Legal challenges likely as votes still being counted in several battleground states

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Wednesday, November 4, 2020
Legal challenges likely as votes still being counted
While Election Day is over, votes are still being counted in several battleground states, including North Carolina.

RALEIGH, N.C. (WTVD) -- While Election Day is over, votes are still being counted in several battleground states, including North Carolina.

Part of that is because of a sharp increase in mail-in ballots thanks to the COVID-19 pandemic, and some states implementing extensions of when mail-in ballots could be received. In North Carolina, mail-in ballots are valid as long as they're postmarked by Election Day and received by November 12.

The NCGOP and Trump campaign, among other plaintiffs, unsuccessfully challenged the extension in the 4th Circuit Court of Appeals and US Supreme Court.

In North Carolina, there are 117,000 outstanding absentee ballots, the key reason why there has been no declared winner in the Presidential, Senate, and Attorney General's race where the current margins are less than the number of potentially uncounted votes. A candidate can request a recount in a statewide race if the margin of victory is .5% or 10,000 votes, whichever is the lesser amount. The closest race of those three is the race for Attorney General, where incumbent Democrat Josh Stein currently leads Republican challenger Jim O'Neill by nearly 11,000 votes.

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Both presidential candidates are shifting the bulk of their focus to the Midwest, specifically Michigan, Wisconsin, and Pennsylvania. ABC is projecting Wisconsin and Michigan for Joe Biden, while ballots continue to be counted in Pennsylvania.

The Trump campaign has formally requested a recount in Wisconsin, where Biden is ahead by about 20,000 votes, and filed a lawsuit in Michigan, alleging they have not been provided "meaningful access" to counting locations. They are also vowing a legal challenge in Pennsylvania, with President Donald Trump mentioning he has his eyes set on the Supreme Court.

"The issue is that's not how it works. You don't just go to the Supreme Court if you have an issue. So you have to have a legal basis for it, and you would have to file a lawsuit in one of the lower courts in either the state court or the federal court. He might lose and appeal, and he could appeal that to the Supreme Court," said Guy-Uriel Charles, a Duke Law School Professor.

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In Wisconsin, a recount is allowed if the vote is within 1%; however, Scott Walker, a former Republican governor of the state, acknowledged the unlikelihood of a recount changing the outcome.

Charles explained each state has different processes for contesting results.


"They have to see is there something that went wrong in those states. And every states provides a mechanism for challenging the results of the election. So (if) there's a problem with vote counting, there's a problem with the tabulation," Charles said.

He anticipated the Trump campaign would take a "two-tiered" approach, filing challenges at both the state and federal level.

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"You can't just walk into federal court and say I lost, right? You have to have a legal basis for saying there is a law that has been violated that undermines our constitutional rights," Charles said.

Pennsylvania elections officials had already been planning for the possibility of a legal challenge, separating, though counting, mail-in ballots they received after 8 p.m. on Election Night. Pennsylvania will accept votes postmarked by Tuesday that are received by 5 p.m. on Friday, November 6.