Marc Elias, Democracy Docket
September 21, 2022
Republican and conservative legal organizations have quietly expanded their capacity to use litigation as an offensive weapon in their voter suppression and election subversion arsenal. Buttressed by a constellation of well-funded, right-wing legal organizations, Republicans have dramatically expanded the number of cases they are filing to restrict voting rules and undermine elections.
In the aftermath of the 2020 presidential election, Republicans watched as their legal teams were humiliated in court. Led by the likes of Rudy Giuliani, Sidney Powell and Jenna Ellis, former President Donald Trump and his allies lost more than 60 cases in the post-election period. Not only did they lose, but their legal arguments were often ridiculed and, in some cases, sanctioned as frivolous.
This year, Republicans are changing their playbook, proactively filing more anti-voting lawsuits than recent years.
A recent report by Democracy Docket demonstrates that Republicans and their allies initiated more than half — nearly 54% — of non-redistricting voting cases filed so far in 2022. This is a stark increase from 2021, when the comparable figure was 13%.
Already this year, GOP groups have filed more than three times the number of anti-voting lawsuits they filed in 2020 and nearly five times the number in 2021. Critically, this year’s data is only through Sept. 16, 2022 and, with more than a month before Election Day, there are signs that Republican litigation efforts are still ramping up. If the pace simply stays consistent with 2020, we will see another 14 GOP-sponsored lawsuits in advance of the midterm elections this November.
It is no surprise that more than half of the GOP lawsuits filed in 2022 target some aspect of mail-in voting. Some challenge the use of drop boxes, while others attack signature matching rules, cure procedures and more. What is more concerning is that Republican groups are now taking aim at the intricacies of election administration as well. More than a quarter of Republican-filed lawsuits in 2022 were focused on the logistical aspects of running an election, including conspiracy-led challenges against voting machines and limiting voter registration opportunities.
Not only has the number of lawsuits grown, but so has the Republican Party’s involvement. In 2021, GOP allies filed seven lawsuits. Three were filed by the Public Interest Legal Foundation — a conservative group affiliated with top lawyers for Trump — and pushed voter purges. Two sought to overturn or question election results, one challenging the results of the 2020 presidential election and the other challenging the results of the 2021 U.S. Senate runoffs in Georgia. The two remaining lawsuits were brought by conservatives seeking to ban drop boxes in Wisconsin and overturn Pennsylvania’s no-excuse mail-in voting law. Strikingly, none were filed by the Republican Party itself.
What makes the GOP’s current litigation strategy even more toxic is that it feeds a false right-wing narrative of fake election fraud.
By contrast, in 2022 the national and state GOP has directly brought nine lawsuits seeking to undermine voting rights and fair elections, two of which challenge Arizona’s no-excuse mail-in voting system that has been in place since 1991. Other lawsuits filed by the Republican National Committee (RNC) or GOP state parties similarly attack vote by mail in states like Massachusetts, Delaware, Pennsylvania and North Carolina. Notably, the RNC’s lawsuit in North Carolina attempts to undo a rule regulating the conduct of partisan poll watchers that’s been in place for six years — apparently this rule was fine for the past six years, but now threatens Republicans’ “life, liberty, or property.”
The biggest concern is that, as we near the 2022 midterm elections, national Republican groups have shifted their litigation focus from voter suppression to election subversion. The GOP is no longer satisfied with restricting who can vote; they also want to limit which votes count. This includes litigation empowering partisan poll watchers, and even limiting county officials from allowing voters to fix simple errors on their mail-in ballot envelopes to ensure their ballots are counted.
The increase and brazenness of Republican-initiated litigation is tied to the larger trend of GOP election subversion and the nomination of election denier candidates. Republicans are not asking judges to ensure that lawful votes are counted. Instead, they see the courts as another way to discount the votes of their political opponents and undermine the will of the electorate.
Republican efforts to use the courts to undermine election results failed in 2020. But Trump’s litigation consumed resources and was used to spread disinformation to Republican voters who were trying to make sense of the election results. Unfortunately, the same dynamic is at play once again. Each time Republicans file a new voter suppression or election subversion lawsuit, it sparks a necessary reaction from those who are vigilant in the defense of democracy. While it’s impossible to know how these cases will end, the risk of an adverse outcome requires aggressive action.
What makes the GOP’s current litigation strategy even more toxic is that it feeds a false right-wing narrative of fake election fraud. By styling their cases as being about “election integrity,” Republicans suggest to their faithful that something in the election system is amiss and requires fixing. When they lose those lawsuits, Republicans claim it is further proof that the system is “rigged” or susceptible to fraud. This, in turn, fuels their losing candidates’ refusal to accept election results as fair and accurate, fanning the flames of “Big Lie.”
For the right-wing, enacting dozens of voter suppression and election subversion bills isn’t enough. Republicans have now turned to the courts as the next point of attack in their ongoing war on democracy. When states refuse their anti-voting agenda, the GOP takes its wish list of limiting mail-in voting, politicizing election administration and subverting elections to state and federal courts across the country. Already, they’re executing this plan at higher rates than we’ve seen previously, raising the stakes as we near Election Day. With only a month and a half to go, Republicans are placing democracy right on the docket and, once again, we must be ready to defend it.