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Elections attorneys prepare for an unusual presidential election

Retired elections attorney John Pirich says he can't predict if there will be litigation after Election Night. "It’s going to be decided by what happens and what the numbers look like," he said.";

This Election Day is likely to be a bit different from those of years past: State election officials have been warning voters that it’s possible we won’t know the outcome of the presidential election and all the down-ballot races by election night. That’s because there’s been an increase in absentee voting, which is allowed for all Michigan voters and offers a safe alternative to voting in person during the COVID-19 pandemic.

There have been reports that Republican and Democratic attorneys are preparing for legal battles over election results in individual states. And conservative and progressive organizations alike are sharing concerns with the public about election integrity and voting rights.

To get a better idea of what legal questions surrounding this year's election could look like, Stateside spoke with John Pirich, a retired elections attorney, and Mike Brewer, an elections attorney and the former state Democratic Party chair for Michigan. Here’s what they say voters should know about this election season:

Is this year’s election going to be different?

Pirich and Brewer say that while 2020’s been full of changes, the nuts and bolts of the state's election process aren’t particularly different. The biggest change is that this is the first presidential election in which all Michiganders can make use of no-reason absentee voting, which voters passed in 2018.

“I think the safeguards that we have in place, the process and procedures that we have in place, are the same or better than they’ve ever been,” Pirich said.

The increase in absentee ballots does put pressure on the system, Brewer says. Michigan Secretary of State Jocelyn Benson announced on October 20 that 1.5 million state residents have already returned their ballots, with two weeks still to go until Election Day. That’s a lot of ballots for clerks to manually process, which is why many state election officials say it could take a bit more time than usual to determine a final count.

Why might campaigns be preparing to contest election results?

There’s been speculation from both Republicans and Democrats about issues with election integrity or possible challenges of election results. But Brewer says it’s normal for campaigns to prepare for legal battles over results ahead of Election Day.

“I’ve been doing election work in Michigan for several decades now, and both sides are exhaustive in their preparations, trying to make sure they understand the processes,” Brewer said. “On the Democratic side, it's probably bigger than it’s ever been in my experience, but again, we’re going through the same preparations, just to be ready.”

What legal battles have already affected this year’s election?

Pirich and Brewer say they’ve noticed a number of cases attempting to address voting during the pandemic. One example is the Michigan Court of Appeals’ recent decision disallowing late return of absentee ballots, even due to a slow postal service. Michigan voters will need to make sure their ballot is at the clerk's office by 8 p.m. on Election Day--or it won’t be counted.

“I think the nuances of the pandemic are really the most important issues that have come before the courts,” Pirich said. “People want to vote, and they want to vote safely.”

What is “ballot harvesting,” and is it legal in Michigan?

Third-party ballot collection, sometimes called “ballot harvesting,” is a practice in which people visit certain locales to help voters cast their ballots when they might not otherwise be able to do so, Pirich says.

“Maybe the best example is nursing homes,” he said. “A lot of entities actually go to nursing homes and assist with the process of making sure that people who want to get the ballot get it and, number two, that they exercise their right to vote. And then they help them transmit the materials in a safe and proper fashion.”

But it’s not legal in Michigan, as the state’s Court of Appeals recently reinforced. If you can’t drop off your absentee ballot yourself, only your immediate family, a member of your household, or your local clerk’s office can help. 

“We’ve had very strict rules here about who can handle a voted or unvoted absentee ballot, for a long, long time,” Brewer said.

What’s the difference between a poll watcher and an election challenger?

“Challengers are people who actually can challenge an individual’s right to vote,” said Pirich. “Poll watchers are a completely different category. These are individuals who are basically assigned to a public area … who basically do nothing more than watch. They don’t have an active role, they’re not permitted to engage in any of the challenges.”

There are a lot of rules about what they can do--and they most definitely can't intimidate voters.

You can read more about election challengers and poll watchers in Michigan here. The general election is November 3.

This post was written by Stateside production assistant Nell Ovitt.

Stateside is produced daily by a dedicated group of producers and production assistants. Listen daily, on-air, at 3 and 8 p.m., or subscribe to the daily podcast wherever you like to listen.
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