Experts fear legal fight over election to be larger, fiercer than ever before
The stormy, once-in-alifetime Florida recount battle that polarized 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 staying out of sight and 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 that the election will be rigged and Democrats accuse him of trying to make that a self-fulfilling prophecy.
With about 85 days until Nov. 3, lawyers are already in court mounting pre-emptive strikes and preparing for the larger, scorchedearth 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 longrunning dispute over voting rights. Republicans are trying to prevent steps that would make it easier for more people to vote, and Democrats are pressing more aggressively than ever 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.
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 polarization.
“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 via mail-in voting. They have active litigation in numerous battleground states.
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.”
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 Dec. 8 to resolve disputes over the results — the same deadline that led to the Florida recount being called off in 2000 with George W. Bush in the lead.
Sen. Marco Rubio, R-Fla., warning about “a nightmare scenario for our nation,” introduced legislation Thursday extending that deadline to Jan. 1. The Electoral College would then meet Jan. 2 instead of Dec. 14, still in time to provide results to Congress Jan. 6 as scheduled.