Illustration: Eniola Odetunde/Axios

The coronavirus has sent overall U.S. unemployment into the double digits — but it's a sort of full-employment act for election law attorneys.

The big picture: The prospect of extended court fights over COVID-19-related voting changes, an absentee ballot avalanche, foreign interference and contested presidential results has prompted a hire-all-the-lawyers binge by candidates and campaigns — not just in swing states but around the country.

  • No one wants to be stuck in a recount without local counsel ready to work after hours and file suits quickly. That makes preemptive lawyering-up at the states and county level as important as securing big national names.

What they're saying: "I would beg candidates and campaigns to get counsel on retainer well before the election," said Jessica Furst Johnson, a Republican election lawyer.

  • "Not for any nefarious reasons, but simply to understand who to call if results or ballots are in dispute," said Johnson, who created an initiative called the Volunteer Attorney Network to train attorneys for Election Day.
  • Justin Riemer, the Republican National Committee's chief counsel, says the legal work is "going to be on steroids this year," and that "capable local counsel is critical" for technical and tactical reasons.

Details: The Biden campaign is planning an election program that includes volunteer lawyers who will focus on poll monitoring and watching for potential voter suppression, as well as substantial funding for election law specialists.

  • "The program underway this year is the most elaborate, highly resourced program of its kind," said Bob Bauer, a former White House counsel under President Obama who's working with the Biden campaign.
  • The RNC is coordinating the legal fight for the Republicans, along with the Trump campaign and volunteers across the country. They're already involved in legal challenges in 17 states.
  • Matthew Morgan, Trump 2020 general counsel, declared that "the Trump campaign is fighting to ensure every valid ballot across America counts."

Why it matters: Election-related lawsuits have been on the rise for the past two decades, but the coronavirus has supercharged them.

  • Marc Elias, who was general counsel for Hillary Clinton's 2016 campaign, is involved in more than 30 ongoing election-related lawsuits in 17 states, according to his site Democracy Docket.
  • Georgia Democrats this week sued the Republican secretary of state over the the long wait times — in some cases more than eight hours — that some voters faced in the June 9 primary.

Between the lines: Courts are forcing some states to write new rules or laws to preserve the constitutional right to vote during a global pandemic, without opening the door to massive fraud.

  • North Carolina could see a tenfold increase in mail-in ballots. And a federal judge in the state ruled this week that primary voters who had their ballot thrown out must be given a second chance to prove that their ballot was indeed valid.
  • That decision could result in as many as 100,000 additional votes being ruled valid in November — "votes that otherwise would have been discounted," said Allison Riggs, an attorney who represented voters whose ballots were rejected. She expects Republicans to appeal.

What to watch: Issues with people not receiving absentee ballots in time due to postal service delays, concerns over rejected absentee ballots, and disruptions at polling places because of poll worker shortages could fuel litigation around and after Election Day, Dale Ho, director of the ACLU's voting rights project, told Axios.

  • "You could see suddenly Republicans arguing that these ballots shouldn't have been tossed, and you could see Democrats taking the opposite position."
  • A third of the states have changed mail-in voting laws because of the virus, a trend driving much of the current and anticipated litigation.

The bottom line: Legal disputes over results are less likely to succeed in any states with landslides — but any close election contests will almost certainly be litigated.

Go deeper

Democrats' mail voting pivot

Illustration: Sarah Grillo/Axios

Democrats spent the early months of the coronavirus pandemic urging their base to vote absentee. But as threats of U.S. Postal Service delays, Team Trump litigation and higher ballot rejection rates become clearer, many are pivoting to promote more in-person voting as well.

Why it matters: Democrats are exponentially more likely to vote by mail than Republicans this year — and if enough mail-in ballots are lost, rejected on a technicality or undercounted, it could change the outcome of the presidential election or other key races.

Updated Sep 25, 2020 - Politics & Policy

Pennsylvania's "naked ballots" are 2020's hanging chads

A stack of mail-in ballot applications in Pennsylvania. Photo: Ben Hasty/MediaNews Group/Reading Eagle via Getty Images

Pennsylvania's Supreme Court ordered state officials last week to throw out mail-in ballots submitted without a required inner "secrecy" envelope in November's election, the Philadelphia Inquirer reports.

The state of play: The decision went under the radar alongside the simultaneous decision to extend the time that mail-in ballots could be counted, but Philadelphia's top elections official warned state legislators this week that throwing out so-called "naked ballots" could bring "electoral chaos" to the state and cause "tens of thousands of votes" to be thrown out — potentially tipping the presidential election.

Christopher Wray: FBI has not seen evidence of national voter fraud effort by mail

FBI Director Christopher Wray responded to a question on the security of mail-in voting to the Senate Homeland Security Committee on Thursday by saying that the agency has "not seen, historically, any kind of coordinated national voter fraud effort in a major election, whether it's by mail or otherwise."

Why it matters: President Trump has ramped up his claims, without evidence, that widespread mail-in voting would rig the 2020 election against him. On Wednesday, after declining to say whether he would commit to a peaceful transition of power if he loses the election to Joe Biden, Trump said that "the ballots are out of control."