THE US ELECTION LITIGATION BATTLEFIELD

Democrats and Republicans have been 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. Since the 2020 election, 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 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. Indeed, the US presidency is not decided by popular vote. Rather it’s determined through the Electoral College, a constitutional structure that allocates delegates state by state. Republican-controlled legislatures have enacted sweeping new election laws. Democratic-run states likewise have passed new legislation expanding voter access. November will see the first presidential election held  under new voting and election law changes’ now being fought over in courts that, by law, don’t necessarily hold the right to vote paramount.

There are various levels of legal challenges in election results. 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 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.

Note

After the election, any challenge to the outcome would likely end up with the justices which is controlled by a 6-3 conservative majority. The election will likely come down to seven swing states where polls show Trump and Harris neck-and-neck: North Carolina, Pennsylvania, Nevada, Michigan, Georgia, Wisconsin, Arizona.  A razor-close result in any of those places could put the justices in the hot seat, much as they were 24 years ago when they ended the recount process in Florida and effectively declared George W. Bush the president-elect. If the election is very close — like Bush versus Gore close — so that the margin of victory is smaller than the potential margin of error  then of course, there will be a ton of lawsuits, and those are going to end up eventually at the Supreme Court.