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Last month, state officials and voters gathered in Harrisburg, Pennsylvania, for a community event called Trust in Our Elections, and the moderator addressed an elephant in the room. In twenty twenty, we saw dozens of lawsuits here in Pennsylvania tied to the presidential election. Dozens of lawsuits tied to the twenty twenty election, and that number is only growing in Pennsylvania
and across the US. Since Donald Trump first contested his loss to Joe Biden four years ago, advocacy groups, plus the Republican and Democratic National Committees have raised questions about the way elections are run in states around the country, from who gets to vote to how final vote tallies are decided, and many of those questions have ended up
in court. So the moderator at that Pennsylvania event wanted to know how unusual was that in his that have changed the role of the court's play in our elections. Here's what Judge Robert Gracie, a former appellate court judge in the state, had to say.
I usually would be an understatement.
Today on the show, we explore the role courts are already playing in the twenty twenty four presidential election. I'm joined by Bloomberg reporter Zoe Tilman, who spent the past months researching what the courts are weighing right now and how those cases could impact who can vote and how their votes can be counted. From Bloomberg's Washington bureau. This is the Big Take DC podcast. I'm Seleiaolsen. Zoe Tilman covers the intersection of law and politics for Bloomberg News.
Heading into this election year, she wanted to keep track of all the election related litigation.
It started as just a reporting tool for me, and then when the editors learned I was putting all this data in a spreadsheet.
It was like, can we let's do something?
Do something with that s the thing that lives in my brain all the time.
Zoe identified one hundred and sixty five lawsuits filed since the start of twenty twenty three, challenging nearly every dimension of this year's presidential election. That doesn't include redistricting cases or lawsuits about what issues can go on the ballot. These are just cases that deal with how voting will happen and how the outcome will be finalized. More than half of those cases were filed in the seven swing
states that could decide the election. Zoe told me that there's always some amount of litigation leading up to an election, but this year is different when it comes to the number and scope of the cases. And she says, all this was kicked off four years ago during one of the more complicated elections in US history.
Twenty twenty really upended what we would consider to be a normal amount of litigation and how much an election should wind up in court.
Four years ago, voting was uniquely difficult. The pandemic meant many states were on lockdown and a record number of Americans wanted options to mail in their ballots or vote. Early. States and counties adjusted their typical voting procedures accordingly.
And that was spurring all kinds of legal action over whether they could do that, how that would work, are they doing enough? And I think it really adjusted the mindset of people who work in this space, as well as the general public, as far as the role that courts could play ahead of November in shaping the total experience of voting. Where you cast your ballots, what happens if you put your ballot in the mail and there's a mistake, do you get a chance to fix it?
All of that suddenly bubbled up, and it was up to judges to make these decisions. Fast forward four years, and what we've seen is sort of an extraordinary increase in what we would have normally seen before the pandemic. It was not normal to see this volume and this breadth of legal action ahead of November.
So in your research, you have broken these election cases down into four categories. Can you walk me through what those are?
Yes? So, first and foremost, who can vote?
Okay, so that's a big question, big question. What are the lawsuits that are being raised there?
What you might normally think of when you think about who can vote? Who is eligible? You know, we know you have to be a certain age, you need to live in the place where you're voting. For local officials, these basic questions, there are still fights over, for instance, what happens if you've had a felony conviction on your record? Can you vote later? And states are still sort of
hashing out that question. A newer cluster of cases that we're seeing is right leaning conservative advocacy groups and the Republican Party going into court to say we don't think you're doing enough to purge your roles of people who
aren't eligible to vote. States have been defending against these claims, saying, we use practices that have been standardized over the years that are in compliance with federal law, and sort of the overarching context of these cases is is contributing to this idea that there is just something wrong with how elections are happening.
Okay, so that's who can vote? What's next on the list of categories.
So the next very you know, small question is how do you vote?
All right? So that's absent d voting. Whether people should be allowed to drop about in the box, that sort of.
Thing, exactly everything around the process of voting. Can you register online? Do you need a witness when you send in your registration application? Do you need to show certain types of IDs? Are certain types of IDs not? Okay? Every facet of Once you're you know, presumably eligible to vote, what does the experience look like for you getting your ballot cast?
Okay? And what's the next category?
Next category? And this one cases tend to get more into the weeds, but it's it's critical which is which votes count?
Shouldn't everyone's vote discount?
You know, I'm all about the franchise, But there are a lot of state laws about what makes for a valid ballot. So, for instance, a big fight in Pennsylvania right now is there's a law in the books in Pennsylvania that says, if you've put your absentee ballot package in the mail, there's a certificate on the envelope that you have to sign and date, and if you forget to date it, that ballot can't be counted. The Republican Party and conservatives generally favor more restrictive practices when it
comes to absentee voting. The common theme that we hear coming out of the right is that absentee voting, because you're no longer within the confines of a physical space to cast your ballot, couldn't this open the door to interference, fraud, tampering. You know. The response from election officials is no, that this is time tested, it's secure. People have been voting
absentee for it's like hundreds of years. There were examples from the Civil War, you know, when soldiers were out in the field, they arranged for them to cast ballots and get those back to the precinct. So we're seeing these fights over things that seem so to a normal person sort of insignificant or ministerial. If my ballot arrives on time, why does it matter what date I've put on the envelope.
So you've walked me through the first few categories, who can vote, how people can vote, and which ballots count? What's the final one?
Final one is who wins? How do we decide?
We'll be back in a moment. I've been talking to Bloomberg reporter Zoe Tilman about lawsuits moving through courts across the US, challenging everything from how people vote to who can vote. But there's another crucial category of lawsuits, how we sortify election results to decide who wins. Here's Zoe.
So this is also a relatively newer area of litigation that we've seen this year. And the context for that is again twenty twenty election, where as it became clear that Donald Trump had lost, and particularly had lost in several key battleground states, there were efforts to get state lawmakers, election officials, and then members of Congress to either delay or block certifying those results officially. There was talk of could they send it back to the states to take
another look, or do investigations. Legally, the answer to those questions, experts said was no, but there was still this public
push to try to make it happen. Good example of this is in Georgia, where the state election board passed some new rules, and this was a Republican led majority on the board basically empowering local election officials to conduct a reasonable inquiry into the election before they certify, and that raised all sorts of alarms, particularly for folks on the left and Democrats, who said, wait a minute, you're sort of giving a green light either implicitly or explicitly
to these local officials who have a mandatory duty to certify, to say, maybe you don't, Maybe there's discretion there, maybe you get to do your own investigation into how the election went, and who knows what happens from there.
More than half of the court challenges come from the right. For the most part, they're seeking to tighten the rules around voter eligibility, absentee voting, and vote counting. The left is challenging laws that they believe restrict access to voting or increase the chances of people's votes not counting. Zoe. What have election experts had to say about the increasing rule that courts are playing in politics.
They don't love it. Courts are not supposed to decide elections. Courts are not really supposed to play a big role in choosing our elected leaders. It's for the voters to decide. And I think for a lot of people, two thousand was a bit inflection point when we had the Supreme Court coming in in the fight over a very small margin of votes in Florida and basically deciding who won the White House. There's a lot of concern that that's the direction we're headed in now.
So far, for all the cases working their way through courts, there's been mixed success. The RNC, for example, want and order limiting voter ID options for college students in North Carolina.
But just this week.
Georgia judges blocked a rule that would require ballots to be hand counted and declare that county election officials have a mandatory duty to certify results. A lot of the cases are still pending, and Zoe says judges are aware that any cases left unsettled by election day had the potential to appen voting processes. In some cases, courts are trying to fast track the suits in the hopes of settling them before November fifth, So.
We expect resolutions in some of those cases, but in a lot of them, especially ones that were filed later in the summer early fall, asking really big questions like our states doing enough to maintain their voter roles. There's little to no chance that a judge is going to rule on those before the election.
So what's the point. Is it just to get people's attention.
Critics would say, yes, that these are just messaging exercises. I spoke with one of the lawyers who heads up voting rights issues for the American Civil Liberties Union who said, to us, it's not about winning or losing, It's not about the outcome. It's just part of messaging. And if, of course, the Republican Party and folks on the right would say we're filing these cases to see them through, I think they would dispute that they're not filing these
in good faith. But I think it's accurate to say that we're seeing a lot of cases being filed late in the game. So I think it does raise the question of is it a long game or is there some short term purpose achieved by doing this? Even if you're not getting a ruling before November fifth.
Whether the majority of these cases are settled by election day or not, Zoe says, just raising these questions alone can stoke uncertainty about the outcome of the election.
Litigation by its nature is adversarial. Someone has to come in and say I was wronged, something went wrong. There is a problem that the court needs to fix. So inherently, when you bring a case about election process into court, you are at a minimum raising a question of whether something is going on that shouldn't be going on. It creates suspicion and a resolution could be months years out. So you've planted the seed of concern and it's just
allowed to sort of continue. The metaphor not a gardener but like germanate right.
Thanks for listening to The Big Take DC podcast from Bloomberg News. I'm Salaiamos. This episode was produced by Julia Press with support from Thomas lou It was edited by Aaron Edwards and Janet Paskin. It was mixed by Alex sugia In, fact checked by Adriana Tapia. Special thanks to Katrina Manson for sharing her reporting from the Pennsylvania election integrity event. Naomi Shaven, who also edited this episode, is
our senior producer. Wendy Benjaminson and Elizabeth Ponso provide editorial direction. Nicole Beemsterbower is our executive producer. Sage Bowman is Bloomberg's head of podcasts. Please follow and review The Big Take DC wherever you listen to podcasts. It helps new listeners find the show.