The Daily Signal - Here's the Latest on Election Litigation

Episode Date: November 11, 2020

Supreme Court Justice Samuel Alito ordered county election boards in Pennsylvania to comply with guidance requiring them to keep ballots received after 8 p.m. Election Day "in a safe, secure, and sealed container separate from other voted ballots,” as Newsweek and other outlets reported Friday. How could Alito's directive affect returns for the presidential election? Additionally, The Associated Press reported that 24 Wisconsin counties had completed canvassing of election results as of Monday morning, but that "all 72 must be in before President Donald Trump could call for a recount.” How long will that take, and will other states besides Georgia recount? Jason Snead, executive director of the Honest Elections Project, joins the podcast to discuss. We also cover these stories: The Supreme Court hears arguments about ending Obamacare, but some conservative justices apparently don't see a need for the health care law to be repealed in its entirety. Attorney General William Barr announces that prosecutors at the Justice Department can look into evidence of voting irregularities.  Sen. Joe Manchin, D-W.Va., pledges that he will not support packing the Supreme Court with more justices or ending the Senate filibuster.  Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Wednesday, November 11th. I'm Virginia Allen. And I'm Rachel Del Judas. Jason Snee, the executive director of the Honest Elections Project, and a former colleague of mine at the Heritage Foundation, will be joining me today on the podcast to talk about the latest litigation in the 2020 election. Don't forget.

If you're enjoying this podcast, please be sure to leave a review or a five-star rating on Apple Podcasts and encourage others to subscribe. Now, on to our top news. On Tuesday, the Supreme Court heard arguments in the Obamacare case, but it appears that some conservative justices may not be of the opinion that the law needs to be repealed in its entirety. 18 Republican-led states brought the case before the High Court arguing that the individual

mandate of the Affordable Care Act is unconstitutional. They petitioned that if the mandate is struck down, the rest of the bill falls with it since the individual mandate was considered to be the linchpin of the act. But both Chief Justice John Roberts and Justice Brett Kavanaugh appeared to disagree with this logic. In 2017, the House of Representatives reduce the penalty for the individual mandate to zero after they were unable to repeal the law. Speaking to Republican Texas Solicitor General Kyle Hawkins, Robert said, I think it's hard for you to argue that Congress intended the entire Act to fall if the mandate was struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act. And Kavanaugh said he thought the case was a

straightforward case for severability in which the court should strike down the mandate and leave the rest of the law. The Supreme Court is expected to rule on Obamacare in June of 2021. Attorney General Bill Barr announced Monday that the Department of Justice can look into voting irregularities. Bar said, per the Hill, that investigations may be conducted if there are clear and apparently credible allegations of irregularities, that, if true, could potentially impact the outcome of a federal election in an individual state. Bar added that, nothing here should be taken as any indication that the department has concluded that voting irregularities have impacted the outcome of the election, but said that such inquiries and reviews may be conducted if there are

clear and apparently credible allegations of irregularities that, if true, could potentially impact the outcome of a federal election in an individual state. West Virginia Democratic Senator Joe Manchin pledged that he will not support packing the courts or ending the Senate filibuster. If Democrats take the Senate in Georgia, placing the Senate at a 50-50 Democrat-Republican split, Manchin told Brett Baer on Fox News Monday night that he will vote with the Republican party. So I commit to you tonight and I commit to all of your viewers and everyone else is watching. I want to lay those fears. I want to arrest those fears for you right now because when they talk about whether it be packing the courts or ending the filibuster, I will not vote to do that.

I will not vote to pack the courts. I think, and I will not vote to end the filibuster. On Monday, Senate Majority Leader Mitch McConnell had some harsh words for Democrats who are giving Republicans a problem for questioning the results of the 2020 presidential election. Here's what McConnell had to say via C-SPAN. Now, more broadly, Mr. President, let's not have any lectures, no lectures about how the president should immediately, cheerfully accept preliminary election results from the same characters who just spent four years refusing to accept the validity of the last election and who insinuated that this one would be,

illegitimate too if they lost again, only if they lost. So let's have no lectures on this subject from that contention. In late August, Secretary Hillary Clinton said, quote, Joe Biden should not concede under any circumstances. I think this is going to drag out, and he will win it if we don't give an inch. That same month, Speaker Pelosi and the Democratic leader, stated, quote, President Trump needs to cheat to win. In October, when Speaker Pelosi was shopping

some conspiracy theory about the postal service, she recklessly said, quote, listen to this, I have no doubt that the president will lie, cheat, and steal to win the election. Now, does this sound like a chorus that has any credibility whatsoever to say a few legal challenges from President Trump represents some kind of crisis? At this time last week, small business owners

in cities across America were boarding up their windows in case President Trump appeared to win, and Far Left mobs decided to reprise their summer rioting. Suffice it to say, a few legal inquiries from the president do not exactly spell the end of the Republic. Here's two professors from Fordham Law School, and New York Law School, this is how they put it. Quote, for centuries, we've asked people

who are unhappy with their fellow citizens or government agencies and institutions bring their claims to court. President Trump is, quote, a traditional response that affirms rather than undermines American institutions. End quote. This process will reach its resolution.

Our system will resolve any recounts or litigation. In January, the winner of this election will place his hand on a Bible, just like it happened every four years since 1793. What we know for sure is that the outcome is guaranteed to delight tens of millions of Americans and disappoint tens of millions of Americans. But we also know that we will wake up on January 21st, still blessed to live in the greatest nation the world has ever seen. And in no small part, that is because we respect the rule of law. We trust our institutions.

And neither of those things is outweighed by pronouncements from partisans or the press. Now stay tuned for my conversation with Jason Sneed, the executive director of the Honest Elections Project about the latest litigation in the 2020 election. conservative women, conservative feminist. It's true, we do exist. I'm Virginia Allen, and every Thursday morning on problematic women, Lauren Evans and I sort through the news to bring you stories and interviews that are a particular interest to conservative leaning or problematic women. That is women whose views and opinions are often excluded or mocked by those on the so-called feminist left. We talk about everything from pop culture to, to policy and politics. Search for problematic women wherever you get your podcast. I'm joined today on the Daily Signal podcast by Jason Sneed. He's the executive director of the Honest Elections Project

and also a former colleague of mine at the Heritage Foundation. Jason, it's great to have you with us on the Daily Signal podcast. It's great to be here. Well, Jason, to start off with the question that's really foremost on everyone's minds, do you think there was any voter fraud in this election or any potential voter fraud? Well, there's always voter fraud in any election to some degree. We know that because you can look at the convictions that's on the Heritage voter fraud database. And you see that in essentially every election cycle, there are people who are willing to cheat, willing to take, you know, illegal steps to try to rig or steal elections.

So the median narrative that you get that voter fraud just does not exist in any way, shape, or form is simply erroneous. and it has a lot more to do with political spend than with reality. The question now seems to be, is there evidence of widespread, you know, organized, systemic fraud that could have thrown a presidential election? That's been certainly alleged by the president, by folks involved with his campaign and his campaign's legal team. And I think that we're waiting to see what evidence they've got to back up those assertions. So I think that we need to be, of course, keeping a close eye on that. We need to be careful not to believe necessarily every claim of fraud that we see,

but I think beyond any doubt whatsoever, fraud does occur, and it probably occurred in the 2020 election as well. Well, since you're saying it probably did occur, how do you think, Jason, this should be handled and investigated? Well, I think it should be handled carefully and deliberately. And I think that if the facts ultimately do merit prosecutions against individuals who did commit fraud, then I think the prosecutions would be justified. But what we, I think, need to also be careful about is jumping to conclusions too quickly,

about the degree to which fraud occurred. There are undoubtedly, you know, instances that are more credible than others that have already come to light. For instance, I saw a report out of Wisconsin that I believe it was four, felons voted in the 2020 election despite being apparently ineligible to do so. I believe that they were all on parole of probation. So that's sort of a thing, to my mind, would obviously be very credible. But I think that in terms of some of the grander concerns, I think that we need to see what evidence we've got and examine that very carefully.

I'm curious about your perspective. On one of the big headlines yesterday, Attorney General Bill Barr announced that he would allow the DOJ to investigate voter fraud. What all does this mean and is this appropriate? Well, I certainly share the Attorney General's perspective, at least insofar as he spelled it out in the letter, that credible accusations of fraud or malfeasance in the elections absolutely need to be investigated. One of the most difficult things about this area of law and policy is that proving that fraud occurred is a very difficult thing to do. And sometimes what happens is claims of fraud, even credible ones,

wind up not getting investigated or not getting prosecuted, particularly after an election is over for various reasons. And so I certainly share the sense that if you've got a concern that fraud could impact the election of 2020, that it ought to be investigated. And there's really two reasons to do that, right? One is that, of course, if the concern is valid and if fraud did occur, then you absolutely want to get to the bottom of that and bring the people who are responsible to justice. But the flip side of that is that if fraud did not occur, then you want to be able to say with certainty that it did not happen.

And here's the evidence to rebut the concern that it did. Because at the end of the day, you want to be able to tell voters that the election was conducted fairly, that it was conducted honestly. and that the result can be trusted. And I don't think that you can tell voters that if the response to every single concern that gets raised, either about mischief or mismanagement, which is another part of this conversation, mismanagement of elections or bureaucratic incompetence, if all of those concerns are simply going to be brushed aside, I think that sends the wrong message to voters. And I'm not sure that you can seriously say that you're taking seriously the credibility of democracy

if you're just ignoring all problems. Well, speaking of potential issues of voter fraud, the federalist reported on Monday that there might have been incidents of curling of ballots in Wisconsin, and this is where officials come about that is legally disqualified or difficult to read. How, Jason, do you think this should be responded to

and are there other instances of voter irregularities that you've heard of yourself? So we've been looking at some of the concerns about irregularities, and trying to determine, frankly, what actually has happened in some of these places, like Philadelphia, like Detroit and elsewhere, and understand what some of the problems were. I think that really one of the things when it comes to counting ineligible ballots and concerns about the process, which that's what a lot of the lawsuits that have been filed are about is really about the process. One of the overarching concerns that often is getting left out of media coverage is the fact that all across the country states, particularly battleground states, wound up either changing their election rules or having those rules essentially changed for them in the course of often very partisan, very politicized lawsuits that were brought by groups on the left, including the DNC itself, where they were suing to invalidate voter, identification of verification requirements for absentee ballots, to try to legalize ballot

harvesting, to really change the rules. And it's sort of similar in some respects to, you know, changing the rules of baseball in the middle of the seventh inning. No one would really think that that was entirely fair or trust that the only reason for changing the rule was just for the benefit of the fans, not because the empire was picking favorites or or picking sides, but that's what was going on. And so that risks not only, of course, the credibility of the election, but it also risks confusion about what the rules actually are. And so I think that one of the big lessons that we need to take away from 2020 is that rules should not be changed,

particularly not through partisan lawsuits, close to an election because that really risks the integrity of the entire process. Well, Jason, even though the Biden campaign has claimed victory in the presidential election, The Trump campaign has filed lawsuits with current litigation pending, and I think at least five states I know in Pennsylvania, Nevada, Michigan, Georgia, and Arizona. Can you sort of walk us through the latest in what's happening on those efforts? Well, as I said, pretty much all of these cases at this point are talking about procedural issues that deal with accounting of votes. So, for instance, trying to get ballots that were received after a statutory deadline for the receipt of absentee ballots segregated, that happened in Pennsylvania. Concerns about poll watching, concerns about ballots in Maricopa County. I saw one lawsuit there about ballots where the concern is about an apparent overvote situation where for one reason or another, the machine

was reading a ballot that was cast and you know counting it anyway and the problem when it when you've got an overvote situation is that that would essentially cancel out the votes of that particular person for in this case president so we've got a lot of concerns about procedure and some of these of course could affect the vote count and any lawsuit that does affect the the vote count should be taken seriously what we're what we're now seeing what really what we're now waiting to see I think is some of the law lawsuits that could potentially affect the outcome of the election to the degree that would be necessary

to overcome, you know, Biden's lead in places like Pennsylvania where the separation between them is separate, I think it's about 40,000 votes, 45,000 votes at the time that we're recording this. On Friday Newsweek reported that Supreme Court Justice, Daniel Lito, made an order saying that all county boards of election must comply with guidance that requires them to keep ballots received after 8 p.m. on Tuesday in a safe, secure, and sealed container separate from other voted ballots. And what is your perspective on this directive from Justice Alito? And what's the update on what's happening here as we're now into getting into the middle of the week? Well, the order that Alito gave to segregate ballots is mostly to preserve the ability

for any post-election litigation that impacts those late-arriving ballots to actually be carried out and potentially to invalidate those votes depending on the outcome of the litigation. The backstory here is that going into election day, there was a torrent of legal activity in Pennsylvania because you had a situation where the left was suing the state, the secretary of state was trying to enter into a consent decree to change the state's ballot receipt deadline from election day to several days after the election. And eventually that wound up going to the United States Supreme Court and the court, you know, deadlocked and split four justices to four justices, allowing a ruling by the Pennsylvania state Supreme Court upholding that extension to be in effect for this election. Now that case in Pennsylvania is back before the Supreme Court. There's a cert petition pending. A number of states filed amicus brief supporting the court taking that case. My group is filed one as well as others, supporting the court taking the case and deciding the issue once and for all, you know, whether or not a court can indeed extend the statutory deadline

or, you know, whether that power is vested in the legislature under the federal constitution. And there's some variations on that question in other states as well. So the order from Justice Alito is preserving segregation of ballots that arrive after 8 p.m. on election day So that in the event that the court does take up the issue and in the event that it does rule that those ballots are constitutionally invalid, that you still know what ballots are actually affected, what the numbers are, and then you can have a remedy available to you. Well, in terms of recounts, some states, and I know the Trump campaign is asking for those, the Associated Press reported this week that 24 counties in Wisconsin had completed their canvassing of last week's election results as a Monday morning, but that all 72 counties must be in before the Trump campaign could the call for a recount. How long, Jason, do you think it will be before Wisconsin does recount?

And are there other states that you expect recounts from? Well, I'm not sure how long we'll be waiting on Wisconsin, but I do expect that there will be recounts. There could potentially be a recount in Arizona. There could be a recount in Georgia. Pennsylvania seems unlikely that if there is a recount, that it would seriously affect the vote tallies just because, historically speaking, recounts don't usually result in significant changes to the numbers. We're talking something on the order of hundreds or maybe a couple thousand votes at the outside. So I think that probably a recount is going to be most significant in places like Arizona and Georgia, where it's relatively closely divided.

Well, per the Congressional Research Service, the Electoral College will be meeting in just about a month to cast their votes. And since this is just about a month away, maybe a month in a few days, how far do you think litigation will be able to progress before this vote happens? Well, I think that we've got a long way to go before we get to the meeting of the Electoral College. And, of course, if you're looking for some historical precedent here, look back to 2000 with Bush v. Gore, when the Supreme Court issued its ruling right before the safe harbor deadline.

And the safe harbor deadline is the statutory deadline that Congress has set, that states have to certify their elections and impanel a seat of electors for the electoral college. And as long as they get it in before that date, then it's not subject to second guessing by Congress. And so that extended right up until that deadline. So we could be looking at litigation that could stretch for the next four or five weeks until we get to the Safe Harbor deadline in early December this year. And, you know, the, I guess the alternative argument here is that the litigation could be resolved before that, but certainly we could be in for a scenario where it goes to full distance.

Well, going back briefly to election irregularities, the Public Interest Legal Foundation filed a lawsuit last month alleging that 21,000 dead people were on the Pennsylvania voter rolls before election day. And, Jason, do you think that this impacted the election outcome having these 21,000 people that shouldn't have been registered still on voter rolls? Well, I certainly think that it's a concerning situation anytime you see that a state is not adequately maintaining its voter rolls because there are actually two federal laws that require that states take action

to maintain clean, accurate, and reliable voter registration record. And the reasons are pretty obvious, right? If you're talking about having an honest and fair election, that starts with having clean voter rolls so that you actually know how many voters there are in your community and who is eligible and who is not to cast a ballot. That's a very important thing to understand. And every year, you've got about 10% of the U.S. population that moves. You've got many millions more who either pass away or become ineligible because they're, say, convicted of a felony. So the voter rolls are not static things. They have to

constantly be updated. But despite the fact that it is not only legally required, but it's just common sense to be cleaning up your voter rolls, removing old, outdated, or duplicative entries. That has become a very contentious process. Many states quite deliberately drag their feet in this and do not prioritize list maintenance, even actively resist engaging in the practice, and there are a lot of outside groups on the left that will sue states trying to stop them. So I look at examples like this is just further evidence of the fact that states are often not doing enough in this area and need to be doing more. Because, again, to get back to an earlier point, you want to be able to show voters that the system works, that it works well, that you can trust the result.

And when you see information like that coming out, that's a very concerning thing because, yes, not only does that open up the door to fraud, but it also sends up a red flag that maybe the system is not working as well as it should. Well, on that note, Jason, as we wrap up, many voters right now are concerned about fraud and how ballots are being counted. Do you have concerns about election integrity, specifically in this 2020 election? Well, I do. And in fact, I've been concerned from the beginning because we saw almost immediately when the pandemic hit and all of the closures started that there was a concerted push to take advantage of that situation. to push a political agenda that amounted to reshaping elections and doing away with lots of the basic safeguards Verification identification ballot harvesting bans you saw legislation being pushed in Congress You saw litigation being being brought in nearly every state by some very deep pocketed liberal organizations including the the Democratic Party itself. It was a concerted strategic push to undermine the safety

safeguards and the rules that by and large Americans support and that undergird the system and provide I think some great benefits to health of democracy and so I do have concerns that going forward Not only in terms of how we're processing 2020, but then looking to future elections. I have concerns about this trend continuing where the the process of voting itself is increasingly politicized and the rhetoric surrounding it is increasingly toxic and you've now got a a baseline statement that really began back in 2018 with Stacey Abrams refusing to concede to her opponent in the in the gubernatorial race to you know to now where you basically got a situation where if my side doesn't win then I think that the entire process is rigged and I think that's a very difficult place to be if we're talking about you know the election system writ large we need to talk about this from the issue of principles not politics preserving the integrity of our elections goes hand in hand with preserving the credibility of democracy and And I think that we need to be fighting for, you know, fair, transparent voting processes protected with things like voter ID laws, protected with ballot harvesting bans that make sure that everyone knows that their vote counts and that their voice is going to be heard. Well, what a strong note to end on. Jason, thank you so much for joining us on the Daily Signal podcast. It's great having you. Thank you. And that'll do it for today's episode.

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