An effort by the Trump and Biden campaigns to deploy challengers to ballot-counting operations in battleground states threatens to slow states' ability to count votes, raising concerns that the delays will allow President Donald Trump to double down on his claims that any prolonged counting indicates fraud.
Ballot-counting watchers are a key component of both campaigns' legal strategies, with preparations underway to contest ballots, review signatures and witness requirements, and push to "cure" invalid ballots in states where that's allowed. If a battleground state becomes a razor-thin contest, the fight could end up in the courts.
The role of ballot watchers, who include trained volunteers and lawyers, is to document every detail and dispute a ballot if there's a potential issue. While their presence isn't new, election experts fear that the added oversight -- combined with an influx of mail-in ballots -- could lead to unnecessary delays that fuel doubt and chaos if it's a close election that hinges on the mail-in vote to determine the outcome.
And with millions more people casting ballots through the mail thanks to the covid-19 pandemic -- along with many states waiting to begin counting those ballots until the polls close -- the process could stretch well past Election Day.
The prospect of a delayed result comes as Trump and the White House are suggesting that the outcome of the presidential contest should be known on election night, rhetoric that's at odds with what election officials and experts are trying to prepare the public for: Vote totals on election night are never official and the high percentage of mail-in ballots means results will come in more slowly, so a winner may not be known for days, if not weeks, afterward.
Trump has repeatedly and falsely charged that mail-in voting will lead to widespread fraud and a "rigged" election, while White House press secretary Kayleigh McEnany falsely claimed last week that "the system is supposed to" determine a winner on election night.
"The longer it takes to count these ballots the more uncertainty there is and those spreading disinformation, and even foreign adversaries, could use that uncertainty to create more division and reduce confidence," said David Becker, founder of the nonpartisan Center for Election Innovation and Research.
Republican National Committee Chief Counsel Justin Riemer said the party is investing in a legal effort to make sure the process "runs smoothly" and the law is being followed.
"We are not there to obstruct the process. If they're supposed to check signatures, they need to check signatures. We understand there's an urgency to count ballots, but it needs to be done right," Riemer told CNN. "We can't stand aside if officials aren't complying with the law -- an unfortunate consequence of taking action is that it could slow down the process."
The presidential campaigns lawyer up
Both Democrats and Republicans have spent millions gearing up for legal battles expected both before and after the polls have closed on November 3.
The Biden campaign and the Democratic Party have assembled a massive legal effort focused on voting and election issues, including a "special litigation" unit led by Dana Remus, the campaign's general counsel, with hundreds of lawyers looking at state-by-state voter issues related to voter access and vote counting.
"We're monitoring those potential situations and are well prepared to respond to them as needed," said a Biden campaign official.
The Trump campaign and the RNC have built their own major legal apparatus, with preparations underway for months as the Covid-19 pandemic shifted the focus toward absentee ballot processing and counting. The effort has included sending local officials questionnaires on how ballots will be verified and staffers will be deployed.
"It's fair to say that 2020 will be the largest election observation program that the party has had and the presidential campaign has had," Riemer said. "We're prepared with volunteers and attorneys in these central counting locations starting at the time ballots begin to be processed."
The potential of the two parties contesting the results could begin soon after the polls close. Democrats have been warning that the returns coming in on election night could be misleading, because a higher percentage of Republican voters are planning to vote in person, while more Democratic voters say they'll vote through the mail, according to polling from CNN and others.
That means states could have Trump ahead when voters go to bed on election night, only to see the results shift toward Joe Biden, the Democratic nominee, as more mail-in ballots are tabulated.
It's a phenomenon that occurred during the 2018 midterm elections in several close races, which prompted Trump to falsely cast doubt on the process. He tweeted that Florida "must go with Election Night results" when the Senate contest tightened due to mail-in votes, and suggested Arizona should hold a new election after Democrat Kyrsten Sinema took the lead in the Senate race.
Biden said on Monday that he was concerned Trump would try to do the same thing in November. Asked if he had confidence that all votes would be counted, the former vice president told reporters, "I have confidence that Trump will try to not have that happen, but I'm confident the American public is going to insist on it."
The length of time it takes for a winner to be declared in the presidential election will depend heavily on how close the election is. In modern presidential politics, a winner is usually -- but not always -- called on election night. In 2004, Democratic nominee John Kerry did not concede until the next day, waiting for the results in Ohio to fully come in. And in 2000, the presidential contest stretched on more than a month after Election Day, thanks to a protracted Florida recount and the court battle that accompanied it.
RNC spokesman Michael Ahrens pointed to the 2000 Florida recount as an example of why there shouldn't be a long delay post-election. "I don't think the 36 days it took in 2000 did a service to anyone," Ahrens said.
'You could really muck up the work'
Several key battleground states -- Michigan, Wisconsin and Pennsylvania -- don't start counting mail-in ballots until Election Day by law, which only raises the stakes for a potential delay until it's known who won.
Michigan is debating changing its laws on counting mail-in ballots. The state Senate passed a bill Tuesday giving election workers one additional day to process absentee ballots; the legislation is still pending in the House.
Once the counting begins, several states, such as Wisconsin, allow challengers to be in close proximity to the election official tabulating the votes, allowing them to question whether a ballot is valid. Wisconsin election official Reid Magney said the state has historically had lawyers from both sides at the central count locations, such as Milwaukee and Green Bay, which are also open to the public.
"Campaigns can have people looking over their shoulders" Magney said.
But that can slow things down.
"If you have a ballot that would normally take 20-30 seconds, but it takes 1-2 minutes because someone is challenging every ballot -- that exponentially lengthens it and you could really muck up the work," Becker said.
Because more mail-in votes are likely to be coming from Democrats, the GOP lawyers are likely to be in the position of challenging the legitimacy of mail-in ballots. Such challenges could be due to a signature mismatch or a missing piece of information like a witness signature, which is required in some states.
Democrats, in turn, are preparing to be ready to counter those Republican challenges. They are also readying efforts to quickly "cure" ballots deemed invalid, which can be done after Election Day in 13 states, according to the National Conference of State Legislatures.
Election officials at the central counting locations are typically well-trained, Becker said, adding that campaigns will need "some reasonable basis" to challenge a ballot. "You're not allowed to challenge every ballot," he said.
Magney said campaign officials and the general public are allowed to observe the process, but they can't go too far. "If someone is creating a disturbance," he said, "they could be tossed out."