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Biden, Trump Gear Up For Post-Election Legal Scenarios

An election polling place station during a United States election.
By Richard Dahl on September 21, 2020 7:01 PM

Bush v. Gore on steroids."

That is how Stanford Law School professor Nathaniel Persily describes what it could look like if election returns on Nov. 3 are inconclusive.

Persily, of course, is referring to the 2000 U.S. Supreme Court decision that settled a recount dispute in Florida, handing the presidency to George W. Bush. Armies of lawyers flew in to Florida to wrangle over recounts, ballot design, and whether hanging chads or dimpled chads on punch-card ballots counted as votes.

This year, the prospects for legal acrimony on Nov. 3 and beyond are already evident. The coronavirus pandemic has prompted a push, at least among Democrats, for much broader availability of absentee voting. President Trump and the Republican National Committee, however, have been leading a charge to restrict those efforts.

The result has been extensive litigation in state and federal courts throughout the nation. 

But as Persily has noted, the biggest battles may be yet to come.

And that is why both the Biden and Trump campaigns are “lawyering up" to an unprecedented level.

Fighting 'Chicanery' and Protecting 'Integrity"

On July 1, Biden announced that he had assembled a group of 600 lawyers to deal with possible “chicanery" in the run-up to the election.

A few weeks later, the Trump campaign announced the creation of a “Lawyers for Trump" coalition to “protect the integrity" of the November vote. The creation of the coalition stems from a joint campaign of the Trump reelection committee and the Republican National Committee, “Protect the Vote."

Then, in early September, Biden escalated the legal arms race even more when he announced the creation of a new legal operation headed by two former solicitors general, including a “special litigation" unit. Hundreds more lawyers will be involved, he said, including a team at the Democratic law firm Perkins Coie. Eric H. Holder Jr., the attorney general during the Obama administration will also be part of the team, serving as a liaison between the campaign and the many organizations involved in legal fights around the country.

Looking Ahead to the Post-Election

In the short term, those court actions are the main concern of both the Biden and Trump camps. But they are also making plans for possible post-election scenarios that could make Bush v. Gore look tame.

One of the Biden campaign's concerns is that a close tally on election day could prompt Trump to declare himself the winner even though many absentee ballots will not have been counted.

There are many other scenarios that could lead to a legal quagmire. Trump might assert (as he has, repeatedly) that mailed ballots are fraudulent, and Republican legislatures in potentially decisive Electoral College states could simply refuse to certify a Biden victory on that basis.

A close outcome could boil down to a face-off between Vice President Mike Pence (as president of the Senate) and Democratic Speaker of the House Nancy Pelosi and the likelihood of a stalemate.

There could be street protests. There could be violence.

And the whole thing could end up in the lap of the Supreme Court, just like 20 years ago.

Nobody knows, of course.

And that's why both sides are lawyering up.

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