President Donald Trump is pledging a legal fight over vote counting that drags on after polls close -- all but guaranteeing an ongoing struggle over pandemic-related voting rules if the election result is close.
Matthew Morgan, a longtime adviser to Vice President Mike Pence and now the Trump campaign’s general counsel, is leading the litigation strategy, which has so far been largely aimed at curtailing Democratic efforts to loosen rules for voting by mail.
The legal battle could center on Pennsylvania, a crucial swing state where Trump has promised to mount challenges after the U.S. Supreme Court last month left in place an extension that would allow the state to count ballots received as many as three days after the Nov. 3 election.
The justices may revisit the question, and ballots received after Tuesday are set to be kept separate, pending further litigation.
At a rally Monday night in Wisconsin -- another crucial swing state where legal fights have unfolded over voting rules -- Trump complained at length about the rules in Pennsylvania and the Supreme Court’s decision not to intervene.
“You’re going to have a population that’s going to be very, very angry and you just can’t do that. That is such a dangerous decision,” Trump said, adding that he hopes the court changes its mind, and that “lawyers will be going in and they’ll be fighting.”
Officials in Philadelphia warned it will take several days to count mailed ballots.
Trump has warned repeatedly but without evidence that ballots postmarked by Election Day but received afterward would be substantially fraudulent. He has regularly cast doubt on the system, and said that the only way he could lose is if the election were rigged, despite public polls showing him headed for a loss against Joe Biden, the Democratic nominee.
“As soon as that election is over, we’re going in with our lawyers,” he said Sunday.
On Tuesday, as voters took to the polls, Pennsylvania Republicans sued officials in Montgomery County, a suburban area near Philadelphia, alleging they illegally allowed absentee and mail-in ballots to be counted before Election Day. In the lawsuit, they also claim that county officials allowed some voters whose ballots were found to be deficient to resubmit their votes on or before Nov. 3.
Experts say it’s normal if results on election night aren’t complete and not a sign of a problem if ballots are still being counted afterward -- including those from members of the armed forces and Americans who live overseas, which are counted if they arrive after Election Day in many states.
In written statements released in his name throughout the campaign, Morgan has also taken aim at measures to rebuff Trump “campaign observers” from polling places, while filing suits in states like Pennsylvania, North Carolina and Nevada over a series of measures.
“President Trump has long fought for a free, fair, transparent election,” Morgan said in an Oct. 23 statement, announcing one of the suits.
Morgan once served as general counsel for Pence’s gubernatorial campaign in Indiana. After the 2016 election, he joined the Trump administration, first as Pence’s chief counsel and then as both the vice president’s deputy chief of staff and a deputy assistant to the president. Pence’s office didn’t respond to a request for comment, and Morgan declined interview requests.
He received his law degree and MBA from Indiana University and became a partner at Barnes & Thornburg, where he was also a registered lobbyist.
The president’s campaign formed a “lawyers for Trump” group, co-chaired by Texas Attorney General Ken Paxton and Arkansas Attorney General Leslie Rutledge, but declined to say how many they’d signed up. Morgan told Fox News in September that the group was growing and would “rally support for President Trump as they lend their time and legal expertise to protect the integrity of November’s election.”
The campaign’s efforts have until now have been focused on curbing mail-in voting rules that were changed because of the coronavirus pandemic -- or beating back Democratic efforts to expand them. That’s where they’ve been most successful.
“I think it’s fair to say they’re probably playing better defense than offense,” said Edward Foley, a professor and director of an election-law program at Ohio State University who has studied disputed elections. “The Republicans have managed to quash a lot of the injunctive relief Democrats have got.”
Republican efforts have included attempts to block states from extending the deadline for receiving ballots, pushing to require witnesses to sign mail-in ballots and keeping in place strict rules for matching voter signatures.
While courts have largely been turning back efforts by Trump’s campaign to restrict mail voting during the pandemic, the flurry of lawsuits might convince voters anyway that any outcome is tainted.
A federal judge in Texas on Monday rejected Republican activists’ attempt to toss out 127,000 votes in the most populous county in Texas.
The Supreme Court has so far rebuffed Republican challenges to mail-ballot extensions in Pennsylvania and North Carolina, though the former dispute could flare up again. The North Carolina dispute included the Trump campaign among the plaintiffs.
The high court also rejected Democratic calls to reinstate a six-day extension for the receipt of ballots in Wisconsin.
“The rules have been revised in light of Covid in a number of states,” Richard Briffault, a law professor at Columbia University, told Bloomberg TV on Monday. “These challenges are now to sort of stop those changes before Election Day. It’s conceivable, certainly in Pennsylvania and North Carolina, that there’ll be continued claims that those ballots shouldn’t be counted.”
The significance of those depends in part on how Election Day goes, experts say, because litigation is far more likely only if it has the potential to actually tip a state from one candidate to another -- and, in doing so, tip the presidency as well.
“Whether this materializes or not I think is going to be a question of numbers,” Foley said. “I think that both sides are predisposed to fight rather than predisposed to conceding defeat.”
Democrats have been preparing for legal combat, too. Bob Bauer, a top Biden adviser and former Obama White House counsel, boasted Monday about the team Democrats have built.
“We have the most highly resourced election protection program in modern American presidential history. There’s absolutely no question about it in terms of numbers, scope and sophistication,” he told reporters during a briefing that served in part as a warning shot to the Trump campaign.
Bauer said the Trump campaign has tried unsuccessfully to persuade voters that the election is fundamentally flawed and that it’s the only reason he can lose. He predicted Trump’s challenges will fail.
“The case he’s turning over to his lawyers, when the voter has spoken, is a case that no lawyer can win and his lawyers will not win it,” Bauer said. Another prominent Democratic lawyer, Marc Elias, has also been leading efforts to overturn constraints on mail voting.
The Trump campaign has also pushed to recruit poll watchers, and bristled at restrictions in Pennsylvania. “The Trump campaign will go to court to enforce the laws, as rightfully written by state legislatures, to protect every voter’s right to vote,” campaign spokeswoman Thea McDonald said in a statement last month. “President Trump and his team will be ready to make sure polls are run correctly, securely, and transparently as we work to deliver the free and fair election Americans deserve,” she added.
“Wouldn’t you like to hear -- Nov. 3rd, we win, we lose,” Trump said in Pennsylvania on Saturday, though that’s not likely to be the case unless Biden scores a blowout victory.