Below is my column in the Hill on continuing controversies over vote counting in states like Nevada and Pennsylvania. Some of these challenges are based on the resistance to monitors and observers in states like Pennsylvania. It is mystifying why Pennsylvania is fighting so hard against such access. The litigation is only fueling suspicions of wrongdoing as the vote balance shifts dramatically. The problem is that a court could ultimately agree that the officials violated state laws but declare such challenges as effectively moot since the vote counting is largely completed. For other challenges, the litigants will need to convince a court that the number of impacted ballots could be “outcome determinative” for the electoral votes. Otherwise, it could be treated as immaterial to the outcome. Those challenges need to be made and supported without delay. Time works to the advantage of the party protecting a lead. As it stands, the allegations of systemic violations is still to be made by the Trump campaign. Absent real evidence, Joe Biden has a clear path to 270 electoral votes and the White House.
Here is the column:
Legal analysis in a presidential election is often like doing a medical evaluation of a patient in full cardiac arrest while riding a moving roller coaster. For a country on the edge about rioting and claims of unfolding “coups,” this is hardly an ideal condition for dispassionate legal analysis.
For those of us who covered the elections of 2000 and 2016, we tend to quickly isolate those controversies that can actually alter outcomes as opposed to less impactful controversies in various states. It is a type of legal triage: Irregularities in states like New York or Louisiana are cast aside because they will not be “determinative.” Instead, we focus on those “patients” whose status can be changed through judicial review.
We started Election Day with an unusually high level of litigation, including cases that made it to the Supreme Court. More than 300 lawsuits have been filed in dozens of states. Many of these are “placeholder” challenges, to reserve a way to attack results if a given state proves to be a key contest. Three states are now emerging as candidates for challenges: Nevada, Michigan and Pennsylvania. The case law favors those states in defending their local determinations, but valid challenges already were working through the courts.
My selection of Nevada was based on three key criteria. It was facing new and unprecedented systems for voting, there were late changes to standards or practices, and it was going to be close. It has fulfilled all of those legal triage conditions The spread in Nevada is currently a few thousand votes, and early objections to the voting tabulation will now be magnified. The most significant challenges focus on the practices used in Las Vegas.
Before Election Day, Trump campaign chairman for Nevada, Adam Laxalt, objected that Las Vegas officials were barring monitors to allow recording objections to the handling of ballots. There also was a challenge to the use of an optical scanning machine to validate voter signatures as being set with an insufficient level of discrimination. And there are more specific challenges, like a lawsuit focusing on the culinary union and the claim that its members who lived out of state voted in the swing state.
New filings have been brought in Clark County where more than 1.2 million ballots were sent out to voters, or 71 percent of all votes statewide. The new filings have been brought to demand images and mail-in ballot procedures. Nevada has the advantage with early rulings in favor of election officials. Moreover, a challenge and partial recount in 2016 led to virtually no change in the vote count. However, Nevada remains a powerful draw for litigation since the line for flipping the outcome is closest in terms of the margin.
Michigan was subjected to a recount in the last presidential election due to the closeness of the vote between Trump and Hillary Clinton. Detroit has a long, checkered history of voting irregularities. In the primary, there were a large number of mismatched ballots, particularly in absentee precincts; those problems were blamed on “human error,” and officials insisted that new electronic ballot tabulators and better training would address the problem. But the administration has filed a challenge to the lack of access given to the process and the ballots.
Michigan’s law makes it more difficult to challenge results. The recount in Michigan in 2016 was halted under that law after being started at the request of Green Party candidate Jill Stein. The result was a gain of only 102 votes for Clinton. While a recount could be launched if the margin is tight, Michigan’s law heavily favors the tabulations of local officials.
Pennsylvania remains a target-rich environment for challenges. Judicial changes ordered to the state’s election laws have raised fierce opposition, including state and federal constitutional claims. This issue went to the Supreme Court which deadlocked when Chief Justice John Roberts voted with his liberal colleagues, which left a lower court order unchanged, and the balloting continued. Yet the legal can that Roberts kicked down the road could now come rattling back to a court at full strength with the addition of Justice Amy Coney Barrett.
Issues in Pennsylvania could involve ballots with no postmarks (which the state supreme court ruled must be counted) and the rejection of signature mismatches as a basis for nullifying ballots. There are new lawsuits over officials “curing” defective ballots and allowing disqualified voters to fill out ballots, actions that could knock out small pockets of votes which together could have an impact. However, it is not clear how many ballots would be subject to such challenges or whether those numbers would alter the outcome.
Other states like Arizona, North Carolina, and Wisconsin have challenges that are filed. However, there remains considerable question about whether such challenges could flip the states. The most promising challenges are categorical, where thousands of ballots could be rejected based on the time of their receipt or the standards used in their tabulations. Three additional lawsuits filed by the Trump campaign the day after the election in Pennsylvania, Michigan and Georgia seek access for close observation of ballot counting, a claim more likely to delay than determine the outcome.
Most past challenges in these states have not yielded significant flipping or negation of votes, however. That is the difference with Florida in 2000, where thousands of votes literally hung by a chad and voters’ intent was challengeable due to a moronically designed “butterfly” ballot that seemed to confuse elderly voters.
Each election tends to produce its own unique challenges. This time, some machines had trouble reading ballots due to the hand-sanitizer residue left by many voters. (We might have expected puerile challenges, but not Purell challenges.) Yet the current challenges will largely focus on technical mailing and tabulating systems, issues where states receive great deference. The potential impact will depend on the narrowness of the margin. This is a contest that works by inches, not feet, of progress.
One thing, however, is abundantly clear: This is no way for any developed nation to hold elections. After the divisive 2000 election, I called for Congress to use federal funding to force uniformity in election laws and standards. Instead, Washington did what it always does. It created a commission that took two years and resulted in the Help America Vote Act which meant helping local politicians to billions in federal funds. A couple billion dollars was tossed out faster than a Dade County hanging chad. Each year, we have dysfunctional elections and a lack of uniformity despite billions in federal funding. As Dolly Parton once said, “It costs a lot of money to look this cheap.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.