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Brian Lehrer: It's the Brian Lehrer show on WNYC. Good morning, everyone, and here we go into we don't know what. It could just be counting the votes or it could be something much more complicated. It could be more complicated in court. Just over the weekend, the Trump campaign filed a lawsuit to disqualify 120,000 votes in Texas. All the votes that were cast in curbside voting from your car. One of the options they have in Texas, in a rare Sunday afternoon ruling, the Texas Supreme Court said, "No, those votes will count. Those votes will count." Will the Trump campaign try to bring the same claim back in federal court?

What else are we in for in court if one candidate or another is declared a winner, and it's close? Maybe it'll be more complicated in court, and maybe it'll be more complicated in the streets. There was the incident on Friday, did you hear about this? Also, in Texas, which means Texas must be in play because people are caring there enough to do things where somebody something like 100 cars of Trump supporters surrounded a Biden campaign bus.

Biden wasn't on it, Kamala Harris wasn't on it, but it was other campaign workers on a way to an event, and these cars slowed the campaign bus to a crawl. The event they were going to from what I read was canceled, and at one of his rallies later, the President praised the physical intimidation tactic.

President Donald Trump: It is something. Did you see the way our people they were protecting his bus yesterday? Because they're nice. So his bus-- They had hundreds of cars.

Brian: At one of Joe Biden's rallies, he reacted to the President's reaction.

Joe Biden: We've never had anything like this. At least we've never had a president who thinks it's a good thing. Anticipating more of this, stores are boarded up as if for a hurricane. In New York, in Raleigh, in so many other cities. We've never seen this before for an election. Violence could come on election day or after election day if the count is still going from various extremist camps, but only one presidential candidate is actively stoking physical confrontation as we just heard.

With us now, Andrew Prokop, who writes about elections and other things for Vox, among other articles. He's got one from the other day called; how long it could take to count the vote this year, explained. Andrew, thank you so much for joining us. Thanks for coming on WNYC today.

Andrew: Thanks so much for having me.

Brian: Let's start with an optimistic scenario, the way they count votes in Florida, and Georgia and North Carolina, which all close seven o'clock local time, that could potentially lead to an early result. You want to talk about that?

Andrew: Yes. What we're going to see tomorrow night is that the states have very different policies when it comes to how they are going to carry out their vote count,

and everyone's lived through these elections before, and there are various reasons that account can take a long time, all sorts of normal reasons, but the issue this year is a very abnormal thing, the covid 19 pandemic and the unprecedented amount of mail votes that the whole country basically is getting because of this.

There are certain states that have more experience with mail votes and that that have made some wise preparations to be able to count all these mail votes, because mail votes take a longer time to count than votes cast in person because you got to check the voter signature on the envelope, you got to open that envelope, you got to smooth out the ballot to make sure that it will go in the machine properly and be read properly.

It may not sound like a lot, but for every single ballot it takes a long time. So what certain states do, including Florida, Georgia, Arizona, North Carolina, is they start this work of opening envelopes, verifying the signatures, and either approving or rejecting the ballots before election day itself. This is called ballot processing, and they do this early and these states will be able to do the vast majority of their mail ballot count very quickly.

What we'll see on election night is suddenly, probably within an hour after the polls close, Florida is just going to make a massive reveal of their votes, and they'll still have more to count after that, they'll still have the in-person votes to get through, but a lot of that state is mail and early vote. We will get a huge chunk of the results early, which we are not going to get in certain other states.

Brian: Georgia and North Carolina too because they close even one hour earlier than Florida, seven o'clock eastern time. Florida because they have to wait for the panhandle, which is in the Central Time Zone will close and start returning its results publicly at eight o'clock eastern time. North Carolina and Georgia similarly?

Andrew: Yes, and North Carolina especially has a lot of in-person early votes as well, that makes up a large share of the vote in the States, but one touch to all this is that we're going to talk about some other states where the opposite will be true later, but in these states, if the mail and early vote are counted more quickly, the results may look very good for Joe Biden, but Election Day votes, in-person votes on Election Day are expected to be more slanted toward Trump.

You may get a situation where a whole lot of the vote comes in very quickly in Florida and North Carolina. Ohio is another one. Arizona, the polls closed a bit later in the night there but they do do this quick count system. It will look really good for Biden, but then as the in-person vote gets counted, it may get a little slower and Trump may start to edge back up there.

Brian: By the way, I said seven o'clock for Georgia and North Carolina, it's actually seven o'clock for Georgia 7:30 for North Carolina, eight o'clock for Florida. That's some early Tuesday night view and guide fence posts there folks for you to watch, Andrew Prokop from Vox. Our guests and listeners if you have any questions right now about how votes will be counted on election night, or let's say starting on election night 646-435-7280. 646-435-7280 or you can tweet your question or

comment @BrianLehrer. Before we move on to the three states, listeners you can start guessing which ones they are.

The three states, Andrew that you say Trump almost certainly can't win the presidency without at least one of, but they are all slow counting states. Let's stay on North Carolina for just a second. Because a lot of the analysis that I've been seeing is that even if Trump holds every other state that he won in 2016. In other words, if none of these supposedly new swing states, like Georgia, or Arizona, or even Texas, goes for Joe Biden if he holds every other state that he won in 2016, if he loses either Pennsylvania or North Carolina, either one of them, then Biden would win the presidency, Is that correct?

Brian: Yes, well, it depends what else happens in Wisconsin and Michigan. If Biden loses some of those states, then he'll have more ground to makeup, but I do view North Carolina as pretty close to a must-win state for Trump, Georgia is similar, and Biden is actually a little up in the polls there lately, which is, of course, a big surprise because they voted Republican, so many cycles in a row.

If early on election night, and it may take a while to actually make this call because you even though they report a lot of votes early, got to wait for the in-person votes to be sure and for the calls to be made, but if North Carolina or Georgia, or of course, Florida, get called for Biden, really any one of those three would be a very, very good sign for Joe Biden and very, very troubling for Donald Trump because he needs those states for his math, those are essentially must-win Trump states.

Brian: All right, and you write on Vox the way the electoral math works, Trump almost certainly cannot win the presidency without winning at least one of three slow counting states. What are the three?

Andrew: That is the famous trio of Upper Midwest/rust belt of Wisconsin, Michigan, and Pennsylvania, and those are the three that voted for Democrats, so many presidential cycles in a row before switching in 2016 when Trump won then each by less than one percentage point. The issue with these three states is that in comparison to the other states like Florida and Georgia and North Carolina, Arizona.

This trio, Michigan, Wisconsin, Pennsylvania did not start their mail ballot processing significantly early. That means that all of these mail ballots have been pouring in these States and piling up and they have not been able to even get started with the time-consuming work of checking the signature and making sure that the ballot is can be accepted, that it complies with the state's various rules for how it should have been mailed back.

Wisconsin and Pennsylvania are going to have to do that all tomorrow. They're going to have to get through this, and of course, they won't get through it tomorrow. They'll have to start trying to get through this large stack of piled up hundreds of thousands mail ballots, and Michigan is similar. Certain cities got the opportunity to start today one day early, but it's not clear how much that will help.

I have talked to some officials from these states certain and some of them do appear  

to be making contingency plans for this. The city of Madison, Wisconsin has been trying to do everything they can that's permitted by law early. They've been alphabetizing the ballots that have been returned even though they can't actually check the signatures and start the processes yet. Maybe some of these States will surprise us and do it a little quicker than we expect.

The general sense from people I've talked to is that we could be waiting a while. They're not going to get this massive reveal of votes that we're going to see elsewhere in the country. We could be waiting for quite some time. Pennsylvania is probably the state that analysts are most pessimistic about a quick count. They're afraid that it's going to take a while there.

Brian: Listener on Twitter asks, "What will we know of Ohio tomorrow night?" It's funny 'cause people who've been around for a few election cycles used to think of Ohio as the ultimate swing state. It was the ultimate swing state in 2004 when Bush squeaked out a win against Kerry. There are still people who think that Ohio really went to Kerry and that was miscounted and Kerry should have been elected, but for a long time, Ohio was the ultimate swing state as goes Ohio so goes the nation. It seems to be considered a long shot for Biden, fairly solidly for Trump. "What can you say about Ohio in general in the context of this election and different from history and what will we know of Ohio tomorrow night?" Asks this listener on Twitter.

Andrew: Well, interestingly Biden is making a trip to Ohio. He just added it to his schedule. He does seem to have some hope there or he thinks he at least has a shot there and the polls show is quite close. Trump won it by, I think, eight points in 2016 so a lot of people viewed it as a solidly red state, but the public polling this year has shown it a lot closer, but it's another one of those states that Trump really cannot afford to lose. If it is called for Biden early, that means that Biden has very likely won. 

Ohio is a quick counting state. They have started this mail ballot processing early. They're not like Michigan, Wisconsin, and Pennsylvania. We are expected to get Ohio results maybe not right after the polls close, especially if it's close in any of these states if it's very close, it's just going to take some time to figure it out. It's going to take hours probably, but Ohio definitely we are expecting a faster count than Michigan, Wisconsin, Pennsylvania. If Biden manages to pull out a win there, then that is very good for him.

Brian: Another question from a listener on Twitter, "What are the potential hanging chad possibilities out there today?" For people who don't remember Bush versus Gore in Florida in the year 2000, hanging chads in these old style ballots where you would actually physically punch out a hole, that little part that you punch out is called the chad. If it was hanging there, it wasn't completely detached, was that a vote for that person or was that not a vote for that person? Hanging chads became a big thing in Florida in 2000. I don't think they use that technology anymore, Andrew, but what are the hanging chad possibilities of 2020?

Andrew: I hope not. They probably mostly relate to mail ballots just because there's so many of them. You've seen President Trump has been setting up this argument that he doesn't trust mail ballots that they could be fraudulent and so on. Now, what

the specifics of that argument will be, will depend on the various states. In Pennsylvania, the one that's been pointed to is they have a requirement for what's called a secrecy envelope for their mail ballot. If you just put your ballot in one envelope and mail it back, that's not enough. You need to put it in a second envelope, that's inside the ballot. If it is not in those two envelopes, then it is what is called a naked ballot and not permitted to be counted.

We've already seen litigation about that. You mentioned the issue in Texas as well with the drive-through voting and the Republicans lost in the Texas Supreme court about that, but there is going to be a hearing from a federal judge today about that which could, as you said, effect over 100,000 ballots. As far as more specifics, I think it will depend on which States, if this is a close election and Biden could win comfortably, quickly on election night. Not super quickly, but before we go to bed, perhaps.

That is a scenario, but there are also scenarios where it's much closer, and that where it comes down to one or a few key states, and then the lawyers for both sides are going to just look at every single nook and cranny of the state election laws to try and come up with some reason to swing the count to their side.

Brian: You mentioned a very interesting thing that I want to come back to, which is the possibility that this lawsuit in Texas trying to disqualify more than 100 curbside votes, people voting from their car, which Texas allows. 120,000 votes. They try to disqualify just on the basis that whatever claim they're making about that voting process should disqualify all the votes that were cast that way. Yes, they lost in Texas's highest court, which was working Sunday afternoon in order to make that ruling, but you mentioned that they also filed it or will file it in federal court. That means it co could go up the chain where co-president Coney Barrett and co-president Kavanaugh could have the final say on this.

I was curious about that. Well, why could they file it in both kinds of courts, and what's the difference? I actually asked a law student who I know last night and she said, "Well, if you file it in state court it has to be a claim based on state law. That the thing, whatever the thing is, is not happening legally under state law." The Trump campaign lost that under federal law. It's got to be a constitutional claim. If it's going to go to the Supreme Court, it's got to be some kind of constitutional claim.

I don't know yet what that is in the case of curbside voting in Texas, but those are the kinds of things that people are sitting on the edges of their seats for with respect to court. Even if some of the state courts enabled certain kinds of voting along the way, this Texas example is only one, we may see it again after election day, challenging something in Pennsylvania, challenging something in Texas, challenging something in Michigan that the state courts allowed to go forward, but the Supreme court may revisit under federal law.

Andrew: Yes. You've already seen a flurry of various suits often over the question that has come up a lot, that's come up in Wisconsin and Pennsylvania gone up to the Supreme court already has been what do they do with ballots that are mailed and

they are postmarked before election day, but they arrive after election day? The current situation is that Pennsylvania does intend to count those ballots as long as they show up three days later or before that. Wisconsin is not. You saw this issue go out to the court and the Supreme Court in both cases, they let the Pennsylvania Supreme court's decision on counting these late ballots stand.

In Wisconsin, they reversed a democratic appointed federal judges rule requiring late counting of late arriving ballots. Not so in Wisconsin, they'll only be counted if they arrive on election day or before the late ballots will not count. We saw various justices released concurrences explaining their positions on this. We saw justice, Brett Kavanaugh, for instance, seemed to voice a lot of sympathy with stuff President Trump has been saying about how States have an interest in having the outcome determined on election night. That's a very strange thing to say because no state finalizes its results on election night.

It takes a while. Maybe the TV networks will call the winner, but it takes a while to actually count all the ballots and certify the results. A lot of people were pretty alarmed at what Kavanaugh was saying particularly because in Wisconsin, Michigan, and Pennsylvania, the states that are going to be so slow to count mail ballots, the reason why they're going to be that slow is because Republicans that control the state legislatures would not let the count start earlier and the processing start earlier. Democrats have been saying for weeks, and in some cases, months, we need to start this work earlier of processing the mail ballots, but the Republican legislatures refused.

They're almost deliberately guaranteeing a slow count that will show president Trump ahead at first because the in-person votes will be counted first on election night. It may show him ahead by a lot and then because they're going to be so slow in counting these mail ballots. Again, we're talking about Pennsylvania, Michigan, Wisconsin, Biden is going to start to creep back up as the mail vote gets slowly counted. Then President Trump is going to claim that this is voter fraud and that it's being stolen. Obviously, there's no evidence of any of that. That will be completely baseless if that happens. Unless evidence turns up, of course.

Brian: We have a late counting caller question coming in I think, so let's take it. Nadean in Nassau County, you're on WNYC with Andrew Prokop from Vox. Hi, Nadean.

Nadean: Hi. I was calling to find out about mail-in ballot over in Nassau County board of elections. I was questioning some more things about how they process it. A fellow told me that, "Oh, well, it stays in a lockbox until November 10th." I said to him, "November 10th, why is that?" I mean, that just really upset makes it seems like that would make it somehow in the optics, I guess, as you'd say, that would be favorable to Trump, that there weren't as many votes for Biden as it might've been. In terms of New Jersey is doing that too. I don't really understand that.

Brian: Naydean, thank you. Yeah. And it may not matter in the case of New York or New Jersey, which presumably are going to be easy wins for Biden. The states are all over the place, Andrew, as you were starting to say, some states like

Pennsylvania, which was litigated at the Supreme Court are being allowed to count absentee ballots until three days after the election, if they arrive by three days after election day, as long as they were postmarked on election day. Wisconsin, no, it has to be received by election day, correct me if I'm wrong. I think that's another one that you cited or that I remember from the Supreme Court. That's a three-day range right there for some it's much more than that, isn't it?

Andrew: Well, it's interesting. There is two different types of mail ballots that we're thinking of in this situation. There are the ballots that are received before election day by the elections offices, but they just don't have time to count them yet. That's one group and it's going to be a very big group in certain states. Then there's the ones that actually show up late. That's a relatively smaller group of ballots. If they're in the mail and they don't get there in time, if a state is close enough, they could be decisive, but in most states, democratic voters especially have been pretty good at returning their mail ballots early.

Their early return rates especially, have been higher than, Republican and unaffiliated voters in most states. Basically, when it comes to the ballots, the mail ballots that are received before election day, but just not counted yet, there's no defensible legal argument for why those shouldn't count because those are legitimate votes, they made it there before the deadline and it's the state's fault for not being able to count them in time because they didn't start early enough or devote enough manpower to it. There's really no good reason though I'm sure if things are close enough, President Trump's legal team will try to come up with something to try to stop that count.

Brian: There may be some that do not arrive by the deadline, even though you say many people have been, especially Democrats and Independents have been good at getting their ballots in early because we see how many ballots have been counted as cast already. In Texas, more ballots than were cast in always combined in 2016 have already been received and early voting or mail-in voting.

I did see a stat that in Pennsylvania, and I guess if there's one state that is people's number one, guess for the Florida of 2020, it's that it's most likely to be Pennsylvania. We will see, but that in Pennsylvania, as of yesterday, of the many, many hundreds of thousands of mail-in ballots that were sent out to people because they requested them about 60% have been returned so far.

Now, some of those people may never send back the mail-in ballots. They may have decided to vote in person rather than absentee. That would account for some of that gap, but some of that gap might just be people who are mailing a man at the last minute, and then with a crush of mail through the postal system, they may get there by next Friday, or they may not get there by next Friday. Some of that is in play in terms of having enough leeway at the end there for ballots that are postmarked by election day to actually arrive.

I want to bring up another thing in relation to this, Andrew. I saw this in the Military Times over the weekend. That's how obsessed I am. I was reading the Military

Times and it says in 29 states and the district of Columbia, the laws and rules allow election officials to count ballots that arrive after the polls close from military, their family members, and US citizens overseas, according to an analysis conducted for the Count Every Hero Campaign, that's a pro-military vote-counting group, Count Every Hero.

It says it varies from two extra days in South Carolina to 20 days in Washington State. A military member overseas could postmark a ballot on election day and it could get there on November 23rd and technically it would have to count at least in Washington state. I'm thinking of a scenario where after all the Trump has tried to discredit, the entire enterprise of mail-in ballots and of counting mail-in ballots that arrive after election day, imagine if it's very close in some state that's decisive and what they're waiting for is the ballots from the military.

Here has Trump been campaigning on his patriotism and how pro-military he is and at the same time claiming any ballot that comes in late is automatically fraudulent, whether it's fraudulent or not. It could be that those two things clash and collide with one another if they come down to waiting for military ballots to come in that hypothetical very close state.

Andrew: Yes. You're absolutely right. Military and overseas voters do get special carve-out exemptions in many states. Again, they have to be postmarked by election day, but they could be coming from a long way away. Some states give them extra time to have them counted. Absolutely, if you take Trump's rhetoric at face value of we have to know the results on election night. Then he's basically saying those military voters ballots shouldn't be counted. Of course, obviously, if he calculates that counting those ballots would help him win, he might have a change of heart.

Another interesting wrinkle is that like I mentioned, the mail ballots that had been returned early have been more from Democrats. Well, we know mail voting generally has been skewing democratic, but among the voters who requested mail ballots, the Democrats who requested them have been even more likely to return them early than the Republicans. The late-arriving mail vote could actually be a bit Republican-leaning in certain States if the Republicans were just slower to return their ballot on time.

It's not totally clear for certain how any of this will shake out, but in general, given the strong tilt of mail voting towards Democrats this year in part, because President Trump has said he doesn't trust mail voting and Republicans shouldn't vote by mail, so many of them have taken his word for it. The general expectation is that the campaigns appear to be operating by is that mail voting will generally be good for Biden, but for certain discrete groups that may not be the case.

Brian: By the way, on the curbside voting from Texas being challenged in federal court listener Gabriela tweets, "Wonder how Amy Coney Barrett will apply her textualist theory to the drive-through voting case in Texas since cars didn't exist in 1787." All alright, one more for Andrew Prokop from Vox. Patty in Princeton junction you are on WNYC. Hi, Patty.

Patty: Hi Brian. Thanks for taking my call. Indian Americans are not a significant person to be in a parade, but a recent survey found that at least 22% of them are strongly supporting Trump. Can the Indian American vote swing the election in the so-called swing States?

Brian: Patty, thank you very much. Have you looked at the Indian American vote as significant in any particular swing States, Andrew? Of course, Kamala Harris being Indian American, as well as African-American and Jamaican American, there's some history there to be made potentially. What about the Indian American vote in any state as being a swing voter at least, significant enough size to matter?

Andrew: I haven't heard it discussed very much when it comes to the specific swing States that are up for grabs. Generally, what you hear about when it comes to non-white voters are Cuban and other Latinos in Florida, Black voters in Wisconsin, and Michigan, and Pennsylvania. Black voters in Georgia. Obviously, several of these States are diverse and they do have other significant non-white populations as well.

If the margin is close enough, of course, like any group could theoretically swing it. Florida in 2000 came down to just 537 votes. That's not too many votes. Technically, any group could have swung just a little bit and made the difference. I haven't seen discussed very often just because I think of the population demographics of what makes up the swing state map.

Brian: Andrew Prokop writes about elections and other things for Vox. We've been talking about his article from the other day called: How long it could take to count the vote this year explained. He's got a new one out this morning as well, which is: The electoral college explained. Andrew, you're a busy guy. Thank you so much for some time on this day before election day.

Andrew: Thanks so much for having me.

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