Mother Jones; Alex Brandon/AP; Joe Raedle/Getty
Elections are supposed to be decided at the ballot box. But this year, Donald Trump’s campaign appears to be trying to win on a different field of battle. With dozens of lawsuits already filed across the country, the Republicans are using state and federal courts as a key pillar of their strategy to retake the White House.
The lawsuits have been flooding in for months from the Republican National Committee—now part of the family firm under the co-chairmanship of Trump’s daughter-in-law—and allied groups. The list includes lawsuits to purge voting rolls, disqualify significant numbers of absentee and mail ballots, and to make it easier for local officials to refuse to certify elections.
On the other side, a coalition of nonpartisan national voting rights groups—including the Campaign Legal Center, Common Cause, the NAACP Legal Defense Fund, the American Civil Liberties Union, the Brennan Center for Civil Rights, the Lawyers’ Committee for Civil Rights, the Fair Elections Center, and the Southern Poverty Law Center—have been coordinating and preparing for two years to protect people’s right to vote and to have their vote counted.
For decades, the amount of litigation around elections has been increasing. After the Supreme Court gutted the Voting Rights Act in 2013, it ushered in a new wave of suits centered around access to the ballot—including voter roll purges and changes to election procedures. But in 2020, Trump’s legal challenges changed from efforts to tinker at the margins to efforts to overturn the election. The GOP never repudiated Trump for that effort—and the tactic has since officially become part of his 2024 campaign playbook.
“In 2020, the attempt to undermine election results by the Trump campaign [was] more of an afterthought,” says Sylvia Albert, who runs voting and election projects at Common Cause, a pro-democracy nonprofit. “Now it looks like a cohesive party strategy nationwide, and it’s not an afterthought. The lesson we’ve taken is to prepare for it.”
One prong of that strategy has been to ramp up pressure on states and counties to purge their voter rolls, seeking to limit who can vote by removing people more likely to support Democrats. In 2018, the Supreme Court made such purges easier. According to a tally from Bloomberg, GOP attempts to strike voters make up nearly a third of 165 lawsuits already filed to influence the 2024 election.
This week in Alabama, a federal judge halted a purge that targeted naturalized citizens in a case brought by the Campaign Legal Center, the Southern Poverty Law Center, and the Fair Elections Center, and joined by the Department of Justice. Last week, Common Cause Georgia and local residents, represented by the ACLU and SPLC, successfully stopped a challenge to 232 registered voters in Oconee County, Georgia. Earlier this month, the Campaign Legal Center sent guidance to election officials in 11 states on how to properly handle mass voter challenges within the bounds of the law. As Mother Jones’ Abby Vesoulis has documented, these Republican-backed purge cases are meritless—and most have been filed too late to affect the election. But they have another goal: sowing distrust in the results by spreading the lie that noncitizens are on the voter rolls and fraudulently casting ballots.
Despite new GOP-backed programs to encourage Trump voters to vote by mail, Republican lawyers are behaving as if they expect postal voters to tilt Democratic, as they have in recent elections, and have launched lawsuits around the country that could result in tens of thousands of their votes being tossed. In Pennsylvania, courts are deciding whether to cancel mail ballots from eligible voters with small errors, like missing a hand-written date. Other lawsuits in the state will decide whether counties must alert people if their mail-in votes have been disqualified, and whether those voters can cast provisional ballots.
Some of this litigation, Albert says, is aimed at finding a judge “who will go out on a limb and go really outside the legal world to create a result that they want.” Case in point, an RNC lawsuit challenging Mississippi’s practice of accepting ballots that arrive after polls close if they were postmarked by Election Day, as nearly half of states do. Mississippi is not a state Trump has any risk of losing, but it is under the jurisdiction of the Fifth Circuit, which, as the most conservative appeals court in the country, offers him the best chance of a win teeing up the issue for the Supreme Court. And indeed, a panel of Trump-appointed activist judges on the appellate court is currently weighing that question. It’s worth a try.
While Trump’s 2020 challenges are a blueprint for the GOP this year, voting-rights lawyers expect key differences. Four years ago, Trump’s attempt to discredit the results included an allegedly criminal scheme to send fake slates of electors for Congress to certify, with the help of then-Vice President Mike Pence, culminating in the attack on the Capitol on January 6. That exact scenario is unlikely a second time, not only because Kamala Harris is the vice president, but because the Electoral Count Reform Act (ECRA), passed in 2022, eliminated the perceived loopholes and confirmed the usual practice of counting electoral votes in Congress as a ceremonial activity.
But that doesn’t mean certification fights are dead. On the contrary, certification fights will come earlier in the process, at the county and state level. “We’re going to see a lot more certification fights,” predicts Albert, not just due to officials refusing to certify but also from candidates objecting to certification, even when they have clearly lost. “The reality of certification is going to be slow and litigious.”
As at the national level, county-level certification was regarded as a ceremonial act until 2020, a typical part of the clerical process of officially counting the ballots in each state. But now that election procedure has been weaponized, Trump allies are ready to delay or block certification to sow distrust and try to disenfranchise voters and change results. Refusing to certify whole counties, particularly in urban, Democratic areas, represents one way pro-Trump forces could try to throw the election. Georgia’s State Election Board, dominated by Trump allies, has encouraged county officials to question results. This week, a state judge ruled that certification at the county and state level is mandatory under Georgia law. However, throughout the country, it’s likely that court action will still be needed to force local officials to comply with laws and precedent requiring them to certify results.
Lawsuits over local certification fights could run up against the ECRA’s December 11 national deadline for states to certify their results. What will happen if a state is forced to certify before a county has complied? Or while litigation over batches of ballots is ongoing? Under the ECRA, lawsuits to settle such questions would be filed in federal court before an emergency three-judge panel. “We’ve spent a lot of time studying the language of the ECRA and the circumstances under which litigation could arise, and we are ready to represent the voice of voters in those proceedings,” says Campaign Legal Center attorney Jonathan Diaz.
But Albert notes that there are still a lot of unknowns about the ECRA, simply because this is the first election to take place under the new law. What role the special courts will play if a state misses the certification deadline is “just a black hole,” she warns. Without any precedent, “it’s completely unknown.”
Ultimately, election law experts are generally confident that all states and counties will certify their results. State officials, as well as courts, have the power to require local officials to complete certification. Democracy groups and the Harris campaign are ready to jump into the fray with their own lawsuits. The Campaign Legal Center has already sent letters to election officials in seven states outlining their legal obligations to certify, and the consequences of refusing to do so.
Trump and the election denial movement he has marshaled are “sowing the seeds for a few different strategies,” says Jessica Marsden, a voting rights expert with Protect Democracy. One that “keeps me up at night,” she explains, is Trump allies “gumming up the works of the certification process by disrupting vote counting and getting local officials to obstruct the process of finalizing election results,” leaving “election results in the legal limbo for several weeks.”
If they can do so “up until the state deadlines for certifying electors,” Marsden explains, they hope it “that will somehow create opportunities for them to influence the process in Congress or otherwise.”
Most of the dozens of lawsuits already launched by GOP lawyers “are failing,” says Diaz, “because they’re premised on conspiracy theories or total misrepresentations of the facts or misunderstandings of the law.”
“But I think that is partially the point,” explains Diaz, who leads the Campaign Legal Center’s coordination efforts with other voting groups. “They file these lawsuits now, they get a lot of attention about whatever misinformation they’re spreading about the election system, and when their cases get dismissed, they point at the courts, they point at the state election officials and say, ‘Look, we told them about these problems. They didn’t fix it. The election is rigged. You can’t trust it.’”
This strategy builds on Trump’s last-ditch effort in 2020 to throw out thousands of ballots and change the election results through 62 lawsuits and a barrage of misinformation. Four years ago, for example, his campaign asked Wisconsin courts to throw out more than 200,000 votes from the Milwaukee and Madison areas, which would have given the state’s electoral votes to Trump.
This year, Albert says, the Trump camp is setting the stage for his supporters to reject a loss and for similar challenges by spreading the false claim that thousands of noncitizens are planning to vote. This isn’t a new scheme. Trump claimed to have won the popular vote in 2016—even though he fell short by nearly three million votes—by baselessly asserting the tally included millions of votes cast by ineligible immigrant voters. But what is new is spreading this lie in court before the election. “All of the allegations against immigrants—demonizing immigrants, alleging that immigrants who are not allowed to vote are voting, basically trying to make it so that all immigrants are scared of voting,” explains Albert, “That’s preparation for refusing to accept the results if their candidate loses.”
Outside of elections, the GOP increasingly turns to the courts—and notably the Supreme Court—to enact an agenda it cannot get through Congress. From letting unlimited money flood into elections to weakening unions, from fortifying corporations against consumer lawsuits to ending the right to abortion, from overturning environmental regulations to thwarting gun regulations, there is a long list of unpopular policy demands that conservatives have enacted through the judiciary. It’s an avenue for minority rule when the democratically-elected branches are constantly being disempowered by the courts. Today, pushing elections—the ultimate expression of democracy—into the courts is another manifestation of the strategy.
Whether one candidate clearly wins, or a long and messy process unfolds to declare a victor, this November presents a new reality—one where advocates must organize to protect an American presidential election. “Everyone should be worried about a coordinated effort to try and undermine American democracy,” says Diaz. “The fact that these are things that we need to prepare for and respond to is not a great sign for the health of the republic.”
But, he added, “we are prepared, and we are ready to respond.”
