When Donald Trump lost the presidency in November, Republicans blamed a pandemic-induced wave of mail-in ballots. Now, as the party looks forward to future elections, many leaders are trying to control election procedures more strictly.
The battle is being fought on two fronts: courts and state legislatures. The legal offense began first, launched soon after many media outlets called the election for President Biden. Its early highlights included a challenge to mail-in voting in Pennsylvania, attorney Sidney Powell’s Georgia “Kraken” lawsuit, and an original jurisdiction complaint filed by Texas and Trump to the Supreme Court.
More than 15 states signed on to the Texas lawsuit. When it failed, many legal experts said Trump’s last hopes for the White House sank with it. Still, the then-president’s allies vowed to fight on. That effort lasted until the day before Biden’s inauguration when Powell, one of the most prominent holdouts, folded and dropped her suit.
But for other Republicans, what was the war for Trump has become a more general fight against mail-in voting. There are still several election-related lawsuits before the Supreme Court, which the body declined to consider before Biden took office. If the court accepts any of them, they likely won’t be heard until at least October — well into Biden’s first year.
But the timing does not matter so much anymore, said Greg Teufel, a Pennsylvania attorney representing Rep. Mike Kelly, who appealed one of the original mail-in ballot disputes to the Supreme Court. The certification of Biden’s win mooted half of Kelly’s suit, but, according to Teufel, the questions pertaining to future elections in Pennsylvania are still pertinent. Teufel told the Washington Examiner after the Supreme Court decided to push off the case that the congressman had no intention of dropping it.
The law that Kelly is disputing is called Act 77. Pennsylvania state legislators passed the bill in 2019 with bipartisan support. It was developed before the coronavirus pandemic led many states to encourage an increase in mail-in voting. Trump and his allies brought forward more than 60 cases alleging illegal voting procedures.
A Virginia court ruled in January that some of the mail-in ballots cast in the state were illegal. The court wrote that, despite a last-minute rule change, any mail-in ballot without a postage stamp did not count toward the final tally. Although the ruling had little effect on the 2020 outcome — Virginia, in recent years, has become a solid blue state — election integrity advocates promoted it as a “big win for the rule of law.”
In most cases, a court victory is an unlikely path to make a meaningful mark on election procedure, said Rick Hasen, a law professor at the University of California-Irvine. Hasen, who is an expert on election law, told the Washington Examiner that Republican-led state legislatures are more likely to have success in suppressing mail-in voting.
“I don’t think litigation generally will be the path to rolling back early and mail-in voting,” he said. “It’s much more likely to happen through legislation.”
And in the 23 states where Republicans hold legislative majorities, many representatives have already put that legislation in play. There are more than 106 GOP-sponsored bills in 28 states seeking to tighten voting laws, the liberal group Brennan Center for Justice found in a recent report. Many of the bills seek to curb the mail-ballot expansion that occurred during the pandemic, as well as to introduce voter-ID laws.
Pennsylvania has seen the greatest increase in legislative proposals of all the states, the Brennan Center found. The state, which faced a series of fraud accusations from Trump and his associates, was the subject of an ultimately fruitless Justice Department investigation into the fate of several mail-in ballots. As Republicans seek to regulate or outright ban mail-in voting in the state, many Democratic advocates of the practice have rallied around the relatively scant evidence of fraud upturned.
Other states that have seen an increase in voting legislation include the swing states Arizona, Wisconsin, and Georgia. In all three states, Republicans fought into 2021 to stall the certification of Biden’s win.
Republicans in Nebraska, which gave up one of its five Electoral College votes to Biden, in January also moved to remove electoral procedures thought to have given Biden an advantage. State Republicans introduced a bill to bring back the winner-take-all electoral vote, which has been a party goal since the 1990s. Biden split the state’s Electoral College votes in 2020, the first presidential candidate to do so since Barack Obama in 2008.
Although the drive to curb mail-in voting is being driven almost exclusively by Republicans, Hasen said that he does not see a scenario where changed laws will necessarily benefit either party in the long term.
“Turnout was up among both Democrats and Republicans,” he said of the 2020 elections, saying the hope that changing mail-in voting laws will help win elections is a “mistaken belief.”
