LAW AND DISORDER
Voting ends on Tuesday. But judges may be deciding the result for weeks
FOR the next two days the 2020 race is “Donald Trump vs. Joe Biden.” Come Nov. 3, the race likely becomes, “May the best lawyer win.” Perhaps Biden will win an overwhelming victory, as nearly the entire press corps predicts and prays. Perhaps Trump will blow away the competition, as some of his supporters insist. But with the RealClearPolitics poll averages in battleground states tightening to toss-ups — as in 2016 — this election looks poised on a scalpel’s edge. And with states and courts changing — and changing and changing — rules about how and for how long ballots can be counted, it seems likely the political legal class will soon take over the show.
To the Biden cheerleaders known as the fourth estate, the Democratic nominee boasts a legal team that would put Clarence Darrow, Thurgood Marshall and Cicero to shame. Biden’s “legal war room” will “ensure that elections are properly administered and votes correctly counted” and “combat voter suppression at the polls,” raved the Associated Press. Biden’s operation — “the largest election protection program in presidential campaign history” — consists of former solicitors general (Donald Verrilli, Walter Dellinger), Obama legal stars (Bob Bauer, Eric Holder), Democratic Party titans (Marc Elias) and “hundreds of lawyers,” cheered The New York Times.
Amid the gushing, you might not know that the Republican team has been more than holding its own against the flood of pre-election litigation designed to change the rules and to give Democrats an advantage. The left and the media forget that the GOP learned the hard way the perils of legal flat-footedness. It’s hard to find a conservative lawyer without a searing memory of 2008-09, when lawyers representing a funny fellow named Al Franken managed to swindle Sen. Norm Coleman out of a Minnesota seat. Republicans have been better prepared ever since. And they are very prepared today.
Leading the Trump operation is Justin Clark, who in 2016 played a key role helping Trump navigate recounts and line up delegates. The Trump legal advisory board contains an array of hardcharging state attorneys general, and its own list of stars, from Ed Meese to Harmeet Dhillon to Leonard Leo. It too has lined up a platoon of lawyers and poll watchers, who are already spread out across the 50 states.
The first phase of this group’s legal work — election rules — is nearly done, and it can point to real achievements. It can’t be happy with the Supreme Court’s muddled orders on Wednesday allowing North Carolina to accept absentee ballots past the statutory deadline. At the same time, it successfully argued for enforcing state ballot deadlines in Wisconsin and Michigan. It defeated a lawsuit by Minnesota Democrats seeking a more favorable position on state ballots. It beat back Texas Democrats’ attempts at universal-voteby-mail. It persuaded courts in Minnesota and Pennsylvania to reject ballotharvesting. The sheer volume of Demo
cratic efforts to juke the rules — on deadlines, on curbside voting, on ballot collection boxes, on mask mandates at polls — is mind-boggling. Simply keeping up with it is an achievement.
Phase two comes on Election Day, as the Republican National Committee — for the first time in a presidential election since 1980 — fans out poll watchers to polling stations and counting rooms in all 50 states. In 1982, the RNC (following some genuinely creepy behavior in the 1981 New Jersey governor’s race) entered into a consent decree with a court to not engage in poll watching. The decree expired in 2017, and the RNC and Trump team have been gearing up ever since. Poll watching rules vary by state, so the campaign has invested time and money in recruiting and training staff and volunteers who will document that election officials are following the rules and that ballots are being counted and sorted appropriately.
Democrats engage heavily in poll watching every cycle, and the measure of how furious they are that the GOP gets to operate equally is the flood of media stories predicting Trump pollwatcher “intimidation” at the ballot box. Don’t buy it; the current level of Democratic hostility to Trump voters suggests any intimidation will flow in that direction instead. But do expect the armies of poll-watchers — unprecedented in size, on both sides — to report a litany of perceived or real irregularities to their respective campaigns’ legal teams.
And that’s when the fun really begins. Some battlegrounds — say, Arizona — followed their rules and will likely have a credible result by the end of the night. But legal teams are bracing for chaos in states where the rules have been changed. On Wednesday lawyers will be filing dozens of complaints over irregularities, recounts, and which stacks of ballots should be counted. In Pennsylvania, the rules are now so uncertain that officials are segregating ballots received after Election Day — in the understanding that their ultimate fate may be decided by judges, potentially weeks after polls have closed.
That’s a recipe for a legal battle unlike any seen in American electoral history, and its outcome will have nothing to do with the candidates, their agendas, or their campaign coffers. It will be entirely about the lawyers. So go vote — make yourself heard. Then hope like hell your side’s legal degrees mean something.