The top five “zombie lawsuits”

…And why they should all stay dead

Four days left, and the election subversion strategy — deceive, disrupt, deny — is in full swing. Election deniers are prepping the legal and political groundwork to try and reverse the results if Donald Trump does not win.

In other words, Halloween might be over, but “zombie lawsuits” are still lurking in every swing state. 

What’s a zombie lawsuit? 

It’s a case that by design has no chance of succeeding before the election. Because the goal is to plant a dead complaint somewhere in the legal system in the hopes that a court (or Congress) will use the claims as a pretext to overrule the voters afterwards. 

There are dozens of zombie lawsuits scattered across all the swing states, and they’re pretty much all fatally flawed. But looking at them together reveals what election subversion planners aim to accomplish. 

Here are the top five: 

Zombie 1: Suing to block military and overseas voters in MI, NC, and PA 

The issue: The RNC and allies have challenged “the legitimacy of ballots cast by U.S. citizens living abroad, including U.S. military members,” in Pennsylvania, Michigan, and North Carolina. These suits attack longstanding practices ensuring that overseas voters, including many members of the military, are able to vote, as required by federal law. That’s worth saying one more time — they are an attempt to disenfranchise members of the military serving overseas. In North Carolina, the lawsuit challenges rules that have been in force since at least 2011 and were adopted with bipartisan support. 

Why it’s a zombie: Putting aside the depravity of attacking the voting rights of servicemembers and their families — we know these cases are aimed solely at subversion. Why? Because they were filed after election officials had already started mailing ballots to overseas and military voters. That’s way too late to get a court to change things, especially when the rules have been in place for years. Yep, zombie. 

How it’s faring: Two of the three were dismissed and the third was denied (but has not yet been dismissed).

Zombie 2: Challenges to list maintenance in NV, AZ, WI, and other states

The issue: The RNC and others have sued various states over their list maintenance practices alleging that the state is not removing ineligible voters from the rolls. This is factually incorrect — the purported “evidence” is usually little more than reheated 2020 conspiracy theories. All states conduct regular list maintenance to account for voters who should no longer be registered. If you’ve ever moved to a different state, this has likely happened to you. (Read our deep dive on Nevada for a sense of these lawsuits.)

Why it’s a zombie: The election deniers waited to file until after the cutoff in federal law for states to make systematic changes to their voter registration lists (90 days before the election). In Nevada, the lawyers admitted they understood this, saying it “could take some time and perhaps, run past a November election.” Huge zombie alert. 

How it’s faring: Cases in Arizona and Wisconsin were denied, while some, like one Nevada case, are still pending, and others have just been filed. If you’re an election denier, I wouldn’t hold your breath. 

Zombie 3: Lawsuits seeking nonexistent immigration data from the federal government in NC, TX, and elsewhere

The issue: Various lawsuits — including one filed by Texas Attorney General Ken Paxton — accuse the federal government of failing to provide citizenship data for registered voters. These cases revolve around an amorphous allegation that the federal government is not doing enough to assist states in identifying non-citizens. 

Why it’s a zombie: Two reasons we know. One, they’re unusually amorphous, even for election denial litigation. They’re asking the government to provide data it apparently does not have. And two, they were filed very late. Texas sued just two weeks before Election day. 

How it’s faring: Pending — but again, don’t expect it to gain traction. 

Zombie 4: Suits against mail-in voting and dropboxes in NV, PA, MI, and AZ

The issue: Just as in 2020, the RNC and other allies have filed a flurry of lawsuits challenging various aspects of mail-in voting. Signature verification practices, whether late-arriving ballots can be counted, if voters can still vote provisionally if their mail-in ballot is rejected, whether ballots should still count if the post office makes a postmark error, and so on. 

Why it’s a zombie: Again, all of these cases are happening remarkably close to Election Day — but instead of federal law, these are generally falling afoul of the “Purcell principle,” the judiciary’s presumption against last-minute changes to the rules of an election. If these were serious concerns, they should have been filed a long time ago. 

How it’s faring: Almost all of them are failing, often in state supreme courts. Again though, that may be by-design. The point isn’t necessarily to change the rules, it’s to pre-register a complaint against them as a pretext to throw out the results. 

Zombie 5: Hand counting and certification rules in GA

The issue: Maybe the highest-profile zombie, the Georgia State Board of Elections — which is controlled by election deniers — attempted to enforce a set of radical election policies that would have seriously disrupted the counting and certification of results. Among other things, they attempted to give local election officials power to block the certification of results. (Read our deep-dive on the issue here).

Why it’s a zombie: While this one’s not technically a lawsuit — rather, it’s a set of poison-pill rules that the courts blocked — the dynamic is still the same. The argument will be that, because the proposed rules were not enforced, Georgia’s election results are somehow in question. 

How it’s faring: The Georgia Supreme Court didn’t mince words. The rules are blocked. 

Why these zombies should all stay dead

Here’s why you should sleep better, even though these zombies are out there: there is zero, zero, legitimate legal argument behind them. 

It’s not just that these lawsuits are factually divorced from reality. The strategy behind zombie lawsuits is blocked, in all states, by procedural legal doctrines against “electoral sandbagging.”

In a new paper that digs into how election law thinks about this stuff, John Paredes explains: Why using “zombie lawsuits” to challenge election results will fail.

As he says:

[S]tate common law doctrines aimed at preventing abuse of the courts prohibit this sort of sandbagging.

In particular, the doctrine of laches bars relief for lawsuits that should have been brought earlier, where the plaintiffs gain some unfair advantage through delay. Courts have reasoned that laches is particularly appropriate when litigants engage in “electoral sandbagging,” meaning litigants refrain from challenging an election law or practice before an election — or perhaps even support it — but then sue after the election to challenge the results if their candidate loses. 

That’s what happened in 2020 and again is what’s happening here. In many of these cases, the plaintiffs could have sued at any point in the last four years or more, and instead waited until the right before the election — or after voting began — when it’s legally and administratively too late to fix the issues they purport to identify. 

In other words, these election deniers may think they’re being strategic by getting their attempts to overturn the results into the courts before we have the results. But the flurry of litigation itself gives up the game. 

Filing not just one, but dozens of lawsuits after it’s too late for any of them to plausibly succeed removes any pretense that this is anything remotely resembling a good-faith legal effort. Courts can and will see through it, and politicians and the media should do the same. 

The bar to overturning an election is extraordinarily high

At the risk of beating a dead lawsuit — getting a court to overturn an election is very different from getting them to change the rules beforehand. It’s not impossible, but the legal bar tends to be extraordinarily high. 

As John writes:

The mere fact that an election irregularity could have been a “but-for” cause in determining the winner is not, on its own, always sufficient to establish a constitutional violation. Rather, the courts generally look for exceptional circumstances before finding a due process violation. Equal protection claims face a similarly heavy burden of proof: defective election administration that results in unequal treatment of similarly situated voters does not amount to an equal protection violation without “an element of intentional or purposeful discrimination.”

That is to say, it’s not even enough to say that your candidate should have won absent something that should have gone differently. You really do have to prove that an election was brazenly stolen, which…. Yeah, no. That’s not going to happen. 

Congress too will have no pretext to overturn

All that said, the ultimate aim may not be to get a court to overturn things, but rather for Congress to do so. At least, that was election deniers’ strategy in 2020. But even on that front, these zombies will be of little help. 

As John explains: 

Critically, both state law and the ECRA provide mechanisms to resolve disputes about election certification and the appointment of electors before they reach Congress. It is simply not Congress’s role to resolve disputes about alleged defects or irregularities in state election administration. Disagreement with a state’s approach to voter roll maintenance or how it administered an election would not be a valid basis for objection at the January 6th joint session. The ECRA permits only two grounds for objections: that electors were “not lawfully certified” or that the vote of one or more electors was not “regularly given.” Consistent with the purpose of the ECRA, these are narrow categories. As Senator Collins explained, “not lawfully certified” is limited to ensuring that the appointment is lawful under the terms of the ECRA. The “not regularly given” objection is focused on a specific set of post-election problems or controversies, such as an electoral college vote cast in the wrong form or that was the product of bribery or coercion. Neither objection category extends to disputes about alleged defects in basic administration of the election. Any objection to a state’s electoral votes that disputes not its electoral college appointments or the process of how its electors voted but rather that state’s administration of the general election would be unlawful under the ECRA. Again, such disputes are to be resolved under orderly processes under state and federal law long before the joint session of Congress meets.

Add all this up, and the reality is pretty clear. Per John, “no procedural alchemy can turn election deniers’ nuisance lawsuits into successful election challenges.” 

Unlike Halloween zombies, zombie lawsuits are real. But that doesn’t mean they can hurt you. 

Read the whole paper on why here.

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What else we’re tracking: 

• When will we know the results next week? Jiamin Huang and Brad Jacobson explain why we should be prepared to wait (but maybe not as long this time). 

• “How would we know if democracy had died?” Highly recommend this through-provoking BBC special featuring Jennifer Dresden and other prominent experts.  

• An often under-appreciated driver of rising authoritarianism? The lack of high-quality local journalism, writes Josh Stearns in U.S. News and World Report: Democracy dies without local news.

• Whatever happens next week, we are likely entering into a period of increased protest activity in the United States. Four of my colleagues argue that protecting civic space for peaceful protest must remain a top priority. 

• In Fast Company, Grant Tudor and Leadership Now’s Daniella Ballou-Aares explain the risks to the private sector from some of the threats made by Donald Trump and his allies — and the risks to business leaders if they remain silent: Conceding to extreme partisan demands is a losing bet.

• You’re going to hear a lot about “certification” in the next few weeks. JoAnna Suriani has a reminder in Just Security: Local officials cannot block election certification. But they can fuel disinformation.

Previously this post misstated the status of the North Carolina challenge against overseas ballots. That lawsuit has been denied — but not yet dismissed.