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Brian Lehrer: Brian Lehrer on WNYC, and with the count heading apparently toward the election of Joe Biden, the Trump campaign's remaining path will probably be through the courts. They're filing multiple lawsuits. We'll talk about some of what appear to be the most important now and what they might mean short-term and longer-term, with WNYC, legal editor, Jami Floyd, and Ari Berman author of the book Give Me The Ballot is also a correspondent for Mother Jones. Hi, Jami. Hi, Ari.

Ari Berman: Hey, Brian. Thank you.

Jami Floyd: Hello.

Brian: To my untrained eye, the claims they're putting the most stock in seem to be about an alleged inability to meaningfully observe ballot counting in Pennsylvania and the residency status of about 10,000 voters in Nevada. Here's the president. I think we have a clip of the president last night on the observers' issue.

President Donald Trump: We were up by nearly 700,000 votes in Pennsylvania. I won Pennsylvania by a lot, and that gets whittled down to, I think they said, now we're up by 90,000 votes, and they'll keep coming and coming and coming. They find them all over, and they don't want us to have any observers. Although we won a court case, the judge said you have to have observers, and they're appealing. Actually they're appealing. We want a case that we want people to watch and we want observers, and they're actually appealing, which is sort of interesting. I wonder why they'd appeal.

Brian: Stating at the beginning of that clip that he won Pennsylvania by a lot is obviously made up. Jami, what's this about with respect to the observers and what would they have to prove in court?

Jami: Brian, I have to couch everything I'm about to say today in this segment with an overview. The Trump team has filed a flurry of lawsuits across the country including in the states mentioned there in which the vote counting continues, but their litigation is really based on unsupported allegations about fraud and irregularities in this election. Unsupported allegations. All right.

Now that I've said that, we can drill down on what they filed and whether they stand a chance in court getting to your ultimate question, what do they have to prove? There's Pennsylvania, which we'll start there, and then we can talk about any other states if you'd like. In Pennsylvania, which has the critical 20 electoral votes as my grandmother used to say, it's the whole kit and caboodle for Biden if he wins it, and Trump knows it.

On Tuesday and Wednesday, Trump was ahead slowly Biden closed in on his lead. The state had 3.1 million mail-in ballots, and those take time to count. By court order the ballots can be received and counted even if they were postmarked by election day, November 3rd, which, Brian, gets us to your question, the lawsuit. The president's team is suing there to stop the counting in Pennsylvania citing that timing for the counting mail-in ballots that came in after election day.

Brian, you and I, you remember, talked about this vote counting in Pennsylvania, the Republicans went to state court, they went to federal court. They went to the Supreme Court on this issue and they lost in every venue. Then when the justices ruled last week, they left the door wide open for amended complaints. Low and behold, Rudy Giuliani and his team walked right through that wide open door, and on Wednesday America's mayor dropped into Philly to complain this time about the process and the manner of observation.

Brian, the law in Pennsylvania is very clear where one can stand when observing the count and how challenges are made and who gets to make them. They filed a new suit or they amended their complaint really with the president's margin shrinking and more mail-in ballots being counted and it's starting to look good for Joe Biden. The president is just not being truthful there when he says they won in Pennsylvania, that's not what happened.

After the election, a federal judge said, "Listen, people, if you want to talk about the observation of this counting, go over there and negotiate the observation for the counting." There's nothing in Pennsylvania law that gives Rudy or Republicans the right to observe the counting, work it out. That's what's going on. There's not really an official ruling for the Trump team and the counting, most significantly, the counting continues. They did not win on that count. As for what they have to prove, Brian, short answer, facts. They have to come into court with evidence, and I'll leave it there. We can talk more about the other states, the other cases and the evidence or lack thereof in these lawsuits.

Brian: Before I bring in Ari, when the president said in that clip that the Democrats are appealing a ruling having to do with these observers that went the Trump campaign's way, and he said, "Oh, isn't that interesting that they're appealing that ruling?" Suggesting what if they got to hide on these ballots. Is there a democratic Biden campaign appeal of a ruling that went Trump's way, and if so, what is it?

Jami: The Biden team, before election day, not surprisingly, became very well organized on the legal front. There is a very broad and deep bench of lawyers prepared to tangle with the Trump litigation team and strategy, but in terms of a formal ruling from the judge, and it's a federal judge who's assigned to watch over this process, it's not the same as going into federal court, there isn't an official appeal being brought yet by the Biden people from a ruling in this case, that's not exactly what happened.

The judge has said, "Go over there and work it out." Essentially, yes, the Trump people are being permitted to stand a little closer and watch what's going on. The way it works in Pennsylvania, Brian, the partisan observers, the Democrats and the Republicans don't get to look at each ballot and say, "Oh, no, no, no, no, that signature doesn't match, throw that one out." That's not how it works.

Brian: Why not?

Jami: Because they're partisan. [laughs] In Pennsylvania, there are people assigned to this counting process, and it doesn't include Rudy Giuliani and his team, or for that matter, anyone on the Biden team. They can observe to make sure that the process is going efficiently, effectively and in a non-partisan fashion, but they themselves cannot be engaged in deciding which ballots to count and which ballots to throw out.

Brian: Ari Berman, author of Give Me The Ballot, let me bring you in on this, because I feel like from watching Fox News and other things, that this is really what they're hanging their legal challenge to the apparently coming election result on more than anything else, this question of the observers, and they can't know if there was election fraud in Pennsylvania.

For you, as somebody who's a journalist who covers voting rights and opposes voter suppression, if a close election were going in any direction, wouldn't that candidate who's losing want to make sure there is no voter fraud on those ballots? Even as a matter of course, without a specific suspicion about certain ones, by having observers from both parties look at each ballot.

Ari: Of course, Brian, but it's important to contextualize that there is absolutely no evidence of voter fraud in any of these states. President Trump is suing because he doesn't like the way the count is going, that he's losing the election, not because he's uncovered any evidence of voter fraud, and they keep making these ridiculous claims, but they don't provide any evidence to back them up, and so they're suing in Pennsylvania and Michigan and Georgia and Nevada and all these states to try to stop the count, but they've been completely unsuccessful so far.

Yesterday they lost three lawsuits, one in Pennsylvania, one in Michigan, one in Georgia, they're making claims. For example, they said in Georgia 53 ballots arrived after Election Day and shouldn't have been counted. In fact, those ballots arrived before Election Day and there was nothing wrong with them, and the lawsuit was thrown out. They said they weren't able to observe counting procedures in Michigan, but they were able to witness them, and the election was thrown out. There was an amazing [unintelligible 00:09:13].

Brian: The election was upheld. The lawsuit was thrown out because there was a false claim. They were able to observe the counting in Detroit.

Ari: They were able to observe the accounting in Detroit. There was a great exchange I want to read you between a judge in Pennsylvania and the Trump campaign. The Trump campaign wanted to stop the counting of ballots because they said Republican observers weren't present. I'm just going to read this exchange to you from Judge Paul Diamond. Diamond, "Are your observers in the counting room?" Trump campaign, "There's a non zero number of people in the room." Diamond, "I'm asking you as a member of the bar of this court, are people representing the Donald J. Trump for president representing the plaintiffs in that room?" Trump campaign lawyer, "Yes." Diamond, the federal judge, "I'm sorry, then what's your problem?" This was an actual exchange in court, Brian. They've been able to observe their process. I think we just need to re-emphasize this for your listeners. The only reason they are suing is because they are losing the election. They have not uncovered any evidence of fraud. There is no evidence of fraud, despite what the president said in his speech yesterday, which was one of the most dishonest speeches I've ever heard in American president give, when it's come time in court to present evidence of fraud, they have presented no evidence.

Jami: The irony is, he's been talking, Brian, as you and I know, and Ari as well, you and I have talked about now for four years, he's been talking about electoral fraud, but it's very rare in the United States. I believe the irony is, we'll only know in time that his voters, his supporters may not have voted by absentee ballot and may have depressed his vote because of his constant drumming away at this message that you should not vote by mail. That will be the ultimate irony if it comes to pass.

Brian: I guess we should say, as a matter of context, and for people with short memories, that after the 2016 election Trump claimed that he would have won the popular vote, which Hillary Clinton won by 3 million votes, were it not for 6 million votes of voter fraud. He empaneled the voter fraud commission to find those 6 million fraudulent votes, and they couldn't find anything and quietly slinked away, Ari. That's context.

Ari: Of course. That's the context. Trump has been making false claims about everything, but particularly voting since before he even won the election, I've never seen a candidate actually win an election and claim there was widespread fraud. You know of course that if he's losing the election, he was going to claim widespread fraud, but he's never been able to produce any evidence of it. There was a remarkable op-ed last week by Ben Ginsburg, the leading Republican elections lawyer for many, many, many years where he said voter fraud is the Loch Ness monster of the Republican party.

They keep talking about it, but they never actually find it. What President Trump is trying to do with these lawsuits, I don't think is actually trying to win them, because they're unlikely to succeed. As I said, three of them have already been thrown out. Even if they do succeed, they're not going to change the count. He's trying to use these losses as a vehicle to de-legitimize the election, to get his supporters really, really riled up to try to preserve his influence should he lose the election, to try to make it harder, to have a peaceful transfer of power, try to create chaos and uncertainty.

This is really not about the legal battle, because I don't think they're going to meaningfully win any of these cases, even if they were to go to the Supreme Court, for example, and the Supreme Court would have say ballots that were sent by Election Day but arrived after don't have to be counted. That's not going to change the count in Pennsylvania. None of these losses are going to actually change the results of the election. This election is effectively over and there was no widespread fraud. This is really a PR operation by the president, not a legal operation.

Brian: Jami, go ahead.

Jami: Before we move away from the rooms where these votes are being counted, I'm not in any of the rooms in Pennsylvania or Nevada or Michigan, but I have been in counting rooms before, including during the infamous Bush versus Gore recount, and I want to take a moment to commend the people who do the counting because it's exhausting. They are exacting. They want to get it right. They try to be and are, I believe, non-partisan in their efforts. It's been reported this time around that some of them are afraid for their safety and their families.

Every state has a different process. Officials here have been transparent. They've been giving updates on their progress, counting the ballots that have arrived within the limits set by their various state laws. As Ari says, Trump's objective is both to slow the process as much as possible with litigation in the key states, and to continue casting doubt on the results. Keying up his supporters who, by the way, are reportedly planning rallies in Philadelphia and Detroit and Phoenix and Atlanta and they're calling their rallies "Protect the vote," meaning, stop the count and monitor what's happening with vigilance and violence, if necessary.

Brian: With our legal editor, Jami Floyd and Ari Berman from Mother Jones, author of the book Give Me The Ballot. Let's move on to Nevada. The Trump campaign said it is filing a federal lawsuit in Las Vegas suing to stop the counting of what it calls "illegal votes" in Nevada, claiming to have evidence that people who are deceased and non-residents have cast ballots in the 2020 election. Here's Nevada Attorney General, Adam Laxalt, yesterday.

Adam Laxalt: We believe that there are dead voters that have been counted. We are also confident that there are thousands of people whose votes have been counted that have moved out of Clark County during the pandemic.

Brian: Jami, what's the legal argument there, and how would they have to prove that there are- the number I've heard that they're estimating is 10,000 illegal votes based mostly on the fact that people moved out more than 30 days before the election, which would make them not legal residents of Nevada?

Jami: Right. Okay. Again, Nevada matters because of the numbers Biden has been declared the winner there. He edged out Trump, however, by very small margin.

Brian: I think quite yet. I think he's been leading by a few thousands votes all the way long.

Jami: Ari, you're the man. What do you think?

Ari: Nevada hasn't been called yet, but almost all of the outstanding ballots are in Clark County where Las Vegas says, so the expectation is Biden will win the state, but it has not been called yet.

Jami: All right. I was just going to say the new numbers are from Clark County where Las Vegas is located. Just before those numbers have come in, Trump had his presser announcing that he was filing the suit, and it does claim, as you say, Brian, as many as 10,000 votes are fraudulent, that's what they're claiming. Those are the facts they allege, but Brian, getting back to what we said earlier, they have to prove an allegation in court. They have to prove that dead people have voted. They have to prove that people moved away, the burden of proof is on the movement in court as in any case. In any case you have two alleged facts, but then you have to prove the facts.

You can't just make allegations, and so then what I would expect will happen here is the Biden people will respond to that the facts aren't there, and the judge will say, "Where are the facts?" The case will be thrown out, as Ari has pointed out, has happened in the other cases, right away before the case gets started basically, because there are no real facts in dispute unless the Trump camp can prove them up. That is what they're claiming. I don't see that they have them here. This one is less about observing and more about they claim fraudulent votes within the margin of what seems to be a Biden victory, although you have cautioned me not to say that we have won yet.

Ari: Can I give a few points about that?

Brian: Yes, but I want to set you up this way. Judging from the sound bite, they have the state attorney general on their side, on the Trump side, on this one.

Ari: That's what, I just want it to say. He's no longer the state attorney general. Adam Laxalt is no longer the state attorney general.

Brian: Sorry about that.

Ari: He is a former attorney general. The current Attorney General is a Democrat Aaron Ford. He has said there's no basis to these lawsuits. I saw that some of the people they claimed had moved out of the county were in fact military veterans that are overseas, so they are legal residents of Nevada. They also have a right to have their ballot come in after Election Day as is the law in 29 states where military ballots can come in after Election Day. There's a long history of Republicans making these outrageous claims, but there's never any evidence to back them up.

I'll give you one example. Kris Kobach, the former Secretary of State of Kansas often made a claim that dead people were voting. Kobach, of course, later became vice chair of the president's commission on election integrity. Kobach held this press conference when he was running for Secretary of State. He said, "We haven't covered all this evidence of dead voters." He gave an example of one man he said was deceased and had voted in the last election. The Wichita Eagle went to this man's house and they found him breaking leaves in his front yard, so he clearly was not dead.

I would just take all these claims with a grain of salt. They also wrote a letter to Attorney General Barr asking him to investigate this, and the interesting thing is that the Attorney General has said nothing about this. In the run-up to the election Attorney General Barr was making all sorts of crazy claims about widespread vote fraud. Once the election began, the Attorney General has been very quiet, and that's because, I believe, he and others in the Justice Department realized there was no basis on these claims. They do not want to risk their reputation, the reputation of the Justice Department going down, because they tried to find all this evidence for Donald Trump that does not actually exist.

Brian: We're going to run out of time in five minutes, because we have our "Ask the Mayor" segment coming up. If you're perusing right wing message boards, Ari, on Facebook, or Reddit, or elsewhere, you will see that people are genuinely freaked out about voter fraud despite there being no evidence that anybody has come forward with, a smattering of comments. The media is now going to assure you that absentee ballots are not linked to voter fraud. Fact, absentee ballots are illegal in France since the 1970s, because they experienced massive voter fraud. Another one, tell me how Biden broke Obama's 2008 voting record but can't get more than 20 people at a rally. They can't possibly think we're that dumb, right? I could go on, which means that the audience that you were talking about before, the audience of public opinion among his supporters, that's different from the judges who they're supposedly appealing to. I wonder how large and militant you see that group of people to be?

Ari: I think it's going to end up being a very angry and loud minority, Brian. I think most Americans will not believe these claims, just like most Americans have taken COVID very seriously, but a minority of Trump supporters have not. I believe it's very important for elected officials to speak up here for Republican and Democratic secretaries of state who run elections to describe how this process works for Republican elected officials, senators, et cetera, to push back aggressively, and what the Trump campaign is saying.

If the Democrats were trying to rig the election, how was Mitch McConnell, still Senate majority leader? How do the Republicans retain control of all of these key states. If Democrats were going to rig the election, they would have taken out Mitch McConnell. They would have taken control of the statehouses in Wisconsin, Michigan, Pennsylvania, all of these key states. They would have tried to win Florida, North Carolina, and all these other places. I think it's really important to present the evidence.

A certain percentage of people are never going to believe things that are true, just like they never believed their COVID was real, even though 225,000 Americans have died, but I think we just need to keep providing the evidence, explaining how the process works, talking about how mail ballots were used in larger numbers this year, but mail ballots are not new. This is not a new innovation. This election was not radically different than other elections. It's just how in the pandemic, so things were run a little bit differently, but this election is going to have integrity, just like every election proceeding it.

Brian: Jami, Trump talks about going to the Supreme Court. How could they wind up getting involved?

Jami: It's very clear as Adam Liptak has written so eloquently in the New York Times. The Supreme Court decides actual disputes, not abstract propositions, and he goes on to point out that take those cases only after the lower courts have made a ruling. Even though there's a Trump offensive all around the country right now, Brian, it's not clear that any of those cases will reach the US Supreme Court. I would just like to leave you with Al Gore's tweet. Al Gore, we remember from 20 years ago, Bush V Gore, "The most important principle that I defended 20 ago, and that I'm saying tonight is, let's count legally cast votes, every single one, and obey the will of the American people."

Brian: We remember how classy Al Gore was in conceding the election in 2000, once the Supreme Court had ruled and stopped the Florida recount. That was, I think, December 11th. Jami, how long is this all going to take in court?

Jami: It's difficult to predict, it was December 11th, because there was the deadline for certification of the electoral college, that deadline this year, correct me if I'm wrong, Ari, is December 14th. I would predict we'll know a lot sooner than that.

Ari: Yes, I think that's correct. I think this thing is going to be wrapped up in a matter of weeks. There's probably going to be a recount in Georgia. There may be a recount in one or two other states, but this election is going to be over pretty soon. I believe we are-- Number one, I think we had a smoother election than a lot of people thought, and I believe we will have, despite all of Trump's intentions of a relatively smooth post-election period and on January 20th or whatever it is, we will have a new president who was legitimately elected, not just in the electoral college, but by millions of Americans in the popular vote.

Brian: Ari Berman, Mother Jones correspondent, is the author of the book Give Me the Ballot. Jami Floyd is WNYC's legal editor. Thank you both so much.

Ari: Thanks so much.

Jami: Thank you.

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