In the Press

Ben Berwick, counsel for Protect Democracy, a group focused on combating authoritarianism nationwide, said he thinks Republicans know they are likely to lose these lawsuits and will use those defeats to foment distrust after Election Day.

“[They will] claim that we don’t really know the true outcome, that certain categories of ballots should be thrown out as illegitimate, that there is fraud, that noncitizens are voting, that the voter rolls can’t be trusted,” Berwick said. “And I think we will see that both as the basis to argue that this county shouldn’t certify their results, and also probably as a basis to bring post-election litigation.”

“The law is very clear in every state that certification is a mandatory duty,” said Ben Berwick, the head of election law and litigation at the advocacy group Protect Democracy. The role of those officials, he said, is “simply to affirm that the canvas and tabulation have been completed and that the results are official.”

“Even unsuccessful attempts to block certification can cause delays, and even small delays in the very tight post-election timeline can have us cascading effect,” Berwick said.

The volume and last minute timing of the cases, along with statements from party officials and Trump allies, suggest a broader aim behind the effort: Laying the groundwork to challenge results after the vote. The claims in the lawsuits may well be revived — either in court or in the media — if Mr. Trump contests the outcome.

“Many of these cases reinforce particular narratives, particularly those about immigrants and voting,” said Jessica Marsden, a lawyer at Protect Democracy, a nonpartisan group that monitors elections. “Putting false claims in the form of a lawsuit is a way to sanitize and add legitimacy.”

Court watchers speculate that fights over mail-in ballot deadlines and dating absentee ballots will make their way to the justices.

Jessica Marsden, director of impact programs and counsel for free and fair elections at Protect Democracy, said the 2022 ruling in Moore v. Harper could play a role in the 2024 elections. In Moore, the justices held that state courts could review state legislatures’ election laws. The court also created an opportunity for federal courts to intervene.

“The size of this loophole is sort of unknown at this point in time, but there are cases percolating that will raise this issue and sort of test the size of that loophole,” Marsden said.

The Electoral Count Reform Act establishes concrete deadlines for state level certification between the election and the joint session in Congress. It also raises the threshold for challenging electors and clarifies that the vice president’s role as presiding officer is a purely ministerial one — the vice president can not unilaterally reject electoral votes and certification.

Summing it up, Holly Idelson from Protect Democracy said, “I think the ECRA bumper sticker could have been make January boring again.”

Emily Rodriguez, communications and advocacy strategist with Protect Democracy, which describes itself as a “non-partisan and anti-authoritarian group,” said the trend started in 2022. “Delaying official election tallies may result in missed federal and state reporting deadlines, cause confusion and suspicion among voters and imperil the democratic process,” she said. “All uncertainty about who won elections is risky, especially in these intense times.”

Voting rights experts say Republicans are hyping up the issue now to sow doubt about the election results if they lose.

“The fact that we are hearing this so loudly from so many different corners tells me that it’s part of a concerted strategy that they think could be successful in shaping attitudes towards the election this fall,” said Jess Marsden, legal counsel for Protect Democracy, a nonprofit that works to counter authoritarianism.

“The very slim majority for Democrats in the House has made it difficult for them to get anything done,” said Kyle Miller, a policy advocate with the nonpartisan group Protect Democracy. And unless the Senate flips or becomes evenly split, giving the Democratic lieutenant governor a tie-breaking vote, Miller said, “we’re going to see more of the same” next year.