A close election: How do the courts impact who wins?

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The courts could have an impact in this year’s close presidential election. (Lisi Merkley)

The 2020 presidential race was called for Joe Biden on Nov. 7, but President Donald Trump is still reluctant to concede the election. On Tuesday, Nov. 24, Trump’s administration did allow the General Services Administration to release some funding for the Biden transition process, but he still had not conceded the race.

Shortly after the race was called, the Trump campaign released a statement saying the election was not over and it would be pursuing legal actions. “Beginning Monday, our campaign will start prosecuting our case in court to ensure election laws are fully upheld and the rightful winner is seated.”

When an election is close, like this year’s, the two parties and campaigns turn to the courts to ensure a fair election. Shortly before Election Day, the Associated Press reported that around 300 lawsuits had already been filed, calling it “the most litigious presidential election in memory.

“Both sides view this election as epochally consequential and will not hesitate to resort to the courts if that offers a route to victory,” BYU law professor Justin Collings said.

Now, almost a month after Election Day, lawsuits continue to play out as Trump’s legal team continues a narrative of election fraud. 

“Courts play an important role at the margins. Insofar as they vindicate, or fail to vindicate, voting rights, they decide who gets to vote and that can influence who wins. But their influence is usually indirect, and it tends to matter only where the votes are already close,” Collings said.

The vast majority of suits filed by the Trump campaign in several key states have already been dismissed, and Biden’s lead in the popular vote continues to grow as battleground states continue to certify their election results.

Pre-election judicial issues

Prior to Election Day, litigation focused on how to handle the increased number of mail-in ballots due to the pandemic. 

In one Texas case, Hotze v. Hollins, Republicans questioned whether 127,000 votes cast in drive-in voting locations violated state laws. The day before the election, U.S. District Judge Andrew Hanen decided the Republicans had no standing in the case, allowing drive-in votes to count. Republicans appealed the case, but to no avail. The Fifth Circuit Court of Appeals denied their request to block drive-in voting.

In the end, however, the county’s election clerk Chris Hollins decided to shut down nine of the 10 drive-in locations as a precaution. Hollins cited concerns over the question if the drive-in tents would count as buildings that are required for polling places. “I cannot in good faith encourage voters to cast their votes in tents if that puts their votes at risk,” Hollins tweeted

Other lawsuits dealt with whether or not mail-in ballots received after Election Day should be counted. One case out of Pennsylvania asks to count mail-in ballots received three days after election day if they were postmarked by Nov. 3. This case is currently waiting for review by the Supreme Court after the state supreme court allowed these votes to be counted.

On Oct. 28, the Supreme Court said it would not make a decision on the case before Election Day, so the votes in question in Pennsylvania were counted separately in case the Supreme Court overturns the lower court’s decision.

BYU political science professor Chris Krewson said this case could have an impact but, “Biden could lose Pennsylvania and still win the presidential election,” he said. 

Post-election cases

In the days after polls closed, Trump referred to the election and the counting of certain votes as fraudulent. “If you count the legal votes, I easily win. If you count the illegal votes, they can try to steal the election from us,” he said at a press conference on Nov. 5, blaming election interference on “big media, big money and big tech.”

Trump’s campaign began planning legal action to combat evidence-less election fraud as states that leaned towards Trump on Election Day switched to Biden as mail-in votes were counted, but the impact of these lawsuits looks less likely each day to make a difference in the outcome.

“I don’t see those efforts having a meaningful effect in terms of changing the election outcome, but they are consistent with his messaging that the election is being stolen,” Krewson said.

Collings agreed with Krewson that Trump’s efforts would likely not succeed. “Counting is slow this time around, but I don’t see any Florida 2000-type scenarios emerging,” Collings said, referring to the infamous Supreme Court decision that determined the winner of the 2000 presidential election. 

The Bush v. Gore Supreme Court case forced Florida to stop its recount after the candidates were separated by just over 500 votes, leading to Bush being named the winner. “That was a 5-4 decision in which all five Justices in the majority had been appointed by Republican presidents. That was, and is, a hugely controversial decision, and I think many worried that something similar might happen this time around,” Collings said. 

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