Markus Wagner, Professor of Law and Director of the UOW Transnational Law and Policy Centre, University of Wollongong
With the US elections weeks away, the political battle is heating up, with both sides claiming the upper hand.
However, elections are not always won or lost at the polls. Increasingly, court proceedings are used to achieve desired political outcomes.
The media focuses on a handful of states, known as swing states, because they often swing between red and blue and can therefore play a major role in election outcomes. These races are tightening, with many state polls making it a contest too close to call.
Given their electoral importance, any legal challenges in these states are of potentially great significance. Some are already underway, while others could follow the November 5 vote.
A history of voter suppression
Democrats have tended to favour providing greater access to voting, whereas Republicans have, at times, attempted to restrict access to voting because of concerns over the integrity of the elections.
The issues of access and integrity are more perception than reality, according to both Democrat-leaning and Republican-leaning studies.
This has created a two-tiered system of democracy that, depending on where you live, dramatically influences how you are able to vote.
For decades, Republicans and Democrats have been divided over who has access to voting, and how voting should be administered. Some buzzwords include so-called voter ID laws, the gerrymandering of electoral districts, and curtailing early voting.
Another battleground is the closing of physical polling places.
From the polls to the courts
During the 2020 elections, legal battles were largely waged in the courts after voting day.
Then-President Donald Trump, unwilling to concede the election, filed 62 lawsuits, withdrew many of them, and lost the remainder.
Democrats now face a Republican Party and a supporting cast of characters that has drawn lessons from their failure to overturn the 2020 election results in court. Besides restricting voting access, Republicans and their allies in state legislatures are preparing the ground to restrict vote counting.
This has resulted in more than 165 lawsuits, mostly initiated by Republicans or their allies in a self-proclaimed “unprecedented legal strategy”.
Cases run the gamut from voter eligibility, to the counting of absentee ballots, to vote certification.
In response, Democrats have formed their own “voter protection” units in key swing states, hiring lawyers by the dozen.
Georgia in the spotlight
These changes have taken place in almost all the battleground states, but are most visible in Georgia, which has become ground zero in the 2024 legal election battles.
Georgia was the state Trump narrowly lost in 2020, prompting him to call Georgia Secretary of State Brad Raffensperger to “find 11,780 votes, which is one more than we have”.
This would have overturned the state’s election results by one vote. Raffensperger refused.
What’s changed since 2020 is that the Trump campaign and its allies have taken a much more systematic approach, laying the ground for election subversion.
Republicans have continued their efforts to limit access to voting through so-called voter purges in states like Alabama, Texas and Virginia. Election officials struck thousands of eligible voters from the electoral rolls. Courts have had to step in to reverse these endeavours.
The Georgia legislature passed bills in 2021 and 2024 expanding the powers of the Georgia State Election Board. This board is legally tasked with conducting “fair, legal and orderly elections”.
These bills aimed to radically change the appointment procedure and how elections are administered. The Georgia legislature now elects the members of the State Election Board and has removed the Secretary of State (currently Raffensperger) as the chair of that board.
The supposed non-partisan board is now dominated by staunchly pro-Trump members, which Trump called “pitbulls fighting for honesty, transparency, and victory”.
The board attempted to make last-minute changes on September 20 2024 to the state’s election rules. This includes that ballots (as opposed to the actual votes) be counted by hand and that the certification of election results could be delayed if local election boards doubt the validity of election results.
In a sharply worded letter and stating its exceptional nature, the Georgia attorney-general’s office warned the board it had exceeded its authority.
Such rule changes so close to an election were held to be disfavoured, based on a previous US Supreme Court judgement that pointed out:
court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.
These rule changes were ultimately blocked by Georgia courts. The Superior Court found the resulting “administrative chaos” to be “entirely inconsistent with the obligations of our boards of elections (and the State Election Board) to ensure that our elections are fair, legal, and orderly”. Georgia’s Supreme Court declined to hear a subsequent appeal by Republicans on procedural grounds.
The possible delay in certification was similarly struck down in court:
if election superintendents were […] free to play investigator, prosecutor, jury, and judge and […] refuse to certify election results, Georgia voters would be silenced. Our Constitution and our Election Code do not allow for that to happen.
Similar changes are afoot elsewhere. This risks that several million legally cast votes might not be counted in the 2024 elections. This would almost certain affect the results of the election.
What’s the end game?
In the end, this strategy is all about who wins the presidency.
What makes 2024 different is that Trump’s 2020 efforts targeted the outcome of the elections. While this strategy was unsuccessful, it contributed to the atmosphere that culminated in the storming of the Congress on January 6, 2021.
In 2024, the aim is to sow doubts about the legitimacy of the election process.
This has the potential to result in a chilling effect on voting, given that US elections are turnout elections.
Extending the political battlefield to the courts to limit or remove votes, or delay the results, risks long-term damage to democracy by calling into question the legitimacy of the electoral process.
Markus Wagner does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
