ORANGE COUNTY, Calif. — When legal concerns come up about how votes are being counted or processed, election attorneys like Garrett Fahy jump in on behalf of a political party, candidate, or voters.

“If there are disputed ballots, if there are disputes over procedure, one of the things that you’ll see is lawsuits get filed and people try to change election laws,” Fahy said.

What You Need To Know

  • Election lawsuits are typically filed in close races with the power to influence control of congress or state legislatures

  • Amid the pandemic, they have increasingly been filed over voting access, procedures, and deadlines

  • Lawyers used to huddle near registrar staff to watch ballots being counted, but social distancing has mandated changes

  • The OC election headquarters installed TVs for digital ballot observation

Fahy is an Orange County-based business litigation attorney with Gordon Rees Scully Mansukhani LLP. He also hosts a weekend talk radio show called The Weekend Answer on AM 870 and has been involved in legal challenges in five major elections since 2010. 

Fahy said election lawsuits are most often filed over close races that have the power to influence control of congress or a state legislature, or the outcome of a ballot proposition. But in the pandemic, they have increasingly been filed over voting access, procedures and deadlines.

“You want to make sure the law is being followed. So that takes higher precedence than your candidate winning or losing. You want to see about the procedures that have been put into place are vetted and carried out properly,” Fahy said.

That means a charged environment on election night at registrar’s offices across the state.

Fahy said in elections before the pandemic, attorneys used to huddle in close groups near registrar staff to watch ballots being counted, monitor voter signatures, and addresses as they are checked and potentially raise challenges. But with social distancing guidelines, changes needed to be made.

At the Orange County’s election headquarters, the registrar of voters, Neal Kelley, installed TVs for digital ballot observation.

“These are the ballots that come in, we have captured the signature and now they’re reviewing against the original record to see if they match,” Kelley said, pointing out the real-time checks on a TV screen.

Kelley considers himself a bit of a referee or judge among the competing parties and election attorneys that descend on his office to observe counts in contentious races.

“It’s a very tense environment. It’s ripe with conflict,” Kelley said. “And there are two things I’ve always said that you don’t want to rush. The first is surgery and the second is ballot counting. It’s precise and you want to be accurate.”

But the ultimate goal is transparency and checks and balances to ensure voters’ voices are heard and election integrity is upheld.  

One of those checks on the federal level is the U.S. Attorney’s Office, which investigates election crimes. Mack Jenkins leads the public corruption and civil rights section for the Central District of California.  

“This year there’s a lot of concern, heightened concern, there is a significant public narrative about election integrity,” Jenkins said.

That heightened concern, fueled by claims of mail-in ballot fraud, prompted his office to triple the staff that oversees the handling of complaints related to claims of election fraud, intimidation and voting rights concerns.

“We’ve certainly beefed up the resources to maintain that fundamental American right that people can go to the polls and vote safely, freely, fairly. And that the ballot process in turn is free of fraud,” Jenkins said. 

The U.S. Attorney’s Office said it’s continuing to digest intelligence and coordinate with the FBI to prepare for any issues that come up, but it is cautiously confident that voting in Southern California will be smooth and lawful.  

Since 2010, Jenkins’ district office has prosecuted zero cases of election fraud.

“This is the democratic process in action. It’s what it means to have a functioning republic,” Fahy said.

And by understanding the process behind the scenes: the work of election attorneys, registrars, and law enforcement, Fahy hopes it inspires confidence in voters that people are fighting for a transparent process. One that leads to confidence in the election outcomes of 2020.

CORRECTION: A previous version of this story incorrectly stated the name of the weekend talk radio show hosted by Garrett Fahy. It is called The Weekend Answer. The error has been corrected. (November 4, 2020).