Lawsuits expected over mail-in ballots in Pennsylvania, other crucial Rust Belt swing states
As vote counting continues in Pennsylvania, Michigan and Wisconsin, so does the legal manoeuvring
Republicans are keeping their legal options open to challenge absentee ballots in Pennsylvania, one of the battleground states that could swing U.S. President Donald Trump's re-election, while a top Democratic lawyer says the suits are meant to sow doubt about the results and lack merit.
Pennsylvania Gov. Tom Wolf, a Democrat, was defiant on Twitter early Wednesday morning.
"Let's be clear: This is a partisan attack on Pennsylvania's elections, our votes, and democracy. Our counties are working tirelessly to process votes as quickly AND as accurately as possible. Pennsylvania will have a fair election and we will count every vote," he wrote.
Two federal lawsuits aim to prevent absentee votes from being counted in Pennsylvania. Republicans have already laid the groundwork at the Supreme Court for an effort to exclude ballots that arrive after polls close Tuesday. Trump has railed for several days about the high court's pre-election refusal to rule out those ballots.
"You have to have numbers. You can't have these things delayed for many days and maybe weeks. You can't do that. The whole world is waiting," Trump said Tuesday at his campaign headquarters.
In a lawsuit filed Tuesday in Pennsylvania, Republicans accused county officials in Democratic-leaning Montgomery County of improperly giving voters a chance to fix problems with their mail-in ballots before Tuesday. A county spokesperson said state law doesn't ban the practice. A federal judge in Philadelphia has set a hearing for Wednesday morning on the Republican bid to stop the count of 49 ballots that were amended in the suburban Philadelphia county.
On Tuesday night in Pennsylvania, Republican U.S. Rep. Mike Kelly and five other plaintiffs filed suit in state court to block the state's counties from allowing voters whose mail-in ballots were disqualified to cast a vote by provisional ballot.
WATCH | Trump claims win despite millions of uncounted votes:
Pennsylvania's top election official, Kathy Boockvar, a Democrat, insisted that the practice is legal and not prohibited by law. Regardless, she said, there aren't "overwhelming" numbers of voters who cast a provisional ballot after their mail-in ballot was disqualified, but she did not give an exact figure.
"So I don't think this is going to be huge issue no matter which way it goes," Boockvar said.
'Blue Wall' counting
The majority of the state's mail-in and absentee ballots were cast by Democrats.
Even a small number of contested votes could matter if Pennsylvania is the state that decides the election and the gap between Trump and Democratic nominee Joe Biden is so small that a few thousand votes, or even a few hundred, could make the difference.
A larger number of mail-in ballots this election coupled with pandemic precautions and restrictions on when counts can begin — which vary by state — have been blamed for the delays to final results.
Similar trends played out across the so-called Blue Wall of states in the Rust Belt traditionally held by Democrats but won by Trump in 2016.
In Michigan, with just under half of ballots counted, Trump led with 54 per cent of counted ballots, compared to 43 per cent for Biden.
Michigan's secretary of state said late Tuesday she believes final results from the battleground state will not be available until Wednesday night.
In Wisconsin, Trump led 51 per cent to 46 per cent with 67 per cent of ballots counted.
Addressing voters at a rally early Wednesday morning in Delaware, Biden said his campaign "feels good" about its chances of winning the Rust Belt states as more mail-in ballots are counted in the coming days.
Trump, for his part, accused his opponents of trying to "steal the election" and said votes couldn't be cast after the polls closed.
'A cloud over the election'
Bob Bauer, a member of the Biden campaign's legal team, said in a call with reporters on Tuesday that many lawsuits fronted by the Republican Party around the country were designed only to get attention and to arouse unnecessary concern in voters, unsupported by any true legal basis.
"They're designed to generate the appearance of a cloud over the election," he said.
Since the 2000 presidential election, which was ultimately decided by the Supreme Court, both parties have marshalled legal teams to prepare for the unlikely event that voting doesn't settle the contest. This year, there is a presumption that legal fights will ensue and that only a definitive outcome is likely to forestall them.
Even before election day, the 2020 race was the most litigated in memory.
With early voting numbers eclipsing 2016 figures, there's already been roughly 300 election-related lawsuits filed in dozens of states across the country. Many involve changes to normal procedures because of the coronavirus pandemic, which has killed more than 230,000 people in the U.S. and sickened more than nine million. Legal battles ensued over signature matches, drop boxes and secrecy envelopes.
The candidates and parties have enlisted prominent lawyers with ties to Democratic and Republican administrations should that litigation take on a new urgency.
The Pennsylvania case at the Supreme Court pits Donald Verrilli, who was President Barack Obama's top Supreme Court lawyer, against John Gore, a onetime high-ranking Trump Justice Department official.
Trump said this weekend he was headed to court to prevent Pennsylvania from counting mailed ballots that are received in the three days after the election. The extension had been ordered by Pennsylvania's top court. The Supreme Court left that order in place in response to a Republican effort to block it.
Trump is unhappy over the decision, even though Pennsylvania will keep those ballots separate from the rest in case of renewed court interest. He spent much of his final days of campaigning railing against the decision, often employing inaccurate characterizations that it would allow "rampant and unchecked cheating" as well as undermine the law and even foster street violence. No evidence supports that view.
Like Pennsylvania, North Carolina has seen a court fight between Democrats who support extending the deadline for absentee ballots and Republicans who oppose it. The six-day extension was approved by a state court.
WATCH | Rush to count mail-in ballots underway in Philadelphia:
In Minnesota, late-arriving ballots also will be segregated from the rest of the vote because of ongoing litigation, under a federal appeals court order.
Challenging local decisions
Republican lawsuits have challenged local decisions that could take on national significance in a close election.
In Texas, Republicans asked state and federal courts to order election officials in the Houston area not to count ballots dropped off at drive-in locations. The Texas Supreme Court on Sunday denied the GOP's plea. On Monday, a federal judge also turned away the effort to invalidate the nearly 127,000 votes. Appeals were planned.
In Nevada, a state court judge rejected a bid by the Trump campaign and state Republicans to stop the count of mail-in ballots in Las Vegas, in the state's most populous and Democratic-leaning county. The state Supreme Court refused to stop the count on Tuesday, instead calling for written filings to be completed by early next week. Around 400,000 absentee ballots from Clark County have been returned and accepted as valid, according to state election data.
Most of the potential legal challenges are likely to stem from the huge increase in absentee balloting brought on by the pandemic. In Pennsylvania, election officials don't start processing those ballots until election day, and some counties have said they won't begin counting those votes until the following day. Mailed ballots that don't come inside a secrecy envelope have to be discarded, under a state Supreme Court ruling.
"I still can't figure how counting and verifying absentee ballots is going to go in some of the battleground states like Pennsylvania," said Ohio State University law professor Edward Foley, an election law expert.
Several conservative justices indicated they'd be open to taking the issue up after the election, especially if those late-arriving ballots could mean the difference in the state.
The legal issue is whether the extension ordered by the Pennsylvania Supreme Court, relying on voter protections in the Pennsylvania constitution, violated the U.S. Constitution. The argument advanced by Republicans is that the Constitution gives state legislatures — not state courts — the power to decide how electoral votes are awarded, including whether absentee ballots received after election day can be counted.
Roughly 20 states allow for late-arriving ballots, but Pennsylvania's Republican-controlled legislature did not authorize an extension, even with the huge increase in mailed ballots because of the pandemic.
The Supreme Court generally does not second-guess state courts when they rely on their own constitutions. But Democrats were alarmed by Justice Brett Kavanaugh's reference to the court's 2000 Bush v. Gore decision that effectively decided the presidential election in favour of George W. Bush.
Although it was not the majority opinion in the case, an opinion joined by three conservative justices in 2000 would have ruled for Bush because the Florida Supreme Court's recount order usurped the legislature's authority.
The Supreme Court has never cited Bush v. Gore as the basis for a decision of the court. Kavanaugh is one of three justices who worked for Bush in the Florida case 20 years ago. Chief Justice John Roberts and new Justice Amy Coney Barrett are the others.
With files from CBC News