Possible recounts and litigation over national election results

A poll worker gestures while processing absentee ballots at the Milwaukee Central Count the night of Election Day in Milwaukee, Wisconsin, November 3, 2020. The Trump campaign says it will ask for a recount in Wisconsin. Photo by Bing Guan/REUTERS.

The Trump campaign says it will ask for a recount in Wisconsin, where the state says Joe Biden is leading by about 20,000 votes (as of noon today).

Jessica Levinson, law professor at Loyola Law School, says the Trump campaign can certainly ask for a recount, but it’s rare that a recount would actually change the outcome.

The president also threatened to fight a potential election loss all the way up the Supreme Court.

“It’s not at all clear that there have been any legal irregularities. You can say ‘I’m going to sue,’ and you certainly can sue, but that doesn't mean you’ll have a meritorious case,” Levinson says.

She points to a surprising outcome of Tuesday night: no major electoral breakdown. “Elections in our country are really messy, but messy doesn’t mean fraudulent or corrupt or lacking in integrity. And things ran fairly smoothly, all things considered.”

She says she doesn’t know if there will be a successful Supreme Court challenge. “You need a law that was violated to have a successful challenge,” she emphasizes.

Where might litigation unfold over the next few days? Josh Barro, host of KCRW’s “Left, Right and Center” and “All the President’s Lawyers,” says: “The Trump campaign is starting by sending its lawyers basically everywhere. They want to be let in to see these ballots be counted in Michigan. They have objections over the manner in which the count is happening in Pennsylvania. In Arizona, Trump actually needs them to keep counting. So he’s making different arguments in different [places] in the country.”

Levinson adds, “You can certainly have a big legal battle in Pennsylvania. But it’s only outcome determinative for the presidential election if everything hinges on Pennsylvania.”

Meanwhile, the U.S. Post Office on Tuesday rebuffed a DC federal judge’s order to sweep around a dozen postal processing centers, including in Pennsylvania, Arizona, and Michigan. There was a followup hearing about it today.

— Written by Amy Ta, produced by Michell Eloy

Credits

Guests:
Josh Barro - Host of Left, Right & Center - @jbarro, Jessica Levinson - Professor, LMU's Loyola Law School in Los Angeles - @LevinsonJessica

Host:
Madeleine Brand

Producers:
Sarah Sweeney, Michell Eloy, Amy Ta, Rosalie Atkinson, Brian Hardzinski, Angie Perrin