But with relatively tight margins in key battle-
ground states, including Pennsylvania, Nevada and
Georgia, it was also immediately clear that an on-
slaught of election- related litigation was all but
inevitable. It is no longer a question of whether the
results of the 2020 presidential race will end up
mired in the courts; it is how long and how conse-
quential that court battle will be.
The contours of the coming fights are only be-
ginning to emerge. Experts say that in coming days,
new cases could hinge on anything from recounts to
obscure state statutes to whether the U.S. Postal Ser-
vice delivered ballots.
The Biden campaign’s legal team has been san-
guine about the deluge to come. “Let me tell you this:
if you go to the Supreme Court today, drive around
the building, you will not see Donald Trump, and
you will not see his lawyers,” says Bob Bauer, former
White House counsel under Barack Obama and a se-
nior adviser to the Biden campaign. “He’s not going
to the Supreme Court of the United States to get the
voting to stop.”
But at least some top Republicans, including
Tom Spencer, who worked for George W. Bush in
Bush v. Gore, the case that decided the 2000 elec-
tion, foresee the legal wrangling ending at the court,
where Trump has appointed three of the nine Jus-
tices. He predicts that the outcome may hinge on
three Justices—Brett Kavanaugh, John Roberts and
Amy Coney Barrett—all of whom, like Spencer,
worked on Bush’s team two decades ago. In Septem-
ber, Trump said he wanted Barrett installed on the
high court before the election to ensure a full bench
to decide election disputes. “The big issue of course
is how is Justice Barrett going to rule,” Spencer says.
The consequences of the coming legal battles may
extend beyond who becomes the next President of
the United States. The litigation could test Ameri-
cans’ confidence in the electoral process, shake their
faith in the judiciary as an impartial arbiter of U.S.
law, and further divide an already polarized nation.
“Make no mistake: our democracy is being tested in
this election,” Pennsylvania Governor Tom Wolf said
Nov. 4. “This is a stress test of the ideals upon which
this country was founded.”
Lawyers for both the Trump and Biden cam-
paigns have been preparing for this moment for
months. With backing from deep- pocketed donors,
as well as the Republican and Democratic National
Committees, each has amassed an army of top-tier
lawyers and legal experts who have been deployed
at strategic outposts around the country. In the
months before the election, lawyers for various Dem-
ocratic and Republican entities filed more than 400
election- related lawsuits, putting the 2020 race on
track to be the most litigated in history.
Some of these decisions may have made a post–
Election Day showdown more likely by narrowing
the margin between Biden and Trump. On Oct. 26,
the Supreme Court upheld Wisconsin’s ballot- receipt
deadline. Appeals courts similarly ruled in favor
of shorter ballot- receipt deadlines in Georgia and
Michigan. The Supreme Court decision in the Wis-
consin case “unquestionably” made the margin
closer, says Jay Heck, executive director of Common
Cause in the state. “There are probably thousands of
absentee ballots that will be [arriving] in the next few
days.” When the deadline was extended during Wis-
consin’s primary this year, the state’s election com-
mission said it resulted in an additional 79,000 bal-
lots being counted.
The lawsuits have only just begun. On Nov. 4,
Bill Stepien, Trump’s campaign manager, noting
the close margins in Wisconsin, called the state
“recount territory.” “There have been reports
of irregularities in several Wisconsin counties
which raise serious doubts about the validity
of the results,” he said. Pennsylvania is also
likely “ground zero” for coming election-related
litigation, experts say. The commonwealth’s 20
ELECTION
2020
Ken Weber, a
Pennsylvanian
election official,
validating votes.
All ballots arriving
after 8 p.m. on Nov. 3
were segregated
