Holding a national general election during a pandemic would be difficult in the best of circumstances.
Add to the mix a President who constantly makes baseless claims about voter fraud and an increasingly well-funded conservative legal apparatus that appears willing to embrace those allegations in court, and you have a recipe for chaos.
The concoction has election law experts and voter advocates thinking through all the different ways the ongoing court battles over voting during the outbreak could play out in November after the election — including the potential for a redux of the Bush v. Gore saga of 2000.
Several election lawyers believed it was still unlikely that the final result would culminate in a Supreme Court intervention, even as President Trump is almost guaranteed to lob claims of voter fraud if he loses.
But in North Carolina, where Republicans attempted to challenge the 2016 election that threw Gov. Pat McCrory (R) out of office, voting rights advocates see signs that the playbook could be run again if the 2020 results are close.
“I definitely am getting the sense that the groundwork is getting laid,” said Allison Riggs, a North Carolina-based attorney who leads the voting rights program at Southern Coalition for Social Justice. Her group’s scenario-planning for a post-election legal mess began prior to the COVID-10 outbreak, she said. But the pandemic — and how some have responded to it — have added to the concerns.
“They’re starting to talk about ‘ineligible voters’ and ‘uncertainty’ and ‘participation’,” she said. “And particularly, participation looks a little different this year than it has in previous years because of COVID-19, that’s totally reasonable and expected. And I can also picture them saying, ‘Well look at these irregularities.’”
Before the coronavirus hit the U.S. in earnest, lawyers with ties to the President were already threatening North Carolina and a handful of other states with lawsuits. They have since rushed to court to oppose efforts to open up vote by mail — a method of casting ballots that will be crucial to a functional election this year — despite traditional GOP support for the practice, as captured by a Washington Post report last week.
Their tactics have often resembled those previously employed by fringier conservative groups, who so far have had little success in convincing courts of their claims. While Republicans and conservatives groups have won out in some of the legal fights over pandemic voting, the more aggressive and outlandish voter fraud claims have so far been rejected in court.
Whether those claims gain traction — in litigation before or after the election — remains to be seen. But even if unsuccessful, they could kick up some serious dirt as results come in.
“The fact that you could have 50-80 million mail ballots cast this election … there’s a lot of controversy that can result when different people are challenging the signatures that appear on mail ballots, for example,” said Nate Persily, a Stanford Law School professor who is co-directing a project to study the lessons for voting in a pandemic that emerge from this year’s primary elections.
“If there is a scorched-earth policy by litigators in the period immediately following Election Day when the votes are counted,” he continued, “there’s a lot of friction they can add to the system, which will make it difficult to count votes in a reasonable period of time.”
‘Testing The Waters’
While the coronavirus outbreak is presenting new challenges to election administrators, the precedent for using fraud claims to wreak havoc after an election stretches back to pre-pandemic times.
In the McCrory episode, Republicans seized on a delay in counting ballots in one Democratic county to allege a “troubling” “mishandling” of the election. They also raised doubts about the way provisional votes were counted, while challenging the ballots of hundreds of voters and demanding a recount. McCrory’s legal team now faces a defamation lawsuit for the allegations it pushed against several voters.
Riggs raised concerns about measures that had been attached to a pandemic voting bill moving through the North Carolina statehouse. Among the provisions is a requirement that certain provisional voting data be reported almost immediately by election officials. Riggs said the type of provisional data being rushed out under the measure is “meaningless,” while speculating that it could be used as part of a larger “strategy to suggest irregularities.”
“What I think they’re doing is sort of testing the waters and trying to perfect some strategy for what are their legal options if they don’t like the outcome,” Riggs said, pointing to the McCrory episode as well as the claims of voter fraud the briefly arose in the 2019 Kentucky gubernatorial election. Upon his defeat in that race, GOP incumbent Gov. Matt Bevins suggested that there were “irregularities” in the election, while he held off conceding and demanded a recanvass.
The claims were roundly rejected as he failed to produce evidence to back them. The refusal by even Republican election officials to go along with Bevins’ unfounded allegations is a positive sign for 2020, according to Justin Levitt, a Loyola-Marymount election law professor who worked in President Obama’s Justice Department.
“It actually showed that when an election is clean, legit clean, there can be bipartisan resistance to unsubstantiated claims of fraud,” Levitt said, comparing the response to the pushback that Trump received for his claims of mass fraud in the 2016 election. “Although there were some notorious officials later given a national commission who validated the President’s claims, the actual people in charge of the elections, Republican and Democrat, said, ‘No, Mr. President. It turns out you won a clean election.’”
‘An Incentive to Create a Fog of Uncertainty’
Even without the interference of bad actors, the pandemic stands to ratchet up the legal fights around voting. The probability of a court fight ultimately determining the result of the election is very low, said Ned Foley, the director of the Election Law program at The Ohio State University. But the risk of post-election litigation “is significantly higher,” he said, a prediction partly driven by larger trends in voting law and partly due to the unique circumstances the pandemic is bringing to voting.
“There is, to my mind, two main capacity questions where the system is being stressed that could potentially give ground for litigation,” Foley said. The first is the drastic reduction in polling places that seems likely due to COVID-19, as election officials struggle to find poll workers (who tend to be older) to staff voting sites or locations to host ballot-casting.
The second pressure point is difficulties election officials have in dealing with a surge in absentee voting, particularly when it appears that absentee voters did not receive their ballots in time to vote. Already there was a big court fight over this issue in Wisconsin, while in Pennsylvania, Gov. Tom Wolf (D-PA) tweaked the rules last minute around the deadlines.
Republicans questioned Wolf’s move but ultimately did not challenge it in court — perhaps because there were not any races on last week’s ballots that warranted the legal fight. But had the stakes been higher, or if he had not issued the order to the dismay or Democrats, it could have erupted in a court battle, Foley said.
That chaos will play out while partisans have “an incentive to create a fog of uncertainty, if you’re afraid that the results may not be as attractive,” Foley said, calling the tactic a “pre-2020 phenomena” that at times has been adopted by both parties.
“They’re going to try to spin the reality in order to tread waters as long as they can. And to the extent that filing a lawsuit might help them do that, they certainly might do that.”