An attorney who testified before the Supreme Court in the Bush v. Gore Florida recount in 2000 is predicting litigation ahead in a 2020 election battle that could stretch well past Election Day in battleground states or those states with divided government.
“Every day, we seem to have another federal judge that changes the election laws at the last minute in a way in which the guardrails are taken down on the vote-by-mail ballot,” said Tom Spencer, a Republican elections attorney, speaking to the Washington Examiner.
Spencer, who served as co-counsel for George W. Bush and Dick Cheney’s presidential ticket in the Florida recount of 2000, pointed to Pennsylvania and North Carolina as two states to watch as ballots are counted.
“You have sort of a perfect storm,” Spencer said. “For example, in Pennsylvania, you’ve got a Democratic governor, a Republican legislature. North Carolina, same thing. When you look at the polling and the statistics, you have that very, very close divide of votes. Both those states look very close to a Bush v. Gore situation.” He added, “Could be Michigan, Minnesota.”
Bush v. Gore was the Supreme Court decision that halted vote-counting in Florida during the 2000 election, which Bush won narrowly. But this year, the election could be contested in multiple states.
Cases are currently being decided across the country.
On Saturday, President Trump’s reelection campaign and the Republican National Committee sued to stop election officials in North Carolina from enacting rule changes that could increase the number of ballots counted in the key state. The lawsuit says that a new State Board of Elections system would allow absentee ballots to be cast late and without adequate witness verification, “which invites fraud, coercion, theft, and otherwise illegitimate voting.” The new rule would allow ballots that lack information to be amended solely by affidavit and without the need for the voter to complete an entirely new ballot.
An Iowa district court ruling published on Sunday denied a request to stop legislative enforcement that bars Iowa county election auditors from guessing and completing incorrect details on absentee ballot request forms.
In Ohio, a federal judge on Friday denied a challenge to a signature-matching requirement on absentee ballots that would have suspended it.
In a statement, RNC Chairwoman Ronna McDaniel called the rulings “a win for voters, a win for election security, and a win for maintaining confidence in the electoral process” and charged that Democrats’ efforts to alter election procedures ahead of Nov. 3 was “opening the door to chaos and confusion.”
“These rulings are victories for Iowa and Ohio voters,” said Trump 2020 general counsel Matthew Morgan, accusing Democrats of “constant attempts to tear down election safeguards and steal this election for Joe Biden.”
Spencer pointed to an election in Fort Lauderdale in South Florida, “in which the Supervisor of Elections was completely unglued, and there were thousands of ballots that came in, and some of them were never counted.”
“They came in two months later because they were lost somewhere. Those are the kinds of things that would cause a lot of concern when somebody is running for president of the United States,” he said.
In Pennsylvania, Spencer said, “tremendous numbers” of ballots are rejected and thrown out because voters fail to put the ballot in the secrecy envelope. In North Carolina, there’s a witness requirement, which, he said, many voters fail to comply with, calling it a “huge problem” and noting that the issue occurred more frequently among black voters than in either Hispanic or white communities.
Of about 1 million ballots requested in the state, 250,000 have been returned thus far, “and 1.8% of the returned ballots have already been rejected for reasons such as witness requirement, or the voter didn’t sign the envelope, addresses are left off,” and other voter errors, he said. “That doesn’t happen when you go to the polls.”
He pointed to Democrats’ efforts to broaden the date range for acceptance of ballots after Election Day, including in North Carolina, which pushed back the date nine days from Nov. 3, provided they were postmarked by that date. Spencer said that the Postal Service does not postmark all ballots, however.
“In Bush v. Gore, it was 537 votes that determined the presidency,” he said, stressing the importance of just a few hundred ballots to determine the election results. “Look at Minnesota, where 235 votes determined who the senator from Minnesota was going to be.” Former Sen. Al Franken won his 2008 Senate race recount by a final tally of 312 votes.
While there are systems in place to address the usual ballot errors, Spencer told the Washington Examiner that officials should be prepared to process a “fire hose of ballots.”
“It’s going to take a tremendous amount of time and effort to make sure that those ballots cast are properly analyzed, looked at, and then voted,” he said.
As for a recount, Spencer said that both sides were prepared.
“Biden has got an army of lawyers ready, and I know that the Republican side has an army of lawyers. I’m one of them,” he said. “And so, you know, we have to do what we have to do. If there’s a recount, then we have to do it.”
