Election Day in the United States is 12 days away.
But in courtrooms across the country, efforts to sow doubt over the outcome have already begun, as more than 100 lawsuits have been filed this year around the November 8 elections.
The legal challenges, largely by Republicans, target rules for mail-in voting, early voting, voter access, voting machines, voting registration, the counting of mismarked absentee ballots and access for partisan poll watchers.
The cases likely preview a potentially contentious post-election period, and the strategy stems partly from the failure of Donald Trump and his allies to prevail in overturning the free and fair results of the 2020 presidential election that he lost to Joe Biden.
That was an ad hoc response fronted by a collection of increasingly ill-prepared lawyers that included Rudy Giuliani. The current effort, however, is more formalised, well-funded and well-organised and is run by the Republican National Committee (RNC) and other legal allies with strong credentials.
Party officials say they are preparing for recounts, contested elections and more litigation. Thousands of volunteers are ready to challenge ballots and search for evidence of malfeasance.
“We’re now at the point where charges of fraud and suppression are baked into the turnout models for each party,” said Benjamin Ginsberg, co-chair of the Election Official Legal Defense Network and former counsel to the campaigns of George W Bush and other Republican candidates.
“Republicans charge fraud. Democrats charge suppression. Each side amplifies its position with massive and costly amounts of litigation and messaging.”
The RNC said it has a multimillion-dollar “election integrity” team. It has hired 37 lawyers in key states, held more than 5,000 training sessions to teach volunteers to look for voter fraud — which is rare and isolated — and filed 73 suits in 20 states.
Other Trump-allied legal teams, including America First Legal, run by former Trump adviser Stephen Miller, are involved.
“We built an unprecedented election integrity ground game to ensure that November’s midterm elections are free, fair and transparent,” the RNC chairwoman, Ronna McDaniel, said last month.
‘Corrosive for democracy’
The Democrats’ legal effort focuses on making voting easier and helping those denied a chance to vote. A team led by lawyer Marc Elias and his firm is litigating roughly 40 cases in 19 states, though many are interventions in Republican-led suits.
Elias said he is bracing for a deluge of challenges to election results. Some Republican candidates have already said they will not accept a loss or have planted doubt on the election process despite no evidence of fraud.
“The problem with the Republican Party right now is that conceding you lost an election is the only thing that will hurt you,” Elias said. “Contesting an election that is clearly lost is now where all the incentive structure is, and that is incredibly corrosive for democracy.”
Almost every election begets legal challenges. But much of that generally comes after Election Day.
In 2020, pro-Trump lawyers filed roughly 60 suits and asked judges to set aside votes. Those suits were roundly rejected. Trump’s own leadership found the election was fair, and state election officials saw no widespread evidence of fraud. Biden earned 306 electoral votes to Trump’s 232, the same margin as Trump’s victory over Hillary Clinton in 2016, which he called a “landslide”.
At that time, the Republican establishment had not adopted Trump’s lies about the election. Since then, the falsehoods have taken root within the GOP.
Ginsberg said unsubstantiated charges that elections were fraudulent or rigged or unreliable have become the mantra for a Republican to win a contested 2022 primary in most states. “That can only harm public faith in elections, something for which Republicans will eventually pay a price,” he said.
Threats of violence
For three decades, the RNC was under a consent decree that prohibited it from challenging voters’ qualifications and targeting alleged fraud.
That legal agreement, which ended in 2019, arose from a Democratic National Committee (DNC) suit that argued Republicans sought to dissuade Black Americans from voting by posting armed, off-duty law enforcement officers at certain polling sites and sending targeted mailings warning about penalties for violating election laws.
In 2020, Republican poll watchers, who have no direct role in the elections and cannot interfere in the electoral process apart from watching and reporting issues, were the basis of many of the suits filed by Trump allies. But when witnesses were pressed by judges for evidence backing partisan claims of suspicious behaviour by election workers, the litigation faltered.
Election workers have increasingly been subjected to abuse and threats of violence. Voter intimidation cases are on the rise, and there is growing concern among election officials and law enforcement about overly aggressive poll watchers or people pretending to be poll watchers intimidating voters.
Last week the RNC won a legal challenge against Michigan Secretary of State Jocelyn Benson, a Democrat, over rules about how poll challengers can operate.
“Jocelyn Benson not only disregarded Michigan election law in issuing this guidance, she also violated the rights of political parties and poll challengers to fully ensure transparency and promote confidence that Michigan elections are run fairly and lawfully,” McDaniel said in a statement.
The RNC has won legal challenges in Nevada and Arizona over the appointment of poll workers and in Wisconsin on “ballot curing” — a process whereby voters can fix problems with their ballots so they can be counted — and drop boxes. Litigation in Pennsylvania involved absentee ballots’ dating and whether outside parties should be allowed to examine voting machines.
For their part, Democrat-led groups have initiated about 35 suits that focus largely on making voting easier.
Just this week, litigation was filed on behalf of Voto Latino and the Arizona Alliance for Retired Americans to stop intimidation over using drop boxes in Arizona. The ACLU of Pennsylvania sent a letter to Allegheny County officials about mail-in ballot concerns.
Heading into 2020, the US focused on the possibility of foreign threats, from Russia or possibly China, to the integrity of the election, such as by manipulating vote tabulations. Election officials and Trump’s own agencies said it was the most secure election ever. It was Trump and his supporters who nurtured conspiracy theories about voter fraud.
US officials are again sounding the alarm that Russia is working to amplify doubts over the integrity of the elections.
This week, White House press secretary Karine Jean-Pierre said, “No outside cyber activity has ever prevented a registered voter from casting a ballot; compromised the integrity of any ballot cast; or affected the accuracy of voter registration information.”
The government, she said, would “monitor any threats to our elections if they arise and work as a cohesive, coherent interagency to get relevant information to the election officials and workers on the ground”.