Q: And finally, what alternatives to a Bush v. Gore post-election situation should we be thinking about? What if it's a margin of 40,000 to 100,000 votes in a handful of states that's at issue, not 500 votes in a single state, as was the case in 2000? How does that change the role of the courts and the possible outcomes?
If the early margins of victory are sufficiently high, then we are unlikely to see high-profile lawsuits challenging the count. This scenario becomes more plausible if the margins are closer than the polls predict, and if multiple states are still in play.
The most likely litigation scenarios involve rejected absentee ballots. Given the surge in absentee ballots this year, and the potentially high numbers of absentee ballot rejections, it is not impossible that the number of rejected absentee ballots could exceed the margin of victory in multiple states. This would be novel: In past elections, the number of rejected absentee ballots has generally been too small to swing elections.
Nationally, the absentee ballot rejection rate was just under 1.5 percent in 2018 — and more in states like Georgia (3.1 percent), North Carolina (6.1 percent) and Pennsylvania (4.5 percent), not to mention non-battlegrounds like New York (13.7 percent) and Arkansas (7.6 percent). While these rates are high, absentee ballots in past elections have made up only a tiny portion of the total ballots cast in most battleground states, and so the total number of rejected ballots was fairly low.
But this year, absentee ballots are expected to make up roughly half the votes in those states. We have already seen high numbers of absentee ballot rejections in the primaries. In Wisconsin — which Trump won by just under 23,000 votes in 2016 — 23,196 ballots were rejected in the presidential primary alone.
Based on these numbers, campaign attorneys seeking to maximize their candidates’ chance of victory are likely to consider pursuing post-election litigation, recounts and contests in states with wider margins than they ordinarily would consider. As we’re seeing during the lead-up to Election Day, these disputes could be litigated in multiple federal and state courts at the same time.
What does this mean for the courts? For one thing, they may be very busy. Litigation is a normal (though episodic) part of the counting process, and election officials and parties are used to that. Beware of efforts to paint ordinary lawsuits as an election crisis.
What is not normal is for courts to announce a new legal doctrine after Election Day that results in valid votes not being counted and potentially impacting the outcome of the election. That is what happened in Bush v. Gore, and the Supreme Court paid a price in lost credibility as a result. Fortunately, we are not likely to see a situation where this could happen again this year.
But that doesn’t mean that the role of the courts hasn’t changed substantially this year. It has.
The U.S. Supreme Court has made it clear in case after case that while it doesn’t want to change voting rules so close to an election, it’s not interested in expanding voting rights, either. The impact of this on the federal judiciary has been swift and dramatic. After the high court issued a ruling on Oct. 2 halting a voting rights win out of South Carolina (and reinstating the state’s witness requirement for absentee ballots), more than a dozen federal courts of appeals across the country followed suit. These decisions will make it harder for advocates to protect voting rights going forward. And looking ahead, at least some of the justices seem poised to go further and shield state legislative decisions against voting rights challenges regardless of when they are brought.
But federal courts aren’t the only institutions that protect voting rights. Congress is another critical player. As Justice Gorsuch wrote this week, if a state’s rules for federal elections “need revision,” the Constitution makes clear that “Congress is free to alter them.”
Two key bills that are currently pending before Congress would undo some of the Supreme Court’s recent decisions and would expand voting access across the country (along with other democracy reforms): H.R. 1 (the For the People Act) and the John Lewis Voting Rights Advancement Act. The House passed both bills this year, but they stalled in the Senate. If they pass next year, there will be less cause for voting rights advocates to turn to the courts.