In the run-up to Tuesday’s midterms, Republicans and Democrats have filed dozens of lawsuits in battleground states that hold the key to control of the U.S. Congress.
The lawsuits challenge various rules governing the elections, with the bulk focused on the casting and counting of mail-in ballots that have grown in popularity in recent years.
As of Monday, a total of 128 election and voting-related lawsuits have been filed so far in 2022, according to Democracy Docket, a left-leaning voting rights organization that tracks election litigation. Of the total, 71 seek to restrict access to voting, while the rest aim to expand or protect voting, Democracy Docket says.
A September analysis by Democracy Docket showed that Republicans accounted for slightly more than half of the lawsuits filed this year.
Sylvia Albert, Director of Voting and Elections at Common Cause, a nonpartisan watchdog and advocacy organization, said the extraordinary amount of litigation will likely make this midterm the most litigious election in recent memory, after only the 2020 presidential race.
“It is routine for there to be a small amount of lawsuits filed on both sides to get an edge,” Albert said. “What’s different this time around is the sheer amount of lawsuits, and the obvious attempt to disenfranchise voters and undermine people’s faith in elections.”
In 2020, Democracy Docket tracked 68 lawsuits filed before Election Day.
Hans von Spakovsky, manager of the election law reform initiative at the conservative Heritage Foundation, said the Republican lawsuits merely seek compliance with the law.
“My understanding is that the lawsuits that are being filed are simply asking courts to order state officials to comply with state law,” von Spakovsky said.
Democracy Docket says Republicans have filed a record number of election-related lawsuits this year, with the majority seeking to limit mail-in voting.
Voting by mail surged during the 2020 presidential election. But Republican-controlled states have since adopted measures to limit the practice, saying that mail-in voting is susceptible to fraud.
Republicans have had some success challenging voting by mail this year.
In Wisconsin, where Republican Senator Ron Johnson faces a tough challenge from the state’s Democratic lieutenant governor, local courts last week sided with Republicans, ruling that county clerks could not accept mail-in ballots with partial addresses of witnesses.
In Pennsylvania, where a Senate seat vacated by a Republican is up for grabs, the state Supreme Court last week approved a Republican request that election officials not count undated or incorrectly dated mail-in ballots.
But in Michigan, a judge Monday dismissed a lawsuit brought by a Republican candidate who asked the court to require all voters in Detroit to get absentee ballots in person or vote in person.
Albert of Common Cause said the current litigation over the counting of absentee ballots will likely extend into the post-election canvass and certification period, delaying the results of some close races.
“Especially in states where absentee ballots could swing the results,” Albert said. “We continue to reiterate that Election Day is not results day, and we may be waiting quite a while for final counts.”
Post-election court battles will likely involve many aspects of the elections. In addition to the counting and processing of mail-in ballots, Democracy Docket says it expects legal challenges to voters’ eligibility, intimidation of voters and election workers, conspiracy theories about electronic voting machines and counties that refuse to certify their election results.