Republican Donald Trump, who still refuses to accept that he lost the 2020 election to Democrat Joe Biden, says he wants a presidential victory Nov. 5 to be so overwhelming that the results are “too big to rig.” “We want a landslide,” he recently told supporters in Georgia. “We can’t let anything happen.”
No matter the margins, Republicans and Democrats are preparing for a potentially lengthy battle over the results once they come in. Dozens of lawsuits that could set the stage for challenges after the votes are counted are already playing out in courts across the country. Most have been filed by Republicans and their allies. Many of the cases involve challenges to mail-in balloting, ballots from overseas voters and claims of voting by people who are not U.S citizens.
Trump, who faces federal criminal charges over his efforts to overturn his 2020 defeat, has repeatedly declined to state unequivocally that he will accept this year’s results. Democrats, meanwhile, warn that election deniers installed in key voting-related positions nationwide may refuse to certify legitimate results and prompt litigation.
“In 2020, the election deniers were improvisational. … Now that same election denialist impulse is far more organized, far more strategic and far better funded,” Michael Waldman, president of the Brennan Center for Justice, told reporters during a telephone briefing. “At the same time, the election system is far better able, we believe, to handle something like this.”
While partisan battles over voting rules have long been part of presidential campaigns, election litigation has soared in recent years. With money pouring in for legal fights and the number of outside groups involved in election litigation proliferating, the disputes are not likely slow down anytime soon.
“It’s not even just the parties — it’s outside organizations, and they’re fundraising on how they’re able to protect democracy, how they’re able to preserve the integrity of the election, whatever it might be,” said Derek Muller, an election law expert and professor at the University of Notre Dame Law School. “They have wealthy donors who are backing this litigation. So there doesn’t seem to be any de-escalation in sight.”
With a little over two weeks before Election Day, about 180 voting and election cases have been filed so far this year, according to Democratic lawyer Marc Elias, who founded the election litigation tracking group Democracy Docket.
It comes four years after Trump and his allies flooded the courts with lawsuits claiming fraud. Those filings were roundly rejected by judges nominated to the bench by presidents of both major political parties.
The rate of election litigation has nearly tripled since 2000, when the Supreme Court in a 5-4 vote effectively settled the election in favor of Republican George W. Bush over Democrat Al Gore, election law expert Rick Hasen, now at the University of California, Los Angeles, School of Law, wrote in 2022.
The high court’s role in that race supercharged interest in election law, fueling a rise in litigation that accelerated in 2020 because of changes to voting rules during the coronavirus pandemic.
Changes to campaign finance rules a decade ago have allowed donors to give parties huge sums of cash specifically for legal fights. Election litigation these days is not always about winning in court, but also sending a political message to galvanize donors.
“It’s become part of the campaign to sort of show your stuff in court,” said Rebecca Green, a professor at William & Mary Law School and an election law expert. “It’s become common that campaigns will litigate as a matter of sort of headline drawing, getting a message out.”
Trump’s lies about losing the 2020 election have been adopted by many in his own party. But in 2020, while he started off with a deep bench of sophisticated lawyers, most left the effort as Trump continued to make unfounded claims of voter fraud, even as his own administration insisted the election had been secure and there was no widespread fraud.
The Republican National Committee this spring launched what it described as an “unprecedented” election integrity program, with plans to have 100,000 volunteers and lawyers in key battleground states as part of a “commitment to ensuring transparency and fairness in the 2024 elections.”
“President Trump’s election integrity effort is dedicated to protecting every legal vote, mitigating threats to the voting process, and securing the election. While Democrats continue their election interference against President Trump and the American people, our operation is confronting their schemes and preparing for November,” said Claire Zunk, RNC elections integrity communications director. She said they were prepared to litigate.
Some of the cases currently in the courts appear unlikely to be resolved before Nov. 5, but the claims could come back after the votes are tallied to challenge the results in court, said Jess Marsden, counsel at the group Protect Democracy and director of its program to ensure free and fair elections.
The most important courtroom fights could be over rules for certifying the vote. There’s a new, faster review process for certification disputes under updates to the Electoral Count Reform Act passed by Congress in 2022. Similar to redistricting cases, certification disputes can go before a three-judge court in the state where they originated and be quickly appealed to the Supreme Court.
“I do suspect that might be utilized by losing candidates as a Hail Mary attempt, or in some cases, worse, a way to try to enlist the court in trying to change the outcome of the election,” said Wendy Weiser, vice president for democracy at the Brennan Center. “That said, it’s also a safeguard in case there’s been some shenanigans relating to certification.”
In Georgia last week, a judge declared that seven new election rules recently passed by the State Election Board are “illegal, unconstitutional and void.” That includes one that required the number of ballots to be hand-counted after the polls close. Another required county officials to conduct a “reasonable inquiry” before certifying results, but it did not specify what that means.
Republicans have appealed the judge’s decision invalidating the rules to the state’s highest court. RNC Chair Michael Whatley called that ruling “the very worst of judicial activism.” “By overturning the Georgia State Election Board’s common-sense rules passed to safeguard Georgia’s elections, the judge sided with the Democrats in their attacks on transparency, accountability and the integrity of our elections,” Whatley said in a statement. “We will not let this stand.”
There’s no legitimate way for a county or state to refuse to certify election results, but that doesn’t mean they won’t try, Weiser told reporters Wednesday. Even if they’re unsuccessful, those efforts can fuel conspiracy theories and “contribute to chaos and delays,” she said.
“If there are multiple efforts to refuse to certify simultaneously and a huge flurry of lawsuits simultaneously when the margin is very close, that will make it more challenging for election officials,” Weiser said.
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