After months of court fights over how voters could cast ballots, President Trump and Democratic presidential nominee Joe Biden’s respective legal armies are shifting their focus to lawsuits over whether some of those ballots should be counted.
Republicans have launched efforts in Texas, Minnesota, Nevada and Pennsylvania that, if ultimately successful, could invalidate hundreds of thousands of battleground state votes. While at least some of those efforts face long odds, legal experts say that’s unlikely to deter GOP-allied attorneys.
“I expect the intensity of the litigation battles to be greater than ever before,” said Guy-Uriel Charles, a law professor at Duke University. “And given the stakes, they will go all out.”
More than 320 lawsuits have already been waged in 45 states during the run-up to the election, according to Justin Levitt, a professor at Loyola Law School.
A common theme emerged in the pre-election litigation: Democrats and their allies sought accommodations across the country for voters, like relaxed deadlines for the receipt of a record number of mail-in ballots amid the coronavirus pandemic and Postal Service delays.
Republicans tended to push for maintaining strict voting limits. Trump and his Republican allies have argued that by relaxing state voting restrictions, judges have unlawfully taken the management of elections away from state legislatures. They have also frequently claimed, largely without evidence, that easing voting rules opens elections up to widespread fraud.
But the focus is now shifting from fighting over the rules of the game to fighting over the outcome of the game itself.
“As soon as that election is over we’re going in with our lawyers,” Trump said on Sunday, reiterating his view that vote counting should stop after Election Day. (Election law imposes no such cutoff.) He also criticized recent Supreme Court rulings to allow Pennsylvania and North Carolina to accept late-arriving mail ballots postmarked by Election Day.
“I think it’s a terrible thing when ballots can be collected after an election. I think it’s a terrible thing when people or states are allowed to tabulate ballots for a long period of time after the election is over because it can only lead to one thing,” Trump told reporters in Charlotte, N.C.
He added, “I don’t think it’s fair that we have to wait a long period of time after the election. Should’ve gotten their ballots in a long time before that. Could’ve gotten their ballots in a month ago. I think it’s a ridiculous decision.”
During a call with reporters on Monday, Bob Bauer, a former White House counsel during the Obama administration and an adviser to the Biden campaign, said they were prepared to fight back in the face of what he characterized as Trump’s false claims of voting problems.
“We are fully prepared for any legal hijinks of one kind or another. We’re not worried about it,” Bauer said. “So we’re going to match them, I can assure you, and exceed them in quality and vigor, and will protect the vote.”
Republicans and their allies have had a mixed record in the run-up to the post-election phase, which included some major setbacks on Monday.
A federal district judge in Texas on Monday ruled against Republican plaintiffs who sought to throw out 127,000 ballots cast by drive-thru voting in Democratic-leaning Harris County in Texas. Judge Andrew Hanen ruled that the plaintiffs lacked the legal right to sue in the case.
The four plaintiffs, three of whom are GOP candidates, claimed the drive-thru polling stations were an illegal expansion of curbside voting, an option Texas makes available only to physically disabled voters. Later Monday the U.S. Court of Appeals for the 5th Circuit denied the plaintiffs’ appeal.
In Nevada on Monday, a district court judge rebuffed a Trump campaign bid to delay the counting of mail ballots in Clark County, which includes Las Vegas. The campaign had alleged problems with the county’s matching of voters’ ballot signatures to those kept on file, and sought more authority to observe the process.
Two GOP-led challenges to mail ballot extensions in Minnesota and Pennsylvania are pending and could break in Republicans’ favor.
A federal appeals court Thursday evening ruled that Minnesota mail-in ballots received after Nov. 3 must be segregated from those received by Election Day. A divided three-judge panel of the U.S. Court of Appeals for the 8th Circuit said it ordered the measure “in the event a final order is entered” in favor of the GOP challengers, which would require the segregated ballots to be tossed.
Pennsylvania is also segregating its mail ballots that arrive after Election Day. Democratic state officials took that step after the Supreme Court last week declined a GOP request to fast-track consideration of state court-ordered mail ballot extension, but with three conservative justices indicating they might revisit the issue after Election Day.
Post-election court fights will be the last chapter to what is already the most litigated election in American history, which saw the Republican National Committee pledge $20 million for election lawsuits and the Biden campaign recruit its own army of attorneys.
The ultimate impact of any post-Election Day lawsuits depends on how close the voting results are. If either candidate wins by a wide margin, that would put the race outside the “margin of litigation,” as some legal experts have taken to calling it.
Lawsuits arose from the elections of 2016, 2012, 2008 and 2004, but those suits, even if they had been successful, wouldn’t have changed the outcome of the vote.
“In 2004, when the Kerry campaign was prepared to litigate over provisional ballots in Ohio, the pivotal state that year, in the end Bush was ahead by too much to make the fight worthwhile,” said Ned Foley, a law professor at the Ohio State University.
But the dramatic counterexample is the 2000 presidential election, which fell squarely within the margin of litigation. The subsequent Supreme Court decision in Bush v. Gore stopped a Florida recount and effectively made George W. Bush the 43rd president of the United States.
“It takes an election as close as 2000 — with a margin of 537 votes in a tipping-point state — for litigation to make the difference,” Levitt said.