Election Lawsuits Going Down to the Wire

I am a on board. But if I see tens of thousands of ballots being manipulated, I can't go along with that. Joining me is elections law expert Richard Brafald, a professor at Columbia Law School, where start by explaining how the law gives states the power to take electoral votes back from the voters. As everyone knows, the election for president is really an election decided by the electoral College, and every state has provided that its electoral votes will

be determined by who wins the popular election on November three. However, under the Constitution, the state legislatures have the right to decide how their electoral votes are going to be cast, and although this has never happened since state legislatures have

collectively decided to entrust this decision. Since the popular vote, the issue has been raised about whether or not, after election day, the state legislature of any given state could decide to cast that state's electoral vote on its own. That issue has never come up before, and we don't know what would happen if the state legislature after election day passed as a law that says we're giving our

electoral votes to so and so. But that issue has come up partly because of efforts raised by the President and others to cast a cloud over the legitimacy of the popular vote at a time when more people than

ever are going to be voting by mail. One issue is how long will it take to get the popular vote tabulated and what issues are going to be raised about that, and to what extent Trump from the Republicans going to try and deny the legitimacy of the popular vote if it goes against them as a way of justifying an action by a state legislature stay like in Pennsylvania or Wisconsin, to get its electoral votes to Trump.

So what does the timetable for this look like? The timetable for this is partly driven by something called the Electoral Count Act. So in eight seven, following the disputed election of eighteen seventy six, Congress past a law trying to bind itself in the future as to how it

would deal with disputed sets of electoral votes. And what it said is that so long as the state resolves any dispute about who's wont its electoral votes by six days before the electoral College is supposed to meet this year, it's Nomber sixte and provided that the state resolved all its disputes by six days before that, Congress has pledged to accept the winner of the states electoral votes. So that's sometimes called the safe Harvard deadline. They can still

take those results later. There's nothing that prohibits them from accepting later results. Those deadlines are really an artifact of congre but it's effectively about five weeks after election day, and one question is will five weeks be enough time not just to tabulate all the absentee votes, but also to resolve the many challenges that are likely to be brought against them. Several states are involved in fights disputes over allowing election officials to begin counting absentee ballots before

election day? What's the general rule? Is there a general rule about counting absentee ballots before election day? The general rule in the States is that they are not allowed to. I think it's a concern that those early tabulations will somehow get out and that will somehow influence the voting that's going to happen on election day. So nearly all states and maybe all states pre have been any counting before election day. There are some some dates allow um

what's called the processing to begin earlier than that. Tabulating election absentee votes are mail only votes is trickier than regular votes because remember that they come in this outside envelope.

So some states do allow, and the call is being made for more states to do this, to at least to begin the process of processing, which is to say, checking the signatures on the outside of the envelope to match them with signatures on file, uh, so that they can see if it's a velo, opening it up, getting it kind of straightening it out as if you will, and getting it ready to speed into the tabulation machines. I mean part of the it's just it's more work

to process and absently vote. You really do have to check the signature on the outside, open it up, I don't know the mechanics applete that's kind of folded, and get it ready to sign it to the tabulation. And so a number of states do allow that process to begin earlier, and the call is being made to allow more states to do that. It even makes a difference when on election day this is allowed. Some states don't

allow it to begin until the polls have closed. Others will allow it to start on election day itself, and that can make a big difference in terms of when

we get a final count. So there's been a home in a number of states either to ease the law on this or to do administratively at least the processing, but getting it ready to be counted rather than the actual account rather than the actual account, and to have that all set to go either on election day or on election night, depending on the law of the individual state. So now this brings up a recent case in Pennsylvania, a swing state obviously, where nine military ballots were discarded.

It was announced that seven of those were voting for President Trump, and the officials, the election officials said that this was caused by a temporary seasonal independent contractor on their first day at work. President Trump knew about the case, talked about the case before it was announced. So this

brings up questions of well, first ballot secrecy. Yeah, now this clearly was a mistake, but it is interesting how this went straight to the White House, and how the White House, who the local U. S. Attorney who made a public statement even though normally they wouldn't do that, it would investigate first. Uh. And I think it it just also just underscores, you know, how much work it takes to process the absentee ballots, and you know they need to have a better need to just to be

fully funded and to have a good system. Um. So you know, I think it it also shows that in fact, it's not clear that people have had absent to your old Democrats. Um. But it sounds like there were actual mistakes that were made also in the on the ballots themselves, and which I don't think anyone is I'm not sure anyone has challenged the fact that these ballots were properly discarded and that there were mistakes. Um. But it is interesting that the information went went straight to the justice

departments of the White House. Our election officials allowed to open these ballots before the election and announced oh seven were for President Trump. Uh, I stain not allowed to do that. No, I mean where they're not to whether they were allowed to sort of begin the processing, that's a good question. And sometimes, uh, I don't know enough about the details. But as I say, sometimes you can

begin the processing earlier. And I think that I think the leak on who the votes who were from came from the U. S. Attorney, not from the election officials. President John has also said that only the votes that are known on election night matter. Why is he saying that, Well, part of this I think relates to it is sometimes called the blue shift, and this year is being called the Red Mirage. Well, in the past, I don't think it made a big difference between Democrats and Republicans who

votes by mail. In recent election cycles, I think you've been seeing a slightly higher percentage of Democrats vote by mail, so that the election night numbers will be a bit

more Republican than the total numbers. This has certainly been true nationally because the states that have the heaviest use of mail and ballots on the West Coast, Washington, Oregon, California, and so you may remember in Hillary Clinton's election night pop a vote margin of about a half a million or more grew over time to about two and a half million as more and more votes came in from

the West Coast. So the assumption is especially this year with the President's basically telling Republicans not to vote by mail that the election night vote in the close states will show a Republican lead, which will be offset over the next couple of days as the mail in votes are taculated. He's basically saying, we should ignore the late votes.

We should ignore the mail in votes. Now. An article in the Atlantic said that Republicans in the swing state of Pennsylvania have considered how the state legislature could appoint electors of their own choosing in the absence of a clear election night win. At what point does the law give them the authority to do that. It's not clear that it would ever be legitimate, though it might be

constitutional in that right. Remember, for example, in Bush versus Gore, it took some five weeks to figure out who wants Florida, and even then they hadn't really figured it out. With Supreme Court came in and stopped the count. So we have had many elections in which a result was not known on election night or even a week later. Remember also that under federal law, military ballots are entitled to be received and counted up until ten days after election day.

To actually, under federal law, you really can't have a final result until ten days after election day. UM. Whether or not state legislature you could just step in and declare a winner. UM. A couple of questions come up. One is is that the state legislature alone or what about the governor? I mean, the Pennsylvania has a democratic governor.

What if he tried to veto this. It's an unclear question as to where the legislature could do this without passing a law that the government, which that was the governor, to veto. It's also quite possible that you might have to competing set of the electors if the votes continue to be counted. Maybe there are legal challenges and those get resolved by this in the state or federal court system.

You might actually have one set of electors that get certified by the Secretary of State in Pennsylvania and another who were declared by the state legislature. UM. And the governor. The governor approved the Secretary of State certification in stends of that set of electors um to Washington. Under again, under the Electoral Countact, the Congress is supposed to accept the governors certification in case there's a dispute. But of

course what Congress does will be up to Congress. Uh. And Congress in this case means the two houses stating together. And we might have a Democratic House Representatives and we might still have a Republican Senate. So what Congress actually does when states with two competing sets of electors, we don't know. North Carolina is also drawing a lot of attention because two Republican members of the state election board resigned over a court settlement over mail in voting practices.

How unusual is that? And are they resigning just to bring attention to this settlement? They may be doing that. Yeah, it's a kind of a protest um. So now North Carolina has I think made space insnect made subset to make absente voting easier. Uh, And they're obviously protesting it. And this could be a set up for some stepsic

in action by the North Carolina legislature. I mean, that's the kind of The kind of meltdown that we're facing here is clothes votes in a number of key states where it's possible that you know that's the absentee votes, the mail and votes will be the marginal victory for the winner. Uh. And you see Republicans, although from the president on down, trying to de legitimate these absentee votes, even though absent votes have always been cast and always

been counted. It is true that in many states now many more will be test and counted than ever before. Probably many more will be cast and not counting because people make mistakes with absentee votes, especially if you've never done it before. So I suspect that a lot of challenges to absentee votes that were accepted, and probably be a lot of challenges to absolute votes that weren't accepted, because there's just there is a higher error rate with

absentee votes. There's more as expected of the voter, and particularly that signal sure on the outer envelope, which many people find strange given that this is supposed to be um a secret vote. Well, that signature is an effect, the equivalent of showing your idea or show or signing when you come to the polling place, and that outer ballot that out are almost supposed to be discarded or at least put separately. Um and then your inner the inter envelope is not signed, and that's the one that's

then open to get your votes. Why is there almost an assumption that the Supreme Court will have to decide this presidential election. The only time they've ever done it was in two thousands, and there it all turned on kind of a narrow issue in one state. Many people were surprised that the Supreme Court took that case. So it's hard to make any predictions at all. Supreme Court is not supposed to be the judge of election return.

It is possible if there will be constitutional issues that are raised that will bring the Supreme Court in, and also sometimes takes a while to get to the Supreme Court. That's really not going to come in immediately. I've been reading about that the RNC had been under a consent decree going back to the eighties when Democrats accused it

of violating the rights of black and Latino voters. So now that's consent degree has expired, and the r n C is apparently making moves to bolster pole watchers and also people watching over the counting of ballots. Is that going to be allowed? Do Democrats do it? Yeah? That there was that respect the nine You're right, and there was a dispute that the Republicans trying to intimidate UM, Black and Latino voters. Um, they're depending on the rules of the state. I mean, there can there can be

whole observational the usually at a distance from the poles itself. Uh. And yes, typically in the accounting of Alliser County it's only in recounts and disputes. Typically there are representatives of both parties. Most election boards are designed to be bipartisan. Um. I mean the real question is not so much watching as to how it happens. Will there be intimidation, will there be coercion, will there be force? Um? You know, as there there were some efforts along those lines in Florida.

Was that kind of the so called Brooks Brothers riot when Republicans kind of protested vehemently efforts on the Miami date canvassing boards and when they were doing their recounts. It is important that this is being transparent. It is also important that people who have actually run the process

not be intimidated and that voters not be intimidated. What's the most important of the cases that we've talked about, The big case is really the one that's coming out of Pennsylvania, not those nine ballots, but the Pennsylvania Supreme Court did something very important for which the Republicans are trying to take to the Supreme Court. Democrats asked for five ways of liberalizing the state's laws. The state Supreme

Court gave them too. One was based on an interpretation of the states uh mail in voting law, in which the State Supreme Court upheld the decision of the Secretary of State of Pennsylvania to allow the counties to have multiple drop multiple places for drop boxes. So when you return you your a vote, your mail and vote, you can nail it through a postal mail box. But many places, although the elected the local elections will set up effectively a draw box at place where you can deposit it

directly with the Board of Elections um um. The counties want to have those in many places around their jurisdiction. The Republicans are arguing that under the law they were only allowed to have one for county. There's only at the Board of Elections itself, and the state Supreme Court said, interpreting the state's own mail vote um quote by mail law, which was adopted actually before COVID. So we read that law to give the county wars discretion to have multiple

draw boxes. That's being challenged UH as a mistaken interpretation of state law because it's going to lead to inequality across the counties. The other, maybe more important, possibly just as important, maybe more so, is the state Supreme Court on its own kind of equity powers, said, we're going to extend the deadline for the receipt of mail in votes from election day until three days later, until that Thursday.

UM the cause, and they relied heavily on this of the statement by the US Postal Service, by the Postmaster General that delays and in the Postal Services processing things processing mail means that it could take up to five days, three more days than than before for mail to be returned. And they said, consistent with Pennsylvania's law that allows voters to request an absentee ballot up to seven days before

election day. Consistent with that, voters request gating to the Board of Elections, the Board of Elections responding, and the vote and then the voter sending the ballot back. They need to have three more days uh for votes to be returned, and now that's being challenged. Both of these actions are being challenged. The Republicans Pennsylvania have actually asked the US have ben quick to hear this because it was decided by the Pennsylvania's supreme courts. In the next

highest court would be the US Supreme Court. Supreme Court. Republicans are challenging both of these as going beyond what the legislature of Pennsylvania had authorized and therefore as unconstitutional given the power of given what they claim is the exclusive powerful legislature to set the rules for federal elections. So that's going to be an important taste. If the Supreme Court agrees to hear it, or agree or agrees to stay the Pennsylvania Supreme Court decision, we will possibly

know that soon. That's Richards Brafault of Columbia Law School. I'm June Grasso. Thanks so much for listening, and please tune into The Bloomberg Law Show every week night at tend m Eastern on Bloomberg Radio. Ye