Legal Fighting Over Votes, Counts
Terry H. Schwadron
Nov. 1, 2024
With apprehensions high about efforts to overturn any outcome to election results, just how well is this campaign to create a perception of fraud going?
We heard Donald Trump this week already leaping to conclusions in an announced investigation of two Pennsylvania voter registration issues, authorities have responded to three arson cases involving ballot drop boxes or attempted destruction of mailed ballots in three states, and there are a load of lawsuits playing out over challenges to voter registration rolls.
To date, most the lawsuits seem to be failing, but one late restrictive voter registration effort in Virginia aimed at the possibility of registration by undocumented migrants won Supreme Court approval this week. It remains difficult to track all the decisions and their appeals across many states. The unsigned order temporarily knocked out 1,600 from their registrations just a few days before the election, effectively making it much more difficult for those people to register anew and vote.
More generally, the awareness of challenges to come in the count and certification of popular and Electoral College votes is on high alert. To avoid a repeat of the certification challenge that crested on Jan. 6, 2021, Congress has clarified the limited powers of the vice president to do more than ceremonially present the Electoral votes to Congress for certification, and secretaries of state across the country have taken more precautions to back up paper ballots.
Still, the prospects for a close election will only heighten efforts by those drawn to election denial over fraud complaints to double down. Those still include challenges over the never-dying allegations that software companies could magically switch Donald Trump votes to Kamala Harris, or over illegal registration of undocumented migrants, or over the validity of mail balloting altogether — despite efforts by both parties to take advantage of the service this time.
As Vox notes, Trump has repeatedly insisted that the only way he could lose is if Democrats cheat. It seems clear he will try to deem any Harris victory illegitimate.
The Recent Incidents
Last week, law enforcement and election officials in Lancaster County in Pennsylvania said they had identified “incidents of suspected voter registration fraud” by a private “large-scale canvassing operation” that submitted registration applications with duplicate handwriting and inaccurate or unverifiable addresses.
The officials set aside said 2,500 voter registration forms for review, without saying how many lacked verification. Lancaster officials said at least two other counties may have also received similar voter registration applications.
These were not votes, but applications to submit ballot applications and now officially under review. It’s the kind of quick response that one might think would get a bipartisan pat on the back.
Nevertheless, Trump, apparently already seeking to underlie any excuse for losing, posted on social media that “Wow York County, Pennsylvania, received THOUSANDS of potentially FRUADULENT Voter Registration Forms and Mail-In Ballot Applications from a third-party group.” It was the wrong county and a premature judgment, but the significance seems apparent in laying the groundwork for grievance.
After hundreds of actual ballots were destroyed in set fires in drop boxes in Washington and Oregon, elections officials went through the debris to recover still-good ballots and to offer voters whose envelopes were recoverable the chance to re-submit. A fire in a postal box in Phoenix affected about 20 votes, and a suspect was arrested.
Even in a close election, it is doubtful that the numbers would change an overall result.
In the Courts
In the courts, lawyers affiliated with Mark Elias’ Democracy Docket have been winning in lawsuits challenging voter registration cases. Federal judges have turned down challenges to restrict military and overseas ballots in Pennsylvania, rejected efforts in Virginia and Texas over using Hispanic name matches postal records to eliminate hundreds of thousands from voter rolls but overturned in the Supreme Court, and over the status of provisional ballots in several states. Postal records and name matching are notoriously poor ways to determine validity of immigration status; voting as a non-citizen is already blocked by law. What they can show is whether people have moved from one registration address to another.
It makes one question exactly what legal interpretation the Supreme Court intervention days before the election was meant to uphold.
Elias and his law firm, the Elias Law Group, have been retained by Vice President Harris’s campaign to assist with recounts and anticipated legal fights after the election. Republicans have already filed dozens of lawsuits challenging voting rules and practices. The New York Times noted that Elias also has sued to open the way for big money interests to invest in the presidential campaigns.
Elias led the effort to quash more than 60 lawsuits challenging the 2020 results and was successful in two Supreme Court cases that challenged redistricting efforts in Alabama and North Carolina that had favored Republicans. He lost another case in Arizona that curtailed the Voter Rights Act.
Trump’s campaign has promised to mobilize 200,000 poll watchers to closely observe the counting of ballots. Quite apart from legalities and procedures, it surely represents an invitation for interference and continued challenges. At the same time, Republican state governments in Missouri and Florida are resisting any arrival of federal monitors to counting places, saying the feds want to punish states that have tightened voter identification.
In several key states, including Pennsylvania, the counting of mail ballots cannot start until Election Day, next Tuesday, almost guaranteeing a delayed result for president in a race predicted to be razor thin.
This month, the Washington Post asked dozens of Trump fans at rallies how they’d respond to a Trump defeat. Nearly everyone they interviewed believed the 2020 election was stolen from him, and the 2024 election might be stolen too. But, per the Post, these Trump fans suggested they’d respond to Trump’s defeat with resignation.
What seems notable for the moment is that the various arenas are lit up and awaiting action. Except for legal battles, it is not clear what shape the challenges of a close election will engender.
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