Elections come with litigation, and that should surprise no one. The stakes are high, especially in federal races where the entire country can be impacted by a result in one state. In the last couple days, the Trump campaign has filed a lawsuit in Michigan, while a Republican congressional candidate has initiated a lawsuit in Pennsylvania. The intent of both is to keep the process fair and make sure that the rules are followed.

In Michigan, where Vice President Joe Biden is clinging to a small lead as of Wednesday – and has been projected to win – the Trump campaign announced it was asking a court to block any further ballot counting in several locations. Bill Stepien, Trump’s campaign manager, says that his people are not being allowed access to observe the proceedings, as required by Michigan law.

In a statement released to the press, Stepien said, “As votes in Michigan continue to be counted, the presidential race in the state remains extremely tight as we always knew it would be. President Trump’s campaign has not been provided with meaningful access to numerous counting locations to observe the opening of ballots as the counting process, as guaranteed by Michigan law. We have filed suit today in Michigan Court of Claims to halt counting until meaningful access has been granted. We also demand to review those ballots which were opened and counted while we did not have meaningful access. President Trump is committed to ensuring that all legal votes are counted in Michigan and everywhere else.”

In Pennsylvania, two individuals, including a Republican congressional candidate, asked a federal court to throw out 1,200 mail-in ballots in Montgomery County because the local board of elections was allegedly sorting through mail-in ballots prior to November 3 and identifying which ballots had problems that needed to be “corrected” by voters. All of that, the complaint alleges, is contrary to Pennsylvania law which states that mail-in ballots could not be opened until November 3.

Add those two lawsuits to the over 200 reported election cases pending or litigated already this year, and you get some idea of the magnitude of the legal disputes that have attended this year’s vote.

Besides the obvious stakes of winning or losing a high political office, what else drives these lawsuits? Is there a higher institutional value at risk in our political system of elections that justifies turning every presidential election year into some version of Bush v. Gore?  That 2000 case, as you well remember, effectively ended a Florida vote recount and sealed George W. Bush’s victory.

But that case also divided the country, mostly along party lines, between those who thought the Supreme Court took sides in a political dispute, and those who thought the court did the best it could in difficult circumstances and uncharted constitutional territory.

There is a value to the country, though, in ensuring that the election process is scrupulously fair. In presidential elections, a voter in Colorado – like me – does not want his vote for president canceled unfairly by an illegitimate vote or votes in another state. The U.S. Constitution delegates the “time, places and manner” of state elections to the legislatures of each state, but it also reserves to Congress the final authority to override such laws in extreme cases.

Why does it do that? Because the Constitution guarantees to each state that the other states in the Republic will respect our mutual form of government and requires each state to take that responsibility seriously. There are federal election laws that govern certain aspects of each federal election, such as the one establishing a national general election day every four years. Constitutional guarantees such as the 14th Amendment also come into play to ensure that state elections processes are fair to individual voters.

So when local election officials take it upon themselves to bypass the deadlines and requirements of state laws during an election, even if done innocently to “assist” a voter (or a lot of them, as in Pennsylvania), the legal process is there to keep everyone playing by the rules.

Is that a harsh result? Shouldn’t we “bend” the rules to help voters cast their ballots? While that sounds good in theory, in practice allowing local election officials free rein to determine which rules to “bend” will invite mischief and fraud. The rules are there for a reason.

The legal process becomes even more important when election officials, in a partisan fashion, enable voter fraud or commit it themselves in order to help a favored candidate win. Even though most states have Republican as well as Democrat precinct volunteers who watch over the process and keep each other honest, there are simply too many polling places and too many opportunities to game the system if you are determined to cheat. The rules, and the strict enforcement of those rules, keeps people honest.

So, election litigation is an unfortunate, but necessary, tool this time of year.

Photo from Shutterstock


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