day. We have procedures for counting the apps and key ballot

of the mail ballot that arrives beforehand. Um It is some jurisdictions allow local offices to get started counting the mail ballots before election day, but inevitably, just like my students wait until the day before an exam to start, just like we all wait to file our taxes on the last day, people will wait to file their absent key ballots until the end of the process. That's inevitable, and so there'll be a lot of absence of ballots coming in at the end of the cycle. Um PS,

check the rules in your states. Different states have different deadlines for when those absent key ballots have to be in UM. That's one of the things that there's a lot of litigation over right now, and so in some states you actually have to have your ballot in by election day. If you really wait until the last minute, you might be out of luck. But under anything anail that means will be an awful lot of mail in ballots arriving late in the process, and they're harder to count.

They're just more conversome account and more timely to account um than the votes on election day. And what that means is, yes, we may be waiting a little bit to find out who one if a state is particularly close, and there will likely be a few states where things are particularly close. But it's really important to remember that that delay in the results doesn't mean the system is broken.

It means the system is working. It means nonpartisan people are behind the scenes trying to figure out who cast ballots for whom, and that's something where we the American people are going to have to learn a great degree of patients. We're used to seeing the countdown clock to win, the polls closed, and we're used to getting an answer about who won instantly. Those answers have never been official. When CNN says we announced that X has one the

great state of Wherever states, that's never official. That's a projection and an estimate. The official numbers come in a couple of weeks later, after the nonpartisan be encounters have had their time in the back room sorting out what the actual results were. We may have fewer projections this time because there will be fewer votes cast in person, because the modeling for figuring out who probably won won't

be quite as robust. And if that's true, that just means that we're all going to have to be more patients in relying on the real process to work rather than getting the advanced sneak estimate answer. Thanks Justin. That's Justin Levitt, Professor, Loyola Law School. And that's it for the sedition of Bloomberg Law. I'm June Grosso. Thanks so much for listening, and remember to change the Bloomberg Law Show every week not at ten p m. E s journey right here on Bloomberg Radio.