This is Bloomberg Law with June Brusso from Bloomberg Radio.
It's less than three weeks before election day, but courts have already started shaping the contours of the presidential election, as lawsuits challenge everything from who can vote and how they cast their ballots, to which votes count and how
the winner is decided. A Bloomberg analysis has identified at least one hundred and sixty five lawsuits filed in thirty seven states in the last two years that challenge every facet of the presidential contest, and more than half of these cases have been filed in the seven states critical for an electoral college victory Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania,
and Wisconsin. Joining me is Zoe Tillman, Bloomberg senior legal reporter who's crunched the numbers for her Big Take story. Zoe tell us a little about the process of identifying these lawsuits and categorizing them.
So you know, I always want to start by making clear that you know, this is by no means the most comprehensive list of every single case related to the election filed in the past two years. What we wanted to do was come up with sort of a really you know, comprehensive snapshot of what the landscape looks like.
So to do that, we used a couple of different sources, the first just being searches of federal court state court databases, doing keyword searches for parties that we knew we were interested in, like the Republican National Committee, the Democratic National Committee, different state election boards, using databases that the RNC has put together of cases if interested in, a site called Democracy Docket, which is founded by Mark Elias, who's known
as sort of a democratic election super lawyer. And then you know, tapping into advocacy groups that are the typical filers in these cases to make sure we were capturing the work that they're doing. So it was you know, trying to cast as wide a net as possible in
state and federal courts to find these cases. You know, what we found for the you know, the list of one hundred and sixty five that we settled on was they were in thirty seven states, but sort of unsurprisingly, more than half of them were concentrated in the states where the polls have you know, become close, the seven swing states that really made the difference in twenty twenty, did you.
Look at which side is filing more suits? I know you said that the Republican National Committee launched what it described as a comprehensive and unprecedented legal strategy.
That's right, we did, so we you know, dove into you know, not only who the name plaintiffs were, but also what law firms and advocacy groups we're bringing these cases on behalf of plaintiffs and whether they have sort
of an identifiable political or ideological affiliation. And in the overwhelming number of cases that we looked at, there was sort of an identifiable affiliation to tag whether it was a major political party or an advocacy group where we could sort of code as sort of light blue and light red as opposed to the political parties which got a dark red and a dark blue. And you know,
it's interesting. I think the numbers showed that Republicans and Conservatives have been more active in court, you know, more than half, but not overwhelmingly so, and that Democrats and left leaning groups have also been quite active ahead of election day, you know, more typically going in to challenge state laws or practices that they can tend are putting up illegal barriers to voting, whereas Republicans and conservatives have been going into states that they feel have been too
lax on that front.
So it's three weeks out and there are still new cases being filed.
There are you know, as issues come up on the ground, we're seeing lawyers at the ready to bring litigation. You know, Interestingly, we've seen the Justice Department getting involved. That's sort of the final hour where Alabama and Virginia have announced plans to purge names from their voter roles based on suspicions that these are not US citizens. And so we've seen not only civil rights groups but the Justice Department filing
suit ins recent weeks trying to stop that from happening. So, you know, I think the later it gets, judges are going to be wary of making any changes that aren't directly related to a late breaking event. You know, if you're going to court to sue over a law that's been on the books for two years, I think the
odds of getting jugital intervention now are slim. But you know, I think we'll see cases probably being siled up to the last minute, and then a whole new surge of cases related to what actually happens.
On election day.
Just let's go back to twenty twenty for a moment. Tell us about the lawsuits that Trump and his allies filed.
And I think it's important to go back before election day in twenty twenty to understand that too, to remember that it was the height of the pandemic in twenty twenty, and there was sort of this unprecedented for that time wave of litigation as states were figuring out on the fly how to handle voting, as restrictions on contact and distancing, all of that was being sorted out, so that really, I think set the stage where after election day there was already so much that had been in court, so
much contested around how voting was happening that year that Trump and Republicans and Conservatives had already for months been saying the expansion of absent voting is going to lead to fraud, even though there was no evidence of that, and that really formed the basis for the I think it was sixty two some sixty plus US cases that Trump's campaign and allies of his filed trying to overturn results in the states that he lost.
In your story, you've divided up the cases into different categories. So let's go through the categories then, and nearly a third of the cases focus on who should be allowed to vote.
That's where we've seen more of a concentration of activity from Republicans and conservatives. One of the narratives that's emerged this cycle is this idea that states are failing to do enough to purge people from their roles who are ineligible either because they're not US citizens, or they've moved away, or they've passed away.
You know.
I think it's again worth noting that for things like non US citizen voting, the research has shown that that's rare, very uncommon, but it's sort of a narrative that's cropping up in these cases. And then on the flip side of that, we've seen democrats and left leaning groups going to court to try to defend you know, who is on the roles now or expand eligibility. An example of that would the efforts to re enfranchise people who have
convictions on their record. And actually just today there was a big decision out of the Nebraska Supreme Court ruling that a state law making it possible for people with past felony convictions to vote, that that needs to be enforced.
And we should just mention states have different laws about whether people with past felony convictions can vote.
That's right, And I think it's sort of a broader theme of this, which is that US elections are this patchwork of different state rules and laws and practices when it comes to elections. So your ability to put your absentee ballot in a drop box in one state might not be the same process as in another. The laws are different, state constitutions are different. So you know, I think that's always another theme that we see when we look at this broad landscape of voting location.
And you mentioned Alabama where the Republican Secretary of State purged three thousand residents that were listed in a federal database of foreign nationals. Where does that case stand.
Right, So there's a hearing this week where two cases, one brought by the Justice Department and one brought by civil rights and immigrant rights groups. Those have been consolidated and a judge is hearing arguments and evidence right now on whether to stop that from happening, at least temporarily ahead of the election.
So now let's go to how Americans vote. And you mentioned ballot drop boxes. Republicans have seemed to consistently argued against ballot drop boxes, saying it leads to fraud. I mean, has there been any proof that there's fraud from ballot drop boxes?
Certainly not in any kind of widespread way. You know, I think instances may crop up of problems in a given place at a given time, but not in the sense that it's like proven to be a source of fraud. And I think we've heard from bipartisan state election officials that this is a time tested, secure way to vote.
But you know, the pandemic resulted in just an explosion of voting by mail and voting absentee and states have tried to respond to that, and I think in the past four years tried to clarify the rules now that we're not in the same crisis situation, really trying to hammer out what that's going to look like going forward. But there you have still been sits over It's not so much can there be drop boxes, but it might be what kind of monitoring does there need to be?
Does there need to be a physical a person sitting there watching when people put their ballots in? Can there be cameras? Where can they be placed, they need to be had an official government building, all sorts of minutia. But that make a difference.
And what's happening in Wisconsin, which is of course those seven swing states. What's happening there over the ballot drop boxes?
I Muisconsin was a really fascinating example where a few years ago the state Supreme Court had ruled that drop boxes were not allowed under the state's constitution and state laws. And then there was an election, the ideological balance of the state Supreme Court changed, where it went from sort of a more conservative majority to more left leaning majority.
Another case came up saying you know, we think that that earlier decision was wrong and asking the court to take another look, and the court then reversed itself and said, we agree. We think that the previous majority got it wrong and drop boxes were in fact permitted in the state. So that's now the status quo and Wisconsin heading into this election cycle.
Can we generally say that it's Republicans that are challenging absentee voting and ballot drop boxes rather than Democrats.
I think that's right. I think that's what our research has shown. I don't think that any Republican would disagree with that. I think that's become a line in the stand where conservatives, you know, have taken the position that once you take voting out of a physical precinct, that
it is just apparently less secure. Many election officials across the ideological spectrum would disagree with that, as would Democrats and civil rights groups, but it has remained sort of a live issue four years after the pandemic.
Speak Coming up next, I'll continue this conversation with Bloomberg legal reporter Zoe Tillman. Certifying the vote was not something we questioned before last year's election. It's certainly different now, as a case in Georgia illustrates. I'm June Grasso, and you're listening to Bloomberg. Bloomberg has identified at least one hundred and sixty five lawsuits filed in thirty seven states in the last two years that challenge every facet of
the upcoming presidential election. More than half the cases have been filed in the seven states critical for an electoral college victory. Outcomes have been mixed. The Republican National Committee lost fights over late arriving absentee ballots in Nevada and Mississippi, and the use of dropboxes in Wisconsin, but won in order limiting voter ID options for North Carolina college students.
The Democratic National Committee joined an unsuccessful push to get undated mail ballots counted in Pennsylvania, but back Wisconsin's successful defense of its rules for absentee ballots requested online. I've been talking to Bloomberg senior legal reporter Zoe Tillman. Zoe, before the break, we were discussing absentee ballots and Democrats use absentee ballots more than Republicans, right.
That's right. Surveys of voters who voted in twenty twenty, you know, it showed that they did in larger numbers vote for Joe Biden as compared to Donald Trump, and those are trends. I think that there's an expectation that those would continue to hold. But again, you know, this is the first presidential elections since the last presidential election and will be more of a test of what is the new normal when it comes to absent voting outside the context of a pandemic.
Republicans are always pushing harder access to the polls by requiring voter IDs of different kinds, and there was just a case in North Carolina.
The RNC went to court to challenge the ability of students and employees at the University of North Carolina Chapel Hill, who now have digital ID cards that they can use on their phones, basically to say that this is not what the state law allows for that it needs to be a physical hard copy of an ID. At lower court disagreed with the R and C and that the
digital ideas would be fine. There was a round of of news coverage of that and headlines saying this would be permitted, and then a week later the Court of Appeal stepped in and said no. And first and you know, I think that was a good illustration of how much power courts have, not just to decide how people vote and sort of what the rules are, but also you know, how much you know, last minute preparation and changes election officials have to be prepared to contend with as these
cases get decided, you know, in the final weeks, when election offices have been preparing for months or years for an election to take place.
And also how confusing for voters who think they're going to go to the polls with their student ideas and then find that they can't.
Right, and this is always a big concern among judges as they handle cases, especially in the final weeks and months. And you know, the US Supreme Court has urged federal in particular to be quite wary of intervening at the last minute. You know, the risk of voter confusion as
well as chaos among the people running the elections. But you know, courts have had to grapple with if something is illegal or unconstitutional, how do you weigh not acting against you know, the considerations of confusion and chaos.
Let's talk about which ballots count. And we've learned that the vote count is not final on election night, so when voters make mistakes on their absentee ballots, each state has a different kind of approach to this.
That's right. States have the ability to decide. You know, if you send in a ballot that doesn't quite comply with the rules, do you get noticed, do you have an opportunity to fix the issue? Can you instead come to the polls on election data cast a provisional ballot? And that's a fight that we've seen play out this cycle, especially in pen Bldania, which has laws saying basically, if you send in a mail ballot and you don't put a date on the envelope, or you put a date
that is clearly wrong. You know, you write your birthday instead of any date this year, that that ballot isn't counted even if it arrives by election day. And there's been a lot of litigation over that, including the federal level, which is still pending. But you know, there was another round of state court litigation. We saw lower courts blocking
that law from being enforced. But then the state Supreme Court has come in in several cases and tossed those cases out, which means that for this election, at least, the expectation is that those undated or misstated ballots won't count. There's a potential for some very last minute litigation to change that, but as of now, that's the status quo.
So I think again, you know, another example of these rules that on paper might seem very technical or in the leaves, but it ends up affecting you know, thousands of ballots, which can really make the difference in a swing state like Pennsylvania.
I was surprised that more than half of all states, except at least some absentee ballots that arrive after November fifth. So yes, probably more fights to come on that. So now we'll move to this area how the election is finalized. And as you point out, certification of the vote, I mean was never anything that was talked about before the last presidential election.
That's right. It's long been considered sort of a ministerial role where you know, as long as the numbers, the number of ballots that come in match in some reasonable way the number of people who are eligible to vote in that precinct, that they then move on to the next phase of things. And there are ways to challenge ballot counts after the certification process, but that was never really seen as sort of a flashpoint in this process.
That changed into one when after the election, Donald Trump and his supporters looked for ways to overturn results in states where it appeared he was set to lose and you know, pressure campaigns on state lawmakers to intervene and
then eventually on Congress to intervene. But it really put new attention on disphase of the certification process at the county and state level as a potential pressure point and a place for supporters of one candidate or another to use their power in a way that it hadn't been used before to intercede if it looked like the preferred candidate is going to lose.
A judge decided one of these cases in Georgia just yesterday.
That's right. There's a Republican member of the Fulton County Election Board, Julie Adams, who is Republican Trump supporter and in May, had refused to certify the results of a presidential primary on the grounds that she hadn't gotten all of the information that she felt she needed to confirm that the results were accurate and that the election went off as it should have, and the board overruled her.
She was outvoted. But it raises question of you know, what happens if a county board, you know, does vote to not certify. So that went to court. Julie Adams went to court and said I want a judge to tell me that I do have the power to do this, And what happened this week was a judge that no,
you don't, that it's a mandatory duty. And so far, Julie Adams lawyers in indicated they're not going to appeal this, that we expect this to continue to be sort of a live issue until we see what other local officials, do you know when it's time to cast those vote.
I mean, there is concern about some of these local rules that were enacted since the last presidential election, and there's going to be a hearing today Enjoy again on a local rule requiring a hand count of ballots at the county level.
There have been several changes by the Georgia State Election Board, which has a Republican majority, taking steps that critics and even some Republican prominent Republicans in the state have said are not lawful and aimed at sowing chaos confusion ahead of the election and afterwards. And the handcount rule would require precinct level officials to do a handcount of ballots
before they moved to the next phase of counting. There's a lot of concern that this will dramatically hold things up, that this could expose open the post election processed security issues. If you know, ballots are just out of the boxes of being handled by multiple people. So we had a ruling last night from a judge blocking that rule. There are other cases before other judges that have hearings today. So another one of these sort of fast moving, very late in the game. Supplication you have to.
Be on alert twenty four hours a day, it seems for these all these cases coming down and explain what the twenty twenty two congressional legislation did.
So After twenty twenty which exposed some real gaps in the process that folks could potentially exploit, Congress came in and in bipartisan legislation and acted a series of reforms, including sort of clear deadlines for the different phases of a certification, made clear which state officials were responsible for signing off on results. And you know, I think generally election experts were pleased with this, that they felt that
it did sort of head off potentially more mischief. Another change I should say is that it made clear that the vice president's duty to confirm the results of Congress's certification is again sterial, not discretionary. Trying to avoid another situation like sir Donald Trump was pressuring, like Pence intervened
at the last minute. But you know, this is going to be the first test and to see how it goes and whether there are still other areas that could be misused if it looks like it's a close race.
As you mentioned in your story, a lot of election experts say that a problem with all this litigation is that voters start to doubt that the process is fair.
I mean, listen, litigation is inherently adversarial. Right, someone is coming to court because to them, at least, there is some problem that requires a judge to step in and decide, you know, who is right and who is wrong. And so it becomes, at a minimum, you know, a vehicle to raise concerns, to ask questions, to plant seeds of doubt that the election is going to go off the way that it should and in compliance with state and
federal laws and constitutions. And the more that you have that landing in courts, you know, it's a potential for people to see headlines and ask, you know, are their problems with the election, regardless of what the final outcome might be months or even years down the line, depending on how long litigation takes to resolve. So, you know, as a general rule, courts and judges are not supposed to be the ones deciding elections in our system. We
want that's a flighted by voters. So there's a concern, sort of an overarching concern that this could become a new normal where courts become major players in election cycles in a way that they just haven't been in the past, and.
It seems like everyone is anticipating that no matter who wins, there are going to be a lot of lawsuits over the election. Thanks so much, Zoe, great story and so much research went into it. That's Zoe Tillman, Bloomberg Senior Legal reporter. Coming up next on The Bloomberg Law Show. The Supreme Court appears divided on whether a truck driver can sue the maker of CBD oil under the Rico Statute, which was originally intended to fight organized crime. I'm June
Grosso and you're listening to Bloomberg. The Supreme Court seemed divided over whether a truck driver can sue the maker of a CBD hemp oil he alleges cost him his job using the Rico Statute. The Racketeer, Influenced and Corrupt Organizations Act, a federal law that was designed to fight organized crime. The question before the court was a narrow one. Did his case satisfy Rico's requirement that his business or
property had been injured? Just as Clarence Thomas questioned his lawyer esha anand so.
The injury here is we were fired. That's the injury to our business. Now, as a measure of compensation for that, images we claim are an amount equal to the salary we would have made and the other economic benefits that we would have gotten had we remained employed.
But Medical Marijuana did not fire you.
But just as Elena Kagan seemed to indicate that the truck driver's case fell within that requirement of the Rico statute, if you're harmed when you lose a job, then you've been injured in your business. Haven't you joining me? Is Brian Wolfman, a professor at Georgetown Law start by telling us about the facts in this case.
So the facts are rather simple and disturbing. This outfit Medical Marijuana was marketing a product They claimed it had no psychoactive effect and did not contain any THCHC. In fact, they claimed it had zero THCHC, which is an active ingredient as you may know in marijuana. So mister Horn, who was actually searching the internet to help his mother in law who had some pain difficulties, saw advertisements on
the Internet for medical Marijuana's product. He himself was a truck driver who, way back in twenty twelve, had suffered a serious injury and had continuing back pain that he was never able to tackle. And he was still a truck driver and really wanted to do something to deal with his pain. And he said, well, you know, look, if this has no THHC in it, I'm going to give it a try. Now, why was he worried about
ingesting something that had the active ingredient in marijuana? Because he's a truck driver and he is periodically screened for the possibility that he might be using unlawful drugs. So he purchases the product based on the representation made by the sellers that it contains no THC. Long behold, Apparently it did contain THHC and he goes through shortly thereafter a periodic screening by his employer, it detects THC in his body and he is immediately fired. And of course
that's very distressing. He suffers great harm, I'm sure, both emotional and obviously financial that he and his family because this is his sole means of livelihood and he has now lost his job. That can be traced pretty directly to an alleged fraud committed by this company.
Most people think of the Rico Statute as it was enacted in order to combat organized crime. So he sues, why is he suing under RICO.
Well, he's suing under RICO because for many years now, and this goes back for decades now. Yes, RICO was an attempt both criminally and civilly to get at organized crime.
It's called the Racketeer, Influence and Corrupt Organization Act. But its words, you'll cast its web far more broadly, and I think that was within the intention of Congress, and in any event, its words are much broader, and they encompass civil conspiracies where there is a predicate act, a predicate violation of law that is conducted among numerous people, a conspiracy that imposes intentional harms on individuals, and what it says, And I think I want to point to
the part of the statute that said issue in this case, RICO permits any person injured in his business or property by reason of racketeering activity to bring a civil lawsuit for three times the damages he sustains. So let me focus on the keywords. Now, any person injured in his business or property by reason of unlawful activity under this law.
And so what mister Horne argues is quite simple that the economic harms resulting from the injuries he sustained are injured reason to his business or property by reason of the defendants violations of RICO. And the reason we know that is because his business was his truck driving business. One's employment is one's business. So his argument is very simple.
The Second Circuit Court of Appeals, which is headquartered in New York, agreed with him, and the Supreme Court took this case on because it's thought that the courts of appeals around the country had disagreed on this subject.
Tell us about the argument of the defendants here medical marijuana.
Their argument is that this statute doesn't cover harms that have its origins in personal injuries, and here because the personal injury or the first in time injury was the ingestion of this product that contained THC. Even if the ulimate harm is in part a harm to one's business or property, in this case, the business of being employed as a truck driver, it doesn't count under RICO because it has its origins and personal injuries and personal injuries
arms are not covered by the statue. The problem with that, and I think this is mister Horn's argument. The problem with that is that's not what the statute says. The statue says, any person injured in his business or property by reason of a violation should recover three times as damages. And the injury here in his business again I'm repeating myself, is the injury in his employment, in fact, losing all his wages because he was fired as soon as it was discovered that he had THC in his system.
Several of the Conservative justices seemed to be leaning away from the truck driver's interpretation. Chief Justice John Roberts basically has to question, you know, this could make every slip and fall into a RICO violation. And Justice Brett Kavanaugh also spend some time talking about the fact that there could be sort of an explosion of cases here.
Yes, I mean that was a concern. Let me explain, I think what the counters to that position that were put forth by mister Horn's council. The first is, if that's true, that is that there are more cases that could now be brought under civil rico. One answer is, this is the statute that Congress wrote, and if Congress wishes to narrow the statute and exclude certain violations that are said to have origins and a personal injury like the injury from ingesting a drug product, then Congress can
do so. But I think also the argument is this is not like any slip and fall, because the slip and fall, say you know, a slip and fall outside of building or at the local super market, just involves the negligence, for instance, of a worker at the supermarket not to clean up the floor, so they slipped and they fell. But RICO requires much more. First of all,
it requires intentionality, not just negligence. Second of all, it requires, as I said at the beginning, a predicate violation, So not simply that there was the slip and fall of the negligence, but there has to be predicate wrong. And here the predicate wrong was a mail fraud. They used the mails, which is a separate federal violation that would not be true in the slip and fall situation. And there are a number others what were referred to as
guard rails. She's well understood that an injury in one's business or property does not include emotional harms what are known in the law as non pecuniary harms, like emotional harm,
pain and suffering, humiliation. All of those things would be recoverable in a typical tot action, in a typical slip and fall, and in fact, in modern American tart law, much of the recoveries in a slip and fall or other kinds of personal injury cases, much of the recovery are those kinds of what are known as non pecuniary damages. They are not recoverable under RICO. So in some sense reco gives, but in other ways it takes away. So I think all those things should be taken into account.
But I want to come back to the to the first point, which if the Court rules here in favor of mister Horn, with which it may, well, do you know Congress is free to amend the statute to narrow in a way that it views is appropriate, or even that it views as consistent with its original intent. And I think the argument being made by mister Horn is that this no origins in personal injury. Limitation just doesn't appear in.
The listening to the oral arguments, did you think that the justices were divided on this issue or do you think that they were leaning toward Horn.
I don't know the answer to that. It's always difficult to predict for a number of reasons. One reason can be that the judges are just truly looking to answer questions that they're not certain about. And just because they're asking a question from one angle or another, does it
necessarily they're leaning one way or another. Sometimes a question that looks like it's coming from a place of concern is looking just for a potential way to narrow the ruling, if it doesn't necessarily mean that that justice is planning to rule against this party or that party. So I think it's just very hard to tell. And I think that the Court is truly I wouldn't say undecided, but truly looking for a way to fully understand this case. And I did not take anything one way or other
from the questioning. And you mentioned the concerns coming from the Chief Justice or Justice Kavanaugh, and I did not take them as necessarily leaning against mister Horn, but expressing some concern over the kind of litigation a ruling in favor of mister Horn might lead to, and wondering whether there are there are any guard wails that might mitigate to some degree a ruling in favor of mister Horn.
An interesting case of statutory interpretation. Thanks so much. That's Brian Wolfman, a professor at Georgetown Law. And that's it for this edition of the Bloomberg Law Podcast. Remember you've ben always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, slash Law. I'm June Grosso and this is Bloomberg four