television companies and more including media com. >> from coast-to-coast we connected 850,000 miles of fiber. our teams delivered to customers. and now with media com mobile we are offering the most reliable network on the go. decades ahead. >> mediacom supports c-span as a public service along with these other television providers giving you a front row seat to democracy. >> welcome back to washington journal. we are joined by dan tokaji, he is the dean and professor of law at the university wisconsin law school. we are talking about campaign 2024 litigation. welcome to the program. guest: thank you for having me.

host: can you talk about the scale of litigation we are seen for this campaign cycle? guest: we have seen a lot of litigation this campaign cycle. we always see a lot of litigation in a year divisible by four. there do seem to be more cases this time around than has been typically the case. the republican party and their allies have been focusing more on election integrity. the democratic party and their allies more on voting access. i was doing some searching over the weekend and found dozens of cases brought just in the past few weeks by both sides on all sorts of issues from absentee ballots to voting by military and overseas personnel, to voter

registration, list maintenance, voting purges, and election certification. certainly, a lot of litigation this cycle. host: give us an example of what we are seeing. for example, voting from military people overseas, that has always been the case. what kind of litigation would there be around that? guest: there was a lawsuit brought in michigan over this issue by the michigan republican party against that state's democratic secretary of state, a former election law professor, having to do with spouses and dependents, at least some of the spouses and dependents, of overseas military personnel and whether they were entitled to vote through the means provided ordinarily for military overseas.

voters, even if they had never lived in the state of michigan before. that is an example. we have certainly seen a lot of litigation over absentee ballots . for example, in georgia, the fulton county republican party brought a case challenging the use of election offices as return sites for absentee ballots. on the democratic side, most of the cases have to do with access. for example, cases regarding the ability to return ballots or have them counted even if they are not dated or otherwise fully compliant in the law. we have seen the naked ballots issue which arose a few years ago which is not nearly as exciting as it sounds. it has to do with ballots

returned without the security envelope. the current state of play is those do not get counted but people who mistakenly cast them can vote a provisional ballot which ought to be counted on or after election day. host: are these lawsuits just in the battleground states? guest: certainly not. one of the most important cases brought is in mississippi which is on no one's list of battleground states. this was or is a case where the fifth circuit in a very conservative panel issued a decision a few days ago saying absentee ballots in that state which are received after election day should not be

counted even if they were postmarked on or before election day. that is an reputation of federal law. it only applies in mississippi. if affirmed, it could have play in other states which allow absentee ballots to be counted if they are received after election day, so long as they were postmarked on or before election day. host: how have campaigns been preparing for this? is this something they do since 2020? has a been preparing for this or is this something that happens -- have they been preparing for this or is this something that happens right before? guest: i do not have information on exactly what the campaigns and parties are doing. i suppose i can engage in some informed speculation. after the last presidential election, i am sure the parties

both looked at what happened in court, what was successful, what was not successful, and started doing some planning. i am sure that has ramped up considerably and there are a lot of lawyers on both sides within the parties and campaigns as well as in other groups about litigation. i suppose one of the things i am noticing this time around, i am sure it has happened before, but i think it is more conspicuous. to see some cases filed close to election day -- you see some cases filed close to election day which are not so much hoping to get an injunction or other court order before election day but might be thought of as placeholders. you might think of them as placeholder lawsuits. bringing a lawsuit raising an issue regarding whether certain ballots, for example, should be counted and hoping perhaps if it

winds up being close, especially in one of the swing states, it might be activated so it could become a vehicle for postelection litigation, possibly over the presidential race or in some down ballot race that winds up being close. host: i wanted to play a short portion of former president trump accusing democrats of conspiring to steal the election at a rally in allentown, pennsylvania, from last tuesday. after that, we will hear from vice president harrison an interview with nbc last month about how her campaign is preparing to handle challenges. [video clip] >> we have set an all-time record in early voting by the way. if you have a mail-in ballot, get that ballot in please immediately. because they have already started . in lancaster, they have cheated.

we caught them with 2600 votes. we caught them cold, 2600 votes. think of this, think of this. and every vote was written by the same person. i wonder how that happened. it must be a coincidence! >> last election, the former president declared victory before all the votes were counted. what is your plan if he does that again in two weeks? >> we have two weeks to go and i am very much grounded in the present in terms of the task at hand. we will deal with election night and the days after as they come. we have the resources and expertise and the focus on that as well. >> you have teams ready to go? are you thinking about that is a possibility? >> of course. this is a person, donald trump, who tried to undo a free and fair election, who still denies the will of the people, who incited a violent mob to attack the u.s. capitol and 140 law

enforcement officers were attacked, and some were killed. this is a serious matter. the american people are being presented with a very, very serious decision about what will be the future of our country. host: professor, first about former president trump's allegations of voter fraud in lancaster? guest: yeah. well, i have not seen any evidence to support those claims. i am not sure exactly what he is referring to. one of the principles we should keep in mind, and that includes those of us who hold ourselves out as election lawyers, is to be careful about making any claims or supporting any claims until we have seen the evidence. that is really important.

people can stand up and make all sorts of claims, whether it is about voter suppression or voter fraud or something else. they can stand before a podium and make all sorts of claims. but if you are going to go to court and try to prove those claims, it is not just enough that you assert it. you have to come up with evidence to support your claims. if the trump campaign or anyone else believes there is evidence of illegal votes, they can certainly come as they did last time, go into court, if they have credible evidence to support their claims and try to support those allegations and try to have those votes rejected. the trump campaign did this, and their allies did this, four years ago. those lawsuits were by and large not successful, in part because they failed to come up with the evidence to support those claims.

i think it is important for all of us to recognize that it is very easy to say things in the public forum, in the court of public opinion, and sometimes you can persuade people. but in a court of law, you need evidence. judges who are appointed by democrats and republicans alike recognized that in 2020, granted those claims where there was evidence to prove violations and rejected those where there was not. i expect the same thing to happen again from judges across the ideological spectrum in this year's election. host: we will take your call for dan tokaji on election lawsuits. democrats, 202-748-8000. republicans, 202-748-8001. independents, 202-748-8002. i want to ask you about the case in virginia. the supreme court has already weighed in on that.

can you explain the case and what the decision was? guest: this was a case involving so-called purge or removal from the registration rolls of approximately 1600 voters on the grounds they were not citizens. there is a federal law commonly known as motor voter. there was a lawsuit brought by the virginia coalition for immigrant's rights to challenge this purge of voters on the grounds that it violated the national voter registration act's limitations on maintenance programs within 90 days of an election. a lower court issued an injunction preventing this removal or purge from taking place. the supreme court stayed at injunction -- that injunction.

the supreme court did not explain its ruling, but most attribute that action by the supreme court to the dr. named after a case from many years ago out of arizona. that case has come to stand for the proposition federal courts generally should not issue injunctions or court orders that change the state of play in a state close to an election. that is what has happened in this case. a relatively small number of votes in the state of virginia at stake, around 1600. that was one of the relatively few actions the supreme court has taken the cycle. host: the headline says supreme court allows virginia's purge of

suspected noncitizens. are they noncitizens or not? guest: i am not sure if we know for sure. host: is that part of the case that we do not know for sure? guest: it certainly could be. it is hard to tell exactly what the basis for the ruling was because they do not often explain it. whether they were or were not citizens, plaintiffs claim at least some were not. virginia maintains they are. as i have said, allegations and defenses have to be proven by evidence. we have not had a full hearing, we have not had a full opportunity for a trial or anything like that in this case. host: virginia is not considered a battleground state. but could other states based on this decision start purging suspected noncitizens from their voter rolls? guest: it is possible they could.

it is possible a state court could issue an injunction or ruling on this question. i think the concern about this decision is that it opens the door to states for violating this prohibition that the act imposes on systemic maintenance programs within 90 days of an election, making it very difficult to get an injunction from a federal court to stop that from happening. host: vicky in wisconsin, democrat, good morning. caller: i am calling to thank you, this guest, and your previous guest on the talks on election security. i am a single issue voter and i find real assurance hearing about the efforts put forth on the national, state, and local areas to assure voter security. i just wanted to thank you. host: what is your one issue? caller: my one issue is donald trump.

host: christopher, maryland, republican, good morning. caller: yes, good morning. i hear washington journal every day and i listen to the democrats and the vitriolic language insulting donald trump. election interference has been evident in many of the last elections. but donald trump is a true patriot. kamala harris has many questions. host: getting back to our topic of litigation, what question do you have for dan tokaji? caller: yes. who are making the decisions on this? what party affiliation do they have? and how does that affect their ruling? guest: great question.

typically in the united states, election officials, at least the state chief election officials, are affiliated with one party or another. the chief election official in georgia is a republican. the chief election official in michigan is a democrat. those chief election officials are typically elected in partisan elections. some people, including me, think that is not an ideal system because you have effectively somebody who is a player for one of the teams being elected to the office. but that is the norm in the united states as opposed to most other countries. judges are sometimes elected in our state court system. in the federal court system, they are appointed by the president subject to

confirmation by the united states senate. federal judges are technically nonpartisan. they are not affiliated with the parties. of course, they were nominated by one party or the other's president. host: let's talk to david in longmont, colorado, independent. caller: yes. my wife and i have been here for about a year and a half. my child just got married about three month ago, my youngest child. both of my girls live here and they are married. we are heading back to florida. we are going to take about five days. but we are not going to be able to vote in florida. i'm going to go out today and try to find out if i can get ballots and vote here in colorado. i lived from 2000 to 2010 here and voted here.

because of my restaurant, i moved back to florida and opened a couple more restaurants and voted there. i am in a dilemma. i do not know if i can vote here. the last time i voted, i voted in titusville. -- host: are you registered in florida and colorado? caller: i believe i'm registered only in florida right now. but, but i voted, say, 10 years ago here, a couple of different times, probably four times over 10 years. i'm like stuck in the middle. i clearly want to vote for trump. but you know, i need to vote for trump here in colorado, where we might have a prayer. in florida, we are going to win hands down. host: ok. professor, what do you think?

guest: i'm not going to give the color legal advice on tv, especially not being admitted to the bar in colorado or florida. what i would say is that, you know, in most states you have to be registered before the election, sometimes as long as 30 days before the election in order to vote in that election. you vote in the state that you were a citizen in. that's the law. host: kathleen, dayton, ohio, democrat, good morning. caller: good morning. c-span is a treasure, a national treasure. i watched the vp debate with my grandsons. we were in longmont, colorado. i was in dayton, ohio.

we watched the debate. during the debate my 12-year-old grandson sits upright in shock and says -- i cannot believe that vance just said that the way to deal with the gun issue is to make windows thicker at schools. he was appalled and in shock. my other grandson, five minutes later, 10 years old, set up straight and said -- could anyone explain to me how an individual -- he literally said this, how an individual with 34 felony counts is running for president. i want to ask the professor to try to explain to anyone, any of us, why an individual is able to run for the presidency with 34 felony counts. i want to encourage voters -- i went to two trump rallies for four hours each. i had a blast. debates, conversations, anything -- everything was civil.

we can talk with one of the -- with one another, thank you. guest: nothing in the constitution prevents someone from running for president because they have been convicted of a crime, including a felony. there is a provision of the constitution, a part of the 14th amendment enacted after the civil war that prohibits someone from serving in federal offices. most people think that includes president if they have engaged in insurrection. some of your viewers may recall that the state of colorado and its supreme court excluded president trump from the ballot on the grounds that he had engaged in insurrection. but the u.s. supreme court in the trump versus anderson case reversed that decision, concluding that the state of colorado, including its supreme court was without the power to exclude the president trump on the grounds that he had engaged

in insurrection. and was therefore ineligible to be president. so, president trump will be on the ballot in all of the states and we don't have a determination from any court on whether or not he in fact engaged in insurrection. if he did, most people believe that he would be constitutionally ineligible to's serve. there is no effect -- no law adjudicating the question. it's effectively out of the power of any court to exclude him from the ballot on that. host: regarding felons having the bauer -- power to vote? that's a state issue? guest: correct. it's state-by-state but in general the eligibility to vote or how you can register and vote

absentee, whether there is in person early voting, those are determined on a state-by-state basis. host: on the republican line, beth, good morning. caller: good morning, thank you for taking my call. i'm a huge fan of the show. i encourage everyone to listen to it. i think it is so important for folks to hear both sides of the aisle, frankly, particularly in such divisive times. my question is around the statement that the trump administration didn't present any evidence. i'm an attorney and i had heard -- i researched this and i'm not sure if you did, professor, that a lot of the cases, actually all of them that the trump administration had submitted alleging voter fraud had been dismissed not on the merits, but on a procedural basis. frankly, i could not find any case that went forward to hear the evidence.

host: and you are talking about 2020? caller: correct. guest: that's a good point. there were a lot of cases where for procedural reasons like lack of standing, i think that there were 73 cases that trump or his allies brought in the last election cycle -- many in which they were dismissed on jurisdictional or procedural grounds without reaching the merits, but there were a number of those cases in which trump or his allies were allowed to present evidence. in two of those cases, courts found that he had introduced sufficient evidence to prove his claims, but in most of them, courts determine he had not. host: and and the ones where they did find evidence of fraud, was it enough to change the results of the election?

guest: it was not. they were relatively minor errors, i can't remember exactly what they were, but not significant issues in terms of the number of voters affected and certainly not enough to affect the result in any state. host: ben, independent line, florida, good morning. caller: is the fact that he hasn't been sentenced on the charges in new york, does that matter as far as his ability to run? my second question was -- i had thought that when the governor of virginia entered into the -- well, his right to purge the roles of people that were noncitizens, the facts were that they had written down themselves that they were not citizens and that anyone in error could

appeal that particular thing. and then a federal judge in the states rights purge their own roles. are you -- am i right in -- right or wrong in that? guest: at one point the state maintained that all of these people, 1600 people or so had indicated that they were not citizens. it's possible they became citizens or some of them became citizens at a later point. it is for that reason that the state had decided to purge them. the question in the case however is if it violated a provision of systematic list maintenance programs, basically the removal of voters within 90 days of a federal election. host: does that answer your

question? caller: yes, but could you touch on his ability to run? caller: great question. it wouldn't matter if he had been sentenced then. even if he had already been sentenced on those 34 felony counts, required to serve time in prison, that wouldn't make him ineligible to run or serve as president under our constitution. guest: barbara in eastpoint, michigan, good morning. caller: the first time i voted for president was for president kennedy. all i had to do was take my electric bill to the polling station, show it, and i voted. it's so outlandishly complicated now. not just complicated, but everybody, it's disturbing to

think about, how far we've come, can't trust anybody or anything. my second thing is -- i have been watching c-span and watching the news and i am really, really disturbed about how many respected, prominent republicans have come out who have worked for him up close and personal and think he is a danger. what else do we need to know other than that? you know? it's just become such a -- i don't know. and anxiety. host: all right, barbara. professor tokaji? guest: i won't comment on barbara's anxiety about this coming race. i think a lot of people are feeling anxious. i understood the first part of her comment to be referring to

the fact that in some case -- some states, requirements for voting and having one's vote counted have become more strict. that's certainly true. according to one report in 2028, nine state enacted -- nine state active laws made voting restrictive. on the other hand, a number of states have moved in the opposite direction and in one way or another liberalized their laws making it easier to vote. 19 states had gone in that direction. it's been a minute and as you might expect, you have generally seen states where republicans hold a majority in the legislature, making the laws more strict with democrats making them more lenient. host: do you think i will have an impact on the number of ballots counted or the amount of litigation we might see after the election?

guest: whenever states change their voting laws, as they have in every cycle in the 20 years i've been following these elections closely, you see litigation and that's inevitably the case. are they likely to affect the result? my short answer to that is no. if we are in a bush versus gore situation, 2000, where the candidates are separated by just hundreds of votes, sure, any small change in election rules could conceivably affect the result. it's not likely in an election where the candidates are separated by tens of thousands of votes that these changes are going to be significant enough to affect the result. if it's close enough in key states, anything could matter. host: cid is a republican in

silver spring, maryland. caller: earlier you mentioned that trump could be -- was guilty of insurrection. from my understanding, none of the indictments have the word insurrection in them. the 1500 people arrested in connection with january, none of them were charged with insurrection. so, i hope, i hope someone could correct that. that would not be a reason to, to not allow him to run. guest: and to be clear, i didn't say that he had engaged in insurrection. i said the colorado supreme court had determined that president trump had engaged in insurrection. you know, there are of course

indictments, including the federal case brought in washington, d.c., having to do with his actions leading up to the last presidential election. that case is still pending. if, if his point is that president trump has not been found by any decision that is now in effect to have engaged in insurrection, that is correct. host: as far as the status of the january 6 case, you said it's pending until after the election. are we going to see anything between the election and inauguration day on that case? guest: we could. i couldn't tell you for sure what's going to happen in that case between now and the election. if president trump is elected, i'm sure he will order that case to be dismissed. host: but before, if trump wins on election day before being

inaugurated, is there a chance that something could happen in the case? guest: there could be. but i'm sure the case would not go to trial before his inauguration. host: bill, ohio, democrat, good morning. caller: good morning. yeah, my question is to the guest. it's -- under the 14th amendment , since trump was involved in an insurrection, in order for him to be able to serve, it would take two thirds of the house and two thirds of the senate in order to allow him to be seated as president? guest: oh, yeah. that's a provision of the 14th amendment saying that if someone has engaged in insurrection, a super majority of both houses of

congress, as you are referring to, can remove that disability, allowing that person to serve federal office, including the office, presumably, president. as i mentioned a moment ago, there is no binding decision from any court concluding that he has engaged in insurrection . because of the u.s. supreme court reversal of the co-op -- colorado decision that he was ineligible. there is no binding -- binding decision from any court finding that president trump engaged in insurrection, meaning that effectively the issue cannot and will not be litigated. host: falls church, virginia, independent line, mike, you are next. caller: wondering about the voter registration purge in virginia.

the local news organizations looked into it and found that 1200 of those were citizens, many of them immigrant citizens who became citizens more than six years ago and it was because of a dmv clerical error, probably, that this happened. the heritage foundation has looked into voting fraud in virginia over the last 15 years and hasn't found a single noncitizen voting in virginia. most in florida, because of mistakes by citizens who are not eligible to vote. this particularly puts a chill on immigrants who don't want to get into voting where there is mandated voting in many countries, like in australia. in america we worry about noncitizens voting ever voting, and they know the consequence of breaking the law, they will lose their green card, be deported.

noncitizen voting very rarely happens. so. host: any comments? guest: just that i appreciate the information and yes, it's generally the case that noncitizens actually voting in an election is quite uncommon. and it is a crime and can be prosecuted if someone who is not eligible to vote intentionally does vote. host: richard is in fort myers, florida, republican, richard. caller: as far as using a plurality of votes, it's really half plus one when you are talking about 10,000. in the 76 election between ford and carter, i went through the entire list in the new york times. ohio swung the vote. if you went down precinct by precinct, city by city in ohio

and 76, you found one city with a 10,000 vote plurality. the reality is, it's 5001 votes. that changed the entire election for carter. so, when you say 10,000 was a massive change, it's really not. it's half of that plus one and ohio proved it and it might prove it again. host: any information on that, professor? ok, one more question for you from mark, why can politician pacs and campaigns be sued for misleading or downright lying to the public? guest: because of the first amendment that protects freedom of speech and generally speaking false information is protected. the main exception is for defamation. if you knowingly or recklessly make a false