The two campaigns have for weeks plotted contingencies and their legal strategies. Trump said Sunday that if vote-counting wasn’t finished in Pennsylvania on Election Day, his lawyers would take action — even though state law didn’t allow authorities to begin tabulating mail-in ballots earlier.
But if the race ends up hinging on a legal battle, Republicans may have an advantage.
The confirmation of Supreme Court Justice Amy Coney Barrett just over a week before Election Day has solidified conservative control of the Supreme Court, with three of the nine justices nominated by Trump and six of nine chosen by a Republican president. That could give the president the inside track if legal challenges related to any potential recounts wind their way to the high court, as they did in 2000.
Trump may also get a boost from political operatives comfortable with the asymmetric warfare a recount fight could involve - including veterans of the Bush-Gore recount, like American Conservative Union chairman Matt Schlapp or longtime associate Roger Stone. The president, who has long trafficked in grievance and conspiracy, has primed his supporters for the possibility of a prolonged fight. He frequently complained on the campaign trail that the election was fixed against him while refusing to say whether he would concede a race he lost.
And Trump has already proven more willing to politicize the results with a continued campaign, baselessly accusing Biden supporters of attempting to disenfranchise Republicans.
Both men will need to be cognizant of the deep toll a prolonged fight will likely take on a nation already beleaguered by the pandemic, recession and racial strife. Based on the ugly fight that unfolded in 2000, when the U.S. was far less politically polarized than now, a similar battle threatens to fray an already bitterly divided country.
“People don’t remember how nasty it was,” Princeton University historian Sean Wilentz said. “People just think of public-spirited citizens looking at punched ballots and trying to find a hanging chad — that seems to be the big symbol of 2000. But it was nasty, and a lot of turmoil was going on.”
Still, an ultimate Biden victory could offer at least a temporary balm for wary Democrats, and there’s reason to believe he should be favored in Rust Belt states where he led consistently in the polls.
Biden also employs veterans of the 2000 recount, including Ron Klain, his former chief of staff who served as the Gore recount committee general counsel. In that race, Bush had an advantage as the outcome hinged on a recount in Florida, which was led by Republican Jeb Bush, the younger brother of the GOP presidential candidate.
This time around, Democrats control the governor’s mansions in the key states of Pennsylvania, Michigan, Wisconsin and Minnesota, giving the party a leg up as recount rules are implemented and litigated.
The former vice president also likely has a monetary advantage; his campaign had $177 million in cash on hand at the beginning of October, versus just $63.1 million for the president’s campaign.
Facing the prospect of losing the White House for the third time this century despite their candidate winning the popular vote, Democratic donors are likely to flood Biden’s campaign with whatever additional funds it needs to cover litigation costs.
“If the president makes good on his threat to go to court to try to prevent the proper tabulation of votes, we have legal teams standing by ready to deploy to resist that effort,” Biden campaign manager Jen O’Malley Dillon said in a statement Wednesday. “And they will prevail.”
This article was provided by Bloomberg News.