Title: The Ramifications for Illegally Contesting Election Results

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Here we are on Election Day, in case you hadn't noticed. Thank you, Captain Obvious. Many of you have already voted. If you haven't yet in the Tri-State area, the polls are open until eight o'clock in New Jersey and Connecticut, until nine o'clock in New York.

For those of you who'll be watching or listening to election returns tonight, our live coverage begins at seven o'clock here on WNYC. Obviously, many TV channels have it too. Seven o'clock is when the polls close in the first swing state, that's Georgia, followed closely by North Carolina, another key swing state, at 7:30. At eight o'clock there's Michigan and Pennsylvania. That's a really big hour if they have early projections of how close the exit polls are running. At nine o'clock, here come Arizona and Wisconsin. The last of the swing states, Nevada, closes at ten o'clock Eastern Time, unless you count Alaska at midnight, which I'll tell you about in a minute.

The bottom line among the seven generally listed swing states, Georgia at seven o'clock, North Carolina 7:30, Michigan and Pennsylvania at 8:00, Arizona and Wisconsin at 9:00, Nevada at 10:00. If you want to go to the next level on this, there are several states that are not considered swing states exactly, but not considered completely automatic either. Here are some states to watch early on to see if a surprise landslide or altered map might be taking shape.

At seven o'clock, the polls close in Virginia. That's been a blue state in recent presidential elections, but it's seen as lighter blue this year. It's actually coded in that color, lighter blue, on the authoritative website 270toWin. Trump did campaign in Virginia on Saturday in his final week swing. Definitely watch Virginia starting at seven o'clock. Another one like that is New Hampshire, where the Polls close at 8:00. At nine o'clock, New Mexico and Minnesota, light blue as well, on 270toWin, but still likely for Harris, especially Minnesota, with the state's popular governor, Tim Walz, on her ticket.

On the other side, there are several really interesting light red states that could possibly tip to Harris. There's Ohio closing at 7:30. Definitely watch Florida. Last polls there closed at eight o'clock, which has a big abortion rights referendum that could drive many Democrats to the polls. Texas at nine o'clock has a closer race than in past years. A strong challenge to Senator Ted Cruz there is one reason. Harris did make a campaign appearance in Texas during the home stretch recently for her.

Here's a big sleeper state also closing at nine o'clock, Iowa. Maybe you've heard the new news from there. The final Des Moines Register poll over the weekend, very respected poll, had Harris up by a little. That was not supposed to happen in Republican Iowa. Look for Iowa closing at nine o'clock as a potentially very interesting bellwether. Finally, Alaska. I said I'd get back to Alaska. Republican Alaska has also shown a glimmer of hope for Kamala Harris in some polls since she got the nomination and is coded light red, like the others I mentioned, on 270toWin. For those of you with lots of stamina or who don't have to wake up early on Wednesday like I do, voting ends in Alaska at midnight.

There's a little viewers' guide, listeners' guide to the seven known swing states and other maybe newsworthy states. Break out the popcorn and have the anti-anxiety meds close at hand.

Now, here's the big double standard so many people are bracing for tonight, and for who knows how long. If Trump wins the election, Harris is expected to concede and move on. If Harris wins, everyone expects Trump to declare victory anyway and falsely claim the election was stolen, and maybe trigger another attempt at insurrection or other post-election violence. The New York Times and Wall Street Journal both had stories in the last few days about how the Proud Boys have regrouped after their role in January 6th to prepare for the aftermath of this Election Day, as well as Election Day itself. Watch out, poll workers.

In his rallies during the home stretch, Trump himself, more than earlier in the campaign, has been laying the groundwork again to claim the election was rigged, even though he's now under federal indictment for illegally trying to overturn the election in 2020. Listen.

Trump: "They want to lock you up. They want to put you in jail. The ones that should be locked up are the ones that cheat on these horrible elections that we go through in our country."

Brian Lehrer: That was Trump on Sunday, and that's just one example of his recent claims that this election is being rigged. There are already many court challenges attempting to disqualify votes that have been cast or will be cast. Let's turn to Elie Honig, senior legal analyst at CNN, New York Magazine columnist, former New Jersey and federal prosecutor, and author of the book Untouchable: How Powerful People Get Away With It. He also has a New York Magazine piece published on Friday called "Thinking of Contesting the 2024 Election? Here's Some Advice."

Elie, always good to have you. I'm sure CNN will be needing you a lot this week, so thanks for making some time for us.

Elie: Yes, Brian, I will be break-glassing in case of emergency, like the one you just outlined, in case this winds up in the courts, which I think a lot of people are resigned to. I guess we all hope not. Right? Let's just hope this thing gets resolved at the ballot box and not in the courts and I will not need to be on air, but we'll see.

Brian Lehrer: Well, it's already in the courts, and I'm going to ask you about a few particular suits that are already wending their way through. Before we get to that, you heard the clip. There are so many others like it from the past week that we could play. It's one thing to claim fraud at a rally before the polls close, it's another thing to make the claim in court, as Trump found out 60-something times in 2020. If Harris is declared the winner of this election, what might you expect the first Trump post-election legal move to be?

Elie: Well, I do think if it's remotely close, there will be a direct relationship between the closeness of any potential Harris win and the amount, ferocity, and intensity of challenges that we'll see. Let's assume it's a fairly close result. I do expect, I think everyone expects, Donald Trump's team to file a series of challenges. Those could take any form. I mean, they could take the form of arguing that certain procedures were not followed in the way ballots were counted. If they're anything like 2020, they might allege fraud, and they will probably be as unsuccessful as they were in 2020. 61 out of 62 cases were thrown out of the courts or dismissed or defeated.

Look, there's a legitimate side and illegitimate side. This is what I try to do in the New York Magazine piece. I say, if you're interested in contesting the election, there are ways to do that. Most states have some sort of recount provision. Some of them are triggered automatically. Some of them have to be by request of the parties. Sometimes it depends on what the margin is. Some states also have audit provisions where you can request, but this is after the fact. This isn't intended to weigh the result, but to go back and make sure that all the systems operated as they should have. Those are the legitimate ways to contest the election.

I think the illegitimate way is, number one, let's look at 2020, is to fabricate evidence of fraud or to make unsupported claims of voter fraud. Just because you put it in a legal document doesn't give it heck. That's where they ran into problems and beyond problems in 2020. That's where they created problems, Trump and his supporters, for the country in 2020, and that's where a lot of them got themselves in trouble. A lot of the folks who were involved in those bogus lawsuits ended up getting indicted or disbarred or sued and hit with enormous civil judgments.

It's impossible to tell what the basis of attack will be, but I think both sides are ready to make and defend against attacks on all different levels.

Brian Lehrer: Now, I mentioned there are already lawsuits underway or that have already been decided even. Here's an example, and we're going to get a little into the weeds on one or two of these. You'll tell me how much detail you can answer them in, but I think it's going to be interesting for our listeners.

There's a Trump suit in Georgia to disqualify absentee ballots that were delivered by hand over the weekend by voters in Democratic-leaning counties. My understanding is that a Georgia state judge has already ruled that that's okay. Mail-in ballots can be delivered by actually mailing them in or they can be hand delivered to the election office up through Election Day. The Trump side claim was that the election officers shouldn't have been allowed to accept them over the weekend after the early in-person voting period had ended I guess on Friday. The argument was they had to stop accepting them from the weekend until Election Day today.

That's a very specific way to disqualify votes that lost in state court, but now the Trump people are trying to make the same claim in federal court. Elie, have you seen this story, and do you have any take on whether it could go differently in federal court when it's the same argument based on a state law?

Elie: There's almost no way it goes differently in a federal court. Now look, you could always draw one district judge, one federal trial-level judge who's maybe sympathetic or political, but ultimately it's subject to the appeals process. I don't think there's much, if any chance at all, of succeeding in federal court. First of all, it's really important that people understand we do not have a unified federal institution that administers elections. Our elections are splintered intentionally over each of the states, and then within the states by the counties. The federal courts, as a general matter, are not going to get involved in overturning state court determinations of what each state allows, requires and prohibits.

Each state does have very nuanced, very specific rules about mail-in ballots and dating and post-dating and what has to be on the envelope and can drop, but as you were saying with Georgia, can mail-in ballots be handed in on the weekends? Looking at that suit, there's nothing in Georgia law that I saw that prohibits the collection of ballots on the weekends. It's a common-sense measure. As you said, it was thrown out of state court, and I think there is no chance of a different outcome in the federal courts. Again, just putting aside the possibility that sometimes you draw a federal judge who's out on a limb, but then that can be corrected on appeal.

Brian Lehrer: Yes. Just one other thing on that suit before we move on to a couple of others. I also read that some Republican-leaning counties offered the same drop-off acceptance policy, but the lawsuit only mentions Democratic-leaning counties. This is definitely in the legal history weeds. Elie, correct me if I'm wrong. Wasn't the basis of the infamous Bush v. Gore Supreme Court ruling in 2000 that recounts had to be conducted in every county to treat every voter equally when Gore was only trying to have recounts done in counties he disputed?

Elie: That was definitely an element of the 2000 dispute even before it got to the Supreme Court. Where the Democrats only wanted certain counties counted, the Republicans only wanted certain counties counted. I think the Democrats were more willing to vouch for a statewide recount. Ultimately the Supreme Court basically stepped in on the-- This is why this decision was-- There's a lot of reasons it was so controversial, but it was 5-4, with the five conservatives essentially who-- Ordinarily conservatives are in favor of states' rights saying no, no, no, it doesn't matter what the Florida courts decided, we're going to stop this recount.

The Democrats, in a body-switching moment said, "Well states' rights should really prevail here. Florida should be able to decide what it wants to do with respect to its own recounts." The US Supreme Court stepped in, ended the recounts, and that's how that case ultimately resolved. You're absolutely right, Brian. There was an element of that cherry-picking of favorable counties or jurisdictions in 2000, and I fully expect to see that here probably from both sides. Look, this is a zero-sum game here. They want to win. They're not trying to do justice in any broader sense. You're going to want the votes from counties you like counted and the votes from counties you don't like thrown out.

You are right. Republicans have been much more aggressive in that cherry-picking, certainly in 2000. Democrats didn't contest anything really in 2000.

Brian Lehrer: Now, listeners, throughout the show this morning, we're inviting your Election Day calls on any race or ballot question that you've decided how to vote on in the last week. or any questions you have for our guests as we go. We'll have different guests in different portions of the show of course. 212-433-WNYC, 212-433-9692. Again, throughout the show this morning, we're inviting your Election Day calls on any race or ballot question you've decided how to vote on in the last week. We're looking for late deciders or any questions you have for our guests. 212-433-9692.

Any late deciders in the presidential race? Any questions for Elie Honig about the legal landscape now or the protections against the prospects for violence, which we will also get into. I assume poll workers can't call in now. We've had poll workers call us in the past, but today I guess you're all working. Anyone know any poll workers and want to describe how they're feeling or preparing or experiencing any intimidation? I mentioned The New York Times and Wall Street Journal articles indicating that the Proud Boys are mobilizing again. We'll get into some of the details of that. 212-433-WNYC, call or text. 212-433-9692, for Elie Honig, legal analyst for CNN and New York Magazine.

Elie, here's another Georgia case. This one did go Trump's way yesterday. Apparently, there were so many absentee ballot requests in Democratic-leaning Cobb County near Atlanta that many were sent out too late for the voters to return them by the usual deadline of seven o'clock tonight; seven o'clock on election night.

As Reuters reports, quoting from Reuters now, "Civil rights groups had sued last week seeking to extend the deadline, arguing that the county violated state law by failing to promptly send out about 3,000 absentee ballots. County officials said they were overwhelmed by a surge in requests. The Republican National Committee had argued that extending the deadline would violate state law." That from Reuters.

Then, Elie, one court ruled that those ballots should be accepted until Friday of this week, but the Georgia Supreme Court has now overruled that decision and the seven o'clock deadline tonight applies. Wow. Why might different levels of the court see that case differently?

Elie: Again, this is mostly going to play out on a very local basis. One really important legal principle to keep in mind when you're thinking about all these election cases is what lawyers call the Purcell principle, based off of a case from a few years ago. That principle is we, collectively, governments should not be changing the rules of the election too close to the election. Now, we are in the election.

Generally speaking, if you are a litigant in a lawsuit and your position is we need to tweak the rules, we need to extend the deadline, we need to shorten a deadline, we need to change access somehow, at this late point in the game you are fighting a very steep uphill legal battle. I think the result in that Georgia case is an example of that.

Brian Lehrer: That's over just 3,000 absentee ballots. Are these good examples or is that one a good example of the thin razor's edge of the law that could decide the outcome in any swing state as lawsuits get filed challenging a few thousand ballots here, a few thousand ballots there?

Elie: Yes. I think that's what we're going to see. I haven't seen a lawsuit out there that has the potential to swing hundreds of thousands of votes or maybe even tens of thousands of votes. We're generally going to be looking at the real far margins here. Scenarios like the ones you brought up where maybe the rule isn't clear. There's no specific rule that says you can collect by hand on the weekends or not. There have been disputes in Pennsylvania, one that the Supreme Court actually ended up siding with the Democrats on Friday night, 9-0, allowing people who send in faulty mail votes to still cast provisional votes at the ballot box today.

It's hard to tell how many that is, but I saw estimates that that would be 1,000 or 2,000 votes. But then if you're looking at the margins, look, the Florida 2000 scenario was infamously 537 votes. That was the margin between George W. Bush and Al Gore, and that decided the presidency. I think both campaigns here have decided correctly and wisely that they need to fight for every vote, every hundred votes, every thousand votes.

Brian Lehrer: Here's another one from Pennsylvania that's actually much bigger. This is from USA Today, published on Friday. The headline, "Activist group targeting swing states sues Pennsylvania over more than 270,000 voter registrations." I'll read the beginning of this article from USA Today.

It says, "A Florida based group is questioning the eligibility of more than 277,000 Pennsylvania voters in a new federal lawsuit, part of a multistate push to challenge the voter rolls ahead of the presidential election. The lawsuit filed Tuesday," Tuesday of last week, "against Pennsylvania Secretary of State Al Schmidt suggests that many of these registrations should have been purged from the rolls years ago and asked the federal judge to compel the commonwealth to hand over voter records it's seeking."

Any thought on that? Are you even aware of that one?

Elie: Yes. I think there are going to be two issues there. First is just the facts. Do the facts actually match up? Are they going to be able to show that the people, these challengers, these litigants, who they say should have been purged from the rolls actually should have been purged from the rolls? That's burden number one they're going to bear. Burden number two that they're going to bear legally is what we just talked about. That they're raising a lawsuit while early balloting is a week ago. While early balloting was already underway a week before the election.

If you wait that long to go and seek some sort of sweeping change to the way voters are registered or votes are counted or voting happens, then again, back to that Purcell principle, you're fighting an uphill battle. It's hard to predict how these things go, but I see two big obstacles there. Look, if we look back to 2020, Brian, we now know part of Trump's strategy and the strategy of his supporters was not so much let's get the results flipped, let's convince this one state to switch it from blue to red, although they did try some of that. Really the core strategy was let's just try to create chaos, confusion and delay.

If we can do that, maybe we can get a state or two to hesitate on certifying and then maybe nobody gets to the 270 electoral votes, and then maybe we get to throw this over to the House of Representatives. That was part of the strategy that Trump's team used in 2020, and I expect them to try something similar this time as well.

Brian Lehrer: Since this was in Pennsylvania, do you expect Pennsylvania to be the locus of many legal battles? Have you keyed on Pennsylvania generally that way? I gather that more than 40 of the 60-plus suits in 2020 were in that one all-important battleground state, and we know how important everybody says Pennsylvania is.

Elie: Yes. Pennsylvania is number one by far because it's probably the most important state. The polls have it as a toss-up. I think Georgia, those are the two spots that we need to watch the most.

Brian Lehrer: Let's take a phone call. Bonnie in Bergen County, you're on WNYC with Elie Honig. Hi, Bonnie.

Bonnie: Good morning, Brian. Good morning, Elie.

Elie: Hi there.

Bonnie: My question is, of the 61 lawsuits that were brought about in the last election and heard by judges, the outcome was not favorable for Trump. What is the likelihood that those judges are still in place and might be called upon to hear the current lawsuits?

Elie: Good question, Bonnie. Where the lawsuits land depend, first of all, on where they're filed. I think it's really important when we look back at those 62 cases that were filed in 2020, those cases were rejected by judges across the ideological board. It didn't matter if they were elected without a partisan affiliation, as some states do with their judges. It didn't matter if they were elected as Democrats, Republicans, appointed by Democrats, appointed by Republicans, state judges, federal judges, trial-level judges, appellate judges. It was one of the rare moments of true cross ideological, cross partisan agreement that there was just nothing to those lawsuits.

Mathematically, it certainly could be that if we see lawsuits filed in the same place, some of the same judges could wind up with similar election lawsuits back on their plates, but it totally depends on where the cases are filed. By the way, I should say another factor that's going to make these lawsuits difficult is a person has to have what we call standing. A lot of the 2020 lawsuits were thrown out by judges because the person bringing the suit doesn't have the ability, can't show that they suffered some legally cognizable harm.

It's not the case that just anybody can sue for anything that bothers them. You have to be able to show that you, the plaintiff, the person bringing the lawsuit, suffered a harm that the law recognizes. That's another obstacle that challengers will have to overcome.

Brian Lehrer: We'll continue in a minute with CNN and New York Magazine legal analyst Elie Honig. Your calls and texts, 212-433-WNYC on this Election Day 2024.

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Brian Lehrer: Brian Lehrer on WNYC. We're talking in this segment mostly about preparations for false claims of election fraud, as Trump has already been setting the stage for in his recent rallies, like when he said this over the weekend, and where else? Pennsylvania.

Trump: "I don't know what's going to happen, but for future elections, I won't be even a part of it. But you ought to damn well go to paper ballots, you ought to go to voter ID, and you ought to have the election all by nine o'clock. I'm hearing now they're going to take weeks. Can you imagine?"

Brian Lehrer: Elie, I realize you're a legal analyst, not a political analyst, but any thoughts on what a claim like that accomplishes if it's not based on anything that can hold up in court?

Elie: One of the points that I made in my article for New York Magazine that you referenced, it was really-- My original proposed title, I'll give you a little behind the scenes, was how not to contest the 2024 election, and I think they didn't want any. There's a little bit of sarcasm in it. They wanted to be a little more straightforward in the title, and they just changed it to "How to properly contest," which is asking for recounts and that thing. One of the points I made is the people, the lawyers who filed these lawsuits in 2020, they didn't just lose, they suffered real consequences. I guess all I can say is I hope that that people remember those consequences.

A lot of those lawyers-- Rudy Giuliani hit for the trifecta. Because he went into court and made false claims, knowingly made false claims of election fraud, he was disbarred. He's lost his law license, I think, from multiple jurisdictions now. He was sued for things he said publicly about election workers, hit with $148 million verdict, and he's been indicted in Georgia for being part of this effort to spread conspiracy theories. Not just conspiracy theories in the general context, but in the criminal context. There are real consequences that attach to this.

If anyone's going to go into court alleging fraud, they better have the goods. Just attaching a link to some wild YouTube page is not going to do it. They did not have the goods in 2020. There's no evidence right now that there's been any sort of voter fraud beyond just the most infinitesimal examples. Historically, no one's ever been able to find evidence of widespread voter fraud. I view that type of lawsuit just inherently with a very skeptical eye from the start.

Brian Lehrer: Joe in Brooklyn has a question about that, I think. Joe, you're on WNYC. Hello. Is Joe in Brooklyn there? Joe, once.

Joe: Hello.

Brian Lehrer: Hi, Joe. Is that you?

Joe: Yes.

Elie: We got you, Joe.

Brian Lehrer: Do I have the right caller? Are you Joe in Brooklyn?

Joe: Yes. My question is, you were stating before about that Trump is already starting to put in claims about fraud in the election, and he's saying that he's-- My question is not about Trump or about 2020 or 2024. My question is in the future. If there would be any fraud, and the way you were talking about it before, that it's for sure going to be thrown away, if it would ever be any fraud-- I'm talking metaphoric, and I'm asking a question. If there would be ever fraud, how would people know-- You're talking now like that he's for sure-- He's destroying a-- It's for sure false claims.

Brian Lehrer: I think I know what you're trying to get at, Joe, and it's a good question. I think that the premise of Elie's answers has been if they are false claims or fraud, he's confident they'll be thrown out. How would they prove election fraud? I mean, one of the things about all those suits that Trump lost in 2020 was that they really never even tried to present evidence, because they didn't have any, of widespread election fraud that would flip a state. They were all on these procedural things, like the ones we've been talking about today, which group of absentee ballots should be counted and things like that.

Elie: There have been cases where election fraud has been proved. People have been charged with the crime of election fraud. It's happened across various states in tiny numbers. A few dozen cases, maybe total, over the last few years, so it's not impossible to prove it. You can prove it. It does happen. There's a couple problems. One is proving that it happens in anywhere near enough numbers that it could possibly flip a result. We've never seen any evidence of fraud anywhere at enough of a volume that could possibly flip a vote.

Then separately, there's a legal question about, well, what happens if, let's say, a state is decided by 500 votes and there's concrete proof of a thousand votes cast by fraud. We as a country are very, very reluctant to-- we don't rerun elections generally. We don't do do-overs when it comes to elections. If that were to ever play out that way, gosh, that would be a nightmare scenario. I don't think the courts know exactly what they would do. Do the courts even have the power to order a new election? That's a hypothetical scenario that we've never even approached just as a practical, mathematical question.

Brian Lehrer: Joe, thank you for your call. In your article in New York Magazine called "Thinking of contesting the 2024 election? Here is some advice," that slightly sarcastic headline. As you were saying, you wanted an even more sarcastic headline.

Elie: Yes.

Brian Lehrer: In that article you point out that campaigns can request official recounts in many states, and in some cases request audits. Can you explain the difference between a recount and an audit? Because I think we heard a lot from the Trump side in 2020 wanting more audits to go on than states actually conducted.

Elie: Good question. A recount is what it sounds like. It's a recounting of the votes. Again, most states have some sort of recount provision. In some states it's automatic if the margin is 0.5% or less. In other states the numbers are slightly different. In some states you can request it. There's actually a wrinkle that I like, which is if you're the party that requests a recount and you lose again, you have to pay for it, which I think is a little bit of a disincentive. That's what a recount is. I think everyone's familiar with the concept. They rarely change the out--

I think there have been a couple of instances in US history - not presidential, lower offices - where an outcome is flipped based on recount, but it's extraordinarily rare. Separately, there's an audit. What exactly an audit is can vary by state, but it basically means can we go back and make sure that our systems were working. That our technology was functioning that our equipment was valid, that our procedures were followed? It's the same way you might audit a business, not necessarily for tax purposes, but it's a post mortem look back.

One of the points I make in the article is these happen after the fact, first of all. That is definitionally what an audit is. Also, there's not a do-it-yourself option for an audit, and we did see some of that. In Georgia, part of the criminal case related to this group of local officials and Republican Party officials, low level, county level, who basically tried to do it themselves, who tried to break into a machine, I said don't try to break into any machines. Don't hack in. Don't use a hammer and a screwdriver to go into any machines. Leave it to the official authorities to do any audit that might be warranted under the law.

Brian Lehrer: I can't believe we're sitting here on the radio in 2024 actually warning people not to take it upon themselves to go into a voting machine with a screwdriver.

Elie: Well, it's a good lesson to reiterate, [chuckles] but I agree it's a sounds a little strange to say it out loud. Do not break into voting machines, and that includes local elected officials, unless you are authorized to do so by law and instructed to do so.

Brian Lehrer: Here's an interesting text message. I haven't heard of anything like this myself. Tell me if you have.

Elie: Yes.

Brian Lehrer: Listener writes, "A friend who lives in Paris and votes overseas sent this message in a group chat I'm in about having her legitimate Pennsylvania vote challenged by a senator and needing to go to a hearing in Pennsylvania on Friday. Anyone here a Pennsylvania voter?" the listener asks.

It says, "We got notified last night that a state senator was challenging our eligibility to vote, and that we have to face an administrative hearing on Friday. I've contacted everyone I could think of, and along the way learned that 4,000 overseas voters across 10 counties," maybe that's 10 countries, "were challenged. If you also received such a notice, contact me and I can point you to how to report the frivolous challenge."

Does that sound like anything you recognize?

Elie: No, it doesn't. I'm not saying it's impossible. I guess if I was in the person-who-wrote-that's shoes, I would probably be quite skeptical of there being some hearing, but it's not impossible. Who knows who's generating this notice? I suspect it might be the party on the other side that's challenging, maybe speculating, as to where this might go rather than there is a hearing definitely scheduled. Yes, I've not heard of that particular scenario.

Brian Lehrer: That one has the ring, to me, on first blush of a money scam. Like somebody sets that up and then they say, "Oh, well. We can help get you an airline ticket. Just give us $1,000

Elie: Yes. Or you can waive your appearance for $50. Right. I don't know. I'm speculating a little bit. My prosecutor antenna is up a little bit on that one.

Brian Lehrer: You also wrote in your article, "I'll assume nobody is thinking of storming anything," another sarcastic line.

Elie: Yes.

Brian Lehrer: That may or may not be true that nobody is thinking of storming anything, given what The Times and Wall Street Journal have been writing about the Proud Boys. Your Premise is there have been more than a thousand criminal prosecutions of people who did storm the Capitol on January 6th. Have those prosecutions been succeeding - remind us - and people getting prison time?

Elie: Yes By and large they've been succeeding in the sense that they've almost all resulted in guilty pleas or convictions at trials. I'm not sure anyone's actually been acquitted at a trial, found not guilty-

Brian Lehrer: Ha.

Elie: -who was charged with something relating to the Capitol riots. I do think it's worth crediting DOJ here. Look, I've been critical of the Justice Department in various respects, Merrick Garland and Jack Smith both at various times, but the DOJ by and large has done an outstanding job. We're so focused on the Trump prosecutions. If we step back and look at the prosecutions of the people who physically stormed the Capitol, DOJ has done an outstanding job prosecutorily of getting a huge number of those cases charged. Several hundred of them have resulted in non-prison sentences.

There have been a few federal judges who've raised an eyebrow and suggested that maybe DOJ was going too light on some of the rioters, but there are examples. There are hundreds upon hundreds of examples, I cite a couple in the article, of people who've been given three years, five years in prison. I would hope that that would dissuade and deter anyone who's even considering participating in any sort of violent attack or demonstration. One of the goals of prosecutors in courts is deterrence. I hope maybe that's a bit of a wake-up call now, what an extremist group like the Proud Boys is going to do.

I'm certainly not going to vouch for them, but I think it's worth reminding them, or anyone thinking like them, that Oath Keepers and Proud Boys were prosecuted and hit with some of the heaviest sentences that came out of the January 6th prosecution. Some of them were even convicted of sedition or seditious conspiracy. Anyone who's planning on doing anything violent or anything obstructive has fair warning that you will be prosecuted and in all likelihood convicted and sentenced to prison.

Brian Lehrer: Of course, Trump calls those people hostages, and if he's elected, he might pardon all of them. Despite the deterrence that you were just describing, reasons for people to feel deterred or wary about participating in anything like that, let me read you a little, and read everybody a little, from these New York Times and Wall Street Journal articles on the Proud Boys the last few days. The Times says, for example-- this is a quote from a post from an Ohio chapter of the Proud Boys. It says, "The day is fast approaching when fence-sitting will no longer be possible. You will either stand with the resistance or take a knee and willingly accept the yoke of tyranny and oppression."

That's from The Times. The Wall Street Journal article says, for example, "A Texas Proud Boys chapter's Telegram account recently shared a post alleging a Democratic conspiracy to install Vice President Kamala Harris as president through, 'millions of fake ballots.'" Replied a commenter pictured with a Proud Boys flag in the background, "We can shoot them then, right." Another one in the Journal, it says, "The North Phoenix Proud Boys posted a picture of a gun arsenal on Truth Social last month declaring Proud Boys stocking up, getting ready for November. It's going to be bigly."

Elie, maybe they're not all dissuaded by those hundreds of convictions. Are you aware of legal protections for poll workers today and this week facing possible intimidation today from groups like those? Things maybe that haven't been seen in the past exactly?

Elie: Yes. First of all, the catch with deterrence is it requires some rationality in order to work, which I guess you could question whether that's in effect here. There are broad protections for poll workers. I'm not saying they're perfect, but-- including the following. It is a crime in virtually every state and federally to attack or threaten a poll worker. DOJ always-- and they just issued their press release on this. DOJ always fans out across the country with law enforcement agents and prosecutors who are stationed at polling places to monitor and maintain security to that effect.

I know a lot of localities have beefed up security measures. Each locality has different rules about how close to a polling place you can protest or demonstrate or canvas. Usually you have to be however many feet away. I do think largely because of what happened in 2020, we are seeing beefed-up security measures and beefed-up awareness, and hopefully proactive activity by law enforcement. Like I said, I know DOJ has already made clear that we are going to have our people out there, and we're going to be watching and hopefully preventing any of this.

Brian Lehrer: One more legal question from a listener before we run out of time and switch guests and go on to another aspect of the election. Kenny in Manhattan, you're on WNYC with Elie Honig. Hi, Kenny.

Kenny: Hi, Brian. It's Kenny Shaffer. Long time. Elie, you said that election laws are governed by state law in the 50 states. This is not really a federal question. Isn't it the case that Bush v. Gore, exactly what happened is that the United States Supreme Court by a 5-4 vote substituted their interpretation of Florida law for the Florida Supreme Court and ordered them to stop counting. Isn't that a dangerous precedent now?

Elie: In a word, yes. I think I agree with everything you just said. Each state administers its own elections. The federal courts have long said that we are generally going to leave it up to state courts to interpret state law on state administered elections. That's not what happened in Bush v. Gore, which I think is part of its legacy. Its historically ugly legacy. I think you're exactly right.

As to the bigger question that I think the caller is getting at is are we going to see a repeat of the Bush v. Gore scenario? Of course anything's possible, but let me try to put that likelihood in proper perspective. Here's what we would need to see happen to get there. One, we would need essentially the election to come down to one state, which could happen for sure. We would also need a margin of victory for one party or the other that is very, very small. Again, in Florida, in 2000 it was 537.

We would then need a case to go up through the state courts, and we would need the Supreme Court to agree to take it in the first place, which it's not clear they would do. They don't have to take any case. Thus far, I think the Pennsylvania case that I spoke about earlier is the best indicator where there was a dispute about what the Pennsylvania Supreme Court had decided. Basically Democrats liked the Pennsylvania Supreme Court ruling, Republicans disliked it. It was a 4-3 ruling. I think a lot of people expected the Supreme Court would take it and reverse it 6-3 with the old conservative 6 and the liberal 3.

Instead, the Supreme Court, 9-0, said, "We're not taking this. This isn't for us. It's not an issue that we care to get into or need to get into, or that could really resolve anything anyway." You do need a sort of perfect storm. We had one 24 years ago. I'm not saying it's impossible that we have one today, but you'll hear Donald Trump say, "Get out there." I think he said this on election night 2020, "I'm taking this to the Supreme Court. We're going to the Supreme Court." Nobody gets to take anything to the Supreme Court. You don't get to go to the Supreme Court.

You usually have to start in the state courts and then ask the Supreme Court to take it, which the vast majority of the time they decline to do. The caller, you're right about why 2000 was such an outlier, and I think so easily attacked legally and politically. The odds that we end up back there, they're low, but I'm not going to say they're zero.

Brian Lehrer: I guess the bottom line - and Kenny, thank you for your call - as we run out of time, is there could be all kinds of shenanigans that somebody tries to pull after election night, but they're likely to be different from in 2020 because there are so many protections. The Electoral Count act was revised, which makes it harder for, say, the vice president, like Trump wanted Pence to do, to reject the electoral votes. All these legal precedents that have been set in those 60-plus cases that Trump lost in 2020. If there are some kind of legal shenanigans or extralegal shenanigans, they're probably going to be different than 2020, even though people are imagining something the same. No?

Elie: I think you're exactly right. The way that the election was challenged in 2020 was a blunt force instrument. You just saw people just saying, "Fraud. I don't know. Here's a link to some crazy thing I saw. Here's a printed-out article. Fraud." I think that the Republicans-- well, both sides, I will say, are much more legally prepared for this. We know that both sides have dozens of lawyers on staff. I think the Republican approach this time is going to be more focused, more targeted, more legalistic, more hopefully professional than it was last time. I'm not vouching for it, but last time you had a bunch of charlatan lawyers, Rudy Giuliani foremost among them, making outrageous claims.

This time they have real election lawyers, so I think we're going to see more procedural challenges than just bogus claims of fraud. I think you're right, Brian. It's very likely we will see legal challenges, but I think they're going to be different in nature than what we saw in 2020. That said, again, I don't give them much of a chance. I'm not saying it's impossible, but for all the reasons we discussed, including the principle that you can't change the rules once the game has already started, and given the principle that states generally get to interpret their own laws, and given the principle that we don't really do redos in elections, I think it's going to be tough to overturn anything.

You're right. I'm looking for a different animal than in 2020.

Brian Lehrer: Well, sounds like we'll be having many opportunities to see you in your real job as senior legal analyst at CNN. Elie Honig is also a New York Magazine columnist and a former New Jersey and federal prosecutor, as well as author of the book Untouchable: How Powerful People Get Away With It. We've been talking largely about his New York Magazine piece published on Friday called "Thinking of Contesting the 2024 Election? Here's some advice." Elie, thank you so much for all this time.

Elie: Thanks, Brian. I appreciate it. Great talking to you.

Brian Lehrer: Brian Lehrer on WNYC. Our Election Day coverage continues in a minute.

 

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