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With hundreds of attorneys, both Democrats and Republicans are contesting the election procedure and results in several indecisive states. But time is running out to resolve the dispute.
Poll workers count absentee votes. These are the target of complaints in many states.
The 2020 presidential election is much closer than Democrats expected. In several undecided states, the leading candidate only has an advantage of a few thousand votes. The tight results open the door to legal disputes.
Complaints about a new voting by mail regulation
In the run-up to the elections, both candidates had hired hundreds of lawyers to challenge the decisions whether the ballot papers of the different Member States were excluded or, according to their own interests, taken into account. Basically, this legal update is no longer unusual. Since the 2000 presidential election, which was ultimately decided by the Supreme Court, both candidates have always had legal equipment on hand in the unlikely event that the race is not clearly decided by the evening’s votes.
What is unusual this year, however, is the extent of the legal disputes. As of Nov. 3, more than 300 lawsuits were filed in dozens of states, the Associated Press reported. In most cases, these revolved around new regulations on voting by mail, which were justified by the crown pandemic. Many are still undecided. And by then it was becoming apparent that armies of lawyers would really need it, especially if the race was as close as it currently seems.
Since Wednesday night, the two election campaign teams have been fighting numerous court battles. In Pennsylvania, for example, they fought on Wednesday over preliminary and corrected ballots that were supposed to be declared invalid. In Georgia, where the president currently has a slight lead by several thousand votes, Trump’s lawyers questioned the validity of 53 vote-by-mail ballots. The example shows the minimum profit margins that both parties expect.
Also in Nevada, Trump’s team took legal action over the way ballots were counted in the largest, and mostly Democratic, county. An employee of Biden’s campaign staff told the New York Times: “We are prepared for all attempts to challenge Republicans in every state.”
At the same time, Trump’s lawyers continue with legal disputes that began before the election. In more than 40 disputes across the country, they argue that the voting measures enacted due to the coronavirus pandemic are unconstitutional and prone to fraud, an argument that would encourage a move to the Supreme Court. Furthermore, in some cases Trump’s lawyers criticize the fact that the new regulations were issued by governors and other officials and not by the parliaments of the member states, which is also contrary to the constitution.
Contradictory arguments
As is often the case, the Trump team’s arguments are contradictory. In Pennsylvania, for example, where the president leads easily, they want the counting process to be suspended immediately. In Arizona, however, where Trump is behind Biden, all remaining ballots must be awaited. Outwardly, the president was confident of victory Wednesday night, but behind the scenes his lawyers are desperately planning every move imaginable. Biden’s lawyers will not have to be accused of failing to fight for every vote.
As heartbreaking as some of the legal disputes may seem, they are partly understandable. In “Swing State” Wisconsin, for example, which the AP news agency awarded Biden on Wednesday, the Democrat currently has an advantage of about 20,000 votes, the equivalent of 0.6 percentage points. Under national law, the loser can challenge the result if the difference is less than 1 percentage point. So Trump’s lawyers were right when they asked for such a recount Wednesday.
In other cases, his lawyers appear to be shooting blind. They also filed a lawsuit in “Swing State” Michigan, demanding that ballot counting be stopped because Trump’s team was unable to monitor the process. Michigan authorities denied the allegations and, overnight, the status was awarded to Biden.
Focus on the Supreme Court
However, some legal disputes may not go to the lower courts. Trump announced on election night that the Supreme Court would decide the election. The Supreme Court only intervened if there was “a real basis for a lawsuit over enough ballots that could make a difference,” Edward Foley, a law professor at Ohio State University, told the Financial Times. It will take a few more days to see how the results will look. “We are only at the beginning.”
It could be exciting, for example, if the results in all the other “Battlefield States” were so close that disputed Pennsylvania decided the race. The supreme court of this member state recently decided that due to the crown pandemic, the ballots that were sealed on election day and that arrive at the voting table up to three days later can also be counted. The Pennsylvania Republican Party, among others, sued this decision and asked the Washington Supreme Court to issue a verdict. But the then eight judges had rejected this before election day, noting that the court did not decide any contingency, but only specific disputes. However, three conservative judges had already indicated at the time that they could accept the case if the postal votes received after Election Day were decisive for the entire presidential election.
This is exactly what Trump’s campaign staff are hoping for: In light of the recently enlarged conservative majority on the Supreme Court, the Trump team speculates that new Justice Amy Coney Barrett could declare those ballots invalid with a 5-4 decision and that Trump would win the election. On Wednesday, Trump’s campaign staff asked the Supreme Court to join the plaintiffs.
The clock is ticking
At the same time, time is short. Under the constitution, member states have around five weeks to determine which candidate has won the presidential election. This year, the so-called “Safe Harbor Deadline” falls on December 8. If they haven’t agreed on voters by then, Congress may decide not to consider those votes.
NZZ Live Event: Post-US Election – The Analysis
After the November 3 elections US correspondent Marie-Astrid Langer and foreign editor Meret Baumann put the situation in perspective and answer your questions. What factors led to this result? What will happen after the US elections?
Wednesday, November 11, 2020, 7:00 pm, online event
Tickets and more information can be found here.
