Q&A: Professor Bradley Joondeph on the 2020 Election Results
By Colan Mackenzie
Professor Bradley W. Joondeph has been teaching Constitutional Law at Santa Clara University School of Law since 2000 and has clerked for the Honorable Sandra Day O’Connor of the United States Supreme Court and the Honorable Deanell Reece Tacha of the United States Court of Appeals for the Tenth Circuit.
Q: The Trump campaign has initiated over a dozen lawsuits in battleground states like Arizona and Wisconsin. What can you tell us about how those will proceed?
I mean they run the gambit. A lot of them have to do with whether the right number of people were permitted to watch the ballot counting process. Some of them have to do with all of the “I’s” that need to be dotted and “T’s” that need to be crossed before ballot counts are certified. I think some of them have to do with complaints about how the signatures are being matched in various databases and software that was being used to validate signatures on absentee ballots. It kind of is all over the place and I think the basic legal strategy is to try to gum things up. It's not entirely clear that there is a coherent strategy aside from just sowing doubt in the result. If there is a strategy I think it is to try to delay in the hopes that if states got bogged down in these lawsuits such that they couldn't certify their results by December 8th — which is the deadline under the Electoral Count Act for guaranteeing that the electors will be recognized when the votes from the Electoral College are counted. That somehow it would create a window politically for legislatures in Republican controlled states to appoint Republican electors representing those states, despite or in the face of the popular vote.
So you know where could that happen? Potentially Pennsylvania, where I believe Republicans have a majority in the state Legislature, but voted for Biden in the presidential election, so places like that.
Q: Do you think some of these complaints are frivolous enough for the lawyers bringing them on behalf of the Trump campaign to receive section 11 sanctions?
So you know, they could. I would need to see what is supported. I've heard some of the colloquies with the judges, like one of them in Pennsylvania, where they went to court and they said basically “we heard from someone who heard from someone else that such-and-such happened” and the judge said “that's all you have? That is absolutely all you have for the basis of claiming that there was fraud?” And then the judge said that's “hearsay within hearsay.” And that's borderline, I think.
Rule 11 sanctions are in the eye of the beholder, and it's ultimately up to the discretion of a court. Some of this is proceeding in state court, so it's not governed by Rule 11, though most state court systems have analogs. So if some of [those claims] are frivolous, yes [the lawyers could be subject to sanctions]. More likely though, a lot of them are just going to get dismissed for failure to state a claim under either rule 12(b)(6) or something to the same extent under state law.
Q: OK, so the next question is kind of the polar opposite to that. Do you think that any of these lawsuits could turn into another Bush v. Gore?
Sure doesn't look that way. And that's a product of two things: one is, as much as people don't like the Electoral College, one of the nice things about it is that it keeps disputes walled off within one state. So let's say something completely weird happens in Georgia, for instance, and there are 15,000 or 20,000 ballots that are questionable that weren't originally questionable. We might have a question about the result in Georgia, but that in and of itself is not going to be anything close to enough because that doesn't actually question the end result. It might have some effect on the Senate races, but it's not going to affect the presidential race. Even if that were to flip Georgia, Biden still has a wide margin in the Electoral College. There would have to be 2 states in which stuff happened in order to get there, and one of those two states would have to be Pennsylvania. So putting all that aside, nothing seems viable in any single state to question the result of any of the outcomes so far, there doesn't seem to be any “there” there to any of the claims. So, in short, no.
Bush v. Gore was quite different in a couple of ways. One, the result was an awful lot closer. I mean Georgia today is pretty darn close. It's within 14,000 votes, Florida in 2000 was [called for George Bush with a margin of] 537 votes. That's a lot smaller and that gets into the realm where a hand recount could actually potentially change the outcome of the election, particularly in a state as large as Florida.
So one of the reasons Florida dragged on as long as it did is that the margin was so small that very, very small changes in some of the more populous counties could have flipped the result and that one state made the entire difference to the outcome of the election and we don't have either of those things in this case, so. I don't see anything emerging.
Q: Do you think that the Supreme Court will play a role at all?
Oh, I sure hope to God not. That would be about the worst possible thing that could happen at this point. I mean, well, I guess we could imagine even worse things happening, but that would be a pretty awful thing to happen. I think they have no appetite for that. And again, I mean having lived through that experience, there's nothing remotely like [Bush v. Gore] right now. And I want to be careful in choosing my words here, but I don’t think it's anything more than a rather close-minded fringe of the United States that thinks the outcome of the election is at all in doubt.
That's quite different than in 2000, where I think an awful lot of people had genuine doubts about how many people voted for the other candidate. One of the weird things too, that I think fueled some of the rage that has kind of gotten lost to history is there was a very confusing form of ballot that had been used in Palm Beach County in Florida that year. So somewhere in the neighborhood of 10,000 people very likely voted mistakenly for Pat Buchanan while they were trying to vote for Gore. Because visually on the ballot there was kind of a misalignment of where you checked and where you punched a hole and where the candidate's name was.
And we learned from that and people don't design ballots that same way.
But it was immediately obvious the morning after the election that if everyone had actually had their vote registered for the person they intended to vote for, Gore would have won Florida by something like 5 or 10,000 votes. But it turned out he ended up losing by whatever 537 or 457. I can't remember exactly but it was just a small number of votes. So again, there's nothing like that right now where the vast bulk of Americans think that the outcome of the election is at all questionable.
Q: There are reports from NPR and NBC saying that Biden isn't receiving intelligence briefings right now, which is abnormal. It is largely, I think, because of these continuing lawsuits.
You could have those while the lawsuits go on because Clinton allowed George W. Bush to get those intelligence briefings while the litigation went on in Bush v. Gore. So the two things need not be connected in any way.
Q: Do you mind just expanding on that a bit ? What are the consequences for that? What is the reasoning behind it?
I'm not sure that this administration has ever really cared about reasoning for anything that it's done. I think spite is considered a sufficient reason by this administration.
I don't know what the consequences really are. I think it's really hard to tell. It sounds as if they are sort of constructing a work around to some degree. It also sounds like Vice President-Elect Harris is getting the briefings because she's a member of the Senate Intelligence Committee, so she has access to the information through her being a senator. My guess is that it's not a huge practical impediment at this point, but maybe it will become one the longer it drags on.
I resent the fact that I have to spend time thinking about this. That our government somehow can't behave like adults. It's not even adults. It's really more like third graders. That's really the standard that we're setting. When something hasn't gone your way, instead of just picking up everything on the table and throwing them on the floor, you graciously nod your head and allow someone else to look at the pieces on the table. Not that there's anything at stake like national security or a pandemic or whatever but.
You know, I've grown a little bitter and jaded over the last four years. It's the hijacking of our federal government by people who don't seem to care at all about the country. Let's just hope that it doesn't set any sort of a precedent for what people do in the future. I think that's the real concern--that if you start to politicize things like elections in the counting of ballots and stuff that, you have to ask, “Will we be able to recover from that and go back to a place where people think about elections as really needing to be walled off from political considerations in terms of how they're run?” With all that's going on in Georgia with Republicans calling for the head of the Secretary of State there because he's just trying to count the ballots. It is deeply concerning because it threatens the very foundations of democracy, which is nonpartisan elections.
Q: You've mostly already spoken to this, but do you believe that the legal system can be used by the Trump administration to radically alter the outcome of the election?
No, I don't. I think it's going to be unsuccessful. I don't think there's enough political support for it, which is probably the most important thing, and then I think there are enough people in the legal system who truly value and treasure the rule of law that see the potential threat posed by this I mean again, assuming there aren't credible allegations. There don't seem to be any credible claims that anything was done incorrectly in a way that in any way questions the outcome. Could anything really happen? Could anything really come of this? From what has been revealed so far, it sure doesn't seem that way. And who knows right? Things happen and new stuff comes to light, but as of now there doesn't seem to be anything.
Q: Do you think there is any way back to normal after this presidency?
Oh sure, yeah! Nothing is beyond redemption, nothing. There's no institution, no person and no human institution is beyond redemption. There's always hope that things could change. All it takes is human beings deciding in concert that they want to make that change. It's harder when, when norms are broken. You know norms take a long time to establish. It's much easier to shatter them than it is to rebuild them. A lot of what's happened has been that trust has eroded and trust can't simply be put back into place the way a policy can be through an executive order. So there's an awful lot of work ahead from a lot of people who are willing to commit themselves to the building of those norms, even when, and most importantly, when it is actually against their short-term political interests to do so.
That's what's critical is that people become committed to the long game of preserving democracy, even if preserving democracy in the short term, means they lose an election or they lose a policy fight. We've gotten to a point where people just seem to care about getting what they want. Ideologically, now more than preserving the existence of the entire framework that allows us to have a functioning democracy. There's always hope that things can be different in the future.
But I'm 52 years old. I won't comment on what odds I would give on it happening in my lifetime, but there's always hope.
Q: It seems like it would be difficult to undo President Trump’s legacy if so much of it consisted of appointments to the courts.
Yeah, but that part doesn't concern me as much because that could just mean we have conservative outcomes. Two interpretations of the law, and that happens, right? You lose presidential elections. You're going to get conservative members of the court and they can interpret the Constitution in a conservative way, as long as those judges are committed to the rule of law and playing by the rules and not countenancing the pardoning of cronies, not countenancing purely political ways of choosing to use the machinery of the federal government to go after political opponents, right? I think fair fights over the understanding of the Constitution. That's all fair game and people need to accept losses on things like that.
What I think is enormously destructive is the way in which truth itself and facts have been questioned so that we now have people who think if you go to court, all that matters is the fact that it's a Democratic appointed District Court judge, right? Because it's just going to be a political decision. And over at the Court of Appeals, all that really matters is the draw of the judges is in terms of their party affiliation. When people begin to think that way about the law, then you have effectively undermined the legitimacy of the outcomes of legal decisions in everyone's mind, because they don't seem any different than ideological decisions. And if people can't accept as legitimate, the decisions of courts and of the government and what have you then? Well, I mean, the game is up at that point.
I don't mean to be too apocalyptic about it, but that's what concerns me. I'm a Democrat. I generally favor progressive outcomes, so I would rather have more Democrats in the judiciary than Republicans, but that's not what keeps me up at night. That's not what makes me dispirited. What makes me dispirited is the destruction of long-held norms of respecting truth, respecting fact, not lying, not undermining the legitimacy of perfectly fair elections, I mean that sort of stuff really is dangerous in a way that just having a more conservative judiciary is not.
(Editor's Note: This article was originally published in the November 2020 [Volume 51, Issue 2] edition of The Advocate.)