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.