The election cases that could matter after the polls close

FIn the months leading up to Election Day, Republicans and Democrats faced off in court over dozens of election-related lawsuits. The impact of these cases could be far-reaching. Donald Trump is already emphasizing that the lawsuits and rulings are a way to undermine confidence in the outcome if he loses. The legal dispute could ultimately be part of another attempt to make up for an election defeat.

Republicans have had some legal victories so far that could affect the results. They have managed to challenge voter registrations in Virginia and Arizona and restrict which mail-in ballots can be counted and when in Pennsylvania and Mississippi. And the full impact of these rulings could be felt in further legal challenges in the coming weeks.

Trump’s campaign strategy is to file lawsuits early in the election cycle, before Election Day, to influence how votes are received and counted. It’s a change from 2020, when most of Trump’s legal challenges came after voting ended and continued until the deadly insurrection Trump incited at the Capitol on Jan. 6. Mike Davis, pro bono attorney for Trump’s campaign legal team, is believed to be on Trump’s short list for attorney general if he wins, says the Trump campaign, which has learned this year about its legal challenges to initiate earlier.

“We won’t be caught with our pants down again,” Davis says by phone from Trump campaign headquarters in West Palm Beach, Florida, the day before Election Day.

Earlier this year, Donald Trump directed Republican National Committee leaders to build a strong legal team. RNC Chairman Michael Whatley hired longtime election lawyer Gineen Bresso to lead the Republican Party’s election rights work. Steve Kenny, RNC senior counsel, will lead the litigation. And David Warrington, who represented Trump during the House committee’s investigation on Jan. 6, is the Trump campaign’s general counsel.

Davis describes this team’s efforts leading up to the election as “filing lawsuits and getting injunctions, nipping problems in the bud.”

Democrats have worked to block those lawsuits and fend off short-term attempts by some election officials to restrict the way votes are counted and certified. Dana Remus, who served as a White House counsel during Biden’s first two years as president, is leading the Harris campaign’s litigation. Remus says the Harris campaign has won around 20 cases since voting began in September. “In court you need facts and evidence, and the vast majority of their cases fail because they don’t have any,” Remus told reporters on Monday.

After Election Day in 2020, Trump’s team filed more than 60 lawsuits challenging the 2020 results, according to Remus, winning one case by 12 votes. “The number of cases does not correspond to the number of legitimate concerns,” she says.

Harris’ legal team is working to ensure that all eligible votes are counted and that election officials with political motivations do not attempt to prevent or delay the certification of the results. That’s not legal, says Remus, pointing to new laws passed after Trump tried to overturn his defeat in 2020 that would have clarified these questions. “We now have more tools to block fraudulent attempts to appoint fake electors and new security measures that make it much more difficult to use the January 6 process to commit voter fraud,” she says.

Here are legal cases that could make a difference after the polls close.

Mail-in ballots in Pennsylvania

Two recent court rulings will impact how mail-in votes are counted in Pennsylvania and could prompt further legal challenges to the election results. Donald Trump and Kamala Harris are in a dead heat in the state that Joe Biden won by just over 80,000 votes in 2020. Even a small change in the way counties decide to count absentee votes could have a big impact on the outcome.

In a last-minute ruling, the U.S. Supreme Court confirmed that voters in Pennsylvania were allowed to count a provisional ballot instead if they did not use the secrecy envelope when mailing in their mail-in ballot. To do this, the voter must be aware of the error and take the additional step of casting a provisional ballot at a polling station. Republicans argued that voters should not be given another chance to vote. Democrats and voting rights groups said provisional votes are intended to remedy such a scenario.

In another case, the Pennsylvania Supreme Court ruled that thousands of mail-in ballots in Pennsylvania should not be counted if the date on the envelope was not correctly written. This ruling will likely result in thousands of mail-in ballots being thrown out and could impact the total number of votes. The decision overturned a lower court ruling that throwing these ballots constituted an interference with voting rights. Democrats and voting rights groups have argued that putting the date on the envelope if ballots arrive on or before Election Day is unnecessary and redundant and that the vote should be counted. But Republicans insisted that the election instructions only allow counting envelopes filled out with correct data. This issue could lead to further legal challenges after Election Day, especially if the results are close.

Mississippi’s late ballots

Republicans won a legal victory in late October when a federal appeals court ruled that in Mississippi, mail-in ballots that arrive after Election Day cannot be counted. The impact of this ruling could ripple to other states in the coming weeks. A law in Mississippi allowed ballots to be counted as long as they arrived up to five days after Election Day and were postmarked by then. The ruling was handed down by Andrew Oldham, the Trump-appointed judge on the Fifth Circuit Court of Appeals. Oldham wrote that “federal law requires voters to take timely steps to vote by Election Day.”

The decision is likely to trigger further legal challenges. Republicans want this rule to be enforced in other states that fall under the jurisdiction of the Fifth Circuit, which also includes Louisiana and Texas. Under Texas law, mailed ballots can be counted if they arrive by 5:00 p.m. the day after Election Day.

The decision could also fuel litigation in other states that count mail-in ballots received after Election Day. In Nevada, where Trump and Harris are in a tough race, the state Supreme Court recently confirmed that mail-in ballots that arrive by Election Day but do not have a postmark can still be counted. Nevada law allows mail-in ballots postmarked on or before Nov. 5 to be counted up to four days after Election Day. If the race is as close as predicted, the late ballots could face additional legal challenges.

Trump’s legal team won a last-minute victory in Georgia on Monday when the state Supreme Court ordered Cobb County not to count ballots that arrive after Election Day. After a surge in last-minute registrations, Cobb County election officials sent out more than 3,000 absentee ballot applications. But the court ruled that if any of those ballots arrive after Election Day, they must be set aside while legal challenges take place.

Virginia’s voter rolls

In late October, the U.S. Supreme Court allowed Virginia to purge its voter rolls of noncitizens using Department of Motor Vehicles data. Democrats had argued that US citizens were involved in the cleanup and that the work began too close to the election.

Since the beginning of August, Virginia has canceled the registration of more than 1,600 voters. The changes to voter rolls began Aug. 7, when Virginia Gov. Glenn Younkin issued an executive order requiring the state’s Department of Motor Vehicles to provide election officials daily reports on driver’s license data that officials could use to track voter registrations for suspects Correcting people should not be citizens.

Republican lawsuits seeking to remove names from voter rolls have increased dramatically in recent months. They are largely based on unsubstantiated claims Donald Trump has made for years that Democrats are registering undocumented immigrants to vote. A right-wing group working with Stephen Miller, a close Trump adviser, has filed lawsuits in Arizona alleging that the state’s voter rolls include non-citizens.

American voters abroad

Republicans have tried to stop some Americans abroad from voting in Pennsylvania, Michigan and North Carolina, but have so far failed. In Michigan and North Carolina, Republicans are challenging state laws that allow a voter to register if their parents were residents. This provision allows military members and other Americans who turned 18 overseas to vote in their home states. In Pennsylvania, the legal challenge is stricter, requiring that all foreign ballots, including those of military members and families, be set aside and that additional steps be taken to identify voters’ names before votes can be counted.

Read more: Foreign votes could decide the election

Veterans organizations have described the Republican challenges as potentially disenfranchising thousands of service members stationed abroad.

Although Republicans’ efforts have failed so far, further legal challenges could drag out the legal battle while votes are counted.