Almost everything pundits expected from the midterm elections proved incorrect. They expected an electoral “red wave;” instead Democrats won key Senate and House races. They predicted that election deniers would win pivotal gubernatorial and secretary of state races; nearly all of them lost.
A new report by Democracy Docket shows that much of the conventional wisdom about voting and election litigation was similarly wrong. Drawing on a comprehensive database of every significant democracy-related lawsuit filed in 2022, the report details how Democrats and progressive groups were able to protect voting rights and democracy in court. It also shows how conservatives and the Republican Party, and more specifically the Republican National Committee (RNC), tried to execute its own strategy to undermine free and fair elections that ultimately failed.
At the start of 2022, conventional wisdom suggested that we were unlikely to see a repeat of the high volume of voting litigation sparked by the COVID-19 pandemic and former President Donald Trump’s candidacy in 2020. That proved a faulty assumption.
In fact, 2022 saw an increase in the total number of voting and election lawsuits — from 150 in 2020 to 175 in 2022. While Arizona, Pennsylvania and Wisconsin saw the most cases, litigation was spread from coast to coast across 31 states.
Progressives executed a three-part litigation strategy: (1) challenge new voter suppression laws or rules; (2) litigate existing laws, practices and procedures that negatively impact a significant number of voters and (3) intervene to oppose litigation efforts by Republicans and conservatives aimed at undermining the franchise or subverting elections.
The first two parts of this strategy led to 82 separate lawsuits brought by Democratic committees and pro-voting organizations in 2022. This was a steep increase from 2020 when only 55 pro-voting cases were filed by these left-leaning groups. From a challenge to a new Arizona law that could lead to mass voter eligibility challenges to a fight in Georgia that enabled 70,000 citizens to cast their ballots on a Saturday before the Senate runoff election, those 82 lawsuits focused on protecting the right to vote and ensuring free and fair elections.
The last part of the left’s litigation strategy — what I called “babysitting” Republicans in court — was equally important and ultimately successful. This meant joining and opposing lawsuits filed by anti-voting organizations to ensure they were defeated.
Heading into 2022, it was clear that conservative actors and Republicans were going to try to use courts to restrict voting rights and undermine democracy. Part of their reasoning had to do with a perceived conservative tilt in the judiciary. Republican politicians were also campaigning on the “Big Lie,” so bringing litigation made good political sense as it showed their voters that they were still fighting in court against a “rigged” system.
More fundamentally, however, Republicans found themselves unable to persuade a majority of the electorate to support their candidates. This sparked a conviction among many on the right that their best hope to win elections rested on restricting who can vote and shaping the electorate.
While Republicans and their allies filed more election-related lawsuits than Democrats and progressives in 2022, the results of those lawsuits tell a different story. According to Democracy Docket’s data, of the 175 total consequential orders handed down last year, Republican and anti-voting forces prevailed a mere 20% of the time. In fact, almost half of the victories for voters we saw last year were a result of failed lawsuits brought by anti-voting litigants.
These lopsided results from 2022 speak to a longer-term trend in democracy-related litigation. Contrary to conventional wisdom, it is Republicans and their allies who are most often turning to courts. And, more often than not, courts are protecting democracy.
That is not to say that there are no additional threats on the horizon. Republicans are not giving up on their long-term legal strategy. They continue to enact new voter suppression laws like the one that Ohio Gov. Mike DeWine (R) signed last week.
More worrisome, conservatives continue to amass an arsenal of resources to spend on attacking democracy in court. I wrote recently about a constellation of groups raising tens of millions to undermine free and fair elections through the courts. That constellation will only continue to grow in a presidential election cycle.
The Republican Party, which has so far been nearly entirely ineffective in court, also seems focused on trying to upgrade the quality of their cases and perhaps their legal teams. Among the issues in the race for RNC chair is how to improve their litigation efforts in advance of 2024.
Then there is the U.S. Supreme Court. There is no question that the Supreme Court has become more conservative and hostile to voting rights. But here, too, the data offers perspective, if not hope. The Supreme Court’s actions regarding democracy-related litigation over the course of 2022 were a mixed bag. Out of eight shadow docket orders related to either redistricting or voting rights litigation, five came down on the pro-voting side.
Yet, in 2022, the Court heard two cases that could significantly impact the future of voting in this country. One was a redistricting case from Alabama that centers around applying the Voting Rights Act to when creating minority-opportunity districts. The other is the so-called independent state legislature (ISL) theory case from North Carolina.
Each of these cases has the potential to limit voting rights in meaningful ways that should not be overlooked. However, neither will end the central role that courts now play in protecting democracy.
It is worth noting that in the Alabama case, it was a three-judge panel with two judges appointed by Trump and one originally appointed by former President Ronald Reagan that blocked Alabama’s congressional map, finding it is discriminatory against Black voters. Throughout 2022, we saw similar instances where conservative appointees nevertheless ruled to protect democracy.
Meanwhile, oral argument in the ISL theory case suggested that the high court is likely to reject the most extreme form of theory and instead settle on something that will continue the traditional role state courts play in adjudicating election cases.
Interestingly, while many on the right are advancing the novel ISL theory to limit state court involvement in election cases, state courts were the preferred venue for Republicans and conservatives seeking judicial intervention in elections. Nearly 60% of the election cases filed in state courts in 2022 were brought by conservative and Republican organizations.
By contrast, Democrats and progressives were far more likely than Republicans and their allies to file their election cases in federal court. Two-thirds of the cases filed in federal court were filed by Democrats and progressive groups.
Just as 2019 and 2020 saw an increase in election ligation from 2017 and 2018, we too should expect the next two years to see an increased reliance on courts to adjudicate the rules of voting, counting and certifying elections. As I often say, democracy is on the docket. But at least for now we can confidently say that it was the voters who won in 2022.