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Approaching the last day of voting in these midterms, lawsuits have been filed targeting the elections process in several key states. The challenges take issue with how votes are being cast and which ballots get counted. The lawsuits threaten to slow down the final vote counts and the certification of some results. Election law expert Rick Hasen joined William Brangham to discuss the cases.
As we approach the last day of voting in these midterms, scores of lawsuits have already been filed targeting the elections process in several key states.
William Brangham has the latest.
That's right, Judy.
More than 100 legal challenges have been filed in battleground states. They take issue with how votes are being cast and which ballots get counted. The lawsuits threaten to slow down the final vote counts and the certification of some results in key races.
For more on what this all means for the midterms, I'm joined again by election law expert Rick Hasen. He's the director of the Safeguarding Democracy Project at UCLA's Law School.
Rick Hasen, thanks so much for being back here.
One of the sort of set of lawsuits that have been filed are around mail-in and absentee ballots and when those get counted and which ones get counted. Can you explain what's going on there? Who's filing those suits? And what are they arguing?
Rick Hasen, UCLA School of Law: So, you're right that a lot of the lawsuits involve mail-in balloting, in part because we saw this huge uptick in mail-in balloting during the 2020 election because of the pandemic.
And lots of states really had to ramp up, and there were questions about procedures that were going to be followed. Some of those questions have been answered. Some of them haven't. But one of the things that happened in 2020 was that Donald Trump cast aspersions on vote by mail, claim that it was the way towards fraud.
And so we have seen Republicans filing lawsuits trying to challenge certain kinds of absentee ballots or procedures. One big case is in Pennsylvania over what happens when someone sends in a timely ballot, it arrives on time, but there's no date on it.
So we're seeing these kinds of lawsuits. We're also seeing voting rights lawyers and Democrats suing over the uncertainty of certain rules as well. We just had a ruling this afternoon in Georgia where some voters in Cobb County, Georgia, had not received their absentee ballots, and a judge has issued an emergency order to make sure they have a way to be able to vote on Election Day.
A point of clarification here.
Is the assertion being made by these largely Republican lawsuits against mail-in ballots, is there any evidence that these technical issues that they're arguing are somehow evidence of fraud? I mean, is there any connection there that they're trying to throw out ballots that anyone could look at and say, oh, these are fraudulent ballots?
Some of the claims are that the rules are too loose and they allow for fraudulent ballots to be cast.
Some of the claims are really that the election administrators are not following the rules as they were set out by the legislature. That's a separate argument, but it's one that we heard Donald Trump make and others make, that the legislatures have certain powers over how federal elections are conducted, and when there's any deviation, that is not only potentially a violation of state law, but a violation of federal law.
That's an issue that's currently pending before the Supreme Court in a case called Moore vs. Harper. So we're seeing kind of these twin arguments. Some are about trying to prevent fraud, others claiming that election administrators are just going too far in how they're interpreting what the rules are in each state.
You mentioned briefly the Pennsylvania case. Can you tell us a little bit more about what's at stake there and how many ballots we could be talking about?
Well, apparently, there are thousands of ballots that are coming in where people did not record a date.
And we know the ballots are timely because these ballots have already arrived. We're before Election Day. And so the question is whether or not they should be counted. There was earlier federal litigation claimed that under federal law, if you make an immaterial mistake on your ballot, it has to be counted as just a matter of civil rights.
But the — there's also claim under state law, what should the state law be? And just over the weekend, you had the Pennsylvania Supreme Court dividing 3-3 the question because they just had a justice who passed away. They're evenly divided. And now some plaintiffs have gone to federal court trying to get a new ruling.
And so there's a lot of uncertainty. Even in the middle of this, the state Supreme Court had to issue a second ruling explaining how its ruling was supposed to work. So, if we have a very close election, say, for example, for the U.S. Senate seat in Pennsylvania, which everyone's watching very closely, it's possible the resolution of the election will depend upon how this legal question is answered about these timely, but undated absentee ballots.
Separately, as you well know, there are certainly a large number of people running for office who have cast doubt about the 2020 election and said that there was fraud and stolen votes in that election.
There have also been a small army of people deputized to go out there, on this belief that there is widespread fraud, to watch polling stations, to monitor ballot boxes. That has caused some people to express real concern that there's going to be intimidation, perhaps violence or harassment at the polls.
Is that something — is that a concern that you share that we might see tomorrow? Well,
we already saw some of this happening in some counties in Arizona, where there were some self-appointed people to — coming out and standing in front of drop boxes, some of them armed and with tactical gear.
A federal judge had to issue an injunction to make sure that people had unfettered access to the polls. So we could see that tomorrow on Election Day. It's certainly something I'm worried about.
I'm also worried about, as we saw in 2020 after Election Day, it takes a while to process all those absentee ballots, especially in those states, like Pennsylvania and Wisconsin, that don't allow for early pre-checking of these ballots to make sure they're accurate and are ready to be counted.
And so we have seen protests and potential for violence at places where votes are being counted. So, I'm concerned not only for voters, but for election officials and election workers.
All right, Rick Hasen of UCLA Law School, thank you so much.
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