Frivolous legal challenges are a threat to democracy.

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From the Desk of Trevor Potter
Dear John,

The rule of law lies at the foundation of our democracy, with the courts serving as a venue for settling disputes involving elections when all else fails.

Ever since the contentious 2000 Florida presidential recount, the courts have played an increasingly large role ([link removed]) in disputes over administrative aspects of our democracy, with an especially large spike in lawsuits during the 2020 election. There were 543 election-related lawsuits ([link removed]) that year, an almost 26% increase ([link removed]) over 2016.
The off-year midterms in 2022 produced a surprisingly large number as well — more than 400 lawsuits, with the majority being filed in state courts. There are explanations for this development, both good and bad.

One reason we have seen an increase in litigation over the last 20 years or so is the U.S. Supreme Court’s 2013 decision in Shelby County, AL v. Holder ([link removed]) , which removed the federal government’s ability to block racially discriminatory voting laws before they take effect. That ruling essentially forces voters from historically marginalized communities to seek redress in the courts after racially discriminatory laws take effect.

We’ve also seen a wave of lawsuits responding to states where self-interested politicians have abused the redistricting process through gerrymandering, which protects their seats and increases their power. This destroys voters’ ability to have a meaningful say in who represents them, creating de facto disenfranchisement.

Campaign Legal Center has gone to court on many occasions to help voters rectify injustices that prevented their full participation in the political process. The ultimate goal of these actions is making progress toward a more responsive and representative government.

My fear is that we are seeing more election-related lawsuits by partisan plaintiffs where the goal, or at least the eventual outcome, is a shrinking of democratic freedoms. There are signs of this clear and present threat in 2024.

For example, lawsuits challenging the way states maintain their voter rolls and the processing of absentee ballots pose a threat to voters that far outweighs the stated goal of preventing voter fraud. Nevada is one of the focal points for this kind of litigation.

A lawsuit filed by the Republican National Committee (RNC) — which now includes an “election integrity” unit — and joined by other groups accuses the state of failing to maintain its voter rolls and seeks more aggressive removal of voters from the rolls than federal law allows. Campaign Legal Center along with the ACLU of Nevada have weighed in on this case, explaining in that the suit is based on deeply flawed and misleading metrics that have been repeatedly rejected by federal courts.

For instance, the lawsuit points to differences between the number of registered voters from a single snapshot in time and outdated census estimates of Nevada’s citizen voting age population. I don’t think you have to be a data analyst to understand that this is an overly simplistic apples-to-oranges comparison.

Nevada, like many states, has a robust voter list maintenance system that ensures accurate voter rolls by using methods consistent with federal law. This system also minimizes the erroneous removal of eligible voters. Lawsuits that challenge voter roll maintenance have two aims: To make voter registration rolls less accurate and perpetuate false narratives about our electoral system.

A second lawsuit, again filed by partisan actors ([link removed]) , says Nevada should not be allowed to count mail-in ballots received after Election Day, even if they were clearly mailed on or before Election Day (as permitted by state law) and received by the state's deadline.

CLC is familiar with these types of challenges. We partnered with the League of Women Voters of North Dakota last year to defend a law ([link removed]) which allows mail-in ballots postmarked the day before Election Day and received by the deadline under state law to be counted. Fortunately, the court granted a motion to dismiss that lawsuit.

Widely reported slowdowns in mail delivery ([link removed]) this year could increase the number of ballots arriving after Election Day through no fault of the voter, making laws that allow such ballots to be counted even more important.

Beyond threatening the freedom to vote, these kinds of legal actions tie up election officials’ limited time and resources in litigation during a busy election year. They also erode public confidence and intensify the risk of harassment against public officials working diligently to administer elections.

The list of potential election-related legal skirmishes is long. These days it seems almost every aspect of the electoral process is facing frivolous legal challenges by bad faith actors who believe they can obtain some strategic advantage by getting a state or federal judge to agree with their interpretation of the law.

We saw a clear example of this strategy following the 2020 election, when more than 60 lawsuits ([link removed]) were filed by the Trump campaign in an attempt to overturn the results of that election. CLC was involved in defending the will of the voters at that time in battleground states like Wisconsin.

Lessons learned in 2020 will come in handy for pro-democracy attorneys should lawsuits arise after the 2024 election questioning the outcome. It is my fervent hope that the nearly unanimous rejection of those 2020 challenges by the courts has substantially raised the bar for future lawsuits of this kind.

There is no doubt that both major political parties have been preparing for a litigious election cycle, having raised tens of millions of dollars for legal expenses. There are also a host of organizations covering a wide political and ideological spectrum that are either already engaged in these legal battles or are ready to jump in.

The thing to watch out for going forward is an increase in litigation that aims to achieve a political outcome rather than correcting flaws in our voter-centric system of self-government. We cannot allow these actions to overwhelm our electoral process at the expense of voters trying to make their voices heard.
Sincerely,

Trevor Potter
President, Campaign Legal Center

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