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GOP Election Lawyer On Voting Legal Battles

MARY LOUISE KELLY, HOST:

As millions of voters wait in line to cast their ballots, as millions of others have already voted, an army of lawyers has been fighting it out all the way to the Supreme Court. Yesterday, the court weighed in on challenges to absentee ballots in two key swing states - Pennsylvania and North Carolina. Now, the cases were a little different, but they both had to do with ballot deadlines and how long the states can count mail-in ballots after Election Day, so long as they are postmarked by Election Day. Well, we're going to talk this through with Ben Ginsberg. He is a veteran election lawyer. He was part of President George W. Bush's legal team back in the 2000 election.

Hey there. Welcome.

BEN GINSBERG: Thank you.

KELLY: Give me your top-line read on the significance of this pair of decisions. Is it fair to say this was a good day for Democrats and probably not where Republicans hoped the court would land now inside a week to Election Day?

GINSBERG: I think that's fair. But the Supreme Court has been reasonably consistent about deferring to state lawmakers and policymakers on these questions. Pennsylvania got a little bit murky because it involved a state Supreme Court as opposed to a legislature. In North Carolina - involved an appointed board. But they're both arguably the state entities with a say in its absentee balloting.

KELLY: We're talking about constitutional questions, but also, these challenges are very much political. Would you agree that we're basically talking about Republicans wanting less time for voting; Democrats, more of whom seem to be voting absentee and by mail, wanting more time for the ballots to be accepted? I mean, practically, what will the consequences of these rulings be?

GINSBERG: The practical consequences of the rulings will be that ballots that are postmarked on Election Day can still be counted if they're received within three days of the election in Pennsylvania, nine days in North Carolina. So theoretically, there will be more ballots counted. Part of what's important in the Supreme Court decisions is that if you start changing deadlines, voters are likely to be confused because they've relied on what they believe the deadlines to be.

KELLY: I mentioned you were one of the lawyers on the Bush legal team in the last contested presidential election in 2000, which, of course, was ultimately decided by the Supreme Court. How do you rate the chances we might end up in the same place in this election?

GINSBERG: At 5.2%.

KELLY: Five point two - OK.

GINSBERG: There have been 57 presidential elections in our history. Three of them have gone to either a contested election or a recount. So there's a 5.2% chance.

KELLY: OK. However, we do find ourself (ph) in the moment that we're in in 2020. It's not just about statistics. I mean, what do you think this - on the chances that we will have an uncontested election result at some point in the days after November 3?

GINSBERG: I think that there is a lot of concern about this election, in part because of the pandemic and the fact that there is an overwhelming number of absentee mail-in ballots that we've never had before. We're certainly living in a polarized time in our country, which means the rhetoric is more heated than usual. So we naturally turn to contested outcomes. I think it's really unlikely they'll be something like Florida. Florida was an improbably narrow margin in a state that turned out to be outcome-determinative in the Electoral College. That is a lot of random events lining up. And of course, you can't know at this point whether elections are going to be so close that they fall into a 0.25% that requires an automatic recount in most states.

KELLY: If I'm hearing you right, you are a veteran election lawyer who is very much hoping this does not end up with the lawyers, that this election does not end up being decided in the courts.

GINSBERG: Absolutely. I mean, the country is feeling a little bit fragile between the pandemic and the rhetoric and the polarization involved. I think we would all be much better off with clear-cut results.

KELLY: That is election lawyer Ben Ginsberg. He was part of the Bush legal team back in 2000. Many thanks.

GINSBERG: Thank you. Transcript provided by NPR, Copyright NPR.