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GOP could use legal defeats to slash voting rights

By Sonam Sheth and Jacob Shamsian, Business Insider | December 22, 2020

  • President Donald Trump and Republicans have been handed defeat after defeat in the dozens of lawsuits they've filed contesting the results of the 2020 election.

  • But experts warn the GOP could use those losses as a roadmap to pass stricter measures that would make it harder for voters to cast ballots in future elections.

  • The lawsuits were largely unsuccessful, with judges across the country denying or dismissing the vast majority, with the exception of a minor victory.

  • "But we can't expect our courts to solve all our political problems," said Lisa Marshall Manheim, a professor at the University of Washington School of Law. "They simply aren't designed for that."

Since President Donald Trump lost the 2020 presidential election, he and his allies have filed dozens of lawsuits challenging the results and trying to throw out millions of votes.

Every single one of them failed in court, but they succeeded by one measure: they reinforced the myth that the electoral process itself was faulty, marred by widespread voter fraud and election-rigging by partisan forces. That belief is especially true within the Republican Party, at least 75% of which now believes that the election was "stolen" from Trump, according to several recent polls.

The GOP has long cited the phantom menace of nationwide voter fraud to justify passing stricter voter ID laws and other measures that make it more difficult for voters — particularly low-income, minority voters in rural areas — to cast a ballot.

But this year's slate of election-related cases has irreversibly warped the landscape of voting rights litigation.

"The big distinction with this particular phase is that these same legal principles are being morphed and distorted by losing candidates to actually cancel out ballots," said Kim Wehle, a law professor at the University of Baltimore and the author of "How to Read the Constitution — And Why."

"It's like the facts don't matter anymore. Legal principles don't matter anymore," said Wehle. "And even though the courts have done the right thing because they're bound by facts and the law, Trump has created this public perception that there's a problem that needs fixing."

Robert Brandon, the president of the Fair Elections Center, called the president's argument "unfortunate."

"There's this false narrative that somehow there was massive fraud in this election, but in fact it was people exercising their right. This is a continuation and maybe crescendo to a 15, 20-year effort to talk about voter fraud as a way to put more limits on voting."

Republican efforts to target Black voters and minority groups could backfire

Voter suppression has always existed in one way or another. Modern efforts to restrict voting picked up after President Barack Obama was elected in 2008 following unprecedented turnout from a diverse electorate.

The 2010 midterm elections and census led to the rise of "ratf---ing," or the practice of using granular data to gerrymander districts. Those efforts intensified after the Supreme Court's landmark ruling in Shelby County v. Holder, which gutted the most significant provision of the 1965 Voting Rights Act.

Texas and North Carolina's Republican-controlled legislatures and governors offices passed restrictive voting laws almost immediately after the 2013 ruling. And in the years since, hundreds of polling places in predominantly Black communities have closed, while more and more counties are purging their voter rolls.

This year, before and after Election Day, Republican lawsuits challenging the results targeted predominantly Black communities and other areas populated by minorities.

"We're talking about the communities in Detroit and in Atlanta and Philadelphia," said Sophia Lin Lakin, the deputy director of the American Civil Liberties Union Voting Rights Project. "These are attacks against Black voters, and that's what we've seen time and time again, throughout history."

In Wisconsin, the Trump campaign sought recounts in just two counties that have high Black and low-income populations. Earlier this month, former House Speaker Newt Gingrich laid out the Republican argument in stark terms, asking in a tweet why Georgia Secretary of State Brad Raffensperger was "working so hard to add drop boxes and take other steps to make it harder for Republicans to win."

In Texas, GOP party chair Allen West told Politico that the "No. 1 legislative priority" will be "how do we protect our electoral system." Michael Whatley, the North Carolina GOP party chair, told Politico he wanted "a significant tightening of the rules around absentee balloting."

"This is an old story," Wehle said. "Voter suppression efforts aimed at the integrity of the ballot are always disproportionately designed to keep certain populations — that is, Democratic-leaning voters — from having access to the polls."

But by continuing to target Black voters, the GOP may be making a huge strategic error. This year, Trump saw an increase in support from Black and minority voters in big cities compared to the 2016 election.

According to APVoteCast, 8% of Black voters supported Trump in 2020 compared to 6% in 2016. Biden, meanwhile, picked up a larger share of higher-income, college-educated white voters near major cities.

Still, in the weeks since the 2020 race was called for Biden, Republicans have dug their heels in on efforts to curb access to the ballot in battleground states, particularly as the GOP contends with a higher rate of turnout. The 2020 election saw the highest turnout in over a century because of an increase in voting by mail and early voting across most of the country in the face of the COVID-19 pandemic.

Half of all voters voted by mail, and only 25% voted on Election Day. While the pandemic was certainly a huge determinant of how people cast their ballots, voters also prefer to be able to vote when they want and by a method of their choosing to avoid dealing with factors like work schedules and family commitments, said Robert Brandon, the president of the Fair Elections Center.

But with increased civic participation, experts say there will be a corresponding surge in efforts, primarily by Republicans, to limit access to voting.

"Unfortunately time and time again — throughout the history of civil rights and voting rights — what we've seen is whenever there's been an expansion of turnout of voting by people being able to access the ballot, we've seen an attempt to sort of retract and curate the electorate such that certain voices are muted," Lin Lakin said.

Indeed, Trump and members of his party fought vigorously against voting by mail in the months leading up to the November election.

In Georgia, which will hold two US Senate runoff elections on January 5 that will determine which party controls the upper chamber, Republicans are seeking to end no-excuse absentee voting, impose voter ID laws for those who vote by mail, and take power away from the Georgia secretary of state, who certifies election results.

These efforts come after the state repeatedly confirmed its election results were accurate following a risk-limiting audit and two recounts.

Georgia Republicans have also begun filing lawsuits to restrict voting in the runoffs. They've been unsuccessful so far, but the party will have another chance to limit voting when the legislature resumes session next month.

'A total paradigm shift'

In the face of Trump and his Republican allies' drumbeat that the election would be stolen, a significant swath of the country has accepted the narrative that there was widespread fraud, compared to previously, when such claims had to be proven first.

"There's a massive public relations campaign around claiming fraud even in the face of zero evidence of fraud," Wehle said. "We've seen dozens of lawsuits with no facts or evidence showing fraud, but Rudy Giuliani will wave around a binder of alleged affidavits in front of the Michigan state legislature instead of submitting them to a judge because they don't hold up in a court of law."

Over the last several decades, the legal battle over voting rights has been focused on using equal protection claims, due process claims, and the Voting Rights Act to expand access to the ballot box.

But now, Wehle said, "there's been a total paradigm shift" because Republicans have "flipped that dynamic on its head and used those same principles to say that by virtue of these tinkering laws — laws on changing access to the ballot — a candidate, campaign, or voter can cancel people's votes after the fact."

Perhaps the most brazen example of this was Texas Attorney General Ken Paxton's Supreme Court lawsuit seeking to toss out the election results in four battleground states that voted for President-elect Joe Biden. Trump's legal team, eighteen other Republican attorneys general, and a majority of the House Republican caucus supported the suit.

Earlier this month, the high court kicked Texas' case to the curb, saying it did not have the standing to contest how other states run their elections.

"In this election, we saw judges of all political persuasions refuse to abandon the rule of law," said Lisa Marshall Manheim, a professor at the University of Washington School of Law. "This basic commitment should hold. But we can't expect our courts to solve all our political problems. They simply aren't designed for that."

Although Republicans have not been able to convince the courts to force significant changes in how states administer their elections, some of their biggest successes have been in convincing courts not to get involved in the first place, Manheim said.

For instance, in Georgia, after a district court judge allowed for an extension of the deadline by which mail ballots must be received, Republican litigants convinced the appeals court to stop the lower court ruling from going into effect.

Manheim added that even with a mixed legal record, these aggressive litigation tactics can be helpful for non-legal purposes like fundraising and firing up the Republican base, which is why we can expect them to continue.

Overall, as Business Insider has reported, the 2020 election was the safest and most secure in US history because of the use of paper ballots and voting machines with voter-verifiable paper trails.

And in addition to scores of judges across the country at every level of the court system, both Republican and Democratic officials have confirmed that their respective states' elections ran smoothly, and that the results were legitimate.

On December 14, the Electoral College convened and electors cast their votes based on which candidate their respective states voted for. On January 6, Congress is set to certify Biden's win, and he will be sworn in on January 20.

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