(CN) — “This will be a rigged election,” President Donald Trump tweeted in May.
The succinct and blunt prognostication is a piece of Trump’s attempt to cast doubt on the integrity of the upcoming presidential election in general while specifically focusing on mail-in ballots as susceptible to fraud.
His supporters say he is bringing much-needed attention to the problems with election integrity, while critics note Trump and his GOP colleagues have furnished scant evidence that ballot fraud is a problem in national elections and are intent on disenfranchising swaths of the population they view as hostile to their political agenda.
Regardless, the pitched rhetoric has led both parties to lawyer up to a large degree in anticipation of a bevy of lawsuits filed on and immediately after Election Day.
The Trump campaign has hired a phalanx of attorneys from three major law firms and dispatched them around the country, focusing their presence on 17 battleground states.
“The RNC and the Trump campaign are aggressively fighting back against the Democrats’ assault on the integrity of our elections,” said Ronna McDaniel, chairwoman of the RNC. “All across the country, Democrats are trying to use coronavirus and the courts to legalize ballot harvesting, implement a nationwide mail-in ballot system, and eliminate nearly every safeguard in our elections.”
The campaign formed a group called “Lawyers for Trump” presided over by Campaign General Counsel Matthew Morgan. Other lawyers involved in the effort include Texas Attorney General Ken Paxton and Arkansas Attorney General Leslie Rutledge, as well as California Committeewoman Harmeet Dhillon and former Deputy White House Counsel Stefan Passantino. Former Florida Attorney General Pam Bondi, a close ally of the president, and Trump’s personal attorney Rudy Guliani are also involved.
Meanwhile, Joe Biden has marshaled a legal team of his own, with Dana Remus serving as the campaign’s general counsel. Remus leads a team that includes Bob Bauer, the former White House counsel under Barack Obama and a pair of former solicitors general in Donald Verrilli and Walter Dellinger. Eric Holder, the former attorney general, is also involved.
Both sides are lawyering up in anticipation of a contested election that may hinge on court decisions determining the legitimacy of mail-in ballots or whether certain state restrictions are constitutionally viable.
Election integrity is such a difficult legal issue to parse because there is no federal program for conducting elections. Instead, national elections are conducted on a state-by-state basis. In many instances, election rules and regulations are even more granular with different counties maintaining election offices that may vary in how they perform their duties.
“There are 50 different sets of rules and even those are applied differently from locality to locality,” said James Sample, a law professor at Hofstra with a specialty in election law.
Bush v. Gore, the notorious Supreme Court case that decided the 2000 election, hinged on the legal question of whether different methods of counting votes in different counties was a constitutional violation.
While the outcome is a legally thorny issue, Sample says election law is not an arena for legal purists but is often dictated by partisans.
“This is not high-minded law so much as it’s about the application of partisan politics,” Sample said. “Large scale challenges to ballot validity are as much of a product of partisan politics and statistical probability as they are about an application of the law.”
As such, there is no body of case law that pertains precisely to absentee or mail-in ballot legitimacy. There are no cases where mail-in ballots have been discounted precisely because the votes were not cast at the polls.
“There are extraordinary cases under state law where there is a meltdown in an election and absentee ballots are discarded,” said Samuel Isaacharoff, a law professor with New York University. “The only one that comes to mind is the Miami mayoral election in which there was fraud established in the absentee ballots, and the ballots had been opened and could no longer be put back in the corresponding envelopes.”
The case referred to involved the election of Xavier Suarez as mayor of Miami, Florida in 1998. The incumbent mayor, Joe Carollo, sued saying absentee ballots had been manipulated and a state judge later investigated and found widespread fraud that was abetted by a poorly designed vote-counting system in Miami-Dade County.
The votes were discounted and the election was held over again.
But Isaacharoff noted that was a one-off case that depended on local variables.
“That is the only such case I know of, and it turned on court proof of fraud and the local nature of the election,” he said.
However, the rarity of this one incident nearly two decades ago has not dissuaded Trump and other Republican politicians from disseminating the notion that voter fraud is widespread throughout the United States.
Trump said his popular vote defeat to Hillary Clinton could be attributed to millions of illegally cast votes. He launched a voting-integrity commission that he claimed would unearth innumerable examples of voter fraud, but the commission came back empty-handed and was disbanded.
Nevertheless, the GOP legal apparatus has filed multiple challenges in states throughout the nation in the weeks leading up to the election.
Those legal efforts have mostly focused on challenging states increasing the availability of mail-in ballots and extending early voting in an effort to limit both. Those lawsuits have proved mostly futile thus far.
The Trump campaign sued the state of Nevada in federal court in August, alleging the state’s policy of mailing ballots directly to all registered voters in light of the coronavirus pandemic was unfair to the GOP because such a policy would confuse its voters.
U.S. District Judge James Mahan tossed the case, saying the GOP lacked standing because they failed to demonstrate how the ballots would specifically hurt Republican voters if the policy applied to all voters of all relevant parties.
He also called claims that mailing ballots to voters’ homes would necessarily lead to voter fraud “speculative and generalized.”
In Pennsylvania, U.S. District Judge Nicholas Ranjan, a Donald Trump appointee, threw a similar case out of court where Republican operatives attempted to prevent the state from using drop-boxes while calling into question its election security protocol.
Likewise, he said the plaintiffs lacked standing and offered speculation instead of concrete harm.
“While Plaintiffs may not need to prove actual voter fraud, they must at least prove that such fraud is ‘certainly impending,’” Ranjan wrote. “They haven’t met that burden. At most, they have pieced together a sequence of uncertain assumptions.”
But Sample said while the GOP might have difficulty in the months leading up to the election they may try their hand again after the votes have been cast.
“Federal litigation will be after the fact,” Sample said.
Then the matter of standing won’t be a significant hurdle, though the plaintiffs will be required to show concrete proof that fraud occurred to the detriment of a single party or candidate.
Some cases will proceed in the few remaining weeks before Election Day, with those focused on challenging state laws or state actions.
In Louisiana, the secretary of state attempted to shut down early voting and expansion of absentee ballot voting that had been authorized by the state Legislature due to the pandemic.
A federal judge blocked it.
“Strikingly absent is even a hint of fraud in the July and August primaries, where expanded mail voting was available to voters with COVID-19 comorbidities, caretakers, and others,” U.S. District Judge Shelly Dick wrote in her ruling.
Dick is an Obama-appointee notably, but a federal judge in Illinois appointed by Republican George W. Bush tossed a similar lawsuit on similar grounds.
U.S. District Judge Robert Dow said the Cook County Republican Party failed to show how expanded mail-in ballot voting favored one party over another.
“The Election Code does not permit just anyone to return the voter’s ballot,” the judge wrote. “And it certainly does not permit anyone to systematically collect but fail to submit Republican ballots.”
Most judges appointed by both parties have ruled against Republican attempts to restrict mail-in ballots or drop-off locations.
A notable exception is the attempt to force Wisconsin to extend its deadline for receiving mail-in ballots. A federal judge agreed to extend the deadline, but the Seventh Circuit stayed that extension and the plaintiffs are seeking relief from the U.S. Supreme Court. The case is pending.
“The last time this same issue was in front of the Supreme Court, the court granted the receipt deadline extension for the state’s April primary elections,” said Marc Elias, executive director of Democracy Docket, a plaintiff in the suit.
While federal judges have mostly repelled attempts to restrict vote-by-mail or drop-off boxes, those watching the election say the real flood of lawsuits may come after the votes are cast.
“There is a possibility that if the president is leading on Election Night, he may declare victory and attempt to prevent the counting of absolutely legitimate mail-in ballots,” Sample said.
It could also happen with more down-ballot races.
“You could see fights as Democrats do everything they can to get mail-in ballots fully counted and Republicans try to delay,” Sample said.
Much of these worries are contingent on Trump initially faring well on election night, which appears less and less plausible as national polls show Biden with a double-digit lead as the nation enters the final stretch.
Furthermore, the bipartisan judicial consensus thus far shows little appetite in the courts for rendering an expansion of mail-in ballots or drop-off boxes synonymous with fraud. To contest an election, plaintiffs will have to prove fraud occurred in certain instances, not simply speculate about its possibility.