For weeks after the 2020 election, then-President Donald Trump and his allies blanketed Georgia and other swing states with lawsuits as they sought to overturn the results and contested the rules of a runoff that ultimately handed control of the U.S. Senate to Democrats.
Four years later, Georgia again finds itself at the center of an election-year litigation blitz. The issues are different. But an early start and a likely flurry of postelection lawsuits means this year’s torrent of cases could rival or surpass 2020 for the volume and ferocity of legal battles.
Partisans and advocacy groups also have filed at least 22 lawsuits in Georgia since May contesting State Election Board rules, state laws, the conduct of local officials, the list of presidential candidates and other election-related matters. At least six lawsuits have been filed this month alone, and more seem likely in the run-up to the election.
Three of the cases have trials or hearings this week, including two that could determine whether the State Election Board exceeded its authority by approving a series of new rules over the objection of local election officials.
Legal observers expect some of the lawsuits to succeed and many to fail. But some believe victory in court may not always be the goal. They fear some lawsuits will be used to sow doubt about the legitimacy of the election.
“What it looks like is a campaign to peddle misinformation,” said Leah Tulin, senior counsel at the liberal-leaning Brennan Center for Justice’s democracy program. “A lot of the same lies and misinformation that we see in the broader political arena are being deployed as allegations in these lawsuits.”
Successful or not, the lawsuits may shape the conduct of another close presidential election that — as in 2020 — may continue in the courts long after Election Day.
Elections in the court
Election litigation is nothing new. For decades, advocates have filed lawsuits to enforce voting rights statutes and to challenge redistricting plans, voter identification laws and other aspects of election administration.
But litigation really took off after the 2000 presidential election, said Hans von Spakovsky, a former Justice Department lawyer and senior legal fellow at the conservative Heritage Foundation. That’s when Republican George W. Bush defeated Democrat Al Gore thanks to a razor-thin victory in Florida, where litigation — including a U.S. Supreme Court decision that stopped a recount — played a big role in the outcome.
Four years ago, another close presidential election touched off a fierce legal battle in Georgia and other swing states as Trump fought to overturn the results. All told, partisans filed some three dozen lawsuits in Georgia in the weeks following the election.
Trump and his allies claimed widespread fraud cost him the election. Numerous investigations concluded that fraud claims were false, and Trump’s lawsuits fared no better.
Trump allies and the Republican Party also targeted emergency election procedures rolled out during the COVID-19 pandemic, such as widespread use of absentee ballots and ballot drop boxes. The lawsuits sought to overturn Democrat Joe Biden’s victory and to change the rules for the January 2021 U.S. Senate runoffs.
Courts rejected those claims as well, though the General Assembly has since tightened procedures for absentee ballots and limited the use of drop boxes.
In addition, voting rights groups filed lawsuits seeking to prevent hundreds of thousands of people from being purged from Georgia voting rolls. Their efforts to prevent widespread voter challenges also failed, though counties by and large have dismissed such challenges for insufficient evidence.
Four years later, the rules of a close presidential election are again being contested in court. Much of the attention has focused on the State Election Board, where a trio of Republicans have approved new rules for the upcoming election.
One rule would require county election boards to conduct a “reasonable inquiry” into the accuracy of the results before certifying them. Another would allow local board members to review all election-related documents before certification.
Two lawsuits — one filed by Democrats and the other by Republicans — say the rules would allow local boards to exceed their duties under state law. Democrats argue that election boards must certify results, leaving fraud investigations to law enforcement and the courts. The Republican suit says the State Election Board, a group of unelected political appointees, shouldn’t have the authority to make dramatic changes to election policies. Both lawsuits are set for trial this week.
The Republicans amended their lawsuit last week to include another new rule requiring local election workers to hand count ballots — but not votes — after polls close on election night. Critics say the rule would burden election workers, leading to human errors in the hand count. They say such errors could be exploited by Trump or other candidates trying to sow doubts about the outcome.
“This is about, ‘how can we make counting legally cast ballots more burdensome and prone to error?” Georgia State University law professor Anthony Michael Kreis said.
At a meeting last week, State Election Board member Janice Johnston said the rules are intended to improve confidence in elections, not undermine it. She decried what she sees as “character assassination, media murder and lawfare lynching.”
“I have no agenda, no plan, no plot,” Johnston said. “And I find it rather disconcerting to be accused of such things in public, in mainstream media and on social media.”
Other lawsuit targets
Other court battles focus on procedures for removing ineligible people from voting rolls.
Republican activists accused Fulton County of failing to properly police its voting rolls but later withdrew their lawsuit after the county detailed the ways it complies with the law. The Republican Party made similar allegations in a lawsuit against DeKalb County.
Meanwhile, civil rights groups have filed lawsuits challenging a new Georgia law that empowers activists who have filed mass challenges to voters’ eligibility.
Other Georgia election litigation includes:
- Disputes over whether local election boards can refuse to certify results if they believe they’re not accurate. A recent Atlanta Journal-Constitution investigation found at least 19 local election board members have voted not to certify results in recent years.
- Continuing litigation over whether Georgia’s Dominion Voting Systems machines are secure, plus a new DeKalb County Republican Party lawsuit — set for trial Monday — that claims the encryption keys for the system are not stored securely. The secretary of state’s office argues the system is secure.
- A flurry of lawsuits over which presidential candidates will appear on Georgia ballots. The state Supreme Court last week ruled that votes for presidential candidates Cornel West and Claudia De la Cruz will not count, though their names will appear on ballots. Only votes for Trump, Democrat Kamala Harris, Libertarian Chase Oliver and Green Party nominee Jill Stein will count in official results.
Critics say the State Election Board rules and some lawsuits could lay the groundwork for postelection lawsuits seeking to overturn the results.
“This is not about legitimately changing policy to make elections better in advance of this election,” said David Becker, executive director of the Center for Election Innovation and Research, an organization that works with election officials to build voter confidence. “This is about setting the stage for claims that the election was stolen.”
Von Spakovsky, the Heritage Foundation lawyer, denounced what he sees as a “hysterical overreaction” to the election board rules. And he sees partisan interests behind much of this year’s litigation. He said Democrats are challenging election security laws, while Republicans are trying to enforce them.
“It’s clearly an effort, I think, by different parties to go after rules they think might advantage or disadvantage them,” Von Spakovsky said.
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