Dear God, Don't Put The Election In The Hands Of Lawyers

De jure universal suffrage doesn't matter if de facto voter disenfranchisement happens in courtrooms.

It makes me indescribably angry that counting every legally cast ballot is considered partisan, instead of, you know, A CENTRAL TENET OF DEMOCRACY, but here we are. I know you know, but as of this writing there has been no declared winner of the 2020 presidential election — despite what the president might say.

Because there’s an unchecked pandemic raging, Democrats launched a PR campaign to get voters to cast early and mail-in ballots. And voters obliged, but that’s left us in a dilly of a pickle with Election Day having come and gone and no winner declared. Of course, declaring a winner is only a modern convention but the president has the attention span of a gnat, so.

Anyway, we’re now advancing to the litigation phase of the election, which, again, is a disgrace. Pennsylvania looks to be a key swing state, and the effort to get ballots tossed out is already underway there. Then there’s the effort to get the Post Office to actually deliver the ballots that were cast, and, yeah that’s not going well. Actually, it’s been a banner year for election lawsuits, with a record breaking 230 filed between January 1 to October 23.

We already have some intel on the Biglaw firms that are working on the Republican election cases, ahem, Jones Day and King & Spalding. While Dems have looked to Greenberg Traurig, Dentons, and of course their go-to election lawyer Marc Elias at Perkins Coie.

And it’s true, as I’ve had to repeat to myself multiple times over the morning, that Joe Biden’s most likely path to victory (some combination of the upper Midwest “Blue Wall” — Michigan, Wisconsin, and Pennsylvania — and Arizona) is still very much viable. But Dems had hoped for a larger margin of victory that would stop Trump from trying to (further) undermine democracy. Because that’s where we are as a nation, we have de jure universal suffrage but the de facto voter disenfranchisement will start to happen in courtrooms.

While I — probably naively — still have faith that the legal challenges will be fruitless and Joe Biden will ultimately be sworn in as our 46th president, it FUCKING SUCKS. Counting ballots isn’t a difficult concept. It shouldn’t mean you’re in the bag for Dems because you want the damn votes cast to be counted. But, again, this is where we are.

Is all this a sign that we’ve entered late-stage democracy? Almost certainly yes. But should you freak out that Biden will lose this particular election? No, at least, not yet.

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headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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