For months leading up to Election Day, Republicans and Democrats have been facing off in court over dozens of voting-related lawsuits. The ripple effects of those cases could be far-reaching. Donald Trump is already highlighting the lawsuits and rulings as a way to undermine confidence in the result if he loses. The litigation could also ultimately be part of another effort to try to reverse an election loss.
Republicans have had some legal success so far that could affect the outcome. They’ve managed to challenge voter registrations in Virginia and Arizona and restrict which mailed ballots can be counted and when in Pennsylvania and Mississippi. And the full impact of those rulings could play out in additional legal challenges over the coming weeks.
The Trump campaign strategy has been to file lawsuits early in the election cycle, before Election Day, with an eye to shape how votes are received and counted. It’s a shift from 2020, when most of the barrage of Trump’s legal challenges came after voting ended and continued right up to the deadly riot Trump encouraged inside the Capitol on Jan. 6. Mike Davis, who is a volunteer attorney for Trump’s campaign legal team and is believed to be on a short-list to be Trump’s attorney general if he wins, says the Trump campaign learned this year to launch its legal challenges earlier.
“We’re not going to get caught with our pants down again,” Davis says, speaking on the phone from Trump campaign headquarters in West Palm Beach, Fla. the day before Election Day.
Earlier this year, Donald Trump instructed the leaders of the Republican National Committee to build out a robust legal team. RNC Chairman Michael Whatley brought on the long-time election lawyer Gineen Bresso to head up the Republican party’s election legal work. Steve Kenny, RNC senior counsel, is taking the lead on litigation. And David Warrington, who represented Trump during the House Jan. 6 Committee investigation, is the Trump campaign’s general counsel.
Davis describes the efforts by this team ahead of the election as “filing lawsuits and getting injunctions, nipping problems in the bud.”
Democrats have been working to block those lawsuits and stave off last-minute attempts by some election officials to narrow how votes are counted and certified. Dana Remus, who was White House counsel during Biden’s first two years as President, is heading up the Harris campaign’s legal fight. Remus says that the Harris campaign has won some 20 cases since voting started in September. “In court you need facts and you need evidence and the vast majority of their lawsuits are failing because they have none,” Remus told reporters on Monday.
After Election Day in 2020, Trump’s team brought more than 60 lawsuits to contest the 2020 results, according to Remus,, and won one case involving 12 votes. “The volume of cases does not equate to the volume of legitimate concerns,” she says.
Harris’ legal team is working to make sure that all eligible votes are counted and that election officials with political motivations don’t try to prevent or delay certification of the outcome. That’s not legal, says Remus, referring to new laws that were passed after Trump tried to reverse his 2020 loss that clarified those issues. “We now have more tools to block rogue efforts to appoint fake electors and new safeguards that make it much harder to use the January 6 process to steal the election,” she says.
Here are legal cases that could make a difference once the polls close.
Pennsylvania’s mail-in ballots
Two recent court rulings will have an impact on how mail-in votes are counted in Pennsylvania and could be grounds for additional legal challenges about the election results. Donald Trump and Kamala Harris are in a dead heat in the state that Joe Biden won in 2020 by just over 80,000 votes. Even a minor change to how counties decide to count mail-in votes could have a big impact on the outcome.
In one last-minute ruling, the U.S. Supreme Court upheld that if voters in Pennsylvania didn’t use the secrecy sleeve for sending in their mail-in ballot, they were allowed to have a provisional ballot counted instead. Doing so requires a voter to know about the error and take the extra step to file a provisional ballot at a polling station. Republicans argued that voters shouldn’t be allowed another chance to vote. Democrats and voting rights groups said that provisional ballots are designed to remedy that kind of scenario.
In a separate case, Pennsylvania’s Supreme Court ruled that thousands of Pennsylvania mail-in ballots shouldn’t be counted if the date on the envelope wasn’t filled in correctly. That ruling will likely toss out thousands of mail-in ballots, and could impact the vote total. The decision reversed a lower court that said tossing those ballots interfered with the right to vote. Democrats and voting rights groups have argued that if ballots arrive on or before Election Day, putting the date on the envelope is unnecessary and redundant and the vote should be counted. But Republicans insisted that election instructions only allow the counting of envelopes that had been filled out with correct dates. This issue could see additional legal challenges after Election Day, especially if the results are close.
Mississippi’s late-arriving ballots
Republicans won a legal victory in late October when a federal appeals court ruled that Mississippi cannot count mail-in ballots that arrive after Election Day. The impact of that ruling could spiral out into other states in the coming weeks. A Mississippi law had allowed ballots to be counted as long as they arrived up to five days after Election Day and were postmarked by then. The ruling was made by the Trump-appointed Fifth Circuit Court of Appeals judge Andrew Oldham. Oldham wrote that “federal law requires voters to take timely steps to vote by Election Day.”
The decision is likely to spark more legal challenges. Republicans want this rule to be enforced in other states that fall under the jurisdiction of the Fifth Circuit, which also includes Louisiana and Texas. Texas law allows mailed ballots to be counted if they arrive by 5 p.m. on the day after Election Day.
The decision could also add fuel to legal battles in other states that count mail-in ballots that arrive after Election Day. In Nevada, where Trump and Harris are in a tight race, the state supreme court recently upheld that mail-in ballots that arrive by Election Day but don’t have postmarks can still be counted. Nevada law allows mail-in ballots postmarked on or before Nov. 5 to be counted up to four days after Election Day. If the race is as close as predicted, those late-arriving ballots could face additional legal challenges.
Trump’s legal team won a last-minute victory in Georgia on Monday when the state’s Supreme Court told Cobb County not to count ballots that arrive after Election Day. After an uptick in last-minute registrations, Cobb County election officials sent out more than 3,000 applications for mail-in ballots. But the court ruled that if any of those ballots arrive after Election Day, they will have to be set aside while legal challenges play out.
Virginia’s voter rolls
The U.S. Supreme Court in late October allowed Virginia to move ahead with an effort to purge its voter rolls of non-citizens using state Department of Motor Vehicles data. Democrats had argued that U.S. citizens were being caught up in the purge and that the work had started too close to the election.
Since early August, Virginia has canceled the registration of more than 1,600 voters. The changes to the voter rolls began on Aug. 7 when Virginia Gov. Glenn Younkin issued an executive order telling the state’s department of motor vehicles to give election officials daily reports on drivers license data that officials could use to cancer voter registrations for people suspected of not being citizens.
Republican lawsuits trying to remove names from voter rolls have increased dramatically in recent months. They’re largely driven by unfounded claims, spread for years by Donald Trump, that Democrats are registering undocumented immigrants to vote. A right-wing group working with close Trump advisor Stephen Miller has filed suits in Arizona claiming there were noncitizens on the state voter rolls.
American voters overseas
Republicans have tried and so far failed to block some Americans overseas from voting in Pennsylvania, Michigan and North Carolina. In Michigan and North Carolina, Republicans are challenging state laws that allow a voter to register if their parents have been residents. This provision allows service members and other Americans who turned 18 while overseas to vote in their home states. In Pennsylvania, the legal challenge is more stringent, demanding that all overseas ballots including those from military personnel and families be set aside and additional steps be taken to identify the names of the voters before the votes can be counted.
Read more: Overseas Votes Could Decide the Election
Veterans organizations have decried the Republican challenges as potentially disenfranchising thousands of military service members deployed overseas.
While the Republican effort has failed so far, additional court challenges could drag the legal fight out while votes are being counted.
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