Patrick Marley for the NYT:
In the United States, election season has turned into lawsuit season.
One legal challenge in Michigan seeks to remove thousands from the voter rolls. Two lawsuits in Wisconsin seek to have more absentee ballots counted, even if they are missing some information. In Arizona, a judge is reviewing a new law requiring voters to provide proof of citizenship to register to vote. And in Pennsylvania, lawsuits challenge the state’s no-excuse absentee voting law, as well as the policy to count undated mail-in ballots.
Disputes over redistricting, voter IDs, voting hours, recounts and other election-related policies have long run parallel to political campaigns, but the numbers are rising.
The increase began after the Supreme Court decided the 2000 presidential election, and the trend reached a high in 2020, when the coronavirus pandemic prompteda host of new voting rules. The pace quickened after that election, when Donald Trump and his allies brought a slew of lawsuits that unsuccessfully sought to deliver him a second term as president.
Those battles appear to have established a new baselinefor election litigation. Election experts say courts have the power to clarify vague laws or policies and resolve key questions before ballots are cast, but many also contend that the barrage of lawsuits increases the chances of last-minute rulings that can spur voter confusion.
Dozens of disputes are underway and could explode after this fall’smidterm elections because recounts are certain in close races and some Republican candidates have left open the possibility that they won’t accept the results if they lose even by sizable margins. And lawyers are already gearing up for the 2024 presidential election.
“Planning for litigation is now a key part of campaign strategy,” said Joshua Douglas, a professor of law at the University of Kentucky. “You can’t run a campaign without also having your litigation strategy set up as well.”
Over the past 20 years, the rate of election litigation has nearly tripled, according to a tally by law professor Richard L. Hasen of the University of California at Los Angeles. For the 2020 cycle, election litigation increased by more than 25 percent from the previous presidential cycle.
In 2020, political parties spent $66 million on election lawsuits, more than quadrupling the $15 million they spent in 2016, according to a review by University of Iowa law professor Derek Muller. And in the 18 months after the 2020 presidential election, the parties raised a record $121 million for litigation, he found.
In a recent law review article, Muller called for reducing litigation by making election laws more uniform and ending a policy that allows donors to give far more money to political parties if they earmark the funds for litigation.
“The notion that it’s really the lawyers rather than the voters who are sort of dictating the rules of the game I think is just a negative,” Muller said in an interview….
More litigation is not necessarily bad, particularly if it is filed well before voting occurs, said Rebecca Green, an associate professor of law at William & Mary.
“I actually think that the more litigation before elections, the better in the sense that everybody can bring out their concerns about laws or policies or practices,” she said. “The more that that can happen before elections, the better. Let’s resolve all of those problems in the lead-up to 2024 so that we all know what the rules are and those conflicts are resolved prior to the election.”