The lurking danger of zombie lawsuits

Election deniers are suing — but not to win

Ben Raderstorf

In the United States, a flurry of litigation before elections is the new norm.

These lawsuits usually aim to influence how the election is going to be run. Obviously. Why file a lawsuit over election rules unless you’re trying to get them changed??

Except, this year something different — something strange — seems to be happening.?

According to The New York Times, there are almost 90 anti-voting lawsuits filed in different states. Per Danny Hakim, Alexandra Berzon, and Nick Corasantini, this litigation is an outgrowth of lies about the 2020 election:?

Voting rights experts say the legal campaign appears to be an effort to prepare to contest the results of the presidential election after Election Day should former President Donald J. Trump, the Republican nominee, lose and refuse to accept his defeat as he did four years ago. The lawsuits are concentrated in swing states — and key counties — likely to determine the race. Several embrace debunked theories about voter fraud and so-called stolen elections that Mr. Trump has promoted since 2020.

(Their whole article — gift link here — on the scope of the legal effort and the resources being poured in is excellent, I recommend reading in full.)

Here’s the thing though. Many of these cases don’t seem to have any hope of winning, at least not before Election Day. The timing doesn’t make sense, the claims are nonsensical, the likely remedies are impractical (or impossible), or something else in the litigation strategy is fundamentally flawed. Many — if not most — clearly won’t impact the election.?

Why are so many quixotic, seemingly frivolous lawsuits being filed? One explanation: This is all about undermining trust and creating a generalized impression that our elections are insecure. They’re part of a messaging strategy, not a legal strategy. As Jessica Marsden told the Times, “Putting false claims in the form of a lawsuit is a way to sanitize and add legitimacy.”

That’s almost certainly part of the picture.

There’s also another possibility — not mutually exclusive, but even more insidious. These lawsuits could be like zombies. They’re clearly dead before the election. But if Donald Trump loses, they could rise again in an attempt to overturn the results.?

Case study: The Trump campaign sues Nevada?

On September 11th — less than two months before Election Day?— the Trump campaign and the RNC sued the Nevada Secretary of State and the DNC, claiming that the state is not preventing noncitizens from registering to vote.?

First off, let’s be clear the claims in this suit are pure fantasy. The so-called “evidence” presented is fast approaching Four Seasons Total Landscaping-territory (seriously, it’s mostly just recycled claims from 2020).

But put aside the substance for a second —?just look at the timing. The suit was filed 54 days before Election Day. Under federal law, voter rolls cannot be systematically changed starting 90 days before Election Day.

One of the Trump campaign’s lawyers seemed to admit the timing was a non-starter in a hearing:?

We understood, of course, when we filed the lawsuit that a lot of this, especially in discovery, could take some time and perhaps, run past a November election.

So why on earth did these people wait so long to sue? And why are they so unconcerned that this won’t be resolved before Election Day??

As my colleague Ben Berwick told the Nevada Independent (whose reporting on all this is best-in-class), there’s a twisted logic to it:

[They will] claim that we don't really know the true outcome, that certain categories of ballots should be thrown out as illegitimate, that there is fraud, that noncitizens are voting, that the voter rolls can't be trusted. And I think we will see that both as the basis to argue that this county shouldn't certify their results, and also probably as a basis to bring post-election litigation.

Read the full piece here >>