As Polls Tighten, Post-Election Legal Challenges Are Almost Inevitable

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Posted: Nov 01, 2020 1:55 PM
As Polls Tighten, Post-Election Legal Challenges Are Almost Inevitable

Source: AP Photo/Matt Slocum

Despite some news reports to the contrary, the 2020 election has been tightening since the August Republican National Convention, and as the gap closes even further in these last days before the election, the likelihood of post-election legal challenges becomes nearly inevitable.

The New York Post reported Saturday that Joe Biden’s national lead has fallen to under five percent, and his margin in the ever-important battleground states is even closer at three percent. This marks a significant enough shift that opinion columnist Kimberly Strassel of the Wall Street Journal, wrote a column Saturday preparing her readers. She noted the lawyering up of both sides is prep for the almost inevitable vote-counting battle to come post-election.

Strassel notes that the Democrats have worked hard to introduce exigent changes to the system, often using the pandemic as an excuse.

“The sheer volume of Democratic efforts to juke the rules—on deadlines, on curbside voting, on ballot collection boxes, on mask mandates at polls—is mind-boggling. Simply keeping up with it is an achievement,” she wrote.

One material change this election cycle, Strassel says, is that while Democrats have always been aggressive poll-watchers (also known as “challengers”), and have already created a legal war room to “ensure that elections are properly administered and votes correctly counted,” according to the Associated Press, Republicans this cycle are matching their efforts both in the former and latter.

Amid the gushing, you might not know that the Republican team has been more than holding its own against the flood of pre-election litigation designed to change the rules and to give Democrats an advantage. The left and the media forget that the GOP learned the hard way the perils of legal flat-footedness. It’s hard to find a conservative lawyer without a searing memory of 2008-09, when lawyers representing a funny fellow named Al Franken managed to swindle Sen. Norm Coleman out of a Minnesota seat. Republicans have been better prepared ever since. And they are very prepared today.

Some of the bright lights leading the GOP’s legal advisory board include Reagan’s Attorney General Ed Meese, First Amendment superstar Harmeet Dhillon, and former Federalist Society President Leonard Leo. Justin Clark is Trump’s lead lawyer on post-election challenges and he’s a good choice because he knows the terrain: he cut his political teeth on that other famous recount: Al Gore's losing 2000 Democratic presidential campaign.

There’s a chance that legal battles after Nov. 3 may not be as contentious and protracted as some are predicting, but that will likely only happen if either Biden or Trump wins by a large enough margin that the number of ballots still left officially uncounted is smaller than the number needed to change the outcome. However, given the chaos introduced in the system, both of those numbers will be hard to determine. And the legal challenges have already begun. A record number of them, in fact.

USA Today reported Saturday that 230 election-related federal lawsuits have already been filed between Jan. 1 and Oct. 23, “with even more expected to come after polls close Tuesday.” So even if new post-election lawsuits fail to appear, those already existing lawsuits – dealing with curbside voting, expanded absentee voting, and the voting rights of felons, among other things – should tie things up nicely for weeks. And states like Pennsylvania are already preparing by setting aside ballots that arrive after election day.

Strassel says it’s all “a recipe for a legal battle unlike any seen in American electoral history, and its outcome will have nothing to do with the candidates, their agendas, or their campaign coffers. It will be entirely about the lawyers.”

Meanwhile, average Americans, waiting patiently through a long pandemic summer and looking for relief and a place to start, will be told to wait just a little bit – and maybe a lot – longer. If they’re smart, they’ll be honest with themselves about which party is to blame.

Sarah Lee is a freelance writer living and working in Washington, DC.