What You Need to Know About Election Litigation in Pennsylvania, Nevada, Georgia, and Arizona

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Even though former vice President Joe Biden has claimed victory in the presidential election, the Trump campaign has filed lawsuits contesting the results with current litigation in Pennsylvania, Nevada, Michigan, Georgia, and Arizona.

In Pennsylvania alone, there are at least 21,000 dead people on the voter rolls. Is there a possibility that some of these ballots that went to dead people were used fraudulently? We’ve also heard a lot of people talk about how we largely know the results of all the House and Senate races but still don’t have all the ballots counted for the presidential race. Why is this the case?  Hans von Spakovsky, manager of The Heritage Foundation’s Election Law Reform Initiative and senior legal fellow at the think tank’s Meese Center for Legal and Judicial Studies, joins The Daily Signal Podcast to discuss.

We also cover these stories:

  • Former Vice President Joe Biden is saying that the 2020 race for the White House is finished and that people need to be wearing masks. 
  • President Trump fired defense secretary Mark Esper.
  • Pharmaceutical company Pfizer announces that its coronavirus vaccine is 90% effective.

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Rachel del Guidice: I’m joined today on “The Daily Signal Podcast” by Hans von Spakovsky. He’s the manager of The Heritage Foundation’s Election Law Reform Initiative and senior fellow at the Meese Center for Legal and Judicial Studies. Hans, it’s always great to have you with us on “The Daily Signal Podcast.”

Hans von Spakovsky: Sure. Thanks for having me on.

Del Guidice: Well, before we go into the litigation that’s happening right now postelection, I just want to ask you, top line, overall, do you think it’s reasonable to believe that voting irregularities or voter fraud occurred in this election?

Von Spakovsky: Well, look, we know it already happened in elections going on this summer. Yes, it’s certainly common sense to believe that happened. What we don’t know is how big it was, how extensive it was. Was it widespread? Was it just in isolated instances? We just don’t know the answer to that.

Del Guidice: While former Vice President Joe Biden has claimed victory in this presidential election, the Trump campaign is filing lawsuits. There are currently lawsuits in Pennsylvania, Nevada, Michigan, Georgia, and Arizona.

I want to walk through all the litigation going on in each of the states, starting with Pennsylvania. Can you tell us what’s going on there?

Von Spakovsky: Yes, Pennsylvania, they’re contesting the fact that the state Supreme Court extended the deadline for absentee ballots past the deadline set by the state Legislature.

The state Legislature, under their deadline, you’ve got to get your absentee ballot turned in by the end of Election Day, but the state Supreme Court put another three days on that.

What the Trump campaign is contesting is that the state Supreme Court doesn’t have the constitutional power to do that. The state Legislature does. They’re the ones that are tasked with and given the authority to set deadlines and the rules governing federal elections in their state.

If the state Legislature wanted to extend the deadline, I mean, they could do that, but here, the court stepped in and did it. What they’re contesting is the counting and inclusion of any absentee ballots that were received after Election Day.

Del Guidice: Before we move on to the other states, in Pennsylvania, I believe there were about at least 21,000 dead people on the voter rolls there.

Do you think that there is a potential possibility that some of those ballots that obviously may have gone to dead people … could have been used fraudulently? Do you think that’s something that may have happened?

Von Spakovsky: Yes, that’s a distinct possibility because, in fact, we know that records for past elections indicate that individuals who are dead but remain on the voter rolls mistakenly are credited with having voted in elections.

In fact, we’ve got cases in our Election Fraud Database at Heritage of individuals who were convicted of casting a ballot for someone who was deceased.

How many times and how many votes that may have happened with in this election—I mean, we just don’t have those records yet, so we don’t know.

Del Guidice: One more Pennsylvania question before we move on to Nevada, Rudy Giuliani, who’s the former mayor of New York City and the personal attorney to President [Donald] Trump, has spoken very positively of litigation in Pennsylvania. I’m curious what you think. Do you think there’s a solid case that can be made for the Trump campaign in Pennsylvania?

Von Spakovsky: Well, I think they’re on solid constitutional ground where they dispute the changes made by the state Supreme Court. In fact, the state Legislature agrees with that. The state Legislature also appealed the decision of the state Supreme Court.

So I think they’re on solid, constitutional ground there. The question is, will the Supreme Court take the issue up and make a decision on that?

Del Guidice: You talked a lot about Pennsylvania, Hans. Can you now walk us through with legal challenges going on in Nevada right now?

Von Spakovsky: Well, in Nevada, there’s a lawsuit claiming, again, problems with the voter registration list and that individuals who are not residents of the state, but in fact, not only residents of neighboring states like California, but actually voted, for example, in California and in Nevada.

Again, there’s a dispute over the fact that there may have been illegal and invalid votes cast in that election.

People need to understand, it’s not necessarily illegal to be registered in more than one state. That often happens through no fault of a voter when they simply move from one state to another. But if you take advantage of that and you cast a vote in two different states in the same election, that, in fact, is a criminal violation of the law and in most places, it actually is a felony.

Del Guidice: Now, let’s look at Michigan. There’s litigation happening there too. What’s going on in Michigan?

Von Spakovsky: Well, in Michigan, it’s everything from disputing and challenging the fact that, for example, in Detroit, Trump and GOP campaign observers were not allowed. They were barred from being in the downtown center in Detroit, where they were counting ballots. That is a violation of state law. State law allowed them to be there.

That brings up issues of, why would local officials violate state law, keep out observers? What were they doing there?

There’s also been issues, apparently, about a glitch in the software used there that apparently switched votes between Canada.

In fact, there was one particular race there in which the Democratic challenger was declared the winner, and then the Republican incumbent was told not too long later that, in fact, he had won the election.

There’s concerns that that particular glitch in that software, which is widely used, may have caused other problems.

Del Guidice: Let’s move on to Georgia and Arizona, what’s going on there? Can you just walk us through the different scenarios that we’re seeing unfold in Georgia and Arizona?

Von Spakovsky: Part of the problem in Georgia is the Trump campaign produced witnesses saying that, for example, in one of the counties, their election officials were accepting, processing, and counting absentee ballots that were received past the state deadline.

The deadline of Georgia is the closing of polls on Election Day. Their witnesses say that, in fact, they continued to accept absentee ballots after that time.

There are also claims being made that, again, individuals who aren’t actually living in the state anymore are registered to vote and may have cast ballots.

The margin there of difference between the two candidates is only about 11,000 votes, which is a tiny amount out of all of the ballots that were cast.

By the way, it is within the percentage that allows for a recount to be requested by a candidate. I actually have no doubt the Trump campaign would probably ask for a recount.

Del Guidice: You’ve gone over what’s happening in Pennsylvania, Nevada, Michigan, Georgia, and Arizona. Hans, how likely do you think it is that this election could be decided by the Supreme Court?

Von Spakovsky: Well, let me tell you the problem that the Trump campaign faces. Look, no matter what the merit of the claims there being made, they’re under two problems, or they’re faced with two problems. One, a time crunch.

It is enormously difficult to gather enough evidence to show that an election outcome was compromised in the short amount of time you have after a national election like this.

Keep in mind that the states have to certify the outcomes in time for the electors, or the Electoral College, to meet in the beginning of December. It’s just very difficult to do that.

Second, they face the problem that courts and judges, even when they are presented with substantial evidence of misconduct, or mistakes, or other issues that compromise the outcome of the election, courts are very reluctant to overturn elections.

That makes all of this, frankly, an uphill battle for the Trump campaign to produce enough evidence in time to show that the results of the elections in a number of states were compromised.

Del Guidice: We’ve heard a lot of people talk. I’ve had conversations, seen this on social media, as well as in person. The question I keep hearing, Hans, is that people are talking about how we have most of the results, if not all the results, for so many of these House and Senate races, but we still don’t have all the ballots counted for the presidential race. Why is this the case?

Von Spakovsky: I frankly don’t understand that myself.

I was shocked at the way certain jurisdictions, including Fulton County, Georgia—Fulton County is the Atlanta metropolitan area, it’s the largest county of the state—how they simply stopped counting in the evening of Election Day. I really don’t understand that.

The reason I don’t is because I, actually, 20 years ago, was on the board of elections in Fulton County, Georgia, when I still lived down there. We never stopped counting the ballots. We kept going. We had reserved teams in place to take over when people got tired so that we could get the results of the election in as soon as possible.

Part of the delays, apparently, are … what I think are unexplained and unwise decisions by election jurisdictions to not continually keep the count going.

Del Guidice: Let’s talk a little bit about voting irregularities.

On Friday, I had spoken with an election lawyer who had volunteered as representative of President Donald Trump’s reelection campaign in Allegheny County, Pennsylvania, who was working on an Election Day hotline.

He had told me on the podcast about multiple instances of voting irregularities that he witnessed, including eyewitness testimonies and the county worker who said that there was tampering with the machine in Allegheny County before the day of the election, and also, multiple issues with poll watchers not being able to observe the ballot-counting process.

Hans, I’m curious, what have you heard when it comes to voting irregularities in this election?

Von Spakovsky: Oh, I’ve had people contact me with those kind of incidents and many more. All of those are very concerning.

With electronic voting machines and the computer scanners that are used, the poll watchers are supposed to be there so that they can observe and see that the counters are set to zero when the polls open.

If, in fact, poll observers saw those machines being manipulated, so they already had votes on them before the polls even opened, that’s clearly fraud that needs to be investigated.

Putting folks so far back, putting the observers so far back [that] they can’t see what’s going on is also dangerous. …

Remember there was a very large number of absentee ballots sent in, much larger than normal. What election officials are supposed to do is when they open up the outer envelope that has an inner envelope in it with an absentee ballot, is they’re supposed to check all the information the voter has provided. Make sure that the ballot is signed, make sure that the registration information supplied by the voter is correct.

You have to do all of those things before you can consider whether the absentee ballot is a valid ballot that should be counted.

I’m concerned that in places where they barred observers or put them so far back that they couldn’t see, … I wonder, did election officials just basically decide to waive all those state law requirements and simply count every absentee ballot coming in without checking to make sure it was a valid ballot? That’s the kind of thing that could compromise the outcome of the election.

Del Guidice: Hans, let’s talk about ballot harvesting for a minute. Do you think that played a role in this election?

Von Spakovsky: Yes, I have no doubt it did because of the extensions of time, for example, for ballots to be received in Pennsylvania after Election Day.

Vote harvesting, for people who don’t understand it, some states, unfortunately, have legalized vote harvesting, which means that they allow any stranger to show up at your door and offer to return your ballot. That’s legal.

The problem with that is it means that candidates and political consultants, party activists, campaign staffers, you’re putting something valuable, a ballot, into their hands. You’re hoping that maybe they’ll deliver it without altering it or changing it, or if they know that you consistently vote for the opposite party, that they’ll actually deliver it and not just throw it out.

I’m very concerned that the ability of folks to engage in vote harvesting and trying to collect the ballots after Election Day from voters so that they can make sure those ballots get voted to change or whatever the preliminary results showed is just, again, a very unwise and dangerous policy.

Del Guidice: Well, across the board right now, Hans, there are many voters who are concerned about fraud and how ballots are still being counted. Do you have concerns about this election’s results being illegitimate?

Von Spakovsky: Well, I have concerns …

Look, I can’t say that the election results are illegitimate, but what I can say is that there have been enough serious questions and serious concerns raised about the behavior of election officials in particular parts of the country, particularly Michigan, and Philadelphia, and even in Georgia, that I think that has to be investigated to see whether or not there was misbehavior, or fraud, or mistakes made by election officials that throw the outcome of the election in those particular areas in doubt.

Del Guidice: Well, Hans, thank you so much for making time to walk us through these different instances of litigation. It’s great to have you with us on “The Daily Signal Podcast.”

Von Spakovsky: Rachel, thanks for having me on.

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