host: what about the court system allowing for balance to be counted days after the election day? caller: our state legislator in a bipartisan way voted for that to be done. int: terry finishing us off this three-hour program. still a fluid situation when it comes to election, 2020. to c-span, c-span.org, and follow along for the latest on the results of this election. thanks for watching today. another addition of "washington journal" comes to your way tomorrow at 7:00 a.m. we will see you then. [captions copyright national cable satellite corp. 2020] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] ♪

>> continue to follow the vote counting on c-span.org/election. use our interactive election night map. see the results of every house and senate race and the current balance of power in congress. watches statements from president trump and joe biden as well as key victory and concession speeches and those from past elections. find it all at c-span.org/electi on. look at a headline from politico this morning. victory" the verge of after taking a lead in pennsylvania. if he wins pennsylvania, he would have enough electoral college votes to win the presidency. continues inso

north carolina, arizona, nevada and alaska. and foxociated press" news have called arizona for joe biden while other news organizations have not. coming up in about 30 minutes, we will get you an update on the election results from georgia. we will have additional election updates throughout the day. wehle.g us is kim she is a professor of law at the universe the baltimore. thank you for your time. guest: thank you for having me. host: can we start with the president's claims about voter fraud? how would you analyze that? guest: voter fraud is a crime. it carries a five-year prison sentence under federal law, which is why it is really rare. i think there has been some confusion around voter fraud and

just maladministration, mistakes that are made. there are hundreds if not thousands of people on the front lines of democracy, this week, making it work for the rest of us. they are regular people and they are not committing fraud. that does not mean that they don't have errors along the way. the president is wrong to complain -- claim fraud. there is no evidence of that. no evidence that would actually show some affect on the election results. that would require a conspiracy of lots of people committing fraud together. it does not happen. host: what is the threshold of proof that has to be presented? guest: it is a criminal question. it is against the law in every state. you have to demonstrate, generally, for voting, that the person is impersonating a legitimate voter. so, again, an individual is not likely to commit that crime for the opportunity of voting in one election, knowing it will not

actually change the outcome. for years, not just this particular administration, for years, there have been claims of voter fraud under george bush. there was commission under donald trump, a commission to find and root out voter fraud. both of those disbanded. in litigation prior to november 3, the republicans predominantly claimed voter fraud. the judges have said show me the evidence because courts are not political outlets. they actually require facts. they have not been able to show those facts. those claims have not gone anywhere in court where they are tested under the law and requiring evidence. host: there are a series of legal challenges coming from the trump campaign. can you break down those challenges? and what the mindset is presenting those challenges? guest: there is michigan, pennsylvania and georgia. one is pending in nevada. i think. so far, the challenges have been

around the process of what they call canvassing votes. identifying how many people have registered to vote, came into the system and actually matching those with ballots. the argument has been, both in michigan and pennsylvania, that there should have been more people from the republican side or the trump campaign to actually watch that process. in michigan, the dispute was dismissed. in pennsylvania, the appellate court said sure. you can watch from six feet. there was a claim in georgia that there was combing wing of ballots. that was dismissed. claims ofeen potential errors. not something that the courts are going to take seriously unless there is real evidence. ,ven if these cases were to win it will not change the outcome of the election. it is not getting to the heart of counting votes.

the claims that the votes should stop being counted, those have not gone anywhere. there is no federal authorities or federal judges or the president -- for the president to come in and near fear with the states prerogative. this notion of coming in and stopping vote counting, there is no way to do that across the country. the: there is an article in wall street journal, taking a look at pennsylvania's courts when it comes to the extension of ballots for mailing votes. i want to see what your reaction is. the pennsylvania supreme court said it violated the state constitutions free and equal election clause. it also dismissed hand arguments that the u.s. constitutions electors and electors clauses set the rules of federal actions that cannot be written by state judges or executive branch

officials. can you talk about that and things that are being claimed from the constitution? guest: that case went to the united states supreme court prior to the election and the court split 4-4. what this comes down to is the elections clauses lodge the power that said over elections in the state. it uses the word legislatures. the argument is we are in the midst of a pandemic. we have seen changes across the country to make it easier for people to vote in a pandemic. we have seen, primarily on the republican side, challenges and hundreds of lawsuits to stall those efforts to make voting access more available. the argument is, and the conservatives on the supreme court generally agree, that unless the changes were made by the actual legislature, then they cannot stand. if the changes are made by an elections board that has power that is delegated from the legislature or the changes are made by a federal court under

the constitution or even if it is via state court, under the state constitution, that is the argument. the argument is that if it is not the actual legislature passing a new law so that people can vote without actually physically going into the polls, unless the legislature did that, then it is illegal. the supreme court basically punted on that because there was not time to resolve it. listen,holars will say just like congress can delegate rulemaking authority to federal agencies, state lawmakers can delegate elections administration to other parts of the state government. joiningis is kim wehle us. if you want to ask her questions about the voting process and things when it comes to legal issues, you can call us and give us your thoughts. if you support

joe biden. (202) 748-8001 if you support president trump. did) 748-8002, perhaps you not support a candidate or vote. you can text us at (202) 748-8003. you can tweet at us at c-span wj. majority leader, mitch mcconnell, sent out this tweet about this process. he said here is how it works in our great country. every legal vote should be counted. any illegally submitted pallets must not. observe thet to process and the courts are here to apply the law and resolve the dispute. that is how americans decide the results. on its face, what do you think? guest: i don't dispute anything in that statement. there is some ambiguity, what is a legal vote, for example. there is a lot of discussion around the timing of counting. right? in some states, if the ballot is

postmarked by november 3, the states get to decide how their election is run. some states have said that is ok, as long as we see a postmark, we can count it later. other states have to have received the ballot on the actual november 3, election day. that is the states prerogative. we have a patchwork system. aboute to be careful talking about illegalities. it depends on the state and the law of that state. issue with istake sort of attacking regular people, regular americans, hard-working people, going on the front lines of democracy with bullets passing their heads, trying to make this work. they are not fraudsters. there are a lot of mechanisms in place to make sure that the ballots are counted. i think that is what we all should do. everybody should have their ballot counted, so long as they

are who they say they are. much, there is not evidence that people are fraudulently voting. we should, i think, defer to voters and not get nitpicky about these details. the effects are huge to cancel someone's vote. weed we the people, not that republicans and we the democrats, under our constitution. republicans and we the democrats under the constitution. host: diane, you are on. caller: good morning. you answered my question. that -- don't say give up. don't give up. i am a supporter of president trump. we should never give up because if joe biden gets in there, we will have to fight even harder and without president trump. ok. people are calling in like they are giving up. do not give up.

host: what was your question if i may ask? caller: she talked about the legal -- you know -- the legal claims about the voter fraud and things like that. question.d answer my but, i tend not to think that all is lost. host: ok. thank you, diane. did you want to respond to any of that? people, think we, the should not give up in that we have a messy democracy. we have a system where millions of americans pick our own government. it is not a monarchy. back to common-law law england, the revolutionaries and american revolutionaries and people who framed the united states constitution, one thing they did not want was a monarch. a monarch who had power that came from the divine. and what the monarch said is

that is the way it went. challengeno way to the monarch because the power came not from the people, but from the god. ofamerica, we are the bosses our own politicians. but, we are a very diverse country. again, it is messy. we need to stick with each other. it is we, the people. our friends and neighbors from different political parties are not our in emmys. politicians are not really our friends. they are out for their own political futures, which is normal. i think it is wonderful to see the turnout that we saw. it demonstrates that people are taking seriously this gift and privilege that is american moxie. it will ebb and flow. we will have people in power that we like and people in power we do not like. host: from massachusetts. caller: hello? host: you are on. caller: my name is mike.

i am speaking -- a lady from new i have myke and subject trade i am pessimistic about how things -- subject. i am pessimistic about how things are going in this country. the two can we stand party system and two nation appearance? that is my question. is there anything anybody could say to that? i would gladly hear it. host: ok. guest: that is a great and complicated question. 1787.stem was designed in there were not this many states and not this many people and there were not two parties. the structure of it is a little bit out of whack. system whereby, often times, the minority of the population can control the government. and some people think that needs

to be adjusted differently. i think that is a good question. there are a couple of ways of doing that. one way it would be to amend the constitution. really hard to do. he requires both the house and the senate at the federal level to agree to that. and, three quarters of the state legislature. just really hard to do. the other thing that can be done is through legislation at the federal level. for example, congress could pass a statute that would enhance or increase the number of representatives in the house. it is 400 35. that has been around for years and years and years. it is a little outdated but that would bring more representatives into the discussion. there are ways of fixing gerrymandering. that happens at the state level. you have to vote for state elected officials who will be interested in making sure the electors vote according to the popular vote and not a winner take all system. it is a complicated system. at the end of the day, i think what happened on november 3 is the way forward.

which is massive, massive voter participation. we have generally been about 50% and people think their vote does not matter. what we are seeing, it does matter. my fantasy would be 80 to 90% of americans voting. then we would take back our government. it would not be government by week, the powerful. government by we, the people with a lot of money that can run ads online and sway elections when you and i can't do that. that takes widespread voter participation. i hope this conversation about voting in the constitution -- and the constitution continues past january. host:. as a suggestion by two people in the new york times. charlotte hill and lee, they suggest this about changing the process, saying no matter who ends up prevailing, it is clear that congress needs to establish a federal elections agency to ensure that the voting process , and secure.istent

would this be constitutional, in short, absolutely. congress especially has broad powers to amend or alter regulation. two questions, what do you think about what they suggest? is that too much power to give to the federal government? --st: most across the seas most democracies, this is a good comparison. most democracies require voting. so, the numbers are really high. they have an independent commission, as the new york times article suggests. i think that can work. we have independent federal agencies and inspectors general. there is also just -- think about the voting equipment. most of that equipment is actually in control of third-party vendors. they are not government entities. it is not regulated. this is a precious process. people are worried about fairness and maki.

when that happens, we need to have government come in and take charge to make sure things go well. we do not want planes crashing into each other in the sky. we have an administration that manages that. representatives, it passed two important bills. the first one in 2018 called hr one. that is the first bill. house representative one. it has a bunch of things that would help all americans. same-day registration. you walk into the polling site and on election day, you can register. or automatic voter registration. for teenagers, when they turn 16, they get there voter -- their voter registration card in the mail. we already have legislation that governs all states. one of my kids got her driving permit. she went to the dmv and she was prompted to register to vote.

that is a federal law. congress can absolutely do more. we need to have a senate that is willing to take up this legislation. is a broken congress that is not willing to move forward all kinds of legislation that the american people want, both sides want but it is getting stalled in the senate and stopping in its track. that is really unfortunate for american democracy. arkansas, as tim in supporter of president trump for our guest, kim wehle. caller: good morning. we want an election that we can believe in. yearsmocrats spent four trying to negate my previous vote in 2016 for donald trump. every time a cheating boat gets in and is not thrown out, a legitimate though is canceled. rule that was not passed by the state legislature should be thrown out.

the state legislature still has to validate their electors. i believe that in states like pennsylvania where you have rampant corruption, the state legislature can step in and say we believe there is corruption. we are going to assign our electors to who we believe is the winner. and the state legislature can pick donald trump. i don't expect that to happen. it is because republicans don't fight. but if they want to fight for their democracy, they have to assert their dominance over the rules. rule.me blanket, federal if it comes out of hr one or the new york times, dump it because it is corrupt. host: ok. guest: a lot to unpack. the caller used the word cheating. that is fraud. cheating is a special thing. that is different from election maladministration. we don't have proof of cheating. and i am not saying we will. but that is minuscule.

it is a drop in the bucket. it is like getting attacked by a shark twice by it -- twice in your life. it does not haven't enough to worry about it. we could use more money in the states so they can pull off hard things easier. they need money to fund these elections. that is unfortunate. i wanted to make a point about impeachment because the caller suggested that that process somehow undoes a vote. those are two different things. there is a vote for a president and then the constitution does provide for an impeachment process. that is there to protect all americans. as a youngicipated lawyer in the whitewater investigation that produced the impeachment of a democratic president. with nora o'donnell , talking about the impeachment process of a republican president. that is part of checks and balances.

you and i might have kids in a school. we want to make sure that teachers and the administrators are ethical and solid. the way to do that is not just to be sure we pick the right people but to have procedures in place. so that they are motivated to follow the rules. and if they crossed a boundary, they are kicked out. or they are penalized. same with our elected leaders. even more important with our elected leaders. the structure has to be fair for both sides. it has to stand through many different administrations, republican and democrat trade i think the impeachment process is important. it is not canceling out votes. that is pulling a lever of oversight that exists in the united states constitution. host: from highland park, new jersey, carol, a supporter of joe biden. caller: i wanted to get to your experts view that this election is so different because we are in a pandemic and people in cities think that in order to

stay safe, they needed to vote mail in. that is the reason for so many mail-in ballots. ballots,eople in rural you run into significantly less people when you cast your votes. guest: absolutely. so, the mail-in ballot and, i want to make something clear about mail-in ballot and. -- balloting. not only has it been done for a long time, but people really like it. you can sit with your coffee at the breakfast table and research the candidates. participation is higher, which benefits both sides. it benefits both republicans and democrats. who wehe military, really trust, americans on both sides of the i'll trust the military. -- of the aisle trust the military. they have been voting by mail

since the reagan administration. the process shifted because of the pandemic but that does not make it fraud. that makes it new and something we are not used to. we saw that as the caller indicates. the supreme court and federal courts, when they look at the right to vote and say, listen, i need a right to vote safely. because there is no express right to vote in the original constitution, which is surprising, there are no words that say that. unfortunately, from my perspective, when voters come in and say i need it to be easier to vote, often times, that is not held up with as much robustness as we assume it is. that is why we saw people braving exposure on election day to make sure their vote mattered, which i think is heroic and important. the president mentioned the supreme court shortly after election day. is there a scenario where the

supreme court gets involved this time around? guest: i don't see it. many stars have to align for any case in an election to go to the u.s. supreme court. it happened in 2000. ashink people perceived that meaning the supreme court would come in and take votes away or cancel counts. that was a particular situation in florida where the question to counter -- how under votes. it was not clear what the boater did. does that mean they didn't want to vote at all or did they -- voter did. does that mean they didn't want to vote at all or did they want to vote for a certain candidate? they voted for certain candidates but not others. the supreme court said that violates legal protection for you have to have a recount that is persistent. -- consistent. it was too like to do the recount. the court basically stopped florida from doing the recount florida to george

bush by 537 votes. we are not in a situation where we are talking about counting votes. where not in a situation the lawsuits would decide a very narrow margin of the swing state. this is it close to going to the u.s. supreme court which i think is a good thing. -- is not close to going to the u.s. print car, which i think is a good thing. host: -- u.s. supreme court, which i think is a good thing. host: our guest, kim wehle joining us for this discussion. from florida, alan, good morning. caller: good morning. i am unaffiliated. the year, i voted for libertarian ticket. i don't think the courts need to get involved in this i have an alternative. sufficientre is a

question about legitimacy about how votes are being counted. would recommend michigan and wisconsin legislators submit competing slates. congress can then throw out those and throw the election to the house of representatives. i have more confidence in the house than the unelected bureaucrats counting these, especially in artisan environments. -- partisan environments. guest: an important point was brought up. under federal law, if there is not account by december 8, the state legislatures can meet and decide to cast their electoral ballots a certain way. some people think that would be unconstitutional. some scholars do not necessarily believe that legislation, if in limited, would be held up by the courts. it has never been tested. we need to go back from this

assumption and doll back a little bit that there is some how widespread fraud or illegitimacy in the process. there is no evidence of that. it is not just elected bureaucrats counting these valves. people like you and me, your neighbor, your friend at the grocery store. people trying very hard, like we all go to work every day. we try hard to do our best. they know how serious it is. some of them had sleepless nights, putting in extra hours. some of them are being attacked personally for doing their job on behalf of americans. i don't think we are there. the fact that someone filed a lawsuit, i teach what is called civil procedure in law school. i teach lost students -- law students how to bring lawsuits. just because someone files a lawsuit does not mean there is a basis for the lawsuit. any lawsuit can actually be filed. where it is tested to determine

if it is legitimate is after it is filed. so far, michigan and georgia courts have dismissed the trump campaigns lawsuit. just because a lawsuit was filed is not mean there is any problems with the process in a particular state. one of my basic principles, which i think is not political, is the polarization and fighting is not good for anybody. it is crating a terminus amount of stress for everyone. sending this to the legislature and the house of representatives and the supreme court, i think it is more drama and stress and precentral -- potential devices in this -- divisiveness. i have confidence that we will be fine in terms of having a legitimate election. host: this is michael in oregon saying if the voting process does not generate a clear winner, does the secession clause -- succession because of

clause govern? guest: this gets to an unlikely scenario where we don't have count. -- a when we go into the ballot box on november 3, we are not voting for president. we are voting for a slight of electors -- slate of electors. in most states, it is all or nothing. whoever is the minority candidate got fewer votes. donald trump gets all of the electorate votes. if we do not have a resolution by december 14, that would go to the house of representatives. there is a different way the house would -- it is state-by-state. every state gets one delegate. the state would vote and they could dispute that process if that happens. the senate could decide. a vice president, if the presidency is disputed, the vice

presidency would be. if the senate agrees on a vice president, the statute would make that person president, pending. if you cannot decide on a president or vice president, under the succession act, it would be the speaker of the house of representatives. i don't think it would come to any of that. whether is something -- whether something is constitutional or not has to go to the supreme court. answers to thehe constitutionality of anything until the court rules on it, which i think him and straight how much subjectivity and power the court has. the notion that these are black and white questions or some justices know the answers is false. it is vague for all, it is made for amy coney barrett. vague fore persona -- sonya sotomayor. i think that is why it should

stay in the hands of the people and not go to the judges. host: bill asks if a recount is undertaken, what is the chance the recount is any more accurate than the original count and if there is a dispute in the recount, how is that resolved? guest: that goes state-by-state. i want to assure readers -- viewers, because we hear so much about fraud and a lack of integrity in these elections, ev >> we leave this conversation and take you to georgia where the secretary of state is expected to update on the election results. in addition,erger: there are 8008 hundred 90 military ballots outstanding that will be counted if they were returned by the close of business today. right now, georgia remains too close to call. out of approximately 5 million votes c