What kinds of litigation will arise from the election, and how will these cases be resolved? Here are my predictions:
- FEDERAL COURT LITIGATION BASED ON THE PANDEMIC THAT IS INTENDED TO LIBERALIZE STATE VOTING REQUIREMENTS: We’ve seen this movie already, and we know how it ends. GOP state governments prevail in these cases.
- STATE COURT LITIGATION BASED ON THE PANDEMIC THAT IS DESIGNED TO LIBERALIZE VOTING REQUIREMENTS: There are too many different courts and statutes in play here to make any predictions. What I can say with confidence is that the Trump campaign will try to have any cases it loses reconsidered in federal court, because it sees the Supreme Court as its ultimate backstop.
- CLAIMS BASED ON VOTER INTIMIDATION: This is going to happen; the only question is how widespread and violent the intimidation will be. From a legal perspective, the problem will be in crafting an acceptable remedy. In all likelihood, the judiciary will say that the laws against intimidation should be enforced through the criminal process, and that there is no civil remedy to extend or redo the vote. Intimidation will work, in its way.
- FEDERAL CLAIMS INTENDED TO STOP THE COUNTING OF VOTES: This is where the real action will be. Trump’s attorneys will craft frivolous due process/equal protection arguments based in some way on Bush v. Gore and hope that the Supreme Court will save their client’s bacon. Will it work? With Alito and Thomas, yes. With the liberals, obviously not. With Roberts and the Trump appointees, probably not, but there will be plenty of drama, and we won’t know what will happen until it is over.