(CN) — “This will be a rigged election,” President Donald Trump tweeted in May.
The succinct and blunt prognostication is a piece of Trump’s attempt to cast doubt on the integrity of the upcoming presidential election in general while specifically focusing on mail-in ballots as susceptible to fraud.
His supporters say he is bringing much-needed attention to the problems with election integrity, while critics note Trump and his GOP colleagues have furnished scant evidence that ballot fraud is a problem in national elections and are intent on disenfranchising swaths of the population they view as hostile to their political agenda.
Regardless, the pitched rhetoric has led both parties to lawyer up to a large degree in anticipation of a bevy of lawsuits filed on and immediately after Election Day.
The Trump campaign has hired a phalanx of attorneys from three major law firms and dispatched them around the country, focusing their presence on 17 battleground states.
“The RNC and the Trump campaign are aggressively fighting back against the Democrats’ assault on the integrity of our elections,” said Ronna McDaniel, chairwoman of the RNC. “All across the country, Democrats are trying to use coronavirus and the courts to legalize ballot harvesting, implement a nationwide mail-in ballot system, and eliminate nearly every safeguard in our elections.”
The campaign formed a group called “Lawyers for Trump” presided over by Campaign General Counsel Matthew Morgan. Other lawyers involved in the effort include Texas Attorney General Ken Paxton and Arkansas Attorney General Leslie Rutledge, as well as California Committeewoman Harmeet Dhillon and former Deputy White House Counsel Stefan Passantino. Former Florida Attorney General Pam Bondi, a close ally of the president, and Trump’s personal attorney Rudy Guliani are also involved.
Meanwhile, Joe Biden has marshaled a legal team of his own, with Dana Remus serving as the campaign’s general counsel. Remus leads a team that includes Bob Bauer, the former White House counsel under Barack Obama and a pair of former solicitors general in Donald Verrilli and Walter Dellinger. Eric Holder, the former attorney general, is also involved.
Both sides are lawyering up in anticipation of a contested election that may hinge on court decisions determining the legitimacy of mail-in ballots or whether certain state restrictions are constitutionally viable.
Election integrity is such a difficult legal issue to parse because there is no federal program for conducting elections. Instead, national elections are conducted on a state-by-state basis. In many instances, election rules and regulations are even more granular with different counties maintaining election offices that may vary in how they perform their duties.
“There are 50 different sets of rules and even those are applied differently from locality to locality,” said James Sample, a law professor at Hofstra with a specialty in election law.
Bush v. Gore, the notorious Supreme Court case that decided the 2000 election, hinged on the legal question of whether different methods of counting votes in different counties was a constitutional violation.
While the outcome is a legally thorny issue, Sample says election law is not an arena for legal purists but is often dictated by partisans.
“This is not high-minded law so much as it’s about the application of partisan politics,” Sample said. “Large scale challenges to ballot validity are as much of a product of partisan politics and statistical probability as they are about an application of the law.”
As such, there is no body of case law that pertains precisely to absentee or mail-in ballot legitimacy. There are no cases where mail-in ballots have been discounted precisely because the votes were not cast at the polls.