Clearly recognizing that highly energized Trump supporters are far more inclined to vote-in-person than Biden backers, Democrat campaign leaders and friendly liberal courts are pushing to extend tabulation deadlines for processing write-in ballots beyond election day.
Provided that Biden isn’t leading in the count by that time, fully expect rancorous pre-planned legal battles over the acceptance vetting of a late mail-in ballot surge that may delay determination of who will be America’s president until several days – perhaps weeks – after November 3rd.
Mail-in ballots raise an obvious chain-of-custody challenge regarding who truly voted and which states have erected various barriers involving signature-matching witnesses. Many lawsuits will predictably focus on discrepancies among different counties in a state on how ballots were counted.
A worse-case scenario would be if states did not resolve election disputes by the time the electoral college meets in December, leaving state legislatures and litigant parties divided regarding which slates of electors to use.
Partisan battles over how legitimately and expeditiously ballots will be counted focus most particularly on three key predominately Democrat-controlled swing states: Wisconsin, Michigan and Pennsylvania. Court decrees in each of them prohibit election officials from beginning to process mail-in votes until November 3. Accordingly, close national election results may be highly uncertain until all those votes are tallied.
Based upon a federal judge ruling that more appropriately should have been made by the Legislature and Governor, Wisconsin is now the latest of the big three to allow ballots postmarked by Nov. 3 to be counted as late as arrival by Nov. 9. The order by District Judge William Conley – a President Obama appointee – bumped the ballot deadline during the state’s April 7 primary.
Dismissing objections that his order will delay election results, Judge Conley said that since 14 other states already count late ballots, “Wisconsin will not be an anomaly.” Nevertheless, most American’s won’t be wondering throughout election night who carried dark blue California or New York.
North Carolina officials recently announced a court settlement that includes tabulating tardy ballots as late as Nov. 12. And although the Minnesota Legislature has set a ballot deadline at 8 p.m. on Nov 3, that state is currently under a similar consent decree.
Two Minnesota Republicans filed a federal court challenge to that consent deal last week which was entered into by a Democratic official. The lawsuit argues that it is unrealistic for election officials to presume that ballots without postmarks were mailed on time unless evidence suggests otherwise. “This means,” it argues, “that persons in Minnesota may vote for days after election day.”
At minimum, the suit adds, it will “create substantial uncertainty and delay over Minnesota’s ability to certify the results.”
The lawsuit that led to the consent decree was filed by the Minnesota Alliance for Retired Americans Educational Fund which says its job is to mobilize “retired union members, seniors and community activists” to advocate “a progressive political and social agenda.” According to the Wall Street Journal editorial staff, “the legal muscle for the lawsuits comes from Democracy Docket, a progressive group with ties to the national Democratic machinery.”
Throughout the vetting process, election judges will ultimately have to second-guess rejected ballots and unrejected ballots… and may even demand an accounting for unsolicited ballot forms sent out but never returned by a voter.
Democrats are logically strategizing that uncertainties regarding write-in ballot counting will favor the outcome they seek. In a normal election, 0.01% of in-person ballots are disqualified, and about 100 times as many – or 1% – of mail-in ballots. In the April Wisconsin Democratic primary, 2.5% of ballots were disallowed, the equivalent of three times Donald Trump’s victory margin in 2016.
Now consider that whereas 134,000 Wisconsinites voted by mail in the last presidential race, that number is expected to be 1.8 million this fall.
As Richard Pildes, an election law professor at NYU, warns, “If it’s close and the courts get drawn in on potentially decisive issues, Bush v. Gore will look like a walk in the park compared to what [this] would be like.”
Pildes was referring to a repeat of sort of chaotic nightmare witnessed in Florida during the 2000 presidential election over counting of “hanging, dimpled and pregnant chad” punch-card ballots. It took three weeks and a Supreme Court decision before Republican George W. Bush was declared 43rd U.S. president over Al Gore by a mere 537 votes.
Although the chads are gone, this year’s Biden-Trump campaigns are certain also to provoke hotly contested tabulation technicalities revolving around various methods different states use to verify counts. Such contentious issues include whether mail-in ballots are postmarked by election day as required only by some, and if a voter’s signature matches the one on file with election officials as stipulated by others.
Additionally, the Dems are aggressively lawyering up to contest tight results in arguing that some rejected late ballots should have been counted. Consider here, that Trump won Wisconsin in 2016 by only 22,748 votes.
Professor Pildes predicts that “Social media and cable television will inflame with sinister spin any problems in the process, no matter how legitimate or normal those problems might be; many on both sides are primed already to believe the election is being stolen if their candidate loses.”
The looming legal and political media brawl ahead promises to be equal to or greater than any other in modern history.
As described by the Biden campaign, it is launching the most massive voter “protection” effort in history. Led by Dana Remus, the campaign’s general counsel, and Bob Bauer, who served as general counsel on both of Barack Obama’s presidential campaigns, the effort has enlisted thousands of lawyers.
Several of those attorneys are working in a special litigation unit under Donald Verrilli Jr. and Walter Dellinger, two former U.S. solicitors general. Former Attorney General Eric Holder is serving as a liaison between the campaign and voting rights group stakeholders.
The Biden campaign litigation unit is also working closely with the law firm Perkins Coie. It is being headed by Marc Elias, a top Democratic voting rights attorney known for leading a blitz of national lawsuits challenging voting on such issues as extending ballot receipt deadlines, requiring election officials to prepay postage, allowing third parties to collect mail-in ballots, and mandating that officials give voters a chance to cure any defect with their mail-in ballot before it gets rejected.
Meanwhile, the Republican National Committee has pledged to spend $20 million in countering Democrat legal challenges. The Trump campaign also currently has active lawsuits around the country to block a range of voting practices.
Included, among other issues, are allowing third parties from collecting ballots and stopping election officials from counting ballots that arrive after election day and from using ballot drop boxes.
All such disastrous prospects went media mainstream when Hillary Clinton, during a televised interview with her former communications director Jennifer Palmieri, advised that Joe Biden should “not concede under any circumstances, because I do believe he will win if we don’t give an inch, and if we are as focused and relentless as the other side is.”
It is therefore in everyone’s interest amid weeks of legal wrangling and public protests that could become enormously ugly, that conditions be resolved without devolving into a legal constitutional crisis. To this end, filling the vacant Justice Ruth Bader Ginsburg seat prior to election is vital to safeguard against a potentially split 4-4 Supreme Court decision standoff.