Republican Donald Trump, who continues to refuse to admit that he lost the 2020 election to Democrat Joe Biden, says he wants a presidential victory on November 5 that is “too big to rig.”
“We want a landslide,” he recently told fans in Georgia. “We can’t let anything happen.”
Regardless of the margin, Republicans and Democrats are bracing for a possibly lengthy struggle over the results once they are in. Dozens of lawsuits are already being heard in courts around the country, potentially setting the groundwork for post-election challenges. The majority have been filed by Republicans and their sympathizers. Many of the instances include objections to mail-in balloting, ballots from overseas voters, and claims of voting by non-US citizens.
Trump, who faces federal criminal charges for attempting to overturn his 2020 defeat, has repeatedly refused to say clearly that he will accept this year’s results.
Democrats, meanwhile, warn that election deniers appointed in crucial voting-related posts around the country may refuse to certify genuine results, prompting 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,” said Michael Waldman, president of the Brennan Center for Justice, during a phone briefing. “At the same time, the election system is far better able, we believe, to handle something like this.”
While partisan conflicts over voting laws have long been a feature of presidential campaigns, election litigation has increased dramatically in recent years. With money coming in for legal fights and the number of outside parties interested in election litigation growing, the issues are unlikely to subside anytime soon.
“It’s not 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 may be,” said Derek Muller, an election law expert and professor at the University of Notre Dame Law School. “They have wealthy donors who are supporting this lawsuit. So there doesn’t appear to be any de-escalation in sight.”
With just over two weeks till Election Day, Democratic lawyer Marc Elias, who founded the election litigation tracking site Democracy Docket, reports that over 180 voting and election cases have been filed this year.
It comes four years after Trump and his friends swamped the courts with lawsuits alleging fraud. These filings were roundly denied by justices appointed to the bench by the presidents of both major political parties.
The rate of election litigation has nearly tripled since 2000, when the Supreme Court effectively settled the election in favor of Republican George W. Bush over Democrat Al Gore in a 5-4 vote, according to election law expert Rick Hasen, who now teaches at the University of California, Los Angeles School of Law.
The high court’s involvement in that campaign sparked an interest in election law, resulting in a surge in litigation that increased in 2020 due to changes to voting regulations during the covid epidemic.
Changes to campaign finance rules a decade ago enabled contributors to send parties large sums of money particularly for legal battles. Today, election litigation is about more than just prevailing in court; it is also about delivering a political message to galvanize funders.
“It’s become part of the campaign to sort of show your stuff in court,” said Rebecca Green, an election law expert and William & Mary Law School professor. “It’s become common that campaigns will litigate as a matter of sort of headline drawing, getting a message out.”
Many members of Trump’s own party have bought into his lies about losing the 2020 presidential race.
However, while he began with a strong team of experienced lawyers, most resigned as Trump continued to make baseless charges of voter fraud, despite his own administration’s insistence that the election was secure and there was no widespread fraud.
This spring, the Republican National Committee announced a “unprecedented” election integrity initiative, with plans for 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 initiative is focused on protecting every legal vote, reducing risks to the voting process, and securing the election. While Democrats continue to tamper with President Trump and the American people, our organization is fighting their schemes and preparing for November,” said Claire Zunk, RNC elections integrity communications director. She stated that they were prepared to litigate.
Some of the cases currently in court appear unlikely to be resolved before Nov. 5, but the claims may return after the votes are counted to challenge the results in court, according to Jess Marsden, counsel at the Protect Democracy organization and director of its program to ensure free and fair elections.
The most consequential litigation battles could be over standards for certifying votes. Congress authorized changes to the Electoral Count Reform Act in 2022, which include a new, speedier review process for certification challenges. Certification disputes, like redistricting challenges, can be heard by a three-judge court in the state where they originated and then immediately appealed to the Supreme Court.
“I suspect that might be used by losing candidates as a Hail Mary attempt, or in some cases, worse, a way to enlist the court to try 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.”
Last Monday, a Georgia judge ruled that seven new election rules adopted by the State Election Board are “illegal, unconstitutional, and void.” This includes one that needed the amount of ballots to be manually counted after the polls closed. Another required county authorities to conduct a “reasonable inquiry” before certifying results, but did not clarify what that included.
Republicans have filed an appeal with the state’s highest court, challenging the judge’s decision to invalidate the rules.
RNC Chair Michael Whatley described the decision as “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,” a statement from Whatley read. “We will not let this stand.”
There is no logical reason for a county or state to refuse to certify election results, but that does not mean they would not try, Weiser told reporters on Wednesday. Even if they fail, such efforts might fuel conspiracy theories and “contribute to chaos and delays,” she warned.
“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 pointed out.
