HARRISBURG, Pennsylvania — No matter who seems to be on top on election night, one group of people will undoubtedly be winners: lawyers.
As both President Trump and former Vice President Joe Biden spend the final days of the campaign touring Pennsylvania, attorneys for both parties and campaigns have begun setting up camp in anticipation of a long, drawn-out battle over the counting of ballots. Those preparing to assist in the filing of briefs and lawsuits have already begun making comparisons to Florida in 2000, when the legal teams for George W. Bush and Al Gore spent weeks working to swing the state and its winning share of Electoral College votes to their respective candidate.
“I can tell you I’ve heard many advertisements from organizations that I would perceive to be not Pennsylvania organizations, heard ads from the radio. Litigation is possible. That’s certainly true,” said election lawyer Brian Caffrey, who is also working as a volunteer legal aid for the Pennsylvania GOP on Election Day. “I’m sure that the Republican Party will take whatever action it deems necessary if it determines there could be any wrongdoing or fraud or other irregularities.”
For months, both Democrats and Republicans in the state have been litigating over how to process votes by mail, a record number of which have already been cast in this election. Outside firms representing both parties are raking in hundreds of thousands, if not millions, of dollars in fees as lawsuits over mail-in ballot deadlines have reached the state and nation’s highest courts.
On Thursday, the Supreme Court dealt a blow to the state GOP’s efforts to block the counting of ballots that arrive by mail after Election Day. In a 5-3 decision, the majority did not offer an opinion, although three conservative justices on the court, Samuel Alito, Clarence Thomas, and Neil Gorsuch, hinted at the possibility that the matter is far from settled.
“There is a strong likelihood that the State Supreme Court decision violates the Federal Constitution,” Alito wrote in his dissent, referencing the Pennsylvania high court’s decision to deny the Pennsylvania GOP’s emergency injunction request. “[The Supreme Court’s denial today] is not a denial of a request for this court to order that ballots received after Election Day be segregated so that if the State Supreme Court’s decision is ultimately overturned, a targeted remedy will be available.”
Alito’s words caused some panic among Pennsylvania Democrats, who said his dissent implied the Supreme Court is prepared to invalidate ballots and potentially hand Trump a victory in a controversial 5-4 decision akin to Bush v. Gore.
Although pleased with the decision, Pennsylvania Attorney General Josh Shapiro, a Democrat, told voters to expect more litigation and directed them to stop mailing back their ballots out of a concern that some may arrive too late to be counted.
“The Commonwealth has taken careful steps to ensure all eligible Pennsylvania votes will be counted and to stave off further anticipated legal challenges,” he wrote in a statement. “We call on all voters to submit their mail-in ballots to a drop box or county election office as soon as possible.”
Many Democrats in the state remain confident that Biden will win by a large enough margin that any GOP challenges will be dismissed by the courts as desperate, but they also realize that Trump’s chances at reelection increasingly look like they hinge on winning the state. Members of Trump’s campaign have repeatedly said that the easiest path to victory depends on winning both Arizona and Pennsylvania while hanging onto North Carolina, Georgia, and Florida.
“I’ve noticed a lot of outside lawyers from big firms coming into the state. That’s one of the problems with modern election law — that and too much money.
Election law was normally done by a local lawyer who was politically active. Very few huge firms ever got involved in stuff like that,” said Democratic attorney Sam Stretton, who helped secure the right to vote for felons in the state in 2000. “In this modern world, people can go out and spend fortunes on these firms and disrupt the process. They don’t understand the local politics, they don’t understand what they’re doing necessarily, they don’t work or listen to the local lawyers, it removes the old fashioned wisdom and decisions, and it becomes a sport instead of whether this is a rational thing to do.”
As of Saturday, nearly 1.5 million Pennsylvanians have already cast their ballots for president. No evidence of systemic fraud has been identified yet, but Republicans in the state remain nervous after reading reports about alleged mishandling of ballots or voters who say they haven’t received any in the mail at all.
“We keep hearing these things in the news that ballots have been dumped and so on, so obviously we’re remaining vigilant,” said Caffrey.
