Despite the bipartisan divide that’s threatening to tear the country in two, one unifying theme throughout this election cycle has been the importance of every individual vote. We’re seeing historic levels of voter turnout. Whether in the form of mail-in ballots that have surged in popularity due to the pandemic, early voting where it’s allowed, or hours-long election day lines, people are exercising their civic right to vote like never before. The message is that every vote matters. But there’s one key, behind-the-scenes factor in allowing this theme to ring true that many overlook: lawyers.
Lawyers are the crucial component in ensuring that the message being spread is true. They are the ones working tirelessly to fight voter suppression and guarantee that your vote counts and subsequently matters. One lawyer spearheading the fight is Democratic election lawyer Marc Elias.
Unbeknownst to the general public, a majority of whom have been impacted by his work, Elias has been actively fighting cases in over half of the U.S. states. He’s dealt staggering blows to Republicans attempting to throw out or block votes, winning impactful cases in Texas, Wisconsin, Michigan, and many more. Opening up the gates to allow everyone a fair chance to vote is one stop, but what’s happening now, in the days after the election, is just as important.
Presidential elections typically come down to a number of key states, or really, counties. We knew the west coast was going to light up blue and that the midwest would turn red. It’s the handful of states left, where the race is extremely close, that decide our country’s fate. Among them are Michigan, Pennsylvania, Nevada, Wisconsin, Georgia, Arizona, and North Carolina. The exceedingly high number of votes will undoubtedly result in delays, but the lawsuits and contention that follow will be responsible for the extension of ambiguity and anticipation.
As of now, Joe Biden has won Wisconsin—a massive victory for the Democratic party as the state previously went red in 2016. “As of now” is key, because the Trump campaign has already called for a recount. Currently, Biden has a .624 percentage lead out of the total 3.3 million ballots cast.
There are 43 states that allow for losing or concerned parties to petition for a recount if they pay the cost. This is where we see lawyers working overtime to make sure there’s no cases of voter fraud, ballots are counted, and things are fair. With voting laws differing state to state, these election recounts are handled by state legal systems rather than the Supreme Court. Well, usually.
The presidential election of 2000 between George W. Bush and Al Gore didn’t name a clear winner until three weeks after election day. The close race came down to Florida where 537 votes edged Bush over Gore. In the weeks that followed, electronic and by-hand recounts ordered by the Florida Supreme Court were appealed by Bush and sent to the Supreme Court. A conservative court majority makeup handed down the ruling that the recounts must stop due to time restraints and a lack of clear guidance—and with Bush already ahead, he received the electoral votes and therefore won the presidency.
Florida won’t be under a microscopic lens anymore this year, but other key states could be. Bush v. Gore has already been invoked by the Republican party, notably in North Carolina in attempts to void ballots turned in after election day—even if they were postmarked on time. That argument was rejected, thanks to lawyers working again to ensure every vote counts and the system is fair.
Despite any backing to the statement, President Trump announced in his speech early Wednesday, “We’ll be going to the U.S. Supreme Court.” This left many legal experts on both sides confused, as there is little reason currently to support election recounts going to the Supreme Court. Cases that have made appearances in the high court are already on Trump’s side, so there wouldn’t be reason for him to contest anything there. Even if it did reach the high court, there isn’t much indication that it would side with him on throwing out ballots, based on other decisions this year.
Even though the 2000 election did make it to the Supreme Court, that was a rare instance in which less than 600 votes separated the candidates, the Florida Supreme Court couldn’t resolve the issue on its own, and weeks of legal battle led the national Supreme Court to stop the count on the basis of time. Both The Guardian and Politico explain further on what would make an appearance in the Supreme Court highly unlikely—and rather unhelpful for Trump—at this stage.
With Democrats voting by mail more often than Republicans, and an influx in mail-in ballots this year, Bush v. Gore could definitely be utilized by Trump’s campaign in an effort to block those votes from counting.
Two significant lawsuit right now, handled by Elias of the Democratic National Committee, involve essential swing state Pennsylvania. One lawsuit cites an unlawful counting of mail-in ballots before election day and orders the state to temporarily stop counting mailed ballots. Another suit seeks to prevent the counting of provisional ballots cast by voters who were notified that their mail ballots were rejected. Michigan, another state that could determine the presidency, is also being sued by the Trump campaign in an effort to halt the counting as well. Currently, Biden leads Michigan by fewer than 38,000 votes.
To summarize, there are currently lawsuits in play in the influential states of Michigan and Pennsylvania, and the Trump campaign has ordered a recount of Wisconsin. A fair election where every legal vote counts is the ideal outcome. Elias’s site Democracy Docket has breaking live updates and a post-election war room to keep viewers up to speed on the election and the legal forces at work.