Former Trump lawyer John Eastman.
The fight over who will become the next president is unlikely to end on Election Day if Vice President Kamala Harris prevails in the upcoming election.
We know this because of former President Donald Trump’s behavior after he lost the 2020 election. Trump didn’t just incite an insurrection at the US Capitol on January 6, 2021; he and his fellow Republicans filed a wave of lawsuits seeking to skew the election results. And, with the help of some of the most unscrupulous lawyers in the country, Trump devised a fantastical scheme to replace legitimate members of the Electoral College with his own loyalists.
Yet, while more shenanigans are almost certainly inevitable if Trump comes up short in November, the legal landscape in 2024 is less favorable to these kinds of dirty tricks than it was in 2020. The biggest reason for that is that lawyers thrive on novelty, while courts are supposed to follow previous precedents when deciding new cases.
In 2020, the world was suffering from the unusual calamity of the pandemic, which raised all sorts of legal questions that courts had not confronted before. That gave judges who were inclined to rule in Trump’s favor —Republicans control the federal judiciary — more leeway to place a thumb on the scale favoring the Republican Party and to do so without being accused of violating a clear precedent to the contrary.
In 2024, by contrast, large swaths of Americans are no longer cowering in their homes, fearful that a trip to the polls could infect them with Covid-19. Both the law and the nature of the two parties’ coalitions have shifted in ways that make it harder for Republicans to toy with who is able to cast a ballot.
That’s not to say anyone should expect Harris to simply be able to walk into the White House, even if she wins fair and square. If Harris prevails, Trump lawsuits seeking to overturn her victory are all but inevitable, as could be attempts to repeat the January 6 insurrection.
Indeed, some of this legal maneuvering has already begun. On Wednesday evening, for example, the Pennsylvania Supreme Court rejected the Republican Party’s claim that certain voters who cast mailed-in ballots improperly should effectively be disenfranchised, rather than being given another opportunity to vote on Election Day. It is probably inevitable that this case will be appealed to the US Supreme Court. If the highest Court embraces the GOP’s argument, that could potentially flip the result of an extraordinarily close election to Trump — but only if the winner of the presidential election all comes down to Pennsylvania, and the Pennsylvania race is very close.
It is difficult to predict in advance how many ballots will be impacted by this case, which is known as Genser v. Butler County Board of Elections, during the 2024 cycle, but we’re probably only talking about enough votes to increase Harris’s vote count by maybe a few thousand.
Overall, moreover — even taking into account the Genser case — Trump’s lawyers have less to work with this year than they did four years ago.
Novel legal issues breed bad lawThe worst place to be, if you are a lawyer, is arguing a truly novel case before a hostile panel of judges.
Democrats already got a taste of this nightmare earlier this year. There’s never been a viable presidential candidate who incited an insurrection. Nor has there been one who, while previously serving as president, committed very serious crimes while in office. These unique facts produced unprecedented court proceedings, including a Colorado Supreme Court decision holding Trump ineligible for the presidency because of his role in the insurrection and a criminal prosecution of a former president.
The Republican-controlled Supreme Court, however, seized upon these unique cases to hand down two extraordinarily pro-Trump decisions: one that effectively neutralized the Constitution’s ban on insurrectionist presidents for the duration of the 2024 election, and another that gave Donald Trump sweeping immunity from criminal prosecution for crimes he committed using the power of the presidency.
The only good thing that can be said about these decisions is that they are in the past. Trump’s criminality did raise novel legal questions, but those questions have now been resolved. It’s hard to see how Trump’s lawyers could leverage the fact that he incited an insurrection in 2020 to challenge the result of the 2024 election, or to change how that election is conducted any more than he already has.
The pandemic is over. That’s bad news for Trump’s legal team.The 2020 election itself raised a host of novel legal questions, but those questions largely emerged from the highly unusual circumstances created by the Covid-19 pandemic. During the pandemic, many voters understandably did not wish to vote in an indoor polling place where they could potentially catch the coronavirus from a fellow citizen. So state and federal officials altered election procedures in many states to make it easier to cast ballots by mail.
In Wisconsin, for example, a federal judge ruled that certain mailed ballots that arrived after Election Day should still be counted — the state was struggling to process an unprecedented number of requests for such ballots, and many were not mailed until very close to that state’s April 2020 judicial election. In South Carolina, another judge temporarily blocked a state law requiring absentee voters to have another person sign their ballot as a witness. In Pennsylvania, the state supreme court ruled that many ballots received up to three days after the November election would be counted.
Significantly, however, all three of these decisions received a chilly reception from a Republican Supreme Court. In the Wisconsin case, the Republican justices ordered the state to toss out ballots that were not postmarked by Election Day — even though many ballots had no postmark at all. In the South Carolina case, the Supreme Court reinstated the state law.
The Pennsylvania Supreme Court’s decision, meanwhile, wound up surviving contact with the US Supreme Court, but probably only due to an accident of timing. The case reached the Court during the interregnum between Democratic Justice Ruth Bader Ginsburg’s death and Republican Justice Amy Coney Barrett’s confirmation, and the eight remaining justices split 4-4 on whether to toss out the contested Pennsylvania ballots.
Ultimately, the Court dismissed the case as moot, in large part because Biden won the state by a large enough margin that it wouldn’t have mattered if these ballots were thrown in the trash.
But the fact that Biden’s margin of victory was enough to overcome this lawsuit does not mean that the democratic process would have played out fairly if the election had been closer. Had Pennsylvania been close enough that the fate of these contested ballots would have decided it, the Republican justices could have easily made up a reason to hand the election to Trump — the Court’s right flank even had a legal argument ready to go, and the novelty of the legal issues presented by the pandemic would have left Biden without any clear precedent he could use to criticize such a ruling.
In any event, few, if any, of the novel legal questions that arose out of the pandemic are still an issue in 2024. And even if Republicans do succeed in having many mailed ballots tossed out, they are unlikely to gain as much of an advantage from such a decision as they would have in 2020.
One reason Republican lawyers targeted vote-by-mail rules in 2020 was that Democrats were far more likely to vote by mail than Republicans — an MIT report on the 2020 election found that “[s]ixty percent of Democrats, compared to 32 percent of Republicans, reported voting by mail.” So Trump’s lawyers knew they could potentially change the election result by maximizing the number of mailed ballots that got tossed out.
This year, by contrast, early data suggests that Republicans are less reluctant to vote absentee than they were in 2020. And more Democrats in states that offer both in-person and mail-in voting are expected to vote in person because there’s no longer a pandemic forcing them to remain at home.
To be sure, Republicans apparently still believe they can gain an advantage by making it harder to vote by mail. Why would the GOP have asked the Pennsylvania Supreme Court to disqualify many voters who cast a mailed ballot in the Genser case, after all, unless Republicans believed that Democrats still have an edge among people who vote by mail? But this edge is likely to be smaller than it was in 2020.
More broadly, beyond the insurrection-related issues that the Republican justices already resolved in Trump’s favor, Trump’s lawyers have yet to identify similarly novel legal questions that could give the courts sweeping authority to reshape how the 2024 election is conducted.
That doesn’t mean that the courts will behave themselves, especially if the 2024 election is close, but it does give Trump’s legal team less material to work with than they had in 2020.
Low-propensity voters increasingly favor RepublicansFor most of the 2000s, the battle lines in the voting rights wars were pretty clearly defined: Republicans tended to support legislation that made it marginally more difficult to vote, while Democrats fought in both court and in state and federal legislatures to make it easier to cast a ballot.
As recently as 2021, for example, Georgia Republicans reacted to Biden’s 2020 victory in that state by tightening down the state’s voter ID law, limiting the use of drop boxes to collect ballots, banning volunteers from giving food and water to people waiting in line to vote, and paving the way for a MAGA takeover of the state’s board of elections. Democrats almost universally opposed this Georgia law.
Similarly, on the US Supreme Court, Republican justices have consistently voted to uphold restrictive election laws and to dismantle laws like the federal Voting Rights Act, which are intended to hinder these kinds of restrictions.
For the moment, at least, neither party appears to be backing away from its historic position on voting rights. But it is less clear than it was, say, 15 years ago, that these kinds of restrictions benefit Republicans. It’s possible that, to the extent that they matter at all, some of these laws might give a slight boost to Democratic presidential candidate Kamala Harris.
One reason why it is now less clear that these sorts of laws harm Democrats is that we have more data than we did a dozen years ago. In the 2010s, for example, voting rights advocates and even many journalists and academics warned that strict voter ID laws (which require voters to show photo ID at the polls in order to vote) could significantly diminish Democratic turnout. Election forecaster Nate Silver, for example, predicted that a strict voter ID law in Pennsylvania “would reduce President Obama’s margin against Mitt Romney by a net of 1.2 percentage points” in the 2012 election.
More recent studies, however, suggest that voter ID is a wash. A 2019 paper, for example, found that “the laws have no negative effect on registration or turnout, overall or for any group defined by race, gender, age, or party affiliation.”
Even if these laws do work as intended, it’s no longer clear that Republicans benefit from marginal restrictions on the franchise — whether that restriction is a voter ID law or something similar like limits on early voting or voting by mail.
Since Trump arrived on the scene, however, Democrats have made gains among high-propensity voting demographics such as highly educated voters and suburbanites. Trump, meanwhile, has made inroads with many of the same groups that were once believed to be discouraged from voting by laws like voter ID.
Republicans, in other words, now have less incentive to pass laws or push lawsuits that will make it harder to vote on the margins, and if they do use these tactics, they could come to regret it. At the very least, it is now far from clear that Republicans can skew elections by placing small but significant legal hurdles between voters and the polls.
Congress fixed an incomprehensible election lawUntil recently, the process Congress used to count and certify the Electoral College’s votes for a new president was governed by the Electoral Count Act, an 1887 law signed by then-President Grover Cleveland. If you enjoy pain, you can read the full text of this law here. I can assure you that it is so labyrinthian it might have been drafted by a minotaur.
After Trump’s failed insurrection in 2020, however, a bipartisan coalition of lawmakers enacted a new law governing the vote-counting process, which reads more like a modern-day statute. That takes away Trump’s legal team’s ability to hunt for ambiguous passages in the old law and claim that they require Trump to be placed back in the White House.
Admittedly, one of the most glaring problems with the old law is unlikely to be an issue in 2024. The old law stated that the vice president shall preside over the congressional session where electoral votes are counted but did not specify the vice president’s specific duties. In 2020, Trump and his lawyers tried to claim that then-Vice President Mike Pence had the power to effectively toss out many of Biden’s electoral votes and install Trump as the winner.
The new law, by contrast, clarifies that the vice president’s duties are almost entirely “ministerial in nature.”
In any event, Kamala Harris is currently both the sitting vice president and the Democratic nominee for the presidency, so the likelihood that she would toss out some of her own electoral votes is vanishingly small. But the new law clarifies that a future vice president cannot use the counting process to change the result of an election.
That clarification — and the others — should give Trump’s lawyers less to work with if they want to try to overthrow the result of the 2024 election.
vox.com