In part because of one sore loser, this year’s election seems to be the one that will not end. And that means that almost any post based on current information is no longer accurate several days later. As noted in previous posts, there are three big questions: 1) when are absentee ballots due; 2) when will the vote be certified; and 3) what states might be subject to recounts. There is also the never-ending litigation being filed by the Trump campaign.
At the present time, California is probably the biggest state in which we are still waiting for late absentee ballots with a deadline of Friday. At the time that I am writing this post, the margin in the Twenty-Fifth District is less than 100 votes; so late arriving ballots could be a key. In addition, a recount is a real possibility.
The other big state in which there remains a significant number of ballots to be counted is New York. At the present time, Democrats have apparently lost the Eleventh District (Staten Island). There are three Democratic districts that have not been called, but Democrats now lead in two of the three. There are also two Republican districts that have not been called, but the Republicans have significant leads in both. Whether the remaining votes will actually swing the districts is unclear.
Other states are progressing toward certification. Arizona has apparently completed the count and counties are wrapping up the other parts of the canvass. Other states seem to be nearing the completion of the count, but the latest information that I have seen shows a handful of outstanding votes. These are not enough to change the results in any state.
Right now, Georgia is involved in what the media is calling a recount. Technically, it is not a recount. Instead, like some other states, Georgia requires the county election authorities to do an audit as part of the canvass process. This typically involves examining a handful of races in a handful of precincts to verify that the machines properly counted the ballots. The Republican Secretary of State (facing pressure from other Republicans including Georgia’s two U.S. Senators) has stretched his discretion under the state statute governing audits to order every county to do a hand recount of all votes for President. Counties are required by Georgia Law to complete their canvass by Wednesday with the state to certify the statewide totals by Friday. At that point, as noted previously, the Trump campaign will probably be entitled to ask for a machine recount. However, with the margin over 10,000 votes, unless the hand audit shows a dramatic change, a machine recount is unlikely to benefit Trump.
Wisconsin is also looking at a presidential recount as soon as all of the counties certify their results. The deadline for counties to submit the results of the county canvass is November 17. Again, with a margin of 20,000 votes, it is unlikely that the result will change.
Besides the big contests in which votes are still being counted, it seems likely that there will be a recount in Iowa’s Second District and maybe Utah’s Fourth District. In Iowa, the deadline for certification of the result is November 30. The current margin is forty-eight votes. As such, a recount could very easily change the winner (or at least change the margin in either direction). In Utah, the counties have until Wednesday to complete the count with official state canvass being finalized on November 23. Based on the current numbers, I believe that the margin by which the Republican is up is slightly over the margin needed for a recount. (Based on a quick read of state statutes, I think the margin will have to fall under 900-1000 to trigger a recount.) In any case, the current margin is slightly outside of what could realistically be flipped by a recount.
That leaves us to litigation. So far in the days after the election, the Trump team has filed a slew of mostly unsuccessful cases. These cases have been a mix of complaints about the counting process and some “fraud” claims. Technically, none of these cases are election contests as the results have not yet been certified. While I will not try to predict what will come next, the most recent round of cases seem to be efforts to prevent the certification of the vote. And those requests have uniformly been denied. And that is not too surprising. In almost every state, state laws set deadlines for certifying the vote and provide for challenges to the count after that certification. While Trump might want to avoid an official declaration by a state that Biden won that state, the law simply is not on his side when he asks to stop the completion of the count.
There is a view among many attorneys that a lawyer’s reputation matters. The same is true of the client’s reputation. While technically judges are supposed to look at each case separately, judges know if a party or lawyer has been making similar claims without evidentiary support in other cases. And when a party has filed twenty cases alleging fraud and has never been able to offer any proof that the allegation is true, judges are likely to be skeptical about the twenty-first case alleging fraud. So while the multiple cases filed to date might fit the Trump public relations strategy, it has been a terrible legal strategy. Since Trump appears unprepared to accept reality, I would not be shocked to see election contests filed in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. I would also be shocked if any of those cases resulted in anything other than a quick hearing and dismissal. Even if a judge never read the Supreme Court’s opinion on the 2000 Florida recount, most judges are aware of the ultimate holding that election contests should be concluded before the “safe harbor” deadline. And if the judge is not aware of that holding, the attorneys for the Biden campaign will certainly remind them of that December 8 deadline.
We can hope that the results of the hand recount in Georgia and the early part of the recount in Wisconsin means that this is the last week that we are talking about finalizing the election results (other than one or two congressional seats which might not be resolved until after Thanksgiving). My hope is to be talking about cabinet appointments and other presidential appointments by the end of the week (a post on this is currently being drafted) and maybe to start talking about the Georgia runoffs. Of course, that requires the Orange Menace to start acting like an adult. So I’m not holding my breath.
