National campaigns gear up for 'litigation arms race'

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, reported TIME. One reason for the deluge is COVID-19, which compelled most states to expand access to absentee and mail-in voting, add ballot drop boxes, or tweak deadlines and other requirements. 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. In 2016, there were 337 lawsuits total, according to data compiled by Rick Hasen, a law professor at the University of California-Irvine. Ned Foley, an election law expert at Ohio State University, has described this year as “a litigation arms race.”

For both the Biden and Trump campaigns, the ideal scenario is for their respective candidates to win the popular vote and electoral college by such indisputable margins that post-Election Day litigation becomes moot. Current polling indicates it is much likelier for Biden to accomplish this objective than Trump. But polling suggests that there are plenty of ways that this one could be a squeaker. While Biden leads in national polls, the margins are much tighter in several swing states, and his campaign is openly saying the race is closer than the numbers indicate. “The closer the outcome, the easier it is to litigate,” says Foley, of Ohio State University.

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,” Justin Riemer, the Republican National Committee’s chief legal counsel said in a statement to TIME. “With the help of our national network of attorneys, the RNC has been beating the Democrats in court for the last several months and that will continue should they attempt to sue their way to victory in November.” The RNC also said they intend to train thousands of lawyers to handle litigation surrounding Election day, post-Election canvassing, and possible recounts. (The Trump campaign declined to comment when asked which lawyers would be involved; the RNC did not respond to a request for further comment.)

The Biden campaign is amassing its own team of lawyers—a force it describes as the largest election protection program in presidential campaign history. “We can and will be able to hold a free and fair election this November and we’re putting in place an unprecedented voter protection effort with thousands of lawyers and volunteers around the country to ensure that voting goes smoothly,” said Dana Remus, general counsel for the campaign, in a statement. The team, led by Remus, includes former Solicitors General Donald Verrilli and Walter Dellinger, and former Attorney General Eric Holder. Marc Elias, who has led the pre-election fight for Democrats, will run any post-Election Day legal contests over state vote counts.

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.

In Pennsylvania, Attorney General Josh Shapiro says his office has “a team of lawyers in place ready to beat back any attempt by the president and his enablers.” On Nov. 3, the office plans on deploying attorneys and investigators in every region of the state in anticipation of possible legal action regarding intimidation, interference or fraud.

But for now, all eyes are on Election Day. If one candidate wins in a landslide, all of this could be moot. “I tell the voters in Pennsylvania, ‘Ignore the noise, don’t worry about the lawsuits filed by the President – I’ve got your back,'” says Shapiro. “What you need to do is make a plan to vote.'”

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