We are living in unprecedented times for democracy and courts. Already this year, the number of voting and election-related lawsuits filed is outpacing 2020, and we’re still three weeks out from Election Day. While courts certainly play an important role in protecting our democracy, the outsized focus on them is largely a recent phenomenon.
Consider that it wasn’t until 1972 that the U.S. Supreme Court ruled that a state court could oversee a recount in a federal election. Thirty years later, the Supreme Court ruled in Bush v. Gore that the U.S. Constitution requires state courts to apply uniform ballot counting procedures. That decision was the culmination of a handful of court cases and a partial recount of some Florida counties.
During most of that time frame, states were implementing more options to make voting easier — early voting and mail-in voting were widely adopted by red and blue states alike. Congress expanded the Voting Rights Act (VRA), passed a law to ensure greater access to voter registration and guaranteed the right to vote for military and overseas voters. After the 2000 election, Congress passed a bipartisan law to improve election administration and help states purchase new voting equipment.
With the election of former President Barack Obama in 2008, attitudes toward voting changed. Republicans became concerned that a new coalition of young voters of color would leave the GOP as a permanent minority party. Republicans focused their attention on restricting voting in subtle, but important ways.
Progressive advocates still hoped that the struggle for voting rights would be bipartisan, as was true just years prior. In 2013, Justice Antonin Scalia addressed this hope, lamenting that he was “fairly confident [the VRA] will be reenacted in perpetuity.” It was well outside the mainstream — and even politically toxic — for Republicans to undermine the legitimacy of our free and fair elections. The full force of voter suppression efforts had yet to take shape.
Then it all changed again with former President Donald Trump. In the run up to the 2016 election, Trump-acolyte Roger Stone created a vote monitoring effort called Stop the Steal to lay the groundwork to claim that a victory by Hillary Clinton was illegitimate. One of the first acts of the new president was to falsely claim that the reason he lost the popular vote was because three million votes were illegally cast in California. That was followed by a short-lived voter fraud commission that did not find evidence of fraud.
It is likely that historians will point to the 2020 election as the turning point — or breaking point — for elections and democracy. Trump campaigned by attacking our system of elections. After he lost, he vilified election officials and used the courts to try to undermine the results. When that failed, he incited a violent insurrection.
Trump made democracy a partisan issue. Republicans can no longer support free and fair elections and expect to survive their primaries. If they accept unfavorable election results, they will be demonized. If they contest them, they will be made heroes.
The 2020 election put enormous pressure on courts as well. We saw an explosion of voting and election litigation both before and after Election Day. According to Democracy Docket’s tracking, 150 voting and election cases were filed in 2020. Many of the cases involved the application of voting changes amidst the COVID-19 pandemic. The total for 2020 also includes more than 60 failed lawsuits that were filed by Trump and his supporters to overturn the election results after Election Day.
We now know that 2020 was not an outlier. The same impulse that led Republicans to contest the results of the 2020 election has caused them to enact new suppressive laws and litigate aggressively against voting in 2022. As of Oct. 17, there have already been 148 new lawsuits filed this year — and it is only mid-October. By comparison, at this point in 2020, only 61 lawsuits had been filed. We are only two new lawsuits shy of the total number filed in all of 2020.
As we head towards the midterm elections, the sharpest increase in voting litigation is coming from election deniers and those seeking to subvert election results. Inspired by Trump’s anti-voting, “Big Lie” rhetoric, this year we have seen more than double the number of anti-voting cases brought by the GOP and its allies in 2020.
With a new constellation of well-funded anti-voting organizations — many of which were founded by members of Trump’s team — the number of anti-voting lawsuits is growing rapidly and will only continue to increase through Election Day and beyond. As we saw in 2020, and will certainly see in 2022, Republicans’ attack on voting will not stop after Election Day. They will use every tool available to contest elections and avoid concessions.
For decades, Congress and state legislatures were the prime battleground for fights over voting rights and election laws. As the last resort, courts were where groups would go to combat voter suppression and protect voting rights when the political process failed them. Since 2020, however, we have witnessed a profound transition.
Stymied at the ballot box, Republicans are now turning to courts directly to undo voter protections and enable election subversion. We see this in the avalanche of new anti-voting litigation and in the fringe claims Republicans are advancing.
For now, courts have held fast to their role as the protector of democracy. But as Republicans continue to inundate courts with anti-voting lawsuits, this last line of defense could start to crumble. Make no mistake: This is exactly what the GOP is hoping for.