Benjamin Ginsberg, a longtime Republican election lawyer, puts the odds of the 2020 presidential election ending up in an all-out legal brawl that lasts into January at less than 1%.
Democrat Joe Biden has widened his lead over President Donald Trump in national and most battleground state polls in recent weeks. Ginsberg says the history of past U.S. presidential elections means there’s a very high chance the winner will be clear on election night or within the following three weeks.
But all bets are off if the race tightens, given the fiercely polarized electorate, a record number of mail-in ballots and Trump’s hurling of unsubstantiated charges. That could set up a historically contentious — and lengthy — post-election struggle.
“This is the first time we’ve had a president who has been saying in advance of an election without any evidence that the election is ‘fraudulent’ and ‘rigged’ and that there’s widespread ‘cheating’ going on,” said Ginsberg, who was national counsel for the George W. Bush and Mitt Romney presidential campaigns. “That makes the whole pressure of early voting, Election Day and the post-election materially different than it’s ever been.”
Based on interviews with election lawyers and experts, here’s an early look at the possible scenarios for how Nov. 3 and the aftermath could play out:
– Poll watchers from the ‘Army for Trump’ on Election Day
The biggest concern about trouble on Election Day — along with long lines in some jurisdictions because of covid-related limits on polling stations — stems from Trump actively encouraging his supporters to volunteer to watch the polls as part of the “Army for Trump.” That’s caused voting-rights advocates to worry about the risk for voter intimidation at the polls.
Republicans have plans to use about 50,000 volunteers from early voting through Election Day, according to the Republican National Committee, and Democrats say they’re also mobilizing their own volunteers and lawyers to monitor balloting and ensure voting isn’t impeded.
– Democrats gear up to watch polls as Trump mobilizes supporters
Normally, approved poll watchers representing the candidates and political parties just observe and take note of any problems. But Ginsberg, a co-chairman of the 2013 Presidential Commission on Election Administration who participated in GOP Election Day operations for 38 years and is now retired, said in a Washington Post op-ed that Trump’s comments suggest Republican poll watchers could actively challenge in-person voters and mail-in ballots in precincts that voted heavily against the president in 2016 to delay and discourage voting.
The Trump campaign responded that it will ensure its poll watchers observe the entire voting process because it’s “essential for validating free and fair elections,” Matthew Morgan, Trump 2020 general counsel, said in a statement quoting Ginsberg’s op-ed. All Republican volunteers and poll watchers receive rigorous training to abide by each state’s laws and must be respectful and polite and are not there to be intimidating, the RNC said.
– A drawn-out election night …
Election night could be even more of a roller-coaster ride than usual.
Many states have expanded their absentee voting programs because of the pandemic — with estimates that between 40% and 50% of the projected 150 million votes could be cast by mail, according to Michael McDonald, a University of Florida political science professor who tracks voter turnout. As of Tuesday, almost 12 million have already cast ballots.
– When swing states can start counting millions of mail-in ballots
Some seven battleground states have to wait until Election Day to begin counting the mail-in ballots, including two of the most likely to decide the next president — Pennsylvania and Wisconsin. Michigan clerks are allowed to get only a 10-hour head start on Nov. 2 in processing the ballots, and can’t count them until Nov. 3.
This could create a confusing picture on Nov. 3. Experts expect in-person votes to be more heavily Republican this year with Trump railing against mail-in ballots, so the early counts in some states could create an impression of the president leading significantly. Once the millions of mail-in ballots that favor Democrats get counted, Biden’s tally could rise.
– … that could end in the wee hours …
Despite all this uncertainty, Ginsberg said there still a decent chance that a winner will be declared on election night, just as in previous presidential elections.
Several key states can start counting mail-in votes early. Florida has a history of producing quick tallies, and as much as 80% of the vote in North Carolina — another early counting state — could be cast before Nov. 3. If those states — which Trump absolutely needs to win — go for Biden, the drama could be over relatively quickly.
A strong victory by either candidate would leave little room for legal challenges.
“If the presidency is lost, it’s going to be just hard to pursue,” Charles Stewart III, a professor and elections scholar at the Massachusetts Institute of Technology said of challenges to the results.
– … or that could extend for days or weeks
Ginsberg said it’s also reasonable to assume that the unprecedented use of mail-in ballots means it could take one, two or even three weeks after Election Day to determine who secured the necessary 270 electoral college votes.
That scenario could lead to myriad potential challenges over uncounted ballots, with fears that Trump will declare himself the winner based on early tallies and seek to disqualify outstanding ballots that could flip the outcome.
Most litigation over significant elections in the last 50 years has been over absentee ballots because “it’s the easiest thing to fight over,” said Edward Foley, a professor and director of an election-law program at Ohio State University who has studied disputed elections.
While lawsuits to stop counting ballots aren’t likely to succeed and state laws for challenging them vary, litigation is possible about how they’re validated — including matching a voter’s signature, whether they’re treated consistently in different jurisdictions as well as over allegations of misconduct.
There also could be attempts to extend the deadline for accepting ballots received after the election in states that allow that, or suspending the rules for counting them, said Michael Morley, an assistant law professor at Florida State University who’s worked on election emergencies and post-election litigation.
– Any voting lawsuits need to be specific and well-founded
Election experts warn that the challenges can’t be based on vague claims about fraud and must have specific grounds because judges have a low threshold for litigation obviously filed in bad faith.
“You can’t just say, ‘Well, I’m against absentee ballots and so therefore they shouldn’t be counted,’ ” said Nathaniel Persily, a Stanford law professor and election-law expert. “You have to have some evidence that there was fraud or some other illegality.”
Ginsberg notes that three of the 57 U.S. presidential elections have been contested, so there’s about a 5% chance the 2020 race will be decided by a legal fight or recount if it’s close like the 537 votes that separated Bush and Al Gore in Florida in 2000. The rules vary by state about what outcome requires an automatic recount and when candidates may request them.
– There are always worst-case scenarios …
In one troubling scenario, neither candidate secures 270 electoral college votes because one or more states have results that are still under dispute after Dec. 8, the so-called safe-harbor deadline for Congress accepting electors to the electoral college. Electors meet in their states on Dec. 14 to cast their votes for president based on the outcome of the popular vote.
Some experts worry that if a state’s results are in doubt or challenged beyond the safe-harbor deadline, a state legislature could name its own slate of electors, which could result in competing slates of electors being sent to Congress. That would trigger a fight that could lead to Congress selecting the president or even not having a winner by the time Trump’s term ends on Jan. 20.
– … but they’re not very likely.
While anxiety about the election going into overtime is understandable, the most likely outcome is that voters, not lawyers, will determine the outcome, said Justin Levitt, a law professor at Loyola Marymount University tracking election-related lawsuits.
Foley said he also expects that even with litigation over the results, the outcome will still be accepted.
“I think we will get what I’m characterizing as an authentic, valid result corresponding to the people’s choice,” Foley said. “But it may take longer than normal for that assessment, and it may be somewhat messier getting there.”