Below is my earlier column in the Hill on the issues that we are following in the various states. Many of these issues are now being litigated on the deadlines and conditions for voting. We are still seeing challenges over the voting and now over the counting. We will be moving to the next phase from counting to keeping votes. Even if a state is declared for a candidate, there will be recount and challenges. Recounts historically have no resulted in substantial changes with the exception of the Florida recount in 2000 where there were serious problems in the design of ballots and intent of voters. There remain however categorical challenges like the one kicked back by the Supreme Court in Pennsylvania.
Here is the column:
The election is here and the record level of early voting is matched only by the record level of conspiracy theories. Many harbor doubts over whether their votes will count, but such doubts have lingered in history. Like Mark Twain said, “If voting made a difference, they would not let us do it.”
Both sides are fueling such insecurities. President Trump has condemned mail voting as an effort to steal the election, so Democrats accuse him of sparking a coup attempt if he loses. Democrats like House Majority Whip James Clyburn have said that the only way Joe Biden can lose the election is “for voter suppression to be successful.” Republicans accuse Clyburn of fueling riots if Trump is not declared the loser on election night.
It is not surprising that both sides have raised tens of millions of dollars and enlisted hundreds of lawyers for the election challenges based on a “saturation bombing” legal strategy. The litigation started weeks before the election, and thousands of ballots are being set aside in anticipation for court reviews. Every election for president I have covered as a legal analyst has raised challenges, including the ultimate contested 2000 election that ended with the ruling in George Bush versus Al Gore.
It is inevitable with tens of millions of voters across thousands of polls that isolated or systemic problems arise. But this election is different by a high order of magnitude. Mail voting is always a magnet for challenges. In past elections, some mail ballots were not even counted since they would not affect the outcome. Now officials have to process tens of millions of mail ballots in areas that have not dealt with such numbers before. Watch the developments in three basic categories as the election unfolds.
The first category of challenges is deadlines. This will constitute the most extensive form of challenges. The “clocking” of ballots is an effective basis for challenges as the deadlines are set by state law. The results have been mixed thus far. One federal court agreed with the challenge by Minnesota Republicans in rejecting an extended deadline to receive absentee ballots after today. A split panel of the Eighth Circuit ordered that any mail ballots received at a set time tonight must be set aside for potential nullification. There is now litigation on the state and federal level on the issue.
The Supreme Court has issued its own orders. It ended the Wisconsin plan to count mail ballots received up to six days after the election. The bench broke along ideological lines as Chief Justice John Roberts held that such orders constitute “federal intrusion” on state law. However, the bench split evenly on the Pennsylvania extension of the deadline for absentee voting, which left the court orders standing. Roberts voted for that extension as part of such “authority of state courts to apply their own constitutions to election regulations.” Conversely, the Supreme Court voted to support an extension for the deadline of absentee ballots in North Carolina.
Justice Samuel Alito, Justice Clarence Thomas, and Justice Neil Gorsuch have indicated that the Pennsylvania challenges raise not just state but federal issues. It is not clear how Justice Amy Coney Barrett, who sat on the Supreme Court for the first time this week, will decide on the issues. Even if she votes with her colleagues, Roberts is the swing vote.
Another category of challenges is conditions. This rises significantly in the election and includes allegations of voter suppression due to long lines or malfunctioned equipment. This year has seen novel challenges and mixed results in this category. Given such high turnout, the time it takes to vote could be an issue. It was the case in the 2012 election, when some voters complained of standing in line for hours. Such delays will likely result in filings for courts to monitor and solve them with extended hours.
The Texas high court denied the Republican petition to invalidate almost 127,000 drive through votes in Harris County. A unanimous Pennsylvania high court ruled that mail ballots must not be rejected due to perceived mismatches between signatures. The Supreme Court upheld an Alabama challenge to curbside voting, supporting the view that it is not permitted under state law. The Supreme Court has also ruled to enforce the South Carolina mandate that absentee ballots be signed by a witness.
There have not been great challenges over the conditions at polling places. Instead, the litigation has focused on the conditions for the counting of balloting, including the denial or separation of monitors from counting and processing areas.
The most worrisome category of challenges is certification. This comes when the votes must be certified by the states for eventual submission to Congress. Many states do not start counting votes until after polls close. That could leave the outcome hanging by both tabulation and litigation, which could be serious in Pennsylvania. Michigan is also of concern due to its 1,600 districts with different systems. Wisconsin and Nevada will process record numbers of mail ballots with untested systems. Nevada has rejected demands for added standards to count ballots that could spark challenges over potential voter fraud. Such challenges can force recounts, the process that slowed states like Florida in 2000.
The problem is that the states must send certified results to Congress in five weeks. There is a chance that challenges could delay submissions, or that states could send two sets of electors as a result of disputed results. Congress would have to select between those conflicting sets or perhaps disregard submissions. There is also a chance that neither candidate will secure 270 electoral votes, which leads to a dangerous battle.
Much of the litigation will not be to ensure a clear majority but to reduce the margin for either party. If a party can toss out enough ballots or force enough of its own votes to be counted, it is possible to cut challenges in arguing that, even if successful, they will not alter the outcome. Trump declared that “as soon as that election is over, we are going in with our lawyers.” But that is not necessary since they are already there.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.