"Staggering number": Right-wingers filed nearly 100 "anti-voter" lawsuits, analysis shows

"The GOP establishment is becoming more litigious than ever," report says

Published January 11, 2023 5:00AM (EST)

Republican National Committee Chairman Ronna McDaniel speaks during a rally ahead of the November elections in Newport Beach Monday, Sept. 26, 2022.  (Allen J. Schaben / Los Angeles Times via Getty Images)
Republican National Committee Chairman Ronna McDaniel speaks during a rally ahead of the November elections in Newport Beach Monday, Sept. 26, 2022. (Allen J. Schaben / Los Angeles Times via Getty Images)

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The Republican Party, GOP candidates and voters, and aligned groups filed 93 anti-voter lawsuits in 2022, and although most were unsuccessful, the trend underscores how right-wing attacks on ballot access and election administration are taking place in courtrooms as well as state legislatures nationwide.

According to a report published Monday by Democracy Docket, a progressive platform that tracks voting litigation, 175 "democracy-related lawsuits" were filed in 31 states last year. Democracy Docket excluded 58 active redistricting lawsuits from its report in order to focus on cases related to voting rights and election oversight.

Of the 175 democracy-related lawsuits filed last year, 93 were characterized by Democracy Docket as "anti-voting" and 82 were characterized as "pro-voting." Democracy Docket called 2022 another "litigious election year" after 2020 saw 150 democracy-related lawsuits, 95 of which were deemed anti-voting compared with 55 pro-voting.

The Republican Party officialdom—defined as the Republican National Committee, the National Republican Senatorial Committee, the National Republican Congressional Committee, and state or county Republican parties—was responsible for 23 of the 93 anti-voter lawsuits filed in 2022, researchers found.

By contrast, the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee, and state or county Democratic parties filed just six of last year's 82 pro-voter lawsuits.

"Evidently, the GOP establishment is becoming more litigious than ever and is turning to courts to achieve its anti-voting and anti-democracy ends," says the report. "On the other hand, the Democratic Party is using the courts more sparingly, with other nonpartisan and civic engagement organizations fighting in the courts to attain pro-voting outcomes as well."

Another 25 of last year's 93 anti-voter lawsuits "were filed by individual GOP candidates who were not backed by an official Republican committee or party," the report notes. "These Republican candidates, many of whom were election deniers, filed lawsuits right before and after the 2022 midterm elections. For instance, a slate of far-right statewide candidates in Arizona filed lawsuits after Election Day contesting the results of the 2022 midterm elections—without the help of their party."

Republican voters and known right-wing legal groups also filed a significant number of anti-voter lawsuits.

There was "a noticeable number of lawsuits steeped in baseless conspiracy theories and unfounded claims," according to the report, which goes on to state:

We refer to this narrower subset of anti-voting lawsuits as "fringe" and define them as lawsuits filed by individuals or groups that promote the "Big Lie" and/or have scant evidence to support their claims. Often, these sorts of lawsuits were filed years after the relevant issue raised in the case. Although one might rightly consider these types of lawsuits to be an aberration, Democracy Docket tracked a total of 23 "fringe" lawsuits in our larger dataset of cases filed last year. Along with fringe lawsuits challenging electronic voting equipment, we saw a handful of conspiracy-ridden lawsuits crop up in 2022—in states including ArizonaKansas, and Michigan—that sought to decertify the results of the 2020 election an entire two years after it occurred.

Arizona (35), Pennsylvania (21), and Wisconsin (16) were home to the most democracy-related lawsuits in 2022.

"Unsurprisingly, these were all consequential battleground states with competitive state and federal races on the ballot, rendering them litigation targets—especially for the GOP—before and after Election Day," the report notes. It continues:

Additionally, these three states were all hotbeds of rampant election denialism. Arizona and Pennsylvania are home to Republican counties that flouted state laws in the area of election administration and certification. In Arizona, Cochise County was the subject of litigation centered around hand counting ballots as well as the county's refusal to certify its 2022 midterm election results. Similarly, in Pennsylvania, Berks, Fayette and Lancaster counties were sued for refusing to count certain mail-in ballots in their 2022 primary election totals.

Furthermore, throughout 2022, all three states played an integral role in the GOP's litigation strategy aimed at undermining mail-in voting. In Wisconsin and Pennsylvania, Republicans' proactive litigation focused on banning the use of drop boxes, which offer voters a secure and accessible 24/7 option for returning mail-in ballots, and disqualifying mail-in ballots for errors—such as an incomplete address or a missing/incorrect date—that are immaterial to voters' eligibility.

As Democracy Docket pointed out, "There was a steady rise in the number of new lawsuits filed each month in the run-up to Election Day."

Democracy Docket also observed a surge in litigation related to election results, certification, ballot counting, and similar topics in the wake of the midterms, identifying more than two dozen lawsuits filed after November 8.

Throughout the year, however, "attacks on mail-in voting and election administration were the focal point of 2022," with 51 lawsuits and 47 lawsuits filed respectively, the report notes.

The good news, states the report, is that "when the fight over voting rights shifted from legislative chambers to courtrooms this year, courts overwhelmingly protected the right to vote, particularly in advance of the midterm elections."

Democracy Docket found that of the 175 democracy-related court orders issued across 28 states in 2022, 116 were "victories for voters," 35 were "losses for voters," and 24 had a neutral impact on the electorate.

"Last year, Democrats and progressives won two-thirds of the voting and election cases they were involved in," Democracy Docket founder and voting rights attorney Marc Elias tweeted. "Republicans and conservatives won only 20% of the time."

However, last year's courtroom-based victories for democracy came amid an ongoing and multipronged right-wing assault on the franchise, which GOP lawmakers and operatives have been carrying out at the state and federal levels with renewed intensity for the past two years.

Since former President Donald Trump launched a deadly coup attempt following his loss in the 2020 presidential contest, GOP-controlled states have enacted dozens of voter suppression laws and redrawn congressional and state legislative maps in ways that disenfranchise Democratic-leaning communities of color and give Republicans outsized representation, which could help them secure minority rule for years to come.

In addition to trying to make voting more difficult, Republican lawmakers in 33 states have, according to States United Action, introduced at least 244 bills that would interfere with election administration by usurping control over results; requiring partisan or unprofessional election "audits"; seizing power over election responsibilities; establishing onerous burdens for administrators; or imposing draconian criminal or other penalties. At least 24 of those bills have been signed into law in 17 states.

Right-wingers are also increasingly targeting election officials in an attempt to undermine future elections. According to a survey conducted by the Brennan Center for Justice, 1 in 6 election officials have experienced threats related to their job, and 77% say that they feel such threats have increased in recent years. Twenty percent of election officials intend to step down before the 2024 election, with many citing ongoing threats and intimidation.

Moreover, some earlier attacks on voting rights have found their way to the U.S. Supreme Court, which is now dominated by a far-right supermajority.

The high court is currently considering two cases—Merrill v. Milliganand Moore v. Harper—that threaten, respectively, to exacerbate map-rigging and to give state lawmakers virtually unchecked power to oversee and potentially skew federal elections.

The refusal of conservative Democratic senators to repeal the anti-democratic 60-vote filibuster rule caused the party to fail in 2021 and 2022 to use its unified control of Congress to enact federal legislation protecting voting rights. Following the midterms, Republicans took control of the House last week.

By Kenny Stancil

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