UVA law professor breaks down presidential election lawsuits

As election day has turned into election week, and mail-in ballots are being counted across the country, multiple lawsuits have been filed by the Trump campaign
Published: Nov. 5, 2020 at 7:33 PM EST
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CHARLOTTESVILLE, Va. (WVIR) - As Election Day has turned into election week, and mail-in ballots are being counted across the country, multiple lawsuits have been filed by the Trump campaign. Experts say those could delay or even alter final results.

Michael Gilbert, a University of Virginia law professor specializing in election law and legislation, says lawsuits over elections aren’t uncommon. This year’s reliance on mail-in voting could see the number of suits skyrocket.

“If the election is within what lawyers sometimes call ‘the margin of litigation,’ then you see lawsuits, and in just the right circumstance, they can make a difference," Gilbert explained. "In some places, they’re experimenting or using mail in voting, or this, or that aspect of it, for the first time. All of that comes with new processes, and every additional process is that point that could generate confusion or litigation.”

Much of the focus among protest centers around belief of potential fraud caused or enabled by mail-in ballots. Gilbert says those claims just are not supported by the evidence.

“It just seems to either never happen or hardly happen, and that’s not that surprising," Gilbert said. "The penalties are very severe. Even if you get away with it, you get, what, one? Two? Three extra votes for your candidate? People don’t take these kinds of risks.”

So far, the lawsuits fall into two categories; the first is calling for an increase in ballot counting observers from the Trump campaign.

“Fifty states, 50 sets of laws, but it’s pretty typical for the state law to say that during the counting process, people affiliated with the campaigns, that is the candidates whose votes are being counted, have a right to observe that process," Gilbert explained.

The second kind alleges that the states have violated their own election laws. Those are much harder to prove but could more significantly impact the outcome of the election. One such lawsuit is on the docket in Pennsylvania.

“As long as you’ve postmarked mailed your ballot by Election Day, according to the [Pennsylvania] Supreme Court, they have to count that as long as that ballot also makes its way to the relevant government office by Friday,” Gilbert said "The state statute seems to say the opposite. The state statute seems to say, ‘Nope, everything needs to be here by Tuesday.’”

Gilbert says that while an election-deciding legal battle is possible, it all depends on the final electoral count and how many votes hang in the balance. If the election is already lost, the Trump campaign may choose not to pursue a case limited to one state. The Supreme Court, or lower courts, could also choose not to hear it.

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