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The Caucus

'Everything about Pennsylvania is worrying': Lawyers anticipate wave of election lawsuits

From the 2020 election: What Lancaster County should know before upcoming local and national election series
Counties cannot reject mail ballots because of mismatched signatures, Pa. Supreme Court rules

Last week was a long month for Cliff Levine.

The Pittsburgh lawyer spent many hours working the phones and helping juggle state and federal election lawsuits. He’s among a small group of Democrats who, every election, organizes and coordinates an army of thousands of attorneys and poll watchers across the state to make sure the party’s voters can cast ballots and to step in if problems arise on Election Day — something their Republican counterparts do as well.

Normally, these armies are pretty quiet, waiting in the background in case something goes wrong.

This year, they’ve been reshaping Pennsylvania’s electoral landscape on the fly, with barrages of state and federal legal challenges that will determine how and when voters in perhaps the most important swing state in the country can cast their ballots.

With a week to go before the vote is cast, evidence that the fight is already underway isn’t hard to find. There’s the president, desperate to maintain the slim margin that gave him Pennsylvania’s 20 electoral votes four years ago, using the state as a focal point for false attacks on the electoral process. Then there’s a year-old overhaul of the state’s election code that’s being probed in lawsuit after lawsuit, as both parties plead with a newly minted conservative supermajority on the U.S. Supreme Court over when the state must stop accepting mail-in ballots. And, of course, a once-in-a-century pandemic has triggered an avalanche of mail-in votes that makes it all but certain this fight will carry on after the voting deadline at 8 p.m. Tuesday.

“Everything about Pennsylvania is worrying,” said Rick Hasen, a law professor at the University of California, Irvine, and a nationally recognized election law expert. “What I worry about is if the president is ahead in the early count of the ballots that he would somehow try to short-circuit a full count of the ballots or seek to challenge them based on unsupported claims of fraud.”

For months, President Donald Trump has attempted to sow doubt about vote counting with baseless claims about the process.

Shortly before the U.S. Senate confirmed Justice Amy Coney Barrett to the Supreme Court on Monday night, Trump falsely claimed in a tweet, “Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd.”

That’s almost certainly not going to happen. Pennsylvania Secretary of State Kathy Boockvar said she expects the “vast majority” of votes to be counted by the Friday after the election, but counting an expected 3 million mail-in votes on Election Day is all but impossible. Negotiations between Gov. Tom Wolf and the Republican- led General Assembly over allowing counties to start counting those ballots early recently broke down.


Eyes on high court

Like Democrats, Republicans have organized a network of lawyers across the state, including at least one in each county. Their effort is led by state GOP chairman and election lawyer Lawrence Tabas, said Marc Scaringi, a Harrisburg lawyer who is part of the network. He deferred further comment to Tabas. Neither Tabas nor his spokesman responded to interview requests.

The state GOP on Friday asked the U.S. Supreme Court to overturn a Pennsylvania Supreme Court decision that allows counties to count ballots that arrive up to three days after Election Day. It is Republicans’ second stab at overturning the state court’s decision. The first ended in a 4-4 deadlock, before Barrett’s confirmation.

The Luzerne County Board of Elections filed a motion Tuesday asking Barrett to recuse herself from the GOP’s latest case.

Trump and some Senate Republicans have said they needed to confirm Barrett before Election Day so she could decide election disputes— something Democrats warn will backfire.

“If that’s the expectation, I think the voters will see through that raw power play and there will be consequences on Election Day,” Levine said.

Reversing the decision with less than a week to go before Election Day, especially at a time when mail delivery has been slowed by changes at the U.S. Postal Service, could disenfranchise people who thought they were playing by the rules, legal experts said.

“We don’t believe it’s appropriate to overturn that settled expectation just a week (after the first decision), not to mention we think that (Republicans) are simply wrong on the law as well,” said Eliza Sweren-Becker, a voting-rights lawyer at the Brennan Center for Justice at New York University Law School. Brennan lawyers have filed briefs in several Pennsylvania election cases this year in favor of expanding ballot access and vote counting.

Just over 18,000 mail-in ballots arrived after voting ended for Pennsylvania’s June 2 primary, according to state data. Twice as

many people are expected to vote by mail in the general than did in the primary. Boockvar, in a recent call with reporters, urged voters to ignore the legal wrangling over deadlines and make sure their ballots arrive by Nov. 3.

“At this point, as you get closer and closer, it would be wise to drop off your ballot,” Levine said.


Prepping for problems at polls

Even with the surge in mail-in ballots, millions will turn out to vote in person. This will be the first presidential election since the early 1980s in which courts don’t have to sign off on the Republican National Committee’s poll-watching plans. The GOP entered into the consent decree in 1982 after the party sent armed, off-duty police officers wearing armbands into New Jersey voting districts with large minority populations.

Republicans called it an effort to prevent fraud, but Democrats accused them of violating a voter intimidation ban in the Voting Rights Act. Rather than go to trial, the Republican National Committee agreed to allow federal courts to oversee their poll-watching operations. That agreement expired in early 2018, after Democrats tried and failed to get a federal judge to extend it. Members of the Democrats’ vote-watching organization privately fret not just about coordinated attempts to deter voting, but about the potential for isolated efforts by individuals who choose to act on Trump’s words.

“I’m urging my supporters to go into the polls and watch very carefully what’s happening because that’s what has to happen,” Trump said during the first presidential debate. He singled out Philadelphia, saying poll watchers had been prevented from monitoring satellite elections offices, then warned vaguely of “bad things” happening in Philadelphia.

Prosecutors across Pennsylvania, including Lancaster County’s district attorney and the state attorney general, have felt the need to warn would-be freelance poll watchers. William Mc-Swain, U.S. attorney for the Eastern District of Pennsylvania, said this month he would “crack down on” election interference “as hard as we can.”

But the threats of election interference alone serve a purpose, Sweren-Becker said.

“That rhetoric is designed to discourage voters from participating. It itself is a form of voter suppression, and we should not give in to that in advance,” Sweren-Becker said. “Voters should feel comfortable casting their ballots, knowing that their ballots are going to count.”

How long that count takes won’t just be determined by the legions of lawyers slugging it out in court; it’ll also have to do with Election Day itself.

“The prospect of litigation or any kind of election contest is higher when the results are closer,” Sweren-Becker said. “Voters should get out there and vote, because that is what is going to make it most likely that their votes are the ultimate deciders of this election.”