The lurking danger of zombie lawsuits

Election deniers are suing — but not to win

In the United States, a flurry of litigation before elections is the new norm.

These lawsuits usually aim to influence how the election is going to be run. Obviously. Why file a lawsuit over election rules unless you’re trying to get them changed? 

Except, this year something different — something strange — seems to be happening. 

According to The New York Times, there are almost 90 anti-voting lawsuits filed in different states. Per Danny Hakim, Alexandra Berzon, and Nick Corasantini, this litigation is an outgrowth of lies about the 2020 election: 

Voting rights experts say the legal campaign appears to be an effort to prepare to contest the results of the presidential election after Election Day should former President Donald J. Trump, the Republican nominee, lose and refuse to accept his defeat as he did four years ago. The lawsuits are concentrated in swing states — and key counties — likely to determine the race. Several embrace debunked theories about voter fraud and so-called stolen elections that Mr. Trump has promoted since 2020.

(Their whole article — gift link here — on the scope of the legal effort and the resources being poured in is excellent, I recommend reading in full.)

Here’s the thing though. Many of these cases don’t seem to have any hope of winning, at least not before Election Day. The timing doesn’t make sense, the claims are nonsensical, the likely remedies are impractical (or impossible), or something else in the litigation strategy is fundamentally flawed. Many — if not most — clearly won’t impact the election. 

Why are so many quixotic, seemingly frivolous lawsuits being filed? One explanation: This is all about undermining trust and creating a generalized impression that our elections are insecure. They’re part of a messaging strategy, not a legal strategy. As Jessica Marsden told the Times, “Putting false claims in the form of a lawsuit is a way to sanitize and add legitimacy.”

That’s almost certainly part of the picture.

There’s also another possibility — not mutually exclusive, but even more insidious. These lawsuits could be like zombies. They’re clearly dead before the election. But if Donald Trump loses, they could rise again in an attempt to overturn the results. 

Case study: The Trump campaign sues Nevada 

On September 11th — less than two months before Election Day — the Trump campaign and the RNC sued the Nevada Secretary of State and the DNC, claiming that the state is not preventing noncitizens from registering to vote. 

First off, let’s be clear the claims in this suit are pure fantasy. The so-called “evidence” presented is fast approaching Four Seasons Total Landscaping-territory (seriously, it’s mostly just recycled claims from 2020).

But put aside the substance for a second — just look at the timing. The suit was filed 54 days before Election Day. Under federal law, voter rolls cannot be systematically changed starting 90 days before Election Day.

One of the Trump campaign’s lawyers seemed to admit the timing was a non-starter in a hearing: 

We understood, of course, when we filed the lawsuit that a lot of this, especially in discovery, could take some time and perhaps, run past a November election.

So why on earth did these people wait so long to sue? And why are they so unconcerned that this won’t be resolved before Election Day? 

As my colleague Ben Berwick told the Nevada Independent (whose reporting on all this is best-in-class), there’s a twisted logic to it:

[They will] claim that we don't really know the true outcome, that certain categories of ballots should be thrown out as illegitimate, that there is fraud, that noncitizens are voting, that the voter rolls can't be trusted. And I think we will see that both as the basis to argue that this county shouldn't certify their results, and also probably as a basis to bring post-election litigation.

Clues to a post-election legal strategy

There’s a doctrine in election law called “laches” that blocks unreasonable delays in filing a lawsuit. As law professor Rick Hasen summarized in 2020:

The bottom line is that if you think there is a problem with how an election is being run, you need to go to court at that point to sue about it; you can’t wait to see how the election turns out and then do it.

Many of the most bonkers litigation claims during the effort to overturn the 2020 election never got anywhere in part because of laches (also because they were bonkers and based on no actual evidence).  

To put it bluntly, the point of lawsuits like the one in Nevada may be to attempt an end run around laches, to claim that certain objections were raised sufficiently in advance that a court can have a pretext to step in even after Election Day.  

Think of it as planting a legal flag saying “hey, we reserve the right to ask you to intervene if things don’t go our way on November 5th.” Not to actually decide which Nevadans can vote. Rather, to throw out the results if Nevadans don’t end up voting for Donald Trump. It is a transparent effort to invent a legal loophole, and it should fail. 

Zombie lawsuits are designed to target all voters

If these lawsuits rise again in a post-election subversion effort, it would be to throw out the results en masse. Just like in a zombie apocalypse, no one would be safe. 

After Election Day, you often can’t disqualify specific voters based on eligibility. To maintain secrecy over who we each voted for, individual ballots don't have identifying information to link them to a specific voter. (For absentee ballots, the identifying information used to verify a voter's status is separated from the ballot once it has been verified.) Once a ballot has been tabulated, you can’t go back and disqualify an individual voter; their vote is already in the pile. By structuring their litigation strategy to come to a head after votes are cast and counted — when it’s no longer possible to sort through individual voters — they’re aiming at the overall result. 

The goal seems to be to convince a court to void everyone’s votes in a given jurisdiction. All of them.

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To be clear, these zombie lawsuits are unlikely to succeed. If this all sounds fantastical, that’s because it is. Just like the campaign to overturn the 2020 election — which was built on the flimsiest of conspiracy theories — we’ve clearly left the realm of reality behind here. But regardless of whether this legal strategy will get anywhere, in any courtroom, it telegraphs a clear intent to subvert the election if Donald Trump loses. 

So, just like in 2020, together we can ensure that a free and fair election prevails. (We’ll have more soon on what that looks like.) 

For now, it's good to see state officials strongly defending their procedures — and in many cases voting rights groups have also intervened to defend the rights of voters who would be disenfranchised by these suits. 

Thankfully, in our legal system, truth matters. Above all, that’s why these zombie lawsuits are likely to fail. Don’t take that from me though. Take it from Donald Trump’s former lawyer, Ty Cobb, who told the Times:

The one thing they need in court is evidence… They didn’t have any last time, and they’re unlikely to have any this time.

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Ian Bassin and Justin Florence in Time100 Next

This week, my colleagues Ian Bassin and Justin Florence were named in TIME’s list of the next 100 most influential people in the world, which is pretty rad on its face — but even more so, John Dean wrote the blurb about Protect Democracy’s work. Dean aptly summarizes the task ahead for all of us, read it here. 

Our interview with John Dean from August: Even Richard Nixon “would be horrified”

In case you missed it, Ian and Justin reflected earlier this week on the historic stakes of the moment we’re living through — and all the things each of us can do to put democracy first: Our democracy is in the balance.

The gist:

Every few generations, our democracy comes to an inflection point. There are moments when the swirling forces of history come to a head and we Americans, collectively, get to decide whether to move towards a more perfect democracy. Or if our democracy moves backwards towards the lower points of American history… 

We are living through our pivotal moment. Right now. 

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What else we’re tracking: 

• Two must-reads in The New York Times on the possibility of DOJ weaponization. First, the expert view: “In a survey of 50 members of the D.C. legal establishment, many warn that Trump could follow through on his threats to prosecute his political adversaries.” Second, an interactive step-by-step of what prosecuting his enemies would look like. 

• Wednesday, much of the mountains of evidence against Donald Trump for alleged crimes in the effort to overturn the 2020 election was unsealed. Many revelations, Politico summarizes the 11 most explosive here. One small detail stands out to me: When told Pence was being evacuated to a safe location, Trump replied: “So what?”

• John Harwood has been one of the clearest voices for why and how journalists should cover threats to democracy unflinchingly. Ian Bassin joined his podcast this week to talk about the long haul. Listen here.

• This week, Protect Democracy launched OpenOMB.org, a new tool for tracking apportionments. William Ford, Megan Lyle, and Alan Palazzolo explain what apportionments are and the core question the tool is designed to help users answer: Is the president following the law when it comes to spending?

• A new Gallup poll found 58% of Americans want a third party. Farbod Faraji explains what this means and what would need to happen for that to be a reality. 

• On Wednesday, a federal court enjoined California’s new deepfakes labeling law, but thankfully — and tracking an amicus brief we filed in support of neither side — the Court did not hold that such laws necessarily violate the First Amendment.

• In Lawfare, Kenneth Parreno, Christine Kwon, Victoria Bullock, and John Langford walk through the various tools available to confront deepfakes and election lies in 2024. 

• A reminder to anyone considering attempts to subvert the 2024 election: doing so could have legal consequences. This week, Tina Peters, a former election clerk in Colorado, was sentenced to nine years behind bars for election interference based on conspiracy theories about the 2020 election. 

• “The hard and sacred work of renewing democracy.” A wonderful reflection on faith, providence, reimagining, and what’s so special about American democracy, by Thodore Johnson. “Whether we the people will be a match for the moment is entirely up to us; the handbasket is in our grasp. And we get to decide what America will be, come hell or high water.”