The Republican Party and its conservative allies are engaged in an unprecedented legal campaign targeting the American voting system. Their wide-ranging and methodical effort is laying the groundwork to contest an election that they argue, falsely, is already being rigged against former President Donald J. Trump.
The campaign involves a powerful network of Republican lawyers and activist groups, working loosely in concert with the Republican National Committee. Many of the key players were active in Mr. Trump’s attempt to overturn the results of the 2020 election.
But unlike the chaotic and improvised challenge four years ago, the new drive includes a systematic search for any vulnerability in the nation’s patchwork election system.
Mr. Trump’s allies have followed a two-pronged approach: restricting voting for partisan advantage ahead of Election Day and short-circuiting the process of ratifying the winner afterward, if Mr. Trump loses. The latter strategy involves an ambitious — and legally dubious — attempt to reimagine decades of settled law dictating how results are officially certified in the weeks before the transfer of power.
At the heart of the strategy is a drive to convince voters that the election is about to be stolen, even without evidence. Democrats use mail voting, drop boxes and voter registration drives to swing elections, they have argued. And Mr. Trump’s indictments and criminal conviction are a Biden administration gambit to interfere with the election, they claim.
“As things stand right now, there’s zero chance of a free and fair election,” Mike Howell, a project director at the Heritage Foundation, a conservative think tank, said at an event this week. “I’m formally accusing the Biden administration of creating the conditions that most reasonable policymakers and officials cannot in good conscience certify an election.”
The legal campaign, which has come into focus as Republicans prepare to nominate Mr. Trump at their convention next week, has been quietly playing out in courts, statehouses and county boards for months, and is concentrated in critical battlegrounds.
In Nevada and several other states, Republicans have sued to tighten rules for voting by mail — currently a method preferred by Democrats. In Georgia and Arizona, they have filed lawsuits that, if successful, would effectively give local election board members the right to hold up certification and even conduct their own personal investigation into the vote.
Republicans say that their only goal is to bolster the system and build trust, especially after changes during the coronavirus pandemic made it easier to vote.
“The way we honestly think about this is making sure that every legal vote is counted legally,” an R.N.C. spokeswoman, Claire Fortenberry Zunk, said. “It essentially empowers all Americans, so that at no point in the system would you have someone whose vote is diluted or compromised.”
But Democrats, civil rights lawyers and even some Republicans say that the threat is clear: Even if the cases fail, Mr. Trump’s allies are building excuses to dispute the results, while trying to empower thousands of local election officials to disrupt the process. Already, election board members in several states have moved to block certification of primary election tallies, including in a major swing county in Nevada last week.
“The fundamental principle of the system — the rule of law, the finality of the results, the ability to challenge an election but then accept the results if the challenges fail — is being stood on its head,” said Ben Ginsberg, a longtime Republican election lawyer who broke with his party over Mr. Trump.
Mr. Ginsberg and other election lawyers said they were confident that the system had enough checks and balances to hold, as it did in 2020.
Calling the effort “unlawful and undemocratic,” the Biden campaign has put in place a field army of lawyers to counter the Republican moves in every swing state, a level of concerted legal activity that has never happened this early in an election cycle.
Some 2020 Veterans Return
A partisan tug of war over voting laws ahead of a major election is nothing new. The parties have long clashed in the courts over rules they hope may give them an edge. But the scope and the leadership of Republicans’ current campaign sets it apart.
The effort involves a sprawling network of groups and includes some people that worked to overturn the results in 2020 — a campaign that led to federal and state criminal charges against Mr. Trump and several of his associates.
Mr. Trump’s own homeland security officials called that election the “most secure in American history”; his attorney general said there was no evidence of substantial fraud, and Mr. Trump’s legal team lost all but one of the dozens of lawsuits it filed disputing results.
But this year, the R.N.C. has worked to align Trump allies behind a more coherent strategy. Its new leaders — Michael Whatley and his co-chair, Lara Trump, who is Mr. Trump’s daughter-in-law — have vowed to turn the party more fully toward preventing what they call “cheating.”
They have installed a new “senior counsel for election integrity” at the Republican Party headquarters: Christina Bobb, a lawyer indicted in Arizona on charges related to Mr. Trump’s attempt to dispute his defeat there. She has pleaded not guilty.
Cleta Mitchell, a Republican lawyer who was part of Mr. Trump’s push to overturn his loss in Georgia now runs the Election Integrity Network, a group that is advising activists on how to challenge voters’ eligibility.
The Heritage Foundation has provided institutional support and planning. Last month, the group war-gamed exercises exploring scenarios in a disputed election.
“What we need is everybody to be in the same boat, in the same direction and rowing at more or less at the same time,” Mr. Whatley told reporters recently, adding that the party was working with governors, legislators and local boards of election. “Where we can’t get what we need in terms of our comfort level with state laws, we’re going to be filing those lawsuits.”
An Avalanche of Litigation
The party says it has filed more than 90 lawsuits on election rules. Allied groups have filed dozens more. Both Democrats and Republicans described the legal blitz as the most lawsuits ever filed before an election.
Many of these cases are continuing or caught up in the appeals process. Final decisions are unlikely to be reached until closer to the election. But the outcomes could affect election results.
In Nevada, the R.N.C. is suing to do away with a grace period that allows mail ballots sent by Election Day to be counted if they arrive within four days of the election. Voting rights advocates say that window ensures that voters aren’t disenfranchised by postal delays. Republicans argue, however, that the grace period runs counter to the concept of a national “Election Day” and only increase chances that votes cast late are counted.
In 2022, 40,000 ballots from the state’s two most populous counties arrived within that grace period; the margin of victory for the Democratic incumbent in the Senate, Catherine Cortez Masto, was 8,000 votes.
In a similar case in Mississippi, the R.N.C. has filed a federal lawsuit seeking to eliminate the state’s five-day grace period — an attempt, lawyers with the Biden campaign believe, to get the case before the nation’s most conservative federal appellate court, the Fifth Circuit, and invalidate grace periods altogether.
Activists across the country, often with guidance from the Election Integrity Network, have been challenging voter registrations en masse, often using faulty databases to question voters who are eligible to vote.
Democrats are particularly concerned about the tactic in Georgia, where a new law has made it far easier for one voter to challenge another’s registration. Two days after the new law went into effect, the Republican county chair in Bibb County challenged the eligibility of 243 voters.
Marc Elias, a leading Democratic election lawyer, said he believed that the Republican lawsuits were not about curbing fraud, and not just about keeping Democratic votes from being counted.
The disputes provide a pretext for pro-Trump election officials to “challenge votes and not have votes accurately counted and certified,” he said.
Short-Circuiting the System
The process of making a winner official is slow, local and, largely, pageantry.
First, thousands of election boards collect tallies from the voting precincts, certify their accuracy and send them up to the state capitals. There, the numbers are audited, certified again and sent to Washington ahead of the Electoral College vote in mid December. Even after that, Congress must sign off on the final result at a ceremony presided over by the vice president, on Jan. 6, before a new administration can take power.
State and federal laws define this process as ceremonial — prescribing that those involved “shall” certify the vote tallies upon receiving them and checking them. Disputes over alleged fraud or major errors are typically left to recounts and courts.
Voting against certification was practically unheard-of in presidential elections until late in 2020, when Trump allies sought to block certification in Wayne County, Mich. — and until Jan. 6, 2021, when thousands of protesters sought to block Congress from certifying the election results.
Since then, members of state and local boards have voted against certification more than 20 times across seven states, according to a list compiled by Protect Democracy, a nonpartisan group that tracks antidemocratic trends in the United States. In most cases, the board members were outvoted or, when they weren’t, courts or officials forced them to certify the vote. (In one case, in Arizona, two board members who voted against certification have been criminally charged, pleading not guilty.)
But Republicans and their allies are working to redefine the board members’ duties.
Election lawyers are carefully watching a dispute in Fulton County, Ga. A pro-Trump group, the America First Policy Institute, filed a lawsuit last month on behalf of a conservative member of the local elections board who has refused to certify primary results this year.
The board member, Julie Adams, who has been active with the Election Integrity Network, said that she was not provided with the reams of voter information she wanted to personally determine the results were accurate and not marred by fraud.
The lawsuit said that she was within her rights to conduct such an investigation because, as part of her oath, she swore to “prevent fraud, deceit and abuse.”
The Democratic National Committee, which intervened in the case, countered that “members have no discretion to refuse to certify election results.” Giving them that power, they wrote in court papers, “would invite chaos.”
Chaos has already erupted in northern Nevada’s Washoe County, where a fight over certification has prompted a moderate Republican board member to vote against certifying her own victory.
The board member, Clara Andriola, was seen as a firewall against a right-wing, anti-certification faction on the commission. A group connected to the Democratic Association of Secretaries of State even ran ads supporting her in her primary race, worried that her defeat would jeopardize a smooth approval of presidential results in the fall.
Two weeks ago, Ms. Andriola voted with the two Democrats to certify the election results showing her winning handily. But on Tuesday, after a recount affirmed her victory, she voted against certification, bending to pressure from right-wing protesters.
Nevada’s attorney general and its secretary of state, both Democrats, have since asked the State Supreme Court to compel the commission to certify the election as required by law and to clarify that local officials do not have the right to refuse to advance the process.
The results, meanwhile, remain in legal limbo.
A Ticking Clock
After Trump supporters rioted on Jan. 6, 2021, to disrupt the congressional certification of Joseph R. Biden Jr.’s victory, leaders in both parties set out to prevent a repeat. In 2022, Mr. Biden signed legislation making it harder to challenge the certification process.
The law set a new hard deadline for states to submit their final certified results; this year’s is Dec. 11. The date was intended to give judges and states incentive to settle disputes before the votes at the Electoral College and Congress.
But the law does not say clearly what would happen if a state misses its deadline.
“When deadlines are so tight, delay could really put us in a land of some legal uncertainty,” said Jessica Marsden, a lawyer who oversees elections work at Protect Democracy. “Bad actors might try to exploit that.”
For instance, if the situation in Washoe unfolded the same way this fall, Nevada would have less than a week to resolve the dispute. A resolution could require a court order — which could be followed by appeals or, potentially, by a refusal to abide a judge’s orders.
If Mr. Biden were to win Nevada, and if the state failed to send complete results on time, Ms. Marsden said that Republicans in the House and the Senate could seize on a missed deadline to justify rejecting Electoral College votes. (Under the law, a majority in both the House and Senate is needed to reject a state’s electors.)
“There is not a legal way to disrupt certification,’’ said Wendy R. Weiser, of the Brennan Center, a group that tracks election issues. “But if people in these positions believe there are fewer limits on what they can do and they have support for taking actions against the law, that will increase the likelihood we end up in a crisis situation.”
Biden campaign advisers say they believe this is unlikely; the law and the courts would intervene to keep the process on course before any worst-case scenarios could come to pass.
For his part, Mr. Whatley, the co-chair of the Republican National Committee, was noncommittal when reporters recently asked him if his party would seek to block certification in any states this fall.
“We’re not going to cross any of those bridges right now,’’ he said.
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