Legal Fights Over Vote Counts

with Michigan. So the Trump campaigns that it filed lawsuits to stop the count in Michigan, and they're basing it on allegations that campaign observers haven't had enough access to the locations where the ballots are being processed and counted. Is there any chance that could stop the vote? No, I don't think so. I think that, Um, you know,

they're following the law in Michigan. Uh. And you know, the the part of the question here is how do you ensure supervision and social distance in the vote counting process? But um, you know, the most of the ballots have been counted already, and I think what we're seeing is just an effort to try to throw dust up in the air and see how you can create a cloud over the vote counting process. Uh. And so as we're

seeing that when in Michigan, Wisconsin, Pennsylvania and elsewhere. And so I don't think it will succeed, but it's part of a larger narrative. Is it part of a narrative or is it part of a strategy of challenging the votes in certain states to change the electoral vote in

Trump's favor? Well, the um, the issue here is whether the abstinuctee ballots are somehow tainted, right, and so there have been generic claims of corruption and fraud that even precede the election itself, where Trump said that, um, the uh, you know, the absinute ballots would be a fertile source for fraud. Um, well, how do you have to You

can't just say that, you have to prove it. And so the question is what in what way are they throwing with um, what is it that that is being done in the vote counting process to suggest because that's the only way you can get a court to inter mean,

is to say well there's something wrong that's going on here. Uh. And so that that argument takes different forms in different states, depending on what the sort of process defect was that the Trump campaign sees so let's turn to Pennsylvania now, because he's suing also to stop the vote some of the same allegations here that they don't have access to

the ballot process. Also, he's seeking to intervene in a Pennsylvania case that was at the Supreme Court where the Supreme Court by afford or four vote allowed Pennsylvania to count ballots received three days after election day. But this case may not necessarily be over tell us why so the Trump campaign is seeking to intervene in the lawsuit

that already went up to the U. S Supreme Court. Uh. And in that lawsuit, the um the state Supreme Court in Pennsylvania ruled that ballots that are received within three days after the election will count if they are postmarked by election day. UM. Because that decision went away up to the US Supreme Court was a four or four decision, and there was some possibility that was Amy Coney Barrett

on the court, it would reach a different verdict. UH. The the the folks in Pennsylvania decided to segregate those ballots so that there will be a separate count of those later arriving ballots. And as a result, UM, if it comes down to those ballots. Well, then there may be litigation over them. But because they're those ballots are segregated. Um, if the margin of victory is large enough in the other ballots, then they won't even have to deal without

legal issues. And will the Trump campaign likely be allowed to intervene in that lawsuit? Well, either they intervene or it becomes part of the other larger, uh set of complaints that they have over the process, right and so um, you know, the state Supreme Court has already ruled on

this issuees, so we know what they think. Um. The question is whether this will be joined with a set of claims that they are making about defects in the vote counting process that will then lead to some kind of federal court action, ultimately landing it at the Supreme Court. What kind of what kind of defects would they have to show? I mean, they're they're they're alleging that their campaign observers aren't allowed to view where the ballots are

being processed. There's also a claim about some counties in Pennsylvania or county in Pennsylvania allowing voters to cure their ballots. What would they have to show to make it a federal case, I guess so if you look sort of underneath the complaints and try to read the minds of people who are bringing it, this is trying to set the stage for a similar type of argument that we saw on Bush versus Gore, and it's two types of arguments. One is that voters in different parts of the state

where subject to different rules. Some voters are allowed to cure their ballots, others were not. And the second, which is related, is that the ability to cure or the in the ability to remedy any defects in the ballot was pursuance the Secretary of State guidance or local rules which go against state law that was passed by the legislature.

And what the Trump administration has been arguing a Trump campaign has been arguing in other court cases is that in effect, what you're doing is usurfing the power of the legislature and that violates Article two, Section one of the Constitution, which says that it's the state legislature which

will choose the manner of determining electors for the electoral college. Well, I think if it if it ends up being outcome determinative, that I do think that U s Supreme Court might consider this, So we're a long way away from that right now. We are in the prelitigation phase where the ballot counting is still going on and we need to

make sure that every vote is counted um um. Once the counse are known, then you can enter either a recount phase or a contest phase where you're starting to say there was something wrong with the processing and counting these absentee ballots that we put into doubts, and then you explain that, um you know, in litigation that might make its way up to the U. S. Supreme Court. But we were still just in that kind of prelitigation stage is trying to figure out how to count each

one of these votes. The Trump campaign says it's going to ask Wisconsin for a recount. It seems as if that might be granted because Wisconsin has a one percent

margin is necessary for a recount. As a recount ever, you know, resulted in a change in in votes at a presidential election, not in a presidential election, But there are plenty of examples of where recounts may discover ballots or lead to the disqualish disqualification of ballots that would change as a result um they ultimately didn't happen in Bhish persons Gore in the two thousand presidential election controversy.

But there are situations, most famously with Al Frankin and Norm Coleman in Minnesota and the recount that happened there where where they sort of went back and forth, and it really just depends on what might be the claim as to why some votes should not be counted, or why it might be fraudulent or others might have been excluded. When you look at these various legal strategies that the Trump campaign seems to be trying out, do any of

them strike you as more consequential than others? Well, I think that right now they don't even really know what the legal defects are in the process as it's unfolding, But they want to preserve the possibility that they will make these arguments later, and so they're throwing everything at

the wall to see what sticks. So a lot of these claims are frivolous, um, but they're trying to launch certain types of claims both to create doubt over the process, but then also to potentially litigate other kinds of claims if they they have an opportunity, whether in state court

or altimately federal courts. Are they also suing in Nevada over absentee There is a dispute in arab Zona in in Nevada, as I understand it, over the processing of absentee balance in Clark County and how the signature matching the process may have worked. But I have not seen the actual legal papers there, so I've only heard this second hand that this is perceiving when you look at this,

the way this is evolving. Is this how you expected this election to evolve, That it would be complicated a lot of challenges and you know it would take a long time, or is this something it's unexpected? Well, I was looking at the same holes as everybody else, and so I don't know why we maintained in the rational faith in them, given that they were so wrong four years ago. But they showed that this election would be

beyond the margin of litigation. It still maybe that we're not going to end up with having courts decide important issues here. But um, I was as surprised as anyone um and how close it was. But we all knew going into uh November three that they were going to be a large volume of absute ballots because in the wake of COVID, this is the way that states adapted to the COVID environment by by increasing the number of

mail and absinte up UM. We also knew that those mail ballots would be different in as compared to the same day vote because Democrats were more likely to use them. The President knew that UH and also cast doubt um several months before even the election day on the use of mail ballot And so in some ways this legal strategy was was prestiged early on with signals UM that there would be claims of fraud in the absentee balloting process.

And now here we are where the election is coming down to have since ballots in a in a in a few states, UH, and if there is mitigational beyond that basis, but we need to remember that this is again the preltigation phase. And then we're still counting the votes, and we need to see whether the margin might be um, you know, too large for either candidate UH, such that

they would be able to win without resuning to the court. Finally, the way this is evolving, and the fact that President Trump has been saying repeatedly that mail in ballots are fraudulent. Together with his comments today, does it make it seem as if the American public is going to have a hard time the majority of the American public believing in the results. I think that was going to be true

no matter what happened in this election. There were large sections of the American public that did not believe this would be a free and fair election. I worried that that's going to be even the larger share this time, that whoever ends up using this election is going to feel that the process is illegitimate. UM. And you know, it doesn't help when the candidates, if the candidates themselves say so uh, and so I am concerned about this. I mean, we are as difficult as as the two

thousand controversy in Florida was. We were a much different country back then, less polarized. UM. Certainly no pandemic or recession at the time, and so we are not well prepared for it. But we need to be patient, and patience is in short supply these days, and we need to let all of us be counted. Thanks for being on the show, Nate. That's Nate personally, afessor at Stanford

Law School. President Trump seems to be pursuing a contradictory strategy, attempting to stop vote counting in states where he thinks he's ahead, while demanding the tallies continue or be recounted where he's losing. Joining me his election law expert Derek Muller, a professor at the College of Law on the University of Iowa, is this the nightmare scenario that many election law experts were dreading? So I wouldn't call it a

nightmare scenario, right, I think? Um, I think everyone expected there was going to be some counting in some extension of period of time where the ballots are going to come in that in some states like Pennsylvania and Michigan in particular, there wasn't a whole lot of pre processing of ballots ahead of election day. Those absentee and mail in ballots that um, you know, came by the millions in those states. Um, that was just going to delay

some of the results. And so, UM, what we're seeing is sort of the inevitable results of some of those delays and you know, some some shift in the in the results of the election. UM. I think the nightmare scenario arises if it looks like one state um is going to be the tipping point in the electoral college, and if that one state UM is decided by a

razor thin margin or over some pool of disputed ballots. So, um, I think we're sort of in the in the you know, sort of uncomfortable waiting zone, but far from a nightmare scenario at the moment. President Trump has said that we're going straight to the Supreme Court, We're going to stop the count and the Supreme Court did stop Florida from recounting in two thousand. Is that a possibility, Yes, so I think it's a very remote possibility. Um. Pretty unlikely

at this point. Um. So the first thing to keep in mind is thinking about what kind of legal setup you have to say that you should stop counting in the first place. So there's difference between stopping counting and stopping recounting. Um. So, So the counts are still happening, and we haven't even finished those sort of final totals, including ballots that have been received weeks ago in some states. So there's a very difficult sort of climb to say

you shouldn't count certain ballots. Now, that's how to say that he doesn't have a case you know there were lawsuits in Pennsylvania in particular, saying, um, these ballots that a state supreme court said should be counted that are received in the three days after election day, those with a postmark of election day or earlier, or those without a postmark should be counted. And the states that you know what we have acknowledge there's a legal challenge to this.

We're going to segregate these ballots. We're going to set them off to the side, and in the events there's a legal dispute about them later, we at least can don't have to unscramble the egg, right, they're not mixed in with the other ballots, and we can sort of address it. So that's like a very narrow sort of decision to say, oh, these are the kinds of things

that we're challenging. But in terms of like the ordinary state process of if we have absentee ballots or we have in person ballots and we're sort of running them through the machine and counting them up, there's not really just sort of a way of litigating that much last getting the Supreme court right, you start in the state, you start in the district court or or state lower court, state, file court and file under some kind of cause of action.

So unless there's some sort of malfies and some legal hook um, you know, that's not going to happen. Um. So it's under say that that there are opportunities to file those kinds of challenges, but but that you know, sort of a wholesale stop accounting is just not in the cards at the moment. So let's talk then about some of the possible legal challenges. So let's say a state is very close razor thin. Also you have observers watching the counting going on. What kinds of claims could

be made? Would it just be about the absentee, the mail in and the provisional ballots or is there a broader claim? Yeah, I mean there's lots of different things that could be could be challenged in different with fact um, there could be challenges to the provisional ballots. So folks who tried to cast the ballot the polls, but you know, they lacked a form of identification or um, they lacked proup of residents or whatever it might be, and so

they were turned away. But they cast a ballot with an opportunity to come back later and cure that and people might challenge those kinds of decisions that are happening or um they might look at, you know, if there's a some of these absentee ballots that might have been rejected for some reason, or that we're counted, uh, you know, with presumptions that the signatures were valid and that looked

like the was the identity of the voter. But we're challenged by some observer and we're sort of set aside. But these are sort of pretty narrow, sort of fact by fact questions, right, sort of ballot by palette um. And that's a long slog for a campaign. You need a razor thin margin in order to win on that kind of a theory. And by raise your sin, I mean I'm talking about a couple of hundred votes, right, I'm not talking one person. I'm talking about an exceedingly

narrow margins. So there's there's that sort of um set of claims that can happen in narrow election. The others, you know, maybe you can try to raise some kind of more systemic challenge and that might be a version of what happened in Bush versus Core in two thousand. You know, the legal hook that really won the day at the Supreme Court was um, some counties were proceeding one way with a recount um, and others were proceeding in a different way, and still others were not really

counting at all. And when the Supreme Court stepped in and said, you had to pride provide some uniform guidance. So to the extent that it looks like there's some funny decisions happening in some counties but not in others, there would be an opportunity to step in and say, oh, you're doing something different in this county that's not available

in others. So one challenge the Trump campaign that has been filed in state court is um that one county in Pennsylvania was reaching out and contacting voters whose absentee ballots were rejected for some reason, inviting them to come cure the ballot and viting the voters to come and say, you know, so you fail to fill out this information

or whatever it is, you know, let's fix it. Um. And if that's the practice one of the sixty seven counties is doing, does it put sort of the other voters on unequal footing And is it sort of this sort of treatment that's arbitrary, as the Supreme Court set in Bush versus Score Right, this really in vidious sort of decision. So you would have to come up with a theory like that, but you know, you have to think about it on the flip side too. Of a

couple of responses to that kind of answer. The first is to say, well, um, you know, just because the county is doing something differently, how problematic is it inviting a few voters to cure um you know, doesn't seem like the kind of um, you know, disparate treatment of We're carefully counting ballots in one part of the state and we're not counting them at all somewhere else. I mean, so so we have to draw the distinctions on that front.

But another, I think the more potent one is um is a notion of latches or the notion that you brought this claim far too late and there's a remedial bar that says you can't bring this claim at this point in time. Uh, you know, particularly in this case in Pennsylvania. Uh, this is something conti's have been doing for a long time. This is something the Republican Party has been unnoticed for for an extended period of time.

And if that's the case, um, you know, depending on the length of time and how much notice they had and when they ought to service stepped into to say something about it, it's just too late. It's just unfair for us to step in and change things. So unlike Push versus Score, where their recount was sort of being developed on the fly and there were constant, pressing, immediate legal challenges to it, um, the more sort of longstanding nature of the problem makes some of these litigation challenges

a little bit more difficult. So I think about that is sort of the that the system of things at play when we think about, you know, challenges even in

a narrowly contested state. Let's talk about the other case at in Pennsylvania that went up to the Supreme Court where the Supreme Court allowed the counting of ballots in Pennsylvania for three days after election day, ballots that have been postmarked by election day, and several of the conservative justices, particularly Justice Alito, said, oh, well, these are being segregated, so so we could consider this after the election. So tell us what was said by the Supreme Court there

that may lead to this case coming back there? Yeah, No, I mean you set it up nicely. Right, it's um. And the heart of this dispute really harkens back to another Bush versus Score question. Right. So, the the question really arose in Pennsylvania over a couple of concerns. One is so Pennsylvania has a clear and explicit statute that says ballots are due on election day, that's when they have to be in UM. And then there was a litigation challenge to say, listen, we've got this huge volume

of absentee voters. UM, there are more people than ever voting by absentee. There are more people than ever who are aligned on the postal service. The postal service, whether for innocent reasons or for service cuts, just can't handle these kinds of a volume of stuff. So we're challenging to say that we need to extend that deadline three days. And Dependsylvania Supreme Court said, under its free and fair Elections clause in the Constitution, which is a pretty generic phrase, right,

free their elections. Looking at that clause, that we conclude that that there's this sort of legislative preference for us pursue into this clause to extend this recognition of ballots, its acceptance of bounce in extra three days, those postmark by election day or those without a postmark um that are received within three days will presume that they are valid, which is a little bit more of a controversial claim. And when it goes up to the Supreme Court, they

end up saying, well, you know, cheat us. As roberts Is suggested, well, this is a state court decision, so maybe it'll stay in place. But just as a leader wrote separately, uh, you know, saying, you know, it's not just a state court decision. It's a state court decision that basically contravenes a direct legislative guidance from the legislature

that says ballots come in by election day. And when you do that, the celto sort of emphasize you are usurping the state legislative power, which is an Article two of the Constitution each state shall appoint a number of electors in the manner that the legislature thereof may direct. And three justices writing in Bush versus Gore, sort of had a sort of emphasis on this prong of the Constitution.

Chief Dolfic Rank with opinion in Bush versus Score highlights this notion that it's principally the responsibility of the legislature. And even before Bush versus Gore just a week before, in the unanimous decision of the Supreme Court in the case called Bush versus Poem Beach Campusing Board, the Court said, you know, it's a general matter. We defer to state interpretations of state law from the highest court, but not always. And it's because there's this article too concern of the

legislative prerogative to make these decisions. But you know, it's a heavy lift, as Justice Kagan wrote in a separate opinion that was arising out these disputes, to say, well, wait a minute. You know, when we talk about the legislature, you can't the legislature be bound by its own constitution?

Can't the legislature be bound by the state constitution? As opposed to this other view from Justice Alito and joined, I think um by at least Justice is Gorsuch, Thomas, and Kavanaugh and some separate opinions scattered throughout these uh, these cases, shouldn't this this isn't sort of a federal prerogative to ensure that the legislative power in trying in the Constitution and the federal Constitution is protected and not

U served by a state authority. So that's sort of the heart of this dispute, and Justice Alito it suggested, well, you know what, at least because these ballots are segregated, UM, we don't have to get back to it. We don't have to go back. You know, we were we we could go back to it. We don't have to worry about the the pressing issue at the moment. But but in my view, I'll be honest, I think it's really top to look at these ballots. They are gonna be counted.

They're gonna be counted, and that's segregated in case there's sort of a fight about them. It would be really tough for the court to come back and say, you know, at dis batch about that we were going to count um that have been counted should not count. It's a little different than bushources Gore, which says, whatever you're doing, stop kind of freeze going back and undoing it. I think it's going to be a happier lift. I think it's sets the post election day challenge in a different

procedural posture than the pre election day. But time will tell. We'll see if there's litigation on this that continues and what's your take on Justice Kavanaughs concurring opinion in the Wisconsin case that had democrats. Uh. I don't know if

the words frantic, furious, or concerns. Yeah. Yeah, So Justice Kavanaugh really, I mean, he started down this road that Justice Polito later joined his in this other opinion right first, really emphasizing the sort of primacy of legislature to make these kinds of decisions, and citing Bush versus Gore, which is a case of Supreme Court almost never cite. You know, since since Push versus Core was issued in two thousand, Justice Thomas cited at once in a concurring opinion for

for a pretty um ordinary proposition um. And since then, Justice Kavanaugh's opinion was only the second time the Supreme Court has ever cited Push versus Score. So this is sort of, you know, warning bells for those who are concerned about these state court decisions to say, well, wait a minute, maybe the United States Supreme Court is really going to start taking these claims much more seriously um and turn out hading. Justice Lego's opinion also pointed in

that direction. Um. But I think Justice Kavanaugh's opinion also gets it a greater concern. It's a concern he's um written about in a series of cases that have come out of this pandemic. I think in particular, Um, he's sort of written separately of his own views these are sort of quintessentially um legislative judgments, and that these are principally questions left to the political process and for the legislature to make a decision about UM and this functional

at lege leasures might be. And some of these circumstances, I think Pennsylvania, Wisconsin have had legislatures really at heads at odds with the executives of those states and really unable to reach some consensus or agreement. You have been in a pandemic. UM. But Justice Kavanaugh sort of rite separately to emphasize less and in the Constitution, it really places this principal responsibility with legislatures to the political branches

to make political judgments. And that's not to say the courts can't step in or don't have some responsibilities of stepping in, but there's this sort of fum on the scale of deference to the state legislatures in these cases. UM. So this is the sort of ongoing challenge I think on the Court about you know, when do you give the deference to the state legislature versus when you don't?

Or when are those instances where a judicial decision is something that's sort of, uh, is sort of extraordinary enough to say, yeah, this was this needed to change the process, the existing rule and the state versus uh something the Court say is not so essential to do. This is sort of the abiding concern that's cropped up in these cases.

And so, um, you know, I think the major question is, even if there's not a sort of hotly contested Trump feed Biden case that makes its way to the Supreme Court, if one of these cases still makes its way to the Supreme Court well after election day, after the dust has settled, um, for the justices with full briefing in oral argument to reach the merits of these controversies and really illuminate what a majority of the Court thinks about

how legislatures are supposed to handle these election matters. As far as recounts, any of the states that are close, what would it take for either side to say we want to recount and get it? Yeah, so a lot a lot varies from state to state. Um, A lot of states have automatic recount provisions if the margin of victory is within say a quarter percentage point or a half percentage point, but usually it's very narrow in order to qualify for an automatic recount. In some other states, uh,

there's no automatic recount. And then in different jurisdictions, even if you fall outside the automatic recount, the parties can request a recount and that can be filed if the margin is within half a percent or one percent or whatever it might be. UM, So we'll know after sort of that preliminary canvas is done at the states, once they've gotten through counting all the ballots and provide that

sort of preliminary figure. Um. You know, they'll usually go through another sort of round of double checking everything, making sure everything adds up correctly before a final certification in the state. That happens, you know, most places late December. A few places are late November. I'm sorry. A few places early December, a few places mid November. Um. But but depending on the marginal it's exceedingly close, there will

be that automatic provision in some places. Otherwise it's really in common on the parties, and the parties need to decide how much energy they want to expend. UM. You have didn't have to post a bond and spend some money and order to be able to request that recount otherwise, and maybe if the parties have some litigation money to spare that they're willing to sort of expend it, and and and a lot the chips fall where they may um. But again, it's also increasingly difficult as we think about

the margin of victory. Right, wider margins are just much harder to overcome the narrower margins. And if you're dealing with multiple states, it's much trickier than if you're dealing with a single state. Um, I think back to the election where you know it was it was a few pretty closely contested states. Yeah, one of the narrowist in Wisconsin, Resonnald Trump won by about twenty votes Jill Sign the Green Party can it raised enough money to to fund

a recount. There at a petition for a recount, and the recount really didn't change very much. In fact, Donald Trump's margin grew a little bit wider. And that's a little bit different than if it's a hotly contested one.

The parties are litigating, as we talked about earlier, ballot by ballot sort of walking through with these challenges, but that's sort of the recount set up, something the parties will probably you know, if if it's close enough, you know, start start having the opportunity to file, uh, you know, starting potentially next week. Thanks Derek. That's Professor Derek Muller of the University of Iowa College of Law. And that's it for this edition of The Bloomberg Law Show. I'm

June Grass. Thanks so much for listening, and remember to tune to The Bloomberg Law Show every week not at ten pm Eastern, right here on Bloomberg Radio.