Photographer: David Paul Morris/Bloomberg
Photographer: David Paul Morris/Bloomberg

Election Day Check In: Will Lawsuits Delay the Outcome?

This presidential election cycle has been chaotic for lawyers.

In courts across the country, Democrats have filed lawsuits that challenge whether voter identification laws passed in Republican states are actually just attempts to suppress voter turnout. For instance, as of a week ago, voter turnout in Guilford County, North Carolina was down 90 percent compared to 2012 and the NAACP had filed a lawsuit accusing state election officials of illegally striking voters from the rolls if letters mailed to their address were returned, Bloomberg reported.

The article cast North Carolina as one of the epicenters of the fight over ballot access, but noted that in Texas, Ohio, Wisconsin and other states, there have been last minute suits filed challenging voter laws. According to a Bloomberg Law docket search, there have been 29 voter-related civil rights suits filed in federal courts across the country in the last 30 days, and there have been 165 such suits in the past year.

Indeed, on Monday, lawyers for Republican nominee Donald Trump filed a lawsuit in Clark County, Nevada — where Las Vegas is located — accusing the Registrar of Voters’ of keeping certain voting locations open beyond designated hours. It seeks to have the ballots and voting machines set aside until the challenge of whether the votes are valid is resolved.

Dan Kulin, a spokesman for the Clark County Registrar, was not immediately available for comment.

Those lawsuits suggest that lawyers may still be working on disputes about the outcome of the election long after the polls close.

On the topic of whether the Nevada lawsuit or another is likely to prolong the election, Nicholas O. Stephanopoulos, an assistant professor at the University of Chicago Law School, said via email:

Everything hinges on how close the election is and whether there’s a plausible lawsuit in a potentially decisive state. If so (for example, if Nevada’s electoral college votes prove crucial) then the election could absolutely be prolonged beyond tonight. But otherwise the mere fact that litigation is still ongoing shouldn’t matter. I’ll also note that, based on what I currently know, the Nevada lawsuit seems very weak. The law requires voters to be able to vote if they’re in line when a polling place closes, so suing because voters were able to do so makes no sense. It’s basically suing because the state followed the law.

Heather K. Gerken, Skelly Wright Professor of Law at Yale Law School, agreed:

Only if it’s close.  It’s not clear whether there was a problem in Nevada or whether state officials were just following the rules (the rule is that if people are in line when the polls close, everyone in line by the time the polls closed get to vote).  Even then, though, the allegations involve very small numbers.  We call it the “margin of litigation.”  As long as the victory margin is greater than the margin of litigation, people will still call the election for one candidate or another.

Meanwhile, reports out of Southern California suggest that this election is going to be as busy as any other. Benjamin Fliegel, an associate at Reed Smith in Los Angeles, which is hosting a phone bank hotline for voters, which is organized by the Lawyers’ Committee for Civil Rights, said the phones have been ringing off the hook since 6:30 a.m. PST. Volunteers from his firm and other firms have been fielding calls, mainly on polling locations questions, he said.

“Compared to 2012, what we’re seeing a lot more is lines,” said Fliegel. “The lines to vote are just really long.”

For some lawyers, the whole process is exhausting. Stephen Carter, a Yale Law School professor and Bloomberg View columnist, wrote: “If, like many of us, you’re worn out by the whole thing, I would propose an innovative response: Don’t watch the election returns come in. Spend tonight doing something more useful.”

Following the political election is “exhausting, it’s repetitious, it’s degrading, it’s not satisfying,” Carter wrote.

In any case, new technology may make it unnecessary to stay up late watching the returns. That’s because the startup Votecastr is using pre-election polling data in combination with voter turnout information to make projections in real time of whether Clinton or Trump is winning in seven battleground states.  

Several experts said although no one has used technology to make public predictions in this way, it doesn’t violate election law in any obvious ways.

“There isn’t much that election law can do about sites like Votecastr,” said Stephanopoulos, the University of Chicago Law School professor.

Stephanopoulos added: “It might be a bad idea to disclose election results in real time, and doing so might be methodologically unreliable, but those are largely policy considerations. And if any law was drafted to try to shut down Votecastr, it would face a pretty substantial First Amendment challenge. At least as long as the site reasonably thought it was disclosing true information, it would be political speech that’s very highly protected by the Constitution.”

Gerken, the Yale Law School, said: “I suspect you’d be surprised how little law there is governing electoral fraud (and how narrowly tailored it is),” she said.

So there you have it: This year, we may know who won the election earlier than in the past, thanks to predictions based on polling and turnout, but it may not matter if the race is tight enough and lawsuits put the matter on ice for days or longer.

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