AILSA CHANG, HOST:
One of President Trump's most consistent messages to voters about the 2020 election has been you won't be able to trust the results.
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PRESIDENT DONALD TRUMP: The mail-in ballot is going to be - they're going to be rigged.
Millions and millions of ballots to people. You're never going to know who won the election. You can't have that.
The only way we're going to lose this election is if the election is rigged. Remember that.
CHANG: The president regularly tries to create uncertainty about the outcome of the election and in particular about the validity of mail-in voting. That's what he did this morning when he tweeted, quote, "the November 3 election result may never be accurately determined," unquote.
SACHA PFEIFFER, HOST:
And those mail-in ballots are ground zero for a torrent of lawsuits which are already making a contentious election a highly litigious one. Lawyers from both parties are already battling it out in court over almost every conceivable facet of this election.
CHANG: Our co-host Audie Cornish has been talking to some of those lawyers and digging into the story of the last time a presidential election ended up in court. She picks up the story on election night 2000.
AUDIE CORNISH, BYLINE: The night of November 7, 2000, was cold and wet in Austin, Texas. But the mood outside the state capitol was jubilant.
BEN GINSBERG: Nobody cared. We had just won the presidency of the United States.
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TOM BROKAW: Doris, Doris, Doris, Doris, Doris, Doris...
DORIS KEARNS GOODWIN: Uh-oh. Something's happened.
BROKAW: George Bush is the president-elect of the United States. He has won the state of Florida according to our projections.
CORNISH: Republican lawyer Ben Ginsberg was at then-Governor Bush's campaign headquarters nearby.
GINSBERG: There was great joy.
CORNISH: Until the mood changed among the crowds in front of the giant screens.
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UNIDENTIFIED REPORTER: One of the reasons for Al Gore's delay is that he has actually called George W. Bush and taken back his concession phone call.
GINSBERG: That's when we had a clue there was a problem.
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BROKAW: All right. We're officially saying that Florida is too close to call because...
GINSBERG: Phones started going off in rapid succession, and we rushed back to the headquarters, watched the results in Florida tighten and tighten.
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DONALD EVANS: They're still counting. They're still counting. And I'm confident, when it's all said and done, we will prevail.
GINSBERG: And about 3:30 in the morning, the campaign chair came by my desk and said, there's going to be a recount. You'd better saddle everybody up. And so that's when the private planes got put into service, lawyers got recruited, phone calls went out.
CORNISH: Those lawyers on planes ended up in Florida, where Democratic presidential candidate Al Gore sued to force a recount in a few too-close-to-call counties. It took 36 days and a decision by the U.S. Supreme Court before George W. Bush became the 43rd president of the United States.
GINSBERG: The level of litigation that took place in 2000 was unprecedented.
CORNISH: And that word, unprecedented, gets used a lot when describing the 2000 election. But what was unprecedented two decades ago looks quaint in 2020 because this year, the campaigns and political parties have staffed up legal war rooms.
We've heard this is going to be the most litigated election ever. Does that sound right to you?
JUSTIN RIEMER: Yes, it does. I think it probably already has achieved that status.
CORNISH: That's Justin Riemer. He's the chief counsel for the Republican National Committee. He says the legal fights over the 2020 election are underway.
RIEMER: Dozens and dozens of lawyers. We have in-house counsel. And then we have retained dozens of lawyers around the country to help us with these cases.
CORNISH: And in many instances, those dozens and dozens of lawyers will be going up against one of Riemer's main rivals on the other side of the aisle, longtime Democratic election attorney Marc Elias.
MARC ELIAS: Donald Trump tweeted about me in 2018 in Florida, saying I was the Democrats' best election-stealing lawyer.
CORNISH: Elias doesn't see it that way, of course. But like Riemer, he's already busy in court. Joe Biden has hired his team to defend Democrats in state-level fights come election night.
ELIAS: We're litigating 30-plus lawsuits in 17 or 18 states. I think I saw that the RNC itself is litigating 41 cases. So yeah, there's no precedent that is even close to that.
CORNISH: In 2000, the legal battles centered on a vote recount in Florida. Butterfly ballots and hanging chads were endlessly examined and debated. This time around, the legal arguments are much more complex and center on the rules governing mail-in voting as states have expanded voting options to protect from the spread of the coronavirus. And yet already there are a number of lawsuits swirling around mail-in voting - the signatures on ballots, the witnesses, postmarks. Every conceivable component of a mail in ballot is being scrutinized. In many instances, the rules around them are being challenged in the courts. There are nearly 250 pandemic-related lawsuits pending.
Ben Ginsberg is sitting this cycle out, but that doesn't mean he hasn't been thinking about what's to come.
GINSBERG: What happens if it's a three or a seven-day deadline but a whole bunch of ballots arrive after that deadline through no fault of the voters themselves? That's an area that would be ripe for both litigation and putting off when you know the final results of an election.
CORNISH: He says the hope is that the courts will take up these issues before the election happens. Beyond the pandemic, there's another factor that few people are paying attention to. The Republican Party is no longer bound by certain rules when it comes to poll watchers or so-called ballot security programs. The RNC had been under a consent decree going back to the 1980s. Democrats accuse the RNC of violating the rights of Black and Latino voters, which the RNC denied. Now that that decree has expired, I asked Justin Riemer, the chief counsel of the RNC, how this will make a difference in how they approach the 2020 election.
RIEMER: The 1980 presidential election was the last time that the Republican National Committee itself could really meaningfully engage in poll-watching activities. That had a lot of ramifications that were really unhelpful to the party. For one, we couldn't fully coordinate with other party committees and with the presidential campaigns on Election Day operations, on having observers in the polling place, on gathering evidence and documentation that would be used in post-election litigation and in recounts.
The Democrats were able to have poll watchers there to document what happens if a precinct runs out of ballots, for example, or if there is a voting equipment breakdown. Documenting that evidence is extremely important if there are questions after the election that lead to litigation or lead to a recount. And I compare it to a court case where one side is able to have all the evidence and the other side has none. How is that fair?
CORNISH: Riemer says that this development means the RNC is off the sidelines for this election. What do Democrats think of that?
ELIAS: It means that we all need to be ready.
CORNISH: Attorney Marc Elias.
ELIAS: The Republican National Committee was put on the sidelines because in 1981, they ran a blatantly racist voter suppression program that targeted Black and Latino voters in New Jersey. And over the course of the next decade or so, they violated that consent decree in further targeting African American voters in places like Louisiana.
CORNISH: And some of this took the action of going after voters who they said their information was outdated and maybe getting them purged from the polls, right? Essentially a judge agreed with the DNC that they were targeting voters of color.
ELIAS: A judge agreed, but it also involved putting off-duty police officers in uniform with black armbands in largely Black and brown precincts in order to harass voters. So the RNC has got nothing to blame but itself for having been on the sidelines. And when I hear that they are now so eagerly coming off the sidelines under a president who is as hostile to voting and whose record on race is so poor, it's chilling.
CORNISH: And all of it - the expiration of the consent decree, the expected challenges to rules governing mail-in ballots - it means more legal challenges to the 2020 election. And there's another wildcard - the president himself. Trump has not clearly said he would accept the results of the election. Fox News anchor Chris Wallace put that question to the president directly.
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CHRIS WALLACE: Can you give a direct answer, you will accept the election?
TRUMP: I have to say. Look. I have to see. No, I'm not going to just say yes. I'm not going to say in order - and I didn't last time, either.
CORNISH: It's something that worries the head of the ACLU Voting Rights Project, Dale Ho.
DALE HO: So we could have a situation where there is a large number of outstanding ballots on election night but the president declares the election over based on the in-person vote and either sows confusion and chaos as a result of that or even takes, you know, steps to try to prevent the counting of properly cast absentee ballots.
CORNISH: I asked former Bush campaign attorney Ben Ginsberg about how that compares to what happened in 2000. After all, he had a front row seat. He told me there is an important distinction between a court challenge and a recount and questioning the validity of an election after it's all played out.
GINSBERG: The bedrock principle of the country, of the democracy is the peaceful transfer of power based on the results of the election. So calling into doubt the results of an election beyond the contested recount procedures that are available in every state has a long-term detrimental effect on the country.
CORNISH: There is a growing consensus that the 2020 race between Joe Biden and Donald Trump will not end on election night. Back in 2000, Al Gore accepted defeat and gave a speech encouraging the country to move forward as one.
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VICE PRESIDENT AL GORE: And I call on all Americans, I particularly urge all who stood with us to unite behind our next president. This is America. Just as we fight hard when the stakes are high, we close ranks and come together when the contest is done. And while there will be time enough to debate our continuing differences, now is the time to recognize that that which unites us is greater than that which divides us.
PFEIFFER: That's former Vice President Al Gore conceding defeat to George W. Bush in the 2000 presidential election. That reporting on that contested election and the litigation surrounding the current presidential election from our co-host Audie Cornish. Transcript provided by NPR, Copyright NPR.
