Challenges to vote count could abound if Biden wins, Tulane legal scholars sayOctober 27, 20202 min read
With Election Day looming and voters in both parties concerned about the fairness of the vote-counting process, Tulane University law professors envision multiple challenges should former Vice President Joe Biden oust incumbent President Donald Trump on Nov. 3.
Although Stephen Griffin, a constitutional law expert at the Tulane School of Law, sees little chance, if any, of Trump trying to stop the count in court, that doesn’t mean Trump won’t take action to reverse the results in some states should they not be in his favor, he said.
“Some experts are worried about Trump intervening, not in court, but to lobby Republican state legislatures to simply designate a slate of Republican electors, regardless of the popular vote,” said Griffin, the W. R. Irby Chair and Rutledge C. Clement Jr. Professor in Constitutional Law. “I’m afraid there’s a chance this could happen if there is a colorable claim of irregularities in Pennsylvania and possibly elsewhere.”
There is also concern among some Democratic voters about the U.S. Supreme Court’s refusal to extend the deadline for ballots to be received in Wisconsin because of the COVID-19 pandemic.
He was referring to the high court’s refusal Oct. 26 to lift a lower court ruling preventing the state from counting mail-in ballots as many as six days after the election. The suit was filed by voting rights groups, the state and national Democratic parties and the League of Women Voters.
“With respect to the election, the Supreme Court may uphold measures that are adopted by the states themselves, even if they are late-breaking developments,” Griffin said. “But it has established a consistent pattern of striking down COVID-related election adjustments ordered by federal courts in response to the suits brought by voters and other private parties.”
Such decisions will undoubtedly benefit Republicans, said Keith Werhan, the Ashton Phelps Chair of Constitutional Law Emeritus.
“On the assumption that Democrats will disproportionately use mail-in ballots, the decision likely will benefit Republican candidates in Wisconsin, he said.
He said Republicans could also benefit from any legal disputes that arise on Election Day, though he thinks the aftermath of the Bush v. Gore election controversy could give the Supreme Court pause. He was referring to the U.S. Supreme Court decision that settled a Florida recount dispute in the 2000 presidential election between George W. Bush and Al Gore.
“I think that the Bush majority suffered a bit from a kind of hubris, thinking that they could resolve the Florida election dispute, and thus the national election, with credibility. Instead, the decision compromised their legitimacy in ways that haven’t fully healed,” Werhan said.
“On the other hand, this, for the most part, is a new Court, and three of the six Republican justices (John Roberts, Brett Kavanaugh and Amy Coney Barrett) were part of the Bush legal team. So in the end, I don’t think the Republican-appointed justices are going to be shy about playing a role that could decide the election.”
Stephen Griffin W.R. Irby Chair and Rutledge C. Clement Jr. Professor in Constitutional Law
Stephen Griffin specializes in constitutional theory and history
Keith Werhan Professor Emeritus
Keith Werhan specializes in constitutional law, particularly the First Amendment, and in administrative law.