Candidates from Alaska to Iowa are preparing legal teams in case tight election battles go into overtime, potentially prolonging the battle for Senate control indefinitely.
New voting laws in some states, razor-thin margins in others and high stakes nationwide have increased the likelihood of recounts and challenges that could drag on for weeks or even months.
It's a prospect that has both parties preparing for any contingency, mobilizing an army of staff and volunteers in their dozen top battleground states to watch for legal violations on Election Day and be prepared to fight legal battles afterwards.
With six of the GOP’s top-targeted races down to margins of less than a point, both parties say any state is ripe for a post-election legal battle. Marc Elias, national Democrats' go-to election lawyer, said he's gearing up for issues everywhere.
"I am prepared for any of the competitive states. I don't have the luxury of knowing whether it's gonna be a good night for the Democrats and therefore Kentucky and Georgia are close or a bad night and the close races are in Colorado and Iowa," he said.
The most pressing concerns for the parties are potential Election Day legal violations.
Rumors of planned voting fraud abound in the week leading up to it—Trading hamburgers for votes in Wisconsin’s gubernatorial race; poll watchers challenging the eligibility of every voter in Louisiana to cause huge lines; party operatives filling out and turning in mail ballots for dead voters in Colorado; misinformation intended to steer people to the wrong polling places in North Carolina and elsewhere.
While little, if any, tangible proof those misdeeds are underway has yet cropped up, both parties are preparing for all that and worse.
The Democratic National Committee has already deployed two dozen staffers to around two dozen states as part of its "Voter Expansion Project," an effort to ease access to the polls in part by trouble-shooting any last-minute issues on Election Day.
The party can alert voters via text message or email if issues crop up with their local polling places. It has data tools to monitor whether wait times and turnout are at their expected levels, and can dispatch staffers to investigate any irregularities. All of Democrats’ poll watching volunteers and staffers nationwide can share data with each other through a DNC tool meant to track issues and highlight potential trends.
"From here, and on the ground in the states' boiler rooms, we can monitor in real-time what's happening at the polls," said DNC spokesman Michael Czin. "We have as close to a 360-degree view of the electorate as possible."
On the GOP side, the National Republican Senatorial Committee has been gathering information concerning polling places, recount provisions and voting rules in 11 of its top battleground states. The Republican National Lawyers Association is training an army of 1,000 lawyers nationwide to tackle potential legal issues on Election Day and beyond.
In addition to the national armies, the state parties are gearing up.
The Louisiana Democratic Party will deploy 3,000 paid staffers to watch the polls on Election Day, working from 4 a.m. late into the night, and 5,000 more volunteers it expects on the ground that day. Party Executive Director Steven Handwerk called it “the largest voter protection program the state has ever seen in a statewide election.”
Handwerk said he's particularly concerned about a potential shortage of voting machines, as some are so old there are no longer replacement parts available if they break.
And some Louisiana Democrats have expressed concerns that GOP poll watchers could deliberately try to cause longer lines by challenging every voter that turns up at a polling place on Election Day, a possibility under the state’s loose election laws.
The Louisiana Republican Party has made it explicit to its volunteers, said executive director Jason Dore, that they shouldn't directly meddle with voters.
"We've told them they're there to observe, primarily, and report any issues they may see back to headquarters, and not to obstruct the voting process," he said.
In Colorado, the state Democratic Party has a hotline for voters to call staffed with legal experts to address any potential issues, and they're dispatching trained staff and volunteers day of to keep an eye on the polls.
State party chairman Rick Palacio noted that Sen. Michael BennetMichael Farrand BennetBuild Back Better Act must include funding to restore forests, make communities resilient and create jobs Interior reverses Trump, moves BLM headquarters back to DC Conservation group says it will only endorse Democrats who support .5T spending plan MORE (D-Colo.) only won his race by about 30,000 votes in 2010. Sen. Mark UdallMark Emery UdallKennedy apologizes for calling Haaland a 'whack job' OVERNIGHT ENERGY: Haaland courts moderates during tense confirmation hearing | GOP's Westerman looks to take on Democrats on climate change | White House urges passage of House public lands package Udalls: Haaland criticism motivated 'by something other than her record' MORE’s (D-Colo.) internal polls have recently showed him about tied with Rep. Cory GardnerCory GardnerProtecting the outdoors: Three cheers for America's best idea Ex-Sen. Cory Gardner joins lobbying firm Biden administration reverses Trump changes it says 'undermined' conservation program MORE (R ), and in case of a one-point race the difference could come down to as few as 10,000 votes in Colorado.
“This is going to be a close election for all of our statewides so if [fraud] happens. we're ready to address it,” Palacio said.
With Colorado voting under new election laws that ensure, for the first time, every registered voter receive a ballot in their mailbox, Palacio acknowledges there may be some confusion on Election Day. But Republicans have expressed greater concern over the prospect for voter fraud under the new laws, and have privately speculated the state’s gubernatorial and Senate races could be in for protracted legal battles.
Indeed, Mark Braden, a former chief counsel to the Republican National Committee, says laws like Colorado’s can actually contribute to the confusion that can spark recounts or at the very least cause ballot counting to drag out for days.
“All these ‘election reforms’ that have made it easier for people to vote have also made it tougher to count those ballots,” he said.
And the complicated counting is what turns Election Day legal battles into protracted legal wars.
Elias recounted the extreme case in Minnesota’s 2008 Senate race, where both parties battled in court for eight months until Sen. Al FrankenAlan (Al) Stuart FrankenAl Franken on another Senate run: 'I'm keeping my options open' Andrew Cuomo and the death of shame Could Andrew Cuomo — despite scandals — be re-elected because of Trump? MORE (D) was finally named the winner.
Many races, Braden warns, won't be called Tuesday night, and could drag into the weekend — or even weeks — following.
"On Election Night, the first thing to do is hopefully keep people from getting drunk. You celebrate too much, and then you realize that the results on television are not necessarily the final result," he said.
Iowa Republican Senate candidate Joni Ernst has hired a legal team in preparation for a potential recount, while both Sen. Kay HaganKay Ruthven HaganInfighting grips Nevada Democrats ahead of midterms Democrats, GOP face crowded primaries as party leaders lose control Biden's gun control push poses danger for midterms MORE (D ) and her GOP opponent, state House Speaker Thom Tillis, are preparing for potential legal battles.
With the entire nation — and, if a state's recount could tip the balance of the Senate, potentially the world — watching, such legal battles become stressful affairs, Braden said, noting at that point, everyone involved has been taxed nearly to their limits.
“Everyone’s using up all the money and all the energy and it sort of all runs out on Election Day,” he said. “No one’s prepared either financially, physically or emotionally for it to not be over that day.”