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Welcome back to Washington Journal.
We're joined now by Dan Takaji.
He is Dean and Professor of Law at the University of Wisconsin Law School.
We're talking about Campaign 2024 litigation.
Professor, welcome to the program.
Thank you for having me.
Can you talk about the scale of litigation we're seeing already for this campaign cycle?
Sure.
We've seen a lot of litigation this campaign cycle.
We always see a lot of litigation in a year divisible by four, but there do seem to be more cases this time around than has been typically the case in cases that are brought by both sides.
In general, the Republican Party and their allies have been focusing more on election integrity and the Democratic Party and their allies more on voting access.
But, you know, I was doing some searching over the weekend and found dozens of cases that have been brought just in the past few weeks, really by both sides on all sorts of issues, from absentee ballots to voting by military and overseas personnel to voter registration and list maintenance and voting purges and election certification.
Certainly a lot of litigation this cycle.
So give us an example of what we're seeing.
You know, for instance, voting from military people overseas.
That has always been the case.
What kind of litigation would there be around that?
Yeah, I can give an example.
There was a lawsuit that was brought in Michigan over this issue by the Michigan Republican Party against that state's Democratic Secretary of State, Jocelyn Benson,
a former election law professor, having to do with the spouses and dependent, or at least some of the spouses and dependents of military and overseas personnel and whether they were entitled to vote through the means that are provided ordinarily for military and overseas voters, even if they had never lived in the state of Michigan before.
That's an example.
We've certainly seen a lot of litigation over absentee ballots.
For example, in Georgia, the Fulton County Republican Party brought a case challenging the use of election offices as return sites for absentee ballots.
On the Democratic side, you know, as I mentioned a moment ago, most of the cases tend to have to do with access.
For example, cases regarding the ability to return ballots or have them counted, even if they're not dated or otherwise fully compliant in the law.
We've seen this naked ballots issue, which arose back a few years ago, which is not nearly as exciting as it sounds. has to do with ballots that are returned without the security envelope.
The current state of play is that those ballots don't get counted, but people who mistakenly cast them can vote a provisional ballot, which at least it seems for now ought to be counted on or after Election Day.
And are these lawsuits just in the battleground states as far as geographic location?
No, certainly not.
In fact, one of the most important cases that has been brought is in Mississippi, which is on no one's list of battleground states.
This was a case entitled Republican National Committee versus Wetzel, or is a case, where the Fifth Circuit and a very conservative panel of the Fifth Circuit issued a decision just a few days ago saying that absentee ballots in that state which are received after Election Day should not be counted even if they were postmarked on or before Election Day.
That's an interpretation of federal law.
It only applies in Mississippi, but if it were affirmed, it could have play in other states which allow absentee ballots to be counted if they are received after Election Day, so long as they were postmarked on or before Election Day.
And how have the campaigns been preparing for this?
Is this something that they do like all since 2020?
Have they been preparing for this?
Or is this something that just happens right before?
And how do you prepare?
Well, I don't have any inside information on what exactly the campaigns and parties are doing, but I suppose I can engage in some informed speculation of that.
Certainly after the last presidential election, I'm sure that the parties both looked at what happened in court, what was successful, what wasn't successful, and started doing some planning.
But I'm sure that that planning has ramped up considerably and that there are a lot of lawyers on both sides, both within the parties and campaigns as well as within other groups about litigation.
I suppose one of the things that I'm noticing this time around, I'm sure it's happened before, but I think it's a little bit more conspicuous is you see some cases that are being filed close to election day, which are not so much hoping to get an injunction or other court order before Election Day, but might be thought of as placeholders.
So you might think of them as placeholder lawsuits.
Bringing a lawsuit, raising an issue regarding whether certain ballots, for example, should be counted, and hoping perhaps that that lawsuit, if it winds up being close,
especially in one of the swing states, might be activated so that it could become a vehicle for post-election litigation, possibly over the presidential race, or it could be in some down ballot race as well that winds up being close.
Professor, I want to just play a short portion of former President Trump accusing Democrats of conspiring to steal the election at a rally in Allentown, Pennsylvania.
This is from last Tuesday.
After that, we'll hear from Vice President Harris in an interview with NBC last month about how her campaign is preparing to handle challenges.
Here it is.
We've set an all-time record in the early voting, by the way.
So if you have a mail-in ballot, get that damn ballot in please immediately because they've already started cheating in Lancaster.
They've cheated.
We caught him with 2,600 votes.
Now we caught him cold.
2,600 votes.
Think of this, think of this.
And every vote was written by the same person.
I wonder how that happened.
It must be a coincidence.
It must be a coincidence.
Last election, the former president came out on election night and declared victory before all the votes were counted.
What is your plan if he does that again in two weeks?
Well, let me say this.
We've got two weeks to go.
And I'm very much grounded in the present in terms of the task at hand.
And we will deal with election night and the days after as they come.
And we have the resources and the expertise and the focus on that as well.
So my team's ready to go.
Is that what you're saying?
Are you thinking about that as a possibility?
Of course.
This is a person, Donald Trump, who tried to undo a free and fair election, who still denies the will of the people, who incited a violent mob to attack the United States Capitol, and 140 law enforcement officers were attacked.
Some were killed.
This is a serious matter.
The American people are at this point two weeks out being presented with a very, very serious decision about what will be the future of our country.
Professor, first about former President Trump's allegations of voter fraud in Lancaster.
Yeah, well, I have not seen any evidence to support those claims.
I'm not sure exactly what he's referring to.
But, you know, I think one of the principles that we should keep in mind, and that includes those of us who hold ourselves out as elections or elections law experts, is to be careful about making any claims or supporting any claims until we've seen the evidence.
That is really, really important.
You know, people can stand up and make all sorts of claims, whether it's about vote suppression or voter fraud or something else.
They can stand before a podium and make all sorts of claims.
But if you're going to go to court and try to prove those claims, it's not just enough that you assert it.
You've actually got to come up with evidence to support your claims.
And, you know, if the Trump campaign or anyone else believes there is evidence of illegal votes, they can certainly, as they did last time, go into court if they have credible evidence to support their claims and try to support those allegations and try to have those votes rejected.
The Trump campaign, of course, did this and their allies did this four years ago.
Those lawsuits were by and large not successful in part because they failed to come up with the evidence to support those claims.
But I think it's all important for all of us to recognize that it's very easy to say things in the public forum, in the court of public opinion, and sometimes you can persuade people.
But in a court of law, you need evidence.
And judges who were appointed by Democrats and Republicans alike recognized that in 2020, granted those claims where there was evidence to prove violations and rejected those where there was not.
And I expect the same thing to happen again from judges across the ideological spectrum in this year's election.
And we'll take your calls for Dan Takaji on election lawsuits.
The numbers are Democrats 202748-8,000, Republicans 202-748-8001.
And Independents 202748-8002.
Professor, I want to ask you about the case in Virginia.
The Supreme Court has already weighed in on that.
Can you explain the case and what the decision was?
This was a case involving so-called purge or removal from the registration rolls of approximately 1,600 voters on the grounds that they were not citizens.
There's a federal law, the National Voter Registration Act, commonly known as motor voter, although it regulates the registration process generally and not just voting at DMV offices.
There was a lawsuit brought by the Virginia Coalition for Immigrants' Rights to challenge this purge of voters on the ground that it violated the National Voter Registration Act's limitations on systemic list maintenance programs within 90 days of an election.
A lower court had issued an injunction preventing this removal or purge from taking place.
The Supreme Court stayed that injunction.
And, you know, I think most people, most observers, although the Supreme Court didn't explain its rulings, as it often unfortunately doesn't in these cases, I think most observers attribute that action by the Supreme Court to the so-called Purcell doctrine, named after a case from many years ago out of Arizona, Purcell versus Gonzalez.
That case has come to stand for the proposition that federal courts generally shouldn't issue injunctions or court orders that change the state of play in a state close to an election.
And that's what had happened in this case.
So, you know, a relatively small number of votes in the state of Virginia at stake there around 1,600.
But that was one of the relatively few actions that the Supreme Court has taken this morning.
Now, Professor, the headline says, Supreme Court allows Virginia to purge suspected non-citizens from voter registration rolls.
I mean, are they non-citizens or are they not non-citizens?
I'm not sure we know for sure.
Is that, I mean, is that part of the case that we don't know for sure?
It certainly could be.
It's hard to tell exactly what the basis for the Supreme Court's ruling was because they didn't, as they don't often explain it, whether they were or not non-citizens.
Plaintiffs claim that some of them at least are not.
Virginia maintains that they are.
But as I've said, you know, allegations and defenses have to be proven by evidence.
And we haven't had a full hearing.
We haven't had a full opportunity for a trial or anything like that in this case.
And Virginia isn't considered a battleground state, but could other states, based on this decision by the Supreme Court, start purging suspected non-citizens from their voter rolls?
I mean, it's possible that they could.
You know, it's possible, however, that a state court could issue an injunction or a ruling on this question.
But I think the concern about this decision is that it opens the door to states violating this prohibition that the National Voter Registration Act imposes on systemic list maintenance programs within 90 days of an election, making it very difficult to get an injunction from a federal court to stop that from happening.
Vicki in Pilwaukee, Wisconsin, Democrat, good morning.
Good morning.
Yes, I'm just calling to thank you and both this guest and your previous guest for the talks on election security.
I am a single-issue voter, and I find real assurance in hearing about all the efforts put forth on both the national, state, and local areas to assure voter security.
So I just wanted to thank you.
And what's your one issue, Vicki?
My one issue is Donald Trump.
All right.
And this is Christopher, Ellicott City, Maryland, Republican.
Good morning.
Yes, good morning.
I hear Washington Journal every day, and I listen to these Democrats and their vitriolic language, all insulting Donald Trump.
Election interference has been evident in many of the last elections, but Donald Trump is a true patriot.
And Kamala Harris hasn't answered questions.
So, Christopher, getting back to our topic of litigation, what question do you have for Dan Takaji?
Yes, who are making the decisions on this?
What party affiliation do they have?
And how does that affect their rulings?
So great question.
You know, typically in the United States, election officials are, at least the state's chief election officials, are affiliated with one party or the other.
And in some states, it's a Democrat.
In some states, it's a Republican.
For example, the chief election official in Georgia is a Republican.
The chief election official in Michigan, as I alluded to earlier, is a Democrat.
So those chief election officials are typically elected in partisan elections.
Some people, including me, think that's not an ideal system because you have effectively somebody who's a player for one of the teams being elected to the office.
But that is the norm in the United States as opposed to most other countries.
Now, judges are sometimes elected in our state court system.
In the federal court system, they are appointed by the president and subject to confirmation by the United States Senate.
It is now a bare majority of the United States Senate.
But federal judges are technically nonpartisan.
They're not affiliated with the parties.
But of course, they were nominated by one party or the other's president.
Let's talk to David in Longmont, Colorado, Independent.
Yes.
My wife and I have been here for about a year and a half.
And my child just got married about three months ago, my youngest child.
So both my girls live here and they're married.
Now we're heading back to Florida.
We're going to take about five days, but we're not going to be able to vote in Florida.
I'm going to go out today and try to find out if I can get ballots and vote here in Colorado.
Now, I lived from 2000 to 2010 here and voted always here.
But then, because of my restaurants, I moved back to Florida where I built a couple more restaurants, and then I voted there.
So I am in a dilemma.
Can I, you know, I don't know if I can vote here because the last time I voted, I voted in Titusville.
So, David, are you registered in Colorado and in Florida?
What's the situation with your registration?
I believe I'm registered only in Florida right now.
But I voted, say, 10 years ago here, a couple different times, probably four times in that 10-year period.
So I'm like stuck in the middle.
And I clearly want to vote for Trump.
But I need to vote for Trump here in Colorado, where we might have a prayer.
In Florida, we're going to win, hands down.
Okay.
Professor Takaji, what do you think?
Well, I'm not going to give a caller legal advice on TV, and especially not being admitted to the bar in either Colorado or Florida.
What I would say is that, you know, in most states, you have to be registered before the election, sometimes as long as 30 days before the election in order to vote in that election.
And you vote in the state of which you are a citizen, which means residing there with the intent to remain in that state.
That's the law.
And let's talk to Kathleen in Dayton, Ohio.
Democrat, good morning.
Good morning.
C-SPAN is a treasure, a national treasure.
I'd like to ask the professor, I watched the VP debate with my two grandsons.
It's funny the caller prior to this.
We were in Longmont, Colorado.
I'm in Dayton, Ohio right now.
But anyway, we watched the debate.
They are 10 and 12.
So during that VP debate, my 12-year-old grandson, John, you know, sits upright and in shock.
And he says, I can't believe Vance just said that the way to deal with our gun issue is to make windows thicker at schools.
He was just appalled, I mean, and in shock.
My other grandson, about five minutes later, who is 10, sat up straight and said, could anyone explain to me how an individual, he literally said this, how an individual with 34 felony counts is running for president?
So I want to ask the prof to try to explain to anyone, to any of us, why an individual is able to run for the presidency with 34 felony counts.
I want to encourage voters.
I'm a Dem.
I went to two Trump rallies for four hours each.
I had a blast.
I had debates, conversations.
Everything was civil.
We can talk with one another, for God's sake.
We can talk with one another.
Thank you.
Kathleen.
Yep.
There's nothing in the Constitution that prevents someone from running for president because they have been convicted of a crime, including a felony.
Now, there is a provision of the Constitution, a part of the 14th Amendment enacted after the Civil War, that prohibits someone from serving in federal offices, and most people think that includes president, if they have engaged in insurrection.
And some of your viewers may recall that the state of Colorado and its Supreme Court excluded President Trump from the ballot on the ground that he had engaged in insurrection.
But the United States Supreme Court in the Trump versus Anderson case reversed that decision, concluding that the state of Colorado, including its Supreme Court, was without the power to exclude President Trump on the ground that he had engaged in insurrection and was therefore ineligible to be president.
So President Trump will be on the ballot in all of the states.
And we don't have a determination, this is a binding determination from any court on whether or not he in fact engaged in insurrection.
If he did, most people believe that he would be constitutionally ineligible to serve.
But there being no federal law that allows an adjudication of that question, it's effectively out of the power of any court to exclude him from the ballot on that ground.
And Professor, regarding felons voting, having the right to vote, that would be a state issue.
So depending on which state you live in.
Correct.
State-by-state issue.
Some states have relatively strict laws on that.
Some states have more lenient laws.
But in general, eligibility to vote and the requirements in terms of, say, identification or when you have to register, how you can vote absentee, whether there's in-person early voting.
Those are all determined on a state-by-state basis.
And on the Republican line in Ellicott City, Maryland, Beth, good morning.
Yeah, hi, good morning.
Thanks so much for taking my call.
I'm a huge fan of this show.
I encourage everybody to listen to it.
I think it's so important. for folks to hear both sides of the aisle, frankly, particularly in such divisive times.
My question is around the statement that the Trump administration did not present any evidence.
I'm actually an attorney.
I had heard, and so I actually researched this, and I'm not sure if you did, Professor, that a lot of the cases, actually all of them, that the Trump administration had submitted relative to alleging voter fraud had been dismissed not on the merits, but on a procedural basis.
And frankly, I could not find any case that went forward to hear the evidence.
So if you have knowledge of that, I'd like to hear that.
And you're talking about 2020, right, Beth?
Correct.
Yes.
My apologies.
Okay.
Go ahead, Professor.
Hey, Beth makes a very good point.
There were a lot of cases in which for procedural reasons like lack of standing, some of the cases, I think there were 73 cases that Trump or his allies brought in the last election cycle.
There were many of cases in which they were dismissed on jurisdictional or procedural grounds without reaching the merits.
But there were a number of those cases in which Trump or his allies were allowed to present evidence.
In two of those cases, courts found for him that he had introduced sufficient evidence to prove his claims, but in most of them, he had, at least, courts determined that he had not.
And in the ones that they did find evidence of fraud, was it enough to change the results of the election?
Changed the result of the elections.
There were relatively minor errors, and quite frankly, I can't remember exactly what they were, but they didn't, not very significant issues in terms of the number of voters affected and certainly not to affect the result in any of the states.
Ben in Florida, Independent Line, good morning.
Good morning to you all.
Just a couple of questions.
Is the fact that he has not been sentenced on those charges in New York?
Does that matter as far as his ability to run?
And the second question was, I had thought that when the governor of Virginia entered into the, well, his right to purge the roles of people that were not citizens,
that the facts were they had written down themselves that they were not citizens and that anyone that was in error could appeal that particular thing.
And that a federal judge was the one who interviewed the state's rights to purge their own roles.
Am I right or wrong in that?
Yeah, I'll start with that question.
You're basically right about that, that at one point, I believe the state at least maintains that all of these people, the 1,600 or so people in Virginia, had indicated that they were non-citizens, possibly that they became citizens, or at least some of them became citizens at some later point.
And I think it is for that reason that the state had decided to purge them.
Question in this case, however, is whether that violated a provision of the NBRA that prohibits systematic list maintenance programs, basically the removal of voters within 90 days of a federal election.
Does that answer your question, Ben?
Thank you, yes.
But could you also touch on the other about Trump's ability to run?
Yeah, great question.
It wouldn't matter if he had already been sentenced, Ben, even if he had already been sentenced on those 34 felony counts and required to serve time in prison.
That wouldn't make him ineligible to run for or serve as president under our Constitution.
Barbara in East Point, Michigan, Democrat.
Good morning, Barbara.
Good morning.
Let me first tell you, I'm 84 years old, and my first election that I voted for president was in 1960 for Kennedy.
All I had to do was take my electric bill to the polling station, show it, and I voted.
It has become so outlandishly complicated and not just complicated, but everybody is suspicious of everybody else.
It just, it's disturbing to think of how far we've come.
We can't trust anybody or anything.
My second thing is I have been watching C-SPAN and watching the news, and I am really, really disturbed about how many respected, prominent Republicans have come out who have worked for him up close and personal and said he is a danger.
What do we need to know other than that?
You know, it's just become such a, I don't know, an anxiety.
All right, Barbara.
Professor Takaji.
Yeah, I won't comment on Barbara's anxieties about this coming race.
I think a lot of people are feeling anxious.
I understood the first part of her comment to be referring to the fact that in some states, requirements for voting and having one's vote counted have become more strict.
That's certainly true.
According to one report in 2024, nine states enacted laws making voting more restrictive.
On the other hand, a number of states have actually moved in the opposite direction and in one way or another, liberalized their laws, making it easier to vote.
By that same report's count, 19 states had gone in that direction.
So it's been a mix.
And as you might expect, you've generally seen states where Republicans pulled a majority in the legislature, making the laws more strict and Democrats making them more lenient.
Do you think, Professor, that that will have an impact to those voting changes since 2020 as far as maybe the number of ballots that will be counted or the amount of litigation that we might see after the election?
You know, whenever states are changing their voting laws, as they have in every election cycle in the more than 20 years that I've been following elections closely, you do see litigation.
I mean, that is inevitably the case.
Do I think they're likely to affect the result?
My short answer to that question is no.
Like, you know, of course, if we're in a Bush versus Gore type situation, Florida 2000, where the candidates are separated by just hundreds of votes, just over 500 votes, then sure, any small change in election rules could conceivably affect the result.
But it's unlikely in an election where the candidates are separated by tens of thousands of votes that these changes are going to be significant enough to affect the result.
But again, if the election is close enough in Key Swing States, then just about any change in law could manner.
Sid is a Republican in Silver Spring, Maryland.
Hi.
A little earlier you mentioned that Trump could be guilty of insurrection.
And from my understanding, none of the indictments against him had the word insurrection in them.
And also, the 1,500 people that were arrested in connection with January 6th, none of them were charged with insurrection.
So I hope somebody could correct that so that that would not be a reason to not allow him to run.
And to be clear, I didn't say that he had engaged in insurrection.
What I said was that the Colorado Supreme Court had determined that President Trump had engaged in insurrection.
And, you know, there are, of course, indictments, including the federal case brought by Jack Smith in Washington, D.C., having to do with his actions leading up to the last presidential election.
That case is still pending.
But if Sid's point is that President Trump has not been found by any decision that is now in effect to have engaged in insurrection, that is correct.
And, Professor, as far as the status of that January 6th case, you said it's pending until after the election.
Are we going to see anything between the election and Inauguration Day on that case?
We could.
I couldn't tell you for sure what's going to happen in that case between now and the election.
I do expect that if President Trump is elected, he will order that case to be dismissed.
But before, if former President Trump wins on Election Day before he's inaugurated, is there a chance that something could happen in that case?
There could be, but I'm sure the case will not go to trial before his inauguration.
Bill in Cardington, Ohio, Democrat.
Good morning.
Good morning.
Yeah, my question is to the guest: under the 14th Amendment, since Trump was involved in an insurrection, in order for him to be able to serve, it would take two-thirds of the House and two-thirds of the Senate in order to allow him to be seated as president?
Oh, yeah.
So, well, that's a provision of the 14th Amendment saying that if someone has engaged in insurrection, that a supermajority of both houses of Congress, as you're referring to, can remove that disability, meaning allow that person to serve in federal office, including the office presumably of president.
But as I mentioned a moment ago, there's no binding decision from any court concluding that he has engaged in insurrection because of the U.S. Supreme Court's reversal of the Colorado Supreme Court's decision that he had engaged in insurrection and was therefore ineligible.
So again, there's no binding decision from any court finding that President Trump engaged in insurrection, which means effectively the issue cannot and will not be litigated.
In Falls Church, Virginia Independent Line, Mike, you're next.
Good morning.
Just wanted to bring up about the 1,600 voter registration purge in Virginia by Governor Glan Yanken.
The local news organizations looked into it and found out that 1,200 of those were citizens, many of them immigrant citizens who became citizens more than six years ago.
And it was because of a DMV clerical error, probably, that this happened.
This sad to see because the Heritage Foundation has looked into voting fraud in Virginia over the last 15 years and haven't found a single non-citizen voting in Virginia.
Most of the fraud has been because of mistakes by citizens who are not eligible to vote.
And this particularly puts a chill over immigrants who don't want to get into voting.
When there's mandatory voting in many countries like Australia and in America, we're worried about non-citizens voting who never vote and they wait for becoming a citizen because they know the consequences of breaking the law.
They will lose their green card.
They'll be deported.
And non-citizens voting very, very rarely happens.
Any comment, Professor Takaji?
Yeah, just that I appreciate the information.
And yeah, it is generally the case that non-citizens actually voting in an election is quite uncommon.
And, you know, it is a crime and can be prosecuted if someone who is not eligible to vote intentionally does vote.
And Richard is in Fort Myers, Florida, Republican.
Richard.
Yeah, good morning.
As far as using a plurality of X votes, it's really half plus one.
When you talk about 10,000 vote plurality, it's really 5,001.
In the 76th election between Ford and Carter, I went through the entire list in the New York Times, and Ohio swung that vote.
If you went down precinct by precinct, city by city in Ohio in 76, you found that there was one city with a 10,000 vote plurality.
The reality is it's 5,001 votes.
And that changed the entire election for Carter.
And so when you say 10,000, what the massive change is, it's really not.
It's really half that plus one.
And Ohio proved it, and it might prove it again.
All right.
Any information on that, Professor?
Okay, one more question for you from Mark on X. Why can't politicians, PACS, campaigns be sued for misleading ads or downright lying to the public?
Because of the First Amendment, which protects freedom of speech.
And generally speaking, false information is protected.