President Trump and former Vice President Joe Biden with help from allies have amassed an expansive legal war chest and marshaled armies of attorneys for what is on track to be the most litigated election season in U.S. history.
The Republican National Committee (RNC) has pledged $20 million this cycle to oppose Democratic-backed efforts to ease voting restrictions while Biden, the presumptive Democratic presidential nominee, said his campaign has assembled 600 attorneys as a bulwark against election subterfuge.
With a little more than three months until Election Day, the voting rules in key battleground states are the focus of bitterly partisan court fights that could influence the outcome of the presidential race. These include lawsuits to expand mail-in voting in Texas, extend vote-by-mail deadlines in key Rust Belt swing states and restore the voting rights of up to one million indigent Floridians with felony records.
Hundreds of smaller scale feuds that could help shape down-ballot races are playing out across the country over issues like witness and signature requirements for absentee ballots — procedural fights with added significance as mail-in voting operations ramp up amid the pandemic.
“2018 set a record for election litigation and I have no doubt that 2020 will beat it, in part because of virus-related litigation,” said Rick Hasen, an election law expert and law professor at the University of California Irvine.
Ultimately, though, some analysts worry these pre-election disputes are merely a prelude to the showdown that could ensue if the Nov. 3 election result is contested, raising the specter of the conservative-majority Supreme Court being called upon to help determine the winner of the White House race.
Trump has repeatedly stoked these concerns. Without evidence, he has claimed that mail-in voting opens elections to potential widespread fraud, and recently refused to say he would accept the election results.
“I have to see,” Trump said mid-July in response to a question from Fox News’s Chris Wallace about whether he would commit to accepting the outcome. “No, I’m not going to just say yes. I’m not going to say no.”
Biden, for his part, has warned repeatedly that Trump is prepared to “steal” the election.
“This president is going to try to indirectly steal the election by arguing that mail-in ballots don’t work. They’re not real. They’re not fair,” Biden told donors Thursday, according to press reports.
Biden has previously described such a scenario as “my single greatest concern.” Earlier this month he announced his campaign had recruited a network of lawyers to stand sentry against election-related impropriety.
“We put together 600 lawyers and a group of people throughout the country who are going into every single state to try to figure out whether chicanery is likely to take place,” Biden told donors in a video conference, according to press reports.
A number of Democratic Party members, as well as Democratic-allied lawyers and voting rights groups, are engaged in litigation across the U.S. Their general aim, they say, is to expand voting rights, fight voter suppression and make it easier to cast ballots amid the coronavirus pandemic.
One of the higher-profile disputes involves a lawsuit brought by Texas Democrats against Republican state officials to expand mail-in voting. Texas currently only allows absentee ballots from elderly, disabled, incarcerated or traveling voters. The state’s Democrats have been seeking to expand the definition of “disabled” to include those who fear coronavirus exposure during in-person voting ahead of the general election — but so far without success.
“Texas Democrats will never stop fighting for the right for everybody to vote,” Abhi Rahman, a Texas Democratic Party spokesman, said after a recent setback before the U.S. Supreme Court. “Every Texan should be able to vote safely and without the fear of contracting a deadly disease.”
Additionally, the law firm of Marc Elias, a top election lawyer for Democratic candidates and causes, is engaged in some 35 election-related lawsuits. A number of nonprofit voting rights advocacy groups such as Common Cause, the Brennan Center for Justice and the Lawyers’ Committee for Civil Rights are also pursuing legal action.
According to a database maintained by Justin Levitt, an election law expert and associate dean at Loyola Law School in Los Angeles, there are around 160 election cases in 41 states and D.C. that relate to the pandemic.
Many of the pending cases pit Democrats and voting rights advocates against Republicans and GOP-allied interest groups.
The Trump campaign says the voter expansion effort opens up the U.S. election system to fraud, and that Democratic messaging around the danger of in-person voting amid the pandemic could suppress the vote.
“The left’s rhetoric is irresponsible and likely to suppress the right to vote by scaring many citizens from safely going to the polls on or before Election Day,” a spokesperson for the Trump campaign, speaking on background, told The Hill.
Underscoring the high stakes of court fights playing out this election season, the RNC in May doubled its legal budget to $20 million after initially committing $10 million earlier this year before the pandemic was in full swing.
“This will be a knockdown, drag-out fight to the very end. I spent election night 2016, not in the hotel ballroom, but rather in election headquarters sending recount lawyers to states because the races were so tight in so many places,” Trump campaign manager Bill Stepien told reporters Friday. “I expect our campaign will be doing the same exact thing in just about 100 days.”