Senators in both parties are bracing for what they fear will be a “chaotic” election, heightening the stakes of next month’s Supreme Court confirmation battle.
Trump has said he wants a ninth Supreme Court justice to be confirmed so that the court is full before it potentially has to make any decisions on an election. If Trump’s nominee, Amy Coney Barrett, is confirmed, it would cement a conservative majority on the court that would include three justices nominated by the president.
Polls showing a close race against Democrat Joe Biden in several battleground states have lawmakers predicting the results won’t be known immediately after Election Day, particularly with millions expected to vote via mail-in ballots given the coronavirus pandemic.
Sen. Mike Rounds (R-S.D.) said he expects “chaos in some of the states that have extended [the deadline for counting ballots] beyond the normal day of the election.”
“I suspect we’ll have three, four days before the vote tallies will be close enough to make a determination,” he said.
The nation has already witnessed extreme delays in reporting election results this year.
The New York board of elections didn’t finish counting a deluge of absentee ballots until more than a month after the June 23 primary.
In Philadelphia, voters had to stand in line for hours during the June 2 primary and some polling locations received the wrong voting machines, sowing confusion and frustration.
Republicans in Pennsylvania plan to ask the Supreme Court to review a state court decision extending the date by which mailed ballots must be returned.
“The leaders are going to have to remind people, ‘Just wait, we’ll get this counted.’ It’s going to vary by state. That is a cause for concern,” said Sen. Tim Kaine (D-Va.).
Kaine said any ruling by the Supreme Court on election results will be made problematic by the pending battle over Trump’s nominee.
“A Supreme Court that is either with a vacancy or with a rush-job partisan nomination, that’s a dangerous precedent,” he said.
Hillary Clinton, whom Trump narrowly defeated in 2016, has advised Biden publicly not to “concede under any circumstances because I think this is going to drag out.”
Kaine, who was Clinton’s running mate, said she is counseling Biden not to assume the results of any delayed count, recount or court challenge.
“I think she’s trying to say, ‘If there’s any doubt, don’t assume you know the outcome of this dispute, that dispute, that recount, this lawsuit,’ ” Kaine said.
Yet Kaine pledged that Biden would accept the outcome of the election.
“He believes so deeply in our institutions [and] peaceful transfer of power,” he said.
Trump has refused to make such a commitment while suggesting an increase in mail-in voting would bring questions about the result. There is no evidence that additional mail-in ballots would increase the chances of voter fraud.
Legal experts say the high court will have the ultimate authority to resolve any dispute over the election results, as it had in 2000 when justices stopped the Florida recount in a controversial five-to-four decision, handing the presidency to Republican George W. Bush.
Republicans including Sens. Ted Cruz (Texas) and John Cornyn (Texas) have cited the possibility of a 4-4 deadlocked court as a reason to confirm a new justice before the election.
But not all Republicans are buying the argument that the Supreme Court needs to have all nine justices to legitimately adjudicate disputed election results.
“I personally would have comfort with the court, whether it was eight or nine [justices] or less than eight. I have confidence in the justices particularly in a matter of this significance to do the right thing and to follow the law and the Constitution,” said Sen. Mitt Romney (R-Utah).
Both the Democratic National Committee (DNC) and the Republican National Committee (RNC) are gearing up for an intense legal fight.
A DNC official told The Hill on Friday that the party has 21 state voter protection directors on the ground across the country, including in Arizona, Florida, Georgia, Kentucky, Maine, Michigan, Missouri, Montana, New Hampshire, Nevada, North Carolina, Ohio, Pennsylvania, South Carolina, Texas and Wisconsin.
The official said the DNC has made “historic investments” in voter protection infrastructure.
“We have a national hotline, along with several state-specific voter hotlines and are enlisting thousands of lawyers and volunteers on voter protection efforts across the country,” the source said.
Biden committed to “protect the vote” during a conference call with Senate Democrats earlier this month, according to a senator who participated in the meeting.
The RNC is committed to spending $20 million on legal efforts and is already involved in more than 40 lawsuits across the country.
“In addition to the 40-plus legal cases the RNC is involved in to protect election integrity, the RNC has been building a massive Election Day Operations plan and preparing for possible litigation and recount efforts for well over a year. We are working every day to ensure that the election is free, fair and transparent, and that we defend against Democrat efforts to upend our election process,” said RNC national press secretary Mandi Merritt.
The party committee has retained dozens of lawyers for anticipated litigation on the state and national level. In addition to the in-house counsel at the RNC and the Trump campaign, the party has pledged to train thousands of outside lawyers and volunteers to participate in its “Election Day Operations” campaign.
While Trump’s recent comments have raised the prospect that he might not commit to an orderly transition of power, legal experts say the president and the administration has little role in reporting or certifying the election results of all 50 states and the District of Columbia.
The primary battlegrounds will be the state courts, which will handle the bulk if not all of the disputes over voter access, mail-in ballots and late counts.
“The White House and the president don’t have any role in determining who the electors are that ultimately choose the president,” said Erin Chlopak, the director of campaign finance strategy at the nonpartisan Campaign Legal Center.
The election results of each state will be certified and reported to Congress by the governor of each state according to the particular election law of each state, Chlopak said.
Chlopak said the two key dates after the election are Dec. 8, the so-called “safe harbor” date by which states must report its slate of electors to Congress in order for that result to be considered “conclusive.”
The electors are scheduled to meet Dec. 14 to formally elect the next president, a result the 117th Congress will formalize in a joint session scheduled at the start of next year.
“The Constitution provides for a new president to begin their term Jan. 20 and that proceeds whether our president agrees or likes that outcome or not,” said Chlopak.
“Each state and the District of Columbia have determined for more than 100 years to select that state’s electors by the popular vote,” she said. “After that popular vote occurs, it has to be certified by the executive of that state, which in most states is the governor, and then is transmitted to a joint session of Congress.
While Vice President Pence will preside over the joint session of Congress that formalizes the vote of the electors, his role is to preserve order and decorum and he will not have a decision-making role.
Story cited here.