Roundup: Election Litigation
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Voting has virtually ended, but the election is far from over. Election lawsuits have sprung up all over the country in an effort to overturn the results of the election. Although lawsuits are common after any election, this election season’s lawsuits stand out for their number, scope, and political slant. Journalists need to understand election litigation in order to distinguish the important from the baseless and communicate clearly to their audiences during this chaotic time. With these needs in mind, we offer a comprehensive overview of the legal challenges currently taking place around the country.
Where Matters Stand
As Bloomberg reports, the Trump campaign has already filed lawsuits in five states in order to contest the results. Many of these long-shot lawsuits have already failed, notably in Pennsylvania, where experts called one lawsuit “dead on arrival.” Even though the Supreme Court seemed to side with Republicans during last-minute voting cases, as evidenced by Justice Brett Kavanaugh’s decision around mail-in voting in Wisconsin, so far, post-voting lawsuits are not going so well for Trump.
Trump has previously claimed that the courts will decide this election. Legal scholars, however, argue that the Supreme Court cannot decide the results of an election. Furthermore, even when the Supreme Court came close to doing so in the 2000 election, it resolved disputes in one state, and it sided with the declared results. In addition to these doubts, many experts also predict that the lawsuits themselves will not work. This is primarily due to the fact that the courts have found many of these lawsuits baseless.
What This Means
We can expect a litigation-fest to continue well into early December. Some experts consider the lawsuits part of a political strategy to promote the baseless view of a rigged election. Others wonder whether the lawsuits are a delay tactic designed to prevent states from meeting the Safe Harbor deadline. The main concern is that even if the courts throw out these lawsuits, the litigation will cause delays that will threaten whether or not state legislatures appoint electors in accordance with the popular vote. This in turn could undermine the election results as they stand. Experts also worry Trump campaign’s heavy litigation will weaken Americans’ faith in their electoral system.
Kinds of Litigation
The Republican party and the Trump campaign are litigating this election on two fronts: the courtrooms and the media. So far, the lawsuits they have brought do not concern one specific aspect of the election. Generally speaking, election litigation can either take the form of suits that allege wrongdoing or recounts. The GOP and Trump campaigns have brought both types of challenges in various states. Suits that allege wrongdoing, too, have covered a wide spectrum. For example, in Pennsylvania, one suit challenges the vote counting observer policies, and another challenges the legality of counting votes received after a certain deadline. There are many rules around elections. Any of those rules can provide an entry point for challenging the results of an election.
How This Litigation Plays Out
So far, we have seen not only the lawsuits discussed in Pennsylvania above, but other lawsuits like this one in Arizona regarding vote counting policies. What’s interesting to note here is that not every suit will be brought by the national GOP or the Trump campaign—local and state entities can bring the suits, too. Reporting on election litigation requires knowing who brings the suit, and what the objective of the suit is. In Georgia, for example, a massive recount is underway. This constitutes a legal challenge because the recount was not automatic under the law but rather was called for by the Secretary of State due to the margin.
What Comes Next
So far, the lawsuits and recounts have not had the effect intended by the GOP and Trump Campaign—to delegitimize the election. If anything, the litigation has underscored how unexpectedly smoothly this election went. Nevertheless, we can expect continued litigation, especially to cause more delays in results certification. We also encourage journalists to connect with election law experts in their states via our Trusted Expert Network. This diverse group of academics, journalists, technicians, and lawyers is at the ready to answer your most pressing questions.