Preview of my monthly Litigation Look Ahead newsletter

September was the busiest month for new pre-election voting litigation in recent history and probably ever. In all, 34 new lawsuits were filed — 15 from those protecting free and fair elections and 19 from those attacking them. Compare that to September 2020, when a total of 12 lawsuits were filed, and the dominant narrative was that the courts were being flooded with litigation.

During the last four years, our politics and culture have changed. While Donald Trump is a reason, he is not the only one. The transformation has been accelerated by the acceptance by the entire GOP that it is not a majoritarian party.

It no longer aspires to win the most votes. It no longer celebrates popular mandates. Instead, the party increasingly changes the rules of elections to allow a minority of voters to wield power.

First, it optimized itself to exploit systemic advantages — the Electoral College, the Senate and gerrymandering. When those failed in 2020, the GOP turned to state legislatures to enact new laws that tilt the scales in its favor. Still unable to prevail, the party has embraced the ugliest form of voter suppression and election subversion.

Inevitably, the courts have become a critical part of the GOP’s plan. Once insistent that “activist judges” stay out of elections, Republicans are now insistent the judiciary do more to aid their cause.

This explains why September 2024 was a historically busy month for litigation and why October will be even busier. In 2020 and 2022 the courts withstood these pressures. For democracy to prevail they will need to do so again.