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Taking A Closer Look At The Legal Challenges To The Presidential Election

RACHEL MARTIN, HOST:

All right. We're going to try to get a better understanding of those legal challenges to the election that Mara just talked about. Michael King is going to help us. He's a law professor at Northwestern University, and he is an expert in election law. Michael, thanks for being here.

MICHAEL KING: Thanks for having me.

MARTIN: All right. So as we've talked about, President Trump's campaign has called for a recount in Wisconsin, filed suits in Michigan and Pennsylvania to try to stop counting ballots. Let's go through these cases one by one, and let's start with the recount in Wisconsin. I mean, the president is within his rights to ask for that, right?

KING: Yeah. In Wisconsin, as long as it's a close enough margin, he can ask for a recount. He may have to pay for it. He may have to pay for the expense of the recount. But he - as long as the margin is 1% or less, he can request it.

MARTIN: And what is the case the campaign is making for the lawsuit in Michigan?

KING: In Michigan, the lawsuit that I think you're talking about is really a process-oriented lawsuit, where they were claiming that they should have more access to the vote counting process and be able to observe and, I suppose, potentially object to certain votes being counted. I think the state of Michigan says that they're getting all the access that they should get. And there's some concerns about regulating the vote counting process in terms of COVID spread. They don't want too many people in the building.

MARTIN: So with something like that, it sounds like you're suggesting there isn't a lot of standing for the president's argument. How quickly does it make its way through the court so we can move on or evaluate if there's any truth to it?

KING: Yeah, it's hard to evaluate the merits from the outside without knowing a little bit more. But generally speaking, in this context, courts are pretty quick to address these and either craft some sort of remedy on the spot or dismiss the claims. They don't want to hold up the process at all.

MARTIN: If Trump's legal team successfully does argue that the campaign isn't getting enough access to observe the count in Michigan, how does that get rectified at this point?

KING: Well, they would give them the access that the court thinks that they're entitled to. I'm not sure if there's any merit to this claim because it seems like the Trump campaign does have some access, and it may be a question of whether they have enough. I think they were claiming that they should have an observer at every table, as I understand it. So I'm not sure exactly how a court's going to sort all that out. It's not clear to me that it'll change a lot of votes. I think that's a process-oriented claim where the counting would still go on. It's just the Trump campaign might have more access to watch what's going on. But it wouldn't necessarily change the votes and certainly not change the votes and the vote totals in any significant way.

MARTIN: Because the margin is just too large for the president to overcome based on the history of what recounts can expose.

In Pennsylvania - let's talk about Pennsylvania. The Trump campaign is also asking the court there to stop vote counting until they get more access for Republican observers. Same argument - is the situation any different in Pennsylvania?

KING: No. At least from the outside, I think the situation is the same. And so the facts on the ground might be a little bit different, but it's hard for us to know what's going on. I think in Pennsylvania, there are a few other claims that are kind of in the air. And as you probably know, the Supreme Court considered arguments regarding the state Supreme Court's extension of the mail-in ballot deadline to Friday. And so that's a claim where the Supreme Court potentially could get invited to get involved and is a little bit different than the Michigan claim.

MARTIN: Right. So - let's just clarify that. This is a different case the Trump campaign brought.

KING: Yeah.

MARTIN: The Supreme Court weighed in - the Supreme Court in Pennsylvania moved to invalidate - or the case moved to invalidate any mail-in ballots that were postmarked by Election Day but arrived after Election Day. The court said it might revisit the case after the election. I mean, what bearing will it have after the election?

KING: Well, I think the the overall takeaway here ought to be that all of this stuff, at least as it stands, probably wouldn't make a difference. Recounts really don't change the election margins by very much. I think the average of statewide recounts in the last 20 years is something like 230 votes changing the margin. So unless the margin in the election count is really close, most of this stuff won't matter. And the case like in Pennsylvania where, say, the Supreme Court were to intervene and say that the deadline extension to Friday is invalid under Pennsylvania law and orders Pennsylvania not to count all of the mail-in ballots that come in after Election Day by the Friday deadline extension, it probably wouldn't affect that many votes. All this stuff only really comes into play with a very close outcome where the election margin is in the hundreds, not the thousands and certainly not tens of thousands.

MARTIN: Right. But just briefly, could all the legal challenges - even if they don't change votes, could they delay the final election result?

KING: Well, I think a lot of this stuff has got to happen after the - at least we have a count. We don't have a count, which means that a lot of these claims are a little bit premature. And really, it doesn't really make sense for the campaign to throwing - to be throwing up all of these claims and engaging in such fiery rhetoric about fraud and being cheated about things when we don't even have an election result in the first place. So I don't think all of these claims will be resolved before we have a final count and shouldn't slow up the final count by very much. Whether it affects the final count, you know, in the recount process or a challenge process after that, it might. It might lengthen out the whole process before everyone feels satisfied about the result, but it shouldn't slow down the count process itself.

MARTIN: Understood. Michael King, law professor at Northwestern University. Thank you for your time this morning.

KING: Thank you.

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