Even before any ballots have been counted, there have been more than 300 active election-related lawsuits about changes to voting rules during the pandemic filed across 44 states — an unprecedented number — according to the Stanford-MIT Project on a Healthy Election.
Officials expect another tidal wave of legal challenges to hit once vote counting begins on Nov. 3, contesting ballot deadlines and processing rules, voting machine glitches and allegations of voter intimidation at the polls.
A record surge of mail ballots due to the COVID-19 pandemic is expected to delay tabulation of results in many states, potentially for days after in-person voting ends.
“You know there’s going to be some issue. You don’t necessarily know what that is,” said New Mexico Secretary of State Maggie Toulouse Oliver during a recent Georgetown University forum on election integrity.
“It’s been very hard, complicated, challenging,” Oliver added. “We’re all going to be really happy and proud when we get through the final days.”
One in five Americans voted by mail in 2016. Experts predict as many as half of all registered voters could send in their ballots in 2020. President Trump has already signaled plans to challenge mail ballot counts as fraudulent, even though there remains no evidence the system is prone to deliberate, widespread manipulation.
“There’s no doubt about the bullseye descending upon us,” said Louisiana Secretary of State Kyle Ardoin at the forum. “What doesn’t help is when courts go beyond what the legislature has done and require states to count ballots a week or weeks after an election. That’s when average citizens start believing there’s something foul going on.”
States have until Dec. 8 by law to certify their results or have the state legislature appoint electors to the Electoral College, which is set to convene on Dec. 14. Failing to meet those deadlines could lead to further litigation or even Congress picking the president in early January.
‘So much higher’ likelihood of Bush v. Gore 2.0
Twenty years ago during the 2000 presidential election, the campaigns of George W. Bush and Al Gore fought in court for a chaotic 36 days over a ballot recount in Florida and certification of final results. The U.S. Supreme Court ultimately intervened, reversing a state supreme court ruling, to end the counting and effectively deliver the presidency to Bush.
At the center of the controversy were irregularities in the way ballots were marked — so-called “hanging” or “dangling” chads — which famously required interpretation of voter intent. Similar issues with mail ballot signature verification, secrecy envelopes and other requirements may figure prominently this time around.
One analysis by NPR found that more than 550,000 mail ballots were rejected in this year’s primaries for irregularities.
“I think the likelihood of a Bush v. Gore situation is so much higher this year given the pandemic and the extent to which people will be relying on mail in ballots,” said constitutional law professor Jennifer Nou, from the University of Chicago Law School. “I think a lot of what will frame the Supreme Court intervention here will depend a lot on the vote margins in various states and the perception that a particular case is going to be decisive.”
Just this week, the U.S. Supreme Court reinstated a longstanding South Carolina witness signature requirement for mail-in ballots in a blow to Democrats who sought to suspend the rule during the pandemic. The court also denied a request from Montana Republicans to block dozens of counties in the state from moving to all-mail voting.
One of the biggest federal cases pending is the Trump campaign’s appeal of a Pennsylvania Supreme Court decision to extend the deadline for mail-in ballots to arrive at election offices by three days after in-person voting ends on Nov. 3. The U.S. Supreme Court has not yet weighed in.
“There will be many of these cases in various states coming up and it’s difficult to predict how the court will rule,” said Nou.
Judiciary cautious about election intervention
Chief Justice John Roberts has tried to steer the court away from political matters close to an election, in part to preserve the court’s reputation as above the partisan fray. That reputation took a hit after the divisive ruling in Bush v. Gore in 2000.
“The Chief sees the Court as an institution and has an institutional prerogative, but I think the entire Court would be skeptical” of intervention in the election, said Erin Hawley, a senior legal fellow at the Independent Women’s Law Center. “From time immemorial, judges have been cautious of weighing into intensely political matters.”
But some scholars and analysts see the period after Election Day as a different ballgame.
“It’s risky to use the court’s posture of non-interference in the pre-election context as a basis for predictions of what it would do in the post-election context,” said Aziz Huq, a constitutional law scholar at the University of Chicago Law School.
Both political parties have assembled robust legal teams and vowed publicly to take any election claims all the way to the high court.
“I think this will end up in the Supreme Court, and I think it’s very important we have nine justices,” President Trump said last month of the election results before nominating judge Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg.
“I’m counting on them to look at the ballots, definitely,” Trump has said of the justices.
The Republican National Committee earlier this year said it was allocating $20 million to fund legal challenges against Democrats over election results and sought to recruit 50,000 volunteers to monitor polls in 15 states.
Former Vice President Joe Biden has assembled a team 600 lawyers, including two former U.S. solicitors general, to prepare for election legal challenges by Republicans and 10,000 volunteers to monitor disruptions at the polls.
“Joe Biden should not concede under any circumstances because I think this is going to drag out, and eventually I do believe he will win if we don’t give an inch,” 2016 Democratic nominee Hillary Clinton said in an August interview with Showtime.
How the legal battle could play out
Election watchdogs say most litigation initiated on or shortly after Nov. 3 would most likely begin in state courts, since each state sets its own rules for voting and counting. But depending on the nature of the dispute, some filings could go immediately to federal court, they say, especially if the issue involves access to the right to vote.
“Although we will have a flood of absentee ballots in this election, states have rules to adjudicate and evaluate these ballots. We need to let the state processes work themselves out,” said Stanford Law professor Nate Persily, a leading constitutional and election law scholar, at an Aspen Ideas forum last week.
“We assume that because we went through Bush v. Gore not that long ago that [legal battles this year] would follow a Bush v Gore path, that the U.S. Supreme Court would get involved, and that it would be a very judicialized process,” said Persily. “But there are also other paths.”
If a dispute were petitioned to the Supreme Court, it would take at least four justices to agree for the matter to be heard. The court currently has five members who are Republican appointees — including two nominated by President Trump — and three that are Democratic appointees.
If Judge Amy Coney Barrett is confirmed and seated by Nov. 3 or shortly after, she could participate in decisions about any election-related petitions. This week, Sen. Chris Coons, D-Del., said Barrett “made no commitment to recusal” when asked if she would step back from a case involving Trump.
There is no formal recusal requirement for Supreme Court justices. The practice is entirely at each justices’ discretion.
“Recusal is a decision that’s made heavily fact-dependent,” said Ed Whelan, president of the Ethics and Public Policy Center and a former clerk to the late Justice Antonin Scalia. “In 2016, Justice Ginsburg made lots of remarks very derogatory about President Trump. No one was suggesting at that time that if there was election litigation that she should recuse.”
And how a battle might be avoided
Some election experts say there’s a good chance a 2020 election legal crisis will be avoided altogether because of an overwhelming outcome in the vote.
“A debacle is unlikely to happen in November, but thanks mostly to luck, not work,” wrote leading election law scholar Richard Hasen of the University of California-Irvine School of Law in an analysis published this month.
“What is most likely to save us from a Twitterized Bush v. Gore 2.0 and possible post-election violence in November,” Hasen writes, is that “the odds are against an election close enough to go into overtime in a state crucial for the Electoral College outcome.”
The latest FiveThirtyEight forecast gives Joe Biden an 85% chance of winning the election with President Donald Trump holding a 15% chance of a second term.
Still, even as he’s down in most national polls, President Trump and his reelection campaign see a clear, if narrow, path to an Electoral College victory through a handful of key battleground states. Aides are quick to remind skeptics that Trump won four years ago with a surprise surge from behind, even while losing the popular vote.