In the week since Election Day, Joe Biden has emerged as the clear winner of the presidential race.
But disgruntled Republicans have unleashed a fusillade of lawsuits and investigations questioning whether the election was even valid. A few have gone so far as to say that states should reassign their delegates to the Electoral College, in effect threatening to upend the results of the presidential election without producing evidence of fraud, chicanery or wrongdoing.
State and local Republican officials have been key players in this destabilizing legal strategy.
Georgia Gov. Brian Kemp’s spokesperson said
the “close outcome and record number of mail-in and absentee ballots” in the election “should be a wake-up call to the secretary of state’s office” to look into unspecified “voting irregularity allegations.” Kemp is a former secretary of state himself who narrowly beat Democrat Stacey Abrams for governor two years ago amid allegations that he suppressed voter turnout, particularly for Black voters. His encouragement to investigate the 2020 election came after the two Republican U.S. Senate candidates in Georgia (apparently at the behest
of President Donald Trump) called on Secretary of State Brad Raffensperger to resign, calling his administration of the election an “embarrassment.”
Raffensperger, a Republican, shot back at the Senate candidates, who both face run-off elections in January for separate seats that could determine party control of the chamber. “That’s not going to happen,” he said
in response to their calls for his resignation. “The voters of Georgia hired me, and the voters will be the one to fire me,” he said.
“My job is to follow Georgia law and see to it that all legal votes, and no illegal votes, are counted properly and accurately,” Raffensperger added. “As secretary of state, that is my duty, and I will continue to do my duty. As a Republican, I am concerned about Republicans keeping the U.S. Senate. I recommend that Senators Loeffler and Perdue start focusing on that.”
Meanwhile, the Republican attorneys general of 17 states are encouraging the U.S. Supreme Court to hear a challenge to Pennsylvania’s mail-in ballot rules. The Pennsylvania high court ordered election officials there to accept mailed ballots that were sent by Election Day for three days after the polls closed. Democrats wanted
the extra time, because of reports that delivery times from the U.S. Postal Service had slowed.
The out-of-state AGs told the U.S. Supreme Court that the extra time shouldn’t be allowed for many reasons (which they described in three separate friend-of-the-court
briefs). Some argued that mail-in ballots themselves voting by mail “presents unique opportunities for fraud and abuse.” Others said the deadline extension ran counter to federal laws that established a single, national Election Day. But they all agreed that the Constitution gives exclusive powers to state legislatures – not the courts – to determine the manner in which states pick their presidential electors. (Article II of the Constitution specifies that, “Each State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors…” The challengers say that means that courts cannot interfere with the process lawmakers lay out.)
“In the course of this jurisprudential misadventure, the Pennsylvania Supreme Court encroached upon the ‘plenary’ authority of the Pennsylvania legislature over the conduct of the presidential election in that state,” wrote a group of 10 states led by Missouri Attorney General Eric Schmitt, citing the U.S. Supreme Court’s 2000 decision in Bush v. Gore. With that 5-4 decision, the justices stopped recounts in Florida and handed the presidential election to George W. Bush.
“This encroachment on the authority explicitly granted to another state actor in the regulation of presidential elections constitutes a clear violation of the separation of powers,” the attorneys general added.
Closer to home, the Republican leaders of Pennsylvania’s GOP-controlled legislature have said they would not set aside the election results and pick the state’s electors on their own, as some conservative commentators have suggested.
“We have said it many times and we will happily say it again,” Senate Majority Leader Jake Corman and House Majority leader Kerry Benninghoff wrote in an op-ed
earlier last month. “The Pennsylvania General Assembly does not have and will not have a hand in choosing the state’s presidential electors or in deciding the outcome of the presidential election.”
(They have had to repeat the message many times since Election Day.)
But that doesn’t mean they are happy with the way the election was carried out. Corman and House Speaker Bryan Cutler have called on the governor to order an audit of the election process. While audits in elections are common to ensure that votes were counted correctly, the Republican legislative leaders want an examination of how Secretary of State Kathleen Boockvar, a Democrat, handled the elections.
Boockvar was the one who asked the Pennsylvania high court to extend the deadline for mailed ballots to be received. She also gave guidance to counties on how to “cure” damaged ballots – a common practice – that GOP leaders said was not applied consistently.
Boockvar had also pushed the legislature to allow election officials to begin processing mail-in ballots before Election Day – something even the Republican-controlled legislatures in Michigan and Wisconsin eventually relented to doing – but was unsuccessful. That restriction led to long waits for Pennsylvania’s election results last week.
Meanwhile, GOP lawmakers in Michigan
are also launching their own investigations into the elections process. One Wisconsin Republican, state Rep. Joe Sanfelippo, even raised
the prospect of changing the state’s election results, where Biden won by more than 20,000 votes.
“If an investigation shows these actions affected the outcome of the election, we need to either declare this past election null and void and hold a new election or require our Electoral College Delegates to correct the injustice with their votes,” Sanfelippo said in a statement.
Of course, not all state-level Republicans are calling for inquiries. Massachusetts Gov. Charlie Baker, a popular Republican in an otherwise Democratic state (and one where the presidential election was not close), called Trump’s “stalling” tactics “unacceptable” and “not in the best interests of the country.”
With so many moving pieces, it’s hard to know what all of this activity will amount to. If courts and lawmakers take their time, and allow the elections and transition processes to go forward, the added scrutiny could clarify rules for future elections that are hotly contested.
“Even if the Pennsylvania Supreme Court did not violate Article II in rewriting Pennsylvania election law, it is important for this court to say so,” argued Ohio Attorney General David Yost in a friend-of-the-court brief before the U.S. Supreme Court.
Indeed, the issue of whether state courts can interpret state laws when it comes to deciding presidential electors has split the high court in the run-up to this year’s election. But that was before the confirmation of Justice Amy Coney Barrett, noted
election law expert Rick Hasen. She could tip the balance in either direction.
On the other hand, all of this toying with the outcomes of a fairly routine election risks undermining the public’s faith in the current election results and elections down the line.
Tom Goldstein, the publisher of SCOTUSblog, warned that the high court should be “extremely cautious” in deciding whether to take the Pennsylvania case. “The court is essentially being used by opposing political forces for their own ends. And that is happening in ways that make the stakes much higher than merely keeping some ballots in separately marked tubs,” he wrote
The public won’t follow the subtleties of the legal arguments, so they’ll likely suspect that the justices are acting for partisan reasons, Goldstein argued.
“If the court grants an injunction, the president and his supporters will use that order as part of an effort to delegitimize the election. Democrats will use it to delegitimize the court itself,” he added.
The most unlikely scenario is also the most disturbing. If state officials meddle with the results of the presidential election to the point that Trump wins in the Electoral College or in a state-by-state vote in the U.S. House of Representatives, the ramifications would be hard to imagine. If Pennsylvania cannot certify
its results and a rogue state legislature somewhere else reallocates its electors, Biden’s comfortable win looks a lot more shaky or could evaporate.
Remarkably, in a year in which Americans have faced a pandemic, recession and mass protests calling for racial justice, the ensuing legitimacy crisis could trigger 2020’s biggest upheaval yet.