Legal challenges to 2020 election results possible, experts say

Before the ballots have been counted, legal analysts are closely watching for the possibility of challenges.

The Trump campaign and NCGOP, amongst other plaintiffs, unsuccessfully challenged the North Carolina State Board of Elections decision to extension of allowing ballots be accepted through Nov. 12, as long as they are postmarked by Election Day, as both the 4th Circuit Court of Appeals and Supreme Court ruled against overriding.

"I think you have here now a legal precedent which allows for this extended vote counting to occur, which has absolutely nothing to do with the ballots being deposited," said NC Central Law School Professor Irving Joyner.

Joyner said the margin of a victory could sway a candidate's willingness to move forward with a challenge.

"The smaller the difference, the more likely the challenge," said Joyner.

"In other states, most protests start in the courts. In North Carolina, our election boards hear them first, and it can go to the courts for appeals," added Michael Crowell, an attorney and elections law expert.

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In order to successfully file a challenge, a plaintiff would have to prove that the number of contested ballots could potentially impact the final result. For example, if the margin of victory was 200,000 votes, a candidate would be unsuccessful if they alleged just 1,000 votes were potentially impacted, as it would not affect the outcome.

In North Carolina, a candidate in a non-statewide race can request a recall if the margin of victory is 1% or less; in a statewide race, a recall can be requested if the margin of victory is .5% or less or 10,000 votes or fewer, whichever is less. This scenario played out in the 2008 presidential election, when Barack Obama defeated John McCain by about .3%, but by more than 14,000 votes.

2020 NC election results by county, electoral college votes
Crowell said challenges in a presidential race are most unlikely to succeed, due to a combination of proving enough ballots were impacted and a tighter deadline, as electors meet on Dec. 14.

"You can imagine with the number of votes cast in a statewide election, typically although things may have gone wrong and there may have been mistakes made, typically there won't be enough votes to change the outcome," said Crowell.

Inversely, elections with lower turnout tend to see more challenges.

"The most frequent protests occur in odd-numbered years when we have city elections, because you have elections where there's 11 votes difference between the two candidates," said Crowell, who added the recount process is the same regardless of the office.

Legal challenges have played a role in determining outcomes in North Carolina; in 2019, there was a new election ordered in the 9th Congressional District after an illegal ballot-harvesting operation was exposed. In that instance, Republican Mark Harris opted not to run again as his replacement, Dan Bishop defeated Dan McCready in a subsequent race.

"You have to have a really close election for a protest to go anywhere, or you have to have a fundamental problem with the way the election was conducted, i.e. something that affected a large number of counties and a large number of voters," said Crowell.
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