Will There be Mini Bush v. Gore Suits Post-Election?

are a disaster. They are a total, complete disaster. So, barring a landslide, many legal experts expect a second wave of lawsuits after the election. Joining me is Rebecca Green, a professor at William and Mary Law School and co director of the Election Law Program. There are an unprecedented number of election cases before the election. Will most of those be resolved by election day or will they still

be litigated? So it's a great question and first point to make about the volume of election litigation that we've seen so far is number one, that's unprecedented. UM, We've definitely never seen as high of a volume of litigation between the primary and general election. UM. But that's not terribly surprising given that we're in a sort of once in a hundred year pandemic. UM. And most of that litigation has involved accommodating voters and election officials because of

the pandemic. So UM, I think, you know, the first thing to say is that it's unprecedented. The second thing to say is that it's not a bug of our system. It's actually a future And it's really, in some sense a good thing that so much litigation has occurred, in the sense that it's evidence that our system is working and that when problems are confronted, we have to be resolution processes to address them. So in other words, UM, it's not a it's not a problem, it's actually just

the function that the system working as it should. And I guess the third thing to say is that, um, we should feel very lucky uh that um, we are not being hit with the pandemic to the degree that we were, um, just prior to the primaries in our general election, UM, where many many more people vote and

obviously UM, you know, more as at stake. So that is to say that all of the litigation that we've seen so far has ironed out a lot of the kinks and resolved a lot of the problems of running elections. During the pandemic. Uh, And so we should be sort of in that sense grateful that, UM, that we've gotten so many of these issues, We've gotten clarity on many

of these issues prior to the election. So I think, UM, In sort of more directly answering your question, UM, I think most of this litigation will be resolved in the advance of the election, and certainly courts have a mandate to do so, you know, to make sure that the rules are in place as far in advance of elections as they can. UM. And so I think, UM, I think most of the litigation that we're seeing raising around the country and what we've seen over the last few

months will affect to be resolved. UM. But that's not to say, of course that there won't be continuing litigation, UM, as we approach election day, that there won't be election day litigation. And then certainly of course that there will most certainly be post election litigation as well. That was my next question, the fact that we have all this litigation now and as you mentioned, the pandemic, do you expect to have an unprecedented amount of post election lawsuits. Well,

it's hard to say about unprecedented. I do think that pressures on the system. So where you typically see a lot of post election litigation involved U two categories of ballots. First, provisional ballots. Those are ballots that people cast when they are told that for one reason or another, they're not on the rolls, or they are you know, in the wrong precinct, or or there's a disagreement about whether the person is eligible to vote. Federal law requires that those

people be handed a provisional ballot and UM. Then they have, you know, a certain amount of time to sort of prove that they were in fact eligible UM, and the state has to kind of go through a post election process and administrative process to decide whether to count or not count those provisional ballots. And so there's an administrative process for that, and just like there's an an administrative

process for ABS and T ballots. So when you state receives the ABS and ballot, there's a process that they go through to verify that it's UM from the person who sent it in and that that all those sort of boxes are checked UM. In other words, that do they have their address on their did they sign it properly if they needed a witness signature? Is that on

there those kinds of things. So there's these administrative processes, and often when elections are close, UM, election litigators look to provisional and absent tee ballots to determine, you know, whether or not they can find UM ones that should have been counted that weren't or ones that were counted that shouldn't have been counted, and so UM that tends to drive a lot of post election litigation when elections

are closed. So because of the nature of running an election during a pandemic and all of them issues that have arisen, especially with the dramatic increase that's expected in absentee balloting. UM, I think it's fair to say that that it's likely that there will be more post election litigation. But I guess the caveat there is that typically there isn't election litigation when there is what's referred to as

no margin of litigation. That is to say, if it's not close, um, you know it's it's it's it's less likely that litigation will occur if it's a blowout, for example. So I think a lot of people are looking at that that question and sort of you know, the closer it is, the more litigation you can expect can we expect litigation in any event from President Trump in light of the things that he's been saying about malin balloting causing massive fraud and that if he doesn't win, he

doesn't know if he can trust the outcome. So can we expect? Well? I think, UM, it's important to UM remember that it courts and we've seen this already in litigation. UM. You know, in this sort of pre election litigation already, M, which is that courts are very consistent in requiring provable facts and evidence to show that there's been a statutory or constitutional violation of state or federal law before they're

willing to entertain a case. And so UM, you know, if if if President Trump UM and his attorneys are able to point to evidence of fraud or problems in the absentee voting context, for example, UM, then you know that that is absolutely something that should be litigated and that evidence should be examined. And you know that that that is how our system works. UM. But if if the facts aren't there, if the evidence isn't there, you

know a court will not entertain that UM allegation. UM. You know again, if evidence doesn't exist, So I think that's going to be the real question is whether or not you know, he's he's certainly been suggesting that there are lots of problems with absent voting and that there will be fraud. But um, in a lotus seeking Marshal's evidence to show that that's actually happened. Um, I don't think he'll get far in court. And any attack President Trump makes on the election that would have to be

a state by state case or attack, correct. So so yeah, it's kind of hard to get your head around. But you know, America doesn't have a single presidential elections that we have elections in every state, um, and so so yeah, you wouldn't be able to sort of challenge that presidential election national. You'd have to bring that litigation in states. And those states would be following in some cases federal law and the sense that they have to comply with

federal requirements. But the vast majority of requirements in elections in this country comes from state law. So in those state laws are you know, they have their own ecosystems and very distinct from one another. So usually what happens is, um, you know, election experts in the states. So the litigators who are experts on the state's election law will pick up cases at the state level because because the laws

so arcane in this field. Bush Gore is the case that's mentioned over and over again because anyone who went through it you remember just hanging on every chad, so to speak. So is there any likely that there will be another Bush v. Gore? So, you know, the reason why Bush versus Gore was such an extraordinary case is that the tally came down to vote, which is extraordinary that, you know, the deciding state from an electoral vote count matter came down to a state where the vote was

that close. So that is a pretty extraordinary circumstance. And it's always the case that there are close elections. Um, you know, I'm speaking to you from Virginia, where we had an election that was so close that that victor had to be drawn from a hat. So it's not rare to have close elections, but to have the series of circumstances that aligned to produce Bush versus Score occur

again would be quite extraordinary. So, you know, never say never, but it's only going to be that kind of Bush bee core level scenario if in fact, um we're talking about a state where it's as close and where that state is um, you know, pivotal to the outcome. The possible scenario for there being no election lawsuits after the election would be an overwhelming vote for one candidate or

the other. Yeah, so, I mean usually the way this works is, you know, candidates won't bring claims uh, you know, and expend resources. And indeed, in some cases, in most cases, state law won't allow um a recount that if the outcome isn't you know close, you know. So for example, some states have laws that say there can be no recount unless there is the vote is closed by x

percent one percent, for example. And so it is the case that UM, if the candidate believes a political party believes that the number of votes that are contested, So for example, UM, you know, let's say that a vote was um, you know, a hundred thousand votes. You know,

the candidate won by a hundred thousand votes. If the candidate who lost by a hundred thousand votes believes that there are, for example, you know, two hundred thousand fraudulent votes, then that candidate could contest the results saying, you know that that the outcome would change had it not been for these fraudulent votes. But they're not going to get anywhere in litigation unless they can produce evidence that supports, you know, a finding that there has been in fact

um that much thought. So, in other words, unless you have the evidence to prove that you have an outcome determinative number of problems UM in terms of the ballots that have encountered, then you're going to not get foreign litigation, if that makes sense. And I think it's fair to say also that UM in a blowout situation without that

kind of evidence, I don't think anyone would. I don't think any court would entertain the losses that where there just wasn't the proof needed to show that the outcome was incorrect. Still do the president's statements make it hard to predict whether there will be litigation because he's used the courts as refuge time and time again to drag things out. So even if you don't have a verifiable claim acclaim with proof, you could still slow down the process,

can't you. Yeah, I mean there's no doubt that you know that the a judicatory process for determining whether um, you know, weighing evidence and determining whether it's you know, provable facts exist that can't take time, and that does require courts and fact finders, you know, and administrative processes for that matter, to kind of go through carefully to make sure that things are right. And so I think very likely that there will be you know, this has

been a headline for for weeks now. You know that we we shouldn't necessarily expect a decision um or an outcome on election night. You know, administrative and potentially judicial process you may take time, but again, if there is evidence that there's been a problem, courts will take that seriously and take their time in you know, addressing that issue, like happened in Florida for example, where it wasn't a

question about fraud. It was this question obviously right with the butterfly ballot and ballot design, but the idea was that it took along time to kind of sort through the counting process or the recounting process in that case. So it's very possible that there could be administrative for judicial delays sort of as a result of whatever happens um.

But in a presidential election, of course, there are hard and fast deadlines that are set by federal law and so um courts we are cognizant of those deadlines and try to ensure that their processes fall within those deadlines. In other words, that courts require provable facts, um they require evidence, and unless that evidence exists, there's not going to be There's going to be no there there. Thanks

for being on the Boomberg Launchow, Rebecca. That's Professor Rebecca Green of William and Mary Law School, co director of the Election Law Program. That the Supreme Court agreed to hear two appeals from US and Trump's administration over immigration related policies. The new cases come on top of one that Justice is accepted on Friday to determine whether the Trump can exclude undocumented immigrants from the census counts, joining Eas Leon Fresco a partnered Hollandon Night. So the court

has taken now three big immigration related cases. What's your take, Well, what's interesting about the three cases is the timing of the cases, which is that none of these cases potentially could survive a Biden administration, and Biden is elective, and so what will be fascinating is either these cases will sort of solidify a fee change in immigration law moving forward under a President Trump and a six to three card or they'll just feed are out and these policies

won't be implemented, and they will be at no moment. And so that's what's fascinating about the timing of these cases is that they really set up either one of those two outcomes. Let's start with the census case. What does President Trump want to do? So President Trump had

two goals with regard to the census. The first and his most important goal was he was trying to not count people with unlawful status or quasi immigration status is in the census because he believed that by counting those individuals, certain states that were more advantageous to Democrats would get more representation than states that were more advantageous Republican. So

that was his first goal. And then the second goal was to speed up the accounts of the census because some of the states lagging behind had been states that were more traditionally represented by Democrats than some of the states who had not been lagging behind. So because of that, he had tried to shorten the time from which he had agreed he would collect census data, which was supposed to be until October thirty one, and he wanted to shorten that time until the end of September and what

ended up happening. It ended up going through mid months of October because of the various litigation that happened. Tell us what the three judge panel based its decision on. The three judge panels said that the Trump administration couldn't

do this. The three judge panel decided that it was unlawful for the President to exclude undocumented immigrants from the census because the way that the Constitution is written, it's written as persons, and when the Constitution wants to count citizens or something else, if it's talking about citizens, it refers to citizens. And when it refers to person, it

refers to person. And so no matter what interpretation you're gonna use about what the original enumeration clause meant in the Constitution, it meant counting every human being was in the United States. And the judges also said that it would violate a separate requirement that the Commerce Secretary send the President a single set of numbers derived from the census. Yes, that's correct as well, which is that at the end

of the day, the the Commerce Secretary. The problem is there's sort of this feeling that there's this black box of how this is going to get calculated, and they're the Justice Department was not willing to provide a clear answer as to how they were going to get to the count that excluded undocumented individuals. And so because there is a provision that requires the Sensive Bureau to provide one count to the President, that also would be violated.

You're correct about referencing that. Let's talk about the timmy because the argument is scheduled for November. Obviously, the decision comes after that, and the Commerce Secretary has to send the numbers in by December thirty one, So how can they accomplish that unless you are they starting to figure

out the undocumented immigrant numbers already. Well, so what's fascinating about this is this was an issue that was in dispute in the other census case, which is that the Census Administration had already said that they had no chance of being able to meet the December thirty one deadline, and that had been said repeatedly and on numerous occasions, and now the Department of Justice had changed its mind and said, no, give us a chance at least to

meet the December thirty one deadline. So nobody knows if this deadline will be mad or not mad, and nobody knows how that number is going to be derived of who's undocumented. The only things that have been discussed so far are counting the amount of people that are in ice facilities and at least the new things that But if that's literally what we're talking about, we're talking about maybe twenty thirty thousand people, and so that's not going

to make a difference of anything. And that seems to be a lot of way some resources for no good reason. And so the question is really what other modes of operations are they going to try to do to discount

undocumented people. And really there's this other question of who is undocumented, because are you undocumented on a specific day, because a lot of people are in between status is their status has expired, but they're applying for a renewal of their status with U s c i S and that can take months, and a lot of people are waiting to fix their status the marriage applications, and so this question is not a simple question at all as

to what it actually means to be undocumented. The court is likely going to be different when this is heard, because any Coney Barrett will most likely be on the court. Can we read anything into the courts October thirteenth order that left the Trump administration and the census count more than two weeks early. Well, I think the the Court is inclined to give broad deference to the president here

on how the president operates the census. And so I think from that standpoint, even though there was the case that Justice Roberts had been a part of at that time too uh not allow the citizenship questions to be asked on the census, that's a different question than the operation of when the census was going to be actually completed, and that sort of the sensatory scheme there does give very very broad uh difference. And in fact, the thing

is that the case ended up going. The census count ended up going much longer than it was originally supposed to go. It was extended because of COVID, and the other thing that had changed slightly was that the count by mid October when this decision had come out, were in the very high nineties in terms of count. It was it was very unclear how much more juice was going to be left into squeeze these out of these

additional days. Because we were talking high nineties in all the parts of the United States, and so I think for those reasons is why the Court lifts in the state. So I don't know that that gets us anywhere with regards to the ultimate question as to who gets counted as part of the census. I'm wondering if the originalists on the Court, if they're going to be looking at the words in the Constitution, whether that may make a good argument against what the Trump administration wants to do.

Right absolutely, when this executive order first came out, pretty much every legal expert from all walks of life, conservative and liberal, thought that this case would be very flimsy. So it is a bit surprising that we are here at the Supreme Court. But it also happens because when the federal government asked the Supreme Court to review something, there is a lot of difference that's given there. If it doesn't happen all the time, but it happens most of the time, And so we are where we are

where this might end up being reviewed. Although, of course I think if if the Vice President Biden wins in November, then maybe that November oral argument uh takes a lot less importance. Or get three schedules or something else. So we'll we'll see the court takes cases because they want to overrule they don't want in place the federal Appellate Court decision. So in this case, that would mean the court took the case to overrule the three judge panel

which voted against the Trump administration. Yes, that is the conventional wisdom that that's what would occur in a normal case like this, which is that the only reason is that the only reason that the case would have been taken would have been to overturn the Second Circuit decision.

But here that might not be the case, because this issue is such a case of national importance that the court might just have taken it because the federal government wanted then to take it, and that this might be an issue that would come up in other decades as well, and so they would take it. But at the end of the day, I just I just don't know why that the Free Court would have taken it if they

thought it was a completely frivolous argument. So for anyone to say it's likely that the Trump administration will lose, I think is maybe getting too far ahead of them. So if Biden does win, the count is in by December thirty one. He's not in office until January. So what difference does it make if Biden wins if the count is already in Well, that's a good question, and I think it will just depend on a do they

get the count in in time? Be are there legal challenges which I think would happen to that count, and then see could then as a result of those legal challenges, a settlement be reached where the Biden administration actually performs account that doesn't include, uh, this reduction in undocumented individuals, If that makes sense. So that's how I think it would. That's how I think it would end up playing out, is you would have accounts that would that would potentially

exclude people. Then you would have some other lawsuits that was put in just to be a placeholder, and then you'd have a settlement to that lawsuit that ultimately said we aren't gonna county the we aren't going to exclude the undocumented from this census. And that's how it would end up playing out. Okay, So today the Supreme Court

agreed to hear two other cases related to immigration. One the clash over Trump's use of two point five billion dollars in Pentagon funds to build the wall, and the Supreme Court cleared Trump to start using the money and refuse to revisit it. What's your take on this, Well, I mean, this case has a been in an interesting posture because that money has been basically spent, and the wall all has been you know, to the extent that you would call it constructed at least in terms of

those funds. That horse has already left the barns. And so this is just about two sorts of housekeeping issues. Which is number one, Well, you still have this Ninth Circuit President that says that using those national emergency funds in that manner is illegal. So the idea would be to wipe that off the book so that that wouldn't happen if the president wanted to do it in a subsequent year. And then of course there's the issue of

allowing the president to do this in subsequent years. And so both of those are the reasons why the Court needed to get involved there, because if that Ninth Circuit President had just stayed there, even though there was a stay of this litigation, there might not have been a stay of a subsequent litigation of a subsequent effort that tried to use again Defense Department money to build the wall.

So what happens if Biden wins and the administration drops the case, then the Ninth Circuit decision is still on the books. Potentially, yes, that that could be how it ends up working. And if that works, then a future attempt by a future Republican administration to try to do something like this would be thwarted unless the court issued another say of such a decision next time. Is something like that would happen? Is it a simple matter to

drop the case? If Biden wins, absolutely, they can say, look, we are no longer going to continue with this policy of diverting funds, and so this case is now mood and we won't do it. And then the question would be at that point if the governments, because here in the in this case, the government is actually the one doing the appeal. If the government does the appeal and the government is the one dropping its own appeal, is

able to do it. If the other side had done the appeal and the government was was trying to drop the case, they could say, well, this could be likely to come up again, and so we don't want to moot out this case. But here, the Sierra Club and the a C l U and everyone else will be more than happy to moot out this case given the current composition of the courts, and so they won't want to proceed, and the case will go away because all of the size in the case will want it to

go away. Or the third case is that the court has agreed to hear Trump's defense of a policy that requires people seeking asylum at the southern border to remain

in Mexico while they're asylum is being processed. Tell us about this, well, So this was the lynchpin of the entire Trump administration strategy to stop the southern border surge, which was instead of operating the two choices that had previously been operated, which was number one, either used the tension or family seperasion or something, or number two simply roll people to allow them to enter the United States

while their case was pending. This was a third option that was in the statutes but really hadn't never been used, which was to return people to Mexico immediately upon their arrival and have them do their immigration case either in Mexico via video conference, or you bring them back in to San Diego or to Brownsville or Laredo to some immigration court there on the day of their actual hearing.

And that's called remain in Mexico. And the question is did that violate the asylum statutes, to violate the Refugee Protocol, which the United States is a member of, and to violate certain implementing regulations. And although the Ninth Circuit I said yes, it has violated those provisions, the Supreme Court stayed that Ninth Circuit decision and allowed Remain in Mexico to continue. And so this is much like the Border case, or it's just a matter of cleaning up that Ninth

Circuit press of it that says it's illegal. I think the Supreme Court will want to say, no, romaine in Mexico is uh facially illegal. Someone might challenge it in the manner in which it's applied in their particular case and say that they didn't get due process. But I think what they'll say is that there's not it's not facially valid. There's a way to do romaine in Mexico that wouldn't violate any of the provisions of the existing law.

Thanks for being the Bloomberg Law Show. Leon. That's Leon Fresco, a partner at Hollandon Knight. And that's it for this edition of The Bloomberg Law Show. I'm June Grasso. Thanks so much for listening, and remember to tune to The Bloomberg Law Show every weeknight at ten pm Eastern, right here on Bloomberg Radio