WQCS Header Background Image
Play Live Radio
Next Up:
0:00
0:00
Available On Air Stations

GOP Lawyer On Potential Legal Challenges To Election Results

MARY LOUISE KELLY, HOST:

Let's talk now about the prospect of litigation over the outcome of the election, a prospect that Senate Majority Leader Republican Mitch McConnell says would be nothing unusual.

(SOUNDBITE OF ARCHIVED RECORDING)

MITCH MCCONNELL: Going to court is the way we resolve uncertainty in our country. So, no, I'm not troubled at all by the president suggesting that because the other side's already doing it, too. You can anticipate in close elections, both sides will be lawyered up and will end up in court.

KELLY: Lawyered up. That was McConnell speaking to reporters today in his home state of Kentucky. So what kind of court battles might we be looking at? Well, I want to turn again to veteran GOP election lawyer Ben Ginsberg.

Mr. Ginsberg, welcome back to ALL THINGS CONSIDERED.

BEN GINSBERG: Thank you. Nice to be here.

KELLY: You and I spoke last week, and you told me then you were very much hoping this election would not end up being decided by the courts. Is your hope dimming at all today as you watch things play out?

GINSBERG: Well, dimming. But it's important to remember that counts do take longer than election night, especially in a year with a lot of absentee ballots, mail-in ballots. And so what we're seeing so far is really the usual process.

KELLY: And let me ask you about a couple of specific states and how they fit into that usual process or not. Michigan - the Trump campaign has filed a lawsuit today to halt counting in Michigan. They say they haven't been given meaningful access to numerous counting locations. Is that par for the course in a very close election, or do you see anything unusual happening here?

GINSBERG: It is unusual for a campaign to decide at this point they're not getting meaningful access. Usually, what happens is the campaigns ask those questions well in advance of local officials so that you can go to court before the election, before the count to be sure you have access. Having said that, if they can make a cogent case that they were denied what is allowed them under state law, then that's something that the courts will consider.

KELLY: All right. So that's one to keep an eye on. Let me ask about Wisconsin, which the Trump campaign is saying they're going to ask for a recount in that state. I will note the AP. The Associated Press has already called Wisconsin for Biden, but the margin of victory there is about 20,000 votes, less than 1%. That's within the threshold needed for a recount. What will you be watching as you watch this one play out?

GINSBERG: That is within the permissible margin under Wisconsin law. And any candidate within that margin absolutely has a right to pursue a recount. Jill Stein, the third-party candidate in 2016, pursued a recount in Wisconsin. The Hillary Clinton campaign joined - intervened in that case in late November, all perfectly appropriate within the rights. It is a little bit ironic that Donald Trump's margin in 2016 was 22,000 votes, pretty close to what it is now. And he was right upset when Jill Stein requested that recount.

KELLY: President Trump said last night, and I quote, "we will be going to the U.S. Supreme Court." Is it clear to you what he means by that? Is there a specific path his lawyers might be eyeing?

GINSBERG: It will be a remarkably innovative path if they have found one.

KELLY: Meaning what?

GINSBERG: Meaning I don't think there's any way to go right to the Supreme Court with something like this. And what this is has not been made clear.

KELLY: Meaning there would need to be a lawsuit filed, and it would need to make its way through the usual procession of courts before it would make its way to the Supreme Court.

GINSBERG: The Supreme Court does not hear cases, originally. They have to be filed somewhere else. And, presumably, whatever the president asked would be something nationwide, which the court doesn't really have jurisdiction to do because the time, place and manner of holding elections is up to the state. So to pursue a remedy like this, you do have to go through the state procedures and laws.

KELLY: Ben Ginsberg, longtime Republican election lawyer. He was part of George W. Bush's legal team back in the 2000 election.

Ben Ginsberg, thank you.

GINSBERG: Thank you.

(SOUNDBITE OF KYLE DIXON AND MICHAEL STEIN'S "KIDS") Transcript provided by NPR, Copyright NPR.