The 2024 US presidential contest is becoming another major battle in the courts. Global Insight examines this crucial test for the resilience of the country’s democracy.

With the campaign leading to November’s election in full swing, Democrats and Republicans are already engaged in trench-level lawfare over voting rules, procedures and administration. Much of the battle revolves around controlling ballot access, which Republicans see as enhancing ‘election integrity’ and Democrats view as ‘voter suppression’.

Judicial outcomes will affect who gets to cast votes, which ballots are counted and potentially who wins the 2024 election in what US election lawyers and voting rights advocates say will be a major test of the resilience of democracy.

The ‘Big Lie’ continues

In the wake of the 2020 election, which former President Donald Trump continues to claim – without merit – was rigged, state legislatures across the US have passed new laws rewriting voting rules. Lawsuits on both sides are challenging these new rules, with mixed and sometimes surprising and unpredictable results.

‘The idea that the electoral system must conform to some abstract standard of “democracy” and that the judiciary is standing by like cops to make sure it does, may be a comforting thought but it doesn't really correspond to the legal reality’, says Michael L Novicoff, a Member of the IBA Litigation Committee Advisory Board and a partner at law firm Pryor Cashman in Los Angeles, California.

‘The American judiciary needs express constitutional and statutory authority to do its job, and when elected legislators or the Supreme Court alter or withdraw that authority’, it’s probably going to be the ‘new laws, and not the abstract principles, which are actually going to get enforced’, he explains.

That’s because the American system is based on a 1789 Constitution that was designed to provide only indirect public influence on the federal government. The foundation of the US is that of a republic, not a pure democracy.

November will see the first presidential election held under what the non-profit Voting Rights Lab has called a ‘tsunami of new voting and election law changes’ now being fought over in courts that, by law, don’t necessarily hold the right to vote paramount. ‘What is often forgotten by observers abroad, as well as by many Americans and even by many American lawyers, is that most of the architects of the Constitution were terrified of direct democracy, which was equated with something close to mob rule’, Novicoff says. ‘The founders were predominately concerned with ensuring stability in a union of states that even then had lots of sharp and violent disagreements with one another, as well as lots of powerful enemies abroad’.

Novicoff explains that ‘there are relatively few judges on either side of the political divide that think of themselves as the “guardians of democracy”. Most think of themselves instead as the guardians of the Constitution and the constitutional order’.

Michael L Novicoff
Member, IBA Litigation Committee Advisory Board

Controversy in Georgia

Prominent among the new legal battlegrounds is the state of Georgia, where the legislature has adopted sweeping changes to voting laws ahead of the 2024 contest. ‘What the Big Lie has done is it has provided the cover for ongoing voter suppression laws’, says Carol Anderson, a professor of African American studies at Emory University in Atlanta, Georgia.

Trump won Georgia in 2016 and the state had voted for Republicans in every presidential election since 1992. But in 2020, Biden the Democrat won Georgia. After the loss, Trump mounted a pressure campaign, personally telephoning Georgia’s top elections official, Secretary of State Brad Raffensperger, to urge him to invalidate votes for Biden. ‘There’s nothing wrong with saying that, you know, um, that you’ve recalculated’, Trump said on a leaked recording of the phone call.

Trump adviser and lawyer Rudy Giuliani appeared before the Georgia legislature to make baseless allegations of widespread voter fraud and claimed a video showed election workers handling suitcases of unlawful ballots. Giuliani’s accusations were debunked, and he was ordered to pay the workers, who had suffered death threats and harassment by Trump supporters, nearly $150m in damages for defamation.

In August 2023, Trump and a group of 18 co-conspirators including Giuliani were criminally charged with attempting to fraudulently overturn the election in Georgia. Trump, Giuliani and all of the defendants but three – Jenna Ellis, Kenneth Chesebro and Sidney Powell – have pleaded not guilty. The trial has been delayed.

But beginning in 2021, legislators began an overhaul of the state’s voting laws. While the changes were purportedly aimed at instilling confidence in elections, the targets of the new legislation were Black and minority voters, according to voting rights advocates.

Called the Election Integrity Act of 2021 (S.B. 202) (the ‘Act’), the Georgia legislation sharply curtailed the use of drop boxes, introduced a requirement for identification documents for absentee ballot requests and reduced the time frame in which voters can make those requests. It expanded early voting in rural counties but banned mobile voting stations, which were used in the city of Atlanta in 2020.

Because of the Covid-19 pandemic, voters in 2020 were urged to use postal ballots to avoid having to go to public spaces where others were gathered. Moreover, the overwhelming number of absentee ballots in Georgia came through drop boxes in Atlanta, a majority Black and Democratic city.

With Trump publicly opposing these measures, many Republican voters didn’t use postal ballots while Democrat voters did. The result in Georgia was a skew of about two-thirds Democrats to one-third Republicans voting absentee. This brought suspicion and accusations from state Republicans after the election, even though a hand count and audit of signatures on 15,000 absentee ballots found no fraud.

‘They used all of the elements of the Big Lie, saying we’ve got to do something about these absentee ballots’, Anderson says. ‘The MAGA [Make America Great Again, Trump’s campaign slogan] base was absolutely determined to push through voter suppression legislation that looked at every method that African Americans had used to access the ballot box to flip the state of Georgia blue, and to flip the US Senate’. Proponents of the law have argued it expands voting hours, while they deny it suppresses voting.

The law also gives the legislature more control over the state board, sidelining the Secretary of State. In a close and disputed election such as 2020, these changes could give legislators the ability to manipulate which ballots are disqualified, potentially changing the outcome of a future election, critics say.

The Act also made it illegal to provide food or water to people standing in line to vote within 150 feet (46 metres) of a polling station. Critics complained that the rule discriminates against Black voters, who typically can wait up to ten times longer in Georgia to vote.

Passage of the Act was widely condemned inside and outside of Georgia. President Joe Biden called it an ‘atrocity’ and ‘Jim Crow in the 21st Century’, a reference to laws enacted in southern states after the US Civil War to enforce racial segregation. Major League Baseball moved its annual All-Star Game to another state. Georgia-based corporations Coca-Cola and Delta Airlines denounced the legislation as ‘unacceptable’.

Matt Kaiser

Senior Vice Chair, IBA Criminal Law Committee

The Arizona ‘microcosm’

Another state where Democrats and Republicans are battling over election rules is Arizona, which Trump lost in 2020. The Republican-led Arizona legislature conducted a controversial review of voting in the city of Phoenix but found no fraud and confirmed Biden’s election.

Kari Lake, a former television newscaster and Trump ally who campaigned for governor in 2022 and lost, is again seeking state-wide office by running for the US Senate. In common with Trump, she continues to spout the lie that the 2020 presidential election was rigged. In January, she claimed at a convention of state Republican activists that Arizona’s elections ‘are a corrupt mess’.

‘Arizona is a microcosm of what's going on nationally for the Republican Party’, says Robert J McWhirter, a constitutional law expert and a practicing civil rights lawyer in Phoenix, Arizona. ‘This stuff about voter fraud is a solution looking for a problem. There is not widespread voter fraud.’

The Arizona legislature has passed dozens of bills that critics say would have restricted voter access and interfered with the nonpartisan administration of elections. Democratic governor Katie Hobbs, elected in 2022, vetoed most of them.

Notably, in March, a US federal judge in Phoenix upheld parts of a new Arizona state law enacted under the prior governor that requires voters to show proof of citizenship when registering to vote. The US Justice Department had challenged the law, claiming that it violates federal civil rights and voting registration laws. Critics say it discriminates against thousands of people who registered before the law was enacted, though proponents have argued the legislation will boost confidence in elections.

‘Generally, these attempts to suppress the vote have backfired because it's caused progressive groups and Democrats to get much more involved in getting out the vote’, McWhirter says.

Beyond Arizona and Georgia, if the presidential election contest is close, it’ll probably come down to vote counts in Michigan, Nevada, Pennsylvania and Wisconsin.

Jan Baran
Partner, Holtzman Vogel Baran Torchinsky & Josefiak

The outlook for litigation

Presaging the legal battles ahead, Trump and the Republican National Committee (RNC) – the top fundraising and political arm of the Republican Party – are organising to take advantage of the Republican-led new voting laws while challenging legislation put in place by Democrats.

Trump named Michael Whatley, a former general counsel of the RNC, to head the organisation. Whatley is a Trump loyalist who supported Trump’s claims in 2020 that Democrats had engaged in ‘massive fraud’. He shares power with Trump’s daughter-in-law Lara Trump, who was named Co-Chair. The two quickly purged long-time RNC staff and installed a new, more aggressive legal team.

Former Trump White House cabinet secretary Bill McGinley and Trump lawyer Christina Bobb now lead the RNC’s newly announced legal efforts focused on ‘election integrity’. Bobb has previously echoed Trump’s false claims of election fraud and wrote a book entitled, Stealing Your Vote: The Inside Story of the 2020 election and What it Means for 2024.

Tellingly, another election lawyer, Charlie Spies, who had been named RNC general counsel in March, resigned in May amid criticism from Trump allies. Spies had cast doubt in 2021 on Trump’s conspiracy theory that electronic voting machines had switched votes to Biden. In a post on Truth Social (a social media platform owned by Trump Media & Technology Group) that was later deleted, Trump celebrated the departure of Spies and called the well-regarded Republican lawyer a RINO – a Republican in Name Only.

Chris LaCivita, Trump’s combative campaign manager and newly instated RNC Chief of Staff, has said that the new legal team ‘will initiate battle on election integrity from an offensive instead of defensive posture’. Indeed, the RNC has set up an ‘election integrity office’ with 55 staffers and plans to hire hundreds of lawyers in key battleground states. These legal troops will look to file for injunctions and recounts in a push to ensure tighter post-2020 election rules are followed.

‘There are various levels of legal challenges in election results’, says Steven Richman, Vice Chair of the IBA Bar Issues Commission and a member of law firm Clark Hill in Princeton, New Jersey. ‘Some challenges are based on alleged interference or intimidation, such as alleged improper calls to election officials, or campaign activity not outside the proper distances from the voting place, or improper conduct by poll workers and challengers’. Other challenges, he adds, ‘are more institutional, such as the laws and rules that govern an election, including whether or not voter identification, and what kind, is required’.

‘It’s important to distinguish between those [challenges] based solely on a political agenda that attacks […] an entire system from those that are more of a meat-and-potatoes kind of challenge, such as seeking a recount of voting machines at the most basic level’, Richman says.

Now, with the 2024 election campaign in gear, 21 ‘anti-voting’ lawsuits have been brought by Republicans and related political groups, according to Democracy Docket, a group run by Democratic lawyer Marc Elias. ‘Every week, there are new court cases and decisions that will dictate how we vote and whose vote gets counted’, Elias has written.

Trump’s new RNC legal team has filed a pair of lawsuits challenging rules in Nevada that allow mail ballots, some without postmarks, to be accepted up to four days after Election Day. The RNC has also joined lawsuits against drop boxes in Wisconsin and the counting of those mail ballots in Pennsylvania that aren’t returned inside secrecy envelopes. In March, the RNC sued Michigan Secretary of State Jocelyn Benson over procedures for verifying signatures on absentee ballots. It claims that the state is violating the law by failing to maintain clean and accurate voter registration rolls. Benson, in response, has called the action a ‘meritless lawsuit filled with baseless accusations that seek to diminish people’s faith in the security of our elections’.

In Arizona, Republicans are suing the state in a bid to force election officials to purge voter registration rolls. Three other Republican lawsuits are challenging Arizona’s established election procedures.

Meanwhile, Elias and others such as the NAACP’s Legal Defense Fund (LDF) – a well-established legal organisation fighting for racial justice – are filing or joining dozens of lawsuits challenging voting restrictions in key states. ‘We are doing everything we can – organising, community education, going into the courts, and trying to enact different policies – to give community members the tools to fight these laws and changes that are really being used to target voters of colour’, says John Cusick, assistant counsel for the LDF.

Shifting sands

‘Our elections are pretty good. We are in many ways a functioning, first world democracy’, says Matt Kaiser, Senior Vice Chair of the IBA Criminal Law Committee and a founding partner at Kaiser law firm in Washington, DC. ‘The challenge is that there have been so many attacks on our voting systems recently and our elections process is so diffuse and the federal government’s ability to administer elections is so limited that it makes it incredibly difficult’.

Kaiser adds that, at the same time, there have been significant changes in the way that people vote. ‘It is just a really, incredibly dynamic environment’, he says. ‘The sands keep shifting’.

Worryingly, with the rise in litigation, the 2024 election could be decided by ‘small, bizarre’ questions about which ballots are counted or not, Kaiser warns. It’s happened before. In 2000, the US Supreme Court ruling gave a contested election to Republican George W Bush over Democrat Al Gore. With the Electoral College tied, the outcome hinged on hand counts of paper punch-card ballots in one state: Florida. Thousands of ballots with a paper ‘chad’ still hanging by a corner were not properly counted by machines. Gore sought a hand recount that may have given him the win. But the Court ruled Florida’s ‘safe harbour’ deadline (for all counting to be completed) applied. The justices stopped the recount, clearing Bush’s path to the White House.

Republicans now point to the 2022 midterm election, when votes were cast for members of Congress but not the President, as evidence that the new state laws are strengthening ‘election integrity’ while increasing opportunities for voters to vote. Georgia, for example, saw a reduction in the number of absentee ballots but a dramatic increase in early voting.

‘Let’s not forget the benefit of the 2022 election, which may not have been a presidential election, but it was highly contested for the House of Representatives and one-third of the Senate’, says Jan Baran, a partner at law firm Holtzman Vogel Baran Torchinsky & Josefiak in Washington, DC, which has represented Republicans in election lawsuits. ‘People seemed to walk away from those elections with a degree of confidence they were fairly administered’. Baran believes that the US is ‘going to have an extension of, in my view, well-administered elections in 2024 because of our experience in 2020 and the intervening debates, and resolutions’.

To no small degree, that will depend on how courts handle this next round of election litigation.

William Roberts is a US-based freelance journalist and can be contacted at wroberts3@me.com

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