Legal analysis for an election is often like doing a medical evaluation of a patient in full cardiac arrest while riding a rollercoaster. For a country on the edge over rioting and claims of coups, this is hardly an ideal condition for candid legal analysis. For those of us who covered 2000 and 2016, we tend to isolate controversies that can truly alter outcomes. It is a type of legal triage where issues in states such as New York or Louisiana are cast aside because they will not determine the winner. We instead focus on those “patients” whose status can be shifted with judicial review.
This election started with lots 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 challenges to reserve a way to attack results if a state proves to be a critical contest. Nevada, Michigan, and Pennsylvania are now emerging as candidates for challenges. The case law favors those states to defend local determinations, but there are challenges.
My selection of Nevada was based on three criteria. It faced a new system with ballots, there were late changes to standards or practices, and it was going to be close. It has all those conditions The spread in Nevada is a few thousand votes, and early objections to the tabulation are magnified. The most significant challenges focus on practices used in Las Vegas.
The Trump campaign said officials barred monitors to record objections to the handling of ballots. There were objections to using an optical scanner to validate the signatures as set with an insufficient level of discrimination. There are more specific challenges, like a lawsuit with the culinary union and the claim that its members from out of state voted in Nevada.
Further, new filings have been brought in Clark County where more than one million ballots were sent out. The cases seek images and procedures for mailed ballots. Nevada has the advantage with early rulings in favor of election officials. A challenge and partial recount in 2016 led to almost no shift in the count. But Nevada remains a powerful draw for litigation since the line for changing the outcome is close in terms of the margin.
Michigan was subject to a recount in 2016 due to the tight race between Donald Trump and Hillary Clinton. Detroit also has a checkered history of voting issues. In the primary election, there were numerous mismatched ballots, particularly in absentee precincts. Those problems were blamed on human error, and officials insisted that new electronic machines and better training would solve them. But the administration has now filed a challenge to the lack of access to the process and the ballots.
Michigan law makes it more difficult to challenge results. The recount in 2016 was halted after the petition from Green Party candidate Jill Stein. It led to an increase of about 100 votes for Clinton so it made no difference in the final outcome. While a recount could be launched if the margin is tight, Michigan law heavily favors the tabulation of local officials.
Pennsylvania remains a rich environment for challenges. Judicial changes ordered to the state law have raised fierce objections. The Supreme Court deadlocked when Chief Justice John Roberts voted along with his liberal colleagues, which allowed mailed ballots to continue. However, the legal can that Roberts kicked down the road could now come rattling back to a full steam bench with the addition of Justice Amy Coney Barrett.
The issues in Pennsylvania may involve mailed ballots without postmarks and the rejection of those with signature mismatches. There are lawsuits over officials “curing” defective ballots and letting ineligible voters fill out ballots, actions that could knock out small pockets which could change the results. But it is not clear how many ballots would be subject to such challenges or whether those numbers would alter the outcome.
States like Arizona, North Carolina, and Wisconsin also have challenges. Yet there remains considerable doubt over whether the challenges could flip these states. The most promising challenges are where thousands of ballots could be tossed out based on the time of receipt or the tabulation standards. Three additional lawsuits filed by the Trump campaign the day after the election in Georgia, Michigan, and Pennsylvania seek access for the scrutinized observation of the process for counting ballots.
However, most previous challenges in these states have not yielded any significant shifting or negation of ballots. That marks the difference with Florida in 2000, where thousands of ballots literally hung by a chad and the intent of the people faced challenges due to the terrible “butterfly” design that seemed to confuse elderly voters across the state.
Each election tends to fuel its own challenges. This time, some machines had trouble reading ballots due to the hand sanitizer residue left by many voters. Yet these current challenges will mostly focus on technical mailing and tabulation systems, issues where states receive great deference. The potential effect will depend on how close the margin is. This is a national contest that clearly works by inches rather than feet of progress.
This is no way to hold an election. After the disaster of 2000, I called for Congress to use federal funds to force uniform standards for the country. Instead, Washington did what it always does, creating a commission that lasted two years and then billions of dollars were tossed out faster than a hanging chad. Yet we still run into election debacles every time. 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.