Though Joe Biden is projected to be the next president of the United States, the margins are close in several states and questions remain as to whether this election might still be decided in the courts. Given the current margins in Nevada, Arizona, Georgia and Pennsylvania, the President will need to win legal challenges that result in him winning the vote in Pennsylvania and at least one other state.
It’s important to note that the media projections announcing Joe Biden is the President-Elect are just that: projections. Until the results are certified and the electoral college meets, no one has won. This is why President Trump and the Trump campaign have filed several lawsuits and state that they will continue to file actions in courts across the country.
President Trump has repeatedly tweeted that his campaign and the Republican party will litigate the election outcome, and cases have already been filed by the Republican National Committee, local Republican parties and candidates, and President Trump’s campaign in Pennsylvania, Nevada, Michigan, Georgia and Arizona. With the exception of the newly filed case in Arizona (filed on Saturday night), the cases that have been filed so far have been dismissed for lack or evidence or, at best, had limited procedural impact. So far, it doesn’t appear that we are on track to experience a second Bush v. Gore where the Supreme Court decides or impacts the outcome of the election. This is mostly due to Joe Biden’s growing margin in the vote count in Pennsylvania, which is the most likely state to play the role Florida did in 2000.
Pennsylvania
Without question, Pennsylvania is the biggest source of election-related litigation. Some of this litigation relates to statewide issues while the balance relates specifically to Philadelphia County. It is important to understand that until this year, mail in ballots in Pennsylvania were limited to those who could not vote in person on election day, and the legislative process to allow for mail in ballots was politically fraught and somewhat rushed, leading to a lot of questions about how to interpret the laws and regulations. These issues were not litigated or challenged in the primary, so we have little guidance on how courts will interpret these new rules.
There are three main cases in Pennsylvania. They relate to election observers, late arriving ballots and curing issues with mail in ballots. It seems unlikely that the last could have an impact on the election due to the presumably small number of ballots at issue, but the first is an issue that is being raised across the country. It’s not clear, however, what remedy the Trump campaign could ask for with regard to observers not having “meaningful access” in terms of getting ballots disqualified that have already been counted.
How much access should poll observers have? (Pennsylvania Supreme Court and US District Court for the Eastern District of Pennsylvania)
Pennsylvania, like other states, allows both parties and representatives of the candidates to observe the voting process and the counting of votes. However, due to the coronavirus pandemic and the massive volume of mail in votes in Philadelphia County (an estimated 350,000 ballots were received before election day), observers were limited in terms of the location that they could observe from.
It’s not clear under Pennsylvania law what challenges an observer could make to an absentee ballot. This is, in part, due to the new changes to the Pennsylvania election code in 2020. Though Republican observers are asking to be close enough to see if signatures match, Pennsylvania does not allow mail in ballots to be disqualified purely because of a signature mismatch. However, if a voter failed to place their ballot inside a “secrecy” envelope (such a ballot is commonly referred to as a “naked ballot”) or improperly marked on the secrecy envelope, the mail in ballot cannot be counted. Presumably, this “naked ballot” challenge could be brought by an observer.
Republican observers argue that the distance they were being required to stand meant that they could not see the ballots well enough to challenge them. A trial court found in favor of the election board, but the state court of appeals ruled that observers must be allowed within six feet and otherwise adhere to COVID-19 safety protocols.
When the election board continued counting votes while reconfiguring the space to allow observers to come within six feet of workers, the Trump campaign filed an action in federal court to stop the count until the Pennsylvania appeals court order was being followed. According to a series of tweets from a journalist witnessing the hearing, Judge Paul Diamond (a George W. Bush appointee) took issue with the Trump campaign’s presentation of the facts:
Diamond: “I’m asking you as a member of the bar of this court: are people representing the Donald J Trump for president, representing the plaintiffs, in that room?”
Trump campaign lawyer: “Yes.”
Diamond: “I’m sorry, then what’s your problem?”
— kadhim (＾ｰ^)ノ (@kadhim) November 5, 2020
Ultimately, the parties agreed to a settlement that allowed 60 observers from each party to be present at the counting of mail in ballots. The issue of how close the observers could be was not addressed.
Can late-arriving mail-in ballots be counted? (Pennsylvania Supreme Court and US Supreme Court)
In Republican Party of Pennsylvania v. Boockvar, the issue is whether “late arriving ballots” – meaning ballots that were postmarked before election day that arrived after election day – can be counted. There is no regulation in Pennsylvania that relates to whether mail in ballots can be counted if they were received after election day. However, the Pennsylvania Secretary of State directed local boards of election to count ballots that arrived by the Friday after election day so long as they were postmarked by election day.
In late October, the Pennsylvania Supreme Court ruled that due to the coronavirus pandemic, delays in the US Postal Service delivery of ballots, and Pennsylvania’s state constitution’s provision that elections be “free and equal,” ballots that arrived by Friday, Nov. 6, 2020 that were postmarked by election day should be counted. Republicans appealed this decision to the US Supreme Court, arguing that the decision of the Pennsylvania Supreme Court unconstitutionally usurped the power of the legislature to set the rules for elections. The US Supreme Court declined to take up the case before the election in a 4-4 decision, leaving the Pennsylvania Supreme Court ruling in place.
The Pennsylvania Secretary of State has stated that all ballots that were received after election day are being segregated from mail in ballots received by election day. On Friday, November 6, the US Supreme Court required segregating these ballots in an order written by Justice Alito after Republicans said they didn’t believe that such segregation was happening (though no evidence was presented regarding this allegation). The order did not prevent these ballots from being counted, however, which Republicans did ask the Court to do. While this could be the biggest potential flashpoint of 2020 election litigation, Pennsylvania’s secretary of state has said that there probably aren’t enough of these late-arriving ballots to affect the final outcome of the presidential race in Pennsylvania.
The question of how to address these late arriving ballots is especially important given that the United States Postal Service initially ignored a federal judge’s order to sweep its facilities on election day to find ballots. The exact number of ballots that were not delivered on time is unknown, but is estimated to be approximately 5,000 ballots delivered on Wednesday and Thursday and another 1300 delivered on Friday. It is worth noting that in the primary in June of 2020 some 75,000 ballots arrived after election day that were post-marked by election day. Some of these ballots were counted as a result of orders from courts in counties where mail delays were particularly long, but these court orders were not challenged in June when they were issued.
If someone’s mail-in ballot was defective, could the voter be informed and vote provisionally? (Pennsylvania State Court)
In Pennsylvania, mail in ballots could not be processed in the “pre-canvass” until the morning on election day, which is why Pennsylvania is still counting the more than 2.5 million mail in ballots that were submitted. And because mail in ballots were historically only allowed due to unavailability of the voter, there are no rules relating to whether or not a voter can “cure” these defects.
Consequently, the Secretary of State of Pennsylvania told local election boards that if they noticed during their pre-canvass that a voter’s ballot would not be counted, they should inform the voter and the political parties so that the voter could vote via a provisional ballot. Republicans filed suit to prevent the counting of these provisional ballots as a violation of the election laws of Pennsylvania. On Friday, November 6, a trial court ruled partly in favor of the Republicans, ordering that this type of provisional ballot be preliminarily segregated while the counting continues of other unchallenged ballots.
There are a little over 100,000 provisional ballots statewide, according to Pennsylvania officials, but it is not clear how many of those provisional ballots are the result of notice to voters that their mail in ballots were deficient.
Georgia
On Thursday, Nov. 5, 2020, the Trump campaign filed a lawsuit in Chatham County alleging that an attorney observer witnessed late arriving or otherwise fraudulent ballots being added to the pool of to-be-counted mail in ballots that were being moved through the facility.
The Trump campaign asked for the counting to be stopped in Chatham County due to this report. However, the judge hearing the case denied the request and dismissed the case, finding that “there is no evidence that the ballots referenced in the petition were received after 7:00 p.m. on election day, thereby making those ballots invalid.” In coming to that decision, the judge reviewed the written petition of the Trump campaign as well as evidence presented at a hearing on the matter. The judge also found that “there is no evidence that the Chatham County Board of Elections or the Chatham County Board of Registrars has failed to comply with the law.” The Trump campaign has not appealed this decision.
Nevada
In Nevada, a lawsuit was brought in federal court to halt the counting of ballots in Clark County (Las Vegas) because of allegations that the signature verification software that the county uses is faulty and that an observer was not allowed enough access to the counting. This case was not brought by the Trump campaign, but instead by several individuals. Specifically, one voter claims that she was denied the opportunity to vote in person because Clark County records indicate she submitted a mail in ballot. According to Clark County election officials, their review indicates that the signatures are a match. They state that they offered the voter an opportunity to sign an affidavit that she hadn’t submitted the mail in ballot and vote in person, but she refused. This exchange happened nearly a week before election day.
The observer who claimed he wasn’t given meaningful access was allegedly attempting to film the ballot counting, which is not permitted, except by credentialed media observers.
The judge ruled against the plaintiffs, saying at the hearing that “I’m deciding that the plaintiffs have not come to the court at this point with sufficient legal showing and sufficient evidentiary basis.”
It’s important to know that the issue of the signature verification software was initially litigated before the election and a state court judge found that with the number of ballots cast in Clark County the signature matching process could not be completed in the statutory time frame provided for without using the software. That case is currently pending before the State Supreme Court.
Michigan
In Michigan, the Trump campaign requested that the counting of ballots be halted because one election observer alleged he was removed from the counting of absentee ballots, that a poll watcher was told by a poll worker that she was directed to change the date ballots were received, and that ballots left in drop boxes could not be counted until observers reviewed the video surveillance that was required on some, but not all, drop boxes.
The judge in the case denied the requests for four reasons. First, the observer who claimed to have been removed did not provide the name of the location he was removed from or the name of the election official who removed him, which the judge felt was not sufficient evidence to stop the counting of ballots. Second, the claim of altering ballot receipt dates was “inadmissible hearsay, within hearsay” and the name of the poll worker who allegedly was told to alter the dates was not provided. With regard to the video surveillance of drop boxes, the judge found that there was no authority for the judge to order the ballots be segregated nor did the observers have the legal right to review the surveillance footage for purposes of challenging ballots.
Finally, the judge found that the claims were moot. The suit wasn’t filed until almost 4 p.m. on Nov. 4, 2020, when 99% of ballots had been processed and counted – meaning that stopping the count was impossible.
Arizona
On Saturday evening, the Trump campaign and Arizona Republican Party filed a lawsuit against the Arizona Secretary of State and Elections Director of Maricopa County. The complaint requests that the court order ballots cast on election day be recounted as a result of allegations that poll workers gave voters incorrect advice and that the election not be certified until the recount is complete. Specifically, the complaint alleges that poll-workers failed to properly inform voters of the impact of a response on a voting machine that prompted the voter about “overvotes” on their ballots, and that as a result of the response by the voter, these votes were not counted. The complaint includes specific allegations from several observers, with one of the observers alleging that the “error” occurred at least 80 times in one precinct.
While the Secretary of State and Maricopa County Elections Department haven’t responded to the complaint as of this posting, a letter written to the Arizona Attorney General in response to related allegations can be viewed here on page 3. If the court does require Maricopa County to review the ballots to determine which ones experienced this overvote issue, it could delay results in Arizona significantly while the votes are retabulated and reviewed for this potential error. It’s unknown how many potential votes for the President or former Vice President Biden might have been impacted or whether there are enough to impact the outcome of the election. It’s impossible to predict the outcome of the case until Maricopa officials respond with more details on the total number of ballots scanned in precincts on election day in comparison to the total number of votes cast for one of the candidates.
Another Bush v. Gore?
What the claims will look like if and when lawsuits are filed on Monday by the Trump campaign aren’t clear. Based on statements from Rudy Giuliani, it appears that these lawsuits will focus on allegations of fraud and that hundreds of thousands of votes were processed with “insufficient” monitoring.
What’s inherently different about the current controversies and 2000 is that in Bush v. Gore, the litigation related to the re-counting of undisputedly validly cast ballots. The question wasn’t that the votes themselves were invalid, but how to count the infamous dimpled, pregnant and hanging chads and how long to allow a recount to go on. The claims that it appears the Trump campaign will be making would potentially invalidate whole swaths of what election officials have said are validly cast votes. It’s not clear what actions the Trump campaign could request, what remedies could be ordered and what evidence exists or would need to be presented to cause a court to make those orders. Nonetheless, the evidence would need to be overwhelming to erase the current margins that Joe Biden has in the vote counts in the states in question.
KJK’s attorneys continue to follow all election-related litigation and will provide updates and analysis as vote counting and certification continue. Please contact Jennifer Hart at jmh@kjk.com or 216.736.7208 or Brett Krantz at bk@kjk.com or 216.736.7238 with any questions.
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