With his reelection bid in danger in the wake of Tuesday’s closely fought contest, U.S. President Donald Trump fired the opening shots in what could lead to a drawn-out legal skirmish.
In three states key to determining the winner of the election, the Trump campaign filed lawsuits Wednesday over mail ballot handling, calling for a halt to the vote count in Michigan and Pennsylvania, and alleging that Georgia election officials were improperly counting late-arriving ballots. In another battleground state, Wisconsin, the Trump team requested a recount.
In doing so, Trump forces are attempting to block the counting of large numbers of mail-in and absentee ballots that Trump argues without proof are fraudulent and that are enhancing the prospects of Democratic challenger Joe Biden to win the election.
Biden, a former vice president, has been declared the winner in Michigan and Wisconsin but the races have yet to be called in Georgia and Pennsylvania.
“We also demand to review those ballots which were opened and counted while we did not have meaningful access,” Trump campaign manager Bill Stepien said in a statement announcing the lawsuit in Michigan.
The lawsuits were filed after Trump signaled early Wednesday morning that he would go directly to the Supreme Court to halt the counting of millions of the mail-in or absentee ballots.
Poll workers sort out early and absentee ballots at the Kenosha Municipal building on Election Day on Nov. 3, 2020, in Kenosha, Wis.
Legal experts say there is no way Trump could directly petition the high court for assistance in halting vote counting in a legally constituted election. However, the threat suggests the Trump campaign is bracing for a protracted post-election legal battle in what already has been the most litigated election cycle in U.S. history.
“The Trump campaign has pursued the same tactics relentlessly for a year so I can't imagine any reason they would stop until they've exhausted every last avenue,” said James Gardner, a law professor and elections expert at the University of Buffalo.
Just how long the incipient legal fight will rage remains to be seen.
The Supreme Court is seen at sundown on the eve of Election Day, in Washington, Nov. 2, 2020.
While the Supreme Court might intervene to resolve an election dispute, much as it did during the 2000 election battle between Republican George W. Bush and Democrat Al Gore, those bringing the case must jump through several legal hoops.
“There's no law that allows the arbitrary halting of vote counting across the country or even in a particular state, so there would be no legal basis for seeking that relief,” said Kim Wehle, a law professor at the University of Baltimore and author of What You Need to Know About Voting and Why.
That is not to say Trump doesn’t have ample legal recourse at his disposal as he seeks to secure a minimum of 270 electoral votes needed to win reelection. Thus far, election results in 44 of 50 states have given Trump 213 electoral votes and Biden 253, according to a VOA tally. Results in the remaining states are too close to call.
This combination of pictures shows Democratic presidential nominee and former Vice President Joe Biden on Oct. 23, 2020 in Wilmington, Delaware, On the right is U.S. President Donald Trump in Gastonia, North Carolina, Oct. 21, 2020.
To be sure, if either Trump or Biden secures enough votes in the undeclared races and does so by an insurmountable margin, challenging the results would become difficult and potentially moot, according to legal experts. But if the difference between their vote counts narrows, either candidate can dispute the outcome.
“But it will have to be a state-by-state, almost ballot-by-ballot challenge,” Wehle said.
Even as the outcome of the election remained in question, both the Trump and Biden campaigns claimed they were within reach of victory.
“We feel like the president is in a very, very, very good position this morning,” Stepien said during a press call on Wednesday.
Biden campaign manager Jen O’Malley Dillon, speaking during a separate call with reporters, said Biden was “on track to win this election, and he will be the next president of the United States.”
Recount request not uncommon
A vote recount of the kind Trump is seeking in Wisconsin is not uncommon. In 2016, Green Party nominee Jill Stein asked for a recount in the state. Forty-seven states allow losing candidates to ask for a recount. Of the remaining undeclared states, only Arizona does not.
However, recounts rarely change the vote tally, and if Trump fails to get a favorable outcome through a recount, he could contest the results, according to experts.
One possible dispute will likely revolve around mail-in ballots that arrive after Election Day, according to Heritage Foundation legal scholar Hans von Spakovsky.
Pandemic influences election
Three of the most closely fought states this election cycle — North Carolina, Pennsylvania and Wisconsin — changed their rules during the coronavirus pandemic to allow ballots to arrive after Election Day and still count.
The Supreme Court last week upheld North Carolina’s and Pennsylvania’s extended deadlines but rejected Wisconsin’s.
The Trump campaign could potentially argue in court that extending the deadline for receiving ballots was unconstitutional, Gardner said.
Another potential controversy will likely center on deficient mail-in ballots and whether they should be rejected without giving voters an opportunity to fix the problems. On Tuesday, just as voting was getting under way, Republicans filed a pair of lawsuits against “curing” or fixing problems with ballots in Pennsylvania.
Problematic ballots
The number of problematic ballots that get rejected is significant.
During the primaries this year, more than 550,000 deficient mail ballots were rejected in 30 states, according to an NPR analysis, triggering litigation in New York. Von Spakovsky said similar litigation could potentially be filed by the losing candidate.
“If there is any litigation contesting the counting of ballots, the rejection of absentee ballots and the extension of time for absentee ballots, I have no doubt that whoever loses in that litigation probably will be prepared to litigate it all the way to the U.S. Supreme Court,” von Spakovsky said.
But others cautioned that the high court will likely demur at getting dragged into a political fight. Nearly 20 years after its controversial ruling in Bush v. Gore, Gardner said, Chief Justice John Roberts considers the decision “to have been a mistake for the court to put itself at the center of a presidential election.”
Whether he can get the court out of another election dispute remains uncertain. Gardner said Roberts is facing an “internal revolt” from three other conservatives on the court — Samuel Alito, Clarence Thomas and Brett Kavanaugh — who dissented from the recent Supreme Court rulings extending ballot deadlines in North Carolina and Pennsylvania.