After election, parties brace for court challenges
Minnesota is no stranger to having its elections spill into the courts. It had back-to-back statewide recounts, including a 2008 Senate race that took until the summer of 2009 to resolve.
Republican attorney Fritz Knaak had a front-row seat for that one. And while he’s not intimately involved in this year’s campaigns, lawsuits over the vote counting are inevitable if there’s a photo finish, Knaak said, and attorneys are gearing up.
“Dozens if not hundreds, I’d say dozens certainly, combing the state on both sides fighting this fight,” he said, adding that absentee ballots will occupy their attention. “You’re going to have them filing motions all over the state for one thing or another to prevent the counting of certain ballots, open up other ballots.”
Already, a federal court has ordered Minnesota’s election managers to set aside ballots that arrive in the days after the election despite a seven-day delivery grace period that was promised for months.
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Those ballots will be counted but be segregated in case votes have to be removed from tallies later, said DFL Secretary of State Steve Simon, noting that the count will lay bare whose votes the campaigns are seeking to subtract.
“If they want to pull that trigger they’re going to have to know each and every impact up and down the ballot in every jurisdiction in every corner in the state,” Simon said.
In general, Simon expects the level of litigation to be dictated by the closeness of the outcomes.
“If the margin in Minnesota is wide, there will be less likelihood of litigation. If the margin of Minnesota is slim, there will be more likelihood of litigation.”
Both Republicans and Democrats have been enlisting lawyers just in case.
President Donald Trump warned Sunday that he won’t be shy about going to court in Pennsylvania and other linchpin states if he doesn’t detect a fair count.
“Because we’re going to go in the night of — as soon as that election is over, we’re going in with our lawyers,” Trump told reporters.
Campaign spokesperson Thea McDonald said the campaign has recruited thousands of poll watchers who will be on the lookout for irregularities. She didn’t specify how many are stationed here or how many Minnesota lawyers are on standby.
“And if fouls are called, the Trump Campaign will go to court to enforce the laws, as rightfully written by state legislatures, to protect every voter’s right to vote,” McDonald said. “President Trump and his team will be ready to make sure polls are run correctly, securely, and transparently as we work to deliver the free and fair election Americans deserve.”
Democrats have made similar preparations. In September, the Biden campaign said it had “full-time voter-protection” staff of seven in Minnesota and would also staff a hotline to field concerns.
Former South Bend, Ind. Mayor Pete Buttigieg, a Biden surrogate who also sought the party nomination this year, told MPR News the campaign is on alert.
“We’re definitely ready for anything,” he said. “But I’ll say the way voters are turning out in record numbers is great evidence that these attempts at suppression and intimidation aren’t working. It says a lot about them that they are making it harder for Americans to vote and make it harder for Americans’ votes to be counted.”
Should the election spill into the courts, past cases suggest everything from chain-of-custody of ballots to tabulating errors to machine problems will be under scrutiny.
But the biggest area of dispute will be those mail ballots given the huge surge in voting that way — 1.7 million and counting as of Monday.
Voters whose ballots are rejected could argue they followed instructions, mailed their ballot with plenty of lead time and they shouldn’t be punished by slow delivery.
Knaak, the Republican attorney, says judges could be sympathetic to those kinds of arguments.
“You’re almost always in these cases dealing with actual voters,” he said. “We’re not talking about fraud here. We’re talking about actual voters who made the effort and for technical reasons their vote didn’t count.”