The run-up to Election Day this year has seen records for early voting (nearly 100 million people as of Monday) — and for the volume of election-related litigation. It's unclear how long it will take for a victor to emerge in the presidential contest, particularly given the pandemic-driven surge in Americans casting ballots by mail, which will continue to be counted for several days after Election Day in some states. But one thing is certain: Unless there's a near-landslide in either direction, we're likely in for some intense legal combat.
That's not to say the lawsuits will have merit or that they'll decide the election. They most likely won't, according to legal experts. But the pandemic spawned a series of efforts to make voting safer, and that in turn triggered a partisan backlash in courtrooms in multiple states.
After Election Day, the courtroom battles will shift into a new phase. Some preelection cases will continue on. These cases center chiefly on constitutional challenges to the status of mail-in ballots that arrive after Tuesday, including some fringe legal theories derived from 2000's infamous Bush v. Gore Supreme Court decision.
But for all the gnashing of teeth about the potential role of the Supreme Court, most litigation will take place in state courts, where there are well-worn processes in place for challenging election results. Challenges to election results very rarely succeed in changing the outcome of an election, legal scholars say, but that doesn't mean the campaigns won't take every shot they've got if the election is close.
The legal processes for challenging an election result vary state by state, but they generally take two forms. Election “contests" or “protests" target alleged errors or wrongdoing in the administration of an election — a way for a campaign to argue, for example, that tabulated ballots should be rejected or that rejected ballots should be tabulated. The other is a recount, a process Americans got to know well in the wake of the 2000 presidential election. States permit recounts only when a victory margin is whisper thin.
To help readers navigate the courtroom quagmire the nation may soon find itself in, we've assembled a guide to some of the existing lawsuits that could shape the election results after the fact, as well as the state law tools the campaigns could use to challenge the results if the vote margins are close. For the sake of brevity, we've limited ourselves to the half-dozen swing states projected by the election forecaster FiveThirtyEight to be the likeliest to decide the election: Pennsylvania, Florida, Arizona, North Carolina, Michigan and Wisconsin. We don't know which, if any, of these states will see significant new litigation, and the main locus of legal combat could turn out to be another state entirely. Few people, after all, would have predicted in early November 2000 that a mess of recount litigation in Florida state courts would hold the nation in its sway for weeks and culminate in a climactic Supreme Court decision that ended the presidential election.
1. Republican Party of Pennsylvania v. Boockvar. Last month, the U.S. Supreme Court twice declined to weigh in on the central issue in this lawsuit: whether it was unconstitutional for the Pennsylvania Supreme Court to order state election officials to accept mail-in ballots that arrive up to three days after Election Day. The Pennsylvania Constitution includes a provision that mandates all elections be “free and equal" with no interference from any “power, civil or military," permitted “to prevent the free exercise of the right of suffrage." This year, the Pennsylvania Supreme Court held that this provision justified extending the mail-in ballot deadline to avoid disenfranchising Pennsylvanians affected by the coronavirus pandemic.
The state Republican Party, among others, appealed the ruling to the U.S. Supreme Court, which hasn't agreed to hear the case — yet. Pennsylvania has agreed to separate mail-in ballots that arrived on time from those that arrived after Election Day, and Justice Samuel Alito warned, in a statement last Wednesday, that the high court might still take the case and throw out the late ballots. His reasoning is based on what legal scholars call the “independent state legislature doctrine." It's a legal theory that has long lived on the fringes of conservative legal thought but now seems as if it may take a place in the legal spotlight. If the vote is close, expect to hear a lot about it.
The Constitution assigns to state legislatures the task of establishing voting rules for federal elections. The independent state legislature doctrine takes this allocation of duties to an extreme. In essence, the theory holds that state legislatures alone can set election rules, and no other actors — not state courts, governors, or election officials — can alter them in the slightest, even where they violate the state constitution. Because many of the measures meant to keep voters safe during the pandemic were instituted by state election officials or courts, it's a convenient theory for their opponents, and conservative lawyers and jurists — including, as of last week, four justices of the U.S. Supreme Court — have begun to advocate strenuously that it justifies striking down those measures.
The push has had an effect. A federal appeals court last week issued an opinion stating that a buffer period for late-arriving mail-in ballots in Minnesota likely ran afoul of the independent state legislature doctrine and ordered state officials to store late ballots separately, in case the court later decides to void them. Still, legal scholars are less than convinced that a majority of the Supreme Court will adopt a novel theory that would upend election administration in the middle of a politically fraught election. “It would be wildly destabilizing," said Justin Levitt, an election law scholar at Loyola Law School in Los Angeles. “I don't think the court is going to have an appetite for that in these circumstances."
2. Contesting election results in Pennsylvania. To contest an election is a more arduous process in Pennsylvania than in many other states. In the case of a presidential or senate election, 100 or more voters have to file a petition in state court within 20 days of the election, with at least five of them submitting affidavits that allege, in good faith, that they have reason to believe the election was “illegal and the return thereof not correct." (Other congressional elections require a petition backed by 20 voters.)
The affidavit requirement aims to avoid frivolous election contests, because it requires voters to swear that they have a good faith basis for contesting an outcome. After the 2016 election, for example, Green Party presidential candidate Jill Stein managed to organize enough voters to contest the election — alleging “grave concerns about the integrity of electronic voting machines" and claiming, without evidence, that they had been hacked — but, tellingly, no voter was willing to swear out an affidavit to that effect.
3. Recounts. In Pennsylvania, the secretary of state will order an automatic recount if the presidential race is within a margin of half a percentage point. Otherwise, there are two ways for voters to secure a recount in Pennsylvania. First, they can petition election officials, with three of them filing affidavits attesting to an error that would affect the vote count. The resulting decision can be appealed to a state court. The second route is to go directly to state court. That requires three voters from a given precinct to file petitions alleging, based on “reliable information," that fraud or an error affected the vote tabulations. Unless they have evidence to support their claims, they have to file affidavits, and pay associated fees, in each precinct they want recounted.
1. Contesting election results. Any unsuccessful candidate, voter or taxpayer can challenge an election outcome in Florida state court. An election can be contested where enough votes were wrongfully counted or wrongfully rejected “to change or place in doubt the result of the election." If a challenge is successful, a state court can go so far as to order the winner, if he or she has taken office, replaced by the challenger. A high-profile example of a rare successful election contest arose in the wake of the 1997 race for the mayoralty of Miami. An election marred by a widespread fraud scheme — one candidate's campaign forged a large volume of absentee ballots — prompted a state court to throw out all absentee ballots, effectively handing victory to the candidate's opponent.
2. Recounts. After the 2000 election, “Florida" and “recount" are forever linked in the national consciousness. In Florida, an automatic recount is triggered if the margin between two candidates is half a percentage point or less. The recount is overseen by the secretary of state, a position presently held by an appointee of Trump ally Gov. Ron DeSantis. If the recount shows that a quarter of a percentage point or less separates the two candidates, the secretary of state generally has to order a manual recount. The 2000 recount was never completed — the Supreme Court ordered it halted — but there's evidence to suggest it wouldn't have changed the outcome. That's not unusual. “Recounts rarely change the vote totals much," University of Kentucky election law scholar Joshua Douglas said.
1. State Constitution's Free and Equal Elections Clause. Like Pennsylvania, Arizona is one of 15 states that includes a Free and Equal Elections Clause in its constitution. Should any issues arise with voting machines in the state, this provision could come into play. One state appeals court has held that voting machine defects could run afoul of the clause if they cause a “significant number of votes" not to be properly recorded or counted.
2. Contesting election results. Any voter in Arizona can contest an election result in state court. Among the grounds for challenging an election result are that “illegal votes" were cast or that tabulation errors led to the wrong candidate being declared the winner. On its face, the state law authorizing those challenges doesn't refer to federal elections. But state courts have found ways to apply the law to congressional and presidential elections. After a challenge is filed, the state attorney general, the Republican Mark Brnovich, can intervene in the case. Brnovich is presently defending two Arizona election laws, which an appeals court this year found tended to disproportionately disenfranchise minority voters, before the Supreme Court.
3. Recounts. Arizona requires an automatic recount for close elections. The margin has to be very narrow to trigger a recount: 0.1% of the votes cast. Heading into the final weekend before Election Day, about 2.3 million Arizonans had already cast their ballot. Were that the final turnout figure (putting aside third-party candidates), a recount would come into play only if 2,300 votes or fewer votes separated the Democratic and Republican candidate in the presidential race or any of Arizona's 10 congressional races. All ballots are recounted electronically, with a sample of precincts hand counted to verify the electronic tally. The secretary of state, Democrat Katie Hobbs, would oversee the recount.
1. Contesting election results. Michigan is one of only two states without a codified process for contesting an election result. Instead, according to researchconducted by Douglas, the election law scholar, the losing candidate has to ask the state attorney general, Democrat Dana Nessel, to examine the election results. If “the facts clearly warrant" it, the attorney general can then file in court a writ of quo warranto, a rarely used legal tool inherited from the English common law that challenges the authority of a person to hold government office. (It's perhaps best known for playing key roles in various monarchic power struggles in England centuries ago.) If, on the other hand, the attorney general declines to act, the losing candidate can file the writ.
2. Recounts. Recounts in Michigan are more straightforward. Victory by a margin of 2,000 votes or fewer automatically triggers a recount. Separately, a candidate can petition for a recount if the candidate can allege in good faith that, but for fraud or an error, he or she would have had “a reasonable chance" of winning. The candidate has to specify the precincts or municipalities to be recounted and what kind of fraud or error the candidate believes undermined the vote in those places.
Stein, the 2016 Green Party presidential candidate, initially secured a recount in Michigan, despite having won only about 1% of the vote. A federal judge ordered state officials to start their count early, so it could be completed ahead of a looming deadline for the state to certify the electors it would send to the electoral college. But a state court subsequently put a halt to that effort, finding that because Stein lacked a “reasonable chance of winning" after a recount, she wasn't entitled to one.
1. Wise v. Circosta. North Carolina has extended the deadline for mail-in ballots to arrive from three days after Election Day to nine days. A challenge by Republican officials remains pending in federal court. Two of the arguments, which have arisen in other preelection litigation, are tied to unusual readings of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. The first relates to the requirement that each person's vote count equally. Official conduct that “dilutes" the value of a vote runs afoul of this principle. Ordinarily, vote dilution is defined as an instance in which fraudulent ballots canceled out those legally cast. But three federal appellate judges wrote last month, dissenting from a decision not to block the extended deadline, that legitimate but late-arriving mail-in ballots would “dilute" the votes of those who had gotten their votes in earlier. It's a peculiar take on the idea of “dilution" — that the legitimate vote of one North Carolinian waters down in some illegitimate fashion the vote of another — but it's one that has gained some currency in preelection litigation and could emerge if this case or cases like it proceed after Election Day.
The second argument arises from the Supreme Court's interpretation of the Equal Protection Clause in the Bush v. Gore case, which ProPublica explored recently and which can be expected to crop up in post-election lawsuits. In essence, the issue in Bush v. Gore was that different counties in Florida were using different methods to decide which ballots were valid and which weren't, and the Supreme Court held that this kind of inconsistency arbitrarily treated votes differently; a type of ballot that passed muster in one county might not in another. This doctrine has its limits — after all, election administration is bound to result in some variation across precincts and counties — but lawyers for the Trump campaign and the GOP have begun to deploy it whenever they can discern some difference in election practices. In the Wise case in North Carolina, the dissenting federal appeals court judges wrote that accepting late-arriving ballots “arbitrarily and disparately treats" the plaintiffs, who cast their ballots before Election Day, “differently from other voters." Legal scholars see this reading as a stretch, but it may yet reemerge in post-election litigation.
2. Contesting election results. Any voter or candidate can challenge an election by filing a “protest" with a county board of elections, or in some circumstances, with the state elections board. The protest can concern how votes were counted or “some other irregularity." If the county board thinks there may be merit to the objection, it holds a hearing and can collect evidence. Its decision can be appealed to the state board and, ultimately, to a state court. There are three possible outcomes for a successful protest: a corrected vote tabulation if the protest results in an order that previously accepted ballots be rejected or vice versa; a recount; or an order to hold a new election altogether. Last year, the state board ordered a congressional election rerun, after evidence emerged that the Republican candidate's campaign had financed an illegal voter-turnout effort.
3. Recounts. In North Carolina, a presidential candidate or a candidate for Senate can insist on a recount if he or she lost by a margin of either half a percentage point or 10,000 votes, whichever is less. For other congressional candidates, the threshold is a margin of 1% or fewer of the votes cast. Whichever candidate is behind after an electronic recount can request a manual recount of a sample of precincts, which can be expanded if it suggests an error in the electronic count that might reverse the outcome of the election.
1. Recounts. In Wisconsin, a recount is the only recourse for a losing candidate in a federal election. The limited options reflect a policy, as state appeals courts have reiterated over the years, that elections generally should stand absent evidence of actual wrongdoing. A candidate can petition election officials for a recount if he or she is behind the leading candidate by one percentage point or less and believes that an error or fraud has infected the vote count. The candidate has to pay for the recount if the margin is greater than a quarter of a percentage point. The decision of election officials can be appealed to a state court.