This election is headed to the courts, but Democrats have lawyers too

The Democrats won’t be ill-prepared or out-lawyered this time, as they were in earlier contested presidential elections, and clearly, what became a tight and dispiriting race for Democrats will be settled by high-powered legal fights.

Former Vice President Biden goes into this with a slight upper hand, a clearer path to the 270 electoral votes to win the presidency. But President Trump is declaring victory, charging — falsely — that many Democratic ballots are fraudulent.

The Biden team, while denied the decisive victory they expected, has for months assembled for months a team of top-tier lawyers. The most important are the constitutional legal team headed by three former U.S. solicitors general, Seth Waxman, Walter Dellinger and Donald Verrilli — the “SG 3s.” They have hundreds of lawyers working with them and are prepared for challenges in any contested state.

This is in contrast to 20 years ago in the infamous Bush v Gore recount, in which Republicans were directed by the legendary James Baker and complemented by some operational thugs like Roger Stone. They ran circles around the Gore team headed by the overmatched Warren Christopher.

With a smart, tough, prepared Biden team, Trump won’t have that advantage.

The president is counting on the courts this time to back his challenges to “fraudulent” ballots. He has appointed many federal district courts judges, and the key appeals courts are majority Republican.

Two-thirds of the Supreme Court, which settled the issue 20 years ago, are Republican appointees. Three — Justices Brett Kavanaugh, Samuel Alito and Clarence Thomas — probably are reliable votes on Republican interests. The White House apparently believes the latest justice, Amy Coney Barrett, will be reliable to its side, too, as the president urged her confirmation in part so the high court could resolve any election dispute.

Of the other Republican-nominated justices, Neil Gorsuch is very conservative, as is John Roberts, who as a lawyer worked for George W. Bush in the 2000 case. Chief Justice Roberts, though, worries about the court being seen as too political.

If this really gets protracted and ugly, Democrats privately believe it won’t be the courts this time that will be the ultimate decider: It will be Congress.

The president’s legal team has already begun filing suits in critical states, starting with Pennsylvania. The focus will be on mail-in ballots. With the pandemic, almost two-thirds of what is expected to be a record turnout voted early, much of it by mail, despite postal problems.

The Biden team has anticipated challenges in multiple states — enough where Trump would reach 270 electoral votes, plus a few as insurance.

Pennsylvania is a prime target for Republicans as they enjoy a big lead in Election Day voting, which is expected to evaporate as the mail-in ballots are counted. Challenges will almost certainly be raised on whether the mail-in ballots were legitimately signed and properly submitted, and on the question — not finally resolved by the U.S. Supreme Court — of whether ballots mailed by Election Day but received afterwards will be counted.

With little history of mail voting in the Keystone State, errors could be more common.

The Republicans also know that if the contest is prolonged, there will be debates over the 2000 recount controversy, though legal scholar Cass Sunstein has noted that Republicans are invoking Bush v Gore “wrongly.”

In addition to Pennsylvania, there will likely be similar challenges to ballots in Michigan, Wisconsin, Arizona, Nevada and Georgia. Indications are that when all the votes are counted, Biden could end up ahead in most if not all of these states, which have a total of 79 electoral votes. To win, Trump has to carry at least half of them.

The root of these charges will be fraud.

That — as Benjamin Ginsberg, who was the top Republican campaign and election lawyer for decades, said — is demonstrably phony; there is little voting fraud in America, as countless studies, including ones by Republicans, have demonstrated.

The GOP likely will go to friendly state courts in places like Wisconsin; in other states, where Democrats are a majority on the state supreme courts as in Pennsylvania, they will opt for federal courts.

If the election is not clear-cut after weeks, cases will end up at the U.S. Supreme Court. Trump openly declared the appointment of Justice Barrett was important so the high court could resolve any election disputes. Unlike Bush v Gore, however, Democrats believe this won’t end with the Supreme Court.

If the vote is unsettled by Dec. 14 when the Electoral College convenes, it’s plausible that both Democrats and Republicans in some states will send their electors to the Electoral College. That, then, would have to be resolved by the new Congress on Jan. 6. The House, certain to remain in Democratic hands, would side with the Democratic electors; at this point it seems likely the Senate will be Republican.

Dueling sets of electors were sent to Congress once in the modern age: In 1960, Hawaii initially voted narrowly for Republican Richard Nixon, but a recount gave it, barely, to Democrat John F. Kennedy — and both sets of electors were sent to Congress. With the election resolved, the president of the Senate pushed it aside. That Senate president was Vice President Richard Nixon.

Whatever the different circumstances, be assured that Donald Trump — and Mike Pence — won’t be so gracious.

Al Hunt is the former executive editor of Bloomberg News. He previously served as reporter, bureau chief and Washington editor for the Wall Street Journal. For almost a quarter century he wrote a column on politics for The Wall Street Journal, then the International New York Times and Bloomberg View. He hosts 2020 Politics War Room with James Carville. Follow him on Twitter @AlHuntDC.