Election Experts Expect Corona Outbreak to Drive Lawsuits in Dem Primaries

'If there are some really close races, then that might keep lawyers and judges busy for some time.'

Chicago voters cast their ballots during the Illinois Democratic primary in Chicago, Illinois, on March 17, 2020. (Photo by KAMIL KRZACZYNSKI / AFP) (Photo by KAMIL KRZACZYNSKI/AFP via Getty Images)
March 17, 2020

Election lawyers say that the outbreak of the coronavirus combined with the postponement of multiple state primaries may increase the chances of legal challenges to Tuesday's results, particularly among down ballot races.

As voters in Arizona, Florida, and Illinois cast ballots Tuesday amid the coronavirus pandemic, reports emerged of disarray at polling places, including absentee election judges and insufficient voting materials that forced some polling locations to redirect voters. Those issues could give losing candidates an opportunity to challenge the results, state election experts told the Washington Free Beacon.

"The Illinois primaries are, as you can imagine, a mess," Illinois election attorney Richard Means said. "If there are some really close races, then that might keep lawyers and judges busy for some time."

The main source of chaos in the Prairie State, Means said, was the decision to relocate polling locations away from nursing homes filled with a population vulnerable to the coronavirus. Although the move is prudent given the risk seniors face from the virus, it also opens the door to legal challenges.

"A lot of hosts of polling places have pulled out for reasonable health concerns," Means said. "That means the voting machines, and all of the ballots, and the voter registration records, all have to be picked up and moved to another location. That physical process, all of that moving … has resulted in a real big mess."

While the likelihood of suits may increase due to the coronavirus, some legal experts say plaintiffs face an uphill battle to prove it affected the outcome of races.

"If it is very close, I would expect to see challenges to some of these results," said John Fogarty, an election attorney based in Illinois. "But the burden of proof on anything that you’d see an election contested on is extraordinarily high. So you’d really need solid evidence, affidavits of people who tried to vote but were turned away and not able to vote otherwise."

Ohio health officials on Monday cited an emergency to order the closing of poll locations, and the states of Georgia, Kentucky, Louisiana, and Maryland also postponed their primaries. Democratic governor of Illinois J.B. Pritzker defended his decision to follow through with the primary on Tuesday, saying he wears criticism of the call as a "badge of honor."

Some candidates and political activists, including aides and allies of Sen. Bernie Sanders (I., Vt.), have already suggested that coronavirus quarantines are a form of voter suppression. Justice Democrats-backed progressive Morgan Harper said Ohio State University’s decision to cancel classes could "disenfranchise" voters in a tweet even before the state canceled its primary.

"First, I want to thank everyone for all they’re doing to keep Ohioans safe," Harper said. "Decisions have already been made that could potentially disenfranchise certain populations of voters, including Ohio State students, who have now been told that in-person classes are canceled through the end of the month."

Harper went on to cite the coronavirus in a fundraising email Thursday, asking voters for "urgent funds" to support an "Emergency Student Voter Contact Fund."

Pritzker on Tuesday rebuffed calls to postpone the election, saying he does not have the power to do so. Though some polling places were kept open an hour later to make up for the delay in voting materials, Fogarty ruled out the possibility of extending the primary statewide, saying it "invites all kinds of problems."

"For better or worse, we’re going forward," Fogarty said. "I don’t see any possibility of an extension of voting. There’s just no authority for that. That invites all kinds of problems, it’s kind of opening up a Pandora’s box, really."

Joe Biden was declared the winner of the Illinois primary almost immediately after polls closed.