Below is my column in The Hill on ongoing controversy over counting votes in states like Nevada and Pennsylvania. Some of these challenges stem from opposition to observer and observer in states like Pennsylvania. It’s amazing why Pennsylvania fights so hard against such access. The litigation only fuels suspicion of misconduct, as the balance of votes shifts dramatically. The problem is that a court might ultimately agree that the officials are violating the laws of the state, but declare these challenges effectively disputed as the vote count is largely complete. For other challenges, the litigants must convince a court that the number of ballots involved for the votes could be “determining the outcome”. Otherwise it could be considered irrelevant to the result. These challenges must be posed and supported immediately. Time works to the benefit of the party protecting a lead. The allegations of system violations still have to be raised by the Trump campaign. With no real evidence, Joe Biden has a clear path to 270 votes and the White House.
Here is the column:
A presidential election legal analysis is often like a medical examination of a patient in complete cardiac arrest while riding a roller coaster. For a country on the verge of unrest and claims of “coups d’état”, this is hardly an ideal premise for dispassionate legal analysis.
For those of us who reported on the 2000 and 2016 elections, we tend to quickly isolate those controversies that may actually change the results, as opposed to less impactful controversies in different states. It’s a kind of legal triage: irregularities in states like New York or Louisiana are thrown aside because they are not “determinative”. Instead, we focus on those “patients” whose status can be changed through judicial review.
We started election day with an unusually high level of litigation, including cases that made it to the Supreme Court. More than 300 lawsuits have been filed in dozens of states. Many of these are “wildcard” challenges to find a way to attack results when a particular state turns out to be a key competition. Three states are now emerging as candidates for challenge: Nevada, Michigan, and Pennsylvania. Jurisprudence favors these states in defending their local regulations, but valid challenges have already been posed by the courts.
My choice of Nevada was based on three main criteria. It was facing new and unprecedented voting systems, there were late changes to standards or practices, and it would be tight. It met all of these legal triage requirements. The prevalence in Nevada is currently a few thousand votes, and early objections to the voting table are now heightened. The main challenges focus on the practices used in Las Vegas.
Prior to election day, Trump campaign chairman Adam Laxalt complained that Las Vegas officials locked monitors to record objections to ballot handling. There was also a challenge in using an optical scanning device to verify that the voter signatures were set with an insufficient degree of discrimination. And there are more specific challenges, like a lawsuit focused on the culinary association and the claim that its members who lived outside of the state voted in the swing state.
New records were filed in Clark County showing more than 1.2 million ballots sent to voters, accounting for 71 percent of the total state vote. The new papers were submitted to request pictures and mail-in voting procedures. Nevada has the advantage of making early decisions in favor of election officials. In addition, a challenge and a partial recount in 2016 resulted in virtually no change in the number of votes. Nevada, however, remains a strong draw for litigation as the limit for flipping the result is closest in terms of profit margin.
Michigan was recounted in the last presidential election due to the close vote between Trump and Hillary Clinton. Detroit has a long and checkered history of voting irregularities. There were a large number of mismatched ballots in primary school, particularly in areas of absence; These problems were attributed to “human error” and officials insisted that new electronic voting tables and better training would solve the problem. However, the administration has filed a challenge to the lack of access to the procedure and to the ballot papers.
Michigan’s law makes it harder to question results. The 2016 Michigan recount was halted under that law after it began at the request of the Green candidate, Jill Stein. The result was a win of just 102 votes for Clinton. While a recount could be initiated when margin is tight, Michigan’s law greatly favors the tables of local officials.
Pennsylvania remains a purposeful environment for challenge. Court changes ordered to the state’s electoral laws have sparked fierce opposition, including state and federal constitutional claims. That matter went to the Supreme Court, which got stuck when Chief Justice John Roberts voted with his Liberal colleagues, leaving a lower court order unchanged and voting continued. Yet the legal can that kicked Roberts down the street could now head back to court in full force with the addition of Justice Amy Coney Barrett.
Issues in Pennsylvania could include postmarked ballot papers (which are ruled by the state Supreme Court must be counted) and rejecting signature mismatches as a basis for ballot invalidation. There are new complaints that officials “cure” faulty ballots and allow disqualified voters to fill out ballots. These measures could eliminate small amounts of votes that, together, could have an impact. However, it is not clear how many ballots would face such challenges or whether these numbers would change the outcome.
Other states like Arizona, North Carolina and Wisconsin have challenges that are submitted. However, a significant question remains whether such challenges could turn states around. The most promising challenges are categorical, where thousands of ballots could be rejected based on when they were received or the standards used in their tables. Three other lawsuits filed by the Trump campaign the day after the Pennsylvania, Michigan and Georgia elections seek access to closely monitor the ballot count, a claim that delays rather than determines the outcome.
However, most of the previous challenges in these states have not resulted in significant flipping or negation of votes. This is different from Florida in 2000, where thousands of votes literally hang on a Chad and voter intent could be called into question because of a ridiculously designed “butterfly” ballot that seemed to confuse older voters.
Each choice brings its own set of challenges. This time around, some machines had trouble reading ballot papers because many voters left hand sanitizer residue. (We might have expected child-like challenges, but not Purell challenges.) However, the current challenges will mainly focus on technical mailing and tabular systems, topics that states have great respect for. The possible impact depends on the narrowness of the leeway. This is a competition just inches from progress.
However, one thing is perfectly clear: this is not a way for a developed nation to hold elections. After the divisive elections in 2000, I called on Congress to use federal funds to enforce uniformity in electoral laws and standards. Instead, Washington has done what it always does. A commission was formed that lasted two years and resulted in the Help America Vote Act, which meant helping local politicians raise billions in federal funding. A few billion dollars was thrown away faster than a hanging Chad from Dade County. Every year we have dysfunctional elections and a lack of uniformity despite billions in federal funding. As Dolly Parton once said, “It costs a lot of money to look this cheap.”
Jonathan Turley is Shapiro Professor of Law of Public Interest at George Washington University. You can find his updates online at JonathanTurley.