What Litigation After the 2020 Election Can Tell Us About 2024 

After the 2020 election, then-President Donald Trump, as well as Republican politicians and voters supporting him, were unsuccessful in more than 60 lawsuits across multiple states challenging the election results. They made unsupported claims that absentee votes should be discarded, that election fraud skewed results, and that voting machines malfunctioned. Despite courts repeatedly protecting citizens’ votes and finding no evidence of fraud, Trump has said he’s likely to challenge the results again should he lose the presidential contest.

State courts are often the venue for election-related challenges, even those related to federal races, because states oversee their elections, including setting most rules and procedures. Lawsuits filed in multiple battleground states in the days after the 2020 election, including Wisconsin, Pennsylvania, and Nevada, hint at the types of cases Trump and his supporters could file this month. The dozens of lawsuits state courts handled in the lead-up to this election provide insight as well.

Wisconsin

In 2020’s Trump v. Biden, Trump asked the Wisconsin Supreme Court to throw out more than 22,000 votes — enough to erase Joe Biden’s margin of victory in the state — from Democratic-leaning Dane and Milwaukee counties based on confusion over absentee eligibility during the Covid-19 pandemic and disagreement with absentee procedures.

The court denied the plaintiffs’ claims in full. It called one claim “meritless on its face” with “no basis in reason or law.” It rejected the remaining claims as untimely under a doctrine called laches. Trump took issue with the challenged rules and practices too late, the court explained, as they had existed before the election and could have been challenged then. Allowing such claims would prejudice those who voted depending on them, the court said.

Though the Wisconsin high court was then majority conservative, the decision was 4–3, with conservative justice Brian Hagedorn authoring the opinion, joined by the court’s three liberal justices. In April 2023, liberal candidate Janet Protasiewicz won her election for a seat on the Wisconsin high court, tilting its make-up to a liberal majority.

Michigan

In Trump for President v. Benson, Trump and allies asked a Michigan court to halt all ballot counting and set aside ballots returned to drop boxes that they alleged hadn’t been adequately monitored. The court deemed the plaintiffs’ evidence unreliable and dismissed the case. The Michigan Supreme Court declined to hear an appeal.

In another case, Constantino v. City of Detroit, voters represented by lawyers who advocate for conservative causes made baseless allegations of fraud and asked a court to stop the vote count and order an election audit. A lower court rejected the claims, finding that plaintiffs’ allegations were not credible and that the plaintiffs had been accused of disruptive behavior at polling locations. The court said that granting the delay requested would put off “establishing the Presidential vote tabulation,” “undermine faith in the Electoral System,” and could “disenfranchise Michigan voters.” The Michigan Supreme Court declined to take up the case.

Nevada

In Nevada, Republican electors sued their Democratic counterparts in Law v. Whitmer over alleged irregularities in voting machines in Las Vegas’s Clark County that were used to verify mail-in ballots. The plaintiffs asked the court to appoint Trump the victor in Nevada. The court found the plaintiffs’ arguments unpersuasive, saying they failed to provide “credible and relevant evidence to substantiate any” of their allegations. The Nevada Supreme Court affirmed the lower court.

Litigation so far in the 2024 election cycle

This election cycle has already brought high-stakes litigation, including approximately 130 cases involving the Republican National Committee. Many of these cases have focused on whether officials have discretion to refuse to certify election results, how officials will count ballots, and which ballots will count.

Since 2020 there has been an increase in rogue elections officials refusing to certify elections — a required task that follows the completion of the proper vote counting and confirmation procedures. Because of that uptick, courts in Georgia and elsewhere have had the opportunity to weigh in on certification. Courts have forced hesitant officials to certify results and confirmed their duty to do so is not optional.

The disputes over certification have given election officials time to prepare for and better understand certification requirements and what to do if they’re not met. While some officials may still refuse to certify — which could spark more litigation over certification — officials and courts are prepared for that reality.

A case from the Pennsylvania Supreme Court about procedural mistakes on mail-in ballots exemplifies the sort of litigation over counting votes that we might see post-election. The court ruled that voters who forget to include a required secrecy envelope when returning a mail ballot must be notified so they can vote by provisional ballot. The RNC, which had advocated that voters whose ballots are thrown out for omitting the secrecy envelope should not be able to vote by provisional ballot, requested that the U.S. Supreme Court review the case. Last week, the Court declined. Still, a non-binding note Justice Samuel Alito included the Supreme Court order indicated he read the decision to be limited to only a few votes cast in an earlier election, making it possible we’ll see more litigation over such provisional ballots.

Some seemingly resolved disputes may spawn further litigation. A judge last week ordered Cobb County, Georgia, election officials to send by overnight mail 3,200 mail-in ballots to voters who had requested them but to whom they had not timely been sent. The judge also extended the deadline by three days for when the ballots must be received back, until November 8, as long as they’re postmarked on Election Day. The RNC appealed that order, and Monday the Georgia Supreme Court ordered officials to stick to the original deadline, but set aside the ballots — presumably in expectation of further disputes.

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In 2020, the pandemic led to a sharp increase in mail-in voting and rule changes close to the election. Fewer rule changes were necessary close to the 2024 elections, which could, in theory, mean less post-election litigation over similar issues. Moreover, many disputes over rules and procedures have already been resolved.

Still, litigation over procedures like deadlines, issues with technical requirements or changes, and decisions made to handle situations that arise during the course of the election are possible. Courts, as they were in 2020, should be prepared to uphold voters’ rights and quickly dispense of baseless allegations.

Erin Geiger Smith is a writer and editor at The Brennan Center. 

Darnell Battle was a law student at New York University who participated in the Brennan Center’s public interest law clinic.