Anticipating Litigation's Big Role In The 2020 Elections

Law360 (October 14, 2020, 5:38 PM EDT) --
Jeffrey Turner
Jeffrey Turner
Mitchell Berger
Mitchell Berger
Amol Naik
Amol Naik
As midnight approached on Nov. 8, 2016, and certainly as dawn broke on the East Coast, it had become apparent that Hillary Clinton would win the national popular vote but that Donald Trump would win the Electoral College vote to become the 45th U.S. president.

But when dawn breaks on Nov. 4 this year, will we know who will be sworn in as president on Jan. 20, 2021? And what impacts would any delay or ambiguity in the results of the election have on our economy and our democracy during a time of heightened partisan divisions and an ongoing global pandemic?

Both the mechanics of varying state election laws and the greatly increased use of mail-in voting make it quite likely there will be no clear winner on the day after the election, and perhaps for many days thereafter.

Although our country has proven to be remarkably resilient during election controversies determining past transfers of power, our current polarized environment may well lead to more turbulence and potentially widespread civil unrest. For the sake of our democracy, our economy and our need to meet the challenge of the COVID-19 pandemic, we nonetheless hope that our fellow citizens will know for certain by the time they gather for a meal of Thanksgiving who will swear to "preserve, protect and defend the Constitution of the United States" on Jan. 20.

Four major variables will continue to be at work to create uncertainty this year.

First is the effect of the COVID-19 pandemic on voting, which will continue to affect everything from the mechanics of in-person voting, to the processing of an unprecedented volume of votes cast by mail, to the demographics of who votes by each method.

The 2020 presidential election will likely see the highest percentage of early, in-person voting and the greatest use of the mail and collection boxes for citizens to cast their ballots in our history. But it won't be the first time one of the major parties has encouraged citizens to vote early.

In fact, the election of 1864 was the first to provide a widespread alternative to in-person voting, as President Abraham Lincoln sought to ensure that Union soldiers would be able to participate in the election. As he put it, "we can not have free government without elections; and if the rebellion could force us to forego, or postpone a national election it might fairly claim to have already conquered and ruined us."

Perhaps not surprisingly, the opposition Democratic party at the time warned of rampant fraud and "a scheme" by Lincoln's Republicans "to gain some great advantage to their party," as one state senator put it before the Wisconsin Legislature voted on party lines to become the first state to authorize absentee voting.

Second, a feature of the American federalist system is now on display. Fifty states and the District of Columbia are effectively administering 51 different elections, with their own rules and procedures for distributing ballots and counting votes in the upcoming presidential election. Add a slew of lawsuits to this vast web of differing rules, particularly in the contentious battleground states, and a full picture of the election law complexity emerges.

The third factor is the often misunderstood, but vitally important, way in which votes are counted in the Electoral College to determine who will serve as president and vice president. And potentially as significant this year will be the roles assigned the U.S. House of Representatives and the U.S. Senate if the Electoral College does not decide the election.

Finally, for the first time in our nation's history, a sitting president has publicly and repeatedly refused to commit to accepting a peaceful transfer of power, which led the Senate to unanimously adopt a resolution reaffirming this core principle of our democracy and Senate Majority Leader Mitch McConnell to tweet: "The winner of the November 3rd election will be inaugurated on January 20th. There will be an orderly transition just as there has been every four years since 1792."

We describe below how ongoing and potential future litigation could affect the outcome. In our view, litigation already underway will have at least as great an impact on the outcome as the anticipated litigation on and after election day.

Courts already are ruling on issues ranging from the number and location of ballot drop boxes to the end date for receipt of absentee ballots. As a result, their rulings will shape the electoral outcome indelibly before a single vote is announced.

The scale and scope of election litigation in 2020, like much else with this election, is unprecedented. The national party committees and numerous large and well-funded advocacy organizations have been litigating every nuance of voting, at virtually every level of government, in an effectively perpetual fashion since the 2016 election, particularly in jurisdictions no longer covered by preclearance under the Voting Rights Act after the 2013 U.S. Supreme Court decision in Shelby v. Holder.

In fact, the 2018 midterm election was essentially a continuation of the battles of 2016, reaching a fever pitch in states such as Georgia, where Democratic gubernatorial candidate Stacey Abrams declined to concede the election, citing voting improprieties. In a prime example of how election law issues have morphed into major political issues, Abrams actually decided rather than conceding that she would both sue the state based on its administration of the election and start a national voting rights organization.

That organization, Fair Fight Action, has joined with traditional progressive organizations, such as the American Civil Liberties Union, and new entrants such as Democracy Docket, on matters ranging from the rights of felons to vote in Florida, to how long ballots can be counted in Pennsylvania, to how long signature issues with mail ballots can be remedied in Arizona.  

The Democratic coalition has generally focused its proactive efforts on initiating litigation in states on issues expanding the franchise, and thus their electoral prospects, via efforts such as expanding access to absentee voting and drop boxes. In addition, they have sought to extend the time by which votes can be counted.

On the other hand, the Republican National Committee, the Trump campaign and various of their GOP allies have initiated lawsuits in states that have either extended absentee ballot counting, provided additional drop boxes for ballots or provided additional opportunities to correct ballot mistakes.

Many such suits are active nationwide. These range from a recent win in Iowa state court for the Trump campaign, where an injunction was secured to invalidate prefilled mail-in ballots that were sent to 50,000 voters, to a federal suit in Nevada, where it is alleged that a recent decision to expand voting by mail and allow ballots to be received up to three days after election day violates federal election law.

In one of the most recent decisions potentially affecting the outcome in a battleground state, the U.S. Court of Appeals for the Seventh Circuit stayed a federal district court's order extending the deadline for Wisconsin election officials to accept absentee ballots. As a result, ballots must be in the hands of election officials by the close of polls on election day.

The lower court's order would have required ballots to be accepted if received by Nov. 9. The Seventh Circuit also stayed an order extending the deadline for online and mailed-in voter registration. The date will now be Oct. 14, a week earlier than the original date ordered by the lower court.

The Seventh Circuit previously denied the request for a stay of the lower court's orders, arguing that the Wisconsin Legislature did not have the authority to represent the state's interest in the suit. After certification from the Wisconsin Supreme Court, which held that the state Legislature did have such authority, the Seventh Circuit granted the petition for reconsideration and issued the stays.

As with other recent court decisions, the court weighed whether COVID-19-related disruptions and health risks warranted additional time to both register to vote and mail absentee ballots. The Seventh Circuit, noting the Supreme Court's negative view toward last-minute election changes, concluded that "it is not possible to describe COVID-19 as a last minute event."

The Seventh Circuit also invoked another election-related Supreme Court decision to reject, as "doubtful," the district court's "[assumption] that the design of adjustments [to election rules] during a pandemic is a judicial task."

Such battles will continue until and, even on, election day, with everything litigated from where polls are located to keeping polls open late due to machine irregularities. Both presidential campaigns have built legal structures capable of addressing or initiating challenges across the country, with the Trump campaign having never really ceased operation since 2016 and the Biden campaign recently announcing a major effort that includes two former solicitors general, Donald B. Verrilli Jr. and Walter Dellinger, former Attorney General Eric Holder and former White House Counsel Bob Bauer, among many others.

Similarly, the political parties and various advocacy organizations have built up legal teams to previously unforeseen levels, utilizing a torrent of grassroots fundraising from activists concerned about voting irregularities on both sides. All of which points to an ability by both parties to litigate election issues in as many places, for as long as is needed.

The litigation underway now is substantially different in character than the issue at the heart of Bush v. Gore, which focused narrowly on whether a manual recount of Florida votes would violate constitutional equal protection guarantees — valuing one vote more than another.

The 2020 election litigation — both pending and prospective — implicates the full spectrum of election conditions, including the closing date for absentee ballots, the number and location of ballot drop boxes, and witness signatures on mailed ballots, all in advance of the foreseeable post-Election Day tabulation and recount challenges more akin to Bush v. Gore.

Also substantially different in nature is the significantly expanded scope, size and sophistication of the election litigation efforts at both sides' disposal. Depending on how such legal power is deployed, we may well long for the relative civility, tranquility and lack of disruption during the early winter months of 2000.

We think it important to note that one of the premises underlying much of this litigation is that election fraud is likely to be widespread and could tip the balance of the election. But, as our former colleague Ben Ginsberg, who led President George W. Bush's legal team in Bush v. Gore, recently wrote in the Washington Post:

The truth is that after decades of looking for illegal voting, there's no proof of widespread fraud. At most, there are isolated incidents — by both Democrats and Republicans. Elections are not rigged. Absentee ballots use the same process as mail-in ballots — different states use different labels for the same process.

He went on to cite this evidence:

The Heritage Foundation Election Fraud Database has compiled every instance of any kind of voter fraud it could find since 1982. It contains 1,296 incidents, a minuscule percentage of the votes cast. A study of results in three states where all voters are mailed actual ballots, a practice at the apex of the president's outrage, found just 372 possible cases of illegal voting of 14.6 million cast in the 2016 and 2018 general elections — 0.0025 percent.

We cannot predict with certainty what additional litigation will occur in the next few months, let alone what impact it may have on American society and U.S. and world financial markets. But we are of the view that it is vital that stakeholders, institutions and enterprises contemplate the possibility that the U.S. may be in for a period of enormous tension and widespread confusion in the weeks following the November elections, which could lead to civil unrest on a scale not felt in decades.

The year 2020 has already been one that has shaken the foundations of what have long been global norms and traditional expectations. And the evidence is mounting that with the U.S. elections approaching, the wild ride may not be over yet.

Let's hope we as a country find a way well before Jan. 6, when Congress will meet to count the electoral votes and declare a winner, to determine with certainty who will stand before the nation on Jan. 20 and swear to "preserve, protect and defend the Constitution of the United States."

Jeffrey Turner is a partner at Squire Patton Boggs LLP.

Mitchell Berger is a partner and global co-chair of the firm's litigation practice.

Amol S. Naik is a principal at the firm and former chief resilience officer for the city of Atlanta.

Disclosure: Squire Patton predecessor Patton Boggs LLP represented the Bush campaign in Bush v. Gore.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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