Why the 2020 Election Could Come Down to the Courts | Time - 0 views
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When Chief Justice John Roberts joined his three liberal colleagues on Monday to uphold Pennsylvania’s Supreme Court decision extending the deadline for accepting absentee ballots, Democrats were ecstatic.
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But Democrats’ excitement was tempered by a lingering anxiety that their victory may be short-lived. The ruling remains in place only because the U.S. Supreme Court is deadlocked.
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This past year, Democratic and Republican lawyers have filed hundreds of election-related lawsuits in state and federal courts, putting this election on track to become the most litigated in history.
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If the final vote tally ends up being close, election experts say that both Democrats and Republicans will likely take the matter to court—increasing the possibility of another Bush v. Gore-style stand-off in which lawyers and judges, rather than the voters, ultimately determine the next President.
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They argue that making it easier to apply for, vote, deliver, and count mail ballots facilitates fraud, thereby diluting the votes of those who play by the rules. So far, the rival teams appear to be in a dead heat. “Depending on the week, you may say it’s a very good Democratic week or a very good Republican week,” says Nathaniel Persily, a Stanford Law Professor.
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Nearly every time states have implemented a change, it’s been followed by a lawsuit. There have been at least 380 election-related lawsuits solely stemming from the pandemic, according to the Stanford-MIT Healthy Elections Project.
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To the extent that it can be simplified, this year’s election-related legal brawls can be distilled into two groups: a push to eliminate expanded mail-in voting policies on the basis that they would produce unprecedented fraud, and a push to ease the restrictions already in place.
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Similar examples of litigation whiplash have played out across the country—each time banking a victory for the GOP.
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Progressive watchdogs also point to another factor. Since taking office, Trump has appointed 53 appellate court judges, according to July data from the Pew Research Center, most of whom are reliably conservative and tend to sympathize with the Republicans’ legal positions.
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Both Republicans and Democrats are actively preparing for the possibility of a pitched, multi-front court battle after Nov. 3. “We have been planning for any post-election litigation and recounts for well over a year and are extraordinarily well-positioned,”
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Any post-Election Day litigation is most likely to involve swing states, crucial to determining the Electoral College winner, that end up having tight vote counts. Pennsylvania, Michigan, Wisconsin, Florida and North Carolina are all high on the list of possibilities, and top election officials in these states are girding for battle.