Does pre-election legal flurry mean post-election chaos in U.S.?
'We have already seen more voting cases in 2024 than in any year': Democratic elections lawyer
In a U.S. election where the possibilities range from a razor-thin margin between the two major candidates to one where either Donald Trump or Kamala Harris sweeps seven swing states, there seems at least one certainty — that Republicans in particular will be ready with legal papers should the presidential race appear to slip from their grasp.
Republicans have already filed the lion's share of at least 130 election-related lawsuits, according to a Reuters report on Thursday, with Bloomberg Law putting the number of cases even higher. The challenges fall into the broad categories of disputes over voting technologies, voting methods and voting eligibility.
"Republicans and their allies are flooding the system with litigation," Democratic Party elections lawyer Marc Elias said on X this week. "We have already seen more voting cases in 2024 than in any year, ever."
Unsurprisingly, notes Bloomberg Law, the lawsuits are concentrated mostly in the seven perceived swing states that are crucial in the presidential race.
Ari Berman, national voting rights correspondent with Mother Jones, told CBC's Front Burner this week that the spectre of 2020 post-election chaos is looming large over this year's vote.
"There have been debates in the U.S. over how voting laws should look in terms of casting a ballot, but I think what Republicans have done is they have now added this whole dimension of fighting over election results — trying to throw out results altogether — or change how elections are run and certified," said Berman.
Federal act strengthened after 2020
Trump, then the incumbent, infamously claimed four years ago that Joe Biden's win was illegitimate, never fully explaining how Republican wins in the House and Senate weren't also corrupted. Other Republican activists balked at the expansion of mail-in voting, absentee voting and drop boxes in the pre-vaccine months of the COVID-19 pandemic.
Millions of registered Republicans, numerous polls suggest, still believe the election was not "won fair and square."
Trump this week insisted there was a "peaceful transfer of power" in 2021. That's contradicted by more than 900 convictions, many for violent offences, of those present at the U.S. Capitol on Jan. 6, 2021, infuriated about the election results. Loaded guns were among the weapons recovered, while the man famously photographed in then-speaker Nancy Pelosi's office was carrying a 950,000-volt stun gun.
One expects Washington, D.C., will be heavily policed in this election cycle and its aftermath, and there are other reasons to believe there won't be an exact repeat.
Trump is now a private citizen without access to levers of power and officials within the government sympathetic to his claims of fraud, and with no claims to presidential immunity.
The federal Electoral Count Reform Act was updated in 2022 to indicate that the vice-president's role in overseeing the disposition of state results is "ministerial" and does not include "power to solely determine, accept, reject or otherwise adjudicate disputes over electors." It was clearly a response to the pressure campaign Trump directed at his vice-president, Mike Pence.
In at least five of the seven battleground states, Reuters reports, officials have been investigated, indicted and even jailed for trying to interfere with the vote or delay certifying results in the past four years, potentially a deterrent.
There have also been denials of plans that election experts said would have only muddied waters.
Georgia, for example, was ground zero for Trump's attempts to seize victory from the 2020 defeat, leading to a racketeering indictment involving several individuals, including the former president.
This year, a Republican-tilted board in Georgia has tried to impose an across-the-board hand count requirement while enabling county officials in some cases to object to certifying results. Those plans appear to have been quashed this week, with one judge questioning the late timing of the proposals and their possibility to add "uncertainty and disorder to the electoral process."
And at least one survey, from Monmouth University seen below, suggests Americans are a bit more confident than four years ago that the election "will be conducted fairly and accurately."
Overseas voting process questioned
In April, the Republican Party promised to aggressively challenge, if necessary, state laws in the areas of voting machine testing, early voting, mail ballot processing and post-election audits and recounts.
Trump has even made what one official described as unprecedented and false claims about overseas voting, which is dominated by U.S. military families, and in Pennsylvania, where more baseless claims about Toronto-founded Dominion Voting Systems — which won a massive defamation settlement from Fox News — were recently rejected.
Claire Zunk, a Republican National Committee spokesperson, said in a statement to Reuters that Republicans had secured important wins in 2024 voting-related cases, such as a U.S. Supreme Court ruling reviving proof of citizenship requirements in Arizona and a Georgia ruling denying a push by voting rights groups to extend voter registration deadlines due to Hurricane Helene.
Democrats, meanwhile, have stepped in to protest some attempts to purge voter rolls, most notably in Alabama.
Just Security, a U.S. national security law and policy resource out of New York University, has been regularly tracking what it considers to be the top 10 most important cases.
Election workers face threats
The potential for violence is still top of mind. Peter Montgomery, who monitors militant groups at the People For the American Way, a liberal think-tank, cited the capitals of battleground states as places to watch in the Reuters report. Threats to election workers are also no longer an unheard-of phenomenon.
The Department of Homeland Security has even considered the possibility that drop boxes could be bombed, Wired reported on Thursday.
Finally, a survey out of Johns Hopkins University suggested that registered Republicans who believe Trump lost unfairly in 2020 are more inclined to believe there will again be election problems, including political violence, than other types of voters.
"Expecting chaos can fuel more chaos," warned Lilliana Mason, an associate political science professor at the school.
What would Speaker, SCOTUS do?
In the political realm, some Harris supporters are eyeing Speaker Mike Johnson warily, should the Republicans retain control of the House. Johnson said he'll certify the presidential result regardless of who the victor is, "if the election is free and fair and legal." But his former Republican colleague Liz Cheney said she doubted Johnson would "fulfil his constitutional obligations."
Berman characterized Trumpworld legal challenges that were dismissed or not even fully pursued in 2020 as "seat-of-the-pants" affairs. The Supreme Court did not have to intervene in an especially meaningful way.
But Berman has an overriding question in 2024, in light of Trump having appointed three of the justices on a top court that now has a 6-3 conservative majority.
"What if it's a closer election and there's a more legitimate dispute about the votes, more like the 2000 election in Florida?"
ABOUT THE AUTHOR
With files from Reuters and The Associated Press