Election Day, as many predicted, is now turning into Election Week as states continue to tally mail-in and absentee ballots well after the polls closed. GBH Morning Edition host Joe Mathieu spoke with Northeastern University law professor and GBH News legal analyst Daniel Medwed about some of the issues surrounding the vote counting process across the country. The transcript below has been edited for clarity.
Joe Mathieu: To be clear, though, to start off with regard to counting mail-in and absentee ballots, the system is actually working as designed right now.
Daniel Medwed: Absolutely. As you indicated, as everyone in the media indicated, the fate of this election was not going to be determined last night because of the huge swath of absentee ballots due to the coronavirus [pandemic]. The counting process is going to take days and weeks. And in fact, the system already countenances this. For instance, in Michigan and Pennsylvania, state election officials don't have to actually certify their votes until November 23rd. In Wisconsin, it's not until December 1st. There's already flex in the joints of the system to account for just this very possibility.
Mathieu: We've talked about this recently. Pennsylvania, you pointed out, is going to play a very important role in the outcome here. It could decide the election, and it will likely involve watching what's going on in the courts, Daniel. Any developments on the legal front since we talked about this just yesterday?
Medwed: There are two cases that I'm watching coming out of Pennsylvania. First of all, late last night around midnight, some state Republicans filed a lawsuit based on the fact that the secretary of the Commonwealth — the person in charge of elections in Pennsylvania — had alerted some absentee voters about deficiencies in their ballots and given them an opportunity to cure those deficiencies yesterday by filing provisional ballots. The state Republicans tried to block provisional ballots from counting. So that just started last night, something to watch in the days ahead. The second case is one that's been brewing really for weeks, almost months now, and that's the issue of how the state Supreme Court in Pennsylvania extended the deadline for receiving absentee ballots from Election Day, which was the law in Pennsylvania, until Friday. The way it stands now, if you submitted your ballot by yesterday absentee in Pennsylvania, as long as it's received by Friday, it will count. State Republicans have challenged this at least twice unsuccessfully in the U.S. Supreme Court, but that case may be revived for a variety of reasons.
Mathieu: You mentioned the Supreme Court, Daniel. This is what the president said. He invoked the court when he addressed the nation this morning:
President Donald Trump clip: This is a major fraud in our nation. We want the law to be used in a proper manner. So we'll be going to the U.S. Supreme Court. We want all voting to stop. We don't want them to find any ballots at 4:00 in the morning and add them to the list, OK?
Mathieu: Now, Daniel, how do you think the Supreme Court would rule with respect to a renewed challenge to say the counting process in Pennsylvania [or] other states? And what fraud is he talking about?
Medwed: Well, I have no idea what he's talking about. I think my objective legal analysis is that statement was absolutely absurd. It's not grounded in reality, though that hasn't stopped the president from making statements like that in the past. Here's my legal take on how the Supreme Court might approach this, Joe. So on the one hand, I do think this Pennsylvania case is going to be resuscitated. Justices Alito, Thomas and Gorsuch indicated as such just about 10 days ago in that final Supreme Court decision saying we're not going to intervene in Pennsylvania, it's a matter of Pennsylvania law [and] we're too close to the election. But those three justices hinted at the fact that they thought this lawsuit had merit, that the state Supreme Court had overstepped its bounds and basically sent an overture to state Republicans after Election Day, come back to us. So I think that case will come back to the Supreme Court. And now you have Justice Kavanaugh, who, even though he didn't join those three in that Pennsylvania opinion, had written a very sympathetic concurring opinion in a different case — in a Wisconsin case — where he basically cast aspersions on post-election vote counting. So if you add Kavanaugh to those three, you have four votes maybe against vote counting. And then, of course, there's the wild card of Amy Coney Barrett. We just don't know what she'll do.
Mathieu: Any chance she might recuse herself?
Medwed: Such an interesting issue. So here's how recusal works. In the lower courts, it's typically a matter of discretion. A judge can decide on his or her own whether she thinks there's a conflict of interest and should step down — recuse herself. And in the lower courts, that decision is reviewed on appeal under what's called abuse of discretion review. You'll look and basically defer to the lower court decision by that judge as long as they didn't abuse their discretion [and] as long as it wasn't an absurd decision. In the Supreme Court, however, there is no higher tribunal to appeal that decision to. So it's basically between the Supreme Court justice and their individual consciences, and we've had a lot of instances in recent years of justices stepping down. Justice Kagan has stepped down on a lot of cases that related to her role as solicitor general under President Obama, and even Justice Thomas stepped down in a very high profile admissions case stemming from the Virginia Military Institute because he happened to have a child at VMI at the time. So we just don't know what will happen with Amy Coney Barrett [or] how she feels about this.
