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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Accompanied this morning, oh, it stopped, by a little repair that's taking place in my building, that hopefully, you can hardly hear, but even if you can hear it, it's going to be worth listening because the Trump campaign continues to lose its election result appeals in court but continues to go judge shopping for a game changer from the bench and we can't ignore it.

In federal court in Pennsylvania yesterday, for example, the Reuters News Service put it in these stark terms. It says the Trump campaign, "asked the judge to declare him the winner in Pennsylvania saying the state's Republican controlled legislature should select the electors that will cast votes in the US electoral college system." In other words, the Republican controlled legislature, rather than the vote count that shows Joe Biden won Pennsylvania by more than 80,000 votes.

Now, that came on the same day as a significant loss for the Trump campaign in Pennsylvania Supreme Court, state supreme court. NBC news report puts it this way, "The Pennsylvania Supreme court threw out one of the Trump campaigns longest running post-election complaints, ruling that officials in Philadelphia did not violate state law by maintaining at least 15 feet of separation between observers and the workers counting ballots.

By a vote of five to two, it said, "Pennsylvania law requires only that observers must be allowed in the room where ballots are counted, but does not set a minimum distance between them and the counting tables. The legislature left it up to county election boards to make these decisions," the court said, according to NBC news.

There are developments in other states that Trump is trying to flip too, including Wisconsin, Georgia and Michigan. With me now to reassess the post-election battle to preserve or flip the results as counted is Rebecca Green, co-director of the Election Law Program at the William & Mary Law School in Virginia. Professor Green, thanks so much for coming on, welcome to WNYC.

Rebecca Green: I'm happy to be here.

Brian: Let's start with Pennsylvania and what looks to me like an existential challenge to American democracy, asking a federal court judge to declare the entire state result defective and let the legislature decide who won the state. Do you understand this filing enough to explain what it's based on?

Rebecca: Yes, there's two aspects to it. The first is, calling into question the same thing as the Pennsylvania Supreme Court case you just described, the idea being that observation was insufficient and therefore the votes that were counted when there were no observers should be thrown out, which is pretty radical concept in the sense that it pits these observers' rights against the rights of voters to have their votes counted. That would be extraordinary and I think it's a long shot claim to say the least.

The second main argument in that case involves uneven ballot curing where some registrars allowed voters to cure their ballots if there were mistakes and others didn't and so that's an equal protection argument where you're not treating voters similarly across the state. My understanding in that instance is that the number of ballots involved in that instance are nowhere near enough to change the outcome in Pennsylvania.

Brian: Interesting. That lawsuit is in federal court in Pennsylvania, it was the state supreme court that threw out the lawsuit about the election observers being kept 15 feet away from the tables where the ballots were being read. Does the ruling from state supreme court on that detail inform what this federal judge might do or can do on the larger swing for defense's suit to disenfranchise the whole state?

Rebecca: Yes, obviously, the federal court is not bound by anything that the state court necessarily says. I can just tell you that it doesn't help the federal claim if the state court is not acknowledging that there was a problem with observation.

Brian: To the Trump campaign's underlying argument, why would a judge and why would election officials in the first place put observers too far from the tables to read the ballots that they're supposed to be observing?

Rebecca: It's interesting. The law in Pennsylvania doesn't require that observers be allowed to observe, say, for example, the signature verification or other processes by looking over the shoulders. In other words, there's nothing in the written law that stipulates that observers have to be able to do certain things. It only says that observers must be present in the room.

That leaves a lot of discretion to election officials who are managing crowd control and COVID concerns and all kinds of other interests, Were the law more specific, requiring, for example, that that observers have meaningful access to verify signatures, for example, that would be a different case, but that's not what the Pennsylvania law requires.

Brian: If let's say in theory the standards of distance varied by county, which I think they do, and somebody wanted to make a claim that, "Look, in this county, they let people stand just three feet so they could really see the ballots, but in that county, they made them stand at least 15 feet, which suggests they might've had to hide." Could that hold up in court?

Rebecca: The argument, as I understand it, that the Trump campaign is making isn't an equal protection argument with respect to observation. There they're just saying that they didn't get close enough to see, and the response of the Pennsylvania Supreme Court at least was, "The law doesn't require you to get close enough to see." I apologize.

Brian: That's okay. I have the same ring tone. Do you know anything about the record of the federal court judge who's hearing the throw-it-all-out claim, Judge Matthew Brann? Who appointed him or if there's reason to believe he'd be sympathetic to something that extreme?

Rebecca: I don't know anything about his judicial record. I think he's an Obama appointee from 2012, as I think I read, but yes, I don't know anything about his judicial record in terms of whether he's bought onto extreme arguments.

Brian: Do you know if there's precedent for a ruling like that anywhere in American presidential electoral history, throwing out the people's votes and giving it to the legislature to decide.

Rebecca: I can tell you definitively that there is no precedent for using an observer complaint to throw out any votes, especially at the scale that's being asked for here.

Brian: Listeners, we can take your questions for William & Mary Law Professor Rebecca Green on the challenges that are still being brought in court, that new "Hail Mary' one that we've been discussing mostly so far to throw out the entire vote in the state of Pennsylvania was only filed yesterday in federal court in Pennsylvania. There are many to keep our eyes on at the same time. If you have any questions for Professor Green, 646-435-7280, 646-435-7280.

In Michigan, they came frighteningly close Tuesday night when the four election officials in Wayne County, which includes Detroit at first were deadlocked two to two whether to certify the county's vote. I think many listeners don't even understand how that works. I was watching coverage of this in real-time that night on television and I was literally shaking. The whole city of Detroit came so close to being disenfranchised.

I think many listeners don't even understand how that works. I didn't understand it. Why two Republican and two Democratic appointees have to agree that the math is the math? Can you give us insight into what really happened there and what the rules are?

Rebecca: It's pretty incredible how arcane election law is in this country. Every state has its own election ecosystem. It has its own procedures for verifying and counting votes and so, you never hear about these until you have these kinds of extraordinary circumstances that we find ourselves in. I think we were all surprised. I've been teaching this for over 10 years and I was not familiar with Michigan's canvassing rules.

They do have this divided board that has to certify the vote total and they're following Michigan law. That's what it requires. It's obviously quite extraordinary if you have this tie which isn't something that you couldn't anticipate and then the law being unclear about whether those dissenting voices can be replaced by someone else, by the secretary of state or whether the state legislature then steps into to decide what to do. I think that there was a lot of very nervous people on Tuesday night, wondering how exactly this would play out.

I'm not sure if you've seen the latest, which is that the two Republican members of that board have filed affidavits asking to rescind their votes so there's still some upheaval there, to say the least.

Brian: To rescind their approval of the ballots. In other words, they're still trying to stop them.

Rebecca: Correct. What happened on Tuesday night is that the they initially were not going to certify the votes and then after several hours decided to vote, to certify, in connection with a promise that an audit would take place. My understanding is that they've subsequently changed their mind or they'd like to change their mind and rescind those votes, although the canvas has already been certified and sent to the secretary of state so it's not clear to me whether they have the power to rescind votes that they took.

Brian: I hadn't heard that detail yet. That's likely to wind up in court, it sounds like, as to whether they have the right to rescind those votes.

Rebecca: I think it could, yes.

Brian: There was a very, I thought, fascinating and in a certain respect, encouraging, scene in the middle of that on Tuesday night, because after they first, those two Republican officials cast votes to not certify the Wayne County votes, apparently word got out on social media. A lot of people showed up, virtually, I guess, to a moment's notice to protest this because it was an open session and we've pulled two clips of individuals who were among the people who showed up. These two play together and this is under a minute total. This is a Wayne County election worker named Ned Staebler-- Oh, it's just one person. It's Ned Staebler, Wayne County election worker. Let's listen to him.

Ned Staebler: You talked about not certifying Detroit, even though you acknowledge that Livonia, a city, by the way, I know you know is 95% white, had bigger variances that Detroit, which is 80% Black. We understand, and you now added your name. I'm not going to try to change your mind. I just want to let you know that the Trump stink, this stain of racism that you, William Hartmann and Monica Palmer have just been covered yourself in, is going to follow you throughout history.

Your grandchildren are going to think of you like Bull Connor or George Wallace, Monica Palmer and William Hartmann will forever be known in southeastern Michigan as two racists, who did something so unprecedented that they disenfranchise hundreds of thousands of Black voters in the city of Detroit, because they were ordered to.

Brian: Professor Green, we'll get to the racial question that he's raising a second, but isn't it interesting and to some degree encouraging that maybe persuasion is not get in American politics, that people could show up and literally convince through argument those election officials to change their votes back to certify?

Rebecca: Yes, I watched that. I guess it was like a Zoom-enabled public comment period and it was extraordinary. There were lawyers, there were citizens, there were poll workers, they were people who were coming up with a very forceful arguments to try and sway those two Republican members of the canvassing board. It was this spontaneous cry for them to reconsider that decision.

I think that the environment is so toxic that everyone who steps forward in any public way is getting death threats. We've seen this happening in Georgia, really happening all over the country. In this toxic environment, it makes it very difficult for people to do the right thing or to not be reactive, and so I worry that the attempt to rescind their votes has to do with very--

Brian: Political pressure?

Rebecca: Political pressure, exactly. Yes.

Brian: These various lawsuits from the Trump side target Philadelphia, Detroit, and Atlanta, specifically, all democratic cities with largely Black electorates, as Ned Staebler was pointing out in the clip that we played. Maybe the Republicans would go fishing wherever Democrats are the most concentrated and it's just about party and math, but could there be a racial discrimination defense against them under whatever remains of the Voting Rights Act with these concentrated attempts to throw out Black Americans' votes?

Rebecca: I don't think you have a standing to sue until something has happened. In other words, if a court moves to take away-- in other words, you can't sue somebody for alleging something in court. You have to have an injury and so it could be down the line that those kinds of claims could arise. I could certainly see them being part of filings or calling into question the motives of these suits, but I think the bottom line, and what's troubling about these cases, these suits, is that they're targeting cities where there was no anomaly in the vote.

In other words, in these cities, they voted fairly consistently with how they voted in 2016, if not even more favorably towards Trump than most people expected and so the fact that the Trump campaign is going after these cities, it's hard to see anything, but this dog-whistle racial undertone that that's being alleged, because they're not going after places where widespread fraud caused an anomaly in results, which is what you would expect if you were trying to disqualify a number of votes based on some problem with the election.

Brian: To that point, one more example, we've talked about Michigan and Pennsylvania so far, in Georgia, I don't know if this is in a formal lawsuit, but I saw a Republican Senator Rand Paul say on Fox that to make sure there wasn't widespread envelope signature fraud, they should take a random sample of about 2000 Atlanta or Fulton County votes and if signatures didn't match at a high enough rate, whatever that number would be set at, they should disqualify every absentee ballot in the entire county. Is that a lawsuit or is that just partisan, blah, blah, blah on television?

Green: I haven't seen that filed anywhere. It's not happening. I'm doing my best to follow the cases, but I definitely-

Brian: They seem like 30 of them so far.

Green: Yes, we're definitely approaching 30. That argument is a tough one to make because ballot envelopes have been separated from the ballots themselves and so if you are able to, for example, show that a signature on a ballot envelope was insufficient, you don't know who that person voted for so to disqualify votes would be extraordinary. Courts in the past, and that has come up, I believe it came up in Washington State where the request was, "Because of this problem with the envelope, we want to use a statistical extrapolation, essentially, and disqualify some number of votes." The court, in that case, refused to do that because it was conjecture, it wasn't the votes themselves, and so it would be a tough sell, I think, to disqualify votes based on some idea that some number of ballot signatures had been improperly verified.

Brian: I'm with Professor Rebecca Green, co-director of the William & Mary College Election Law Program at the law school there. Mark in Parsippany, you're on WNYC. Hi, Mark. Thank you for calling in.

Mark: Good morning, Brian. Good morning, Professor Green, Brian, it's my first time calling. I'm so excited to be calling in your show. I've listened for many years. Just keep carrying the fire for all of us., buddy.

Brian: Thank you, glad you're on.

Mark: My question for the professor is, it related to the new filing in Pennsylvania and how it might lead to a Bush v. Gore scenario. My limited understanding of Bush v. Gore is that part of the reason for the recount stopping was that there would be disparate results in different counties and the court then just determined that the county had to stop because they couldn't have that.

I'm curious if this filing is an attempt to draw a connection there that if different observers were treated different in different counties, there could be different results and that this isn't about stopping a recount, but that there's still a connection there because of different outcomes of different counties within one state.

Rebecca: You're exactly right about Bush v. Gore. The problem was that there was no uniform standard for what counted as a valid vote in the recount in Florida and because there was no uniform standard, the Supreme Court said the recount couldn't continue and then that ended the matter. Here, again, the argument, as I understand it, that the Trump campaign is making when it comes to election observation is not that it's uneven throughout the state, but rather that it's insufficient and therefore, all votes counted during periods where there's insufficient observations should be tossed.

That's an extraordinary argument because they're not arguing that this was done in a back room where nobody was allowed. They're just arguing that the observers who were there weren't able to adequately observe. The problem is, that the law in Pennsylvania only requires that observers be allowed to be present. It doesn't require that they'd be able to see or do anything in particular. If the question is, we want to throw out everybody's votes of those votes that were tallied in this situation, that's pretty extraordinary and as the Pennsylvania Supreme Court found it, doesn't comport with the law.

Brian: Thank you for that. Very interesting question, Mark. Call us again. Rich in Long Beach, you're on WNYC. Hi, Rich.

Rich: Good morning. Thank you for taking my call. I thought, and maybe I'm wrong, that there are monitors who are separate from observers and monitors are basically right there at the table. When I registered, when I signed it to vote, there's a monitor. That is one from the Democratic Party and one from the Republican Party and observer would be something different. Just somebody allowed in the room. You follow my question?

Rebecca: Yes, I do exactly and you're exactly correct. The idea that you've got observers who are more than 15 feet away from a table doesn't mean that you don't have a system that is very carefully choreographed to ensure that no one person can change votes or do something illegal. The idea that you'd have an election system where an observer who's forced to stand 15 feet away would be the only person who would be making sure that things were being done correctly is absurd and no election official is going to run their election that way and no state has laws that allow for that discretion of the counting table, so you're absolutely right.

Brian: Karen in Morristown, you're on WNYC with Professor Rebecca Green. Hi, Karen.

Karen: Hi, thanks for taking my call. Brian, you used the word fishing a little while ago, and that goes to my comment and my question for your guess. In cases where it seems-- first of all, let me make the assumption that it costs money to do these recounts and I imagine that happens on the local level, on the county level, maybe on the state level. The concept exists that tries to address this issue where you have lawsuits [inaudible 00:23:13] recounts are even just to deal with the lawsuit itself. If a concept exists, thereby [inaudible 00:23:30] I'm going to deal with that because [crosstalk] going to cost much money.

Brian: Your line is breaking up pretty bad but I think if you can't hear her, Professor Green, she's asking a two-part question here. One, can a judge just throw something out summarily based on the judge's judgment that it's a fishing expedition, and two, can the lawyers be sanctioned? Does that happen? That lawyers are penalized in some way, and I'll say we have another caller on the board, I'm not going to take another person with the same question, but asking if this is the type of thing that gets lawyers disbarred?

Green: There are 100% ways to either throw out or even sanction attorneys for bringing frivolous lawsuits. We haven't seen that happen so far but we have seen judges be testy with claims that lack evidence to support them. I don't know if that is in the offing. I don't know if we'll see that happen down the road, but as time wears on, I don't know that the patience- if it continues to be the case that's so little evidence is brought forward, I think you'll see judges patience start to wear thin.

Brian: I want to come back, and thank you for your call, Karen. I want to come back to the question of Michigan and the Wayne County canvassers and whether that vote for Detroit and the rest of the county will be certified or not as that heads back into the realm of dispute, as you were describing before. I see a few people have called in or tweeted us about an aspect of that.

I just looked it up and that's about whether, the nature of the pressure on the Republican canvassers, the two who originally voted not to certify the vote and then later that night, Tuesday night changed their votes to certify after what I described as a lot of people showing up to that Zoom meeting and persuading them and telling them that they were going to go down badly in history and so forth, but there may have been more aggressive tactics to.

Here's a Detroit Free Press article that dropped last night, Wayne County canvassers doxxed and threatened over votes. It says, "An online swarm of outraged Michiganders, verified users and amateur internet sleuths turned the topic of a local Zoom meeting into a vicious national frenzy Tuesday night. After those Republican canvassers first refused to certify the results of the election, Twitter users spammed the site with their names, personal details, and links to their social media pages. The goal appeared to be to create offline consequences for the two Republican board members. One user called for people to find out where the two worked. Another user believed he found a Boy Scout troop for which one of them was a scout master."

For you as a human being, what do you think about those tactics? And for you as a law professor, does it wind up in court if that accusation can be proved that these people were being directly or indirectly threatened in some way before they changed their votes?

Rebecca: This is a perennial problem of a modern information infrastructure, which is that anonymous action activity online can have real-world consequences and people all across the political spectrum can be victims of these incredibly vicious attacks. Unfortunately, it seems like there's very little that the law can do, particularly since, as I mentioned, many of these attacks are done anonymously.

You see attempts by victims of these kinds of attacks trying to use the courts to address the harm that they've experienced but again, it's just an incredibly hard phenomenon that I think we haven't come to grips with. I think it's important to stress that bad behavior happens all across the political spectrum and targets people regardless of their political affiliation. It's a really big and bad problem and again, the word that comes to mind is toxic.

Brian: Rebecca in Manhattan, you're on WNYC with William & Mary Election Law Professor Rebecca Green. Hi, Rebecca.

Caller Rebecca: Hi, Brian. Hi, Professor. My question is this, I did read that certification date in Pennsylvania is November 23rd. If there is still litigation in process, will that certification date be delayed or will they go ahead and certify despite the fact that litigation is still in process?

Rebecca: Yes, they'll go ahead and certify unless the people who have authority to certify the results have been swayed or are ordered by a court to delay that certification.

Brian: Rebecca, thank you. Let's take one more. Andrew in Brooklyn, you're on WNYC. Hi, Andrew.

Andrew: Hi, Brian. Hi, Professor Green. I just wanted to know why the Democrats don't go [unintelligible 00:29:14] lawyers and do the same thing and challenge Biden's [unintelligible 00:29:18] race where Republicans won.

Brian: We can barely hear you but I think I've got your question, and Professor Green, if you couldn't hear it, he's basically asking why are Democrats trying to find Republican races to do this to, to either show how it feels, or at least be fighting on the same turf if it comes to it?

Rebecca: I don't think there's any need. Typically, when you are, as far ahead as President-elect Biden is, you don't need to file a lawsuit because you're sitting on top. In terms of other races, I know around the country, there are quite a lot of very close races. I think there are resources being poured into those races to address these same kinds of issues, but obviously not on the same scale and not at the presidential level.

Brian: Right. That scale is important as we start to run out of time. The electoral college math with Biden up by 74 electoral votes, Trump would need to have judges hand the vote to Republican legislatures in at least three states. That would be Pennsylvania, presumably, with 20 electoral votes, which is the biggest prize out there, and at least two others from the list of Michigan, Wisconsin, Arizona, and Georgia.

Do you know if equivalent suits have been filed, or will be filed in any of those other states to the one we started with, where they're in court asking a federal judge to throw out the entire Pennsylvania vote?

Rebecca: Yes, that's happening in Nevada. Obviously, there's litigation in Michigan. There's litigation or they've just asked for a recount in Wisconsin. Yes, it's happening all over. I think the best way to think about this is the way Rick Hasson, who's a professor at the University of California Irvine, who described this as Trump needing three Hail Marys. It's a quite extraordinary path that he's trying to navigate. Part of the point is to win in the court of public opinion. That seems to be what's driving a lot of this legal activity.

Brian: Court of public opinion, yes, to undermine the validity of Biden's election in the mind of a certain portion of the percentage for political advantage down the road once Biden takes office.

Rebecca: Exactly.

Brian: We'll get to that problem when it's a problem. In the meantime, the elections aren't certified. They're trying as hard as they can to actually have them overturned. You mentioned Nevada, I think that's different because there's a Democratic control legislature. Presumably, if they threw out the Nevada vote, with six electoral votes, that would probably stay in Biden's hands since that's where the popular vote wound up. But the other states are much bigger in terms of electoral votes anyway, Wisconsin, Arizona, Michigan, and Georgia in addition to Pennsylvania, so we have to watch all those balls in the air at the same time.

Last question, as they try to throw out these votes, and give the decision to the state legislatures, that one we were talking about was in Pennsylvania, and it was filed in federal court. Trump wants to get to the Supreme Court. He made it very clear when he nominated Amy Coney Barrett, that one of the reasons was he wanted the right count of his nominees, the full count on the bench for this exact eventuality.

Well, since they're filing in federal court, even if they lose, even if Judge Brann in Pennsylvania, and up through the appeals process, throw out these Trump lawsuits, just because they're in the federal court system, can they keep appealing, and appealing, and appealing, and we're going to see this at the Supreme Court if they decide to push it there?

Rebecca: I think it is highly unlikely based on the suits that had been brought so far. Number one, because they don't involve an outcome-determinative number of votes, that is to say, the federal question in the Pennsylvania suit, is this question about curing ballots and some registrar's allowing it to happen and some not? My understanding is, it's just a hugely insignificant number of votes at issue.

For the Supreme Court to take that case, and inject itself into the politics of this, for no reason, essentially, would be extraordinary. I think it's highly unlikely.

Brian: In other words, even though the request is for the judge to throw out the entire vote of the state of Pennsylvania, the basis of that request, is so few votes, that they don't like the way they were counted and no actual allegations of fraud, zero, I believe, that they presented any evidence of, that the federal court system would say, "This is too small a sample of votes to make such a judgment on, even if we don't like the way these votes were processed."

Therefore, the Supreme Court would look dimly on this case because the underlying question couldn't be determinative. That's what you said, right?

Rebecca: Yes. Basically, the ballot curing question, equal protection question, that's the federal question that the Supreme Court I just don't think would take because it doesn't involve an outcome determinant number of votes. The observation question is a matter of state law, which the Pennsylvania Supreme Court has interpreted so I can't imagine the Supreme Court doing anything with that either. It's just doesn't it-- We're not in Bush v. Gore territory here. At least not yet.

Brian: Ballot curing, since we haven't mentioned that term before, is allowing voters who made some technical error, like not sealing the envelope the right way or so forth being given the opportunity to come back in and correct it. It doesn't allow them to change their votes. It just allows them to sign the ballot in the right place, and things like that-

Rebecca: Correct.

Brian: -that they may have messed up.

Rebecca: Right. What happened in Pennsylvania is that some registrars allowed people to cure their ballots and called them and said, "Hey, come back in because there's this problem with your ballot that you need to fix," whereas others didn't. The argument is that that treated voters differently in a violation of the Equal Protection Clause of the US Constitution. That's an interesting claim, but it's not one that is outcome determinative because it involves such a small number of votes.

Brian: Rebecca Green, co-director of the Election Law Program at the William & Mary Law School in Virginia. Thank you so much for your time and expertise. We really appreciate it.

Rebecca: You're welcome.

 

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