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Brian Lehrer: Brian Lehrer on WNYC, so know the President still hasn't conceded the election and his attorney or at least one of them. Former New York Mayor Rudolph Giuliani is promising a lot more lawsuits yet to come not just the one you've already heard about, over the vote-counting beginning today. There's even a scenario that I mentioned at the beginning of the show that could involve tying up the count in court so much even without proving voter fraud, that the Pennsylvania legislature and others controlled by Republicans would wind up in charge of the electoral votes and flip the result from Biden to Trump.

To talk about the various legal scenarios already in play and those likely to come, I'm joined by one of the country's leading experts in election law, Richard Hasen. He's a Professor of Law and Political Science at the University of California at Irvine, writes the election law blog, and his book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy came out earlier this year. Professor Hasen, thanks so much for doing this. Welcome back to WNYC.

Richard Hasen: Great to be with you.

Brian: Let's run through some of the lawsuits challenging the vote-counting in these swing states. Is there one that you have your eye on above the others for its potential to invalidate ballots that were cast?

Richard: Well, there's one that could potentially invalidate ballots that were cast but not enough in terms of the margin that it would make a difference to the outcome. This is the case involving late-arriving ballots in Pennsylvania. We think there's probably about 10,000 of them, which is not going to be enough of a margin. Even if the Supreme Court took the unlikely step of saying that those ballots couldn't count for president, it wouldn't make a difference in the outcome of the presidential race, both because it wouldn't be enough to affect Pennsylvania and also because it appears that Pennsylvania won't be necessary for an Electoral College victory for Biden.

Brian: Because they will have won so many states, but it's funny about that one for all the hoo-ha and all that's been in the press and all the Supreme Court has been involved in that already, including Justice Alito, just the other day reminding Pennsylvania to segregate those ballots just in case they get excluded. It's just not that many ballots, the ones that came in between the postmark on Election Day and the deadline for their arrival on Friday. That's the whole big dispute. Is ballots that came in during that three day period if they were postmarked by Election Day, and you're telling us, it's just not that many ballots?

Richard: Well, it's no accident that it's not that many ballots. There was a very strong effort to notify people not to use the US mails in the last week before the election because the mails, especially in places like Philadelphia, were moving very slowly. People use drop boxes, where they dropped their ballots at polling places or voted in polling places. In Luzerne County, for example, those figures I saw over the weekend, they had 149,000 voters and only 255 sent in ballots that arrived in that last three day period.

While there may be legal merit, the Supreme Court has not fully weighed in on this yet to excluding those ballots, I'd still bet against excluding those ballots. It won't make a difference either for Pennsylvania or for the presidential election overall.

Brian: Let's move on to another one. One claim that seems prominent is the claim that observers trying to make sure each counted ballot is legit in Pennsylvania aren't allowed close enough. It's six feet for social distancing so, therefore, the claim is they can't see the print on the ballot so they can't tell if ballots are fraudulent. Do observers from both parties have the right to see them more closely? Is there any legal precedent one way or another on this?

Richard: State law in Pennsylvania gives observers the right to see what's going on to observe the count. They're also video cameras in the counting rooms in Philadelphia, at least.

Brian: With a long enough lens to get tight enough on those ballots to see the fine print?

Richard: Probably not, but to see the overall that there are observers in place. The Trump campaign when it's both state and federal court, and they were making claim in federal courts that they didn't have observers and there was this moment that got some attention where the judge asked the Trump campaign lawyer, how many observers were allowed in. He said a nonzero number which got some attention that didn't put a finger on it. After the hearing, the judge had the campaign and election officials huddled together and they agreed to allow some more observers in there.

Even if there were a problem with the observers, unless you could show that there is some kind of fraud that's going on, then you're not going to overturn the results of the election. Again, you have to have enough of a problem, that it would be pretty much a system failure to turn over what's going to be a margin of tens of thousands of votes. No election is done perfectly. If judges could overturn an election if there was any problem, we have judges deciding elections all the time. The question is, is this such a large problem, or is this election so close, you could conceivably see a way that a judicial ruling could make a change in the outcome?

Brian: You're saying it would be very hard for judicial ruling to make a change in the outcome in Pennsylvania based on that claim because there isn't evidence of fraudulent ballots. The argument that I've seen pro-Trump guests make on television over the last few days is that any ballots that can't be inspected closely enough to be read should be disqualified because nobody knows if it was fraudulent or not. Is it possible that a court could rule in the favor of that argument?

Richard: I don't think so because you'd have to have some evidence that there are fraudulent ballots going in. There are plenty of places where the count is being observed where they're not finding fraudulent ballots. Your fraudulent ballots is just a statement that's being made without any support. There are plenty of places where if there was going to be fraud, you would have been able to see it, do something that would be visible on the face of the ballot. Of course, the Trump campaign has the ability in these closer states to demand a recount.

Recount almost never changed results on a statewide basis by more than a few hundred votes, but you think there's a problem that you can uncover, you can ask for a recount. There are mechanisms to try to double-check things if there is a problem.

Brian: What about-- and I'm going to continue to play out the scenario around this Pennsylvania observers claim, if somebody or a few people produce a few fraudulent ballots here and there, that can always happen, not an indication of widespread or systemic voter fraud of any kind, but there could always be a little chicanery here or there or even accidental things like a dead person or two being on the name of a ballot that got returned, who knows how or why. Then they say, "Well, we have some evidence, it isn't enough to overturn the election, not nearly but here's evidence that things are happening and we need to know the extent to which things are happening."

Richard: Right, so that's why you have the ability to ask for recounts or to seek a remedy if you can provide proof that there's a problem. Showing that you have fewer than the margin between the candidates, in terms of the number of illegal votes you can prove is not going to be enough to overturn an election, you actually have to come forward with proof, you can't just say this. I'm trying to think of what kind of proof you could actually show that if we were standing two feet closer, we could show that this is fraud.

I haven't seen any evidence whatsoever that there was any fraud with any ballot, that could have been detected if the observer was closer. Again, even if you could show it in Pennsylvania, it's not enough in terms of the number of ballots and even if you somehow overturn Pennsylvania, it's not enough to change the outcome of the presidential election.

This is why I think if the president brought in the most responsible Republican lawyers in the country, they will tell him that, given what he faces in terms of the burden of proof and the margin of victory there, unless something new comes forward that we haven't seen yet, showing systemic failure across multiple states, there is no viable path to litigate this to victory.

Brian: Let me get your take on the nightmare scenario that I was laying out at the top of the segment, where they delay things so much, that they can't satisfy the count, the complete account because it's all tied up in court, by the deadline for all the states which is December 8th, and then the state legislators get to designate the electors. Here's a clip from 60 Minutes last night of Republican Attorney, Ben Ginsburg, who goes there after being asked what these lawyers are doing, pursuing cases for Donald Trump that don't seem to have any merit.

Ben Ginsburg: This could be an instance of trying to slow down counts in individuals states in the hopes that those states don't complete their job of certifying election results in time for the Electoral College to meet. Then he would go back to something else he's talked about, which is telling legislators to go and vote Trump slates, even in states that were won by Biden.

Brian: I don't know if you were watching television last night, Professor Hasen, but that certainly gave people shutters when it showed up on 60 Minutes as an argument. Then CNN later last night, it was going big with that as a possibility that the Trump campaign is considering. Could you describe that scenario? First of all, this is a scenario that almost nobody listening now has ever heard of. What is this about December 8th and conditions under which state legislatures can negate the apparent majority vote of the people?

Richard: Well, let me start off with my bottom line which is, I don't think this is going anywhere. I think that was Ben that just trying to come up with a plausible explanation for what the Trump end game might be if they actually have thought this through. The constitution says that when it comes to presidential electors, each state gets to set the manner for choosing presidential lectures. Every state in the United States has chosen the manner to have a popular vote and in all, but two states, the popular vote winner gets all the Electoral College votes. Two states, it's partly divided by congressional district.

Everyone's made a choice already, every state legislature to give this power to the voters. Now, there's a provision in a federal law called the Electoral Count Act, which says that if the states fails to make a choice by the time that they're supposed to, which is this early December 8th, if there's been a failure, then the state legislature can step in and can appoint a slate of electors. You'd have to have some kind of failure of the system. Right now, we are barreling ahead towards a certain towards certification. Pennsylvania is one of the states that certifies on the early side, every state has their own timetable.

California's on the later side, it has a lot of ballots. Mail ballots take takes them weeks to count those. Once this certification, then the choice is made, who the electors are, and then that will eventually be transmitted from the state's governor to Congress and the votes will be counted on January 6th. You'd have to have a really compelling reason to stop the count, to stop the certification, and you'd have to come forward with some plausible basis for that. So far, none of these lawsuits are presenting anything like the kind of evidence you would need to stop vote counting.

Somehow delay it for a month to prevent the certification of the vote and eventual choice of electors and transmission of electors to Congress.

Brian: That sounds reassuring. For example, in an era of tribal politics, where no matter how outrageous a thing Trump does, Lindsey Graham and Mitch McConnell, and a lot of other people seem to get behind it and the same may be true about state legislators in Pennsylvania, I don't know. Why couldn't the Trump campaign file a suit on the day before the deadline in Pennsylvania to certify the vote and then go to the legislature and say, "Well, the court hasn't resolved the election yet so there is no resolution," and have politics take it from there?

Richard: Well, first of all, there are a couple of Republican legislative leaders wrote an op-ed over the weekend and said, "We're not choosing the electrodes. This is for the people to do," so they've taken it off the table. I don't know if that's true for the legislators in Michigan. If you think of another state that has a Republican legislature, that Biden one, but at least in Pennsylvania, they've taken it off the table. Lindsey Graham saying really irresponsible things and I'm quite concerned about it because I think it's an attempt to delegitimize the Biden presidency.

You can't run it to court the day before the election, the day before certification, and say, "Hey, wait, wait, wait." There's a legal doctrine called latches and another one called the stopple. Basically, the idea is if you have a chance to raise a claim, you don't wait to the last minute, especially in an election. You've got to move very quickly. You can't just sit on your hands, see how things go. If they don't go your way, try and bring a last-minute lawsuit. That's been a problem with a lot of these claims that the Trump campaign has made.

In Nevada, for example, they try to attack the use of machines that verify signatures, but they waited until they were almost done with the counting when they knew that these machines were in use for years. You don't get to just come into court and just throw it against the wall and see what happens. You've got to have a showing of diligence on top of everything else. I know there's a lot of worry and I certainly understand it but I would say Mitch McConnell has not been outgoing along with Lindsey Graham and saying that we should try to throw this to the legislature.

McConnell has just said, "We should go through the legal process and make sure that everything is in order." Senator Blunt who's on the Rules Committee is a responsible voice in Congress, was on ABC News as this week yesterday.

Brian: Oh, let me set this up for you. Because I have, perhaps the clip you're referring to. Here is Missouri Senator Roy Blunt of Missouri on ABC this week yesterday.

Roy Blunt: I thought Vice President Biden did a great job last night, talking about where the country wants to head. One way to do that is to finish this election the way it deserves to be finished.

Brian: Now that makes it sound at least on the surface like he considers the election not finished, even as Fox News was running a Kyron all day yesterday that referred to president-elect, Joe Biden.

Richard: There's a distinction between how the country treats the media call up an election being done and the official count. The official count is not done yet. That is certainly true, but the media, AP, and others wait until there is a very high degree of certainty as to who the winner is of the election. I read Senator Blunt's comments quite differently than how you're presenting them. This to me looks much more like what happened with Matt Bevin, who was running for governor of Kentucky in 2018. He was incumbent, he was running against a Democrat, Andy Bashir. He was behind in the count.

He claimed voter fraud, without producing any evidence. He asked for the Kentucky legislature to essentially take away the power of the voters to vote and appoint him as governor. That similar kind of move. At first, a Republican legislator said, "Well, let's let this process play out. Let's see what kind of evidence you produce." This is the same thing that Roy Blunt said yesterday that, "There's a legal process. If you've got evidence, come to court and do it. I expect in days or weeks, this will be over." That's the part that I thought was most significant for Blunt.

Trump can come in and he has every right, for example, to request a recount in a place like Wisconsin, where he's behind by about 20,000 votes. A recount on a statewide level has never moved more than I think about 1,500 votes. Usually, it's around 300 votes. You can try, sure, and let the process play out. Maybe that's what this is just a way to give the president something that he can say that he's fought hard and he still believes that there's fraud, but Blunt seemed to be saying we're moving in the right direction.

While there's been mostly silence from Republican leaders, and there's been a few irresponsible voices among the senators, Graham, Holly, and Cruz, I think, for the most part, they're letting this play out. Let Trump try to come forward with his cases. Let's see what the evidence is. Let's see if they're going to come up with $3 million to run a recount in Wisconsin that is practically certain to fail and then we can see where we are.

Brian: Bob in Philadelphia. You're on WNYC with election law expert, Professor Hasen. Hi, Bob. You're on WNYC.

Bob: Hey. How are you doing? Hold on one second.

Brian: Bob in Philly multitasking.

Bob: The situation is this. What you have is you have a situation whereby what's going on is a catastrophe waiting to happen in Pennsylvania. One, because Governor Wolf asked repeatedly from the Republican legislature to allow them to count the votes before Election Day. Now, you probably don't know about this because this is local state Pennsylvania news.

Brian: I know. In other words, just so listeners understand, to be able to count the many, many, many mail-in ballots, start counting them before Election Day, so they could release the count of those on Election Day along with the day of count. I'm going to jump ahead of you here a little bit, Bob. The Republican legislature said, "No, you can't start counting them until after the polls close on Election Day itself." That's why it looked like Trump was ahead on election night because the day of ballots got counted first and Biden caught up over the subsequent days because there were more mail-in ballots but it took days to count. That's the context you're going for. Now, what do you think is going to happen as a result?

Richard: I don't know what's going to happen, but I'm just telling you there's a guy was talking about legal precepts. There's another legal precept, you have to come with clean hands. Now, the Republican legislature in Pennsylvania is not coming with clean hands. Now, if they want to try to flip the boat, they're going to tell the judge, "Hey, well we decided not to let them count the votes before Election Day for mail-in ballots and you know what, we're also going to hold them to this deadline." It's not going to work, but it could create a scenario in which it creates a scenario in which everybody says, "Well, wait a second. Who's right, who's wrong?"

Then it puts everything into question just like Trump set this up for. He was setting this up for weeks ahead of Election Day. He's saying everything's fraudulent. This was a setup. This was all pre-planned in connection with other Republicans throughout the country. This is not a simple way of trying to go around about way of stealing an election like they did with Justice Rehnquist in Florida with the hanging chads, which he did steal. This is a concerted effort because they knew with mail-in ballots, the Democrats would mail them in and a higher percentage than Republicans.

Brian: Bob, I'm going to leave it there for time, but Professor Hasen, he's certainly right about the context. Politically, Trump was trying to set this up for weeks and months before the election saying all these mail-in ballots would lead to fraud with no evidence. Now, with no evidence, he's turning around and saying, "Oh, all these election, all these mail-in ballots led to fraud." He doesn't have any evidence. He has some lawsuits that he's filing, but politically, he's got millions of people believing him.

Richard: I think that it's very troubling that we're going to have a situation where Biden is going to become president and he's already being de-legitimized. They're going to be likely millions of people who are going to believe that this election was stolen, despite the fact that there's no evidence to support that. I think it's very worrisome when you have claims of fraud. That's the theme of my book election meltdown is that Americans' confidence in the election process is deteriorating in part because of these fake claims of voter fraud and these gelling of stolen elections and trying to rile up your side to believe that whenever you don't win, the election is stolen.

Trump has been the worst at that. That doesn't mean that that's going to have any effect on any legal proceedings or any official proceedings for certifying vote, but it does create a poisoned atmosphere where there are a lot of people who are convinced and they're sending me emails. I know they're convinced that selection is rife with broad.

Brian: That's the classlessness, if I may say, that has marked Trump's whole career. Trump who would never concede and always claim it was from fraud. Like he never conceited that Hillary Clinton won the popular vote, even though he empaneled the fraud commission and they looked into it and didn't find anything, never conceded that Barack Obama is a citizen of the United States, never conceded that the Central Park Five were wrongly convicted because he can't even concede that he was wrong or not the winner of anything, no matter how big or small, and yet he gets people to bat them.

Richard: This is why I think I've been saying for months that I didn't expect Trump would concede if he lost that he would claim fraud. The question is what others do. So far, we've heard mostly silence because Trump is still the leader of the Republican party. He still is more popular than most of the senators and Congress. Getting them to publicly push back is a lot harder than getting the pushback like with that yesterday from President George W Bush who issued a statement, congratulating Biden saying that Trump has every right to pursue his legal remedies, but all the evidence is that so far that's been produced is that this election was conducted with integrity.

That's really the message I think we should hear from more Republicans. I hope we will, as this week goes by unless something changes. The Trump campaign comes up with some new theory to try to show that there was actually a major problem. So far, what we've seen has been really very small bore problems or allegations of fraud that are not backed by evidence.

Brian: Then to wrap this up, one of the strange things in the strange press conference at the Four Seasons landscaping business in Philadelphia on Saturday was when Rudy Giuliani was told the networks had called the race for Biden and his response was, and I won't attempt to imitate him because Kate McKinnon has their cover, "Networks don't get to decide elections, courts do. Now, courts decide elections, not voters. Well, the way to see the presidency, it's not who the voters choose. It's where you find the loophole."

Richard: Let me just say the fact that Rudy Giuliani and rather than one of the A-list Republican election lawyers is in charge of this that tells you all, you need to know. If there were a credible legal case that could be brought the people who'd be out fronting, it would look very different.

Brian: We will leave it there with Richard Hasen, Professor of Law and Political Science at the University of California at Irvine. You can follow him in his election law blog and his new book is Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy. Thank you so much for your clarity.

Richard: Thank you.

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