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Donald Trump's Election Lawsuits Explained

LULU GARCIA-NAVARRO, HOST:

And now to the ostensible reason for the delay - the legal maneuvers by President Trump and his allies to overturn the legitimate results of this election, including a huge loss in one state last night. Ross Garber joins us now. He's a political investigations and election lawyer who teaches at Tulane Law School, and he has mainly represented Republicans.

Hi there.

ROSS GARBER: Hey. Good morning.

GARCIA-NAVARRO: So that loss in Pennsylvania - a federal judge, Matthew Brann, a Republican, wrote scathingly in his dismissal of the case. I'm going to quote here - this court has been presented with strained legal arguments without merit and speculative accusations unsupported by evidence. He said that it was an attempt to violate the Constitution. This is the case against the secretary of state that Rudy Giuliani argued last week. How major a setback for the campaign is this?

GARBER: Yeah. We can't put too fine a point on this. The judge was very, very direct here, and he made clear in his opinion what's at stake. And namely, it was millions of votes in Pennsylvania. And what - if that's at stake, the Trump campaign would be expected to produce by way of legal argument and evidence, and the judge made clear it's just not there. And that's what we've seen in state after state after state where the Trump campaign has raised these kinds of issues. Judges have pushed back and said, there's no law, and there's no evidence. So it's another major setback for the Trump campaign. They're running out of places to fight.

GARCIA-NAVARRO: But the campaign says it will appeal. And there was another case filed there just yesterday by a Pennsylvania congressman, Mike Kelly, who wants to block the state from certifying the election results and have the state Legislature choose electors. This is a tactic they've been trying in other places too, so they don't seem to be slowing down.

GARBER: No, they're going to probably keep doing this unless and until some senior Republicans - perhaps Mitch McConnell says to the president, you know, enough is enough. But the campaign and the president seem to have their eye on January 6 - that's an important date - when Congress actually gets the results of the Electoral College. And if there are multiple certifications from a particular state - say, in Pennsylvania, the governor certifies one slate of electors, say, for Biden and, theoretically, the Legislature certifies another slate of electors, say, for Trump - then Congress has to decide what to do with it. And that's, I think, the ultimate focus of the Trump campaign.

GARCIA-NAVARRO: Tell me how that would work.

GARBER: Yeah. So in 1876...

GARCIA-NAVARRO: We're going back a ways now.

GARBER: Yeah, yeah, yeah. But this doesn't happen that often. In 1876, there actually were contested elections in a few states. And in those states, one state official certified a slate of electors for the Republican, one for the Democrat. Congress got it. And there's a provision in the Constitution that - in the 12th Amendment that says that it's the president of the Senate, who is now Mike Pence, the vice president, who gets the votes and that the votes shall be counted.

And there was an argument back then that, well, that means the vice president gets to decide these disputes. And it was a big problem. And a commission was formed, including Supreme Court justices, to sort this all out, and then a deal was made. It was terrible. And then the next year, Congress passed a law saying, no, no, no, here's how it works. And it established this elaborate procedure for how to deal with that kind of situation.

The problem is the law is very ambiguous. It's not very well-written. But it does provide a procedure for what happens if there are multiple votes or even if the single slate of electors from a particular state is contested. And notably, it only takes one senator and one member of the House to trigger that procedure. So it's really that that the president is focused on.

GARCIA-NAVARRO: And we should remind our listeners President Trump met with some lawmakers from Michigan this weekend, and the Republican National Committee and the Michigan Republican Party are requesting a 14-day delay by the state board of canvassers so there can be an audit of votes in the area around Detroit. How likely do you see - more to the question, I mean, how likely do you see this taking place?

GARBER: Well, so far, it's not working out very well for the president. It's not working out as he hoped. And I had raised issues of, you know, potential irregularities and fraud several months ago and issues about the ambiguities in this law. Happily, though, the votes in these states are not close enough where those have become very significant practical issues. I think it's very, very unlikely, meaning it's not going to succeed for the president to challenge the votes this way.

GARCIA-NAVARRO: That's Ross Garber of Tulane Law School.

Professor, thank you very much.

GARBER: It's good to be with you. Transcript provided by NPR, Copyright NPR.


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