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Brian Lehrer: It's Brian Lehrer Show on WNYC our morning after the election coverage continues. Okay folks find at least three falsehoods in this 15-second sound bite.

President Donald Trump: This is a major fraud in our nation. We want the law to be used in a proper manner, so we'll be going to the US Supreme Court. We want all voting to stop.

Brian: Could you count fast enough to keep up? We will fact-check the three things in a minute, but here was Joe Biden's reaction.

Joe: It's not my place or Donald Trump's place to declare who's won this election. That's the decision of the American people.

Brian: Both campaigns are readying their teams of lawyers, planning to take this election from the vote counters to the courts, depending on how close it is and where. With me now to talk about impending and pending legal battles around vote counting is Dale Ho, director of the ACLU's Voting Rights Project. Dale, thanks so much for coming on. Welcome to WNYC.

Dale Ho: Thank you so much for having me, Brian.

Brian: Let's start with that three-point fact check. I would say number one, there is no fraud as the president claim, no specific allegations of any systemic absentee ballot fraud that anyone is claiming at this point. He can't go directly to the US Supreme Court and he wants all voting to stop. He probably meant vote counting, but of course, all voting has stopped. Election day was yesterday, anything to add to that?

Dale: No, I think you're right on all three counts, Brian. There's every indication that the election was conducted with integrity yesterday, no one needs to be concerned that the vote count was rigged or irregular in any way. The process as it's unfolding right now is exactly how people who watch elections and voting patterns predicted it would happen for the last few months.

We have a high volume of absentee ballots cast this year, the highest this country has ever seen due to concerns about the pandemic. Those ballots take longer to count, particularly in the so-called blue wall States, the industrial Midwestern States of Pennsylvania, Wisconsin, and Michigan, because of those States particular laws about when those ballots can be processed and counted.

There's a big partisan difference in terms of how people decided to vote this year with a lot of Republicans choosing to vote in-person on election day and a lot of Democrats choosing to vote earlier in-person or by mail. When you add all of that together it means it's taking a little bit longer than it normally would to get the final provisional vote tallies in those three States and the first votes that came in, the in-person election day votes, didn't really give you a representative picture of what the full electorate would look like in those States.

Brian: When Trump says in that clip that he wants to petition the Supreme Court to stop vote counting. I assume you agree he can't just do that. You've already said you agree, he can't just do that, but what could land any aspect of this election at the Supreme Court per se in a way that could be decisive?

Dale: A lot of things could land in the Supreme Court, but I hesitate to label any of them as potentially decisive. Right now we don't know what the margin is going to be in the potentially decisive States, election lawyers like myself sometimes talk about a margin of litigation that is a vinyl vote count that is close enough, such that litigation could plausibly change the outcome and so far we just don't know enough about any of these States to feel like that is a possibility. I'll just give you one example, Wisconsin.

That's a pretty close state, it's right now one that according to the vote count Joe Biden is leading by about 20,000 votes, but that's not really within the realm of I think what one could think of as plausibly litigable. The former governor of Wisconsin Republican Scott Walker just tweeted a few hours ago that after recount fights in 2011 in Wisconsin the vote total they swung by 300 votes after a recount of the presidential tally in Wisconsin and the 2016 election, the vote totals changed by 130 votes.

20,000 votes is an order of magnitude or multiple orders of magnitude well beyond that and there aren't any at this point anyway allegations of specific irregularities in Wisconsin that could plausibly account for that margin. I think we just all have to sit tight, wait to see how the votes come and in particular in Michigan later today in Pennsylvania by Friday before we start speculating about whether or not there could be litigation that could plausibly affect the outcome of one state, let alone the presidential contest,

Brian: Listeners any legal questions for Dale Ho, director of the ACLU's Voting Rights Project 646-435-7280, 646-435-7280, so much anticipation that the election could wind up in court even being decided in court and one thing, of course-

Dale: That's not how elections are supposed to go, right Brian? Elections are supposed to be decided by voters not by courts. We all just need to take a deep breath, wait for election returns to come in before we start speculating about judges changing vote totals.

Brian: One of these things, in particular, the challenge to Pennsylvania being allowed to count absentee ballots that come in for the next three days or three days after election day through Friday as long as they're postmarked on election day. We already heard the governor of Pennsylvania and the secretary of state of Pennsylvania in a news conference that we carried just a little while ago say that they are segregating those ballots that are received after election day in anticipation of a possible lawsuit. As you know the Supreme Court ruled last month that mail-in ballots could still be counted in Pennsylvania,w even if they're received after election day, but postmarked on election day, why are we even still talking about it?

Dale: We're talking about it for a couple of reasons. One is that the court when it rendered two decisions on whether or not to permit that for now that is the counting of ballots postmarked by election day but received afterwards had eight members, the Supreme Court had eight members at that point. The Supreme Court now has a ninth member Justice Coney Barrett and it's conceivable that if the margin is really tight in Pennsylvania, the Trump campaign could try to go into court again take another shot at it, and hope that the change in composition of the court could produce a different result.

I think we're a long ways away from even worrying about something like that right now. Pennsylvania has got only about 60% of its vote or I actually, I don't know the exact number right now. Pennsylvania got a lot of its vote out right now still. Let's see what that looks like, whether or not those ballots could plausibly be decisive is something that we're not going to know for a while. Then as you know the Supreme Court's already rejected two requests from the Trump campaign and the RNC to try to disqualify those ballots. It would be, I think pretty jarring to see the Supreme Court do something different now after the election has already happened.

Brian: In fact, a paradox that I wonder if it could come into play legally in Pennsylvania and elsewhere on this exact question about the late-arriving ballots, the Republican legislatures prevented counting the ballots early in many cases and now the same party is objecting to counting them when they're determined. If they can't count them early because the legislature passed that law saying you can't count them before election day and then they're saying you can't count them if they arrive after election day, it comes down to just exclude lawfully cast absentee ballots, no matter when they're cast. I wonder if that could be a paradox that becomes a legal argument.

Dale: It's actually two separate issues here Brian. one has to do with when we begin the process of verifying ballots, processing them, and then ultimately counting them. Second, which ballots are actually valid based on when they were received. I actually do think those two issues are separate, but you are noting something I think that's very, very important.

The reason we're in this holding pattern right now, the reason why we're waiting for these results in Michigan, Pennsylvania, and Wisconsin is because state legislatures in those three States which are Republican-majority state legislatures refused repeated requests from elections administrators in those States to allow them to start processing their ballots earlier. The reason we have more complete results in Florida and Arizona, for example, right now is because those States do permit the processing of absentee ballots on a rolling basis once you get close to the election. If Michigan, Pennsylvania, and Wisconsin had simply followed the lead of those States, we have a lot more certainty about the outcome right now.

Brian: Peter, in Norwalk, you're on WNYC, with Dale Ho, for the ACLU voting rights project. Hi Peter.

Peter: Hi, Brian, thanks as usual for taking my call. Quick question for you, can or could the Supreme court stop the recount using Bush versus Gore as a precedent? Could they say well, "It's the same exact situation, they're counting the ballots, Bush is being injured--" whatever their language was. "So we've got to stop the recount," as we all know, if the recount was going on, Gore would have won that state and the election. Fast forward now, can they argue the same thing to the Supreme court?

Dale: Well, thanks for that question. Right now, we don't even have the first count, so we're not even at a recount situation, we're not even at an election contest situation. The Supreme Court came in and Bush versus Gore at the time that it did because States including Florida were up against the deadline by which they were supposed to identify their slate of electors, members of the electoral college whose votes ultimately count for president.

We're a long way away from there, we're just one day after the election right now. Everything is happening. According to what people predicted in terms of the vote-counting in Wisconsin, Pennsylvania, and Michigan. We should get pretty close to results in Michigan by the end of the day. We should get pretty close to complete results in Pennsylvania by Friday. Let's see where the votes stand. It's important that every vote is counted because every voter's ballot counts. Once we get there, I think we can start trying to game out what scenarios might be on the table.

Brian: Amy, in Ocean Township, you're on WNYC. Hi, Amy.

Amy: Hello?

Brian: Hi, Amy, you're on the air.

Amy: Hi. Yes, my question may be kind of a confusing one, but we live in a very populated state in New Jersey and we have drop boxes all over my County and I'm assuming all over the state and they say you have your option to drop your ballot in the box by say 8:00 PM, but they called our state very early. What happens to all those ballots that haven't been counted that are sitting in those boxes? It's such a crucial state, that is my question. If every vote counts and these ballots are sitting in that box, do those votes not count.

Brian: It's a good question. I think the answer to that is actually pretty simple. If they've counted enough votes, that they can see very clearly based on what the sample size is and where they came from and all of that, who's going to win a particular election, they will continue to count all the votes and they will come up with a final tally that's presumably exact and complete. But they can still say earlier on that somebody is obviously going to win because there are a few enough votes left to count that percentage-wise it would be impossible for the other candidate to prevail. Dale, probably you wouldn't add anything to that, or would you?

Dale: Well, that's exactly right, Brian. I think one thing that I would add to it is that there's this conversation about ballots being counted after election night and is that unusual or strange, and really that happens in every election in America, there's never a 100% complete vote count on election night itself. When you hear networks saying candidate X won this state, candidate Y won that state, it's always a projection a forecast of the nature that you are describing.

Let's not confuse what the media announcement when they call a state on election night or a few days afterwards from the actual official ballot count, which always takes days after the election and I just want to assure who called in, your ballot will be counted. It's just that the networks, based on their statistical projections had a really strong sense of certainty that New Jersey was going to go to Joe Biden.

Brian: Right. To take a very simple mathematical example, let's say you have a hundred votes, 80 of them have been counted and they all go for one candidate, you have 20% of the votes that haven't been counted yet, but you obviously can call the election because there aren't enough votes counted that even if they all went to the other person, it would change the ultimate outcome, so that's a very simple very extreme example, but that math, those formulas on how States get called while votes are still being counted.

I want to raise another legal scenario with you Dale, in addition to stopping vote-counting altogether, which the president said in the middle of the night that he wants to do. Some Republicans are working to stop certain portions of votes from being counted. Yesterday, Republicans filed twin lawsuits and stayed in federal courts, I understand trying to block efforts by some counties to allow voters to correct mistakes in their mail-in ballots, like missing signatures. Do we have a sense of how many ballots that could affect, in how many swing States?

Dale: We don't. Just to give people a big picture of what's happening in Pennsylvania. Right now, there were two lawsuits that were filed last night, one in state court and one in federal court, which seek to disqualify provisional ballots cast by people who had a technical flaw in their absentee ballot and then were notified of that and then came in to try to cure that and cast a provisional ballot. We don't know right now precisely how many votes that affects.

We don't have any reason to think that it affects enough votes to potentially be decisive in the election, we're going to have to see how this unfolds, but this process has just begun and like I said, we still have a huge number of ballots out in Pennsylvania. The case in state court could go to the Pennsylvania Supreme court, the case in federal court could go to the United States Supreme Court and it's always possible that the state court case after the Pennsylvania Supreme Court rules on it could be ruled on by the Supreme court. Again, we have no reason to think that those lawsuits will be decisive in Pennsylvania, nor do we have a feeling that Pennsylvania will be decisive in the presidential contest itself.

Brian: If any lawyers are listening and want to help, if they are going to be armies of lawyers eventually and you've made it very clear that our starting point has to be, we don't know if there are going to be armies of lawyers needed at all. It may be very clear cut at the end of the day, which really means that the vote totals wouldn't be as close as the number of disputed votes that either side could try to dispute. However, it still seems very possible that aspects of decisive States could wind up in court, so what can people do if they want to participate on one side or another?

Dale: Well, I think the campaigns and the candidates, they have their armies of lawyers, they're ready to go right now. I think what everyone needs to take a deep breath and come back to is just a basic principle. Every person's vote counts and it's not over till we count all of the votes. If there are any efforts to interfere with a full vote count, regardless of whose ballot is being challenged, the ACLU is on standby, we want to make sure that we defend everyone's right to vote and everyone's ballot.

If there are any efforts to interfere with that then I think people are going to naturally want to make their voices heard. I'm sure there will be many demonstrations and opportunities for people to let elections officials, administrators know that we won't tolerate anything less than a full and fair count of all ballots cast.

Brian: By the way, as an addendum, what about when a voting controversy is moot? Will they follow through with it anyway and establish a precedent for future elections? I'm thinking of the drive-through voting in Texas, where the Republicans tried to disqualify 127,000 votes, just because they were cast in a drive-through system that they were arguing was illegitimate, that was upheld at a certain level of court, that is the drive-through ballots were upheld, now it's moot because it's clear that Trump won Texas, what happens to that lawsuit?

Dale: Well, people could still pursue that lawsuit, it's still live right now. There's an appeal of the decision that you mentioned, that's still pending in the intermediate appellate court one step below the US Supreme Court. It could be ruled on, particularly if the ballots that were cast could plausibly affect, not in the presidential outcome, but there are lots of other local races. All these things can still get litigated out, but I do think it takes a little bit of the heat off of it. Courts probably treat these issues a little bit more deliberately, a little bit more slowly and cautiously than when we're in this hurry-up situation. That's actually probably a good thing. Let's figure out what the rules are and what the rule should be when doing that isn't necessarily going to determine the outcome of an election.

Brian: Dale Ho, director of the ACLU’s Voting Rights Project. Thanks for giving us some time today. I know you're extremely busy.

Dale: Thanks a lot, Brian.

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