With polls showing the two major US presidential contenders statistically tied just a day before the elections, there is no clear favourite to win the race.
What is increasingly apparent, however, is that with a race this tight or uncertain, both parties are ready for a range of legal scenarios.
From questions over voter registration and identification to concerns over voter disenfranchisement and intimidation, the election could be decided not only at the polls but also in the courts.
“I’d be prepared for anything at this point,” J. Miles Coleman, associate editor of Sabato’s Crystal Ball at the University of Virginia Center for Politics, tells The New Arab.
“We could have anything from a repeat of 2000 to 2020 to anything in between. It does look like a few key states will be within a few points,” he says, referring to the two most litigious elections in modern US history.
The 2000 election was decided by the Supreme Court in favour of George W. Bush following a tight race in Florida. In 2020, losing Republican candidate Donald Trump tried to fight his losses in swing states by questioning the legitimacy of the polls.
This time, however, much more of the legal wrangling is being done prior to voting day.
Both parties prepared for legal challenges
Multiple lawsuits have been pouring in over the last few months, challenging voter registrations and attempting to make it easier for local and state officials to deny the certification of election results.
Meanwhile, on the other end of the political spectrum, civil rights organisations have been preparing for a tough fight against what many would describe as election subversion.
“They’re ready to rock and roll with those lawsuits. On the flip side, the election county registrars are ready too,” Richard Groper, a lecturer in political science at California State University in Los Angeles, tells TNA.
“They’re ready to combat accusations of voter fraud. Who’s the big loser? We all are, if we don’t have someone to concede on election day.”
In the final days before the election, the average of the major polls has Trump and Democrat Kamala Harris essentially tied, with most of them that favour one candidate or another within the margin of error.
Some veteran pollsters have expressed concern about oversampling or overconfidence due to surprise outcomes over the last several election cycles.
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In 2016, Trump surprised many with his presidential win, having broken down the so-called “blue wall” states of the post-industrial Midwest. In 2018, the “blue wave” included the wins of progressives, such as Alexandria Ocasio-Cortez who unseated a supposedly “safe” incumbent.
In 2020, the country saw the “red mirage” wherein election night saw Trump in the lead, but days later it swung to Joe Biden. The midterms of 2022, which many predicted would be a “red wave” turned out to be a nearly evenly divided Congress.
On the eve of the 2024 election, many long-time pollsters are acknowledging that they don’t have a prediction for the presidential race.
The importance of timing
Elections are not designed to be redone. Once they are over, it is almost unheard of for there to be a do-over.
As such, the last several days have seen a slew of legal decisions on election cases, such as the upholding of voter registration purges in Virginia, the denial of Republican challenges to overseas voters from Michigan and North Carolina, and requiring the counting of provisional ballots in Pennsylvania.
“When it comes to election law, timing is important. Often, the proper time to raise a legal challenge is before the election,” Chris Adolph, a political science professor at the University of Washington in Seattle, who has testified as an expert witness in cases of contested elections, told TNA.
“Courts typically prioritise election disputes above other matters because it is so hard to repair the damage once the election is held,” he says.
With cases of individuals allegedly interfering in the election, such as tech billionaire Elon Musk paying residents in Pennsylvania to sign a petition, such cases are dealt with individually, with Musk already being ordered to court.
“What happened in Pennsylvania could lead to sanctions against Musk, but it is unlikely to play a role in challenging the outcome of the election,” says Adolph. “Dirty tricks of this sort have always been part of American politics, but the legal repercussions fall on those responsible.”
Lessons from the past
Lessons from the past are already shaping the legal landscape of the 2024 election, notably the advanced planning by both campaigns for various scenarios, but also by having a framework for ensuring that the election’s winner will be able to peacefully transition to power, to avoid a repeat of the chaos of the 6 January 2021 insurrection.
The Electoral Count Reform and Presidential Transition Improvement Act of 2022 was signed into law by Congress to prevent a repeat of Trump’s attempts to reverse the results of the election.
Among the provisions are that the state certifications must reflect the will of the voters, the vice president’s role in certifying the election is purely ceremonial, and the successful candidate will have the necessary support to transition to power.
As for challenging the results of different states, the last election showed that Trump was not able to pose a serious legal challenge once the state elections had been counted and certified.
However, it is unclear what would happen if the election ended up hanging in the balance of one swing state, such as Wisconsin. Would Trump benefit from his appointment of conservative judges that now form the majority of the Supreme Court?
Brooke Anderson is The New Arab’s correspondent in Washington DC, covering US and international politics, business, and culture.
Follow her on Twitter: @Brookethenews
