At least two important legal observations can be made about the presidential election in the USA. On Monday evening, the day before the election, a coalition of bar association presidents published a letter reminding their peers and citizens that “the courtroom is not the place for unsubstantiated allegations”. The fact that they felt the need to say something like this is significant. We know from the last election that Trump cannot accept defeat, and so he filed several lawsuits – without evidence or proof of electoral fraud. He only won one case, in which only 12 votes were at stake. Compared to the election-related lawsuits Trump and his party sought after he lost in 2020, this year they filed lawsuits before rather than after the election. For example, Republicans already challenged voter rolls in Virginia and Arizona before the election. They also questioned which absentee ballots could be counted in Pennsylvania and Mississippi and asked the courts for orders limiting the counting of votes.
In Mississippi, Republicans won a lawsuit in October when a federal appeals court ruled that absentee ballots received after Election Day cannot be counted. Previously, a Mississippi law allowed absentee ballots to be counted if they arrived up to five days after Election Day and were postmarked on Election Day or earlier. It’s worth noting that the federal judge for this case, Andrew Oldham, was appointed by Trump.
In Arizona, complaints by Republicans to remove the names of citizens without a record of proof of citizenship from voter rolls increased significantly in recent months. They are largely based on unsubstantiated claims that Trump himself has been spreading for years that Democrats were registering undocumented immigrants to vote. A Republican group filed a lawsuit in Arizona claiming that non-citizens were illegally listed on state voter rolls.
In Georgia, Trump’s team won a case when the Georgia Supreme Court ordered the state’s election officials not to count absentee ballots that arrive after Election Day. But on 5 November, also in Georgia, another federal judge responded to a new lawsuit: Republican Party attorneys accused election officials in seven Georgia counties of breaking the law by letting voters cast their absentee ballots by hand. The US federal judge called the lawsuit “frivolous” and added that the allegations were “factually and legally incorrect”.
With regard to American voters living abroad, Republicans tried to prevent Americans registered in Pennsylvania, Michigan and North Carolina but living abroad from voting. In Pennsylvania, for example, a lawsuit demanded that all overseas ballots be withdrawn and that additional steps be taken to identify voters’ names before the votes can be counted. I am one of those voters.
The Harris campaign has won around twenty cases since the start of the election in September. This allows us to see the important difference between political and legal arguments. Facts and evidence are needed in court. Only one Trump lawsuit in 2020 contained facts or evidence.
Secondly, court decisions in these and other cases are often made by judges appointed by Trump while he was in office. We often hear about his disproportionate influence on the US Supreme Court, with three appointments in four years, but he also appointed many other federal judges, including federal district court judge Aileen Cannon. In 2022, Cannon presided over the case of Trump v. United States of America and ordered the US government to stop using materials seized from Trump’s private club and residence in its investigation and granted Trump’s request for a special master to review the material. The US Court of Appeals for the Eleventh Circuit reversed the ruling and reprimanded Cannon after finding that she had wrongly exercised jurisdiction over the case. Cannon then dismissed Trump’s lawsuit from the Eleventh Circuit.
Following Trump’s indictment in June 2023, Cannon declined to pursue federal criminal charges against Trump. Many legal experts called for Cannon to recuse herself and referred to her conduct in the previous the civil case against Trump. Under Cannon, the case was significantly delayed from getting to trial as Cannon granted several of Trump’s pretrial motions. In July 2024, she dismissed the case entirely and ruled that the appointment of Special Counsel Jack Smith was unconstitutional.
While the Democratic Party continues to focus on offering plans, passing legislation and convincing voters that their party platform deserves their support, Republicans are focusing on controlling legal structures – from voting procedures to appointing judges of their choice to courts. These structural strategies appear to have been more effective in winning the election than the party’s traditional strategy of winning voter support through their political goals.