GOP lawsuits set the stage for state challenges if Trump loses the election

Before voters even begin casting ballots, Democrats and Republicans are engaged in a sprawling legal fight over the 2024 election through a series of court disputes that could even run past Nov. 5 if results are close.

Republicans filed more than 100 lawsuits challenging various aspects of vote-casting after being chastised repeatedly by judges in 2020 for bringing complaints about how the election was run only after votes were tallied.

After Donald Trump made " election integrity " a key part of his party’s platform following his false claims of widespread voter fraud in 2020, the Republican National Committee says it has more than 165,000 volunteers ready to watch the polls.

Democrats are countering with what they are calling “voter protection,” rushing to court to fight back against the GOP cases and building their own team with over 100 staffers, several hundred lawyers and what they say are thousands of volunteers.

Despite the flurry of litigation, the cases have tended to be fairly small-bore, with few likely impacts for most voters.

“When you have all this money to spend on litigation, you end up litigating less and less important stuff,” said Derek Muller, a law professor at Notre Dame University.

The stakes would increase dramatically should Trump lose and try to overturn the results. That’s what he attempted in 2020, but the court system rejected him across the board. Trump and his allies lost more than 60 lawsuits trying to reverse President Joe Biden’s win.

Whether they could be successful this year depends on the results, experts said. A gap of about 10,000 votes — roughly the number that separated Biden and Trump in Arizona and Georgia in 2020 — is almost impossible to reverse through litigation. A closer one of a few hundred votes, like the 547-vote margin that separated George W. Bush and Al Gore in Florida in 2000, is much more likely to hinge on court rulings about which ballots are legitimate.

“If he loses, he’s going to claim that he won. That goes without saying,” Rick Hasen, a law professor at the University of California, Los Angeles, said of Trump. “If it looks like what we had last time … I expect we’ll see the same kind of thing.”

Trump has done nothing to discourage that expectation, saying he would accept the results of the election only if it’s “free and fair,” raising the possibility it would not be, something he continues to falsely contend was the case in 2020. He also continues to insist that he could only lose due to fraud.

“The only way they can beat us is to cheat,” Trump said at a Las Vegas rally in June.

To be clear, there was no widespread fraud in 2020 or any election since then. Reviews, recounts and audits in the battleground states where Trump disputed his loss reaffirmed that Biden won. And Trump’s attorney general said there was no evidence that fraud tipped the election.

Trump installed his daughter-in-law, Lara Trump, as co-chair of the Republican National Committee, which then named attorney Christina Bobb as the head of its election integrity division. Bobb is a former reporter for the conservative One America News Network who has been indicted by Arizona’s attorney general for being part of an effort to promote a slate of Trump electors in the state, even though Biden won it.

Echoing Trump, the RNC said it's trying to counter Democratic mischief.

“President Trump’s election integrity effort is dedicated to protecting every legal vote, mitigating threats to the voting process and securing the election,” RNC spokeswoman Claire Zunk said in a statement. "While Democrats continue their election interference against President Trump and the American people, our operation is confronting their schemes and preparing for November.”

This time around, Democrats say they’re prepared for whatever Republicans might do.

“For four years, Donald Trump and his MAGA allies have been scheming to sow distrust in our elections and undermine our democracy so they can cry foul when they lose,” Jen O’Malley Dillon, Vice President Kamala Harris’ campaign manager, said in a statement. “But also for four years, Democrats have been preparing for this moment, and we are ready for anything.”

The highest-profile litigation so far has been in Georgia, over new rules from a Republican-appointed majority on the State Board of Elections, which has echoed Trump's conspiracy theories. The rules could allow members of local election boards to try to refuse to certify results, a gambit Trump supporters have tried, unsuccessfully, to reverse losses in 2020 and 2022.

A Trump-aligned group sued to have courts declare that election board members have that power while Democrats sued to overturn the new rules. GOP Georgia Secretary of State Brad Raffensperger has questioned the wisdom of the board changing procedures so close to the election. Legal experts say the state board's rules conflict with longstanding state law that certification is not optional.

Whether local boards delay or refuse to certify the results from the upcoming election has been a growing concern, especially after a handful of local officials took that step during this year's primaries. But experts say the fears of a certification crisis are overblown, in large part because most state laws are clear that state or local boards must certify the official results brought to them by election offices. The courtroom remains the most important venue for candidates who want to challenge results.

“Trying to deny certification is a really poorly thought out theory,” Ben Ginsberg, a Republican election lawyer, said on a Thursday call with reporters. “It has never worked.”

The litigation to date has often been about relatively esoteric matters, but some cases could have implications after November if Trump loses. The RNC has filed lawsuits in Michigan, Nevada and North Carolina alleging the states need to remove inactive or ineligible voters from their rolls. Late last month, Republicans sued North Carolina over a favorite issue — the risk of noncitizens voting, which is rare. They contend the state wasn't doing enough to safeguard against it.

So far none of the claims have succeeded. But if Trump loses in those states by a narrow margin, that sort of pre-election litigation could pave the way for him to claim in court that the vote was invalid.

The other area that could have ramifications in November and beyond is whether mail ballots arriving after Election Day can be counted. Nineteen states allow that as long as the ballots are sent before polls close. The RNC sued to overturn this provision in Nevada and Mississippi, but both cases were dismissed by judges.

The RNC appealed those cases, and the first is scheduled to be heard by the 5th U.S. Circuit Court of Appeals later this month. It’s the sort of issue that could end up before the U.S. Supreme Court. Some Trump allies in 2020 hoped the court would declare him the winner, but the late-arriving mail ballot litigation at the time showed the limits of that tactic.

The Pennsylvania Supreme Court ruled that the state had to count mail ballots that arrived up to four days after Election Day. Republicans then appealed that ruling to the nation’s highest court, and late-arriving mail was counted separately in November 2020 while everyone waited for the Supreme Court to weigh in.

In the end, the Supreme Court didn’t take up the case. Trump lost Pennsylvania by more than 80,000 votes, so the 10,000 late-arriving mail ballots wouldn’t have even made a difference.