Republicans, Democrats prepare for long legal battles over 2024 Election results

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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 ruling, 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 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 about 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 party.

But in 2020, while he started 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 launched what it described as an “unprecedented” election integrity program this Spring. The program plans to involve 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. Under updates to the Electoral Count Reform Act passed by Congress in 2022, there’s a new, faster review process for certification disputes. 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.”

Last week, a judge in Georgia declared that seven new election rules recently passed by the State Election Board are “illegal, unconstitutional and void.” One required the number of ballots to be hand-counted after the polls closed. Another required county officials to conduct a “reasonable inquiry” before certifying results, but it did not specify what that meant.

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.”

Weiser told reporters Wednesday that 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. Even if 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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Republished with permission of The Associated Press.