Keeping up with an undecided presidential election, as dueling press conferences shift public perceptions, is a challenge. Here is a top view, cases in a variety of jurisdictions. Options narrow, but this is not over yet.
On media tabulations, Biden leads, 306 electors to 232. The Electoral College will meet on the first Monday after the second Wednesday in December. That is December 14 this year.
Meantime, on the heels of complaints from hundreds of official and unofficial observers, dozens of suits have been filed. These suits are winding on, based on allegations of mis-, mal- and non-feasance – errors and omissions, affidavits of voter and electoral fraud.
Notably, some suits have been dismissed. This is not surprising, as state and local judges, following state laws are often partisan. They run for election, and a Trump victory would hurt. These cases are subject to layers of appellate review.
Interestingly, of all suits filed – some by the Campaign, others by citizen groups – many have been “dismissed without prejudice” by the plaintiffs, and not decided. Judges permit withdrawal or dismissal without prejudice (meaning freedom to refile) is to allow amended complaints, new evidence, arguments, and stronger claims.
Does this mean suits will be refiled, or raise chance of a favorable disposition? No, but it does leave the door open – and refiling happens. That means we may not have heard the last of these.
Separately, some suits are still being filed, others appealed with constitutional arguments at the forefront. At this frustrating midpoint in a complex process, here is a thumbnail sketch. At the federal level, Trump’s suit seeking an injunction – or stop order – to block vote certification in Pennsylvania was decided against Trump. The central argument was an “equal protection” claim, based on different counties treating ballots differently – especially mail-in ballots.
That is an important case, as it casts constitutional doubt on the electoral process in a decisive state, and could affect other states. Like arguments were made in 2000 by the Bush Campaign, which prevailed. But state law, evidence, and margins are different this year. This case could arrive at the Supreme Court.
In other states, including Michigan, Georgia, Nevada, and Arizona – suits have been filed. Certifications are being questioned, recounts contemplated, evidence presented, appeals likely. Some legal experts minimize chances of these suits prevailing; others are not so sure.
By way of example, in Pennsylvania, an effort to halt ballot counting in Philadelphia was dismissed, although an effort to get observers closer was first favored, then overturned.
This suit raised questions over who sets rules; other claims involved challenges to voter identification. One ruling blocked counting of ballots, while another ordered segregation of ballots. Unclear is how many ballots would be affected. A separate suit asked provisional ballots to be blocked and led to sequestration of these ballots.
Most significantly, litigation is ongoing tied to Supreme Court intervention and a challenge to ballots received after 8 p.m. on election day. That suit may proceed alone or be declined. Arguments persist over number of ballots, 10,000 or closer to 45,000 – Biden’s reported edge.
Behind that suit are important facts. The State Supreme Court extended ballot counting out to Nov. 6, which caused an appeal to the Supreme Court. At the time, a 4-4 tie (before Justice Barret arrived) failed to block late ballots, a second suit put off the decision. On Nov. 6, Justice Alito ordered segregation of late ballots. How many got segregated, any comingled – is unknown. We will likely hear more about this suit.
Other suits include trying to stop counties from certifying, including Allegheny, Centre, Chester, Delaware, Montgomery, Northampton, and Philadelphia, which all went for Biden. The question again is strength of evidence. Under intense pressure, attorneys for the Campaign in this suit withdrew. An amended compliant followed.
Taking a breath, consider Nevada – where Trump trails by a slim margin. Questions about automated signature-verification machines in all-important Clark County, are behind one suit, so far rejected on technical grounds. Another suit hits observer access.
In Michigan, while media report Biden up by 148,000, suits were filed seeking to stop ballot counting based on blocked observers, halt certification in Detroit, and then statewide. The first two were denied, appeal options unclear. The third is pending. Notably, presumptions are important here; if observers could not see ballot counts, signatures, or elements protecting against fraud, one is left wondering what to infer.
In Georgia, while certification was confused and hand counts found anomalies, results are complete – for Biden. That said, the Trump Campaign may request a machine recount of five million votes, as the margin is within half a percent.
In Arizona, suits were filed focusing on unusual marks on ballots, but were determined not to be material. That said, county certifications and challenges continue.
Bottom line: We are closer. Final vote counts, balancing certifications against fraud and anomalies, may come to the Supreme Court. If the Court refuses, Biden’s final count holds. If it accepts, they could rule for either candidate, or – a real possibility – conclude that enough states are “disputed” that no one has 270 electors, meaning the US House must decide – based on the 12th Amendment, one vote per delegation. That solution keeps the High Court from deciding and would favor Republicans.
Finally, state legislatures finalize electors; some surmise two states could replace a Democratic slate with Republicans, highly unlikely. Similarly, some mention “faithless electors,” seven in the last cycle; an enormous number would be needed, not likely. In the end, options narrow – but this not over yet.