Hans von Spakovsky: Trump Campaign Could Sue Over Counting of Late Absentee Ballots

November 4, 2020 Updated: November 4, 2020

Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, said he believes that the Trump campaign could file lawsuits challenging states that are counting absentee ballots postmarked on or before Nov. 3 but received after Election Day.

“I assume what might happen is that the Trump campaign and or the Republican National Committee may file lawsuits over these kinds of blatant violations of state law,” von Spakovsky told The Epoch Times’ “American Thought Leaders” program.

“In particular, the extensions of time and other changes made when it comes to absentee ballots and argue that those ballots should not be counted and or it raises so many questions about the credibility of the outcome, that the election potentially should be overturned.”

President Donald Trump has vowed to consider legal options for contested results after several states loosened their election rules to allow the counting of ballots that arrive after Election Day. The president has been fighting for the sanctity of the election box on Nov. 3 as political opponents pushed plans to expand mail-in voting across the country.

While Democrats say the expansion of absentee voting is necessary to comply with public health recommendations during a pandemic, the president and Republicans say these actions are ripe for fraud.

On Nov. 4, the Trump campaign said it filed a lawsuit in Michigan state court seeking to review and have access to monitor the state’s process of counting the ballots, and is seeking a recount in Wisconsin, where the race has been called for Biden.

A number of battleground states such as Pennsylvania and North Carolina have allowed for the counting of ballots received after Election Day, which has rendered great uncertainty about when the results of the 2020 election could be called.

Election officials in Pennsylvania, for example, are required to accept mail-in and absentee ballots up to three days after the Nov. 3 election, following a state Supreme Court ruling. The ruling is currently being challenged in the U.S. Supreme Court by the Republican Party of Pennsylvania, which argues that the extension of the deadline violates federal law that sets Election Day as the first Tuesday after the first Monday in November, and that the decision to extend the deadline belongs to lawmakers, not the courts.

In October, the U.S. Supreme Court indicated that it was interested in granting a request to review the Pennsylvania Supreme Court’s decision.

“The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election,” Justice Samuel Alito wrote in his statement (pdf). He was joined by Justices Clarence Thomas and Neil Gorsuch.

Although the nation’s top court rejected a request to expeditiously consider a request to review the case, Alito said that the issues presented in the case is of “national importance, and there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution.”

Under the U.S. Constitution, the “times, places, and manner of holding elections” may be prescribed by the state “legislature” and “Congress.”

Von Spakovsky, who is also the manager of the Election Law Reform Initiative, said that the number of absentee ballots that come in after Election Day could make a difference in who wins the election. Because of that, he added, battleground states such as Pennsylvania and North Carolina could end up in court again to challenge their extension for the delivery of ballots. These extensions granted in both states weren’t issued by lawmakers, but rather by the state Supreme Court and the state Board of Elections, respectively.

Although Trump said his campaign will take its cases to the Supreme Court, von Spakovsky believes the president means he is willing to pursue the case all the way to the Supreme Court in case lower courts rule against him.

“They will file it probably [in] a federal court in whatever state the potential issue is [in], but I think what they’re saying is if they get an adverse decision from a federal District Court in a particular state, that they’re willing to appeal it and go all the way to the U.S. Supreme Court to get a final answer on that issue,” he said.

Von Spakovsky added he believes that if either side files litigation to contest the outcome of the election, he believes the court would act expeditiously to consider the cases.

“The federal courts, including the Supreme Court, are very well aware of the fact that the Electoral College is supposed to meet toward the beginning of December. And the outcomes in the states have to be determined by that time so that the Electoral College can meet, and electors can cast their votes for president,” he said.

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