Will Trump Election Challenges Matter?

On Friday, Republican National Committee Chair Rona McDaniels said the RNC has deployed legal teams to Arizona, Georgia, Michigan, and Pennsylvania, citing concerns about so far unproven claims of voter fraud. We will fight every regularity to the very last, because every voter deserves their vote to be counted, and they deserve to know whether or not these irregularities mean fraud, and we have to figure this out. But Philadelphia Mayor Jim Kenney said the president's team has not produced any

evidence to back up his claims of fraud. I think what the president needs to do is Frankie put his big boy pants on. He needs to acknowledge the fact that he lost, and he needs to congratulate the winner, just as Jimmy Carter did, just as George H. W. Bush did, and frankly, just as Al Gore did, and stop this and let us move forward as a country. My guest is election law expert Richard Brofald, professor at Columbia Law School. Rich let's look at some of these cases.

Starting with Michigan, the Trump campaign tried to stop the count and it claimed it hadn't been given meaningful access to the counting locations to observe the process. A judge already rejected that is that claim then dead. I think unless the campaign can provide evidence that shows that access was not provided, it is always a challenge to overturn the decision of the judge who was on the scene.

And unless they can actually provide evidence that they were somehow not given the access of the law entitles them too, and that that might have affected the count and that the result in the particular places which would have affected the overall accounts, I think it's it's a very high

hurdle for them to overcome. And another lawsuit that was dismissed was in Georgia, and there they claim that a Republican pole observer in Chatham County witness laid ballots being illegally added to a stack of on time absentee ballots. The judge just threw that out, saying there's no evidence. So that's also over right, and it's extremely unlikely, between very unlikely and almost nearly impossible, never say never for a higher level court to overturn a child judge or

a district court. Judges of assessment of the evidence of the judge said there's no evidence. That almost surely means there's no evidence that any higher court would be interested in. In Nevada, the lawsuit alleges that ten thousand votes were illegally cast by people who no longer reside in the state. If people no longer reside in the state, are they still allowed to vote if intend to come back. I

guess that depends on what you mean by reside. In other words, if somebody has temporarily moved because for example, they want to go to their vacation home which is in a lower COVID area, there's still residents of the state. So I mean they have to first show that there are people who fall into any category of having movement, and I've got to show that the person has actually

relocated as opposed to staying temporarily somewhere else. People it's a big deal to give up residency if they still maintain an address, if they're paying their utility bills, and then they haven't less the state. I wonder how they even came up with that number, Like what kind of research or what would have shown that? Right? I mean, I mean, that's the question. They've been bringing a lot of lawsuits without much evidence, or maybe without any evidence.

They've been They've been hurling a lot of accusations, but so far the courts who have been hearing these cases have been pretty unreceptive because they don't see any evidence. So I think they actually would have to come up with some specific people and show that those people are

no longer there, and I haven't heard that yet. The cases that are getting the most attention are those in Pennsylvania for a couple of reasons, the importance of Pennsylvania as a swing state and the fact that the U. S. Supreme Court already decided in a fourd or four decision to leave in place the Pennsylvania Supreme Court's decision allowing ballots received three days after election day but postmarked by

election day to be counted. State officials have told counties to separate out those late arriving ballots, but some of the conservative justice has left the door open to reconsidering the question after the election. The Trump campaign is also suing in Pennsylvania with an access argument, again saying their representatives were being denied reasonable access to monitor the counting of votes. In Philadelphia, the vote counting is live streaming,

So what kind of transparency are they looking for? Once again, you can make a statement, but then you actually have to say not only what you're looking for, but what you're legally entitled to. But they are entitled. Each state has has its own laws that say who is supposed to be present when both are accounted. Typically, and I think this is the case in Pennsylvania, there should be representatives of both parties. My understanding is that that has

been the case. Trump campaign one am very minor victory when they were allowed to get a little bit closer to the action while still maintaining six feet of kind of COVID required public health distance. So they didn't win a minor victory there in terms of how close they can get to watch the both counting. But I don't think any court has said that there's been any situation in which there wasn't the required bipartisan observation of the whole accounting. So again, it's it's one thing to say

there needs to be more transparency. Is something else to say the law requires the following and they haven't given it to us, and that I have not heard. I've been talking to Columbia Law School professor Richard Revault. Do you think the Pennsylvania's Supreme Court went outside the bounds of its authority in granting that three days tension? That turns a lot on what their authority is, to be honest, and that's actually, in some ways the issue that is

lurking beneath the surface of the Supreme Court. If it's an issue the Supreme Court wants to take on. I don't think the Pennsylvania Supreme Court went beyond its authority as the highest court in the Commonwealth of Pennsylvania in charge of interpreting the statutes of the state in light of the state constitution, and the state constitution has a

strong protection of the right to vote. So I don't think there is much doubt that in terms that they were within their balance of looking at their statutes in light of the state constitution and in the light of the situation the COVID created postal Service create the lays

created situation. The question that's been asked by a number of the justices and is being pressed by Republicans in the Trump campaign is were they actually allowed to look at their state constitution or they were they required to look only at the text of the state statute. Texas state statute does set a specific deadline by which ballots must be received the Pennsylvania Court when other than that, the problem is, the argument is being made that they're

not that. Under the US Constitution, the state legislature is the body that sets the rules for the selection of presidential electors, and they set a specific deadline for the receipt of S and T ballots, and so therefore, as a matter of US constitutional law, the Pennsylvania Supreme Court couldn't use its state constitution to you know, extend that deadline. That's the question that would go to the Supreme Court

if the case goes to the Supreme Court. My understanding and is that uh Biden is winning Pennsylvania without actually having to look at those later on ballots. Uh as you know, you may recall when the Supreme Court declined to intervene in Pennsylvania, the Pennsylvania a trainey general in the secretary that comwell right after that said we are going to keep any later arriving ballots separate so that if the Supreme Court does intervene, that we can we

can count these these question ballots separately. And if there's you know, and so it won't affect the ballot that did come in on time. And so, um, it's not one reason the Supreme Court might not take the case. But we don't know is it might not make a difference. The Trump campaign is asking for a recount in Wisconsin and possibly in Georgia. In most states are recounts triggered automatically when there's a certain margin between the two candidates.

Most states have an automatic recount rule, and sometimes it's one percent and sometimes it's a half of a percent. But certainly, right, certainly the numbers in Georgia are so close that uh, it would pass any rule for an automatic recount. So who pays for the recounts? Well, again, there are different states have different rules on this, and it actually turns on how close it is. So that if it's if it's very close, and I think the

state pays for it. If it's if it's uh, if the results are wider than a certain margin, and I think the party asking for the recount pays for it. As far as my research has taken me, there's never been a recount that resulted in more than a couple of hundred votes either way. Typically there is the numbers changed very narrowly. And as I recalled, there was a recount in Wisconsin four years ago when Trump won by about twenty votes, and the recount resulted in giving him

a hundred and thirty votes. More So, right now, the margin between Trump and Biden, it was conceivable that the numbers will move a little bit. But um, in the vast majority of recounts, the results don't change, especially with a margin as big as twenty thousands. Even in the bushbeg Gol litigation in Florida twenty years ago, I think um the margin. I think Bush's margin went from something like votes to something like uh votes uh five hundred

something votes. The numbers changed, but they changed by a few hundred um, even when they were six million votes cast. So would you character is all the lawsuits as nuisance lawsuits or something more than a nuisance lawsuit. I think they are legally, I think they're nuisance lawsuits. I think their purposes less about the law and more about public relations and about kind of maintaining um, the posture that

there's something wrong here. So far, all of them have either been dismissed or the one victory that I'm aware of was on a very very minor point that will have no effect on the income. But I think it's all about on a project of trying to cast doubt on the legitimacy of the election by filing as many lawsuits as they can as they can and maybe also

delay I mean the law. If they can delay the account, they can maintain this UH, the the the illusion that there's something wrong here and keep the turmoil going UM and maybe in the hope that something happens. But so far, UM, there is UH. The lawsuits have been pretty much baseless and on inciated UH. And the one time I think

they went a victory was on a fairly minor point. Now, speaking of casting doubt, what's your reaction to President Trump's statement on Thursday night that there were illegal ballots and the election was being stolen, and can you lend any credence to his claims, you know there since he presented no evidence, I think the answer is no. I mean, there have been um no evidence of a stunt, want to say, any illegal votes, but there's only been no evidence of any illegal any illegal votes that come even

remotely close to affecting the outcome in any state. I mean, I don't want to say that there was never any illegal votes cast on either side, but they have never um the camp, the Trump campaign has not come forward evidence of any number of illegal votes sufficient to affect the outcome in any state. CNN is reporting that Trump has told people he has no plans to in seed even if his path to victory appears to be blocked.

Is there any requirement or necessity for a president to concede. No, it's just a matter of courtesy and kind of the dignity of the system about a loser concedes. But no, he doesn't have to concede if he loses. Eventually, the each state will certify its results of the election, and the certified and the results a result in the the selection of a set of electors UH and on December those electors will vote UM, and on January six, those

electors votes to be officially counted in Congress. And there's not much he can do. There's nothing he can do about that. We've been talking about how you know, it's been taking a longer time for the states to count with all the mail in voting. But tell us about December eight than this safe Harvard deadline, and when we can stop being concerned about stay sending in different ballots

of electors. Right so under UM, Under there's something called the Electoral Count Act, which Congress passed in the late nineteenth century to deal with disputed elections. UM. Congress has promised that if a state completes all of completes its count and and declares a result, and does so under laws that existed before election day, if the state does all that by six days before its electors are scheduled to meet, the Congress has promised it will honor that result.

So UM, all the electors are scheduled to meet on December fourteen. That's the day Congress has set for the meeting of the Electoral College. So uh, six days before that is is December eight, And that's become known as the say harbor day. Um, if by December eight a state has resolved all the disputes that maybe maybe with respect to who on the presidential election of that state, and has declared you a certified winner, um, then the

Congress has promised to honor that result. So finally, just give me your thoughts about the election and the allegations of fraud. Has the integrity of the system, has the confidence in the system been damaged? Those are two different questions. I think actually the integrity the system has been maintained through the incredible work of state and county elections commissioners who have really been under incredible amounts of stress through

this whole process. That the shift to massive amounts of mail in balance is unprecedented, The attacks on the system are unprecedented. You know, the challenge to find poll workers and to run safe and sanitary polling stations is unprecedented. So I think, actually it's a rickety system. We need a better system. But in fact I think we are seeing that the system works. The elections offices rose incredibly

to the challenge. But has the legitimacy of the system been under my for sure, this relentless trumpeat of criticisms by the President and his allies. This consummates insistence that there's fraud. Surely many movies Americans have been persuaded that there's something wrong here, and that's the terrible thing. Thanks for being on the Bloomberg Law Show. Rich that's Richard Brofald,

a professor, Columbia Law School. The Trump campaign has filed lawsuits in the battleground states of Georgia, Nevada, Michigan, and Pennsylvania, and said it will seek a recount in Wisconsin. On Thursday night, President Trump once again alleged wide scale voter fraud and has stolen election without proof, and he promised continued legal action. If you count the legal votes, I easily win. If you count the illegal votes, they can

try to steal the election from us. Trump's lawsuits have had very limited sick says so far, none of alter the race is trajectory, and none of the remaining suits appear to be game changers. They're mainly focused on some aspects of the processing of mail in ballots, but not on enough ballots to alter the outcome of the race. Joining me as election law expert, Justin Levitt, a professor at Loyola Law School. How would you characterize these lawsuits by the Trump campaign? I would say some of them

look like they might have merit. The facts are a little bit hard to get your head around. Some of them look like they don't really have any merit at all. But all of them appeared to be over really minor procedural things like standing a bit closer when you can observe the count order, having you know, extra access to video feed that they didn't have before, or something like that. Nothing that seems too far in any way meaningfully infuence the integrity of the count or in any way indicates

any sort of capacity to meaningfully change the results. So then, what's the strategy? You can look behind the lawsuits. What's the strategy of the Trump campaign here? It's hard to know. Part of it may be instinct. If a doctor would strike Donald Trump on the knee with a rubber mallet, he'd probably file a lawsuit. That's the auto response. Part of it may be that the President had tweeted we're going to litigate, and a bunch of people are now

scrambling to make better reality. That wouldn't be the first time that a tweet or a promise at a rally turned into some fairly chroxotic action. It might be that this is a mechanism to keep raising money. That would not be the first time that litigation, postal and litigation, even if it had no reasonable shot at winning, were

used as a fundraising device. And it might be just a contribution to the messaging of the day, an attempt to cast down on the legitim to the elections because there are all these lawsuits quote unquote, I want to say mostly observers who are looking at this don't think the lawsuits amount to much. But for the public he can say we filed suit in X number of places, and perhaps that further is the argument that he's attempting to make to deal with the lane to see election itself.

I don't think it's working, and I'm not quite sure what he pursued the endgame today. I can't think of any other reason other than those because the lawsuits, as is, not only don't they stand a chance of changing reself, they're not designed for that. So is there any problem in some of the lawsuits seeming to have a contradictory strategy where you're trying to stop the vote count in some of them, and you're trying to get a recount in other states. Is there a contradictory strategy that makes

a difference. The court certainly don't like inconsistent claims. Now, it might well be that in one state the allegation is that the count should stop ps there has to be a why behind that. You can't just march an important say stop the count. There's gotta be a reason, And there has been absolutely no reason to think that any of the should stop so far. State law requires that the ballots that arrives validly from valid voters be counted.

So I want to be abundantly clear. Just wandering in the court saying stop the count isn't a thing, and it's certainly not a thing the courts will listen to or have listened to. It might be that the facts, the different facts, facts different than what we have now, could theoretically lead to different actions in different states. The courts don't look at strategies, They look at what they

had in front of them. That said, it is difficult to discern what the strategy might be, and courts do care about saying inconsistent things in their own case or in similarly situated cases, and I haven't seen anything other than opportunism that amount to any sort of rationale about why different votes need to be counted in some places and not in others. And by the way, I don't think the courts are listening to the tweets. Arch of the Press two pr that the Trump is trying to generate.

Courts thus far this year has acted like courts. I haven't always agreed with them. Sometimes I think they get the law right. Sometimes I think they get a lot wrong. Sometimes I have a different impression of the facts than they may have. But the courts have been remarkably consistent the entire year at waving off claims that are no more than wild gesticulation, all caps, exclamation points. Judges have been acting like judges. That's what we expect. But I

think we should also expect that to continue. And so until there's a lawsuits that actually shows real facts that entitles the Trump campaign is some different outcome. I frankly don't think that the lawsuits are going to yield much. I want to talk about the some of the lawsuits and the allegations because there are several lawsuits in some sites that are complaining about as you mentioned, you know, the process for ballot observers or the way that ballot

observers are getting to observe the counting. Do they go very far after the count? I mean, can they come back and say, after the count is in and the state has been declared, well, we didn't get to watch this, so these don't count. No. The short version is you have to actually have evidence that the law was broken, that there was a statutory or constitutionalization that balance were not counted that should have been, or that that we're counted that should not have been. And simply I didn't

get to stand close enough. Isn't anything that actually jeopardizes the integrity of the any of the balance. And that's part of why I say some of these cases on their own merits are probably worthwhile. If they've been excluded from a particular location that they have a right to be in, then a court maywell grant they're right to be in that location. But the simple fact that there's been a minor procedural slip up and who's allowed to

observe from where? And I want to be clear, I'm not sure in all of the cases that have been filed, because there has been slip ups. Some of the youth have been actually contested where the campaign has come in and said we're not allowed in the next place, and the city has said, you've been in next place for a couple of days, of course you're allowed there. It's fine. So I don't want to I don't want to assume the conclusion that just because they're saying it's been included,

that's actually true. But even if it were true, that doesn't actually impute the intevity the ballots themselves, and so that is not in fact going to be accepted by court. It's a reason to stop the count, change the results, or throughout any single ballots. In Georgia, they claim that a Republican pole observer in Chatham County witness late ballots being illegally added to a stack of on time absentee ballots. Would that they said may have and in those wiggle

roads is a lot of um meaning. So it is true that late ballots, ballots that arrived after the period designated by state law should not be counted um. It's also true that a handful of those who's not going to either change or incune the results as a whole um, But it is often the case that observers who arrive looking for ms conduct misinterpret what they see, and so I don't take as a given it might be that what they saw was somebody adding a ballot that should

not have been added. That is possible. But when you see in a lawsuit may have or possibly, what that often means is I saw something I didn't like and now going to make a maybe and that's something I didn't like me or may not be an actual factual

claim of LEO wrong joining. There are several suits in Pennsylvania, and the one that seemed to be most concerning for Democrats is the Trump campaign asking to intervene at the Supreme Court in the case that's already been at the Supreme Court involving Pennsylvania, adding some days to the time that ballots can get in and still be counted. Um and the sure. But so that is true, UM that the Supreme Court. There is a case in the Supreme Court,

and that makes that case particularly prominent. But I don't know that we know how many ballots are concerned in that case. And I have to say this really clearly, that case doesn't affect any ballot that was received by Tuesday not a one, So I don't know what the results are. We still haven't done all the counting again, but the most that that case could do is set aside ballots that had not arrived by Tuesday. And it might well be that the results of the election in

Pennsylvania doesn't turn on ballots arrived after tuesdays. I also want to ask you about this about the post office case, Judge Sullivan is said something like, you know, I want to get them in to be counted. Can those ballots still be counted? I mean, suppose they find the ballots and they get them to the election places, and in most states it's going to be too late, isn't it to get those In many states it will be too late. Now in some states it's not if the ballot was

postmarked um on time. Different states that you know, have different rules about when the ballots have to be received. We One of the things that I don't know, I think the Post Office may but hasn't been cleared from the dctification so far, is how many ballots we're talking about. We know there were several hundred thousand nationwide that weren't processed as of a couple of days before election day.

But that's very different thinking that there are a couple hundred thousand ballots outstanding, much less outstanding in any battleground states, much less outstanding in any of the battleground states where the deadlines already passed. Um, it may be a very small number that actually still remain in postal service custody. Ah in any way impacting a state that has a

deadline authority pass. I just don't know. Um. And so the significance of the post office case, I think turns quite a bit on how many ballots we're talking about. If it's a handful, it's not really gonna matter. Just in both sides set up legal war rooms to plan for a range of contingencies, and some leading law firms have been advising both the Trump and Biden campaigns. So what does it say that Rudy Giuliani, Trump's personal lawyer,

is the one out front on these lawsuits. I will say that of the many lawyers that the President has had involved in the White House and his personal capacity on his campaign, Rudy has not proven to be the most reliable um for the president or for the public. And so uh, and that's a shame thankly. It's this is quite a different turn from his turn as Mayor of New York from his turn as the U S Attorney. Um I would say of late uh, it's not his legal acumen that most people are noticing when Rudy goes

on TV or appears important. Um So, I think that that doesn't necessarily reflect the quality or skill of other lawyers who may be working for the campaign. But I will say that the lawsuits the campaign has filed has been of markedly mixed quality. I don't know whether that's Rudy or somebody else, but again, I haven't seen anything from the campaign that would indicates a lawstoot at the moment likely to change any of the results in any of the states that still have results that are unclear.

That's Justin Levitt of Loyola Law School. And that's it for the edition of the Bloomberg Law Show. And remember you could always get the latest legal news on our Bloomberg Law Podcast. You can find them on iTunes, SoundCloud, or Bloomberg dot com slash podcast Slash Law. I'm June Grasso. Thanks so much for joining us, and please tune into the Bloomberg Law Show every weeknight. Attend PM Eastern right here on Bloomberg Radio