As most people know by now, the dozens of lawsuits filed by the Trump campaign and Republican supporters aimed at overturning Joe Biden’s win have roundly failed. The public also seems to be gradually accepting the reality that the courts are not going to intervene in this election. Donald Trump himself recently told the Fox News presenter Maria Bartiromo, “The problem is it’s hard to get into the Supreme Court.”
But don’t be fooled by the losses. Like much of what Trump touches, election and voting-rights litigation has now been twisted and distorted in ways that could have lasting negative effects.
Historically, courts have usually been asked to intervene in elections in order to expand the voting tent to include more eligible voters in the face of new limits on voting. States pass laws restricting access, and plaintiffs sue the states to make voting easier. Trump has demolished that formula.
Consider 2016. According to ProPublica, 15 states had new laws in place ahead of the November 2016 election. Alabama, Georgia, and Kansas, for example, passed laws requiring proof of citizenship in order to vote. Lawsuits followed. The League of Women Voters sought a preliminary injunction, claiming “irreparable harm” to voters if the laws were implemented. An appeals court struck the laws down. An Arizona county was sued for cutting the number of polling places, causing long lines and leaving only one polling place for every 21,000 voters. That case settled. Florida and Georgia were sued with mixed results for an injunction extending the voter-registration deadline by a week to account for Hurricane Matthew. In Massachusetts, an appeals court ruled to restore a state’s ban on exposing voters’ marked ballots to other people. Overall, voting-rights advocates got mixed results, but although the losses were disappointing, at least the structure of the process was recognizable: The courts in 2016 operated to resolve disputes between voters and states over access to the ballot—sometimes taking the voters’ side and sometimes affirming states’ restrictions.
Now consider 2020. This time the plaintiffs include the Trump campaign and the Republican Party, and their goal has not been to expand ballot access. Instead, preelection, they filed hundreds of lawsuits across the country in an effort to hamper state efforts to increase access to the polls during a pandemic. In these lawsuits, courts again were asked to call balls and strikes, but the team configuration shifted: No longer were voters suing states over restrictive laws. Instead, a major political party was suing states to kill more expansive voter-access laws. Their success was similarly mixed, but the structure of the process was novel.
Since November 3, things have gotten even more tortured. The Trump campaign is no longer suing to halt increased access to the polls. The votes have now been cast. Instead, Team Trump is attempting to use the courts to affirmatively cancel hundreds of thousands of validly cast votes. Trump has been losing for good reason: The laws his campaign has cited as grounds for such extraordinary relief were not designed to enable losing candidates to reverse elections through widespread disenfranchisement. But the very deployment of this tactic over and over again—and judges’ failure to sanction lawyers for filing frivolous claims that lack legal and factual predicates—has put a new weapon in the disenfranchisement toolbox. We are certain to see it wielded again.
When the Constitution was ratified in 1788, it did not include an affirmative right to vote. The electoral process was left to individual states. Yet the Supreme Court has long taken the position that, despite the lack of a clear constitutional mandate, “the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Although in Bush v. Gore the Supreme Court halted a recount in Florida in 2000, it did so on equal-protection grounds because it was concerned that voters would be treated unfairly under the existing state recount law.
Congress has stepped in to help voters too. In 1964, it passed the federal Civil Rights Act, giving legislative heft to constitutional amendments aimed at ensuring that all men and women age 21 and older—despite race or color—have the right to vote. In 1965, it passed the federal Voting Rights Act, which suspended literacy tests and authorized the Department of Justice to oversee changes in election laws in states with a history of discrimination in voting (a provision that the Supreme Court struck down in 2013). Other laws of the past 40 years, such as the Voting Accessibility for the Elderly and Handicapped Act of 1984, the Uniformed and Overseas Citizens Absentee Voting Act of 1986, the National Voter Registration Act of 1993, and the Help America Vote Act of 2002, sought, in one way or another, to expand and secure the franchise.
Notice the theme here: increasing access to the ballot through the Constitution, Congress, and the courts. The Trump campaign has turned that trajectory—rather tragically—on its head.
Here’s the good news: When faced with unprecedented attempts to obliterate legitimate votes on shaky technical grounds, courts have refused to budge. The most stinging rebuke to the Trump strategy came the day after Thanksgiving. The Court of Appeals for the Third Circuit in Donald Trump for President, et al. v. Secretary Commonwealth of Pennsylvania, et al. summarized the lawyer Rudy Giuliani’s argument as a complaint “that Pennsylvania’s Secretary of State and some counties restricted poll watchers and let voters fix technical defects in their mail-in ballots … nothing more.”
No law even exists to further Giuliani’s cause. “Pennsylvania law is willing to overlook many technical defects. It favors counting votes as long as there is no fraud,” the court explained. And Giuliani admitted that there was no fraud alleged in the state. Instead, the court quipped, “the Campaign tries to repackage these state-law claims as unconstitutional discrimination” with “vague and conclusory” allegations that do not include any assertions “that anyone treated the Trump campaign or Trump votes worse than it treated the Biden campaign or Biden votes.”
No unfairness alleged. No state laws broken. As for federal law, it “does not require poll watchers or specify how they may observe. It also says nothing about curing technical state-law errors in ballots.”
These lawsuits are not about voter access to the ballot. And as the court concluded, the Trump campaign “never claims fraud or that any votes were cast by illegal voters.” Worse still was the relief sought: “tossing out millions of mail-in ballots,” which the court deemed “drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too.”
For more than 230 years, Americans have struggled, fought, and died to foster and protect the right to vote, including through the courts. But post-Trump, the nation will likely see more litigation each election season that attempts to invoke the courts not to increase or confine access to the ballot, but to snatch away the right to vote itself—even after it’s been duly exercised.