Trump, Biden lawyers on standby if US election outcome heads to court

Signature matches. Late-arriving absentee votes. Drop boxes. Secrecy envelopes.

Democratic and Republican lawyers already have gone to court over these issues in the run-up to Tuesday's election. But the legal fights could take on new urgency, not to mention added vitriol, if a narrow margin in a battleground state is the difference between another four years for President Donald Trump or a Joe Biden administration.

Trump has already attempted to cast doubt in advance on the results on Monday, as Biden pushed ahead on offence on the final full day of campaigning ahead of an election conclusion that could have consequences for the US for years to come.

The president threatened legal action to stop vote counting in crucial states including Pennsylvania, where both candidates campaigned on Monday, and his advisers put out a statement accusing Democrats of trying to “subvert state deadlines for receiving and counting ballots.”

If Pennsylvania ballot-counting takes several days, as is allowed, Trump charged that “cheating can happen like you have never seen.”

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Biden dipped into Ohio, a show of confidence in a state that Trump won by 8 percent points four years ago. He focused on the central message of his campaign: that Trump cost lives by mismanaging America's response to the worst pandemic in a century.

“Donald Trump is not strong, he’s weak," Biden declared in Cleveland. "This is a president who not only doesn’t understand sacrifice, he doesn’t understand courage.”

Trump was spending the final day sprinting through five rallies, from North Carolina to Wisconsin. Beyond Ohio, Biden was devoting most of his time to Pennsylvania, where a win would leave Trump with an exceedingly narrow path. Biden announced an unusual move to campaign on Election Day, saying he would head to Philadelphia and his native Scranton on Tuesday as part of a get-out-the-vote effort. His running mate, Senator Kamala Harris, will visit Detroit, a heavily Black city in battleground Michigan, and both of their spouses will hit the road too. Trump, at least for now, was not scheduled to travel on Tuesday.

READ MORE: US election 2020: More than 95 million cast early ballots

A tale of two campaigns

The two men delivered their final messages, with Biden emphasising the pandemic. He declared that "the first step to beating the virus is beating Donald Trump,” and he promised he would retain the nation’s leading infectious disease expert, Dr Anthony Fauci, whom the president has talked of firing.

Trump, meanwhile, made only passing mention of what his aides believe are his signature accomplishments – the nation's economic rebound, the recent installation of Supreme Court Justice Amy Coney Barrett – preferring a more defensive tone.

He angrily decried the media's coverage of the campaign while complaining that he also was being treated unfairly by China, the Electoral College system and rock singer Jon Bon Jovi.

READ MORE: Trump failed to take pandemic, presidency seriously: Obama

Votes arriving after Election Day

More than 93 million votes have already been cast, through early voting or mail-in ballots, which could lead to delays in tabulation. 

Trump has spent months claiming without evidence that the votes would be ripe for fraud and refusing to guarantee that he would honour the election result.

In Scranton, Trump used stark terms to threaten litigation to stop the tabulation of ballots arriving after Election Day – counting that is allowed with earlier postmarks in some states.

He has said that “we're going in with our lawyers” as soon as the polls close in Pennsylvania and on Monday spoke ominously about the Supreme Court decision to grant an extension to count the votes after Tuesday.

“They made a very dangerous situation, and I mean dangerous, physically dangerous, and they made it a very, very bad, they did a very bad thing for this state," Trump declared. He said of Pennsylvania's Democratic Governor Tom Wolf, “Please don’t cheat because we’re all watching. We’re all watching you, Governor.”

There is already an appeal pending at the Supreme Court over the counting of absentee ballots in Pennsylvania that are received in the mail in the three days after the election.

The state’s top court ordered the extension, and the Supreme Court refused to block it, though conservative justices expressed interest in taking up the propriety of the three added days after the election. Those ballots are being kept separate in case the litigation goes forward. The issue could assume enormous importance if the late-arriving ballots could tip the outcome.

READ MORE: Key factors influencing US presidential election 2020

Lawyers on standby if cloudy election outcome heads to court

Both sides say they're ready, with thousands of lawyers on standby to march into court to make sure ballots get counted, or excluded. 

One of Biden’s top legal advisers Bob Bauer pushed back at Trump’s promise of mobilising his lawyers after polls close to challenge certain ballots.

“It’s very telling that President Trump is focused not on his voters but on his lawyers, and his lawyers are not going to win the election for him,” Bauer said. “We are fully prepared for any legal hijinks of one kind or another. We’re not worried about it.”

Since the 2000 presidential election, which was ultimately decided by the Supreme Court, both parties have enlisted legal teams to prepare for the unlikely event that voting wouldn't settle the contest. But this year, there is a near presumption that legal fights will ensue and that only a definitive outcome is likely to forestall them.

The candidates and parties have enlisted prominent lawyers with ties to Democratic and Republican administrations. The Pennsylvania case at the Supreme Court pits Donald Verrilli, who was president Barack Obama's top Supreme Court lawyer, against John Gore, a onetime high-ranking Trump Justice Department official.

It's impossible to know where, or even if, a problem affecting the ultimate result will arise. But existing lawsuits in Pennsylvania, North Carolina, Minnesota and Nevada offer some hint of the states most likely to be ground zero in a post-election battle and the kinds of issues that could tie the outcome in knots.

Roughly 300 lawsuits already have been filed over the election in dozens of states across the country, many involving changes to normal procedures because of the coronavirus pandemic, which has killed more than 230,000 people in the US and sickened more than 9 million.

Most of the potential legal challenges are likely to stem from the huge increase in absentee balloting brought on by the coronavirus pandemic. 

Pennsylvania

In Pennsylvania, elections officials won't start processing those ballots until Election Day, and some counties have said they won't begin counting those votes until the following day.

"I still can't figure how counting and verifying absentee ballots is going to go in some of the battleground states like Pennsylvania," said Ohio State University law professor Edward Foley, an election law expert.

North Carolina

Like Pennsylvania, North Carolina also has seen a court fight between Democrats who support extending the deadline for absentee ballots and Republicans who oppose it. The issue is a six-day extension approved by a state court — beyond the three extra days after Election Day that the Republican-controlled legislature agreed to in response to the pandemic.

The justices last week allowed the extra days to remain in effect, over a dissent by three conservatives on the court.

Minnesota

In Minnesota, late-arriving ballots also will be segregated from the rest of the vote because of ongoing legal proceedings, under a federal appeals court order.

Republican lawsuits have challenged local decisions that could take on national significance in a close election.

Nevada

In Nevada, a state court judge rejected a bid by the Trump campaign and state Republicans to stop the count of mail-in ballots in Las Vegas, the state's most populous and Democratic-leaning county.

Trump campaign in Nevada co-chairman Adam Laxalt said an immediate appeal to the Nevada Supreme Court is being considered.

The Republicans say observers aren't allowed close enough to workers and machines at the busy vote-counting centre in suburban Las Vegas to challenge signatures. 

Texas

In Texas, Republicans are asking state and federal courts to order election officials in the Houston area not to count ballots dropped off at drive-in locations. The Texas Supreme Court on Sunday denied the GOP's plea. On Monday, a federal judge also turned away the effort to invalidate the nearly 127,000 votes.

The scale and scope of legal action related to the presidential election has never been seen before. Trump has suggested the outcome could well be decided in court. The closer the contest, the more likely his prediction proves true.

Both Biden and Harris – and their spouses – were crisscrossing the state Monday.

Trump once led comfortably in neighboring Ohio. But Biden said he was returning to the state at the urging of Sen. Sherrod Brown other Ohio Democrats in Congress, suggesting a final, late visit could win.

Biden also has pushed into other formerly reliable Trump strongholds including Georgia, where the Democrats’ most popular surrogate, former President Barack Obama, campaigned Monday.

“I didn’t originally plan to come to Georgia. I told Michelle, I’m sorry, Baby, I got to go to Georgia. This is a big deal," said Obama, noting Democrats' hopes that they could deliver a knockout blow to Trump in the former GOP stronghold. “Georgia could be the state, Georgia could be the place.”

But even as Biden enjoyed strong poll numbers, the move to expand the map revived anxiety among Democrats scarred by Trump’s 2016 upset over Hillary Clinton, whose forays into red states may have contributed to losing longtime party strongholds. Biden planned a Pittsburgh drive-in event with Lady Gaga on Monday night, reminiscent of Clinton's rallying with Bruce Springsteen and Bon Jovi in Philadelphia on the eve of an election she was favored to win but didn't.

Short on campaign cash, Trump has been unable to compete with Biden over the airwaves and has relied on rallies to fire up his base. Those events, arguably the most striking political force of the past five years, could draw to a close Monday with stops in North Carolina, Pennsylvania, Wisconsin and two in Michigan. The last was set for Grand Rapids, the city where Trump held his finale four years ago.

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