The stormy, once-in-a-lifetime Florida recount battle that polarized the nation in 2000 and left the Supreme Court to decide the presidency may soon look like a high school student council election compared with what could be coming after this November’s election.
Imagine not just another Florida but a dozen Floridas. Not just one set of lawsuits but a vast array of them. And instead of two restrained candidates staying out of sight and leaving the fight to surrogates, a sitting president of the United States unleashing ALL CAPS Twitter blasts from the Oval Office while seeking ways to use the power of his office to intervene.
The possibility of an ugly November — and perhaps even December and January — has emerged more starkly in recent days as President Trump complains that the election will be rigged and Democrats accuse him of trying to make that a self-fulfilling prophesy.
With about 85 days until Nov. 3, lawyers are already in court mounting preemptive strikes and preparing for the larger, scorched-earth engagements likely to come. Like the Trump campaign, Joe Biden’s campaign and its network of Democratic support groups are stocking up on lawyers, and Democrats are gaming out worst-case scenarios, including how to respond if Trump prematurely declares victory or sends federal officers into the party’s strongholds as an intimidation tactic.
The emerging battle is the latest iteration of the long-running dispute over voting rights, one shaped by the view that higher participation will improve the Democratic Party’s chances. Republicans, under cover of dubious or unfounded claims about widespread fraud, are trying to prevent steps that would make it easier for more people to vote and Democrats are pressing more aggressively than ever to secure ballot access and expand the electorate.
But that clash has been vastly complicated this year by the challenge of holding a national election in the middle of a deadly pandemic, with a greater reliance on mail-in voting that could prolong the counting in a way that turns Election Day into Election Week or Election Month. And the atmosphere has been inflamed by a president who is already using words like “coup,” “fraud,” and “corrupt” to delegitimize the vote even before it happens.
The battle is playing out on two tracks: defining the rules about how the voting will take place, and preparing for fights over how the votes should be counted and contesting the outcome.
“The big electoral crisis arises from the prospect of hundreds of thousands of ballots not being counted in decisive states until a week after the election or more,” said Richard Pildes, a constitutional scholar at New York University School of Law.
If the candidate who appears ahead on election night ends up losing, he said, it will fuel suspicion, conspiracy theories, and polarization.
Some flash points have already emerged:
• A long-troubled Postal Service, now run by a Trump megadonor and seemingly overwhelmed by the prospect of delivering tens of millions more votes cast by mail with an administration resistant to providing substantial new funding.
• Concern among Democrats that Trump or Attorney General William Barr could use their bully pulpits to raise loud enough alarms about voter fraud to lead sympathetic state and local officials to slow or block adverse results.
• Fights over whether mailed ballots should be counted if received by Election Day or simply postmarked by Election Day, not to mention what to do if the post office does not postmark them at all.
• Fights over the use of drop boxes to return ballots and the number of polling places for in-person voting amid the risk of disease.
• Fights over whether witnesses should still be required for absentee votes in a socially distant moment and what to do if signatures do not match those on file.
Democrats and their allies, led by Marc Elias, the general counsel of the Democratic National Committee, are seeking to expand voting options, particularly through mail-in voting. They have active litigation in numerous battleground states, pursuing relief on deadlines, signature and witness requirements, among others.
Republicans said their own court efforts were aimed at preventing Democrats from changing the rules in the middle of the game.
“People are viewing it as an attack on vote-by-mail,” said Justin Riemer, the chief counsel for the Republican National Committee. But in fact, he said, “it’s by and large protecting the safeguards that are in place.”
Some Democrats even express fear that Trump would send federal agents into the streets as he did in recent weeks in Portland, Ore.