From unofficial ‘poll watchers’ to legal teams, the X factors could be crucial as the final votes are cast and counted
The scale and scope of legal action related to the presidential elections has never been seen before. In case of a close contest, the final outcome could well be decided by the courts
WASHINGTON DC :
US election day is finally upon us. Or, at least, what we still call election day, since more than 92 million Americans have already cast ballots in an election that has been reshaped by the worst pandemic in more than a century, its economic fallout and a long-simmering reckoning with systemic racism.
Elections are always about where Americans want to steer the country. That’s especially true this year as the US confronts multiple crises and is choosing between two candidates with very different visions for the future.
President Donald Trump has downplayed the coronavirus outbreak even as cases surge across the US. He has panned governors—virtually all Democrats — who have imposed restrictions designed to prevent the spread of the disease. And he has bucked public health guidelines by holding his signature campaign rallies featuring crowds of supporters—often unmasked—packed shoulder to shoulder.
His Democratic rival, Joe Biden, has said he’d heed the advice of scientists. He’s pledged to work with state and local officials across the country to push mask mandates and has called on Congress to pass a sweeping response package.
Trump casts protests of systemic racism as radical and has emphasized a “law and order" message to appeal to his largely white base. Biden acknowledges systemic racism, picked the first Black woman to appear on a major party’s presidential ticket and has positioned himself as a unifying figure.
The candidates also hold distinctly different views on everything from climate change and the environment to taxes and the scope of federal regulation.
The two parties took wildly different approaches to contacting voters amid the pandemic. Democrats stopped knocking on doors in the spring, going all-digital and phone. They resumed limited in-person contacts in September. Republicans continued traditional field work the entire campaign.
The Republicans can point to success in increasing their voter registration in battleground states. Democrats can point to their early voting success, including from notable slices of new voters. But only the final tally will vindicate one strategy or the other.
Each major party can install official poll watchers at precincts. It’s the first time in decades Republicans could use the practice after the expiration of a court order limiting their activities. So, it’s an open question how aggressive those official poll watchers will be in monitoring voters or even challenging eligibility.
The bigger issue is likely to be unofficial “poll watchers"—especially self-declared militias. Voter intimidation is illegal, but Trump, in the 29 September presidential debate, notably refused to state plainly that he’d accept election results and instead said he is “urging supporters to go into the polls and watch very carefully, because that’s what has to happen. I am urging them to do it."
In Michigan, where federal authorities recently arrested members of anti-government paramilitary groups in an alleged plot to kidnap Democratic governor Gretchen Whitmer, the Democratic secretary of state tried to impose a ban on carrying firearms openly at a polling place. A Michigan judge struck down the order.
Trump’s re-election depends on driving up his margins in rural areas and smaller towns and cities—those expansive swaths of red on the county-by-county results map from 2016. But acres don’t vote, people do, and Biden is casting a wide demographic and geographic net. His ideal coalition is anchored in metro areas, but he hopes to improve Democratic turnout among non-white voters and college-educated voters across the map.
There are places where the competing strategies overlap: exurban counties (those communities on the edges of the large metropolitan footprints) and counties anchored by smaller stand-alone cities.
Two potential areas of the country that could signal broader trends on election night very early on: Forsyth County, Georgia, which is part of metro Atlanta’s growing, diversifying northern ring. Republican Mitt Romney won 80% of its 81,900 votes in 2012, while Trump’s share dropped to 70% of nearly 99,000 votes in 2016. If that trendline continues, it would signal first that GOP-controlled Georgia is indeed a tossup. More broadly, it would suggest Trump’s suburban-exurban problems are real.
Montgomery county, Ohio: It makes up one of the 206 “pivot counties" that flipped from president Barack Obama to Trump. Obama won 51.4% of the vote in 2012 to 46.8% for Romney (Obama’s statewide win was 50.6-47.6). Trump nipped Hillary Clinton in 2016, but mostly because she lost 15,000 votes from Obama’s 2012 count (137,139), while Trump fell only about 950 votes short of Romney’s mark (124,841). A clear Biden rebound with a Trump drop-off is not the trend Republicans want to see in a mid-size metro footprint.
Trump spent considerable energy this year posturing as a “law and order" president, blasting nationwide protests of racial injustice and occasional violence as left-wing rioting that previewed “Joe Biden’s America."
The president’s allies pointed to 1968, when widespread unrest amid the Vietnam War, general social upheaval and the assassinations of Martin Luther King Jr. and Robert F. Kennedy benefited Republican Richard Nixon as he built his “silent majority." But Nixon wasn’t the incumbent in 1968. In fact, the political atmosphere was so bad for president Lyndon Johnson that the Democrat didn’t seek re-election.
Many Democrats and some Republicans are now pointing more at 1980, when Republican Ronald Reagan trounced president Jimmy Carter and the GOP flipped a whopping 12 Democratic Senate seats. Trump’s standing in the polls over 2020 has tracked only slightly above where Carter spent much of the 1980 election year, as he battled inflation, high unemployment and the Iran hostage crisis. But what appeared to be a tight race on paper as late as October turned into a rout.
It’s a more polarized era four decades later. But the lesson is that Trump would have to defy history to win re-election amid such a cascade of crises and voter dissatisfaction.
The final countdown
Absentee voting amid coronavirus has changed the vote-counting timeline, and there aren’t uniform practices for counting those ballots. That makes it difficult to predict when certain key battlegrounds, much less a national result.
For example, Pennsylvania and Michigan—battlegrounds Trump won by less than 1 percentage point in 2016—aren’t expected to have complete-but-unofficial totals for several days. Florida and North Carolina, meanwhile, began processing early ballots ahead of time, with officials there forecasting earlier unofficial returns. But those two states also could have razor-thin margins.
Early returns, meanwhile, could show divergent results. Biden’s expected to lead comfortably among early voters, for example. Trump is likely to counter with a lead among election day voters. Depending on which counties report which batch of votes first, perennially close states could tempt eager partisans to reach conclusions that aren’t necessarily accurate.
The legal fights could take on new urgency, not to mention added vitriol, if a narrow margin in a battleground state is the difference between another four years for President Donald Trump or a Joe Biden administration. Both sides say they’re ready, with thousands of lawyers on standby to march into court to make sure ballots get counted, or excluded.
Since the 2000 presidential election, which was ultimately decided by the supreme court, both parties have enlisted legal teams to prepare for the unlikely event that voting wouldn’t settle the contest. But this year, there is a near presumption that legal fights will ensue and that only a definitive outcome is likely to forestall them.
The candidates and parties have enlisted prominent lawyers with ties to Democratic and Republican administrations. A Pennsylvania case at the supreme court pits Donald Verrilli, who was president Barack Obama’s top supreme court lawyer, against John Gore, a one-time high-ranking Trump Justice Department official.
It’s impossible to know where, or even if, a problem affecting the ultimate result will arise. But existing lawsuits in Pennsylvania, North Carolina, Minnesota and Nevada offer some hint of the states most likely to be ground zero in a post-election battle and the kinds of issues that could tie the outcome in knots.
Litany of lawsuits
Roughly 300 lawsuits have already been filed over the election in dozens of states across the country, many involving changes to normal procedures because of the coronavirus pandemic, which has killed more than 230,000 people in the US.
Most of the potential legal challenges are likely to stem from the huge increase in absentee voting. In Pennsylvania, elections officials won’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.
The deadline for receiving and counting absentee ballots is Friday, an extension ordered by the Pennsylvania’s top court. The supreme court left that order in place in response to a Republican effort to block it. But 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.
Trump, though, was not happy the extension was left in place, even though Pennsylvania will keep those ballots separate from the rest in case of renewed court interest. “This is a horrible thing that the United States supreme court has done to our country," Trump said in Pennsylvania Saturday. On Sunday, he said that as soon as the polls close, “We’re going in with our lawyers."
Like Pennsylvania, North Carolina also has seen a court fight between Democrats who support extending the deadline for absentee ballots and Republicans who oppose it.
The issue is a six-day extension approved by a state court—beyond the three extra days after election day that the Republican-controlled legislature agreed to in response to the pandemic. The justices last week allowed the extra days to remain in effect, over a dissent by three conservatives on the court.
In Minnesota, late-arriving ballots also will be segregated from the rest of the vote because of ongoing legal proceedings, under a federal appeals court order.
Republican lawsuits have challenged local decisions that could take on national significance in a close election.
In Nevada, Trump’s campaign and state Republicans went to court to try to stop the counting of Las Vegas-area mail-in ballots. Republicans say observers aren’t allowed close enough to workers and machines at the busy vote-counting center in suburban Las Vegas to challenge signatures in the state’s biggest and most Democratic-leaning county.
Jesse Binnall, an attorney for the Republican Party and the Trump campaign, told a judge last week that the counting process observed in Las Vegas prevents what he called a “meaningful opportunity" to challenge the validity of mailed ballots.
In Texas, Republicans are asking 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. A federal judge is holding a hearing on Monday.
The scale and scope of legal action related to the presidential election has never been seen before. Trump has suggested the outcome could well be decided in court. The closer the contest, the more likely his prediction proves true.