2020 is on track to become the most litigated U.S. election season ever
BY:
Alexis de Hahn
Avocat Reporteur
PROJECT COUNSEL MEDIA
7 August 2020 (Paris, France) – The coronavirus may have sent overall U.S. unemployment into the double digits and whacked the legal industry. But it’s a sort of full-employment act for election law attorneys.
Ah, America, the most litigious society in the world:
• According to the Department of Economics at Emory University, the U.S. spends 2.4 percent of gross domestic product, roughly $514 billion a year, on litigation.
• In his book, “Exploring Global Landscapes of Litigation,” Christian Wollschlager notes that the litigation rates in the U.S. per 1,000 people shows 74.5%.
• An article in a 2018 issue of the Fordham Urban Law Journal noted that the U.S. has more than twice as many lawyers per capita than the next highest … Germany .. and has more than six times as many civil cases per capita (and five times as many criminal cases per capita) as Germany, another high-litigation country.
So, America, it’s election time and that means … it’s time to lawyer up!
NOTE: In 2017, I worked for a U.S. law firm and spent the year on EPIC v. Presidential Election Commission, a case that challenged the unlawful collection of personal voter data. It was a smörgåsbord of issues: the unlawful collecting and retaining of millions of state voter records, multiple egregious security blunders by U.S. agencies, identity theft and financial fraud. It was a master class in U.S. politics – “U.S. Electoral Process 101”.
The big picture: The prospect of extended court fights over COVID-19-related voting changes, an absentee ballot avalanche, foreign interference and contested presidential results has prompted a hire-all-the-lawyers binge by candidates and campaigns, and not just in swing states but around the country. Kim Kasterly, a lawyer for the Democratic National Committee, told me “no one wants to be stuck in a recount without local counsel ready to work after hours and file suits quickly. That makes preemptive lawyering-up at the states and county level as important as securing big national names. We may need to employ 50,000 election attorneys across the country this fall”.
What the Republicans are saying: Last night on BBC America, Jessica Johnson, a Republican election lawyer whose firm focuses on political committees, campaign finance and election law said “I would beg candidates and campaigns to get counsel on retainer well before the election”. Among the reasons she noted:
- Candidates and parties simply need to understand who to call if results or ballots are in dispute. She is running an initiative called the “Volunteer Attorney Network” which is training attorneys how to handle Election Day. Democratic Party operatives are doing the same.
- The election legal work is “going to be on steroids this year” given the complexity of technology and tactics this year. So having capable local counsel is critical, she says: “quite frankly, elections will be won or lost in the myriad of disputes that will arise after the votes are in. It’s just the way the American political system works now”.
But the litigation has already begun. A barrage of court rulings and lawsuits over the last year has turned one of the most divisive elections in memory into one that is on track to be the most litigated ever. With voting amid a pandemic as the backdrop, at stake are dozens of lawsuits around the country that will determine how easy – or hard – it will be to cast a ballot. Just a few things our election legal team is following:
• Justin Levitt, an election scholar and associate dean at Loyola Law School in Los Angeles, has been tracking nearly 130 pandemic-related election lawsuits.
• The firm of Marc Elias, a lawyer who frequently represents the Democratic Party, is pursuing more than 35 voting rights cases, a number he calls an order of magnitude greater than in the past.
• The Republican National Committee, which pledged this spring to spend at least $20 million fighting attempts to loosen voting rules, boasts of filing or intervening in 19 suits to date.
• We just received a copy of “Election Meltdown” by Richard L. Hasen, a legal scholar at the University of California-Irvine. He has calculated that election-related litigation nearly tripled on average between 1996 and 2018. In an interview on BBC last weekend he said 2020 is on track to become the most litigated U.S. election season ever.
And over at Biden HQ … the campaign is planning an election program that includes volunteer lawyers who will focus on poll monitoring and watching for potential voter suppression, as well as substantial funding for election law specialists: “The program underway this year is the most elaborate, highly resourced program of its kind,” said Bob Bauer, a former White House counsel under President Obama who’s working with the Biden campaign.
And over at Trump HQ … the Republican National Committee is coordinating the legal fight for the Republicans, along with the Trump campaign and volunteers across the country. They’re already involved in legal challenges in 17 states.
Why it all matters: As noted above, election-related lawsuits have been on the rise for the past two decades, but the coronavirus has supercharged them. Just a few other points as examples:
• Georgia Democrats this week sued the Republican secretary of state over the the long wait times — in some cases more than eight hours — that some voters faced in the June 9 primary.
• Courts are forcing some states to write new rules or laws to preserve the constitutional right to vote during a global pandemic, without opening the door to massive fraud.
• North Carolina could see a tenfold increase in mail-in ballots. And a federal judge in the state ruled this week that primary voters who had their ballot thrown out must be given a second chance to prove that their ballot was indeed valid. That decision could result in as many as 100,000 additional votes being ruled valid in November, votes that otherwise would have been discounted. The Republicans will appeal the decision.
What to watch: Dale Ho, director of the American Civil Liberties Union voting rights project (they have posted a number of jobs through our job placement site) was recently interviewed and he made the following points:
• Issues with people not receiving absentee ballots in time due to postal service delays are going to be a huge issue.
• Another big one: concerns over rejected absentee ballots
• Disruptions at polling places because of poll worker shortages will fuel litigation around and after Election Day, and the ACLU’s voting rights project team is assembling groups of attorneys at 1,000s of polling districts across the U.S.
• He noted a third of the states have changed mail-in voting laws because of the virus, a trend driving much of the current and anticipated litigation.
Or you could just gut the U.S. Post Office … as Trump seems to be doing, by placing a top Republican fundraiser and Trump ally into the position of Postmaster General which Trump did in May, naming Louis DeJoy to the post. He is a North Carolina businessman who was previously in charge of fundraising for the Republican National Convention in Charlotte, and now in control of an agency that Trump has deemed to be “rigged.” Indeed, it very well might be now. Well, there are a string of complaints across social media how mail is being purposely slowed to frustrate people and make them believe the U.S. Post Office is incompetent. The latest rumor, which is highly improbable because it would take a lot of work and coordination, is that the post office is intentionally losing and delaying delivery in only swing states that are leaning toward Biden. But, something is going on, and I’m wondering if it goes deeper than the issues over pandemic deliveries.
Legal disputes over results are less likely to succeed in any states with landslides and that is what Democrats are pushing for. And, obviously, any close election contests will almost certainly be litigated.
But this blizzard of litigation reflects the high stakes in 2020. Having seen the 2016 presidential race defined by harrowingly close margins in swing states, strategists are scrambling for the advantages conferred by even minor clauses in election rules. Some experts call it early to assess the impact of the suits, partly because many remain undecided, and because important ones still may be filed. But they say some trends bear watching. Laurence Tribe, the American legal scholar whose scholarship focuses on American constitutional law and who is probably well-known to most of our readers, noted the following on his Twitter feed (I’ve combined about 45 of his Tweets to create a more coherent narrative):
• One is how much the seeding of federal courts with scores of judges chosen by the Trump administration will affect litigation that could weigh on election outcomes. The ruling that restored voting rights to some Floridians with felony records, for example, will be reviewed by the U.S. Court of Appeals for the 11th Circuit, which has flipped from majority Democratic to majority Republican under Trump.
• Equally notable is the willingness of federal judges to jump into cases in the midst of the elections themselves, blocking lower-court decisions even when voting is imminent. The Supreme Court blocked the loosening of Alabama absentee ballot rules last month even though the runoff election it affected was less than two weeks away and some absentee ballots had already been issued. The 11th Circuit decision to review the Florida felons case placed in limbo a throng of potential voters who had only weeks to register if they were to cast votes in a critical swing state.
• The rulings reflected how much power courts had even when they did not rule in cases. The ability of the courts to press the pause button is a way of running out the clock. Litigants know it, and the courts know it. In the Florida case, the appeals court at the very least has created massive uncertainty in a population of individuals that has been disenfranchised.
The battle lines in this year’s disputes are stark, with voting rights groups and Democrats aiming to ease restrictive regulations, and Republicans and conservatives playing defense, trying to preserve them. To the Republicans, the goal is to protect the laws that are already on the books. When Democratic lawyers are going into states trying to strip away things like ballot security and signature verification, those are the main things they are fighting against. In general, the Republicans are succeeding.
Michael Wines, a national correspondent for The New York Times who writes about voting and other election-related issues and who has his own blog, has made some interesting points over the last month. A mash-up from his NYT articles and blog:
• The barriers to voting posed by the pandemic have raised the stakes. Voting by mail is the prime battleground. Thirty-four states and the District of Columbia allow excuse-free absentee voting, most likely ensuring that November’s election in those places will be conducted largely by mail if the pandemic persists. Many of the remaining states loosened mail-balloting rules for primaries, and some have moved to do so for November as well. But Republicans – led vocally by Trump – have insisted, without evidence, that loosening absentee ballot rules invites widespread fraud.
• The vote-by-mail legal battles run the gamut of election rules and will require an army of lawyers. There are fights over whether to let voters vote absentee at all, whether to automatically mail them ballots or ballot applications, whether to relax witness requirements for absentee ballots and even over how ballots should be collected.
• Democrats and voting rights groups have won some key disputes: In Nevada, a no-excuse absentee balloting state, the courts upheld the state’s plan to mail absentee ballots to all active voters over Republican objections. In Minnesota, another no-excuse state, Democrats persuaded a judge over Republican objections to suspend a requirement that absentee ballots be signed by a witness, a condition some voters could struggle to meet in a pandemic.
• But Republicans have prevailed elsewhere. In Wisconsin, they went to the Supreme Court in April to thwart plans by the state’s Democratic governor to delay the primary election because of the coronavirus and allow further absentee balloting.
• Another potential battleground, Texas, tightly restricts absentee voting by anyone under 65. The Republican-controlled government has blocked lawsuits by the Texas Democratic Party seeking to open mail balloting to all citizens, in part because of the pandemic. In the wake of a U.S. Supreme Court decision last month not to step into that dispute, most Texans appear likely to vote in person in November, the pandemic notwithstanding.
I’ll leave the last word to Dale Ho, the director of the voting rights project at the American Civil Liberties Union, who I introduced above:
These fights are as much about firing up supporters – and motivating them to make contributions – as they are about winning. The Republican Party’s $20 million litigation pledge has generated more publicity than success, just looking at the hyperbolic language.
But you cannot underestimate the stakes in any of the cases. The rules really matter. It’s how American politics has changed. You can either start by jumping onto the playing field with really good candidates, or you can start by reading the rulebook and seeing how it can be and will be manipulated . Because if you don’t read the rulebook, don’t have your legal team at the ready, you can put the best players on the field and still be at a disadvantage.
