Time - USA (2020-11-02)

Election

on trial

THE 2020 OUTCOME COULD

BE DECIDED IN COURT

By Alana Abramson

Far From the rallies, debates and attack ads

of the 2020 election, a less visible but equally im-

portant fight is playing out in America’s courts. For

months, armies of Republican and Democratic law-

yers have flooded state and federal benches with

hundreds of challenges to state election laws. The

cases grapple with mundane details like voting dead-

lines and ballot envelopes, but taken together they

will determine how many ballots get tallied and

whose votes count.

Such details could make all the difference if the

election is close in one or more key states. The battles

could lead to fights in higher courts once the count-

ing begins. With both sides preparing for the possi-

bility of post-election lawsuits, experts raise a worry-

ing prospect: a repeat of the 2000 election, in which

the victor was determined by the Supreme Court rul-

ing in Bush v. Gore.

Already, this election is on track to be the most lit-

igated in history, and most of the votes aren’t even in

yet. Lawyers representing the two parties’ interests

have filed at least 385 election-related lawsuits this

year just stemming from the pandemic. In 2016, there

were 337 lawsuits total, according to data compiled by

Rick Hasen, a law professor at the University of Cali-

fornia, Irvine. We are in the midst, says election-law

expert Ned Foley, of “a litigation arms race.”

The main reason for the surge in cases is COVID-

19, which pushed states to adjust their election rules,

often by expanding access to voting by mail. Demo-

crats, teaming up with voting advocacy groups, have

fought to make mail voting easier and to increase the

time election officials have to count mailed ballots.

Republicans have pushed for increased restrictions

on mail-in votes and limits on vote counts.

Both sides tout high-minded principles behind

their arguments, like increasing the franchise or

decreasing fraud. But the electoral driver behind

the fight is clear: Democrats are voting by mail at

significantly higher rates than Republicans this

cycle. President Trump is using these cases as fur-

ther support for his claims of “massive fraud,” re-

fusing to commit to a peaceful transition of power,

and suggesting that the Senate has to move quickly

to confirm his replacement for Justice Ruth Bader

Ginsburg, in case the election ends up before the Su-

preme Court.

The courts have rejected the President’s claims

of widespread fraud, with Republicans losing most

cases based on these allegations. But the fight over

restrictions on mail voting has ground to a draw, as

Democrats have suffered a recent spate of appeals

court defeats over looser voting rules. “Depending

on the week, you may say it’s a very good Democratic

week or a very good Republican week,” says Stanford

Law professor Nathaniel Persily.

The fighT is far from over. Both the Biden and the

Trump campaigns, as well as swing-state election of-

ficials, are amassing legions of attorneys in prepara-

tion for what’s to come after Nov. 3.“We have a team

of dedicated legal professionals who are ready to re-

spond to whatever the President and his enablers put

forth,” says Pennsylvania attorney general Josh Shap-

iro. The Republican National Committee is on a simi-

lar footing. “With the help of our national network of

attorneys, the RNC has been beating the Democrats

in court for the last several months and that will con-

tinue should they attempt to sue their way to victory

in November,” RNC chief counsel Justin Riemer says

in a statement to TIME.

Lawyers on both sides hope they won’t need to go

nuclear with post–Election Day litigation. If Trump

or Biden wins both the popular vote and the req-

uisite 270 Electoral College votes by a sufficiently

large margin, individual state cases will be moot. But

that may be wishful thinking. Biden’s lead is smaller

in swing states than it is nationwide, and both legal

teams are gearing up. The possibility of very narrow

wins in tipping-point races “is going to predispose

both campaigns to try and fight over the outcome

as long as they can,” says Foley. Which means come

No v. 4, the whole country could find itself in court.

—With reporting by Julia Zorthian •

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Election officials
wearing face
masks oversee
early voting in
Louisville, Ky.,
on Oct. 13

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