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What we know about vote counting and election-related lawsuits

President Trump has made it clear he is willing to challenge the results of state vote counts that have not yet been completed. What legal recourse do candidates have in this situation? Amna Nawaz talks to Tammy Patrick, an expert on election administration with the Democracy Fund and a former Arizona election official, and Stanford Law School’s Nate Persily of the Healthy Elections Project.

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  • Judy Woodruff:

    The push to drive voters to the polls is one aspect to winning an election.

    But, tonight, we are again witnessing a different tack.

    Amna is back to unpack the legal challenges ahead.

  • Amna Nawaz:

    That's right, Judy.

    To help us make sense of this moment, I'm joined by Tammy Patrick. She is an expert on election administration with the Democracy Fund and a former elections official in Arizona. And Nate Persily, a professor at Stanford Law School and the co-founder of the Healthy Elections Project, which has been tracking coronavirus-related election litigation.

    Welcome back to you both. And thanks for being here.

    Tammy, I want to start with you, because the process is still very much unfolding. And one of the things we have noticed is, transparency has been sort of the name of the game for many elections officials. We saw from the Wisconsin Election Commission that was tracking tweets as they were explaining what they were doing and what was going on.

    Philadelphia, as has been mentioned, has this livestream up where you can watch the ballots being counted, if you so choose to spend your time that way.

    Take us inside the states where the count is still continuing, though. What is going on? How does that unfold? And why is it taking the time that it is?

  • Tammy Patrick:

    Absolutely. And it's great to see you all.

    So, what we're viewing here — and this looks like it's the Philadelphia processing center — is that there were a number of states that election officials both at the state and local level had asked if they could have some additional time to process the ballots before Election Day.

    And that's a very standard protocol in many, many states, where you can actually open up the envelopes, do your verification of the voter, and make sure that it is, in fact, the voter that voted that ballot, and then get it ready for processing and scanning, and then, on Election Day, totaling up all of the votes.

    But, unfortunately, in this moment, there were too many states — and some of the ones we're waiting on — that their legislatures and others stepped in with court orders and prevented them from really processing before Election Day.

    If you think about what we're seeing in these pictures, contemplate when you open your mail at home. Now magnify that by millions of envelopes. And, in the state of Pennsylvania, we heard a lot about naked ballots and having multiple envelopes, actually, for every ballot packet that comes in.

    So right now, we are literally watching, in the case of Detroit, about 900 or so individuals opening up envelopes, getting the ballots out, flattening them out, making sure that they're ready to go through the tabulators. And that all takes time.

  • Amna Nawaz:

    Nate, let me ask you about this idea that we have heard from President Trump and his campaign that the vote should stop.

    We know that they have — the campaign has filed suit in Michigan and in Pennsylvania to halt the vote. Nate, give us a sense of what the impact of those kinds of legal challenges could be in states where the vote has already been called and where it has yet to be called.

  • Nate Persily:

    Well, let's just be clear that the vote has happened. The vote can't be stopped. The question is whether the counting is going to be stopped.

    And, right now, they're processing the ballots, and then they count them through the machines and, if necessary, by hand. And so, right now, all we're seeing is the normal process of tabulating the absentee ballots, figuring out what the final totals are.

    If there is a dispute over how those absentee ballots were handled, or whether some of them were legitimate or not, well, then we have, either through a recount or other kinds of litigation, then you will have some contest of the results.

    Right now, the different — and there are many different cases that have either been threatened or are already in court. They have sort of several kind of common themes to them. The first is that they're trying to sort of bring up a lot of dust to sort of cloud the election results, right?

    It's not clear what the issues are going to be with these absentee ballots that are leading to alleged fraud or the like. But the themes that you see in these cases are allegations that the local officials allowed some people to cure their absentee ballots, meaning that, if there were defects, they just allowed them to correct those mistakes, allegations that there may have been even political preferences that sort of got into the mix there as to how they allowed certain voters to cure depending on the — depending on the locality and the like.

    But then, as one of your reporters mentioned before, there's the allegation that you didn't have adequate observation of the process. And that's what they're suggesting was happening in Philadelphia and elsewhere.

  • Amna Nawaz:

    Well, Tammy, we just heard Nate mention the recount issue, which a lot of people have questions about, because the Trump campaign has now said they will request a recount in Wisconsin, which was called for Joe Biden.

    What does that look like? Can a recount be triggered just like that?

  • Tammy Patrick:


    In fact, there are a handful of states, a number of states where there is an automatic trigger for a recount. So, if the measure of victory is within a certain percentage point, there's automatically a recount. It's also the case that, in some states, they have where you can't ask for a recount.

    They have what they often refer to as sore loser laws, because, quite often, we know that individuals that didn't receive as many votes as they thought they should or they thought were cast for them, it's very difficult for them to believe such a thing. So, states have protocols in place to both trigger an automatic recount, if, in fact, it is a very close race, others, prevention of frivolous lawsuits.

    And then there are some that, if you want to pay for it, you can have a recount. And that's where it's really quite the landscape. But it is important to know that there are — as Nate mentioned, there are no new ballots being cast.

    These ballots being cast are just being counted. And many of these ballots have been in the possession of the local election officials for days, and if not weeks. They just weren't allowed to process them.

  • Amna Nawaz:

    It's an important clarification, as folks are looking for that information.

    That is Nate Persily and Tammy Patrick joining us tonight. Thanks to you both.

  • Tammy Patrick:

    Thank you.

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