Trump, Biden muster army of lawyers, poll-watchers for Florida election fight
TALLAHASSEE – Thousands of poll watchers and attorneys are being deployed in Florida and other battleground states as the Donald Trump and Joe Biden campaigns ready for an Election Day unlike any other – one already sparking a firestorm of court challenges.
With an unprecedented 300-plus lawsuits in various stages across key states over the conduct of the election, both presidential camps are bracing for a Nov. 3 contest whose outcome may not be known for days.
Maybe even weeks.
Twenty years ago, Florida was ground zero for a 36-day clash ultimately settled by a 5-4 U.S. Supreme Court ruling that gave Republican George W. Bush a 537-vote victory in the state and, with it, the White House.
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But veterans of that clash say 2020 is even more volatile.
“It all depends on how close it is, everywhere, on how wild and wacky it gets,” said Mark Herron, general counsel for the Florida Democratic Party and once part of Democrat Al Gore’s legal team.
“No one, unfortunately, can predict what will or won’t happen,” he said.
Barry Richard, the Tallahassee attorney who represented Bush in Florida 20 years ago, said he recently rejected some “remote feelers” from the Trump campaign looking to lawyer-up in Florida.
Unlike the army of attorneys mustering for months now, Richard said he was telephoned at 6 a.m. the morning after Election Day 2000 to become Bush’s lead Florida lawyer. He called Trump a “danger to this country” and said this year’s contest could easily outstrip the electoral chaos he faced.
“The two elections are very different in multiple ways. But it’s much more intense now,” Richard said. “The core difference really is that nobody in 2000 was questioning the basic integrity of our electoral system. This time, Trump has sowed a lack of confidence in it for at least some segment of the population.”
The Bush-Gore recount fight sparked 47 lawsuits after Election Day, many centering on determining voter intent, problems with ballot design and vote-counting procedures in several Florida counties.
The state was plunged again into a post-election battle only two years ago during a never-before-seen three statewide recounts, with the U.S. Senate, governor’s race and contest for agriculture commissioner officially too close to call on election night.
Another tight election next month is expected to spawn a dizzying array of legal challenges focusing on such areas as signatures on vote-by-mail ballots, the time ballots arrive at elections offices, the eligibility of certain voters, and whatever tabulating machine and polling place problems emerge on Election Day.
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Both parties also have been recruiting scores of volunteers to staff voting precincts around the state to watch for any problems or mischief.
But unlike 2000, a flurry of pre-election court fights across the nation is swirling around voter registration, vote-by-mail deadlines, ballot drop boxes and other voter access issues, some stemming from the pandemic.
The lawsuits underway diverge along partisan lines, said Wendy Weiser, who is tracking them for the Brennan Center for Justice at the New York University School of Law.
“There are common themes,” Weiser said. “Lawsuits being brought by voting rights advocates and Democratic Party groups are seeking primarily to remove impediments to voting, some of which are especially burdensome during the pandemic.”
Those from the Trump campaign and the Republican National Committee take a different tack, she said.
“Their litigation generally would restrict access to voting, challenging actions by states that extend voting, call into question the security of absentee or vote-by-mail, and limit the number of ballot drop boxes … These are the major categories of cases, and there’s a clear pattern from the Trump side,” she said.
Neither campaign is willing to say much publicly about the lawsuits underway – or detail what legal areas they see as ripe for post-election challenges.
But both sides make it clear they are ready to fight on well past Nov. 3.
“There’s never been an election this litigated, and we’re still far from Election Day,” said Michael Thielen, executive director of the Republican National Lawyers Association, which is recruiting lawyers to assist the Trump campaign and other Republican candidates.
Thielen portrayed much of what’s happening now in courtrooms across the nation as Democrats seeking to tilt election law to their advantage.
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“The game is already in the first quarter, and they’re trying to get courts to say, ‘Oh, you get five downs instead of four downs,” Thielen said.
The Biden campaign wouldn’t comment on the turbulent legal landscape. But like Thielen’s football reference, one attorney representing the Democrat said a reluctance to reveal lawsuit plans is “like the coach holding his playbook over his mouth when the camera is on him on the sidelines.”
In Florida, the biggest toss-up state on the electoral map, a lawsuit earlier this month by Democrats unsuccessfully sought to further extend the state’s voter registration deadline after the online site crashed the final day voters could enroll.
Gov. Ron DeSantis did reopen the site for an additional few more hours, but not the full day sought by Democrats.
In denying Democrats’ request, U.S. District Judge Mark Walker criticized the state’s overall readiness, saying: “This court notes that every man who has stepped foot on the moon launched from the Kennedy Space Center, in Florida. Yet, Florida has failed to figure out how to run an election properly – a task simpler than rocket science.”
Other preelection lawsuits in Florida involved vote-by-mail issues and even a state law giving the party controlling the governor’s office the top spot when listing candidates in election contests.
But the biggest ruling came in early September, when a federal appeals court reversed a lower court that declared unconstitutional a state law requiring felons to pay court fees, fines and restitution before becoming eligible to register as voters.
The decision will exclude an estimated 770,000 felons who seemed clear to gain their voting rights under a voter-approved 2018 constitutional amendment.
The amendment had been viewed as one of the largest voter expansions in modern U.S. history, but now is blunted by the law approved by the Republican-dominated state Legislature and signed into law by DeSantis, an ally of the president.
Heading toward Election Day, the Trump and Biden campaigns have their legal teams on speed-dial.
Biden’s side is led nationally by Dana Remus, the campaign’s general counsel, and Bob Bauer, a former White House counsel under President Barack Obama. Marc Elias, a veteran Democratic elections lawyer with the Washington, D.C., law firm, Perkins Coie, is central to Biden’s legal efforts, and knows Florida, having represented Bill Nelson in the 2018 recount, which ended with Republican U.S. Sen. Rick Scott’s election.
Coordinating Biden’s efforts in Florida is Brandon Peters, who has served for more than a year as the Florida Democratic Party’s voter protection director. Chuck Lichtman, chief legal counsel for that effort, is another 2000 recount veteran and is with the Fort Lauderdale law firm, Berger Singerman.
Firm founder Mitchell Berger is a major Democratic fundraiser who represented Nelson two years ago and also Gore in 2000.
The Trump campaign’s general counsel is Washington attorney Matthew Morgan, and he is relying on attorneys from mega-firms Consovoy McCarthy, Jones Day, and King and Spalding, which all have connections to the administration.
In Florida, Ben Gibson, an attorney with the law firm Shutts & Bowen, is coordinating Trump legal efforts. He’s a member of the state Board of Education and was general counsel to DeSantis’ transition team. He’s also among a handful of attorneys advising the governor on judicial appointments.
A “Lawyers for Trump” website is already up, with an online sign-up form touting: “Yes! I want to volunteer with Lawyers for Trump.” The webpage also has a button where someone can “report an election incident.”
Ron Meyer, a Tallahassee lawyer and elections law specialist who helped represent Gore 20 years ago, said he plans on staying out of whatever courtroom dramas emerge next month.
But he said that if either candidate’s camp seeks to contest results, the landscape will be fertile.
“Good lawyers will always find areas for legal challenges,” Meyer said. “And when the presidency is at stake, you know that not one single area will be ignored.”