(CNN) — Republican leaders are encouraging their supporters to vote by mail in this year’s consequential presidential election, even as their party pursues lawsuits and legislation that would make it harder for those votes to count.
The Republican National Committee and the Mississippi Republican Party are suing the Magnolia State to end its practice of including absentee ballots received up to five business days after the election. In the swing state of Pennsylvania, meanwhile, the RNC and other Republican groups have challenged efforts to count absentee ballot envelopes missing a date – and have won so far. The GOP has also jumped into cases in Ohio, Georgia and Florida to defend restrictions on ballot drop boxes enacted by Republican lawmakers that are now being challenged by groups on the left. And in North Carolina, a new law, advocated by Republican lawmakers and in effect for this year’s elections, eliminates what was once a three-day grace period to accept most mail-in ballots.
But amid the legislative and legal attacks on early voting, the GOP’s leadership is nonetheless vowing a robust program to convince Republicans to turn in ballots early, either via in-person early voting or by mail, with a campaign called “Bank Your Vote.”
The dual strategy underscores the tricky balancing act for a party focused on trying to catch up the Democrats’ mail-in voting advantage and, at the same time, appease the party’s presumptive presidential nominee Donald Trump, who still baselessly insists that voting by mail corrupts elections and contributed to his 2020 defeat. Just last week, at a Wisconsin rally, Trump pledged to “secure” the elections with the goal of restricting voting to a single day. And on Friday, Trump and House Speaker Mike Johnson are slated to make what’s billed as a “major” announcement on election integrity at Trump’s Mar-a-Lago club and home.
“The president has been consistent lately, right?” Michael Whatley, Trump’s newly installed chairman of the Republican National Committee, said on Fox News recently. “What he has said is that we would like ultimately there to only be voting on Election Day. But that’s not the law.”
Whatley pledged to “challenge the rules, and then, we have them in place, we will work to make sure that we take advantage of it.”
In the weeks since taking over the party’s helm, Whatley – who previously served as the party’s top lawyer – has outlined an aggressive approach to election litigation, with cases focused not just on mail voting, but trying to broaden the use of identification to cast a ballot, challenging whether election officials have kept voter rolls up to date and pushing back on local jurisdictions that have opened the door to noncitizen voting.
Republican attorneys have filed an assortment of lawsuits across the county that vary in both what types of election rules they target and how seriously election law experts believe the case should be taken. Scoring headlines that seem to demonstrate that the party is addressing the former president’s continued and unfounded warnings of mass voter fraud appear to be just as much part of the legal operation as securing court wins that would move the needle on how the 2024 election is carried out.
But Republicans also are hoping to send a message to election officials – and to the GOP base – that the party’s lawyers are closely monitoring voting procedures.
In the 2020 election, “there was definitely a sense among the Republican Party officials that the RNC got out-lawyered,” Rick Hasen, an election expert at UCLA’s law school, said. This time around, he added, “They are being fairly aggressive and proactive.”
The last presidential race saw the number of election law cases soar – hitting a record 400-plus cases in 2020, by Hasen’s tally – with the surge driven, in part, by skirmishes in court over how to conduct an election during the Covid-19 pandemic, along with a slew of failed post-election lawsuits from Trump and his allies, seeking to overturn his loss.
As they gear up for another litigation-heavy election cycle, Republicans don’t “necessarily need to win a lot of these lawsuits,” Hasen added. “They are trying to placate the Trumpian base by showing they are going after purported fraud.”
The willingness to bring more marginal legal cases reflects how the amount of money being put toward election litigation has increased significantly, said Derek Muller, an election law professor at the University of Notre Dame who noted that the trend also applies to Democrats and outside groups across the ideological spectrum.
“In the past you had to pick your battles, you had limited resources and limited attorneys, so you picked the things that you thought would have the biggest stakes,” Muller said. Now, election litigators don’t have to be so “choosy.”
In a recent email to CNN, RNC officials touted partnering with more than 20 law firms to file litigation in key states and bringing on board in-state election integrity political directors and counsels in 13 battleground states. The party also says it is working to recruit and train thousands of poll watchers and workers to monitor election activity.
“We have to make sure we have observers and attorneys in every room, every room where people are voting, every room where votes are being counted,” Whatley said in the Fox interview. “We want to have the people – our people in the room making sure that it’s secure.”
Rehashing 2020 fights over mail voting
The RNC says it has “engaged” in more than 80 election-related cases this cycle, though a voting rights news platform associated with Democratic election lawyer Marc Elias accused Republicans of overinflating their litigative footprint. Regardless, the GOP is playing both offense and defense: filing lawsuits to challenge voting policies that Republicans claim are unfair to them, while joining in other cases to defend election rules passed by GOP-led legislatures from lawsuits from the left.
The legal fight against mail voting has taken GOP lawyers to states beyond the typical presidential battlegrounds. In addition to the case targeting Mississippi’s post-election day mail ballot receipt deadline, Republicans filed a lawsuit challenging the major expansion of mail voting enacted by New York lawmakers last year.
More than half the states, including presidential battlegrounds such as Pennsylvania, allow no-excuse absentee or mail-in voting, according to the National Conference of State Legislatures. Eight states – California, Colorado, Hawaii, Nevada, Oregon, Utah, Vermont and Washington – allow all elections to be conducted entirely by mail.
Even as the practice spreads, recent polling highlights how much Republican opinion on mail-in voting has soured.
Just 28% of Republican and GOP-leaning Americans surveyed in January by the Pew Research Center supported allowing any voter to cast ballots by mail if they choose to do so, down from about half of this group in 2018. For comparison, support for the method rates consistently high among Democrats and Democratic-leaning Americans, with 84% in the Pew survey currently backing no-excuse mail balloting.
In both the Mississippi and New York cases, and in several others, the GOP is still reckoning with how the pandemic – and Trump’s fixation on the idea that mail voting is rife with fraud – made mail voting a partisan flashpoint, despite a previous Republican affinity for the practice. The 2020 fights over mail voting – including over how those ballots are verified and how drop boxes are used to collect them – are repeating themselves in cases that the RNC is participating in in Michigan, Wisconsin, Ohio and elsewhere.
Touting cases focused on non-citizen voting
But other litigation the party has taken on calls back to pre-pandemic pet issues, like voter ID and the supposed threat of non-citizens voting.
The RNC has sued Arizona election officials over how they reworked the proof-of-citizenship requirement in the state, and the party has also brought lawsuits – with mixed success – that challenge local ordinances that allow non-citizens to vote in elections. The legal focus on non-citizen voting dovetails with efforts by Republicans to make immigration a central issue of the 2024 campaign.
In New York City, the RNC successfully challenged a law allowing some 800,000 noncitizens to vote in local elections – as long as they are legal permanent residents of the United States. This year, an appellate court affirmed a lower court ruling striking down the law. The New York City Council now has appealed to the state’s court of last resort. But a similar Republican-brought lawsuit against a Vermont city’s non-citizen voting ordinance was dismissed by a judge.
New lawsuits allege bloated voter rolls
In two other battlegrounds – Nevada and Michigan – recent RNC lawsuits have centered on claims that the voter registration rolls in key counties in each state are “suspiciously high” and seek to force election officials there to cancel voter registrations ahead of this year’s elections.
To arrive at the claim that the states’ voter rolls are bloated, Republicans are using a formula that has previously been rebuked in federal court. Their lawsuits compare current day voter roll numbers to population estimates from a rolling survey conducted by the Census – a survey that looks at a 5-year period that started several years ago.
“There are all kinds of problems with methodology, including that the things that they are comparing to each other don’t measure the same thing,” said Justin Levitt, an expert on elections and constitutional law at Loyola Law School who served as a voting rights adviser in the Biden White House. “It’s like saying, ‘My thermometer doesn’t match my clock; therefore, something is wrong with one of them.’ ”
The top election officials in Nevada and Michigan – both Democrats – say the cases are groundless. An RNC official did not respond to an inquiry about the criticism of the methodology.
Republicans may be playing a long game with the voter roll lawsuits, hoping that eventually one of the cases will land before a conservative US Supreme Court interested in taking a closer look at whether states are complying with federal voter list maintenance law.
But in the short term, it appears unlikely those cases will result in major purges before the November election, according to Muller, given how the slow pace of litigation will run against federal law prohibiting mass removals 90 days before an election as well as a legal doctrine discouraging major changes to voting policies close to an election.
“There’s very little reason to think any kind of [court] order will [be in] place before the 2024 election,” Muller said.
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