What to Expect this Election: 2024 Election Legal Analysis
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This page will be a running analysis of the 2024 election cycle from a legal perspective. The author Ron Chapman is a federal criminal defense attorney and Supreme Court appellate lawyer that routinely provides his political and legal analysis to major news networks including Fox, BBC, NBC, SCRIPPS, NEWSNATION.
Updates appear first, scroll down if you are newly visiting for an analysis of the elcetion challenge process. Bookmark this page and stay tuned for rapidly evolving updates.
UPDATE 10/25: Court Decision
The Fifth Circuit ruled that in Mississippi the current statute allowing absentee ballots to be counted if received up to five days after Election Day conflicts with federal law.
Full Court Decision here
UPDATE 10/17: DOJ Staffing Federal Agents as Election Monitors
In a press release issued The DOJ is using Federal Agents as election monitors and getting ready for a fresh wave of “election interference” indictments. U.S. Attorney Ryan K. Buchanan issued a press release detailing the DOJ's Election Day Program for November 2024, aimed at “protecting voting rights, preventing violence against election officials, and addressing election fraud. “
The DOJ will assign special agents across field offices and designate local contact points for reporting election-related issues. The DOJ's involvement in voting oversight is potentially a means for the administration to influence election narratives.
DOJ’s full release here.
Garland claims an unprecedented number of threats against election workers. DOJ announces indictment against Russian and Iranian election interference.
When This Election Is Challenged: Here's What Will Happen
This election will be contested and likely by both sides. Based on the legal battles of past elections, particularly those in 2000 and 2020, we can anticipate a series of legal maneuvers that might even reach the U.S. Supreme Court. To offer a clear and concise understanding of what could unfold, I've reviewed notable cases and relevant books on election law, piecing together a roadmap for a contested election scenario.
Election Night Votes Will Be Delayed
As the final votes come in, a close race is likely to spark immediate accusations of fraud or election misconduct, echoing Trump’s reactions in 2020. Legal teams, already positioned in swing states, will be ready to file lawsuits challenging the results almost immediately. This response mirrors actions taken in 2020, when over 60 lawsuits emerged, challenging various aspects of the election from ballot handling to observation procedures. Early challenges are likely to involve claims of voter fraud, illegal ballots, and procedural violations. Election monitors for states will likely report in widely conflicting information aboutt conduct at polls.
“There were reports of demonstrators blocking entrances to polling sites, shouting at voters, and brandishing campaign flags, as seen in Virginia.”
During the 2020 election, reports of conduct at polling places drew significant attention, with concerns primarily centered around voter intimidation and disputes over poll watcher access. Some of the early claims included instances of aggressive behavior from poll watchers and activists. For example, there were reports of demonstrators blocking entrances to polling sites, shouting at voters, and brandishing campaign flags, as seen in Virginia, where some reportedly created a disruptive atmosphere outside an early voting site. This raised concerns about voter intimidation and accessibility to polling locations.
Another prominent issue was the role of poll watchers and their proximity to the ballot-counting process. In Philadelphia, the Trump campaign filed lawsuits claiming that their poll watchers were not permitted close enough to observe the ballot count adequately. Although some lower courts granted initial relief, Pennsylvania's higher courts ultimately upheld that the city had complied with the law on observer access, affirming the state’s regulations on what constitutes “meaningful observation” (a term that remains a point of contention in legal interpretations).
Additionally, there were several allegations of armed groups monitoring drop boxes, particularly in Arizona, where volunteers showed up in tactical gear, ostensibly to prevent perceived election fraud. Such actions led to concerns that these individuals were not only monitoring but actively intimidating voters. Federal and state laws prohibit voter intimidation, and legal resources have been mobilized to counter such practices, including guidance for election officials on how to handle potential intimidation scenarios at polling sites (Brennan Center for Justice).
Election officials and law enforcement typically work in advance to prevent disruptions at polling places, coordinating with groups like the Committee for Safe and Secure Elections to ensure a safe voting environment. The heightened atmosphere around the 2020 election shows the kinds of tensions that can arise when allegations of fraud and interference dominate the narrative, and similar dynamics could very well play out in future elections if early reports indicate contested outcomes.Act Two: Legal Blitz – Challenges in State Courts
As the dust settles on Election Day, legal teams will likely hone in on battleground states like Pennsylvania, Georgia, and Arizona. Most legal challenges will begin at the state level, questioning the handling of absentee and mail-in ballots, particularly if they are still being counted. For instance, the Pennsylvania case In re Canvassing Observation (2020)involved claims that ballot observers were not allowed close enough to properly watch the ballot-counting process. Pennsylvania courts ultimately held that the state had met its legal obligations, affirming that ballot-counting processes were transparent and lawful
Similarly, state courts often handle recount requests. In Bush v. Gore (2000), the U.S. Supreme Court halted a recount in Florida, citing equal protection concerns due to inconsistent recount standards across counties. The ruling emphasized that the recount must adhere to uniform standards, a lesson that will likely guide similar disputes about vote-counting fairness
Election Night +1 Recounts and Forensic Audits
If the margin in a swing state is narrow, we can expect demands for recounts. Many states, including Florida and Pennsylvania, have automatic recount provisions when the margin is below a certain threshold. Recounts, however, can extend well beyond the automatic ones. In Moore v. Circosta (2020), for example, the U.S. Supreme Court reviewed emergency requests related to absentee ballot extensions, ultimately allowing states to continue counting absentee ballots even past Election Day. This reflects the Court’s reluctance to intervene in state election procedures unless absolutely necessary
Forensic audits may also be requested in contested states. These audits, designed to evaluate voting machines and the handling of ballots, became prominent in 2020, especially with the much-publicized audit in Arizona. Although this audit affirmed the original results, it demonstrated the potential for extended scrutiny and the role of third-party investigations in recount processes.
The Climb Upward – Appeals to Federal Courts
As state courts issue rulings, appeals to federal courts will follow. In 2020, we saw numerous cases escalate, particularly where plaintiffs alleged violations of federal constitutional rights, such as equal protection and due process. The federal courts play a critical role when state law is in tension with federal law or constitutional principles, as evidenced by cases like Texas v. Pennsylvania (2020). In this case, Texas challenged the election processes of other states directly in the U.S. Supreme Court, arguing that procedural changes due to COVID-19 were unconstitutional. The Court, however, refused to hear the case, reinforcing the principle that states maintain autonomy in election administration
The Supreme Court, Will They Intervene
When election challenges reach their zenith, they may land on the doorstep of the U.S. Supreme Court. While the Court has been reluctant to interfere in state election matters, as we saw in Texas v. Pennsylvania, it is willing to step in when it perceives substantial federal questions or constitutional violations. In Bush v. Gore, the Court stepped in due to a perceived violation of the Equal Protection Clause, arguing that inconsistent recount standards within Florida counties threatened the integrity of the election.
Though SCOTUS largely stayed out of 2020’s legal skirmishes, it left the door open for cases with significant constitutional implications. If an election challenge were to include a claim that touches on nationwide electoral integrity or the balance of state versus federal power, the Court might choose to intervene again.
Congressional Certification – The Ceremonial Showdown
Finally, we come to Congress, where the Electoral College votes are counted and certified in a joint session. In the 2020 election, this process turned into high drama on January 6th, as objections were raised over the certification of specific states’ results. While the certification is generally a formality, objections can extend the process and spark debate in both the House and Senate.
To understand the broader significance of this process and other legal challenges that might arise, I’ve turned to a few essential books on election law:
"Election Law in a Nutshell" by Lowenstein, Hasen, and Tokaji: This provides a comprehensive overview of the laws that govern U.S. elections, from voter rights to recounts. A clear understanding of these foundational elements is crucial when analyzing potential election disputes.
"The Right to Vote: The Contested History of Democracy in the United States" by Alexander Keyssar: This book gives a historical perspective on how voting rights have evolved and how challenges to those rights are part of a long-standing battle in American democracy.
"Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy" by Richard L. Hasen: Hasen’s work dives into the potential pitfalls facing U.S. elections today, including voter suppression and the litigation landscape. This book sheds light on the vulnerabilities within the electoral process and the ongoing challenges to democracy.
Current Landscape – Legal Teams on Standby
Early signs suggest that both parties are setting up extensive legal teams in anticipation of post-election litigation. Like 2020, both Democrats and Republicans are positioning themselves in swing states, ready to file lawsuits or defend against them as needed. Legal teams are preparing to contest everything from absentee ballot counting procedures to election day observation rights. These preparations underscore the likelihood that, if the election result is close, the legal battles could last well beyond Election Day, potentially even reaching the Supreme Court once more.
If either side loses, history shows that we’re in for a legal saga. From immediate fraud claims and state court filings to federal appeals and potential SCOTUS involvement, a contested election follows a well-trodden path. So, while Election Night may provide some answers, the final result could take much longer to unfold, particularly if these legal challenges gain traction.