Trump Refuses to Concede Election

to explore all legal options. His personal lawyer, Rudy Giuliani, has said they're preparing to file lawsuits in several states over ballot fraud, despite the fact that there's been no evidence of widespread irregularities in the election or any fraudulent votes, and courts have already dismissed several lawsuits in Georgia, Nevada, Michigan,

and Pennsylvania. Joining me as election law expert, Derek Muller, a professor at the University of Iowa College of Law, is litigation over the election more difficult after the votes have been counted. Absolutely. You know, once those ballots are taken out of the envelopes, when you're dealing with apps and t envelopes or provisional ballots that a jurisdiction chooses to count, you know, they're all commingled, they're all counted, they're all put the together. So legal challenges are pretty

limited at that point. You're looking at recounts recounts can look at, you know, whether or not there were over votes or under votes. That the machines are much better at reading these things nowadays, the optical scan ballots are very good at that. Maybe there's a little bit of a dispute of a ballot here there, you know, some set of absentee ballots that were rejected for a signature

mismatch that maybe you want to get counted. But unless you're able to allege something like systemic fraud in the election undermining the results, your options just become very very limited. Once all the ballots have been counted the first time, you would be challenging ballot by ballot then, So what would it take to have systemic fraud? What would that

look like? Yeah, I mean so in the jurisdictions where its happened, you know, So we can think about North Carolina congressional election that was thrown out for first systemic fraud.

It was a pretty narrow election, but you know, there was ample evidence of a campaign essentially bribing someone to man manufacture absentee ballot requests, falsifying the absentee ballots by completing them with forged signatures, completing them on behalf of someone else and submitting them and that there was such sufficient widespread evidence of fraud that the result of the election was in doubt. Um. Now that was a few

hundred ballots, and um. Sometimes these kinds of dispute arise in a in a city council or mayoral election in a locality where it's a couple of thousand ballots that are cast in total and someone's able to sort of rig the election. But I mean, those are those are pretty egregious examples, and in order to sort of achieve fraud at that kind of scale is just, you know,

it's very difficult to do. So I think when we're talking about that kind of evidence, it's worth emphasizing how rare it is and how difficult it is to achieve at that at that level. Rudy Giuliani, the president's personal attorney, on Fox on Sunday. He said that team is prepared to point to dozens of witnesses in Pennsylvania who would

attest under oath that they observed instances of election mouthfeasance. Quote, there are upwards of fifty witnesses and this will be the subject of a lawsuit that we filed Monday, for violating civil rights, for conducting an unfair election, for violating the law of the state, for treating Pittsburgh and Philadelphia different than the rest of the state. What is he referring to here. Let's say you found a couple of

witnesses who said I observed fraud. Does that just apply to the ballot that they observed or does it apply to the whole system there? Yeah, this is tricky. I mean I want to work backwards for a minute to think about the remedy. Right, Let's say you established all this, what should happen? Um. You know, most of the time we say you hold a new election, but that's you know, when when we're thinking about the Electoral College meeting December fourteenth,

you know that seems pretty much impossible to do. Um. Additionally, you know, there's some questions about the legislature key get involved. But so far, I think the legislature seemed satisfied to allow the election process to play out. So we can take a step back and to think about what kinds of fraud and evidence they have. And there's no question I think, Um, you know, the campaign did win on election. Observers that were in a room hundred feet away when

they were entitled to be six feet away. UM, to see what was happening in those jurisdictions, and maybe you're saying there's inconsistencies and how um, sort of the verification of absentee ballots was processed from from county to county, right, and so there's a potentially an equal protection argument to raise there. But you know, but but each of these things it's really hard to establish that, you know, on

the equal protection front. Let's say that's that the treatment across counties was so desparate as to arise the level of arbitrary and unfair treatment, which is a kind of level that Bush Weegre talked about, sort of arbitrary treatment of voters from from county to county. Another is to sort of say, well, if there's no observers, what's the harm. You know, a lot of cases say well, observers have

a right to be there. But we also know there's a bipartisan process of canvassing votes of Republicans and Democrats in all counties and pencil mania uh, sort of participating in that process even if they're not formally affiliated with the campaign. UM. And then finally you know the fact that there are witnesses who come forward and testify about something that they can and I think the Trump campaign has filed lawsuits where they've had witnesses saying we've observed this,

This appears to be malfeasance. This seems to be a problem. Um. And then you know, when there's a court hearing and an election officials given a chance to ask questions on the other side and provide evidence about what they were doing. Some of these cases have been thrown out in other jurisdictions, so you can have a witness alleged something, but they might still be missing the context. So um, there's no question I think that the Trump campaign has some legitimate

grievances about especially observation of the counting process. Um. I have no doubt they're going to bring forward witnesses that will sort of describe some regularities they saw. But then you sort of wait for the legal process to play out to see what the explanations are there. And again, I think at this stage, I think it's very hard to allege that there's such systematic fraud to suggest that that the confidence of the election isn't doubt. Their greatest

efforts seemed to be focused on Pennsylvania. The election officials there have said that both sides were allowed to view the ballot counting process and that it was even live streaming. Yeah, and I think again this gets to, you know, the level of confidence you have in the election administrators at various stages. Um, And I'll point to a couple of things. So when you know, I'm a live streaming point, I

think it's important. But you know, it's not like it's not like such a camera over each table providing everyone sort of a look at what's happening in each stage of the canvassing process. Right, So, Um, you know that they're they're not concealing anything from the public, But I don't know that it's the most servisible for us to

sort of exactly see what's happening. But you know, again, we sort of have professional poll workers, professionals who are sometimes some of them are full time, it's their full time jobs. Someone more broad in part time and are

trained to handle this on a bipartisan basis. We're hopeling some Democrats who are canvassing the vote are opening the envelopes they're counting, and they're running through the machines if there's a problem, if there's a dispute that arises, you know, they'll they'll they'll try to resolve it amongst themselves or bring in a higher up to resolve the dispute. And on top of that is a chance for campaigns to send their own election observers to see what the workers

are doing. And again, I think the Trump campaign did point out, you know, at various points in time they were denied the kind of access they wanted, and the court found in their favor that they should have had that access. But again, what's the sort of is the allegation that in the moments they weren't there, that there

were somehow ballots being you know, fraudulently drafted. You know, is it that, um, you know, when they're opening the envelopes, they're not being as careful as they should be in verifying that all of the information on the on the on the envelope is accurate, that that that that it's properly sealed, that there's not stray marks on the secrecy envelope.

You know that there's technical violations that can arise and that an observer might want to challenge, But again, you know, these are you know, in my judgment, sort of pretty small scale stuff to the extent that there's a cons earned being raised, and without that sort of evidence that there's something systemic happening, that there's some deeper concern about the administration of the process. It's really hard to get from we were denied observing to therefore we're casting sort

of doubt on the election. There's still a missing link in there about the malfeasance that might have occurred. And again, um, I just so far, I haven't seen anything to that effect. Ben Ginsburg, who has been a Republican election lawyer who was behind Bush Fie Gore, he said that what he thought might be happening is that the Trump campaign was trying to slow down the count in states in the hope that the states don't complete the job of certifying

results in time for the Electoral College to meet. So then you have those dates coming up. Do you think that they could slow it down enough that they wouldn't be able to certify at least by December fourte No, I don't think so. The strategy might be to slow it down a bit so that the legal team can kind of gather evidence and get things together and make sure again that some of these ballots aren't being processed

so that they can challenge them later. Right again, as I mentioned, once they're ripped out of the envelope and dropped into the machine are gone. They're circulated and commingled with everything else. So I don't think it's a viable strategy, and I doubt that would be the strategies the except they're developing one at the Trump headquarters to sort of hold off until December fourteenth, when the electors meet. You know,

that's just unrealistic. We when you think about Bush versus Score, I mean, that was thirty six days of agony with a series of pieces of litigation happening. But there was already a count in place, there was already a result. The Secretary of State was moving forward with the certification, and it was just a question of whether or not we need to do amend that certification, whether or not we need to change those totals, whether or not the

recount would have altered things. So at this stage, you know, I expect the count to be done in the very near future, and then there's going to be, you know, potentially some more litigation about whether the election results should be set aside. Again, I think a very heavy lift litigation over the recount, which is certainly something that can extend a little bit longer, and how the Secretary of

State should handle uncertainty in that stage. But it's also worth emphasizing as the margin grows larger in some of these states like Pennsylvania, and as it's not just Pennsylvania Trump needs to win the election, it would also be Arizona and Georgia, and it becomes more and more challenging exponentially. So as we start to think about building that path forward, do you know which states right now look like they

would be eligible for a recount? I know that Trump said that they were going to ask for a recount in Michigan, and I don't know. Possibly Georgia, Yeah, I mean Georgia seems very close and could go to a recount. Wisconsin is another place where they would be entitled to a recount. You know, I think any of these jurisdictions, it depends on the state. Pennsylvania looks pretty good for a recount to um, it depends on whether it's under a quarter of a percent, half a percent, one percent.

It can vary from jurisdiction to jurisdiction not You know, a recount is a recount. It it entitles you to sort of get in there and and and look at the ballots and rerun them through the machines. But you know, the machines are really good these days. They're very accurate and and there's not a lot that changes in a recount.

Sometimes it can be a couple hundred votes. Um. So we can go back to twenty sixteen, where there was a recount in Wisconsin where the margin is almost exactly the margin it was right now, and the Trump campaign had won that state by about two votes and picked up about a hundred thirty votes in the recount, um. And that that's something you would expect that if there's sort of a random distribution of undercount undercounted votes, um, they're probably gonna cut slightly in favor of the candidate

who's already ahead. So when we're talking about recounts, you know, and there's that statutory entitlement to it, they can slow down the process. The states have certification goals and objectives to complete recounts by a specific period of time. Flora two thousand was a very odd situation where there was a lot of fighting about how to count certain ballots, how a manual recount of these hanging chad ballots was

supposed to work, right. I think states have much more streamlined recount procedures in place to sort of expedite this process. And so again it will slow things down, but but we'll just see if they choose to press forward with it, what that looks like. Does the state have to do the recount before they can certify the election? So most states have an unofficial result and then they have, you know, sort of the lot. There's a series of stages of

canvassing that occur before where they get to the final certification. Now, again in Florida, the timing was to have the recount in place in theory, under the statute ahead of the certification deadline. But then there might be extenuating circumstances where you can continue and persist in your recount even after

that certification deadline. So we've seen states and I think about the Al Frankin Norm Coleman election in Minnesota in two thousand eight, a Senate election that went to a recount, and with all the judicial wrangling, it took over six months to resolve that election. So even though there's a certification deadline, sometimes the legal wrangling can also push that much later. But one lesson we learned from Bush versus Gore is that the Supreme Court was really interested in

having states resolve these disputes expeditiously. In presidential elections. They know, there's that hard date of the meeting of the Electoral College in December fourteen. Um. There's a softer date described as the safe harbor, which this year is December eight, Which is that states really ought to resolve all of their election disputes pertaining to electors in order for Congress to presume that those electors are are regularly chosen. UM. And so you can miss that deadline, but they's try

not to. UM. They do update their totals a little bit after after the December eighth deadline. It happens, UM. But the point is we they're they're confident about who the winner is at that point. Whether or not they adjust some of the vote totals in the days after that is a different story. UM. But but but in theory, these states have statutory objectives to recount, to recount and complete, um, you know, before the certification deadline, and only sort of

blow past that if there's some judicial problem that arises. Finally, I want to discuss the Supreme Court in this whole thing, because you know, Trump repeatedly has said this is going to be decided by the Supreme Court, and Justice Alito

issued an order. Is there any possibility at this point that that case that the Supreme Court could still consider the case of those ballots that came in after election day three days until three days after and we're counted, So there's still a possibility they'll they'll hear that case.

But I think it remains a different question about whether they would hear it um in time to affect the outcome, whether it would affect the outcome, and whether the remedy they offer um would necessarily be the one that the Trump campaign wants. So let me say that there's there's a lot of like moving pieces happening here. So right now that the mark origin in Pennsylvania is, you know,

fifty thousand votes in Biden's favor. Um, So if there's a fight over this sort of batch of ballots after election day, one question we ask, because it doesn't even matter at the end of the day, right would that batch of ballots even make a difference. It's not clear how many are out there. It seems like a low number. I've seen numbers, as you know, maybe around ten thousand. I saw some report today fifty thousand, although I think

that's probably a little bit high. But even that batch of ballots, right, it's not they're not all coming in for one candidate. They're coming in divided amongst candidates. So it's it's not clear that it's going to even affect the outcome of the election. If the margin is wide enough, and if it doesn't affect the outcome of the election, the court might not feel any urgency to take it

up right now. And even if they did take it up, they might also look at it on a remedial side, to say, listen, if we told voters before election day, these votes need to come in by election day or

won't count them, um, they're unnoticed. But after election day, where this rule had been in place at least in theory that if they are postmarked by election day and coming in the next three days, or if they come in the next three days without a postmark and we'll count them, um, you know, it's a little unfair to sort of pull the rug out from the from the voters. At that point when the Supreme Court swoops in later on and says, no, no, we're not going to count

those ballots. Now, maybe they say you're unnoticed that there was litigation. Maybe you should have been a little bit more confident. But all this is to say, the Supreme Court could decide this case, you know, next year, if it wanted to. Just that the case has been brought up before the court. Um, it's not moot even after an election. Election law cases typically sort of a vaide muteness concerns by the Court saying, as long as you raised it, and we know that elections are sort of

quick things, we can resolve this later. I keep referring back to a famous case called Anderson Dress the Celebrities, which involved John B. Anderson's campaign in nineteen eighty and the Court issued a decision in nineteen eight three. Right, hardly hardly a kimely decision. So we can think about the Court potentially wanted to. It has some academic interests

that wants to provide legal guidance ahead of election. Um, but I think the odds of it deciding this case in a way that issues a judgment that not only affects the Trump campaign, but affects the Trump campaign. The way that alters the outcome of the Pennsylvania litigation is just exceedingly low. Thanks Derek. That's Derek Muller, professor at

the University of Iowa College of Law. It's been three years since the eruption of the meat Too movement, and businesses are still revamping their workplace dating policies, sometimes turning to disclosure requirements that may make employees blush but don't violate privacy laws. Joining me is employment law expert Anthony on CD, a partner at Proscouer Rose. Let's start out with the main question. Do employers have the right to forbid relationships between employees because it sounds like a real

intrusion into their private lives. Yeah, it may seem at first glance to be an intrusion into some kind of a private relation ship. But when there's a workplace romance, there are what I call fellow travelers that go along with the happy couple who might be involved in that relationship. And what do I mean by that, Well, the number one fellow traveler is the employer. If the boss is dating somebody who reports to him or her uh, and

the relationship goes four as sometimes happens in that situation. UH, it is not unusual for the employee to claim that the boss has retaliated against that employee because of the relationship having gone sour, and may say that I no longer am getting the perks I was getting previously, I didn't get the bonus. Indeed, maybe and maybe the boss is on the verge of firing me. And in that situation,

everybody starts calling lawyers. The HR department will start calling lawyers, the employee himself or herself will start calling lawyers, and suddenly what was a so called private relationship now is a very public relationship, at least within the four walls of the employer. And in that situation, suddenly everyone's looking at the employer as the deep pocket to make things right. So that's the number one fellow traveler in such a relationship, and almost always if it, if it goes badly, ends

up in the lap of the employer. Another group of fellow travelers in such a relationship in the workplace are all the other employees who aren't dating the boss. It is almost always the case that if one employee is dating the boss and there are five or eight who are not, and this becomes common knowledge, as it so often does, whether it's water cooler talk or gossip, whatever, it often becomes knowledge that is known by other employees.

It is I would say, certain, not even certain, but a hundred percent certain that everybody who isn't dating the boss is going to take the position, and that the employee who is dating the boss is receiving some form of preferential treatment. And even if that isn't happening, it's almost impossible to dispel that perception. And so no matter what happens, you've got again a fellow traveler in the relationship, which probably neither of the happy participants, at least at

the beginning they were happy, may have anticipated. So how common our workplace dating policies? How long have they been in place? I would say they have risen exponentially in the last three to five years. Certainly since the Harvey Weinstein scandals broke in the me too movement began, things have very much accelerated in this regard. Employers have taken a more active role in monitoring and reporting and training employees.

In connection with these kinds of things. I think maybe there was more of a propensity for employers who either look the other way or considered to be a private matter. Now because of, as I say, the fellow travelers that exist in such a relationship, Employers who are knowledgeable recognize that these are things that are potential liability centers and can be really problematic in the event that the relationship

goes badly. One of the things that I always think about in terms of perspective is we know that marriages in the United States are destined for divorce. I don't know for sure what percentage of workplace romances will fail, but I would guess it's at least fifty And I also assume the number of failed workplace romances increases exponentially when one or both parties are married to other people,

as is so often the cake so well. I hate to be um the non romantic in the conversation here, but when one enters into such a relationship in the workplace or anywhere, but certainly in the workingplace, the statistics are not in your favor that it's it's going to end well. And when you compare or a workplace romance

to a non workplace romance. There's a lot more fallout in the workplace romance because once you have ceased being interested in the other person, or one person has feast being interested in the other person, it's much more difficult to terminate connections when you work six ft away from that person every day for eight to ten hours. And that is something obviously that doesn't occur in the outside workplace. There's a there's a term known as ghosting. You can

people ghost one another. I guess it's a kind of a rude thing to do, but that happens. But you can't go to somebody who works in the next cubicle or in the next office, and certainly you can't go to somebody who happens to be your boss or even the person who reports to you. Do most companies require disclosure of a relationship or just forbid them out right. UH. That it comes in different flavors. Some employers differentiate between

workplace romances that exists in a reporting relationship. That's actually the most dangerous area, both for the supervisor UH and also for the employer. Why is that Because when a supervisor act in connection with an employee that reports to

him or her, the Company Act UH. The supervisor is essentially the embodiment of the company, and so if there is sexual harassment or alleged sexual harassment that occurs by a supervisor with respect to somebody who reports to that supervisor, the employer is strictly liable, meaning that even if the employer did not know there was a relationship, did not know there was any harassment going on, indeed may not

have been able to find out. Perhaps the couple has done a very good job in keeping it under wraps and no circumstances. If the employee says he or she was sexually harasked, the employer and the supervisor are strictly liable in the event that harassment is proved. So employers that recognize this are much more interested in regulating and indeed often prohibiting a relationship between a supervised employee and the boss that that supervised employee reports. There's also the

issue of co employees. This is often referred to as paramour liability, where you have other employees reporting to the same boss who have potential claims also who say that there's favorable treatment that is being showered upon the employee who happens to be having the relationship with the boss.

There are also policies that employers have that regulate, often don't prohibit, but more closely regulate relationships between employees who are co employed, meaning that they're not no one's reporting to one another, no one's divorced, they may be in different departments. Employers are less concerned about that kind of a relationship because neither employee has the ability to affect

the terms and conditions of employment of the other. That's where you get into trouble as an employer and as a supervisor when there is that potential for controlling the terms and conditions of employment. So that's workplace dating policies. Are there also contracts that an employee might be required to sign love contracts. Yeah, I would love to know

who actually coined the term allowed contracts. It has so many different potential implications, but it is something that when you mentioned love contracts to an employment lawyers such as myself, we know exactly what that means and what those are are kind of ways in which employers are are grappling with the situation when it arises, and they often supplement a policy such as the one I mentioned, which is needed either prohibits dating between a supervisor and a support

and employee, or obligates at the very least a disclosure of such a relationship. Um so before you get to love contract. Oftentimes for policies, as they say, either of bit a relationship with somebody who reports to the supervisor or requires that puts the onus on the supervisor to report such a relationship to Human resources or legal department

or both. Why is that so that somebody who doesn't have a conflict of interest in HR or in the legal department can put eyes on this relationship and make a determination of whether uh, these two employee should continue to work in such close proximity and importantly, whether the subordinate employee should continue to report to the boss. Many employers, when they find out about, either directly or indirectly, a relationship between a supervisor and another employee, will move either

the boss or the subordinate. But yet to be very careful with that as well, because the subordinate can't be put in a position where he or she has fewer job opportunities or where there's an adverse impact on they're on their career, because they may very well say that that somehow has retaliation or that's an extension of harassment

if that's what they're alleging has occurred. So the employee has to be very very careful in making sure that the relationship is severed, that the work relationship is severed, so as to guard against potential liability, but also to make sure that it doesn't look as though the employee is being retaliated against in any way for having UM been in this relationship, or as I say, if it

turns into harassment, especially in that situation. UM. A further extension beyond a policy just prohibiting having these relationships or obligating the supervisor to disclose is something called love contract. And what that does is it puts everything on the table and in writing, and it contains several common components. Number One, there is a requirement that they're be full disclosed by both the supervisor and the employee that a

relationship is going on. One of the first components of a so called love contract is to remind both parties to the relationship, and particularly the employee who is reporting to the boss, that they are not compelled or obligated in any way to enter into or remain in the relationship that may seem like common sense, but what the love contract is intended to do is to guard against

a future claim of harassment. So if at the very beginning, presumably when there's still a very good relationship between the couple, they both acknowledged this relationship is happening, and the employee who will be asked to sign a love contract acknowledges that if at any time, uh, he or she wishes to exit the relationship, the romantic relationship, they have a

right to do so. Uh and that and it it also generally can firms that they will suffer no retaliation in terms of their job or their employment for making a decision to exit the relationship. So this is kind of a warning to the supervisor that if there's a breakup, do not retality against this employee when it comes to terms or conditions of employment. And it's a acknowledgement by the employee that if they wish to exit the relationship, they can do so and there will be no job

related repercussion. So there are many stages of love, as you know, and I'm wondering how the employer draws the line or has the employees draw the line between you know, flirting, infatuation, romance,

and relationship. Well. The good news is that much of the heavy lifting in this kind of situation is usually dealt with in a sexual harassment policy, and most well advised employers in the IT States now have some form of express harassment policy that that that actually gives examples and that describes what is or could be harassment and

should be prohibited. Most sexual harassment policies differentiate between activities that are relatively harmless and those that are more severe or more pervasive, and those are those are important words when you are assessing whether there is harassment. Something is usually either severe in terms of the kind of activities that were engaged in. It may involve some form of touching or worse or pervasive meaning this has been a lot of um asking out or you know, comments about

the way somebody addressed something like that. In the absence of severe or pervasive oftentimes it's hard for an employee to prove sexual harassment, but there are guide posts that

are provided in most sexual harassment policy. And getting back to the love contract, it's usually very common to attach to the love contract itself a copy of the company's sexual harassment policy, so that again both the supervisor and the employee are made very much aware of what the policy is and indeed what the law is in connection with this, so that it's not just a piece of paper somewhere buried in the middle of a fifty or

sixty page employ handbooks. It is attached to policy itself, to the love contract itself, so that both parties can see what the requirements are and what the expectations are from the employer. Thanks so much for being on The Bloomberg Lawn Show, Tony. That's employment law expert Anthony on cd A partnered Proscower Rose. And that's it for this edition of the Bloomberg Lawn Show. Remember you can always get the latest legal news on our Bloomberg Lawn Podcast.

You can find them on iTunes, SoundCloud, or at Bloomberg dot com slash podcast, Slash Law. I'm June Grosso. Thanks so much for listening, and remember to tune to The Bloomberg Law Show every weeknight at ten pm Eastern Pride Tore on Bloomberg Radio