8 November Is Election Day, But Legal Challenges Have Begun

More than 100 midterm election lawsuits have been filed this year. Republican lawsuits target mail-in voting, early voting, voter access, voting machines, voter registration, mismarked absentee ballots, and political poll observers.

It’s the most litigation ever before an election and may foreshadow a turbulent post-election scene. The idea was inspired by the failure of Trump backers to contest and overturn the 2020 election results.

8 November Is Election Day, But Legal Challenges Have Begun
8 November Is Election Day, But Legal Challenges Have Begun

The 2020 election effort was an ad hoc response fronted by increasingly ill-prepared lawyers, including Rudy Giuliani. Today’s effort is a formalized, well-funded and well-organized campaign run by the RNC and other legal allies with good bona fides. Officials are bracing for recounts, contested elections, and more litigation. Thousands of volunteers are ready to dispute ballots and investigate fraud.

Fraud and suppression are now incorporated into each party’s turnout models. GOP charges fraud. Democrats claim repression. Benjamin Ginsberg, co-chair of the Election Official Legal Defense Network and former counsel to George W. Bush and other Republicans, said each side reinforces its position with costly litigation and messaging.

Democratic initiatives are comparable. Legal hotlines and volunteers assist make voting easier and support people denied an opportunity to vote. Marc Elias and his group are litigating 40 cases in 19 states, including some Republican-led cases.

Elias said he expects a tsunami of litigation disputing election results, especially since some Republican candidates have declared they won’t accept a loss or cast doubt on the process despite no evidence of fraud.

“Conceding an election is the one thing that will hurt the GOP right now,” Elias added. Contesting a plainly lost election is now the incentive structure, which is toxic to democracy.

Nearly every election is litigated. Most lawsuit occurs after Election Day, not before.

Pro-Trump lawyers filed 60 lawsuits in 2020 to stop ballots. Cases were dismissed. Trump’s team found the election fair, while state election officials discovered no major fraud. Biden won 306 electoral votes to Trump’s 232, the same margin as Trump’s 2016 “landslide” victory over Hillary Clinton.

The GOP elite has not yet adopted Trump’s election lies. Since then, the falsehoods have been a talking issue for numerous candidates. Some won’t accept Nov. 8 results.

Unsubstantiated claims of election fraud, rigging, or unreliability have become the ante for a Republican contender to win a contested 2022 primary, Ginsberg said.

That will hurt public faith in elections, and Republicans will pay for it.

This year, the focus is on offensive. The RNC has hired 37 lawyers in important states, had 5,000 trainings to encourage volunteers to hunt for voter fraud, and filed 73 lawsuits in 20 states. Stephen Miller’s America First Legal is likewise preparing for litigation.

“We constructed an extraordinary election integrity ground game to ensure that November’s midterm elections are free, fair, and transparent,” RNC Chair Ronna McDaniel declared late last month.

The RNC was forbidden from disputing voter credentials and targeting fraud for three decades. The consent decree, which ended in 2019, arose from a Democratic National Committee lawsuit 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, Trump loyalists sued Republican poll watchers, who have no active participation in the polls and can only report issues. When judges demanded evidence of election worker misconduct, litigation stalled.

Abuse and violence have increased against election workers. Voter intimidation is rising in battleground states. Election authorities and law police are concerned about poll observers scaring voters.

Last Monday, the RNC won a legal fight against Michigan’s secretary of state, Democrat Jocelyn Benson, who issued regulations for poll challengers.

McDaniel stated Benson violated the rights of political parties and poll challengers to preserve openness and confidence in Michigan elections.

In Nevada, Arizona, and Wisconsin, the RNC won legal challenges over poll worker appointments, ballot curing, and drop boxes. Other legal issues include absentee ballot dating and whether outside parties should inspect voting technology in Pennsylvania.

Democrats keep suing. Democrats have filed 35 lawsuits to make voting easier. Voto Latino and the Arizona Alliance for Retired Americans sued this week to ban drop box intimidation in Arizona. Allegheny County officials received an ACLU letter about mail-in ballots.

Heading into 2020, the nation was fixated on whether Russia or China would intervene in the election and create havoc on vote tabulations. Instead, Trump and his supporters fostered the conspiracy.

U.S. authorities warn Russia is seeking to undermine election integrity.

White House press secretary Karine Jean-Pierre claimed this week, “No outside cyber activity has ever prevented a registered voter from voting, compromised a ballot’s integrity, or changed voter registration information.”

She assured the government will “watch any risks to our elections if they materialize” and provide necessary information to poll officials and workers on the ground.


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