NCMC Professor and Election Law Attorney Comment on Next Steps
Our team of election experts agrees this is not over yet – and all eyes may be on Nevada in the days ahead. But Michigan may still play a role as well.
Political Science Professor Dr. Scott LaDeur teaches at North Central Michigan College. He says, “It has been an election unlike any other, you know. And these are some tight races. We have to wait for votes to come in.”
For Dr. LaDeur, finalizing the ballots and choosing a winner will come down to counting absentee ballots. “I think that those absentee ballots especially in MI, WI and PA are either going to be decisive or close to decisive in those elections.”
Election law attorney Matthew Cross, with Plunkett Cooney in Petoskey, agrees. He points out the Electoral College threshold may be reached even before all states are finished counting votes. “With Nevada, WI and MI leaning towards Biden, those three states alone would put him at 270. If a legal challenge is going to come from one of those three states, it’s going to be Nevada.”
Cross also says if Biden fails to win those three states, the legal fight turns to Pennsylvania. “I would expect if PA becomes a must-win for Joe Biden, we’re looking at likely litigation there.”
Cross says a recount is less likely than a lawsuit. “The candidate can petition for a recount. They have to have a good faith belief that they have a reasonable chance of winning if an error or fraud is corrected.” But Cross says the legal battle may be based on signature comparisons – between signed absentee ballots and the signatures on voter registrations. In Michigan, he says, “We stopped accepting mail-in ballots on November 3rd when the polls closed. So that’s not going to be an issue that’s grounds for litigation. In Michigan it’s going to be the signature comparisons.” He says that’s the issue lawyers are looking at already, in Nevada.
Even so, successful litigation requires meeting certain standards. “They’re going to have to have some evidence of widespread fraud. It’s there or it’s not there. We’re going to find out and that’s why we have these processes in place.”
Dr. LaDeur says it’s an ever-evolving situation. “We’ve still got to give it another day or so to get some of these ballots in, and I think by the end of the week we’ll have a fairly clear answer. And then the litigation may really begin.”
That could take weeks – or months – according to Cross. “It doesn’t happen quickly, is the short answer, but … if President Trump does challenge results it’s going to start at the state level, because these are claims based on alleged violations of state election law, so they’re going to start there.”
Dr. LaDeur says, “Both the federal and the state systems require in almost every circumstance that claims be adjudicated at the lower level before it reaches a (U.S.) Supreme Court level. Since many of these state laws are written by states, jurisdiction lies with state courts. So a path to the U.S. Supreme Court – there is a path – but it’s not as easy as saying you’ll take your case directly to the Supreme Court. There’s a lot of hurdles on a long path before that can occur.”
A fully-seated Supreme Court could ultimately hear arguments. Cross says, “There are nine justices on the Supreme Court again. Amy Coney Barrett could be the one to tip the scales one way or the other.”