Washington Wednesday - Taking the election to court

MARY REICHARD, HOST: It’s Wednesday the 11th of November, 2020.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. First up: election lawsuits.

The Trump campaign has filed legal challenges over vote counting in Pennsylvania, Arizona, and Michigan. These are all states where Joe Biden leads the president by razor-thin margins.

Republican National Committee Chair Ronna McDaniel says evidence of problems in Michigan is mounting. Here she is talking to Fox Business Network’s Varney & Co.

MCDANIEL: We have 2,500 incident reports of irregularities at polling locations where people weren’t able to witness the process. But beyond that, we now have 131 affidavits. One from a whistleblower who states that they were told to backdate ballots by their supervisor and also everyone else in the facility was told to backdate ballots that would have been invalidated.

REICHARD: Democrats dismiss the lawsuits as political theater. They say the president is just delaying his inevitable defeat. But most Republicans support his right to keep fighting. Here’s Senate Majority Leader Mitch McConnell:

MCCONNELL: President Trump is 100 percent within his rights to look into allegations of irregularities and weigh his legal options.

EICHER: Senator Marsha Blackburn noted the last time a presidential race came down to the wire, it was Democrats who asked the courts to intervene.

BLACKBURN: In 2000, Al Gore spent 37 days exhausting every option. And President Donald Trump should also exhaust all options that are available to him. He is doing this to make certain that the votes that are legal are counted. That illegal votes are tossed out.

REICHARD: Well, it is Washington Wednesday. And joining us now to talk about the election legal fight is Marc Clauson. He’s a professor of history and law at Cedarville University, a Christian college in Ohio. Good morning, professor!

MARC CLAUSON, GUEST: Good morning. Hope you’re doing well.

REICHARD: I’m well, thanks for asking. Let’s talk about these challenges. Initially the Trump campaign sued over access to ballot counting by election observers. But now the legal challenges are focused on which ballots should be counted. Can you explain the legal grounds for these lawsuits?

CLAUSON: Yeah, actually they’re varied. There are at least three different grounds that they have for the lawsuits. One is the irregularities which may be because of technological problems—glitches by computers systems and so forth—to rectify that problem. The other would be simple fraud, that is tampering with ballots or some other activity that would be illegal under election law, committing fraud. The other would be an overreach of authority of government. That would be the Pennsylvania situation, where the Supreme Court of Pennsylvania actually ordered the ballots to be allowed three days after the election was over, even though the legislature had said that wasn’t to be the case. So, there are three different kinds of lawsuits going on. All of them eventually want some kind of recounting or investigation into fraud. So that’s kind of what it’s all about in a general kind of way.

REICHARD: Lower courts have already thrown out some of the initial challenges, right?

CLAUSON: Yeah, some of the lower district courts, lower courts in states, not surprising in most states where the election has—it’s sad to say—but in most states where the election has taken place in a state that voted for that candidate, the lower courts tend to vote for that state to uphold the state in its decisions. They can be appealed. Some of the big ones have not been thrown out. The Supreme Court even required that the votes in Pennsylvania that were allowed three days later should be sequestered, set apart, and the court may well hear that case.

REICHARD: Election 2000 is still fresh on the minds of many people. We heard Senator Marsha Blackburn mention it a moment ago. Remind us what happened there.

CLAUSON: Oh, in Florida, yeah. Well, what happened was in Broward County, Florida, they used the kind of punch card for voting and they found that these things were partly punched, double punched, not punched at all, and the Broward County Board of Elections began to count these ballots and they had a totally inconsistent approach to counting them. It tended to look like they were counting for one candidate or the other, predominantly, throwing out ballots that would support the opposite candidate. And finally there was a suit filed in that case. It made it all the way up to the Supreme Court that said just stop the counting because you’re not doing anything consistently. We can’t be sure we’ve had a fair election here. Stop counting. We’ll declare whoever the winner is right now as the winner of Broward County. Because he won Broward County, he won Florida. Because he won Florida, he won the Electoral College and became president. That was President Bush. That’s essentially what happened. It was one county determining the whole fate of the country.

REICHARD: Would you say the current court fight is fundamentally the same as the one waged in 2000?

CLAUSON: It’s a little different. We don’t have the hanging chad problem anymore, but we have some significant problems. And I would consider, I would actually say the overreach of authority might be the most significant. You’re talking right now of at least 127,000 ballots that have been sequestered in Pennsylvania and if those are thrown out, that means Pennsylvania likely goes to Trump. Now, that doesn’t give him the Electoral College. We still have North Carolina and Georgia, they’re having a recount there. Wisconsin, he’s asking for a recount there. Michigan has computer glitches and those might be significant enough that they can change the outcome. We don’t know that at this point, but we know that in some Michigan counties, the vote tallies were completely Democratic when they had always been Republican and they went back and checked and they said, “Nope, that’s a mistake.” We’ll see what happens there. Thirty-eight counties we’re talking about there. So, they’re different kinds of challenges. They all boil down to the same thing. There are irregularities. We need to correct this.

REICHARD: The legal challenge after the 2000 election involved just one state. President Trump is challenging the results in multiple states. Does that change the nature of the fight or how it might play out?

CLAUSON: Well, I think it just makes it more difficult for him. For one thing, the nature of the challenges is varied and so many states being involved, there’s a lot of possibility for the courts saying you just haven’t given us enough evidence to prove your fraud case or to prove your irregularities case. Or maybe to show us it made a difference at all. So he could still end up losing if he doesn’t win all of those. 

REICHARD: The president said early on that he expected the election would end up at the Supreme Court. Walk us through the steps these challenges will take to get there.

CLAUSON: Yeah, the first level is obviously the district court where you introduce evidence of your case—your legal theory as well as the facts you’re bringing to prove your case. If the court doesn’t accept the evidence as being sufficient, it will throw it out. If that happens, you can appeal. And you appeal to the circuit court. In the federal system you appeal to the circuit court and they’ll usually expedite it in cases like this. What usually may take weeks or even months, they may take in a period of a couple days in this case. If you lose there, if the Trump campaign loses there, he can appeal to the U.S. Supreme Court and the U.S. Supreme Court will expedite that. They’ll usually take it within a couple of days, what would have taken years. And it’ll be before the court, likely, within a week or two of now, right now, I would say. If it’s going to happen at all. Now, the other cases could wind their way up to the Supreme Court, too, but they’re on different legal theories than the Pennsylvania case, which looks like it’s on a track for the Supreme Court, if they take it, of course. They’re not required to take a case in situations like this, but they may believe it has such significance that they have to take it, even though they don’t really want to, I would say, politically speaking.

REICHARD: Finally can you speak, professor, to the legitimacy and the wisdom of election integrity? I mean all of these steps the president is going through seems very important to half the country.

CLAUSEN: Yeah, election integrity, I think, is crucial. If we don’t have confidence that our elections take place freely and completely fairly and openly, then we begin to lose confidence in the whole system itself. Our republican constitutional system begins to be undermined by just our attitudes. We lose faith in it. When we lose faith in it, we begin to actually practice our politics a little bit differently at that point and we begin to do things we wouldn’t have ordinarily done, even. There have been a lot of people, lately, who have said, “Are we even competent to do it? We could do this better than we have. What’s wrong with us?” It’s a real problem to not have complete integrity in your election process.

REICHARD: Marc Clauson is a professor of history and law at Cedarville University in Cedarville, Ohio. Thanks so much for joining us today!

CLAUSON: Thank you! Good to be with you.

(AP Photo/Alex Brandon) The sun rises behind the U.S. Supreme Court as arguments are heard about the Affordable Care Act, Tuesday, Nov. 10, 2020, in Washington.

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