The looming legal battle after Election Day

Republicans have already filed more than 90 lawsuits challenging voting rules and practices – before a single ballot has been counted.

Today, On Point: What clues these lawsuits hold about a looming legal battle after Election Day.

Jessica Marsden, director of impact programs and counsel for free and fair elections at Protect Democracy, a nonpartisan anti-authoritarianism group

Ben Ginsberg, longtime Republican election attorney. Volker Distinguished Visiting Fellow at the Hoover Institution. Co-chair of the group Pillars of the Community, which works to bolster public faith in the American election system and its officials.

Alexandra Berzon, investigative reporter covering American politics and elections for the New York Times.

Part I

MEGHNA CHAKRABARTI: In May of this year, Republican election lawyer Cleta Mitchell spoke to an online meeting of Michigan activists. She told the group she would present what she claimed were, quote, facts about non-citizen voting.

CLETA MITCHELL: What we can do, the ideas and tools for what we can do as citizens to try to stop this hijacking of our elections by illegals, which is one of the ways that I actually think that the left is thinking that they're going to control the outcome of the 2024 election.

CHAKRABARTI: Mitchell was spreading a lie. Multiple nationwide analyses have found that incidents of non-citizens voting are so rare as to basically be zero.

One study by the Brennan Center for Justice surveyed 42 jurisdictions with high immigrant populations in 2016. And they found just 30 cases, 30, of non-citizens voting out of 23 and a half million votes cast. 30 out of 23 and a half million or 0.0001% of votes. Furthermore, the conservative Heritage Foundation, which is now a chief source of multiple falsehoods about election security.

The Heritage Foundation has its own database. You can look at it right now, that says it includes a sampling of election fraud cases dating back to 1979. And by the way, since 1979, approximately 2 billion votes have been cast in federal elections in this country. The Washington Post did a search of the Heritage database and looked between 2002 and 2023 and found that the Heritage Foundation's own tracking finds only 85 allegations of non-citizen voting nationwide in a 21-year period, where hundreds and hundreds of millions of votes were cast.

So again, .0000001%, basically zero. Now, I add this long digression back into reality. Because Cleta Mitchell trades in fantastical, non-real assertions about American elections. At one point during that May call, Michigan activist Patrice Johnson chimed in saying the Democrats can't win without cheating.

And Mitchell responded.

PATRICE JOHNSON: They can’t win without cheating like that. So –

CLETA MITCHELL: I think that’s right. I think that’s exactly right. But we’re onto them!

JOHNSON: We’re onto them. That’s right. That’s right. Your army’s onto ‘em, Cleta! (LAUGHS)

MITCHELL: That’s right. I think that’s right.

CHAKRABARTI: Those recordings were obtained by the New York Times.

Cleta Mitchell advised former President Donald Trump during his 2016 campaign, and then helped him to try to overturn the 2020 election. You might remember that Mitchell was on that January 2nd, 2021 call where Trump asked Georgia Secretary of State Brad Raffensperger to, quote, find 11,780 votes, end quote.

In this moment from the call, you'll hear Trump and Cleta Mitchell pressing Raffensperger to provide them with additional voter records that would prove that Trump won in Georgia, which he did not.

TRUMP: Well, I don't know, we, all I know is that it is certified, and they moved out of Georgia and they voted. It didn't say they moved back in, Cleta, did it?

MITCHELL: No, but we look, we're looking at the voter register. Again, if you have additional records, we've been asking for that, but you haven't shared any of that with us. You just keep saying you've been.

TRUMP: Cleta, a lot of it. You don't need to be shared. To be honest, they should share it. They should share it because you want to get to an honest election. I won this election by hundreds of thousands of votes. There's no way I lost Georgia. There's no way. We won by hundreds of thousands of votes. I'm just going by small numbers, when you add them up, they're many times the 11,000.

CHAKRABARTI: Once again, Trump did not win in Georgia in 2020. Now, since that 2020 election, Mitchell has continued her work destabilizing confidence in American elections.

She's been uniting election deniers in a group called the Election Integrity Network.

ALEXANDRA BERZON: There were like little groups popping up all over the country. Cleta had this idea to knit together all of these groups, have a national structure. And then she set it up where there were like state structures and then local task forces that would take on every aspect of the election system.

CHAKRABARTI: This is Alexandra Berzon, a politics reporter at the New York Times. And Alexandra says today, around 30 states have a local election integrity network group.

BERZON: I think Cleta Mitchell, especially herself, as well as many of the people in the group, have this stance that Democrats are cheaters, and they are stealing elections. And that the only way Republicans can win is to completely transform the election system. And basically, become part of it, through being on the boards, being activists at the election board meetings, as well as getting onto the boards, becoming poll workers, really becoming very involved in the actual like structure of elections, as well as doing things like changing legislation.

CHAKRABARTI: Berzon says the group has also helped shape right wing narratives about voting and elections.

BERZON: I think that the Election Integrity Network has been very influential in focusing what the sort of, you could say, conspiracy theory or some sort of language around or idea of how you're going to say that the election was stolen or that the election system is like, broken.

They've really focused, in the last couple of years, very much on the voter rolls and the idea that the voter rolls are full of people who shouldn't be voting. And that is a major problem. The other thing is related to voter rolls, which is non-citizen voting. And that's something where we really found that Cleta Mitchell has been very influential and deciding to make this a major issue.

CHAKRABARTI: And again, it's not actually a major issue in American voting after hundreds and hundreds of millions of ballots cast, every analysis has found only the tiniest fraction of a percent cast allegedly by non-citizens. But here's Cleta Mitchell herself in May of this year, explaining her focus on alleged non-citizen voting.

MITCHELL: I've been involved in election integrity, election law for a long time, but it was only really earlier this year in January of this year, that I began to really think about, I say, I think God put this on my heart, that I really needed to pay attention to this situation and to learn as much as I could about what actually is happening with regard to citizen, non-citizens getting on the voter rolls and voting.

CHAKRABARTI: Again, that recording obtained by the New York Times. Now, these narratives formulated in part by Mitchell and the Election Integrity Network are having real world impact. Officially, the group says it's nonpartisan and does not work directly with the Republican National Committee.

However, this year, the RNC and other Republican groups have filed more than 90 lawsuits challenging voting rules and practices across the United States before ballots have been counted. And some of the issues raised in those lawsuits are the same as those raised by Cleta Mitchell and the Election Integrity Network. So today we're going to talk about what clues do these cases hold for the looming legal battle, which is likely to come after Election Day. And joining us now is Jessica Marsden. She's Director of Impact Programs and Council for Free and Fair Elections at Protect Democracy.

It's a nonpartisan anti authoritarianism group. And she joins us from Durham, North Carolina. Jessica, welcome to On Point.

JESSICA MARSDEN: Hi, Meghna. Great to be here.

CHAKRABARTI: So first of all, let's pick up on the connection between the kinds of narratives advanced by Cleta Mitchell and her group, and what you're seeing in these lawsuits that have already been pushed into the legal system prior to the close of voting tomorrow.

What are some of the similarities that you're seeing?

MARSDEN: So I think you're absolutely right to pick up on the fact that non-citizen voting is a theme, not just in what we're hearing from Cleta Mitchell and her allies, but also in the suits filed by the RNC, which overwhelmingly focus on this question of voter roles, and voter eligibility.

Two other issues that are being raised in a number of these cases to highlight, one is a continuing focus on mail in ballots and questioning the processes that states are using to collect and count and verify mail in ballots. And then also in a couple of cases, of focus on the certification process.

That's the step where local officials say we're done counting ballots, checking ballots at the local level. These are our results, so that those can get incorporated into the final state result.

CHAKRABARTI: Okay. Before we go further into the details of what these lawsuits filed by Republican groups are, to be rigorous and fair, this doesn't mean that Democrats aren't filing lawsuits.

We just did a show, in fact, one and a half shows on lawsuits in Georgia that contested the Georgia elections board's new last second rules to change elections there. Now a lot of those lawsuits were filed by Democratic groups. So I just want to check that with you, that it's not exclusively Republicans that are doing this right now.

MARSDEN: Absolutely. It's certainly not exclusively Republicans, and Republican affiliated groups that are bringing these cases. I do think one important difference is that those Georgia cases you mentioned challenge last minute rules changes by the Georgia Election Board. Similarly, my organization, Protect Democracy, which, as you mentioned, is nonpartisan, was involved in a lawsuit over Virginia's voter rolls, where the state announced a last-minute effort to remove voters from the rolls there.

Some of these Republican National Committee and affiliated groups, the suits that they are bringing are challenging policies that have been in place. In some cases, for more than a decade, but they're bringing these cases in the final weeks before Election Day, and that is part of why they raise alarm bells for us.

CHAKRABARTI: Okay, so pick up then on specifically some of the suits that have been brought by the RNC. They have to do, as you mentioned, with the assertion, the RNC's assertion, that states are inadequately removing ineligible voters from voter rolls?

MARSDEN: Exactly. So to give one example from here in North Carolina, the RNC filed a suit asking the state board to remove more than 200,000 voters, who, because those voters didn't have a social security number or a driver's license in the voter file, but everybody agrees they were never asked for that information.

There's no reason to think that these voters are ineligible. And as far as I know, the RNC hasn't actually pointed to anyone who is not a lawful citizen, who is on that list. And we know many voters who are on that list have come forward and said, Hey, wait a second, I don't know why I'm on this list, I'm an American citizen, I was born here, or I naturalized. And yet their eligibility is being questioned in this lawsuit.

Part II

CHAKRABARTI: Jessica, before we move on to other parts of the country I am very particularly using a lot of words here today. I am particularly sensitive about being sure we're not talking transmitting any inaccurate information in this show about elections.

So I'd like to just get clarification from you about North Carolina in particular, because you had said about concerns over people being removed or challenges to people's voting there on the rolls. Because last month we did a show where with three different elections officials in three different counties across the United States about what it's like to do their jobs, the challenges they're seeing.

One of them was Erica Porter. She's chairwoman of the Board of Elections in Wake County, North Carolina, and she's a Democrat. And this was about around the time where there was news that North Carolina had announced that it had removed 750,000 ineligible voters and we asked her about that and she said she had heard from lots of confused people about this. And here's what she told us.

ERICA PORTER: I have to, you know, keep people calm and let them know this is a normal process in North Carolina. This is a normal process.

There are so many different categories of why someone may have been removed and it's not nefarious. You know, you could have just gone to another county, and you just got removed from the Wake County, right? Or you moved to another state. Unfortunately, someone passed away and that's a process that we have to do.

And so I'm just trying to comfort voters and let them know that we're not out here just taking people off.

CHAKRABARTI: Again, that's Erica Porter, Chairwoman of the Board of Elections in Wake County, North Carolina. She's a Democrat. So Jessica, again, in the North Carolina case, clarify what exactly is going on. That's an appropriate part of elections administration versus what the concerns are.

MARSDEN: Absolutely. I love what Erica, just how Erica described the normal list maintenance process. Every state is required actually under federal law to periodically go through and update their voter rolls to remove folks who are no longer eligible voters in that jurisdiction. And as Erica said, that can be for a number of different reasons.

Someone moved, someone, unfortunately, passed away. There was some other change to their eligibility. Federal law says you have to do that, and you have to be done with that by 90 days before Election Day. What some of these late filed RNC and affiliated groups, the suits that they are bringing are asking for additional list maintenance on top of what states already do, and not based on any concrete evidence that there are actually voters who are not eligible on the voter rolls. In the case of the North Carolina lawsuit that I mentioned, it's pointing to records in the voter rolls that don't have a driver's license or social security number affiliated with the record.

Again, that's because these voters were never asked for that information. So that's not on its own a reason to think that they should be removed.

CHAKRABARTI: I see. Okay. And then about this filing of these lawsuits inside that quiet period, right? Let's call it that. The 90 days before the election. Are we seeing a lot of that?

MARSDEN: Yeah. So we've seen a number of different suits filed contesting voter eligibility in the last couple of months, within this quiet period. Just last week in Arizona, a group called Citizen AG, that is part of this Cleta Mitchell movement to question election results, filed a new lawsuit in Arizona asking for the removal of more than a million voters.

It is just too late for that kind of maintenance. Folks are already voting, and the court in that case said, there is no, that Citizen AG had introduced no concrete evidence that any of those 1.2 million people are actually ineligible voters. The language the court used was, this was wholly speculative.

CHAKRABARTI: And it seems it's unlikely that any federal court would find differently in these cases that are coming in quite late, especially if there's no merit or no evidence provided within the suit itself for why there should be any kind of action prior to, I guess now, prior to tomorrow.

So what does this tell you about why would these lawyers be filing so late?

MARSDEN: That's a great question. When we look at the effort to overturn the election in 2020 and the plans that seem to be in the works now to question election results, we see that sort of three stages to that strategy.

First, deceiving the electorate by spreading lies to degrade trust in the system, disrupting the election itself to cause chaos and uncertainty, and ultimately denying results they don't like. Lawsuits feed into each piece of this strategy. So first, putting false claims in the form of a lawsuit is a way to sanitize and add legitimacy to them.

Second, it's disruptive to be filing these lawsuits late in the game. State and local officials are now spending precious time as they're getting ready for Election Day and the post-election process in court, and preparing backup plans in the event that a court orders them to change something. And then finally, we're concerned that these lawsuits will fail before the election.

But like zombies come back to life in the post-election period, that the losing campaign, or I should say the Trump campaign, if he loses, will point to some of these same claims around ineligible voters or problems with mail in ballots, and say that is a reason to throw out certain votes and otherwise disregard the will of the voters.

CHAKRABARTI: Okay, so these things in combination, deceiving, disruption, denial seems to be overall a way to say that there's a flag being planted now about avenues of litigation that will be followed after tomorrow. I still can't believe it's tomorrow. Also, help me parse a little bit of the legalese here, because I believe you've said that the RNC and associated groups. They're filing these cases, but they're not even litigating them really aggressively right now, to what's called pre-election relief. So what is that? And why do you think that's notable?

MARSDEN: That's right. So to take one example, a case was filed several weeks ago in Nevada, saying that there were noncitizens on the rolls and that additional list maintenance needed to happen before the election, but the parties that filed the case never went to court to actually pursue a preliminary injunction, which would be a court order directing the secretary of state to do the list maintenance.

The suit was ostensibly asking for. So the case is not, there hasn't been any progress in that litigation that would have allowed a court to do what the lawsuit was supposedly asking for. So you have to ask, why were they filing this case ahead of the election? And one possibility is that the claims are now there, there's an open case, that becomes a tool that they can use in the post election period to challenge the results of the election if it doesn't turn out the way that they're hoping.

CHAKRABARTI: Oh, okay. So again, not being a lawyer, to put it more simply, is it that it's possible that afterwards people who are rejecting the outcome of the election or want to challenge results in any way could say there's an active legal case. You can't actually certify this election.

MARSDEN: That's one, exactly, that's one possibility.

Another possibility is that in 2020 when similar claims were raised about the procedures that were used to conduct the 2020 election, one thing that courts said was you can't bring these claims about voter eligibility or election processes after the election. You have to get those on file before the election.

So there's an opportunity to fix them. It seems possible that they are filing these cases ahead of the election to plant that flag and head off that legal argument in the post election period. That legal doctrine there is called latches. You can't bring a case too late. That shouldn't work. As I said, they didn't actually litigate all of these cases with intensity that would have been required to get pre election relief, and courts should be able to recognize that. But it does seem like that might be part of the strategy here, is get these cases on file, plant the flag that this was an issue that we raised ahead of the election, and it wasn't fixed, so that in the post election period, they're on stronger footing.

CHAKRABARTI: Okay. Jessica Marsden with Protect Democracy, hang on here for just a minute. Because I would like to introduce Ben Ginsberg into the program. He's a longtime Republican election attorney. He's a Volcker Distinguished Visiting Fellow at the Hoover Institution and co-chair of the group Pillars of the Community, which works to bolster public faith in the American election system and its officials.

And for longtime politics watchers, you might remember Mr. Ginsberg as also having served as national counsel to the 2000 and 2004 Bush-Cheney presidential campaigns, and he played a role in the 2000 Florida recount. Ben Ginsberg, welcome to On Point.

BEN GINSBERG: Thank you. Thank you for having me.

CHAKRABARTI: Okay. So first of all, tell us a little bit about what Pillars of the Community does and why you feel it's important to bolster faith in the American election system.

GINSBERG: Pillars of the Community is a group I co-chair with my longtime Democratic adversary, Bob Bauer, and we went round and round on election cases for 40 years, but we co-chaired the Presidential Commission on Election Administration in 2013 and 2014. We got to know a number of election officials, really admired the job that they were doing, and then when the current unpleasantness involving election officials started taking place in 2020, we formed the Pillars of the Community. And what we do is go into the most contentious election jurisdictions and get the leaders of the community across all walks of life and across the political spectrum. So veterans, faith leaders, educators, businesspeople, labor union leaders, and through that political diversity, we have the meet with the local election officials, and we ask our pillars to kick the tires.

As hard as they can, and after they kick the tires, we think they will see that there are safeguards throughout the election system, and they will stand up for the process, not necessarily the results, but the process from which the results are derived, and stand up and support local election officials who did not have enough support in 2020.

CHAKRABARTI: Okay, so let's just jump back into history just a little bit because you did mention Bob Bauer, who was President Obama's personal attorney and general counsel during the Obama administration and his 2008 campaign. And if memory serves, President Obama actually had you and Bauer co-chair this presidential election Commission on Election Administration back in 2012, 2013?

GINSBERG: 2013 and 2014, looking at the 2012 election.

CHAKRABARTI: And just as a reminder, what did you find?

GINSBERG: We looked at all aspects of the election system, and our goal was to lower barriers of voting for all eligible voters. And so we looked at the way elections were run around the country in all 10,000 jurisdictions and made a series of best practices recommendations for election officials to follow.

Because one of the things about our election system is that it is administered on a very local level. And so this was an attempt to introduce some more best practices into the system.

CHAKRABARTI: Okay, let me then ask you about what you are seeing now. Jessica Marsden has done a really good job in walking us through the various potential strategies at play with this pulse of pre-election day litigation.

What's your view on why that might be happening?

GINSBERG: It's happening because it's been a feature of Donald Trump's campaigns in the past to denigrate the election system. Part of the difficulty with that is that without evidence, it runs down a fundamental institution of the United States. And when our elections go under challenge, that makes it much harder for whoever wins the election to be able to govern, if people don't have faith in the system.

The Trumpian message has led to the current state, where over a third of the country doesn't believe in the reliability of election results. That's something that's harmful to the country long term. All the ably described seem to be designed to set up a post-election challenge, much like 2020. But what's interesting, and as she pointed out, there's not been any evidence introduced in any of those cases.

Just like in 2020, in all 64 court cases that Trump filed, there was no evidence produced that showed systemic widespread spread fraud. And so we've seen this picture before. We've seen this show, and the lack of evidence, will come face to face with the reality post-election, if these cases are filed.

CHAKRABARTI: It seems almost certain that they will be, because as you just reminded us, more than 60 were filed post 2020. I wonder if also, is there any significance in where these cases are being filed, Ben Ginsberg?

GINSBERG: They are being filed particularly in the seven battleground presidential states. And they are a precursor.

I think a number of them have been filed to try and do some forum shopping to get them before favorable judges, if possible, and they may be refiled post-election. And there also have been a number of cases because that's been a political message and a fundraising tool for the Republican National Committee in the Trump era.

CHAKRABARTI: Jessica, did you want to comment on that?

MARSDEN: No, I think that's exactly right, to emphasize that these are being filed in the presidential battlegrounds for the most part. And I think the connection with fundraising is important too. Political strategy and the legal strategy here seem to be deeply intertwined.

And you started the show talking about the noncitizen voting narrative. I think one reason why that became such a focus of the election denial movement this year is that it ties together the Anti-immigrant rhetoric of the presidential campaign with this effort to undermine trust in elections that we've seen continue since 2020.

Part III

CHAKRABARTI: Mr. Ginsberg, before we get back to the current constant state of, as Jessica put it, deceiving disruption and denial over U.S. elections, I have to ask you, many people look back at 2000 and Bush v. Gore as the OG sin in disrupting Americans faith in our elections, because the argument back then was that because elections are so locally administered, as you pointed out earlier, that in Florida, the 14th Amendment was being violated. Because there was no equal protection, because there wasn't a recount going on in every Florida jurisdiction in 2000.

And that's what led the Supreme Court to end the recount. And therefore President George W. Bush became president in 2000. A lot of people look back at that and say that was the time, the first time in which faith in how our elections are administered was shaken. And so then logically, 24 years later, here we are.

I'm wondering what you would, how you would respond to that, Mr. Ginsberg.

GINSBERG: It's important to remember that there were only recounts in four jurisdictions because Florida law required campaigns to ask for recounts in each county, and the Gore campaign chose for its own strategic reasons to only count in those four counties, which happened to be the strongest Democratic counties, and the old recount saying is good gets better and bad gets worse.

So they recounted in their four counties, but that's the reason that only four counties were done in Florida. I think what you need to remember in putting 2000 into perspective today is that was a legitimately close election. 537 votes is a margin that deserves to be recounted. And the Gore campaign was absolutely within its rights to request that. The 2020 election was not close, in all the years I've done recounts. It is unheard of to flip more than 5,6,7, maybe 800 votes through a recount, and usually it is much, much less because our systems are accurate. And so I don't think you can call 2000 the original sin, because that was a 537-vote margin in one state.

CHAKRABARTI: I suppose the original sin in many people's mind is that recount was stopped, Mr. Ginsberg.

GINSBERG: The recount was stopped, the Supreme Court recognized that there is a constitutional deadline for the Electoral College, that there was a safe harbor in the law at the time by which the counting had to get done, that the Florida Supreme Court was changing the rules of the game after it was played. And to allow that to continue, I think in the Supreme Court's view, would have created chaos throughout the country.

They stepped in, said what the law was. And things went on and the peaceful transfer of power took place due largely to the great grace that Al Gore showed.

CHAKRABARTI: So about recounts, let's get, it bring us back here to 2024. And Jessica, let me turn to you on this. I take Ben Ginsberg's point that it was very close in Florida in 2000.

But it's likely to be close in a lot of places this time around, too, or at least I think that's not unreasonable to expect. But we have rules in what most, if not all states, that within a certain margin there's going to be an automatic recount anyway, yes?

MARSDEN: It varies state by state. Some states have automatic recounts.

Some states allow candidates to ask for recounts. And I would certainly expect that if we are in the margin where asking for a recount is possible, candidates will ask for it.

CHAKRABARTI: Okay. And then do you think that we could potentially see, I know I'm asking for predictions now, which is a bit dangerous, but could we potentially see like we saw before, groups asking for recounts even in places where it's not close?

MARSDEN: It's possible where the law, and where the law allows it, I would expect that certainly the Trump campaign, based on past experience, is going to be pressing for every legal argument that it can cook up to drag out the post-election process. And that's where I think accurate reporting on the state of the results is going to be really important over the next few days.

In 2020 it was part of the Trump campaign strategy to have him declare victory early. I think if he appears to be winning in key states tomorrow night. We should expect to see the same thing again, but counting votes takes time. And everyone, no one should be counting on the result being clear tomorrow night.

We expect that vote counting may happen more quickly this year than it did in 2020, just because of the reduced volume of mail ballots. But it may well still take a day, two days. Maybe even longer, if it is truly as close as Bush v. Gore, for example, to know who won. And we should not take seriously premature declarations of victory by either candidate.

CHAKRABARTI: So actually, on that note, Ben Ginsberg, one, I think, major difference in the quarter century since Bush v. Gore is that there is a lot of money now involved in supporting legal cases challenging elections. I'm wondering if that has a lot to do with this, because I understand that groups now, because they're fundraising specifically for this issue, they've just got piles of cash they're sitting on, ready to be used for exactly the kind of election denying or election challenging legal cases we've been talking about.

GINSBERG: There is far more money in the system for litigation. I think you've seen that manifest itself in the pre-election cases. I think if it comes down to a recount, the role of outside groups is more a public relations role than it is an actual litigation role. In a recount, it is the candidates and perhaps their political parties that will be involved. They will all raise money specifically for that recount. If there is a recount, it will be amply funded. And so I actually think that the role of outside groups will go down if there's a recount. And I can tell you from having done recounts that you do want all the strategy tactics to be done by the campaign.

And not by outside groups.

CHAKRABARTI: So outside, the role of outside groups might go down, but help me understand here, I think you've also said previously that Congress has a role in helping there to be these sort of big war chests of money for Election litigation.

GINSBERG: Yes, but this goes to the sort of constant pre-election litigation.

Congress changed the funding rules for the National Political Party committees so they can now raise over $100,000 a year from each donor for what's called legal proceedings. For the last 10 years, there has been an unprecedented pot of money residing in all the national committees to be able to litigate.

On top of that is the country has grown more polarized, and one party has taken over control of more states. That's led to legislation that one party feels favors the other. And so the only recourse you have as a political minority is to tap into that huge amount of money at the party committees and file suit.

So that's led to more litigation. And plus 501(c)(3) groups are also able to raise a huge amount of money to engage in litigation.

CHAKRABARTI: Jessica Marsden, what I'm wondering is what does this tell us about the state of how Americans are supposed to trust what happens on Election Day or thereafter if now we're living in a world where there is just de facto tumult that's going to be created by what could be a huge number of lawsuits.

MARSDEN: I think it is so important for everyone to look through the tumult that is created by people running to court in the days after the election, and look at what the facts actually are. Ben made this point earlier that in 2020, for all the lawsuits that were filed, the facts were never there to support them, and they were all thrown out in court, and that's because fundamentally the officials who are doing the work of doing elections are doing a good job with systems that are trustworthy and that can be checked and counted and verified.

One thing that's a big improvement this year compared to 2016 is we have pretty much gotten rid of voting systems that don't produce any kind of paper record. That means that in the post-election period, there are pieces of paper that voters have had a chance to either fill out themselves by hand or look at before they submitted it into the ballot box, and that is something that election officials in the post-election period, if there are recounts, if there are audits, they can review those pieces of paper and check them. There are a lot of reasons to trust our system, and the mere fact that we are going to see folks rush into court, that we have already seen folks rush into court to challenge election processes is not in itself a reason not to trust the system.

CHAKRABARTI: And just also for clarification, the other issue with all of these lawsuits that may be coming in after Election Day is that there's also a statutory timeline, right? By which certain important things have to happen for the presidential election to come to its natural conclusion, right? We have December 11th and Jessica, what happens on December 11th?

MARSDEN: December 11th is the deadline under federal law today, or this year, for states to certify their statewide election results designating the electors who will participate in the Electoral College on December 17th.

CHAKRABARTI: Okay, so about five weeks after Election Day, we have that first deadline, then a week after that, December 17th, the electors in their very state capitals meet.

And then of course the next big one is January 6th, right?

MARSDEN: That's right. January 6th is when Congress will convene in a joint session. That means the House and Senate together and the vice president will lead the members of Congress and their staffs in opening up the certificates of votes from each state's Electoral College representatives.

They'll count them. And that's the final step for completing the presidential election process.

CHAKRABARTI: And then, of course, January 6, 2021 was the date that that process was utterly disrupted by a riot and an attack on Congress, but it did eventually get completed. Thanks, by the way, to the members of Congress and the then Vice President for coming together and actually standing by the rule of law and doing their statutory duty.

But Ben Ginsberg, actually, that reminds me, we are living in a world where we have to be willing to imagine the unimaginable. Is there a way to think through what might happen if all of these cases are still going on all the way until January 6th, and there's enough active litigation that a campaign says we don't think you should certify.

We don't think that Congress should do its job, because the election isn't yet over.

GINSBERG: Another crucial series of dates that you have to remember is the state certification of its results. And each state is different, but for the seven battleground states, it's between November 26th and December 2nd.

And each one of the states needs to tally up and have its certifications final so that they can move to December 11th and that certificate of ascertainment for the presidential race. But those statutory deadlines in each state will really, I think, bring to a conclusion or give a really good idea if there's going to be a long-term problem.

And of course, officials refusing to certify is a questionable strategy. It's not worked in any instance. It's mandatory in each of the 50 state laws that local officials and state officials do certify, there are some people who refuse to certify who are facing criminal indictment, and more than anything else, if a county refuses to certify in an attempt to help Donald Trump, then no candidate, no winning candidate in that county can have a certificate. So that there will be Republican members of Congress, for example, who won't be able to be certified if that certification ploy is successful.

CHAKRABARTI: Last question. And Ben, I'll stick with you here. We saw in 2020 that all of these election officials from the local to the state to the national level actually did do their jobs, right? They stood up as pillars of democracy. But nevertheless, I think the big question this time is, even if all that happens, we have a candidate who's unlikely to concede if he lost, if he loses.

We don't know if that's going to happen, but if it doesn't, if it doesn't happen, it's entirely possible to believe that Donald Trump will not accept those results. I don't know if there's a legal answer to what would happen then. I just was wondering what you think about that possibility.

GINSBERG: I think that Donald Trump will need to face the reality. He, there will be election results, he will have to present evidence of fraud, if it exists, and in this country, the voice of the people is always who determines who wins the elections.