Voting in the US election will end November 3, but the legal battle won’t
The stormy, once-in-a-lifetime Florida recount battle that polarised the nation in 2000 and left the Supreme Court to decide the presidency may soon look like a high school student council election compared with what could be coming after this November’s election.
Imagine not just another Florida but a dozen Floridas. Not just one set of lawsuits but a vast array of them. And instead of two restrained candidates leaving the fight to surrogates, a sitting president of the United States unleashing ALL CAPS Twitter blasts from the Oval Office while seeking ways to use the power of his office to intervene.
The possibility of an ugly November — and perhaps even December and January — has emerged more starkly in recent days as President Donald Trump complains the election will be rigged and Democrats accuse him of trying to make that a self-fulfilling prophesy.
With about 85 days until November 3, lawyers are already in court mounting pre-emptive strikes and preparing for the larger, scorched-earth engagements likely to come. Like the Trump campaign, Joe Biden’s campaign and its network of Democratic support groups are stocking up on lawyers, and Democrats are gaming out worst-case scenarios, including how to respond if Trump prematurely declares victory or sends federal officers into the party’s strongholds as an intimidation tactic.
The emerging battle is the latest iteration of the long-running dispute over voting rights, one shaped by the view that higher participation will improve the Democratic Party’s chances. Republicans, under cover of unfounded claims about widespread fraud, are trying to prevent steps that would make it easier for more people to vote and Democrats are pressing to secure ballot access and expand the electorate.
But that clash has been vastly complicated this year by the challenge of holding a national election in the middle of a deadly pandemic, with a greater reliance on mail-in voting that could prolong the counting in a way that turns Election Day into Election Week or Election Month. And the atmosphere has been inflamed by a president who is already using words like “coup”, “fraud” and “corrupt” to delegitimise the vote even before it happens.
The battle is playing out on two tracks: defining the rules about how the voting will take place, and preparing for fights over how the votes should be counted and contesting the outcome.
“The big electoral crisis arises from the prospect of hundreds of thousands of ballots not being counted in decisive states until a week after the election or more,” said Richard Pildes, a constitutional scholar at New York University School of Law.
If the candidate who appears ahead on election night ends up losing later on, he said, it will fuel suspicion, conspiracy theories and polarisation. “I have no doubt the situation will be explosive,” he said.
Some flash points have already emerged:
A long-troubled Postal Service, now run by a Trump megadonor and seemingly overwhelmed by the prospect of delivering tens of millions more votes cast by mail with an administration resistant to providing substantial new funding. Concern among Democrats that Trump or Attorney General William Barr could use their bully pulpits to raise loud enough alarms about voter fraud to lead sympathetic state and local officials to slow or block adverse results.
Fights over whether mailed ballots should be counted if received by Election Day or simply postmarked by Election Day, not to mention what to do if the post office does not postmark them at all.
Fights over the use of drop boxes to return ballots and the number of polling places for in-person voting amid the risk of disease. Fights over whether witnesses should still be required for absentee votes in a socially distant moment and what to do if signatures do not match those on file.
Democrats and their allies, led by Marc Elias, the general counsel of the Democratic National Committee, are seeking to expand voting options, particularly through mail-in voting. They have active litigation in numerous battleground states, pursuing relief on deadlines, signature and witness requirements, among others.
Republicans said their own court efforts were aimed at preventing Democrats from changing the rules in the middle of the game.
“People are viewing it as an attack on vote-by-mail,” said Justin Riemer, the chief counsel for the Republican National Committee. But in fact, he said, “it’s by and large protecting the safeguards that are in place”.
Trump, who also made unfounded claims about fraud in the 2016 election even though he won, has signalled that he will not hesitate to go back to court after Election Day if he does not like the result. Unlike in 2000, when the Justice Department largely stayed on the sidelines, Democrats worry that Barr will intervene with civil suits, investigations or public statements, casting doubt on the result if Trump appears to lose.
Some Democrats even express fear Trump would send federal agents into the streets as he did in recent weeks in Portland, Oregon. Democrats have game-planned situations in which Trump deploys immigration officers into Hispanic neighbourhoods to intimidate citizens shortly before the election and suppress turnout.
“It is very, very much a concern,” said Alex Padilla, the secretary of state of California.
Trump’s advisers dismiss such talk as overheated partisan messaging. Justin Clark, the president’s deputy campaign manager, said states like California and Nevada trying to expand mail-in voting were the ones setting the stage for a chaotic election.
“Rushing to implement universal vote-by-mail leads to delays in counts, delays in results and uncertainty about who won an election,” he said.
The Trump team has also tried to halt another pillar of absentee voting — the drop box. In 2018 in Colorado, one of five states that already votes nearly entirely by mail, 75 per cent of ballots were returned through a drop box or at a polling place. In Pennsylvania, the Trump campaign sued against expanding the use of drop boxes, an action that has concerned election officials across the country.
Some Democrats said they were less worried about direct intervention by Trump or Barr, but said they could use their positions to prod sympathetic state and local officials to block votes while fostering a narrative undercutting the credibility of a vote count going against the president.
“The president has very little, if any, power with how elections are conducted,” said Elias, the Democratic lawyer. “Trump’s power is that he has no shame and that shamelessness has infected his entire political party.”
With the prospect of an extended and messy count lasting long past Election Day, new attention is focusing on deadlines set by federal law. Under the so-called safe harbor provision, states have until December 8 to resolve disputes over the results, meaning only five weeks — the same deadline that led to the Florida recount being called off in 2000 with George W Bush in the lead.
Republican Senator Marco Rubio, warning about “a nightmare scenario for our nation”, introduced legislation last week extending that deadline to January 1, giving states 3 ½ more weeks to count. The Electoral College would then meet January 2 instead of December 14, still in time to provide their results to Congress to ratify the outcome January 6 as scheduled.
In the end, it may depend on how close the count really is.
If “it’s clear one candidate or the other has a clear majority in the Electoral College, then I don’t think there’s much Trump could do if he’s the loser except to complain,” said Trevor Potter, the president of the Campaign Legal Center and former chairman of the Federal Election Commission. “But if it’s close, then I think there is the potential for lots of mischief.” New York Times