Here’s what law and history say about challenging election results

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    As we heard earlier, Donald Trump continued to suggest today that he might not accept the results of the November election if he doesn't win. But should he lose, could Trump legally challenge the results? And how would that process work?

    To examine some of these questions, we are joined now by Chris Ashby. He's a Republican election lawyer. And Beverly Gage, she's professor of American history at Yale University.

    And we welcome both of you to the program.

    Beverly Gage, to you first.

    Have we ever seen anything quite like this before?

  • BEVERLY GAGE, Yale University:

    We have not seen anything like this before, Judy.

    There have been contested elections in the past. And those are often close elections, where, once the results are in, they seem uncertain, and so you have a variety of appeals. But we have never had a major party candidate say this far in advance that the only legitimate outcome of only an election is his own victory. That is unprecedented.


    But, as you say, we have had contested elections after the fact. And we certainly — everyone who is at least of a certain age remembers 2000, Bush v. Gore. But there have been others in American history, haven't there?


    Right, there have been contested elections and really fiercely fought elections with a lot of bad feelings almost since the beginning of the republic.

    What those have always produced is, with one pretty big exception, is the peaceful transition of power. That exception, of course, is 1860, where much of the white South said that they wouldn't accept Abraham Lincoln's election as president, and we got the Civil War as a result.

    But with that pretty big exception, everyone, despite challenges, has ultimately come around. Other than 2000, probably the famous one in recent memory was 1960, which was this squeaker of an election between Kennedy and Nixon, in which Nixon to some degree challenged the election, but himself stepped aside.


    And we know there was a dispute about that one.

    Chris Ashby, let me just play devil's advocate here, because what Donald Trump is saying — and he said this today — he said, I want to reserve the right to file a challenge in case of a questionable result.

    Is that not a reasonable thing for him to do?

  • CHRIS ASHBY, Election Lawyer:

    No, it's not because it's a statement of the obvious. He doesn't waive his right. He doesn't need to claim that right now.

    What he should do is say what every major, indeed every presidential candidate before him has said, which is, I will accept the outcome. And then, after the election, if there is some evidence that an election of electors in a particular state was tainted by fraud, then he could pursue that.

    But by saying it now, he's undermining the legitimacy of this election and the individuals who it elects. And it's very dangerous and it's destructive to the country.


    Well, let's talk for a moment about what would it take to trigger a challenge.

    How off would the results have to be in order to — for there to be warranted a legitimate challenge to the results?


    Well, the standard here in a challenge would be a significant number of votes that could be proven, right?

    You can't just say that there was generally fraud. You have to know how many votes either from fraud or by mistake. And it has to be enough votes to cover the margin between the candidates. And so, if you think that you have to go out and actually get this evidence, you have to find voters, you have to election records, and you have to quantify this, and you have to do it in a time period of about a month.

    The election would have to be pretty close in order for them to have any chance of quantifying a difference between the two candidates.


    So, when you say pretty close, how close do you mean?


    Maybe a few hundred, maybe in the low thousands of folks. And even that would be a high bar.


    And we're talking state by state.


    That's right, because the contest is not of the presidential election. It's of the electors. And that happens in 51 different states and the District of Columbia.

    And so you are bringing a contest to the election of the electors. And you would have to bring enough state contests to cover the difference in the Electoral College. And if this election heads the way that it appears that it's heading, that could be hundreds of electoral votes that we need to swing in a contest decided by multiple states at once. It's a very, very high bar.


    So, Beverly Gage, back to what we have seen historically in American elections, what's an example of a time when — I mean, you can talk about 1960, 2000. I mean, dig a little bit deeper into what it would take to trigger something and then to pursue it.



    Well, one thing to note about the 20th century, for the most part, we haven't had particularly close presidential elections. So, Chris is right, that it would need to be incredibly close for anything like this to happen. And that's actually fairly unusual, though we have gotten a little bit more used to it in recent years.

    So, 1960 was really a razor-thin count. And, at that point, Nixon didn't concede overnight, but he did concede in the morning. The Republican Party itself, however, went ahead and challenged various election results in states like Illinois, in Texas. Sometimes, that was through the courts. Sometimes, that was through recounts.

    But there was never any truth that there had been any fraud significant enough to change the outcome of the election. And Nixon himself actually always took it as a point of political pride that, though he harbored a heavy heart in that moment, he in fact conceded to Kennedy for the good of the country.


    And, Chris Ashby, let's talk for a moment about 2004, Ohio, John Kerry. The Democrats challenged some of how that state, the state of Ohio came out.

    It went for Bush in 2004, but there were questions raised.



    And they raised those questions in Congress, and Congress disposed of those questions pretty quickly. In the absence of some kind of compelling evidence of fraud or of mistakes in the conduct of the election that affects the outcome, I just don't see people having much patience or time for this type of a challenge.


    The other question, Chris Ashby — and we have discussed this on the program earlier this week — Donald Trump is saying to his supporters — and he's said this in several different parts of the country — you need to go and watch what's happening at polling places.

    What would that mean, if that happened?


    Well, that's a very dangerous situation, because, in most states, they're not going to be allowed in.

    Most states require poll watchers to have some sort of credential, some type of training and potentially understanding of the process that they're observing. Even in those states where any member of the public can walk in and observe, they're not going to get anywhere near a voter, anywhere near a poll booth, anywhere near an election official.

    And if they try to interfere with the conduct of the election, they're going to be removed. And when they either can't get in or are taken out, I think that's just going to feed right into the suspicion that led them there in the first place.

    And now you play this out in polling places across the country, and you broadcast it on the news, and it gets picked up on the Internet, it's a very, very flammable situation on Election Day.


    Finally, Beverly Gage, remind us what it means in our democracy that we are able to count on and respect the results of our elections.


    One of the most important things really since our founding has been the peaceful transition of power. It is something that every president has really prided himself on.

    And if you think back to the founders, those were people with a living memory of revolution. They had seen it in Europe. They had experienced it themselves, and they understood that it was absolutely critical to affirm the electoral system and to see that power could pass peacefully.

    And it was one of the great points of pride for the country and has been almost always ever since.


    And this is another moment for us to think about that and remember what it does mean for our country and for our system of government.

    Beverly Gage, Chris Ashby, we thank you both.


    Thank you.



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