January 1, 2021
As President Donald Trump’s campaign and its allies piled up loss after embarrassing loss in court in recent weeks, the cheers from Democrats, liberal law professors and civil rights litigators built into a deafening, contemptuous roar.
But with Trump’s spectacular flame-out in the courts coming to an ignominious end, voting rights advocates are bracing for a morning-after legal hangover.
While many of the Trump suits died swiftly due to a profound lack of evidence or obvious flaws in the lawyers’ factual claims, judges used a broad array of legal grounds to nail the coffin firmly shut. Although the facts may be different in future cases, the procedural tools and theories used to scuttle the Trump cases are sure to be deployed against Democrats and civil rights groups in the coming months and years.
“There is some risk that some of these decisions that have come in post-election litigation could be bad for progressive plaintiffs going forward if you have courts choose to extend some of these doctrines towards pre-election challenges,” said Jon Greenbaum, chief counsel at the Lawyers Committee for Civil Rights Under Law. “There is some danger in that.”
Judges tossed out nearly all of the roughly 60 suits filed by the Trump campaign and its backers for a variety of reasons and, in many instances, individual cases were dismissed on many different grounds. Some judges said the Trump campaign lacked legal standing to challenge voting procedures. Others said Trump electors or individual voters lacked standing.
Many cases were thrown out for laches — a legal principle barring untimely suits. Others were declared to be moot or precluded by ongoing litigation at the state level. At least two suits were deemed to violate the Eleventh Amendment — the constitutional provision limiting federal-court litigation against states and state officials.
“The Trump campaign and their allies weren’t working with the most skilled lawyers,” said Loyola Law School professor Justin Levitt. “They weren’t paying close attention because, all of a sudden, they found out to their surprise that the courthouse doors are quite narrow. They’re only open a crack.”
Nearly every decision now stands as precedent that Republicans or state officials can seek to wield against Democrats or civil rights groups in the endless legal wars that surround the U.S. electoral system. Lawyers who handle such cases have no doubt the turnabout is coming, although they differ over its significance.
“The rulings on standing will be important down the road. They will make it harder for individual voters to have standing to bring these challenges,” Republican election lawyer Jason Torchinsky said. “We’ve also seen the federal judiciary is really skeptical about challenges to duly-enacted laws. This is going to make it harder for the left or right to bring challenges to voting laws.”
As a civil rights litigator constantly looking for creative ways to raise legal complaints in court, Greenbaum acknowledged that he doesn’t typically celebrate judges ruling that litigants lack standing to have their cases heard.
“I’m normally not a big fan of attacking standing, given the context that we’re usually the ones trying to establish standing,” he said.
The chief architect of the Democrats’ legal strategy, Marc Elias, said he doesn’t think the Trump cases had much impact on election law because the suits were rather obviously meritless.
“Those weren’t close calls,” Elias said of the rulings shutting the cases down. “They were not cases that represented difficult questions when the court had to draw a hard line.”
Elias, a partner at law firm Perkins Coie, added that he was “not overly worried” that the cases had damaged the future ability of genuinely injured voters and groups to bring suits. “Most of these cases were a caricature of a real voting-rights suit,” he said. “They weren’t plumbing the carefully drawn lines of standing doctrine. They were pretty much coloring outside the lines.”
Some judges also used another basis to throw out the Trump lawsuits — finding that the claims were too speculative to proceed. Those kinds of dismissals trouble many left-leaning lawyers because they deny court-ordered discovery like subpoenas and depositions in cases where litigants lack details about how they were defrauded or injured.
“I have misgivings about the extent to which it has become harder to access the courts and I think some of these election decisions rested on doctrine that has been used to restrict access to the courts,” said Alexander Reinert, a professor at Cardozo School of Law at Yeshiva University. But, he added, “I don’t think from a systemic perspective, there is any damage that’s been done that isn’t already being done in other areas. … I don’t think any of the cases stretched the law.”
Some lawyers cautioned that it’s too soon to pass definitive judgment on the Trump-related suits because of signs the U.S. Supreme Court may still take up a dispute from Pennsylvania that arose before the election and involves the power of state courts to impose voting-related rules that arguably contradict or go beyond what a state legislature dictated. Trump is seeking to intervene in that case, which was brought by GOP state senators and could affect voting procedures across the country if the high court chooses to hear it.
The reservations among some voting-rights advocates over the bevy of Trump defeats highlight another curious aspect of this particular chapter in the voting wars: a role reversal that saw Democrats and their allies seeking to knock the GOP cases out of court, while Trump’s legal team and its backers scrambled to adopt arguments that liberal civil-rights litigators have long pursued in the face of strident Republican opposition.
The head-spinning shift was on clear display last month during arguments before a federal judge in Atlanta over GOP efforts to force a more elaborate signature matching process for absentee ballots in the runoff Senate elections scheduled for Jan. 5.
In the lead-up to the November election, as Democrats and voting rights advocates were pushing courts to force more Covid-19-related accommodations in the voting process, Republicans urged strict enforcement of a legal theory called the Purcell principle — a line of Supreme Court rulings that discourage federal judges from making changes to election rules in the days or weeks before the vote.
However, during the Dec. 17 Atlanta court session, lawyers for the GOP argued for a minimalist interpretation of Purcell, insisting it is not an insurmountable obstacle to changing signature verification procedures in an election where absentee and early voting is already underway.
“The last time I checked, Purcell was not one of the first 14 amendments to the United States Constitution,” said Michael Francisco of law firm McGuireWoods, contending that the interest in pre-election certainty shouldn’t be allowed to trump the basic right to have the vote carried out fairly. “It doesn’t say you excuse constitutional violations just because you’re two weeks out from an election.”
And while civil rights lawyers and Democrats often advance lawsuits claiming that minority voters are suffering from “vote dilution” due to practices that give voters in one part of a state more influence or shift minority voters to districts where they’ll have little impact, a lawyer representing Democratic Party groups urged the Atlanta federal judge to reject arguments that Republicans’ votes are being diluted when local officials count absentee ballots without carefully scrutinizing the signatures.
Amanda Callais, also with Perkins Coie, dismissed the notion of “vote dilution” the GOP was advancing in the case and argued it amounted to a “generalized grievance that cannot support standing.”
The judge in the suit, Obama appointee Eleanor Ross, dismissed it on standing grounds alone. “The theory of future injury is too speculative,” Ross said.
The rejection of the Trump and GOP-initiated cases is in line with a decades-long trend — often advanced by lawyers and judges aligned with the conservative Federalist Society — to push back against a perception during the 1960s and 1970s that federal judges were issuing sweeping decisions in cases that lacked a firm basis under the Constitution.
Those conservatives argue for a narrow view of standing — they contend federal court lawsuits should only be brought by litigants who are directly injured by the government’s conduct and should not be used to obtain advisory opinions on the legality of various government policies or actions.
For his part, Trump seems clueless about the legal principles involved and baffled by his loss.
“The Supreme Court had ZERO interest in the merits of the greatest voter fraud ever perpetrated on the United States of America. All they were interested in is ‘standing’, which makes it very difficult for the President to present a case on the merits. 75,000,000 votes!” Trump lamented on Twitter.
Trump’s offhand dismissal of the standing issue — the sort of slight that might set off a brawl at a Federalist Society convention — indicates he lacks a basic grasp of the core principles extolled by the conservative judges he has nominated.
“Obviously, Trump does not have a very deep understanding of many of the things he tweets about, and I think maybe standing doctrine least of all,” said Jameel Jaffer of the Knight First Amendment Institute.
Jaffer, who was on the losing end of a standing ruling in 2013 from the Supreme Court over the National Security Agency’s surveillance programs, was tempted to find some wisdom in Trump’s tweet — before reversing course.
“There’s a kernel of truth in what he’s saying. … No. What am I saying? I’m giving him too much credit,” Jaffer said. “All he cares about is that he’s losing, and he has no idea what he’s talking about.”
The Trump election litigation also created some unusual ideological bedfellows, as liberal professors and litigators sometimes found themselves praising conservative jurists they rarely agree with.
One of the most significant rulings trouncing the Trump-related litigation was a federal appeals court opinion last month tossing out a lawsuit brought by well-known Georgia attorney Lin Wood. The ruling was authored by William Pryor, considered for many years to be the most conservative appointee on the federal bench.
Many who welcomed Trump’s legal rout said the outpouring of joy in their circles reflected not so much an endorsement of the courts’ increasingly miserly approach to voting litigation as satisfaction at seeing that restrictive rubric applied evenhandedly — and not altered to produce a particular political outcome.
“The cheering was a little bit for the rule of law, but I don’t think they’re actually cheering the substance,” said Levitt.
“Some people walked into this situation thinking judges are political actors and are going to vote according to their ideological priors,” Reinert added. “But judges, for the most part, have not. So, that’s a refreshing reminder what is different about the judiciary.”