GOP’s aggressive court strategy sets the stage to cast doubt on the 2024 results

By Tierney Sneed and Devan Cole, CNN

(CNN) — This election cycle — in which a former president who tried to overturn his 2020 loss is topping the Republican ticket — has featured an unprecedented amount of pre-election litigation, with the GOP touting that it’s been involved in 130 cases.

The GOP’s aggressive approach in court goes hand in hand with former President Donald Trump’s strategy of using the courts to preemptively cast doubt on the 2024 results. Republicans counter any criticism by saying that they’re focused on making sure the rules are clear and that election officials are on notice that they must follow the law.

Democrats have rushed to court as well — to defend the election policies under GOP attack and to fend off moves they say would kick eligible Americans off the voter rolls.

Yet legally, the onslaught of Republican-led lawsuits has done little to change the status quo around voting and election administration, according to Leah Tulin, an election law expert at the liberal-leaning Brennan Center for Justice at New York University’s law school.

“If we measure success in terms of favorable results or winning lawsuits, the effort has been basically a total failure,” Tulin said. “There are still a lot of those cases pending, but they haven’t really moved, and we don’t expect most of them to move, or certainly to have favorable results in them before the election.”

A spokesperson for the Republican National Committee defended the GOP’s record in court, telling CNN that Republicans’ “unprecedented election integrity operation is committed to defending the law and protecting every legal vote.”

“We have stopped Democrat schemes to dismantle election safeguards and will continue to fight for a fair and transparent election for all Americans,” spokesperson Claire Zunk said.

Here are the biggest issues and cases being litigated in the week before Election Day:

Mail ballot rules

The rules for voting by mail were among the most hotly litigated issues in the lead-up to the 2020 pandemic election, and in some battleground states, the court fights have continued into 2024.

As the Supreme Court has signaled that it is wary of court rulings that change voting policies near Election Day, some courts have balked at mail voting-related lawsuits in key states.

In Pennsylvania, the state Supreme Court rejected an RNC lawsuit seeking to end the practice known as curing — in which voters are allowed to fix defects on their mail ballots — while also turning away a case brought by voting rights groups that challenged the requirement that mail ballots are properly dated.

Republicans have now taken to the US Supreme Court a dispute over provisional voting — a separate opportunity for someone to have their voted counted if their mail ballot is rejected for a technical defect, by casting a ballot in person that is counted once it’s properly vetted. The Pennsylvania Supreme Court said counties must count the provisional ballots.

Michigan Republicans secured partial wins in cases that were resolved with requirements that Secretary of State Jocelyn Benson, a Democrat, tighten up her guidance for how mail ballots are verified.

In lawsuits brought in both state and federal court in Nevada, Republicans lost at the trial court level in cases challenging the acceptance of ballots that arrive after Election Day, including ballots lacking postmarks.

The GOP appeal of the federal case will not be heard before the election, while in the state court litigation — which is focused on the counting of non-postmarked ballots that arrive within three days after an election — a decision from the Nevada Supreme Court could come any time.

Republicans, however, secured a major win with a federal appeals court, stemming from a lawsuit brought against Mississippi, that said counting mail ballots that arrived after Election Day violated federal law.

The ruling does not have immediate impact on practices for this election, as the 5th US Circuit Court of Appeals did not block Mississippi’s policy, leaving it to a trial judge to determine the next steps. But Republicans can point to the ruling as supporting their arguments if they seek to challenge late-arriving ballots in states where those ballots could make the difference in key races.

Election certification procedures

Legal fights around the certification of election results have been of critical importance for both parties in recent weeks, with Republicans pushing to give local officials greater discretion when it comes to finalizing the results.

The fight has played out most dramatically in Georgia, whose 16 electoral votes are crucial for both Trump and Vice President Kamala Harris. In cases brought by Democrats and others, courts have blocked last-minute rules passed by Trump allies on the State Election Board that changed the certification process — including one that required local officials to conduct a “reasonable inquiry” before certifying results.

Those changes were immediately challenged in court, where a state judge said local officials cannot delay or decline to certify election results, dealing a blow to an effort by conservatives to gain the legal right to reject results based on a suspicion of fraud or abuse.

In another case involving the certification rules, the state Supreme Court on Tuesday turned down a Republican request to immediately reinstate the rules, guaranteeing that they won’t be in place for this cycle.

Democrats had warned the new rules around certification could allow local election officials to delay or altogether decline to certify the election results as they searched for purported fraud or irregularities. Key GOP state officials, including Secretary of State Brad Raffensperger, had also opposed the new rules.

Republicans did score a win in the swing state of Arizona last month when a federal judge blocked a new regulation that said in the event local officials have not finalized a county’s election results, the secretary of state was instructed to proceed with the state’s canvass without that county’s votes.

Purging voter rolls

As Republicans have made the supposed threat of noncitizen voting — which, according to studies, is an extremely rare occurrence — a focus of their political messaging, purging alleged noncitizens from the rolls has been a legal flashpoint.

The Republican National Committee and other conservative groups brought lawsuits in several states alleging that election officials are not doing an adequate job of keeping voter rolls clean of noncitizens and other ineligible voters, while defending state laws that stiffen ID requirements.

They secured a partial victory with a Supreme Court ruling that said Arizona could enforce a documentary proof-of-citizenship requirement for people registering to vote using a state registration form — but the high court rejected an RNC request to extend that requirement to those using the federal form to register, meaning that those lacking documents proving their citizenship will still be allowed to vote in the presidential election, but not in state or local races.

But conservative lawsuits focused on voter purges have, for the most part, not gained much traction. In Arizona, Georgia, Nevada and Michigan, judges rejected lawsuits challenging the registrations of specific voters or otherwise alleging the voter rolls had not been adequately maintained.

A major obstacle for conservatives is a federal law that prohibits systematic list maintenance programs within 90 days of an election.

That law has led to wins in cases by outside liberal and voting rights groups — sometimes joined by President Joe Biden’s Justice Department — against states for seeking to purge voters within the 90-day period. Voting rights advocates have also noted that naturalized citizens are often caught up in such purges because of flaws in the citizenship data that is used.

Federal judges in Alabama and Virginia have blocked those states’ respective purge programs for beginning the removal process within the 90-day window.

Republican state officials have launched an emergency appeal in Virginia, while Trump has attempted to play up the ruling for political gain.

Tulin, of the Brennan Center for Justice, said she thinks much of this year’s litigation was brought to serve as “predicates or placeholders” for conservative litigants to cite in post-election lawsuits should Trump lose.

“Something that they can then point back to and say, ‘Look, we told you there was this issue before,’ and to sort of add credence to post-election litigation,” she said.

Policing poll workers and watchers

Republicans have filed multiple lawsuits challenging how election officials plan to monitor or choose volunteer poll workers — who help perform certain tasks at polling places — and poll watchers, who observe how elections are being administered. The lawsuits pick up on largely unfounded allegations in 2020 by Trump and his allies that Republicans are not given adequate access to monitor the election.

So far, the cases aimed at the 2024 election have had only some success. A Republican lawsuit led to a settlement with Detroit election officials that affirmed that there would be at least one GOP poll watcher in each precinct. But in Wisconsin, a judge rejected a lawsuit there to force election officials to hire more GOP poll workers in Racine.

Some of the legal challenges have taken aim at policies enacted since the tense 2020 scenes to address the harassment and intimidation of poll workers, and in those cases, the record has been mixed. A Nevada GOP challenge to a 2023 law prohibiting poll worker harassment failed.

However, in Arizona, the conservative America First Policy Institute secured a court injunction blocking, on First Amendment grounds, regulatory guidance for how election officials should address intimidating behavior at polling places.

Overseas ballots

In recent weeks, Republicans have taken aim at overseas ballots, alleging that policies in Pennsylvania, Michigan and North Carolina allow for ineligible people to vote.

Though closely associated with military voters, expat civilians now make up a larger share of voters abroad than active service members, and the overseas vote has been a focus of the Democratic turnout operation.

Judges this month rejected RNC lawsuits that alleged Michigan and North Carolina were violating their constitutions by counting overseas ballots by citizens abroad who had never lived in those states but had a parent (or in Michigan, a spouse) who did.

A lawsuit brought by House members alleging Pennsylvania is not adequately verifying overseas ballots got a chilly reception in a court hearing this month, but a ruling has not yet been handed down.

Other election regulations challenged

This litigation cycle has shown that Republicans are looking at every aspect of how elections are run, while Democrats have also been quick to go to court over rules implemented by Trump allies on election boards.

In North Carolina, the GOP secured a court order blocking a rule that would have allowed University of North Carolina Chapel Hill students to use their digital school IDs as a form of photo identification to vote.

Democrats, meanwhile, have been successful in halting last-minute changes made by the Georgia Election Board concerning, among other things, poll worker access, ballot counting and drop-box surveillance.

Voting rights groups also successfully sued Nebraska over Republican officials’ refusal to carry out a state law restoring the franchise to those who have been convicted of a felony.

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