A flurry of litigation has been filed all over the United States over everything from voter-roll purges to how long early voting should last to the rules about accepting mail-in or absentee ballots.
These challenges — some of which are more performative than substantive — echo many of the complaints Republicans have raised about election integrity and have thrusted federal and state courts once again into partisan disputes about election rules on the eve of a hard-fought election.
Experts worry these partisan suits may be laying the groundwork for post-election disputes ranging from mere sour grapes about the rules to more serious attempts to undermine the public’s faith in the fairness of the process.
“We should keep an eye out for how many of these frivolous claims that were rejected by the courts — often rejected by courts that had judges appointed by former President Trump on them — will be revived as grifts; as social media fodder post election, to try to get the supporters of the losing candidate angry and incited to potentially violence,” said David Becker, the founder and executive director of the nonpartisan Center for Election Innovation & Research.
Pennsylvania in particular has seen a lot of legal activity, befitting its status as the most important of all the swing states this election cycle. Both parties are maneuvering over how election administrators should count mail-in ballots with errors or mistakes. If the outcome is close, such disputes could turn into the kind of ugly partisan brawl that plunged the country into weeks of uncertainty in the closely contested 2000 election.
The Supreme Court last week rejected a Republican-led challenge to the state’s handling of ballots with defects, leaving in place a state-court ruling that permits voters who believe their mail-in ballot has an error to cast a provisional ballot on Election Day. Separately, the Pennsylvania Supreme Court last week agreed with a GOP-led lawsuit and ordered election clerks not to count mail-in ballots with date errors.
The Supreme Court decision last week was more procedural than substantive and could be revisited post-election. In addition, the Pennsylvania high-court ruling could be appealed in federal court. In the event of a close election, either or both of those complaints could be revived as part of a dispute over whether to include or exclude certain ballots, raising the specter of a situation similar to the Florida recount in 2000 where the results of a single state left the election’s outcome in jeopardy and for courts to decide which ambiguous ballots to count or reject.
“Pennsylvania could be the decisive state in the election, given the ambiguity and inconsistency in some of its laws,” said Rick Hasen, a law professor at the University of California, Los Angeles, and an expert in election law. In Bucks County, outside of Philadelphia, a judge extended in-person early voting after complaints from Donald Trump’s campaign about long lines potentially discouraging voters from casting ballots. Other legal challenges in the state include a complaint by the Philadelphia district attorney that billionaire Elon Musk’s super PAC is running an illegal lottery for its proposal to give away $1 million to registered voters in certain battleground states who sign a petition.
This week, Musk’s lawyer argued the recipients are chosen based on their personal story, and therefore are “spokespeople” for the PAC with a million-dollar salary. This is despite Musk saying on social media that petition signers had “a daily chance of winning $1M!” and at a Harrisburg, Pennsylvania, rally that “we’re going to be awarding a million dollars randomly to people who have signed the petition.” A judge ruled Monday the “sweepstakes” could continue.
Hasen said the current rise in election-related litigation began in 2000 and has been increasing ever since, particularly in presidential cycles. Both parties now have donor-funded legal operations. They can bring aggressive challenges designed to give them a partisan edge, whether over voting hours, voter rolls or counting procedures.
“Some cases appear to have been filed mainly for public relations purposes, while others seem to have been filed to mark an issue so they can later claim they attempted to address it beforehand,” Hasen said.
He pointed to challenges regarding overseas voting as having been filed without much concern for their chances of success. Republicans and their allies in several states have filed complaints about the rules governing the handling of certain overseas ballots from citizens who live abroad, all of which have been unsuccessful so far. “There was no chance the courts would act quickly, so it seems these were filed with political intent,” Hasen said.
Many of these lawsuits are extensions of the messages Trump and some of his supporters have pushed around election integrity. Republicans have alleged — without evidence — that noncitizen voters are participating en masse in federal elections. Such registrations by ineligible noncitizen voters, which are illegal in federal elections, do occur but are exceedingly rare.
The Supreme Court last week also allowed Virginia to purge what the state said were 1,600 noncitizen voters from state rolls over objections from the U.S. Department of Justice. Other state efforts to run similar programs, such as in Alabama, have been accused of purging eligible voters.
Other complaints about election fairness are making their way through the courts.
A Republican Texas county chair filed a suit last week claiming there weren’t enough GOP members serving as clerks, deputies or presiding judges at early-voting sites in liberal Austin. A clerk at the state’s Third Court of Appeals said a judge denied and dismissed the motion for emergency relief the very next day, and his petition for writ was “disposed of.”
In Cobb County, Georgia, after officials failed to send out ballots to more than three thousand voters who’d requested them on time, a judge ordered officials to express mail absentee ballots with a prepaid-express-return envelope. The judge, in response to the suit from the American Civil Liberties Union and Southern Poverty Law Center, also extended the return deadline by three days to align with the same rules as ballots from overseas.
And in Erie County, Pennsylvania, the state Democratic party bought a suit over allegations that as many as 20,000 county voters who had requested a mail ballot had still not received one.
Although many of the Republican legal challenges have failed, the issues raised in court could serve as ammunition in future litigation — or even as fuel for a greater narrative that the election was inaccurate or unfair.
Whether it’s appealing the security of voting machines, or voting deadlines, it’s becoming increasingly clear that litigation over Election Day is merely the start of a greater battle that could play out over the coming months.
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Nuha Dolby is a NOTUS reporter and an Allbritton Journalism Institute fellow. Byron Tau and Jose Pagliery are reporters at NOTUS.