We're about two days away from Election Day and more than 160 lawsuits are flooding the courts disputing the results even before the votes are counted.
We remember former President Trump filed dozens of lawsuits after the 2020 election, claiming it was stolen.
Now this time, they're being filed before the election. So what's the purpose?
NBC Connecticut's Mike Hydeck spoke with Quinnipiac University School of Law Assistant Professor Wayne Unger about it.
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Mike Hydeck: So this sounds counterintuitive to a person who's not involved in law. How do you file a lawsuit disputing an election that hasn't happened yet?
Wayne Unger: Well, it depends on the nature of the lawsuit, right? So we have hundreds of, you said, 160 different lawsuits happening across the country, and all of them have different claims. So for example, one of the claims out of Georgia that we're seeing right now is whether the local boards have a duty to certify or whether they have the discretion to certify the local elections. In Arizona, for example, we're seeing challenges based off of the ballots. And then recently, one was filed also in Georgia, where you have an argument being made on whether the ballots went out early enough for voters to actually cast their votes in time for for Election Day on Tuesday.
Mike Hydeck: So let's talk about Georgia. One of those cases actually went to court and went up the food chain, and it was kicked back to look, you can't do this this close to the election. Are those challenges going to go back and forth between now and Tuesday still?
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Wayne Unger: Well, yes, so we have all sorts of different courts involved, right? So we have state courts as well as federal courts, and then you have all the appeals that could happen. So for example, the United States Supreme Court just ruled on one of those cases in which, can you purge voters so close to Election Day? And the Supreme Court didn't release a majority opinion explaining why they allowed that to happen, but the dissents say that it should not have happened.
Mike Hydeck: Right. So there's a lot of these challenges. So the average person seems and maybe thinks of something like this is a frivolous lawsuit. Is it a frivolous lawsuit, or is this a real election strategy that these people are employing?
Wayne Unger: Well, I mean, launching Election Day-related lawsuits is nothing new, right? That's been a strategy, and perhaps one of the most famous cases that we have in recent memory is 2000 in Bush vs. Gore in Florida, and the hanging chads, right? So this is nothing new, but certainly, maybe the quantity of lawsuits is unprecedented.
Mike Hydeck: Now wait, can we back up for a second. In 2000, was the hanging chad lawsuit filed before the election, though, or was it after?
Wayne Unger: That was after the election.
Mike Hydeck: So that's why this seems, feels different to me.
Wayne Unger: Right. And lawsuits before Election Day again, are also nothing new, where you have voter access issues. Lawsuits being filed on Election Day itself. Also voter access issues, whether a polling location has to close when it said it was going to close, or whether it has to extend hours because there was an error. Back in 2020, if I'm not mistaken, there was a case out of Arizona, for example, that you had this debate on whether some errors that were happening with the machines in Maricopa County would cause the polling location to stay open two or three or four extra hours in order to rectify those errors. So again, these are nothing new, and it's a tactic taken by all candidates, all parties and no matter the office.
Mike Hydeck: So let's talk two other cases in point. One of the things that is happening right now, one of those lawsuits involves military ballots that are sent overseas. Those always seem to be in question every single election, but is the timing of filing this specific lawsuit this close to the election, we knew they were serving overseas for a year already. That lawsuit could have been filed six months ago, nine months ago, but it's being filed just a couple of weeks before the election. Is that a strategic aim as well, or?
Wayne Unger: So I don't know the exact facts of that lawsuit in particular, but certainly, timing is part of strategy that both presidential campaigns are considering for sure, as far as whether they can kick the can down the road, for example. But in the military context, in those absentee ballots, yes, you have situations like where, yes, we know that they are overseas. We know where they're stationed, and we know that they need their ballots. But also, some of the logistics don't happen, and perhaps a lawsuit is based on the logistics.
Mike Hydeck: Meaning like how they're mailed, or when they're mailed?
Wayne Unger: How they're mailed, when they're mailed, when are they received, when they must be mailed back, etc. Whether it's a postmark date or receipt date for when they could be counted or not.
Mike Hydeck: And that's not uniform, right? So because it's military, even though military, you're part of a federal service, the state of Arizona decides that or the state of wherever the person is casting the ballot decides the back and forth on the dates, right?
Wayne Unger: And this is, yeah, this is something that's certainly unique in the United States election system, in which we have thousands of different voting precincts or voting jurisdictions. So we run a very decentralized election model here in the United States. So a lot of these procedures and logistics and, down to the ballot design and the language that goes on to a ballot is made at the local level.
Mike Hydeck: Is this all really just setting the stage for a challenge later, in case you lose? It kind of feels that way, right?
Wayne Unger: Well, it definitely does, and..
Mike Hydeck: Setting the legal challenge.
Wayne Unger: Yeah. So a lot of these cases are setting, are ready to go, or have already been filed, or will be filed on Election Day or shortly after Election Day. And lawyers have, for example, these complaints that would be the first thing to file with the court. They have them ready to go. They have them drafted, saved and maybe they'll make a few edits here and there, depending on what happens on Election Day. But other than that, they're ready to be filed when it needs to be filed.
Mike Hydeck: Just another example of why the United States is the most litigious country in the world.
Wayne Unger: You're telling me, as law professor.
