Republicans Launch a Legal Assault on Democracy

By Marc Elias

Red background with blue tear-off flyer taped in the middle that reads "State of Arizona 2023 Elections Procedure Manual with tear-offs that read "Safe ballot drop-offs," "easier voter registration," empowered counties," "less voter challenges" and then two already teared off.

Republicans have quietly launched a legal assault on our elections. While public attention has been focused on the latest developments in former President Donald Trump’s criminal cases, the GOP has been plotting a bold legal strategy that could have profound consequences for voters, elections and democracy.

In just the first six weeks of 2024, Republicans and their allies have filed ten lawsuits aimed at making voting more difficult and elections less secure. These are not routine challenges to particular aspects of election administration. Collectively, they are breathtaking in their audacity – seeking to curtail the right to vote and undermining the impartial role of election administrators. If successful, they risk overturning the will of the voters in 2024.

Five of those legal challenges have been filed in Arizona. These five come on top of seven anti-voting lawsuits filed in 2023, when Arizona was the state most targeted by right-wing litigation in the entire country.

Most troubling are three new cases targeting the state’s Election Procedure Manual (EPM). The EPM is the election official’s bible, which spells out in detail precisely how elections are to be conducted.

Arizona law requires the secretary of state to publish an EPM once every two years in order to “achieve and maintain the maximum degree of correctness, impartiality, uniformity and efficiency” in conducting elections. Once published by the secretary and approved by the governor and attorney general, the EPM has the force of law.

After working with local election administrators and receiving public input, Secretary of State Adrian Fontes (D), on Dec. 30, 2023, finalized the EPM that will govern the 2024 election. The governor and attorney general approved it the same day.

Rather than celebrate uniform rules that ensure the impartial conduct of elections, Republicans have embarked on a scorched earth litigation strategy to disenfranchise Arizona voters, encourage voter intimidation and subvert the results in the Grand Canyon State.

The fight in Arizona is only the latest example of how Republicans seek to alter and weaken rules to undermine election officials and subvert elections.

Together these three lawsuits target more than a dozen specific EPM provisions that are critical to Arizona holding free and fair elections in 2024. If successful, the cases would force the secretary of state to defy court orders and potentially throw out the EPM in its entirety.

Among the specific provisions being challenged are those that:

  • Make it easier for citizens to register to vote and cast their ballots by mail,
  • Limit the ability to challenge voters and their ballots,
  • Empower counties to prohibit intimidating conduct inside and outside the polling place,
  • Allow voters to access ballot drop-off locations free from “obstruction or harassment” and
  • Clarify that canvassing elections is a non-discretionary duty so that counties cannot arbitrarily reject election returns.

If the GOP and its allies prevail, Arizonans will find voting more difficult and face a system  that subjects them to unwanted challenges and harassment. Election vigilantes will have carte blanche to execute voter intimidation at a scale unimaginable in recent years. County election deniers will be empowered to throw out election results that don’t favor the GOP or comport with their “Big Lie” conspiracies.

These lawsuits are the last desperate gasp of a political party that knows it cannot win free and fair elections. They are also a warning sign of what is in store in Arizona and elsewhere as we get closer to Election Day.

Those of us who fight for democracy must stay vigilant to identify these legal threats and take aggressive action to fight back. I have written before about the imperative of private litigants to bring litigation to improve voting as well as intervening to defend states and counties from these anti-democracy lawsuits. 

But that is only the beginning. Everyone who cares about democracy must pay attention to what is happening to the rules of voting in their communities. 

The fight in Arizona is only the latest example of how Republicans seek to alter and weaken rules to undermine election officials and subvert elections. We are seeing a similar script play out in nearly every state in the country: undermine election administrators, disenfranchise voters and subvert elections.

The other side is planning for November and so must we.

Too often there is no one watching or noticing as democracy is weakened until the election is over and voters have been victimized. Election officials and campaigns play a vital role in this effort, but they cannot and should not do it alone.

Every one of us can play a role in monitoring what is happening in our communities. We can attend county election board meetings, write letters to the editor and contact our elected officials. No action is too small when democracy is at stake.

Every single day between now and Nov. 5 is urgent in the fight for democracy. If we use this time to defeat the attacks we are seeing in states like Arizona, we will increase the chances democracy will prevail.