For months, Republicans have pushed largely unsuccessfully to limit new avenues for voting in the midst of the pandemic. But with next week’s election rapidly approaching, they have shifted their legal strategy in recent days to focus on tactics aimed at challenging ballots one by one, in some cases seeking to discard votes already cast during a swell of early voting.
“It’s not just the rules anymore,” said Myrna Pérez, director of the Voting Rights and Elections Program at the nonpartisan Brennan Center for Justice. “It’s individual voters.”
Republicans said they are just trying to make sure the process runs smoothly and the rules are applied fairly, arguing that Democrats have loosened election rules in ways that could confuse voters and invite fraud.
“We have volunteers, attorneys and staff in place to ensure that election officials are following the law and counting every lawful ballot,” Justin Riemer, chief counsel for the Republican National Committee, said Friday. “If election officials aren’t providing transparency that the law demands or we are unable to resolve disputes over certain ballots or procedures, then we will litigate as necessary.”
But Democrats said there is no evidence that expanded mail balloting and other pandemic-related changes lead to fraud. They accused Republicans of targeting valid votes in Democratic strongholds in a blatant bid to gain an electoral advantage.
“The other side has given every indication that they will challenge every ballot they can, at every step of the process,” said Chad Dunn, general counsel for the Texas Democratic Party and co-founder of the UCLA Voting Rights Project.
“The mask is off. This isn’t about rooting out any mythical voter fraud. It never was,” Dunn said. “This is about raw power and obtaining power by any means necessary.”
The shift in strategy comes after Republicans largely failed to limit expanded access to absentee balloting aimed at ensuring people could vote safely during the pandemic. In late September, a Washington Post review of 90 state and federal voting lawsuits found that judges had been broadly skeptical of GOP claims that the possibility of voter fraud required limits on mail-balloting.
More than 85 million people have already voted, many using mail-in ballots. But President Trump has spent months trying to undermine confidence in mail ballots, and polls have consistently shown that more Republicans plan to vote in person on Election Day while many Democrats have chosen to vote absentee.
That means Republicans stand to gain a significant advantage if they can successfully challenge absentee votes already cast. Trump has telegraphed for months that if the election is close and he is running ahead of former vice president Joe Biden on election night, he will urge states to stop counting absentee ballots, even if they have been correctly cast.
“It would be very, very proper and very nice if a winner were declared on Nov. 3, instead of counting ballots for two weeks, which is totally inappropriate and I don’t believe that that’s by our laws,” Trump told reporters at the White House earlier this week.
Trump also has bluntly stated that he believes the more people vote, the less likely Republicans will prevail — a perspective that appears to have emboldened the GOP to embrace invalidating votes as a political strategy.
Criticizing a proposal by congressional Democrats to encourage absentee voting, Trump said in March, “They had things, levels of voting that if you’d ever agreed to it, you’d never have a Republican elected in this country again.”
Speaking to donors at a closed-door fundraiser in Nashville last week, Trump said his campaign would have his own “team” and law enforcement watching polling places, and that the campaign would probably have to challenge individual ballots. “My biggest risk of losing is probably fraud,” he said, according to one person in the room, who spoke on the condition of anonymity to describe the private event.
A senior Trump campaign official said they are most closely watching Nevada’s Clark County, Philadelphia and Milwaukee — all Democratic strongholds in swing states — as well as the entire state of North Carolina. The campaign has 8,500 lawyers prepared to help, as well as local lawyers lined up around the country, he said, adding: “We are prepared to sue if we need to.”
RNC spokesman Mike Reed denied Democratic claims that the party is trying to discourage voters, noting that the GOP has run an expansive get-out-the-vote program. Though last-minute rules changes championed by Democrats invite “fraud and post-election confusion,” he said, “we want every vote that is legally eligible to be cast and counted safely and securely.”
In Texas, two Republican candidates and a member of the Texas House asked the state Supreme Court this week to invalidate more than 100,000 ballots that have already been cast at drive-through centers in Harris County, contending that the creation of the drive-through sites was illegal and thus ballots cast at them should be thrown out.
The court threw out a previous challenge to the drive-through centers. Polls show an unusually close race in the Republican-leaning state, where voters have flocked to vote early in record numbers.
In Pennsylvania and Minnesota, the Trump campaign this week cheered decisions that will result in election officials segregating absentee ballots received after Election Day, a process that would make them easier to challenge should the race prove to be close.
The directive in Pennsylvania came by order of the secretary of state, even though the Supreme Court this week affirmed that ballots can be counted if they arrive within three days after polls close.
In Minnesota, where Democrats and Republicans had agreed to a seven-day grace period for late ballots, a three-judge federal appeals court panel on Thursday ordered all ballots arriving after Election Day to be kept separate, suggesting that a challenge to their validity would be successful.
In a statement, Trump senior counsel Justin Clark called the situation in Pennsylvania a “big victory.” Trump spokeswoman Thea McDonald called the Minnesota opinion a “major victory for voting rights and the rule of law.”
One of the tactics that most concerns Democrats is an apparent campaign to have votes rejected on technical grounds, such as when voter signatures on ballots do not match signatures on file with elections officials.
More than 30 states and the District require signature matching for absentee ballots, though voting rights advocates have long argued that it is an inexact science that leads to the rejection of valid ballots.
In Florida, where concerns about the signature-matching process in 2018 led state lawmakers to require “formal signature training” for election officials, an attorney acting for the Trump campaign last month sought permission to observe the signature-matching process in Broward County, the state’s Democratic stronghold.
Broward County Democratic Party chairwoman Cynthia Busch said she was concerned that the request was aimed at laying the groundwork for potential litigation. “This is a way to try to scare people, make people mistrust the outcome and take potential legal action to get ballots thrown out,” she said.
The appointed Republican election supervisor denied the request, saying the review could slow the count. But earlier this month, both campaigns were given a one-time chance to watch the process play out for a handful of ballots.
Neither the lawyer nor a spokeswoman for the Trump campaign responded to requests for comment.
In Nevada, a lawsuit filed this week in Clark County, which includes Las Vegas, also appears to be aimed at laying the groundwork for challenging signatures. That suit asks a judge to force the county to release a massive trove of detailed information, including the names, party affiliations and work schedules of election workers responsible for counting ballots; a copy of every signature that appeared on mail ballots returned to elections officials; and a copy of every signature on file used to authenticate ballots. A hearing will be held Monday.
The suit was the second in a week by the Trump campaign targeting the county. The other case, filed Oct. 23, argues that the county has prevented poll watchers from adequately observing ballot-processing operations. Trump campaign lawyers argued in court that the limitations could allow fraud to go undetected — including by elections workers tempted to assist their favored candidate.
That lawsuit also seeks to prohibit Clark County from using a machine to automatically scan and authenticate ballot signatures, arguing that the law requires the work to be done by humans. A ruling is expected soon.
Nevada is one of several states with Democratic legislatures that dramatically expanded mail-in voting. The Trump campaign sued unsuccessfully to block the state’s decision to distribute ballots to every registered voter. Nearly 1.8 million were mailed out and, as of Thursday, more than 500,000 had been returned. A Washington Post average of polls shows Biden leading Trump by four percentage points in the state.
On Friday, an RNC official said on a call with reporters that the GOP has requested similar information in other places, but declined to say where. He noted that Democrats have made such requests in Arizona. (Democrats sued officials in Maricopa County for information about rejected ballots, hoping to find the voters and help get their ballots accepted. A judge denied the request.)
The official said Clark County was a particular concern for Republicans because the county has “lowered the standard for matching signatures,” making it easier for ballots to be accepted there than in more Republican parts of the state.
But Gregory Zunino, a lawyer with the Nevada attorney general’s office who represents the secretary of state, defended the county’s balloting process. He said at a hearing this week that he believes the lawsuit is an effort by the Trump campaign to reduce the number of votes counted in a blue part of the state.
“They quite frankly would like to exclude as many ballots or signatures as they can,” Zunino said. “They want a high rejection rate in Clark County. It’s all about crunching numbers.”
David Weigel reported from Minneapolis. Alice Crites, Josh Dawsey, Amy Gardner, Elise Viebeck and Aaron Schaffer contributed to this report.