Nearly four years after waging an aggressive legal effort to overturn the 2020 elections, Republicans have filed a slew of lawsuits that appear to be aimed at seeding doubt about the outcome of the 2024 race in the event of a Donald Trump loss.
From 2023 until September of this year, the Republican National Committee (RNC) and local affiliates have filed or are involved in at least 72 cases, according to an analysis by Democracy Docket, a left-leaning voting rights news platform founded by the Democratic lawyer Marc Elias. At the same point during the 2022 midterm election, Republicans had filed 41 lawsuits.
There’s nothing unusual about an explosion of litigation over election rules ahead of a presidential election. But experts say what stands out this year isn’t the volume of the cases but their subject matter.
Many of the lawsuits are based on a theory that states are not adequately maintaining their voter rolls and that there could be scores of ineligible voters, including non-citizens, on them. They make weak legal claims, election experts say, and instead appear to be more of a public relations effort to motivate Republican voters and echo Trump’s falsehoods about voting.
“The underlying claims in the suits are based on totally unreliable data, shoddy methodology, and basically the claims are garbage,” said Ben Berwick, a lawyer at the non-profit group Protect Democracy. “They are also, in this case, brought by election deniers, in an attempt to spread a false narrative to mislead the public and undermine confidence in elections.”
“If the fraud theme of 2020 was ‘Covid is allowing ineligible people to vote or ballots to be manipulated’, the 2024 theme seems to be ‘illegals are voting’, and that fits in very much with the kind of nativist anti-immigrant language coming from the top of the Republican ticket,” said Richard Hasen, an election law scholar at the University of California Los Angeles.
In Nevada, a swing state, Republicans claimed in a suit filed in September there were nearly 4,000 non-citizens on the rolls who appear to have voted.
It was a claim that the Nevada secretary of state, at the time a Republican, already investigated and debunked (she said that those people were probably naturalized citizens). Republicans claim the state should have investigated more and also cited data from the cooperative congressional elections survey to suggest that there may be even more non-citizens on the rolls, but the authors of the study have long warned against using its data to try to claim there are non-citizens on the rolls.
In North Carolina, another battleground this year, the RNC also filed two misleading lawsuits designed to give the impression that the state was not properly vetting its voters. In late August, the RNC accused election officials of not following a new law that requires them to use juror information to verify citizenship information. The state board of elections said the claim was flatly untrue.
The RNC separately sued to potentially invalidate the registrations of 225,000 people for lacking information that’s required under federal law. A 2002 statute, the Help America Vote Act, requires voters to provide either their driver’s license number or the last four digits of their social security number when they register.
In North Carolina 225,000 people don’t have that information recorded in the state’s voter registration database, but experts have noted that doesn’t necessarily mean that they lack that information. Voters may have registered before the law went into effect, or the absence may reflect clerical errors. Experts say such minor errors shouldn’t lead to wide swaths of voters getting disenfranchised.
“If they’re talking about 225,000 people disenfranchised for a clerical error that was not their fault, I think that would be a wild overreaction,” Sam Oliker-Friedland, the executive director of the Institute for Responsive Government, a watchdog group, told the Raleigh News and Observer. “It would just simply mean that people can’t vote because of paperwork, and that’s not a fair outcome.”
Asked for comment for this story, the Republican National Committee provided a statement from Karoline Leavitt, the Trump campaign’s national press secretary, that contained a number of falsehoods about voting.
“Kamala’s open border is flooding illegal migrants into our country at the most dangerous rate we’ve ever seen. As this invasion escalates, Democrats are pushing for non-citizens to vote and influence the future of our country,” the statement said. While a handful of localities allow non-citizens to vote in local elections, it is already illegal for non-citizens to vote in federal elections.
“While radical Democrats have allowed non-citizen voting in California and DC, states such as Walz’s Minnesota have no system to keep non-citizens off the rolls, resulting in an open door to illegal voting,” she added. Incidents of non-citizen voting are extremely rare. “This is no coincidence, and Democrats aren’t even trying to hide their election interference schemes. President Trump will secure the border and secure our elections so that every American vote is protected.”
The Harris-Walz campaign described the 2024 election as “the most litigious presidential election in American history, even more than 2020”, and said it had hundreds of lawyers in courts across the country “winning case after case”. It noted that Republicans had lost several of the cases they have filed in at least the trial court, including challenges to mail-in ballot rules in Nevada (the RNC is appealing some of the rulings).
“For four years, Donald Trump and his Maga allies have been scheming to sow distrust in our elections and undermine our democracy so they can cry foul when they lose. But also for four years, Democrats have been preparing for this moment, and we are ready for anything,” Jen O’Malley Dillon, the Harris-Walz campaign chair, said in a statement.
For Trump, lawsuits have crafted a misleading imprimatur of legitimacy around his false claims about elections. In 2020, nearly every lawsuit that he and allies filed after the election was thrown out. Nonetheless, the claims and affidavits from poll-watchers that were included – all filed with legal formatting, signatures from lawyers, and court stamps – helped shape the impression that there was legitimate evidence something had gone amiss.
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Lawsuits also can be a particularly powerful forum for spreading misleading information. Public officials sometimes won’t speak publicly about pending legal matters, leaving facts in an initial complaint or petition to go unchallenged in public discourse. It can be weeks before a response is filed or a hearing is held, long after a flood of initial headlines repeating the allegations in the suit. By the time a case gets thrown out, it may not get as much attention as the initial filing.
Even though none of Trump’s cases attempting to throw out the 2020 election succeeded, the false claims in them – that suitcases of ballots were pulled out from under tables in Atlanta, that machines were flipping votes – live on today.
“A lawsuit without provable facts showing a statutory or constitutional violation is just a tweet with a filing fee,” Justin Levitt, a professor at Loyola Law School in Los Angeles, has said.
“A lot of it is sort of projecting to your audience that you’re actively pursuing problems and trying to resolve them and also just kind of creating energy on your base to get involved or stay vigilant,” said Rebecca Green, co-director of the election law program at William & Mary Law School.
Hasen said some of the lawsuits may be “placeholders” that Republicans and Trump allies could point to after the election to argue they hadn’t waited too long to bring legal claims. Berwick called these suits “zombie cases”.
“They’re dead on arrival, but will be resurrected after the election,” he said. “I am virtually certain that election deniers will focus on these narratives in the post-election period, both to discredit results they don’t like and as the basis for post-election legal challenges to try and throw out certain ballots, or even interfere with certification of results.”
Aside from the public relations lawsuits, the RNC has waged an aggressive effort over rules for counting mail-in ballots, including a closely watched suit at the US Court of Appeals 5th circuit that could prohibit states from accepting mail-in ballots that arrive after election day. Eighteen states, including battleground Nevada, allow ballots to count if they are postmarked before election day but arrive afterwards and this rule could impact an election where the result could come down to just a few thousands votes in any given swing state.
Republicans have also backed mail-in ballots in Pennsylvania that are missing a date or wrongly dated, even if the ballot is returned on time and the voter is eligible. They have also sought to limit counties from offering practices for voters to cure errors with their absentee ballots so they can be counted.
Experts have also raised questions about the timing of some lawsuits. Federal law prohibits states from systematically removing voters from the rolls within 90 days of a federal election. Yet some of the RNC’s lawsuits challenging how states maintain their voter rolls were filed within that 90-day period.
Republicans recently have also challenged the legality of ballots from overseas and military voters, filing lawsuits in North Carolina, Michigan and Pennsylvania (the RNC is the plaintiff in North Carolina and Michigan, and Republican members of Congress are the plaintiffs in Pennsylvania). The federal law that governs the practice of dealing with absentee ballots has been in place for decades, and states have long had their own policies in place.
“The timing of these claims is laughable – the processes they challenge have been public for years, and they could have filed these lawsuits months ago, at least,” Oliker-Friedland said in an email. “Instead, they’re choosing to waste election administrators’ time with litigation that, even if successful, won’t practically change anything.”
Source: Elections - theguardian.com
