Campaigning in the Courts
In partisan politics, rules—not policies—become the battleground
As the 2020 presidential election moves from the polls to the courts, Professor of Government Anthony Corrado reminds us that what we’re seeing is a reflection of the increasingly hyper-partisan nature of today’s politics. “As a result,” Corrado said, “the two sides now have come to believe that one way of waging campaigns is not just to conduct a campaign between candidates, but to conduct a campaign over the rules.”
An expert on presidential elections and election law, he notes that as recently as four presidential elections ago, there were only a dozen legal challenges filed. This election already has seen more than 300 legal challenges since the beginning of the primary election, with more in the offing. This comes as state election officials grapple with voting logistics during a pandemic, and for an election that saw the highest voter turnout since 1908 and an unprecedented number of those votes cast by mail.
That has placed an enormous burden on election administrators, who now see requests for both recounts and court challenges to the rules in place for this election and to the way those rules have been applied.
Corrado points out that campaigns have the legal right to demand a recount if the margin is within the range prescribed by a state’s election laws. But if past record is any indication, those recounts won’t yield major recalculation.
“In Wisconsin, they had a recount in 2016 but it only produced a swing of 131 votes,” he recalled. Generally, there has never been a recount in a presidential race that changed more than 1,300 votes, he said, and 27 recounts held from 2000 to 2015 produced an average swing of 282 votes. “You rarely see any swing,” Corrado said. Recent exceptions: a Senate race in Minnesota in 2008 and a Vermont state auditor race in 2006.
Nor have court challenges of presidential elections generally produced the kind of results that challengers have sought. While the 2000 election was eventually decided by the U.S. Supreme Court’s ruling on results in Florida, federal courts generally have been hesitant to intercede in matters left to the states, and courts have been very reluctant to change the rules once voting has begun, Corrado said.
“Once voting has been done or even once ballots have been sent out, changing the rules in the middle of the game is something the courts don’t like to do,” he said. The Supreme Court is unlikely to intercede, he said, in a case that by itself would not change the outcome of the election.
That doesn’t mean that the process can’t be ongoing long after Election Day has passed.
While rules regarding when a vote must be received or when it can be counted vary from state to state, a federal law dating back more than 130 years says states must get their numbers to Congress by six days before the Electoral College. This year that means each state’s final vote tally must be certified by Dec. 8, which leaves lots of time for legal maneuvering.
“The rules now receive much more attention than they ever had before,” Corrado said. “This has become a cottage industry.”
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