ARI SHAPIRO, HOST:
Yesterday, Georgia's Supreme Court ruled that absentee ballots sent to voters late in predominantly Democratic Cobb County must be received by the time polls close today. That reverses a lower court ruling. Now, that decision only affects about 3,000 people, but the legal challenge by Republicans is one of many from both parties around the country this election season. Joining us to talk about these is NPR legal affairs correspondent Nina Totenberg. Hi, Nina.
NINA TOTENBERG, BYLINE: Hi there, Ari.
SHAPIRO: Why are we seeing so many legal challenges before vote counting has even started?
TOTENBERG: Well, the election is super tight according to the polls, and if they're right, every vote will have consequences, especially in the swing states. Remember in 2016, Donald Trump carried Pennsylvania by just 11,000 votes and Wisconsin by 22,000. Conversely, Joe Biden carried Pennsylvania by 81,000, but he carried Arizona by just 10,000 and Georgia by 11,000.
SHAPIRO: So the narrowest of margins - is there any theme to these lawsuits that we're seeing?
TOTENBERG: Broadly, Democrats file lawsuits to ensure that as many votes count as possible, and Republicans file lawsuits to make it harder to vote. Now, of course, there are exceptions to every generalization. Add to that a huge amount of misinformation and disinformation - much more than in 2020 - and we could be talking about a nasty witch's brew of litigation. Already, there have been dozens of lawsuits filed that challenge how elections are being run. Many were quickly dismissed in the lower courts because they were brought too late or just lacked merit or both. For instance, just a week ago, a federal judge threw out a lawsuit brought by six Republican members of Congress from Pennsylvania that would have made it more difficult for members of the military and others who vote from overseas to cast ballots.
SHAPIRO: Now, two cases have already reached the U.S. Supreme Court. What did the court do?
TOTENBERG: Last week, just six days before Election Day, the Supreme Court allowed Virginia to continue its purge of more than 1,600 individuals from the state voter rolls. Virginia's Republican governor signed an executive order in August ordering the purge, which he maintained only removed noncitizens from the rolls, but some people were purged who were citizens - are citizens. And the Justice Department went to court, contending that the purge violated a federal law that bans any systemic purge of voter rolls 90 days before an election. The department won in the lower courts, but the Supreme Court reversed that decision without comment and over the noted dissent of the three liberal justices.
SHAPIRO: Why are there so many cases coming from Pennsylvania?
TOTENBERG: Because Pennsylvania only started allowing all registered voters to vote by mail in 2019. And the state legislature is split with the Senate in Republican hands and the state House narrowly in Democratic hands, and the legislators apparently were unable to agree on a bunch of more specific rules. So ultimately, the rules of the road have been up to the state courts interpreting the state constitution, which has a very, very strong right to vote provision. But there still have been so many challenges that our own Hansi Lo Wang still had to make out a spreadsheet...
SHAPIRO: Yeah.
TOTENBERG: ...To keep track of these cases in Pennsylvania. And the communications director for the state court system has been on overdrive. Today I just took a three-hour space, and she sent out 10 separate email blasts to reporters on what's happening in the state courts. So far, the only case from Pennsylvania that the U.S. Supreme Court has ruled on involved a Republican appeal of a state supreme court ruling. And I'm not going to go into the issue for the sake of simplicity, but the U.S. Supreme Court justices left that state court ruling in place at least for now.
SHAPIRO: What else do you anticipate reaching the U.S. Supreme Court?
TOTENBERG: Well, I've learned not to predict. I think the majority of justices would really love to stay out of things and avoid a redo of Bush versus Gore, the decision that essentially decided the 2000 election in favor of George W. Bush. But the court's three most conservative justices hinted in the Pennsylvania case last Friday that they might be willing to revisit the matter. And, you know, partisanship is often in the eye of the beholder, so we'll just have to wait and see.
SHAPIRO: NPR's Nina Totenberg. Thank you.
TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.
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