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An election law expert on what he sees in Trump’s lawsuits

President Trump and his allies continue to attack the integrity of the vote-counting process. They have taken multiple complaints to court across several of the battleground states that have yet to be called. Some lawsuits seek process changes, while others aim to invalidate specific votes. Election law expert Rick Hasen of the University of California, Irvine joins Jeffrey Brown to discuss.

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  • Judy Woodruff:

    As we have heard tonight, President Trump and his allies have continued to attack the integrity of the vote-counting process, with so far unsubstantiated claims of fraud.

    In some cases, they have taken their complaints to court across several of the battleground states that have yet to be called.

    Jeffrey Brown takes a deeper look.

  • Jeffrey Brown:

    Judy, the lawsuits do keep coming as late as this afternoon in Pennsylvania.

    We're going to try to bring some order to this with Rick Hasen. He's an election law professor at the University of California at Irvine, and author of the book "Election Meltdown."

    Rick, thanks for joining us.

    Do you see a pattern so far to these legal challenges? Are there — are there specific categories that you can put them into?

  • Rick Hasen:

    Yes, they're pretty much small-bore cases. They're not really major cases.

    Most of them are trying to do something like get better access for Trump observers to be able to get into polling places. That might be to try to slow the vote count down in places where Trump is trying to stop a — like in Pennsylvania, a Biden win.

    There was one case of an allegation of illegal ballots being counted in Georgia, and a court found that there was no evidence for that. There have been suggestions that they're going to file suit, either for a recount in Wisconsin. They have claimed that there are non-residents voting in Nevada.

    But they haven't proposed these suits yet. And they haven't produced any evidence to support the kind of claims in these suits yet.

  • Jeffrey Brown:

    Are there lawsuits out there, or potential lawsuits, that you are watching for carefully that might have real consequences?

  • Rick Hasen:

    Well, so, in order — if you're talking about in terms of affecting the outcome of the presidential election, it's really unlikely, because what you would need is something like we had 20 years ago in Bush vs. Gore.

    We had one state. The presidential election came down to the Electoral College votes in the state of Florida. And, in that state, the race was so close. It was within a few thousand votes. And it eventually came down to 537 votes in the state that you could start litigating over particular rules or over particular ballots.

    For that to happen here, if it's not a very close race in the Electoral College, then these lawsuits won't matter. And even if it is, the — if we take, say, a recount in Wisconsin, most recounts statewide don't shift a lot of votes. There's a 20,000-vote difference in Wisconsin. And most recounts shift fewer than 300 votes, according to a study that's looked at this over the last 15 years.

    So, it's really hard to say.

    The only one that I think is potentially plausible, if it came down to Pennsylvania, and if Pennsylvania was very, very close, is a fight over these ballots that arrived after November 3 at 8:00 and by November 6, pursuant to a state Supreme Court order.

    The parties are litigating in the United States Supreme Court over this case. But it's not clear to me. If Biden's ahead, Trump might actually want those ballots to be counted, rather than, as he's saying now, to stop those ballots from being counted.

  • Jeffrey Brown:

    Tell us about the burden of proof in cases of election law.

    And I ask because we are seeing governors, we just heard from the Arizona secretary of state, explaining to the public that they're taking their time, they want to make sure that all the votes are counted, that the process is right.

    But how much deference do courts typically give to state government in cases like this?

  • Rick Hasen:

    Well, so, if you're talking about a case where you're trying to actually contest the outcome of an election, the burden of proof is very high.

    You would have to show either that there were illegal votes cast in such a way that it would potentially cast a cloud over the election, you wouldn't know who actually won the election, or you would have to point to some procedure that wasn't followed that could be outcome-determinative.

    It's really hard to get a court to order something like change an election result or something like that. Some of these lawsuits might be successful. For example, in Pennsylvania, you had an intermediate appeals court today provide greater access to the Trump campaign in Philadelphia, so that they got poll observers, instead of being 20 feet away, they were six feet away.

    So, you can get some relief in election cases, but it's not the kind of relief and these are not the kinds of cases that are really going to change the outcome of a presidential election.

    Unless they come up with something much bigger that was a problem, it's really hard to see a litigation strategy to try to flip the results of this election if Biden ends up on top.

  • Jeffrey Brown:

    And just in our last minute, Rick, what is the process? We see cases, some going to state court, some going to federal court.

    Of course, what everybody wonders is, how long does this go on? Right now, we're talking about how long the actual counting goes on. Is it possible that the legal cases drag on for some time?

  • Rick Hasen:

    The legal cases could potentially drag on for weeks or even longer.

    But I don't think that anyone's going to be paying much attention if, for example, it's a lawsuit over Pennsylvania, and those ballots at issue are not determinative, or Pennsylvania is not determinative to the outcome of the Electoral College.

    So, it really depends on how things shake out. But I — right now, I'm not seeing anything that is suggesting this stuff is significant.

  • Jeffrey Brown:

    All right, Rick Hasen of the University of California at Irvine, thanks for helping us out.

  • Rick Hasen:

    Thank you.

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