WASHINGTON − Former President Donald Trump has declined to commit to accepting the results of the 2024 election, and lawsuits challenging state voter rolls provide a roadmap of how he could fight the outcome.
Just last week, Trump posted on social media that election cheating should “CEASE & DESIST,” threatening prosecutions “at levels, unfortunately, never seen before in our Country.”
After losing the 2020 election, Trump allies filed more than 60 lawsuits challenging the results before a violent mob of supporters attacked the Capitol to prevent the transfer of power. While those efforts failed to overturn Trump’s defeat, the mistrust sown in the election still reverberates, current lawsuits from Republican groups and other Trump allies could lay the groundwork for a similar post-election effort.
A leader of one Trump-aligned group behind these lawsuits told USA TODAY it is already − before Election Day − planning to sue over 2024 election results.
“We feel compelled to file in defense of this beautiful country,” said Marly Hornik, who co-founded United Sovereign Americans in 2023.
The already-filed lawsuits often claim swing states have violated a 1993 federal law, the National Voter Registration Act, or a 2002 law, the Help America Vote Act, by allowing potentially ineligible voters to join or stay on voter rolls. There are at least 19 cases, “many of them in battleground states,” said Leah Tulin, senior counsel in the Democracy Program of the Brennan Center for Justice.
The lawsuits build on election fraud claims that Trump has been making – without proof – since the very first time he ran for president.
In late November of 2016, Trump claimed without evidence that he only lost the popular vote to Hillary Clinton that month because millions of people voted illegally. At his Jan. 6, 2021, “Stop the Steal” rally, Trump similarly alleged that noncitizens – who aren’t eligible to vote in federal elections – cast 36,000 ballots in Arizona in 2020.
In this election, the Trump campaign is again suggesting the election may be rigged by noncitizen voting.
“While radical Democrats have allowed non-citizen voting in California and D.C., states such as Walz’s Minnesota have no system to keep non-citizens off the rolls, resulting in an open door to illegal voting,” Trump campaign spokesperson Karoline Leavitt said in a statement.
Litigants include the Republican National Committee and state Republican parties in Nevada and Arizona, which claim there are more registered voters than adult citizens.
Studies by both the liberal Brennan Center for Justice and the libertarian Cato Institute have found there is almost no evidence of noncitizen voting.
Several lawsuits over voter rolls have been dismissed, and some were filed within 90 days of the Nov. 5 election, which is a period under the National Voter Registration Act when states generally can’t remove people from their registration lists.
For some, those realities raise the question of why the lawsuits are being filed at all, and especially – in many cases – so close to an election.
“The natural conclusion is it’s to set the stage for claiming an election was stolen,” David Becker, executive director of the nonprofit Center for Election Innovation & Research, which works with Republican and Democratic election officials to strengthen confidence in elections, told USA TODAY.
More: Trump-aligned group is already planning lawsuits over election results
Voter roll lawsuits
In Arizona, the state Republican Party chair sued the Democratic secretary of state, arguing that voter registration rates in the state “are implausibly high.”
United Sovereign Americans has sued in nine states, claiming widespread registration data errors – such as registrations on Sundays or “questionable” registrant addresses – that it says could reflect widespread fraud.
In a Pennsylvania lawsuit, for example, the group alleges there are nearly 3.2 million violations out of almost 8.8 million total registrations, which “cast into doubt” the reliability and credibility of 2022 midterm results.
Lawyers for Pennsylvania’s secretary of the state called the group’s questions about dates on paperwork “factually baseless” in a court response.
Hans von Spakovsky, a fellow at the conservative Heritage Foundation who served on a Trump administration commission on election integrity, told USA TODAY he believes evidence of noncitizen voting is so limited because it’s rarely prosecuted.
Von Spakovsky said when he served on the Fairfax County election board in Virginia, the board identified 100-150 cases in which legal residents who weren’t citizens appeared to have voted, and the local prosecutor and Justice Department didn’t pursue charges.
However, a Brennan Center study suggests such referrals rarely occur. It looked at 42 jurisdictions that accounted for 23.5 million votes in the 2016 election, and uncovered only 30 referrals of suspected noncitizen voting for further investigation or prosecution.
Earlier this month, Georgia’s Republican secretary of state, Brad Raffensperger, announced results from what he said was “the most comprehensive citizenship check conducted in the history of Georgia.” It found only 20 noncitizens out of 8.2 million registered voters. All 20 have been purged from the rolls and referred for potential prosecution.
“Right now, our voter lists are as clean as they’ve ever been, they’re as accurate as they’ve ever been in American history,” Becker, of the Center for Election Innovation & Research, said.
The lawsuits are unlikely to dramatically impact election processes ahead of November, according to several election law experts. Not every lawsuit even seeks that kind of result.
For example, a lawyer for Republicans in the Nevada lawsuit said at a June court hearing, “We’re not trying to speed up the case for the sake of obtaining (information) before the November election.”
Several other voter roll lawsuits have been filed within 90 days of the November election, which is a period under the National Voter Registration Act when states generally can’t remove people from their registration lists – a restriction that election lawyers versed on the law would know.
“The fact that so many lawsuits have been brought within that 90-day period is a great indicator that there is actually no intention of cleaning up the list,” Becker said.
Many of the lawsuits compare names on voter registration lists to U.S. Census data, which sometimes reveals there are more registered voters than adults in a particular area. The Republican lawsuit in Nevada said that “three Nevada counties have more registered voters than they have adult citizens who are over the age of 18. That number of voters is impossibly high.”
However, several factors can lead to voter rolls appearing more populated than Census data in a given place. The Census is an estimate that generally measures where people sleep at night, while voter eligibility accounts for a person’s permanent home – which is why members of Congress and college students often vote in their home states.
“(With) any mobile or transient population, there can be a disconnect between where they are absolutely correctly registered to vote and where the census counts them,” Justin Levitt, a Loyola Marymount law professor and former Biden White House advisor on democracy and voting rights, told USA TODAY.
In addition, voter rolls are, by legislative design, supposed to over-include rather than under-include voters because the National Voter Registration Act requires states to wait between two and four years before removing someone from the list after learning they likely moved away.
In dismissing a Republican National Committee lawsuit on Oct. 22, Michigan federal Judge Jane Beckering wrote that the committee’s “census data alone, even assuming its reliability, does not plausibly indicate that Michigan is violating” the National Voter Registration Act.
The RNC itself admitted there is “no evidence” the targeted counties experienced above average voter participation compared with the rest of Michigan or the country, Judge Beckering added.
Repetition as strategy?
Even if the lawsuits fail in court, they are often flagged to supporters on social media and in press releases and fundraising appeals
Experts say “as many as 2.7 million illegals could vote in November,” wrote Lara Trump, the former president’s daughter-in-law and Republican National Committee co-chair, in an October fundraising email.
Tulin from the Brennan Center this is “an age-old sort of strategy of (suggesting) where there’s smoke, there’s fire.”
“The litigation is essentially talking points that are consistent with the talking points that are being used in the political arena,” Tulin said. “The fact that they haven’t been successful in the courts doesn’t really make a difference, because it’s just part of the repetition, right? ‘If we say it enough, then people will start to believe it.'”
Trump and his allies lost about 60 lawsuits filed in the wake of the 2020 presidential election, when Trump made unsubstantiated claims of widespread voter fraud. Several recounts and audits have confirmed the real estate mogul lost the election.
Still, many Americans believe Trump won. A CNN poll conducted in July found that about 38% of Americans believe Biden didn’t legitimately receive enough votes to win the presidency, including 69% of Republicans and people who lean Republican.
“The actual outcome of the legal challenges does not seem to have a bearing on whether or not the rhetoric creates mis- and disinformation that is believed by the public,” said Sylvia Albert, director of Voting and Elections for Common Cause, a good-government watchdog, told USA TODAY.
Supporting efforts to block election certification?
United Sovereign Americans has asked courts across multiple cases for an order blocking states from certifying 2024 results until the organization’s demands to remove alleged voter roll errors are met.
The group’s requests to courts mirror efforts to block certification outside of court since the 2020 election: Local officials across several battleground states have voted against certifying election results dozens of times since 2020, although those efforts haven’t yet resulted in overturning an outcome. Several lawsuits in Georgia center on whether local officials must certify election results by the state’s deadline.
Trump made some similar efforts in 2020, telling two local Michigan Republican election officials they would look “terrible” if they signed documents certifying their county’s election results, according to recorded phone call audio that was reviewed by the Detroit News.
“The concern is that (the lawsuits) will then be used down the road for folks to point to to say, ‘Look, we came to the courts and we asked for relief, and we didn’t get it, and now, because we didn’t get it, there was this massive voter fraud and noncitizen voting and all of this stuff, and you should now throw out the election results or not count ballots or delay certification,'” Tulin said.
Von Spakovsky dismissed concerns that the pre-election lawsuit arguments about voter rolls could actually overturn results, saying that requires proof of actual, specific ineligible votes that flipped the election.
“Those are very tough lawsuits to win. You’re not going to get that in just a general lawsuit over maintenance of the voter registration,” he said.
Many of the Trump supporters who stormed the Capitol on Jan. 6, 2021, believed the 2020 election had been stolen.
“We will stop the steal,” Trump told them in a rally hours before the attack, while saying he knew they would go to the Capitol “to peacefully and patriotically make your voices heard.”
“There is a large risk that the continuing noise teaches a sizable portion of the American public – incorrectly, falsely lies to them and convinces them – they shouldn’t have faith in their elections,” Levitt said.
This article originally appeared on USA TODAY: How Trump’s election strategy involves voter roll lawsuits
