Step Aside Election 2000: This Year's Election May Be The Most Litigated Yet
The night of Nov. 7, 2000, was cold and wet in Austin, Texas.
"Nobody cared," remembers Republican lawyer Ben Ginsberg, who worked for Texas Gov. George W. Bush's presidential campaign. "We had just won the presidency of the United States."
That excitement quickly evaporated. As the night stretched on, the race between Bush and Democratic nominee Al Gore tightened in Florida. The television networks revised their projections for Bush, deeming the contest too close to call. Before the election night was over, Gore withdrew his concession phone call.
"About 3:30 in the morning, the campaign chair came by my desk and said there's going to be a recount," Ginsberg says. "You'd better saddle everybody up. And so that's when the private planes got put into service, lawyers got recruited, phone calls went out."
Those lawyers on planes ended up in Florida, where Gore sued to force a recount in a few too-close-to-call counties. It was a five-week battle over the ballots, the rules, the law and the courts. A 5-4 decision at the Supreme Court effectively stopped the recount, paving the way for Bush's win.
"The level of litigation that took place in 2000 was unprecedented," Ginsberg says.
That word, unprecedented, gets used a lot when describing the 2000 election. But what was unprecedented two decades ago is starting to look quaint in 2020.
2020, election lawyers say, may be the most litigated election ever.
"Let this election not be close"
"I think it probably already has achieved that status," says Justin Riemer, chief counsel for the Republican National Committee. Riemer says the RNC and other party committees are already involved in more than 40 lawsuits.
"Dozens and dozens" of lawyers are at the ready, Riemer says, both in-house at the RNC and other party committees. Lawyers have also been retained around the country.
Democratic election lawyer Marc Elias, who is leading the Biden campaign's state-level fights over vote counts and ballot rules, says Democrats are also busy in court.
"We're litigating 30-plus lawsuits in 17 or 18 states," he says.
In 2000, lawyers and election officials endlessly examined and debated butterfly ballots and hanging chads to try to interpret the intentions of voters. Now, the legal arguments are more complex and center on the rules governing mail-in voting as states have expanded voting options to protect people from the spread of the coronavirus.
Hundreds of lawsuits are already swirling around mail-in voting as campaigns, parties and outside groups try to sort issues both basic and technical — questions such as must a ballot be received by or just postmarked by Election Day? Can states require a witness for a mail-in ballot? What standards are being used to judge a voter's signature? Can drop boxes be used to return ballots instead of relying on the U.S. Postal Service?
Ginsberg says ideally, campaigns and parties want the courts to weigh in on these questions now to minimize uncertainty in the days after the election.
For example, following litigation from the state Democratic Party, the Pennsylvania Supreme Court extended the deadline for mail-in ballots to be received as long as they are postmarked by Election Day.
In some states, such as Pennsylvania, mail ballots can't be opened until Election Day — meaning that the count won't likely be available on election night. Then, factor in the extended deadlines and potential litigation — and it's very possible key states will remain undecided for days after the election.
"What happens if it's a three- or a seven-day deadline, but a whole bunch of ballots arrive after that deadline through no fault of the voters themselves?" Ginsberg says. "That's an area that would be ripe for both litigation and putting off when you know the final results of an election."
Justin Levitt, a professor at Loyola Law School, has been tracking the number of pandemic-related voting lawsuits this year. He's logged 250 so far. Beyond mail voting, Levitt says there's litigation about in-person voting, too, such as how long polls will be open, how many polling places there will be and what safety measures will be taken. Then there's also litigation pushing back on pandemic voting measures — arguing election officials have gone too far in making adjustments due to the pandemic.
"I think that the lawyers and litigation, they're there to help resolve disputes," Levitt says. "It's actually much better that they're trying to resolve the disputes before they happen — that is, we'd much rather have the lawyers engaged, making sure the process is as fair as it can be before the election than trying to fight over rules of the game when the outcome is even more in question after the election. The election administrator's prayer is, dear Lord, let this election not be close. And I fully subscribe to that."
Republicans plan large-scale poll watching effort
Beyond the pandemic, there's another factor at play in 2020. The Republican Party is no longer bound by certain rules when it comes to poll watchers or so-called ballot security programs.
The RNC had been under a consent decree going back to the 1980s when Democrats accused it of violating the rights of Black and Latino voters. A court found Republicans had stationed off-duty police officers in some minority precincts and sent targeted mailings to minority voters warning about penalties for violating election laws.
A judge let the consent decree expire in 2018 — allowing the RNC to bolster voter fraud efforts and coordinate Election Day poll watching.
"The Democrats were able to have poll watchers there to document what happens if a precinct runs out of ballots, for example, or if there is a voting equipment breakdown or if they weren't using provisional ballots when they were supposed to," Riemer says. "Documenting that evidence is extremely important if there are questions after the election that lead to litigation or lead to a recount. And I compare it to, you know, a court case where one side is able to have all the evidence and the other side has none. How is that fair?"
The RNC says it's planning to recruit tens of thousands of poll watchers to observe ballot counting — especially mail ballots — at clerk's and registrar's offices in key states.
Elias, the Democratic election lawyer, says that's chilling.
"Under a president who is as hostile to voting and whose record on race is so poor, does anyone really believe that they are going to go out and go to the trouble to recruit 50,000 people to stand there like Boy Scouts and Girl Scouts just observing the election?" Elias asks.
Lessons from 2000
The expiration of the consent decree and the expected challenges to rules governing mail-in ballots — all of it means more legal challenges to the 2020 election. But there's another wild card: the president himself. President Trump has not clearly said he would accept the results of the election and has frequently made false claims about mail voting.
"We could have a situation where there is a large number of outstanding ballots on election night, but the president declares the election over, based on the in-person vote and either sows confusion and chaos as a result of that or even takes steps to try to prevent the counting of properly cast absentee ballots," says Dale Ho, director of the American Civil Liberties Union's Voting Rights Project.
The ACLU already has some 20 suits going in 16 states on coronavirus-related voting issues, and Ho says his office is busier than it's ever been. But he still fears the courts might not be a sufficient guardrail to prevent confusion in the days after the election. He worries the country did not learn the right lessons from the 2000 election.
"The lesson from Bush versus Gore should have gone well beyond voting machines to the notion that maybe, you know, we should have professionalized and nonpartisan election administration where all of the rules are agreed upon in advance to deal with whatever contingency might arise," Ho says.
"The secretary of state is still a partisan office in the state of Florida. We had secretaries of state in recent elections like Kansas two years ago, Georgia two years ago, overseeing their own elections. So I wish I could say that we took a lesson from Bush versus Gore to try to head off an analogous problem, but I don't think we have as a country, unfortunately."
Ginsberg, who had a front row seat to the 2000 election, sees an important distinction between legal remedies, such as court challenges and recounts, and questioning the validity of an election after all those efforts have played out. In a recent op-ed in The Washington Post, Ginsberg condemned Trump's suggestion that people vote twice and shot down the idea that voter fraud is widespread.
"The bedrock principle of the country, of the democracy, is the peaceful transfer of power based on the results of the election," he says. "So calling into doubt the results of an election beyond the contested recount procedures that are available in every state has a long-term detrimental effect on the country."
With unprecedented litigation and millions more ballots that need to be counted, there is a growing consensus that Americans might not know who won the presidency on election night.
But with a president who has a history of making false claims about mail-in voting, it may also mean an election fight not just waged in the courts, but also in the court of public opinion.
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