AP

Election Day shadowed by threats of legal challenges

Nov 3, 2020, 6:00 AM

Election officials sort absentee and early voting ballots for counting inside Boston City Hall, Mon...

Election officials sort absentee and early voting ballots for counting inside Boston City Hall, Monday, Nov. 2, 2020, in Boston. (AP Photo/Elise Amendola)

(AP Photo/Elise Amendola)

WASHINGTON (AP) — Even before Election Day, the 2020 race was the most litigated in memory. And there will likely be more.

The candidates and parties have enlisted prominent lawyers with ties to Democratic and Republican administrations should that litigation take on a new urgency if a narrow margin in a battleground state becomes the difference between another four years for Trump or a Joe Biden administration.

Since the 2000 presidential election, which was ultimately decided by the Supreme Court, both parties have enlisted legal teams to prepare for the unlikely event that voting wouldn’t settle the contest. But this year, there is a near presumption that legal fights will ensue and that only a definitive outcome is likely to forestall them.

A Pennsylvania case at the Supreme Court pits Donald Verrilli, who was President Barack Obama’s top Supreme Court lawyer, against John Gore, a onetime high-ranking Trump Justice Department official.

Trump said this weekend he was headed to court to prevent Pennsylvania from counting mailed ballots that are received in the three days after the election. An extension was ordered by Pennsylvania’s top court. The Supreme Court left that order in place in response to a Republican effort to block it.

The president has voiced he is unhappy over the decision, even though Pennsylvania will keep those ballots separate from the rest in case of renewed court interest. He spent much of his final days of campaigning railing against it, often employing inaccurate characterizations of the decision as allowing “rampant and unchecked cheating” as well as undermining the law and including street violence. No evidence supports that view.

On Sunday, Trump said that as soon as the polls close, “We’re going in with our lawyers.”

Aside from what Trump’s telegraphed, though, it’s not clear what other issues may emerge as voters cast their ballots Tuesday, especially since early voting numbers have already eclipsed 2016 figures.

There’s already been roughly 300 lawsuits over the election filed in dozens of states across the country, many involving changes to normal procedures because of the coronavirus pandemic, which has killed more than 230,000 people in the U.S. and sickened more than 9 million. Legal battles ensued over signature matches, drop boxes and secrecy envelopes.

Like Pennsylvania, North Carolina also has seen a court fight between Democrats who support extending the deadline for absentee ballots and Republicans who oppose it. The six-day extension was approved by a state court.

In Minnesota, late-arriving ballots also will be segregated from the rest of the vote because of ongoing legal proceedings, under a federal appeals court order.

Republican lawsuits have also challenged local decisions that could take on national significance in a close election.

In Texas, Republicans asked state and federal courts to order election officials in the Houston area not to count ballots dropped off at drive-in locations. The Texas Supreme Court on Sunday denied the GOP’s plea. On Monday, a federal judge also turned away the effort to invalidate the nearly 127,000 votes. Appeals were planned.

In Nevada, a state court judge rejected a bid by the Trump campaign and state Republicans to stop the count of mail-in ballots in Las Vegas, the state’s most populous and Democratic-leaning county, though an appeal to the state Supreme Court is being considered.

Most of the potential legal challenges are likely to stem from the huge increase in absentee balloting brought on by the pandemic. In Pennsylvania, elections officials won’t start processing those ballots until Election Day, and some counties have said they won’t begin counting those votes until the following day. Mailed ballots that don’t come inside a secrecy envelope have to be discarded, under a state Supreme Court ruling.

“I still can’t figure how counting and verifying absentee ballots is going to go in some of the battleground states like Pennsylvania,” said Ohio State University law professor Edward Foley, an election law expert.

Trump’s threat of legal action comes as he has been delivering a chaotic closing message during the waning days of the campaign as he lags behind Biden nationally and by narrow margins in key states. The president has made a flurry of last-minute campaign stops trying to hold onto states he won in 2016, including Pennsylvania, Florida and North Carolina.

Over the weekend, he railed against absentee ballots, frustrated by a Supreme Court ruling that didn’t deliver a clear GOP win, continuing a monthslong push to sow unfounded doubt about potential voter fraud.

But several conservative justices indicated they’d be open to taking the issue up after the election, especially if those late-arriving ballots could mean the difference in the state.

The legal issue is whether the extension ordered by the Pennsylvania Supreme Court, relying on voter protections in the Pennsylvania constitution, violated the U.S. Constitution. The argument advanced by Republicans is that the Constitution gives state legislatures — not state courts — the power to decide how electoral votes are awarded, including whether absentee ballots received after Election Day can be counted.

Roughly 20 states allow for late-arriving ballots, but Pennsylvania’s Republican-controlled legislature did not authorize an extension, even with the huge increase in mailed ballots because of the coronavirus pandemic.

The Supreme Court generally does not second guess state courts when they rely on their own constitutions. But Democrats were alarmed by Justice Brett Kavanaugh’s reference to the court’s 2000 Bush v. Gore decision that effectively decided the presidential election in favor of George W. Bush. Although it was not the majority opinion in the case, an opinion joined by three conservative justices in 2000 would have ruled for Bush because the Florida Supreme Court’s recount order usurped the legislature’s authority.

The Supreme Court has never cited Bush v. Gore as the basis for a decision of the court. Kavanaugh is one of three justices who worked for Bush in the Florida case 20 years ago. Chief Justice John Roberts and new Justice Amy Coney Barrett are the others.

We want to hear from you.

Have a story idea or tip? Send it to the KSL NewsRadio team here.

AP

Republican presidential candidate former President Donald Trump speaks at a primary election night ...

MEG KINNARD and WILL WEISSERT Associated Press

Trump wins South Carolina, easily beating Haley in her home state and closing in on GOP nomination

Donald Trump won South Carolina's Republican primary on Saturday further consolidating his path to a third straight GOP nomination.

2 days ago

Hannah Gutierrez-Reed, center, sits with her attorney Jason Bowles, left, during the first day of t...

MORGAN LEE Associate Press

Negligence or scapegoating? Trial of ‘Rust’ armorer begins in fatal shooting by Alec Baldwin

Prosecutors sought to pin blame on a movie weapons supervisor for bringing live ammunition on set that contributed to the fatal shooting of a cinematographer by Alec Baldwin during production of the film "Rust."

3 days ago

A pail rests next to caution tape on a beach in Lauderdale-by-the-Sea, Fla., on Tuesday, Feb. 20, 2...

Associated Press

Young girl killed when a hole she dug in the sand collapsed on a Florida beach, authorities said

A young girl died Tuesday when a deep hole she was digging collapsed on her at a south Florida beach, authorities said.

5 days ago

A Gila monster is displayed at the Woodland Park Zoo in Seattle, Dec. 14, 2018....

MEAD GRUVER Associated Press

A Colorado man is dead after a pet Gila monster bite

A Colorado man has died after being bitten by his pet Gila monster in what would be a rare death if the creature's venom was the cause.

5 days ago

Visitors stand at the closed gates leading to the Eiffel Tower, Tuesday, Feb. 20, 2024 in Paris....

OLEG CETINIC Associated Press

Eiffel Tower operator warns the landmark is closed as strike turns visitors away for a second day

A strike at the Eiffel Tower over poor financial management turned away visitors on Tuesday for the second consecutive day.

6 days ago

capitol one building...

KEN SWEET AP Business Writer

Capital One to buy Discover for $35 billion in deal that combines major US credit card companies

Capital One Financial is buying Discover Financial Services for $35 billion, in a deal that would bring together two of the nation's biggest lenders and credit card issuers.

6 days ago

Sponsored Articles

Mother and cute toddler child in a little fancy wooden cottage, reading a book, drinking tea and en...

Visit Bear Lake

How to find the best winter lodging in Bear Lake, Utah

Winter lodging in Bear Lake can be more limited than in the summer, but with some careful planning you can easily book your next winter trip.

Happy family in winter clothing at the ski resort, winter time, watching at mountains in front of t...

Visit Bear Lake

Ski more for less: Affordable ski resorts near Bear Lake, Utah

Plan your perfect ski getaway in Bear Lake this winter, with pristine slopes, affordable tickets, and breathtaking scenery.

front of the Butch Cassidy museum with a man in a cowboy hat standing in the doorway...

Bear Lake Convention and Visitors Bureau

Looking Back: The History of Bear Lake

The history of Bear Lake is full of fascinating stories. At over 250,000 years old, the lake has seen generations of people visit its shores.

silhouette of a family looking over a lake with a bird in the top corner flying...

Bear Lake Convention and Visitors Bureau

8 Fun Activities To Do in Bear Lake Without Getting in the Water

Bear Lake offers plenty of activities for the whole family to enjoy without having to get in the water. Catch 8 of our favorite activities.

Wellsville Mountains in the spring with a pond in the foreground...

Wasatch Property Management

Advantages of Renting Over Owning a Home

Renting allows you to enjoy luxury amenities and low maintenance without the long-term commitment and responsibilities of owning a home.

Clouds over a red rock vista in Hurricane, Utah...

Wasatch Property Management

Why Southern Utah is a Retirement Paradise

Retirement in southern Utah offers plenty of cultural and recreational opportunities. Find out all that this region has to offer.

Election Day shadowed by threats of legal challenges