The stormy, once-in-a-lifetime Florida recount battle that polarized the nation in 2000 and left the Supreme Court to decide the presidency may soon look like a high school student council election compared with what could be coming after this November's election.
Imagine not just another Florida but a dozen Floridas. Not just one set of lawsuits but a vast array of them. And instead of two restrained candidates staying out of sight and leaving the fight to surrogates, a sitting U.S. president unleashing all-caps Twitter blasts from the Oval Office while seeking ways to use the power of his office to intervene.
The possibility of an ugly November — and perhaps December and January — has emerged more starkly recently as President Donald Trump complains that the election will be rigged and Democrats accuse him of trying to make that a self-fulfilling prophesy.
With about 85 days until Nov. 3, lawyers are already in court mounting preemptive strikes and preparing for the larger, scorched-earth engagements likely to come. Like the Trump campaign, Joe Biden's campaign and its network of support groups are stocking up on lawyers, and Democrats are gaming out worst-case scenarios, including how to respond if Trump prematurely declares victory or sends federal officers into the party's strongholds as an intimidation tactic.
The emerging battle is the latest iteration of the long-running dispute over voting rights, one shaped by the view that higher participation will improve Democrats' chances. Republicans, using dubious or unfounded claims about widespread fraud, are trying to prevent steps that would make it easier for more people to vote and Democrats are pressing more aggressively than ever to secure ballot access and expand the electorate.
But that clash has been vastly complicated this year by the challenge of holding a national election in the middle of a deadly pandemic, with a greater reliance on mail-in voting that could prolong the counting in a way that turns Election Day into Election Week or Election Month. And the atmosphere has been inflamed by a president who uses words like "coup," "fraud" and "corrupt" to delegitimize the vote before it happens.
The battle is playing out on two tracks: defining voting rules and preparing for fights over how the votes should be counted and contesting the outcome.
"The big electoral crisis arises from the prospect of hundreds of thousands of ballots not being counted in decisive states until a week after the election or more," said Richard Pildes, a constitutional scholar at New York University School of Law.
If the candidate who appears ahead on election night ends up losing, he said, it will fuel suspicion, conspiracy theories and polarization. "I have no doubt the situation will be explosive," he said.
Some flash points have already emerged:
• A long-troubled Postal Service, now run by a Trump megadonor and seemingly overwhelmed by the prospect of delivering tens of millions more votes cast by mail with an administration resistant to providing substantial new funding.
• Concern among Democrats that Trump or Attorney General William Barr could raise alarms about voter fraud to lead sympathetic state and local officials to slow or block adverse results.
• Fights over whether mailed ballots should be counted if received by Election Day or simply postmarked by Election Day, not to mention what to do if the post office does not postmark them at all.
• Fights over the use of drop boxes to return ballots and the number of polling places for in-person voting amid the risk of disease.
• Fights over whether witnesses should still be required for absentee votes in a socially distant moment and what to do if signatures do not match those on file.
Democrats and their allies, led by Marc Elias, general counsel of the Democratic National Committee, are seeking to expand voting options, particularly through mail-in voting. They have active litigation in numerous battleground states, pursuing relief on deadlines, signature and witness requirements, among others.
Republicans said their own court efforts are aimed at preventing Democrats from changing the rules in the middle of the game. "People are viewing it as an attack on vote-by-mail," said Justin Riemer, chief counsel for the Republican National Committee. But in fact, he said, "it's by and large protecting the safeguards that are in place."
Trump, who also made unfounded claims about fraud in 2016, even though he won, has signaled that he will not hesitate to go to court after Election Day if he does not like the result. Unlike in 2000, when the Justice Department largely stayed on the sidelines, Democrats worry that Barr will intervene with civil suits, investigations or public statements, casting doubt on the result if Trump appears to lose. And some Democrats say they are not sure how Trump would respond, with the presidency on the line, to a court ruling against him.
Some Democrats express fear that Trump would send federal agents into the streets as he did in Portland, Ore. Democrats have game-planned situations in which Trump deploys immigration officers into Hispanic neighborhoods to intimidate citizens shortly before the election and suppress turnout.
"It is very, very much a concern," said California Secretary of State Alex Padilla.
Trump's advisers dismiss such talk as overheated partisan messaging. Justin Clark, Trump's deputy campaign manager, said states like California and Nevada, trying to expand mail-in voting on the fly, are the ones setting the stage for a chaotic election.
"Rushing to implement universal vote-by-mail leads to delays in counts, delays in results and uncertainty about who won an election," he said.
Trump has also tried to halt another pillar of absentee voting — the drop box. In 2018 in Colorado, one of five states that already votes nearly entirely by mail, 75% of ballots were returned through a drop box or at a polling place. In Pennsylvania, the Trump campaign sued against expanding the use of drop boxes, an action that has concerned election officials nationwide.
Some Democrats said they were less worried about direct intervention by Trump or Barr, but said they could use their positions to prod sympathetic state and local officials to block votes while fostering a narrative undercutting the credibility of a vote count going against Trump.
"The president has very little, if any, power with how elections are conducted," said Elias. "Trump's power is that he has no shame and that shamelessness has infected his entire political party."
He added, "You cannot imagine the party of George Bush or of John McCain or Mitt Romney or even Reince Priebus saying out loud the things Donald Trump screams out loud on Twitter, in the Oval Office and the Rose Garden."