The Daily Signal - Election Night in Review: A Legal Expert Explains What We Know

Episode Date: November 4, 2020

Results are still rolling in amid what many anticipate to be a contested presidential election.  Hans von Spakovsky, manager of The Heritage Foundation’s Election Law Reform Initiative and a senior legal fellow in Heritage's Meese Center for Legal and Judicial Studies, joins "The Daily Signal Podcast" to break down what we know about Tuesday's election and the likelihood of results being contested in court.  Von Spakovsky also shares his concerns over nefarious activity at polling sites in the battleground state of Pennsylvania, and what Americans can learn from contested elections throughout history.  Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

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This is the Daily Signal podcast for Wednesday, November 4th. I'm Virginia Allen. Today's show is a special election edition. We will be talking with Hans von Spikovsky, the Heritage Foundation's Manager for Election Law Reform Initiative, and a senior legal fellow in the Meath Center for Legal and Judicial Studies. Hans will discuss what we know so far about election results, the battleground state of Pennsylvania, and what may be to come. And please, don't forget if you are enjoying this podcast, be sure to leave a review and a five-star rating on Apple Podcasts and encourage others to subscribe. I am joined by Hans von Spakovsky, the Heritage Foundation's manager for election law reform initiative, and a senior legal fellow in the Meath Center for

Legal and Judicial Studies. Hans, thank you so much for staying up late to discuss what we're seeing as election results roll in. Well, sure, happy to do it. I was suspecting we may be at most of the night tonight. I know. We have that coffee flowing already. We know that things are literally changing by the minute, but the Associated Press, they've already called a number of states. Any surprises for you so far among the states called?

Well, I think what's most interesting is, well, obviously, the president won Florida. And what's interesting to me is that his margin of victory is even larger, apparently this year than it was four years ago against Hillary Clinton. And he seems to be getting the largest share of the Hispanic vote, frankly, of any prior Republican president, which goes against the mainstream media and everything they've been saying about the president and the accusations they've been making against it. And you mentioned Florida, we've all been watching that race very closely. it is in some ways I feel like a miracle that it's already been called. One of the other states that we've really been paying close attention to is Pennsylvania.

And many people say that among the swing states, Pennsylvania is really one of the most important. They have 20 electoral votes. But throughout Election Day, we saw the Philadelphia GOP raising concerns over nefarious activity at pulling sites. What do we know about the possibility of election interference in Pennsylvania? Unfortunately, Philadelphia today has really replaced Chicago and the old Mayor Daly Machine as one of the dirtiest places in the country. They've had numerous election fraud cases in Philadelphia just within the last two months. For example, a former Democratic congressman who's become a political consultant was indicted in Philadelphia by the U.S. attorney for bribing a local election official for stuffing the ballot box with fraudulent ballots in Philly elections, in multiple elections. And what we've seen today apparently is there are photographs of Democrats campaigning and electioneering.

inside polling places, which of course violates the law, state law, and also those same kind of election officials who are allowing electioneering to go on illegally in the polls, refusing to allow qualified poll watchers for the GOP into the polling places, basically defying state law and refusing to allow observers in, all of which, you know, makes me highly. suspicious about what's happening inside the polling places there. So, I mean, obviously, you can't undo what's already been done. So, I mean, how are those kind of situations handled? What have we done in the past to kind of go in and look at, okay, what votes were maybe, you know, illegitimate or where are areas where we think like, okay, these votes should maybe be tossed out? Well, the problem is you can't really do that because once a ballot goes into the ballot box, you lose it. I mean, you know, the anonymity of the ballot box, there's no way to pull out a vote, for example, that perhaps was illegally cast. What needs to happen is the individuals, for example, who were electioneering

inside the polls need to be prosecuted. The election officials who refuse to allow observers in need to be fired and potentially prosecuted under state law to try to. to make sure that kind of thing does not happen again. But remember, the other problem we have in Pennsylvania is, and this depends on how many outstanding absentee ballots come in after election day. Remember, the state Supreme Court there extended the deadline for the receipt of absentee ballots until after election day, something they really didn't have the authority to do, but they did anyway.

Plus, they told election officials they would have to accept those absentee ballots, even if there's no postmark on the ballot envelopes indicating that they were voted by the end of election day. Plus, they also told election officials that they couldn't reject absentee ballots, even if the signatures don't match on the absentee ballot and the signature on file. All of that makes me highly suspicious

about how absentee ballots that are received after election day will be treated. Now, if those absentee ballots, If the number of them is less than the margin of victory, well, then it's not going to make a difference. But if there are still a large enough numbers of outstanding absentee ballots, they could change the outcome of the election, then we're going to have to examine that very closely and make sure that there's no fraud going on. I mean, to me, that just sounds like a recipe for voter fraud, for really welcoming voter fraud when you have the Supreme Court ruling that you have the Supreme Court ruling that you, you can mail a ballot up until election day. And even if that ballot doesn't have any sort of proof of when it was mailed on it, it's still going to be counted. I find this really,

really concerning. Oh, no. I think it is concerning. And I think it was a terrible decision by the Supreme Court, frankly, and the Chief Justice, do not overturn what the Pennsylvania Supreme Court had done. It's particularly concerning when you realize just that just in the neighboring state, for example, of New Jersey, look, we only just recently had four locals criminally charged with absentee ballot fraud in an election in Patterson, New Jersey. And Pennsylvania, like I said before, has a long sad history of absentee ballot fraud, including, by the way, the dishonor of having one of its former members of Congress criminally charged and convicted with absentee ballot fraud when he basically stole absentee ballots from senior citizens in a senior citizen's home.

Wow. Now, President Trump, he does have a legal team in Pennsylvania that's working to try and ensure that votes are counted accurately and that results are accurate there. But what do you think the chances are that Pennsylvania's race does turn into a legal battle? I think it boils down to how close the margin of victory is. And again, if the number of outstanding absentee ballots received after election day, or the number of absentee ballots that are rejected by election officials for, you know, not complying with state law, if the number of those absentee ballots is larger than the margin of victory, then I think we'll for sure probably see litigation over those ballots. Are there other states where you think it's likely that we could see that they'll be

highly contested and ultimately wind up in court? The potential is there for Michigan. I think the potential is there for Ohio and Wisconsin. But again, it simply depends on how close the margin of victory is. If it's if the margin of victory is very small and very slight and again, the number of absentee ballots or provisional ballots are enough to make the difference, then I think we will see litigation. If not, then hopefully we'll have a clean election and not have to worry about the courts getting involved. We're going to take a quick break, but we'll be back in just a moment for more election news with the Heritage Foundation's legal fellow Hans von Spokoski, so don't go anywhere.

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All right, welcome back, Hans. We've been discussing the battleground state of Pennsylvania and what may unfold there if we might end up seeing some state races contested in court. How common is it for election results to be contested? And have we seen this in elections throughout history? We have seen it in elections throughout history. We have an election fraud database. for example at the Heritage Foundation and you'll find numerous cases in there of

election results being contested probably the most prominent one in in recent history was just two years ago in the ninth congressional district race to 2018 which was overturned because of absentee ballot fraud by a political consultant in that race and six staffers working for him and because of of that fraud, a new election had to be held. We saw the same thing. Also, just very recently, again, I talked about Patterson, New Jersey,

where four locals were charged with absentee ballot fraud just within the last two months. And there, again, they had to order a new election because that fraud brought into question the validity of one of the city council races there. The election of 1870, between Rutherford B. Hayes and Samuel J. Tilden. It was very, very controversial.

I know you've done some research and writing on this election. Can you explain why that election was so contested? And then are there similarities that you think we can draw between that election and 2020? Yeah, what happened in 1876 was that it was really bizarre. Florida, Louisiana, and South Carolina could not determine who had won the presidential race in their state. And because of that, they actually submitted certificates of election for both candidates. In other words, they didn't know which set of electors for the Democrat or the Republican should be able to vote in the electoral college. So instead, they submitted, like said, list certificates of elections for both candidates, for both sets of electors to the U.S. House.

And the U.S. House had to set up a commission to review the ballots in the three states and determine who would get the electoral college votes of those three states. They ended up, it was a bipartisan commission, but they ended up awarding all the contested ballots to Rutherford to be, Hayes, not, it was the Republican, not Samuel Tilden, the Democrat. And Samuel Tilden actually supposedly was listed as having a larger popular vote than Rutherford B. Hayes. And I think many often mistakenly point to that race as another instance of the presidential candidate who actually lost the popular vote, winning the electoral college vote and winning. The problem with that analysis is that there was massive voter suppression in southern states, the former Confederate states, to prevent African Americans who were newly

able to register and vote from voting. And because of that, obviously, it was Samuel Tilden, who was the Democrat. He got the advantage of that. And there are many historians who say that if that had not occurred if the black vote had not been suppressed, Rutherford B. Hayes, as the Republican, the party of Abraham Lincoln and the party that African Americans voted for overwhelmingly, probably actually would have had a larger national popular vote than the Democrat, Samuel Tilden. Wow, fascinating. So what are the lessons that we today should take from that election in 1876? Well, the key thing is that the states need to determine the outcome of their election by the first week in December when the electoral college meets and the electors actually

cast their vote for the presidency. They want to be sure that all issues have been resolved and they are able to decide which of the electors, whether it's the Democratic electors, or the Republican electors, have gotten the majority of the popular vote in their states and should vote in the Electoral College meeting at their state house. We do not, they do not want to be put in the position that these three states were in 1876 of sending two sets of electors to the House. Hans, thank you for sharing it. That's fascinating.

Now, President Trump has himself said that he thinks this election will ultimately end up in the Supreme Court. What are your thoughts on that? And if President Trump is correct, what exactly would that entail and how long would that process then take before we actually know who the winner is? Well, there have been more lawsuits filed this year, election lawsuits than I've ever seen. And all the time I've been working in elections, which is quite a while. And the Supreme Court actually has seen case after case after case, particularly in the last month before the election of emergency appeals contesting decisions made by state courts and lower federal courts changing the rules set by state legislatures that apply to voting, particularly, for example, rules extending the deadline for the receipt of absentee ballots as has happened in Pennsylvania. And I suspect what the president is probably referring to, again, is if we have a close election in a particular state that's vital to determining who has won the electoral college votes, therefore the presidency, that may end up in court because there may be disputes over absentee ballots that were counted or not counted and rejected. and that could end up before the Supreme Court if, for example, different counties within the same state use different standards for determining whether an absentee ballot should be counted or not.

And the big thing that the Bush v. Gore decision said back in 2000 was you have to use the same rules within a state to determine what counts as a vote and what doesn't. You can't have varying rules. Hans, you've mentioned a couple times the Heritage Foundation, voter fraud database. You run that database. And from what you have seen so far, are you concerned that there was widespread voter fraud during this election? Well, I wouldn't use the word widespread. I think that's a word that critics always use to say, oh, you know, there's no widespread fraud, therefore we don't need to worry about it. What we need to realize is the truth of what the Supreme Court said back in 2008, which is that the U.S. has a long history of voter fraud. It's documented by journalists and historians, and it could make the difference in a close election.

And that, of course, is the key. We have close elections all the time. So could it make a difference in this election? Well, that depends on if it occurs and how much of it occurs and whether it's enough to swing a close election. And we're not just talking about the presidency, but, you know, congressional races, state house races, and local races. And again, I worry about it because of the huge increase in absentee ballots. And absentee ballots are the only kind of ballots that are voted outside the supervision of election officials and outside the observation of poll watchers, which destroys the transparency of the election process. And it concerns me because, unfortunately, fraud is easier to commit with absentee ballots. And how hard is it to actually find out

if fraud has occurred? What does that process of investigating it look like? It's extremely difficult, particularly after an election. And most of the cases are cases where the people involved in this made stupid mistakes, which if they hadn't made them, it would not have been detected. And there's so many different kinds of fraud. It's hard to kind of specify particular ones. But for example, with absentee ballots, it's easy to steal those. it's pretty easy to alter them. But if folks make mistakes in, for example, putting a huge bundle of absentee ballots,

you know, one person taking a large number of absentee ballots and delivering them to election officials, instead of spacing them out and just delivering a few at a time, that might be an indication to election officials that there's a problem if somebody shows up with 200 absentee ballots. Yeah. Hans, as you've mentioned, there were a lot of court cases about ballots and counting votes in the weeks before Election Day. Do you think that any of those cases had a large impact on the election itself? Well, yes, some of them may have a big impact, particularly, for example, we keep going back to Pennsylvania, but in Pennsylvania, I think extending the deadline for the receipt of absentee ballots past election day.

And the same thing occurring in North Carolina, the State Board of Elections, despite not having authority to do it under state law, extended for more than a week. After Election Day, the deadline for receiving absentee ballots, that could make a difference in these two states, both of which are key battleground states and both of which the election could be extremely close with a very small margin of victory. Hans, any last thoughts tonight as we continue to watch? results roll in. I hope we have a clean election, whoever it is that wins, and that we don't have litigation that leaves the American people in doubt about the outcome and helps to damage their confidence in the fairness and the integrity of the election process. Yeah, absolutely. Hans,

thank you so much for your time tonight. We really appreciate it. Sure, thanks for having me. And that'll do it for today's episode. Thank you all so much for listening. You can find the Daily Signal podcast on Google Play, Apple Podcasts, Spotify, and IHeartRadio. Please be sure to leave us a review and a five-star rating on Apple Podcasts and encourage others to subscribe. We will be back with you all tomorrow to share more election updates. The Daily Signal podcast is brought to you by more than half a million members of the Heritage Foundation. It is executive produced by Kate Trinko and Rachel Del Judas, sound design by Lauren Evans, Mark Geinney, and John Pop. For more information,

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