Below is my previous column in Hill on the issues we follow in the various states. Many of these issues are currently being negotiated in relation to the deadlines and conditions for voting. We are still seeing challenges in voting and now in counting. We’ll move on to the next phase, from counting to voting. Even if a state is declared for a candidate, there will be recounts and challenges. The recounts have not resulted in any significant changes in the past, with the exception of the Florida recount in 2000, which had serious problems with the design of ballots and voter intent. However, categorical challenges remain, such as that thrown back by the Pennsylvania Supreme Court.
Here is the column:
The election is here and the record level of early voting is only achieved by the record level of conspiracy theories. Many doubt whether their votes will count, but such doubts have lingered in history. As Mark Twain said, “If the vote made a difference, they wouldn’t let us do that.”
Both sides stir up such uncertainties. President Trump has condemned the postal vote as an attempt to steal the election. The Democrats accuse him of sparking an attempted coup if he loses. Democrats like James Clyburn, whip of the house majority, have said that Joe Biden can only lose the election if voter suppression is successful. Republicans accuse Clyburn of fueling unrest if Trump is not declared a loser on election night.
It is not surprising that both sides raised tens of millions of dollars and hired hundreds of lawyers to tackle the election challenges based on a “saturation bombing” legal strategy. Litigation started weeks before the election, and thousands of ballot papers are being put aside in anticipation of judicial reviews. Every presidential election that I have treated as a legal analyst has posed challenges, including the final election in 2000 that ended with the George Bush verdict against Al Gore.
With tens of millions of voters in thousands of polls, it is inevitable that isolated or systemic problems arise. However, this choice differs by an order of magnitude. Mail voting is always a magnet for challenges. In previous elections, some postal ballot papers were not even counted as they would not affect the outcome. Now officials have to process tens of millions of postal ballots in areas where such numbers have not been dealt with. Observe developments in three basic categories during the elections.
The first category of challenges are deadlines. This will be the most extensive form of challenge. “Stamping” ballot papers is an effective basis for challenges as the deadlines are set by state law. The results so far have been mixed. A federal court agreed to a request from Minnesota Republicans to decline an extended deadline for receiving postal ballot papers after today. A split committee of the eighth circle ordered that all postal ballot papers received by a scheduled time tonight must be set aside for possible annulment. There is now state and federal litigation on the matter.
The Supreme Court has issued its own orders. That ended Wisconsin’s plan to count the postal ballots received up to six days after the election. The bank broke ideologically when Chief Justice John Roberts believed such orders were “federal interference” with state law. However, the bank split equally with the extension of the postal voting deadline in Pennsylvania, which left the court orders in place. Roberts voted for this extension as part of such “power of state courts to apply their own constitutions to electoral law”. Conversely, the Supreme Court voted to support an extension of the postal voting deadline in North Carolina.
Judges Samuel Alito, Judges Clarence Thomas, and Judge Neil Gorsuch have indicated that the challenges in Pennsylvania raise not only state but also federal issues. It’s not clear how Judge Amy Coney Barrett, who sat on the Supreme Court for the first time this week, will rule on the issues. Even when voting with her peers, Roberts is the swing voting.
Another category of challenges are the conditions. This increases significantly in elections and includes allegations of voter suppression due to long lines or faulty equipment. This year there were new challenges and mixed results in this category. Given this high turnout, the time it takes to vote could be an issue. This was the case in the 2012 election when some voters complained about standing in line for hours. Such delays will likely result in courts having to monitor and resolve them with longer hours.
The Texas Supreme Court rejected the Republican petition to invalidate nearly 127,000 drive-through votes in Harris County. A unanimous Pennsylvania Supreme Court ruled that postal ballot papers should not be rejected based on suspected discrepancies between the signatures. The Supreme Court upheld an Alabama roadside appeal challenge and supported the view that state law does not allow it. The Supreme Court also ruled to enforce the South Carolina mandate that postal ballot papers be signed by a witness.
The conditions at the polling stations were not particularly challenging. Instead, the litigation focused on the conditions for counting votes, including denying or separating monitors from counting and processing areas.
The most worrying category of challenge is certification. This happens when the votes need to be confirmed by states for possible submission to Congress. Many states do not start counting votes until the polls are completed. This could drown the outcome from both tabulation and litigation, which could be severe in Pennsylvania. Michigan is also of concern because of its 1,600 districts with different systems. Wisconsin and Nevada will process record numbers of postal ballot papers with untested systems. Nevada has rejected calls for additional standards for ballot counting that could create challenges of potential election fraud. Such challenges can force recounts, the process that slowed states like Florida in 2000.
The problem is that states have to send certified results to Congress within five weeks. There is a possibility that challenges will delay submission or states may send two groups of voters because of controversial results. Congress would have to choose between these conflicting groups or possibly ignore the submitted contributions. There is also the possibility that none of the candidates will get 270 votes, leading to a dangerous fight.
Much of the litigation will not be about obtaining a clear majority, but rather narrowing the margin for both parties. If a party can cast enough ballots or force enough of its own votes to be counted, it is possible to reduce the challenges by arguing that even if they succeed, they will not change the outcome. Trump stated, “As soon as this election is over, we’ll get in touch with our lawyers.” But that is not necessary because they are already there.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.