Tanzina: President Trump has yet to concede the election, but the Trump campaign has already announced a number of legal challenges to the results in states like Pennsylvania, Georgia, Michigan, Arizona, Nevada, and North Carolina but the big question is whether these are a last-ditch effort by the president to remain relevant or whether they actually have legal merit. That's what my next guest and I are going to discuss. Mark Joseph Stern is a Staff Writer for Slate and he covers the courts and the law. Mark, welcome back to the show.
Mark: Thanks so much for having me back on.
Tanzina: Judges in Georgia, Michigan, and Nevada have already dismissed lawsuits filed by the Trump campaign. What were the legal grounds that judges had for dismissing those lawsuits?
Mark: Most of these lawsuits are really about process, not about substance. The Trump campaign has repeatedly argued across several states that legal observers, specifically Republican legal observers were not allowed to witness the ballot tabulation process closely enough, that they couldn't get close enough to make sure there was no funny business going on. That doesn't seem to be true.
These seem to be fabricated claims designed to throw a wrench in the vote tallying process rather than winning any extra votes for Trump. The reason judges have thrown them out is because they don't have much merits. The Trump campaign can say whatever it wants on Twitter, but when it gets into court and its lawyers are under oath, they have to speak the truth and the truth is there just isn't any mischief going on behind the scenes in any of these states.
Tanzina: Let's talk a little bit about Pennsylvania because they had been dealing with some legal issues even before the election started. Where does that stand now, Mark?
Mark: The Pennsylvania case is the strongest one for the Trump campaign by far. Pennsylvania law says that all ballots have to be received by November 3rd, but the Pennsylvania Supreme Court extended the grace period to November 6th for ballots that were mailed by Election Day. The Trump campaign has fought that very hard and four Supreme Court justices have already said that they would basically like to throw out those ballots.
The Trump campaign has been reminding the Supreme Court, "Hey, we've got these late ballots. The counties are segregating them and not including them in the vote count. They have not contributed to Joe Biden's victory there so far." Right now, it doesn't look like there are nearly enough of these late-arriving ballots to change the outcome of the election, to make any of this litigation worth it. It's in the thousands perhaps while Joe Biden's lead is in the tens of thousands. Even if the Supreme Court came in and said, "We've got to throw out every ballot that arrived in Pennsylvania after November 3rd," it would not give Trump that state and it would not change the outcome of this election.
Tanzina: Another state that the Trump campaign has its eyes on is Wisconsin. They've already said that they would ask for a recount there, where does that stand, and will they asking for a recount in any other state?
Mark: It looks like there will be a recount in Wisconsin, but the reality is that recounts usually only change a few 100 votes at most. If you have a super-thin margin, a few dozen or a few 100 votes separating the winner and the loser, then a recount can be a nail biter, but right now Biden is ahead 20,000 votes. It doesn't look like it's going to change anything. After Jill Stein paid for a recount in 2016, Donald Trump ended up getting a few more hundred votes than the initial count had found.
That will happen, but it probably won't change anything. I believe the Trump campaign will seek a recount in Georgia as well, possibly Arizona and Nevada, though it's too soon to tell. Again, as thin as those margins are, we're talking in the thousands or tens of thousands, not in the hundreds, so they don't seem likely to change anything.
Tanzina: It feels like there isn't a lot of merit to a lot of these lawsuits. We've said some of them have already been tossed out. This is really an attempt at what? The president is trying to stay in the conversation. He's trying to delegitimize the election. The Biden campaign is moving forward with its transition, so what is the point of all this?
Mark: I think there are two goals here on Trump's side. The first goal is to sow doubt and distrust in the legitimacy of this election and its results. Donald Trump has said pretty clearly he does not plan on conceding and this gives him an off-ramp. He can say, "Okay, well, I'll leave the white house on January 20th, if you make me but I don't believe that I really lost this election. I think if it had been a free and fair election that I would have won and that you guys were up to some mischief that stole it from me."
Not true at all, but that's pretty clearly what he plans to say. I think the second goal here is a more typical standard Republican play which is to lay the groundwork for voter suppression laws in the future. Over the last 20 years or so, the Republican Party has committed itself to a slate of laws that make it much more difficult to vote. Things like draconian voter ID requirements, cuts to early voting and they've done all of this in the name of preventing voter fraud.
I think after this election wraps up when Trump is out of the White House, whether he's dragged out or leaves freely, Republicans in a lot of these states are going to go back and say, "Hey, we believe the president. We believe that there was fraud. In order to stop this fraud from continuing, we're going to have to crack down on voting, make it more difficult in ways that almost always disproportionately affect racial minorities and low-income people. Of course, people who do not traditionally support the Republican Party."
Tanzina: Now, of course right before the election or at least Joe Biden won the Electoral College votes needed to become president. There were a number of Supreme Court decisions about really essentially giving and leaving power in terms of the voting process in the hands of the states, Mark, do you see that changing?
Mark: No, not at all. In fact, the Supreme Court's conservatives have been pretty strident in the last few months about leaving the rules of an election entirely in the hands of a state legislature saying, "This is no place for the federal courts to step in and meddle with the rules." Some of the very far-right conservatives have even said, "This is no place for state courts to step in. In fact, the state legislature has total control over this process. If the legislature wants to make it really difficult to vote, that is its constitutional prerogative."
With this new six to three conservative majority, I really doubt that the Supreme Court will ever strike down a voter suppression law. It seems like the states have free reign now and for the foreseeable future to make voting more difficult and we will see the results of that over the next couple of years in the elections to come.
Tanzina: Speaking of making voting more difficult, one of the reasons that at least many people are saying that Georgia flipped for Joe Biden was because Stacey Abrams and her coalition of folks down there wanted to make voting more accessible. Are you seeing more of that? Will this inspire more movement on that front? People like Stacey Abrams, to make the process much more accessible for votes?
Mark: Absolutely. This has become a chief democratic priority and it seems to really excite the base and democratic voters. They love this idea of pushing back against voter suppression, standing up for democracy with a small D, saying, "This is not a partisan issue. Everyone should be able to exercise the franchise if they so choose." I think we will see more people like Stacey Abrams in other states that are just now turning purple saying, "Hey, let's make it easier for people to vote. Let's make sure everybody has a voice in their elections," and pitching that again, not as a political question, but as a way to bring America further into the 21st century and to make it more of an open democracy where everybody has a say.
Tanzina: Mark Joseph Stern is a Staff Writer for Slate covering courts and the law. Mark, thanks for being with me.
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