In the final weeks of the presidential campaign, both sides are fighting for votes in a handful of battleground states. But another fight is going on in courtrooms around the country to determine how those votes are cast and how they're counted. Our legal correspondents Luc Cohen and Jack Queen lay out the state of this legal fight and where it goes next - whether that's a local election board or the US Supreme Court.
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In the final weeks of the U.S. presidential campaign, both sides are fighting for votes and a handful of battleground states. But at the same time, another fight is going on in courtrooms around the country to determine how those votes are cast and how they're counted. This surge of litigation is the first phase of a legal fight that could get ugly, especially if the election is as close as polls suggest. As we learned in 2000, it's possible for elections to be decided in court, and Democrats and Republicans have amassed a veritable army of lawyers to prepare for any outcome. On today's special episode of Reuters World News, our legal correspondence on the state of this legal fight, and where it goes next, whether that's a local election board or the U.S. Supreme Court. I'm your host Jonah Green. Luke Owen and Jack Queen have been reporting recently on the legal challenges that work in this campaign, and they join us now. Hi, guys. Hey, Jonah. Hey, Jonah. How you doing? So to neatly organize our little chat today, I'm going to ask you about the before, the during, and the after for these legal efforts. But first, just generally speaking, what is it exactly that Democrats and Republicans are doing in courtrooms as we speak? So in very general terms, Democrats typically go to court to try to protect access to voting or to broaden access to voting, whereas Republicans typically ask judges to impose more security measures and promote what they describe as election integrity to prevent voter fraud. And Jack, you've even more focused on the Republican side of this question. And so that's where there seems to be more action, at least at this point, right? So what is happening right now in terms of how they're trying to change the rules, or as they would say, safeguard the vote? Yeah, I think it's fair to say the Republicans have been quite a bit more active in terms of litigation. The Republican National Committee says that it's involved in more than 120 lawsuits across 26 states. It's a little unclear what exactly they mean by that they haven't filed 120, but they're very active in this space. They have a lot of lawyers on the ground filing cases in courtrooms across the country. And what's the common thread here is really that they're being more proactive than they were last election cycle in 2020. After Trump lost in 2020, they filed more than 60 lawsuits seeking to overturn the results. And a lot of that was kind of reactive, whereas this time they're trying to get out in front of a lot of these arguments about election security, raising concerns about potential fraud and stuff well in advance of the election. And a lot of legal experts and observers say that this really appears to be a strategy of laying the groundwork ahead of time to not only sort of set the rules of the road as best they can before the election, but also prepare the ground to challenge the results more effectively if Trump were to lose. Can you give us a few examples of what they're trying to do in these key battleground states that they're in right now? So in Pennsylvania, there's a lot of litigation limiting how many mail-in ballots can be counted, whether or not they can be counted if they have small errors on them, like missing dates, things like that. No Republicans would say this is just to prevent fraud and that it's election security. But it's worth noting that in Pennsylvania and around the country, Democrats tend to vote by mail at a much higher rate than Republicans. In Michigan, there are lawsuits over the use of mobile voting fans and the state's directive allowing various state agencies to register voters like the Small Business Administration. There's litigation to block that. And in Arizona, you have litigation over the entire election procedures manual, which is this 200-plus page playbook for how the election's going to be administered. There's been a lot of litigation over that. And in North Carolina, you have litigation over whether or not students at University of North Carolina system can use their student IDs to vote. So really, the common thread through a lot of those is what Democrats would describe as efforts to prevent people from voting. What Republicans would say is aimed at ensuring that only ballot ballots are cast and counted. And Luke, what's the Democratic strategy here? The Democratic strategy has overall been more defensive. They have intervened in lawsuits or filed lawsuits where they've felt like they've had to or they feel like Republican actions are risking what they view as a free and fair election. But overall, they have not been turning to the courts to try to change rules to the same extent that Republicans have. A lot of that is because the Republicans, they are starting from the standpoint of this election will not be free and fair unless we take action, whereas the Democrats, their position is that the systems are in place for the U.S. to have a free and fair election, so they don't feel the need to go to the courts as much unless they view Republicans taking some action to threaten that. So some instances in which they are playing defense are in Georgia, for example, where the state election board has passed a number of new rules in the last several months. One would require a hand count of all ballots. Another rule would empower local election boards to essentially conduct a full investigation of votes before certifying the election, which Democrats argue would be a way for rogue local officials to delay certifying the vote if their preferred candidate doesn't win, which could potentially have consequences down the road for the presidential transition. So we've established what is happening before, and now there are also very grand plans of what lawyers in each campaign or in each party might be doing on election day. So what is going to happen when we all actually go to cast our ballots? So each side is going to be deploying massive groups of poll watchers, volunteers, election lawyers to be on the ground in all of these different precincts and locations, and it's really going to be an unprecedented effort in terms of scale. This has always been something that campaigns do, but this year it is just absolutely an overdrive. The Republicans claim that they have recruited more than 100,000 people to be involved in this effort. Democrats are shooting for similar numbers, and what they're tasked with doing by these campaigns is just being on the ground and reporting anything up the chain that they think is fishy or suspicious, whether it's nefarious or not, it could be something like a polling place didn't open on time or it closed early or they ran out of ballots, things like that. All of that's the type of stuff that would be reported up to these campaign task force ground game operations, so to speak, who then have tons of lawyers available to do whatever they need to do to rectify those problems, whether or not they'll be filing emergency motions with courts, asking judges to compel precincts to do something different, things like that. We'll have state courts open 24 hours a day ready to receive these petitions that might be coming in on an emergency basis. In some states, in particular, these battleground states, you've seen secretaries of state and attorneys general coordinating with the judicial branches to make sure that everyone's ready to deal with potentially a deluge of election night lawsuits the day after and the day after and the day after. It's going to be a very, very busy time for these state courts, and they've been doing a lot of preparation to get ready for that, but we'll see how that holds up. Okay, that sounds messy. Assuming we get through all that, and there is a result that perhaps one side doesn't be like, will we see a repeat of the flurry of legal challenges like we did in 2020? In the event of a close election in any particular state, there are well-established procedures to contest the vote, to order a recount, and there are laws in place in each of these states for that to happen in an orderly and court-supervised way. I think what the parties and particularly Democrats are concerned may happen this time is in the event of a Harris victory in a swing state, you may have Trump supporting officials on local county boards who may delay decline to certify the results. Now, Congress amended the law in 2022 to effectively make that more difficult at the federal level to clarify that the vice president's role in certifying the election was primarily ministerial, so pretty much a ceremonial task, and they made some other changes as well. So it's less likely that we see those same tactics, I think, at the federal level this time around. But what's happened since 2020 is in a number of counties during midterm elections, during primary elections, there have been officials at the local level who have resisted certifying the results. Ultimately, that none of those instances has had such a huge impact. The state officials have stepped in, courts have stepped in, and in each of the swing states there's the potential for civil or criminal penalties against some of these officials should they refuse to do their duty. There's generally confidence that state officials will step in, and that laws in the battleground states are adequate to potentially deal with that. But we've never quite seen an instance in a presidential election where multiple officials in a state try to do this at once, so there's the risk of there being a lot of noise and confusion that potentially candidates at the federal level could use, try to make an argument as to why the election wasn't fair or somehow shouldn't be counted. Yeah, it's worth noting, too, that as Luke was just describing, the whole process at the county and state level is very, very decentralized. And it relies on a lot of low-level officials acting in good faith and carrying out their largely ministerial duties and not going rogue and trying to do things like investigate totals or dispute totals rather than simply respecting the results and certifying them up. I mean, we rely on local election officials to be disinterested, nonpartisan. I think that's increasingly not the case. There's a lot of pressure on these people. We've seen a lot of election officials resigning, quitting, because it's just not worth it to them anymore to put up with all of the craziness. And the concern, I think, among a lot of people is that we're increasingly seeing those people replaced by people who do have political agendas and are going to use whatever tools are available to them to try to advance them. We've seen that play out with Trump supporters getting on local county boards and maybe trying to use processes that had previously been seen as ceremonial, as potential tools to shape the election outcome they want. I don't think that's a concern that we necessarily would have had before 2020. The extreme example, if a state is unable to get its results certified in time, would be that it is excluded from the total in the end at the Electoral College. And that would be very, very extreme. I don't think many people are too concerned about that happening because, again, as Luke mentioned, there are a lot of remedies available to states to basically compel state officials to do their duties and certify the results up. And we have examples of, for instance, in Arizona, there were a couple of county officials there who, in a previous election, refused to certify the results. And they are now under criminal indictment for that. Is there any scenario that the Supreme Court does get involved in this election? Yeah, that's tricky to game out, but it's certainly reasonable to expect that some post-election disputes could reach the Supreme Court as they have in the past, most famously in the 2000 election between George W. Bush and Al Gore. But the reason why it's tricky to predict that is because that would likely be very fact-dependent and sort of depend on what actually goes down and happens on the ground and provides a basis for a challenge. Trump has a lot of ideological allies on the Supreme Court. It is dominated by a conservative majority, including several of his own appointees. However, in the 2020 election, the Supreme Court largely stayed out of all the post-election disputes and didn't really give the time of day to any of the claims of mass widespread fraud that should be the basis for overturning results. So whether or not they step in this time, it really sort of depends on what happens. How much of what we are anticipating is a result or a reaction to what happened in 2020 after Trump lost? A lot of the litigation that is happening right now is really downstream of 2020 in many ways. A lot of the issues that were raised then are still, even though they were roundly rejected by the courts, in particular, Republicans are still bringing them up, particularly the concerns about mail-in voting in Pennsylvania, for instance. That was litigated exhaustively in 2020 and it's being litigated exhaustively now. I think you could sort of think of all of the litigation that happened in 2020 as maybe not necessarily a dress rehearsal for what's coming, but certainly planting the seeds of what we're seeing now. Well, I feel like both sides have learned lessons about what worked and what didn't work, right? Right. I mean, I think the main lesson that Republicans seem to have drawn from it is that it's better to get out in front of these issues and be early rather than being reacting to everything after your candidate has already lost. That certainly seems to be the lesson there. For Democrats, the lesson seems to be they need to be very vigilant, especially to all of these local and county-level officials, the activities of local election boards, things like that. At bottom, the 2020 election was probably the most litigated in American history, and I think everyone who I've spoken to expects this cycle to be even more explosive in terms of litigation. I mean, we already have a lot more lawsuits, we already have a lot more lawyers involved, and we see both campaigns really gearing up for just litigating all the way down to Election Day and then starting basically a whole new round after Election Day. So what we're seeing right now, I think, is sort of the warm-up phase. Well, thank you both for talking. I appreciate it. Thanks, Jonah. Thanks again to Luke and Jack, and to keep on top of the races we near Election Day, tune into our daily headline show or check out Reuters.com or the Reuters app. Reuters World News is produced by Gail Iza, Sharon Reisch-Garson, Christopher Wall Jasper, David Spencer, and me, Jonah Green. Our regular host is Kim Vanell. Sound design and musical composition by Josh Summer. Our senior producers are Tara Oakes and Carmel Krimans, and our executive producer is Lila de Kretzer. To stay in the know, make sure to subscribe to this podcast on your preferred platform or download the Reuters app. (upbeat music)
