Lawyers on both sides face off in unprecedented election litigation

• The 2024 election is already the most contested in US history.
• Republicans and Democrats have been involved in a lot of pre-election lawsuits.
• Trump’s allies are fighting most of the legal battles, and experts expect more to come after the election.

With 2024 US presidential election just a day away, the high-stakes race is already the most contested in modern American history.

For months, Republican allies of the former president Donald Trump and the vice president’s Democratic allies Kamala Harris have been embroiled in a flurry of pre-election lawsuits, with Republicans filing most of the legal challenges in key battleground states. And while pre-election litigation may not seem like a fundamental part of democratic US presidential elections, the 2024 cycle has shown it to be a key political strategy.

“Probably the most disheartening part of the whole litigation experiment is that it has little or nothing to do with democracy and credible elections,” said John Hardin Young, an election law expert and senior counsel at the Washington, DC law firm Sandler Reiff Lamb. Rosenstein and Birkenstock.

“It’s gamesmanship,” said Young, who said litigation “has become part of the political strategy.”

“It is, in a way, a prelude to the post-election challenges where the political message has been spoiled along with the litigation,” he added.

Legal experts told Business Insider that some of the lawsuits filed by Republicans could set the stage for potential court challenges after the U.S. election. November 5.

But it all really depends on how close the election is between Trump and Harris, experts said. National surveys suggests the race for the White House will be a tight one.

The Republican National Committee said the party’s “election integrity” operation, announced earlier this year by the Trump campaign, has been involved in 130 lawsuits in 26 states this election cycle.

Many of the processes focus on managing postal voting, overseas ballots and electoral rolls. Democrats intervened in a lot of them.

When the RNC announced the “election integrity” program in April, it said it would deploy more than 100,000 volunteers and advocates to all battleground states.

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“This gives voters confidence that their vote will be counted correctly and, in turn, inspires voter turnout,” RNC spokeswoman Claire Zunk told BI in a statement. “While Democrats continue to meddle in our elections and dismantle electoral guarantees, we protect the vote for all Americans.”

The Trump campaign declined to comment for this story, referring BI to Zunk’s statement. Harris’ campaign referred BI to an earlier interview with a campaign spokesman discussing litigation strategy.

Harris campaign memo says Republican lawsuits aim to ‘sow doubt’

Harris campaign operatives said in a recent memo to “interested parties” that the Republican lawsuits are “part of an effort to cast doubt” on the results of the 2024 election.

“Trump Republicans believe they have a better chance of winning when fewer people vote and fewer votes are counted. That’s why they’re spreading misinformation and filing dozens of baseless lawsuits in an obvious attempt to suppress voter turnout,” the Oct. 11 memo, obtained by Business. Insider says.

The memo was written by Dana Remus, president Joe Biden’s former White House counsel who now heads the Harris campaign’s legal team, and Monica Guardiola, interim co-executive director of the Democratic National Committee.

It says Democrats are “prepared and entering this final period with a playbook to protect the integrity of our elections — before and after November 5.”

Democrats, they say, have already intervened in “dozens of baseless Republican lawsuits to debunk their lies and win in court.”

The DNC and the Harris campaign have scored 15 court victories in the past three weeks, mostly after intervening in lawsuits brought by Republicans, the campaign told BI.

The memo says the upcoming election is already “the most contentious in American history,” but that the campaign is the most prepared.

The 2020 general election previously held the record as the most contentious in modern history.

In the two-month period from Nov. 3, 2020, to Jan. 6, 2021, plaintiffs filed 82 lawsuits in 10 states and the District of Columbia, an analysis of post-election litigation by the Stanford-MIT Healthy Elections Project found.

American Bar Association said fewer than 40 pre-election lawsuits had been filed before Election Day 2020.

As of Nov. 1, a record 203 voting and election cases are pending in 40 states, with 25 lawsuits filed in the battleground state of Georgia alone, Democratic election attorney Marc Elias, who is also on the legal team of harris campaign, said on X.

And more is expected.

The Republican legal strategy is more organized than in 2020

In recent weeks, Republicans have faced a series of losses in court, but also some successes.

A federal judge in the swing state of Pennsylvania last month dismissed a lawsuit brought by a group of Republican congressmen that sought new verification requirements involving overseas and military ballots. Judges in the swing states of Michigan and North Carolina also recently rejected the RNC’s challenges aimed at voting abroad.

The RNC pointed BI to nine recent court victories, including a ruling by a Trump-appointed panel of judges on the 5th U.S. Circuit Court of Appeals that found Mississippi’s law counting of postmarked postal ballots received after election day violated federal law.

Young, the election law expert, called the spate of litigation “part of the political message.”

“The Republican litigation strategy doesn’t seem to follow any particular rule, but it’s really an attempt to throw something against the wall and see if anything sticks,” he said.

But the Republican’s litigation strategy in 2024 looks much more organized than in 2020, when Trump and his allies brought more than 60 lawsuits after Election Day in which he alleged voter fraud in unsuccessful attempts to challenge the results, said Sophia Lin Lakin, a voting attorney at the American Civil Liberties Union. The ACLU is involved in dozens of election-related lawsuits.

“In 2020, it felt awkward and very reactive and improvisational,” Lakin said, adding that Republican efforts now seem more strategic and aimed at laying “a narrative foundation.”

Jason Torchinsky, a partner at the law firm Holtzman Vogel and a Republican election lawyer, told BI that filing lawsuits before the election is an effective strategy.

“Pre-election litigation to set the ground rules is often much more successful than post-election litigation,” Torchinsky said. “Courts are very, very reluctant to show that they determine election results.”

During a Zoom discussion last week, Elias warned that there could be a “period of uncertainty” after Election Day.

“But frankly, there have been periods of uncertainty after elections for many years. It’s just that people are getting more worried about them now,” he said.

“So I think if people vote, they should have confidence that the process will almost certainly go well,” he said.