‘A Litigation Arms Race.’ Why The 2020 Election Could Come Down To The Courts

When Chief Justice John Roberts joined his three liberal colleagues on Monday to uphold Pennsylvania’s Supreme Court decision extending the deadline for accepting absentee ballots, Democrats were ecstatic. It was the third time Republicans had unsuccessfully attempted to limit mail-in voting in Pennsylvania, and the ruling will likely result in thousands more ballots being counted. That’s a big deal in the crucial swing state that President Donald Trump won by just over 44,000 votes four years ago.

But Democrats’ excitement was tempered by a lingering anxiety that their victory may be short-lived. The ruling remains in place only because the U.S. Supreme Court is deadlocked. With the Senate poised to confirm Trump nominee Judge Amy Coney Barrett as the ninth justice, Democrats are well aware that a similar decision, regarding Pennsylvania’s rules or any future election-related case, may not break in their favor.

“While this decision was a victory for democracy it was a disturbing reminder of what’s at stake if the Republicans have their way and fill this vacancy on the Supreme Court,” Democratic Senate Minority Whip Dick Durbin said on a phone call with reporters Wednesday. “With one more vote they would have succeeded [in halting the ruling]. With Amy Coney Barrett, they might have succeeded.”

This past year, Democratic and Republican lawyers have filed hundreds of election-related lawsuits in state and federal courts, putting this election on track to become the most litigated in history. One reason for the deluge is COVID-19, which compelled most states to expand access to absentee and mail-in voting, add ballot drop boxes, or tweak deadlines and other requirements. Nearly every time states have implemented a change, it’s been followed by a lawsuit. There have been at least 380 election-related lawsuits solely stemming from the pandemic, according to the Stanford-MIT Healthy Elections Project. In 2016, there were 337 lawsuits total, according to data compiled by Rick Hasen, a law professor at the University of California-Irvine. Ned Foley, an election law expert at Ohio State University, has described this year as “a litigation arms race.”

Pitched partisanship has become a hallmark of most of the on-going litigation. Democrats, usually joined by voting rights groups, are fighting to make it easier for voters to fill out and send in mail ballots; to expand the amount of time election officials have to count ballots; and to reduce the number of reasons that mail ballots can be thrown out. Republicans are pushing for the opposite. They argue that making it easier to apply for, vote, deliver, and count mail ballots facilitates fraud, thereby diluting the votes of those who play by the rules. So far, the rival teams appear to be in a dead heat. “Depending on the week, you may say it’s a very good Democratic week or a very good Republican week,” says Nathaniel Persily, a Stanford Law Professor.

The majority of cases grapple with mundane details, like voting deadlines and ballot envelopes, but taken together they carry outsized importance—and not just because they determine how many ballots get tallied and whose votes count in an election year defined by distrust of the electoral process. An NBC News/Surveymonkey poll this month found that just over half of Americans lacked confidence that this election will be conducted fairly. This is in no small part because of the President, who has insisted, without evidence, that there is widespread voter fraud; refused to commit to a peaceful transition of power; and suggested that the Senate has to move quickly to confirm Barrett, in case the election ends up before the Supreme Court.

If the final vote tally ends up being close, election experts say that both Democrats and Republicans will likely take the matter to court—increasing the possibility of another Bush v. Gore-style stand-off in which lawyers and judges, rather than the voters, ultimately determine the next President. Both sides see the stakes as so high, says Foley, that they are likely to “to try and fight over the outcome as long as they can.”

The litigation landscape

To the extent that it can be simplified, this year’s election-related legal brawls can be distilled into two groups: a push to eliminate expanded mail-in voting policies on the basis that they would produce unprecedented fraud, and a push to ease the restrictions already in place.

The first battle, waged by the Trump campaign and the Republican National Committee, has largely failed. Lawsuits on this theme filed in Montana, Nevada, New Jersey, and Pennsylvania were all dismissed because of a lack of evidence. In Pennsylvania, federal Judge J. Nicholas Ranjan, who was appointed by Trump, dismissed the Trump campaign’s case on the grounds that their allegations of fraud were “speculative”—the same word invoked by federal district Judge James C. Mahan, who was nominated by George W. Bush, in dismissing a similar case in Nevada. In Montana, federal district judge Dana Christensen described the Trump campaign’s fraud allegations as “a fiction.”

The second battle—the fight over the weedy regulations governing voting by mail—has had more grist. Democrats have banked key victories in lower courts, while Republicans have gotten at least half a dozen of these decisions either reversed on appeals or put on hold pending further consideration. “It’s not the score at the end of the first quarter that counts, and there is a lot of game left in most of these cases,” says an aide at the Republican National Committee.

Take, for example, a South Carolina case weighing a state regulation requiring those voting by mail to have a witness signature. The rule was waived during this year’s primary after Democrats challenged it in court. (The state legislature had left it intact). In late September, the Fourth Circuit Court of Appeals ruled that the provision should be eliminated for November, arguing that reinstating it would “unconstitutionally burden the fundamental right to vote.” Less than a week later, the U.S. Supreme Court reversed that decision. (The Court said the requirement did not apply to ballots that had already been mailed or would be received within two days of its ruling.) The decision marked a significant win for Republicans. On Wednesday, the Supreme Court overturned a federal district ruling in Alabama that would have allowed curbside voting, a practice where voters fill out their ballots in a vehicle and submit it to a poll worker.

Similar examples of litigation whiplash have played out across the country—each time banking a victory for the GOP. In Wisconsin, a federal appeals court reversed a lower court decision to extend the state’s voter registration and ballot receipt deadlines. In Georgia, a federal appeals court reversed a lower court decision to allow the state to count ballots received by November 6. And in Arizona, a federal appeals reversed a lower court decision extending the number of days voters had to fix missing signatures on their ballots. While not every lower court decision has been overturned, it’s a “pattern that’s starting to emerge,” says New York University Law Professor Rick Pildes.

Progressive watchdogs also point to another factor. Since taking office, Trump has appointed 53 appellate court judges, according to July data from the Pew Research Center, most of whom are reliably conservative and tend to sympathize with the Republicans’ legal positions. The two appellate judges who ruled to overturn the Georgia ballot receipt extension for instance, Britt C. Grant and Barbara Lagoa, were both nominated by Trump. (Lagoa was floated as a possible nominee to replace the late Supreme Court Justice Ruth Bader Ginsburg).

But it’s not clear cut along partisan lines. Judges nominated by Trump have ruled against the campaign, like Ranjan in Pennsylvania. And in several of these cases, dissenting judges, including those nominated by Republican presidents, have warned these decisions could disenfranchise voters. In Wisconsin, Judge Ilana Rovner, who was nominated by George H.W. Bush, wrote that as a result of her colleagues’ decision, “many thousands of Wisconsin citizens will lose their right to vote, despite doing everything they reasonably can to exercise it.”

Pildes says the spate of recent rulings and reversals has the effect of injecting uncertainty into an already-tense election. “If you’re telling voters on one day that absentee ballots have to be postmarked on such-and-such a day, and you’re telling them the next day it can be postmarked on this day, it gets very difficult to communicate a clear messages to voters so they understand what their rights are,” he says.

The battle to come

For both the Biden and Trump campaigns, the ideal scenario is for their respective candidates to win the popular vote and electoral college by such indisputable margins that post-Election Day litigation becomes moot. Current polling indicates it is much likelier for Biden to accomplish this objective than Trump. But polling suggests that there are plenty of ways that this one could be a squeaker. While Biden leads in national polls, the margins are much tighter in several swing states, and his campaign is openly saying the race is closer than the numbers indicate. “The closer the outcome, the easier it is to litigate,” says Foley, of Ohio State University.

Both Republicans and Democrats are actively preparing for the possibility of a pitched, multi-front court battle after Nov. 3. “We have been planning for any post-election litigation and recounts for well over a year and are extraordinarily well-positioned,” Justin Riemer, the Republican National Committee’s chief legal counsel said in a statement to TIME. “With the help of our national network of attorneys, the RNC has been beating the Democrats in court for the last several months and that will continue should they attempt to sue their way to victory in November.” The RNC also said they intend to train thousands of lawyers to handle litigation surrounding Election day, post-Election canvassing, and possible recounts. (The Trump campaign declined to comment when asked which lawyers would be involved; the RNC did not respond to a request for further comment.)

The Biden campaign is amassing its own team of lawyers—a force it describes as the largest election protection program in presidential campaign history. “We can and will be able to hold a free and fair election this November and we’re putting in place an unprecedented voter protection effort with thousands of lawyers and volunteers around the country to ensure that voting goes smoothly,” said Dana Remus, general counsel for the campaign, in a statement. The team, led by Remus, includes former Solicitors General Donald Verrilli and Walter Dellinger, and former Attorney General Eric Holder. Marc Elias, who has led the pre-election fight for Democrats, will run any post-Election Day legal contests over state vote counts.

Any post-Election Day litigation is most likely to involve swing states, crucial to determining the Electoral College winner, that end up having tight vote counts. Pennsylvania, Michigan, Wisconsin, Florida and North Carolina are all high on the list of possibilities, and top election officials in these states are girding for battle.

In Pennsylvania, Attorney General Josh Shapiro says his office has “a team of lawyers in place ready to beat back any attempt by the president and his enablers.” On Nov. 3, the office plans on deploying attorneys and investigators in every region of the state in anticipation of possible legal action regarding intimidation, interference or fraud.

But for now, all eyes are on Election Day. If one candidate wins in a landslide, all of this could be moot. “I tell the voters in Pennsylvania, ‘Ignore the noise, don’t worry about the lawsuits filed by the President – I’ve got your back,'” says Shapiro. “What you need to do is make a plan to vote.'”