Arizona, Pennsylvania and Wisconsin were the top three most litigious states in 2022 in regards to elections. A Democracy Docket report published last week revealed that this trio of swing states accounted for over 40% of all the election and voting lawsuits filed last year. Arizona topped the list, with 35 lawsuits. It was followed by Pennsylvania with 21 and Wisconsin with 16 lawsuits.
In Wisconsin, three times as many lawsuits sought to restrict voting access compared to those seeking to expand or protect voting rights. A similarly lopsided phenomenon took place in Pennsylvania. In contrast, there were slightly more pro-voting than anti-voting lawsuits in Arizona, but a majority of the former were in response to problematic laws or local election officials shirking their duties. This includes seven separate lawsuits, including one from the U.S. Department of Justice, filed against a single Arizona law enacted in March 2022. The legal activity in these key states during 2022 illustrates a larger litigation strategy employed by the Republican Party and its allies, as well as the competing priorities of groups looking to shape election policy.
Arizona, Pennsylvania and Wisconsin are consequential battleground states.
It’s no coincidence that the states with the most voting and election-related litigation are all fairly populous purple states with high-stakes federal and state elections. In 2016, former President Donald Trump won all three states in his Electoral College path to the White House. In 2020, all three turned blue and were critically decisive in President Joe Biden’s win. On Jan. 6, 2021 — after the physical assault on the U.S. Capitol — 147 Republican lawmakers voted against certifying the election results in two states: Arizona and Pennsylvania.
Though 2022 was not a presidential election year, Arizona, Pennsylvania and Wisconsin saw close races for varying statewide positions, with election denying candidates running for governor, secretary of state and attorney general. Additionally, all three states had U.S. Senate seats at stake in the midterm elections.
The Republican Party and Republican-aligned legal groups accounted for a large number of these lawsuits, often targeting mail-in voting.
In the face of a rapidly-evolving public health crisis, states greatly expanded access to mail-in voting during the 2020 election. In the years since, the Republican Party, led by Trump, has only intensified its attack on this popular method of voting as fraudulent and improper. The offensive against mail-in voting has swept related policies — including those governing drop boxes, ballot curing and more — into its wake.
In 1991, Arizona enacted a law allowing all voters to vote by mail without an excuse. It passed with significant bipartisan support in both houses of the Arizona Legislature and was signed into law by a Republican governor. Yet last year, over 30 years since enactment and despite the fact that the voting option remains extremely popular, the Arizona Republican Party filed two lawsuits to end no-excuse mail-in voting. Both lawsuits were resoundingly rejected by state courts.
Outside of courtrooms, Republicans’ lies about drop boxes and ballot collection caught up to them when supporters turned rhetoric into action. In the weeks leading up to the 2022 midterm elections, right-wing vigilantes — some of whom were armed — staked out drop boxes in certain Arizona counties, following and taking photos of voters. Consequently, two lawsuits invoked federal laws that protect against voter intimidation to stop these vigilante groups.
The Arizona Republican Party’s legal challenges against its no-excuse mail-in voting law are clear cut examples of attempts to curtail this method of voting. Though similar GOP hypocrisy has been on display in Pennsylvania, a large portion of lawsuits filed in 2022 in the commonwealth sought to undermine mail-in voting by focusing on niche election administration questions. The technicality of which mail-in ballots are counted or rejected, whether voters can fix mistakes and the rules governing how local officials manage drop boxes are often overlooked, but consequential.
A recurring litigation theme concerned small mistakes on otherwise valid mail-in ballots: ballots missing or with incorrect handwritten dates next to the voters’ signatures on the outer envelopes, ballots without an outer “secrecy” envelope or ballots received late due to mail delays. Under Pennsylvania law, all of these small mistakes might be the reason for a ballot to be rejected; pro-democracy groups argue that disqualifying these ballots violates the First and 14th Amendments and Civil Rights Act of 1964 given that these defects are unrelated to a voter’s eligibility. In contrast, the Republican National Committee (RNC), National Republican Congressional Committee and Republican Party of Pennsylvania want wrongly dated or undated mail-ballots to always be discarded.
Here’s the one-two punch: Republicans worked hard to ensure that mail-in ballots were rejected over small errors and then tried to prevent voters from having the ability to rectify those errors. On Sept. 1, 2022, just 20 days before Pennsylvania counties sent voters their mail-in ballots, the RNC and company filed a lawsuit to block county boards of elections from implementing cure procedures during the midterm elections. Curing is the process by which a voter may be notified of a technical mistake with their mail-in ballot and attempt to fix that mistake. (A judge shut down the RNC’s request.)
Ahead of Election Day, a conservative legal group founded by two high-level members of the Trump administration, Mark Meadows and Stephen Miller, filed lawsuits over the rules governing drop boxes in Chester and Lehigh counties. The lawsuits sought to add more restrictions, effectively making it much more challenging for local officials to employ drop boxes in a convenient manner.
The Associated Press recently reported that over 16,000 mail-in ballots in Pennsylvania were disqualified during the 2022 midterm elections, with nearly 70% of the rejected ballots coming from Democrats. Against the backdrop of this partisan disparity, it’s clear why the Republican Party has placed institutional focus and resources on undermining mail-in voting in the Keystone State.
The biggest legal story out of Wisconsin this year: The Wisconsin Supreme Court banned drop boxes. The shocking 4-3 decision stemmed from a lawsuit filed in 2021 and the conservative justices on the court reached some particularly harmful conclusions. Nonetheless, before this opinion was released, the Thomas More Society — a far-right legal organization — filed five nearly identical lawsuits in the state’s five largest cities on the same day this past May. The lawsuits claimed that the use of “unmanned,” unmonitored drop boxes was not permitted under Wisconsin law. (They were ultimately dismissed after the Wisconsin Supreme Court’s decision.)
Wisconsin is unique in its election administration, vesting this authority in a bipartisan body called the Wisconsin Elections Commission (WEC). The six-person commission stayed busy this election year and was flooded with near-constant lawsuits focused on the minutiae of election administration. One lawsuit successfully challenged WEC guidance that permitted election officials to fill in missing information, such as an incomplete street name, on the witness certificates that accompany mail-in ballots. Two more lawsuits from pro-voting groups then tried to gain further clarity into what constituted an incomplete address for the purpose of ballot rejection. Conservative legal groups also challenged WEC for its rules regarding ballot spoiling, voter registration forms and an online portal for requesting mail-in ballots.
The most litigious states in 2022 were all hotbeds for election denier candidates and local officials caught up in conspiracy theories.
Overwhelmingly, pro-democracy candidates prevailed at the ballot box in 2022. The most extreme election deniers lost key races in Arizona, Pennsylvania and Wisconsin (save incumbent Sen. Ron Johnson (R-Wis.)). But, in Arizona specifically, defeated far-right candidates did not go down with a fight: Gubernatorial candidate Kari Lake, secretary of state candidate Mark Finchem, attorney general candidate Abe Hamadeh, 1st Congressional District primary candidate Josh Barnett and 3rd Congressional District candidate Jeff Zink all contested their losses in court. Two additional lawsuits sought to stop election certification and overturn the results of the governor race. All of these claims have since been rejected by courts, though two lawsuits remain ongoing.
It’s not just candidates who get caught up in election conspiracy theories. This year, local officials, often in deep-red regions in Arizona and Pennsylvania, excluded certain valid ballots in election certification totals, delayed certification or refused to certify election results altogether and flouted state law to proceed with conspiracy-driven hand counting procedures. In all of these instances, good government groups or Democratic officials sued to ensure that the rogue officials complied with state law.