My final Litigation Look Ahead before Election Day.

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One of the reasons I was so excited to begin our premium membership program in March was to deliver this newsletter to the people who care most about the details of what is happening to democracy in court. Each month I have tried to present a clear picture of what happened in the month before and how it will impact the month ahead. I have used statistics — how many cases are being filed, wins and losses and trends — to make a larger point about the direction of our democracy.

But this month is different. We stand now at a crossroads, just days before an election that will upend everything that has come before it. While the trends of the spring and summer are still relevant, they are soon to be eclipsed by the election and what comes afterwards. The explosion of litigation we saw this fall is important, but will soon be transformed into an historic narrative or largely forgotten.

All of this makes this particular Litigation Look Ahead more challenging. Regardless of what I tell you to watch for next month, your attention will likely end up on cases not yet brought over an election not yet held.

Nevertheless, there are a few trends worth noting to prepare for Nov. 5. No matter what happens, this has already been the most litigated election in American history. This year alone, nearly 200 lawsuits have already been filed in 40 states.

This year will also be remembered for the composition of those cases. In 2020 Republicans and their allies were largely playing defense in court prior to the election. This cycle, they tried to flip the script by filing over 148 anti-voting lawsuits. The RNC revamped its “election integrity” legal team to bolster its aggressive litigation strategy, bombarding the courts with lawsuits aimed at restricting mail-in voting, kicking eligible voters off the rolls and more.

Equally important, however, has been the result of those cases. To be blunt, the GOP has learned that while it is easy to file a lawsuit, it is difficult to win one. Their losses have been staggering. In the month of October alone, the Republican Party lost 20 lawsuits.

On the Friday before Election Day, that is something we can celebrate.

Court wins from the past month

Over 30 lawsuits were filed in October — more than double the number of new lawsuits we saw in October 2020 — and over 30 cases were decided — also more than double the number of decisions that came down in October 2020.

We saw wins this month in the following categories:

Vote by mail: The October decision that might have the greatest impact on what votes count came from the Pennsylvania Supreme Court ordering counties to allow voters who submit naked mail-in ballots without inner secrecy envelopes to cast provisional ballots in person. Another win in this critical swing state happened in Luzerne County where voters will now be able to use drop boxes to cast their ballots. In Nevada, the state Supreme Court rejected…

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This month’s Litigation Look Ahead includes:
* A year in review: Some of the major wins for voters
* Cases I’m watching and waiting for
* Important dates and battles coming up this month
* Big court decisions we’re waiting for

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