Before voters even begin casting ballots, Democrats and Republicans are engaged in a sprawling legal fight over how the 2024 election will be run, a series of court disputes that could even run past Election Day if the outcome is close.
Both parties have bulked up their legal teams for the fight. Republicans have filed more than 100 lawsuits challenging various aspects of vote-casting after being chastised repeatedly by judges in 2020 for bringing complaints about how the election was run only after votes were tallied.
After Donald Trump has made " election integrity " a key part of his party’s platform following his false claims of widespread voter fraud in 2020, the Republican National Committee says it has more than 165,000 volunteers ready to watch the polls in November.
Democrats are countering with what they are calling “voter protection,” rushing to court to fight back against the GOP cases and building their own team with over 100 staffers, several hundred lawyers and what they say are thousands of volunteers for November.
Despite the flurry of litigation, the cases have tended to be fairly small-bore, with few likely impacts for most voters.
“When you have all this money to spend on litigation, you end up litigating less and less important stuff,” said Derek Muller, a law professor at Notre Dame University.
The stakes would increase dramatically should Trump lose the election and then try to overturn the result. That’s what he attempted in 2020, but the court system rejected him across the board. Trump and his allies lost more than 60 lawsuits trying to reverse President Joe Biden’s win.
Whether they could be successful this year depends on the result of the election, experts said. A gap of about 10,000 votes — roughly the number that separated Biden and Trump in Arizona and Georgia four years ago — is almost impossible to reverse through litigation. A closer one of a few hundred votes, like the 547-vote margin that separated George W. Bush and Al Gore in Florida in 2000, is much more likely to hinge on court rulings about which ballots are legitimate.
“If he loses, he’s going to claim that he won. That goes without saying,” Rick Hasen, a law professor at the University of California, Los Angeles, said of Trump. “If it looks like what we had last time … I expect we’ll see the same kind of thing.”
Trump has done nothing to discourage that expectation as he seeks his return to the White House. He has said he would accept the results of the election only if it’s “free and fair,” which raises the possibility it would not be, something he continues to falsely contend was the case in 2020. He also continued to insist that he could only lose due to fraud.
“The only way they can beat us is to cheat,” Trump said at a Las Vegas rally in June.
To be clear, there was no widespread fraud in 2020 or any election since then. Reviews, recounts and audits in the battleground states where Trump disputed his loss four years ago all affirmed that Biden won, and Trump’s own attorney general said there was no evidence that fraud tipped the election.
Trump installed his daughter-in-law, Lara Trump, as co-chair of the Republican National Committee, which then named attorney Christina Bobb as the head of its election integrity division. Bobb is a former reporter for the conservative One America News Network who has been indicted by Arizona’s attorney general for being part of an effort to promote a slate of Trump electors in the state, even though Biden won it.
Echoing its presidential candidate, the RNC said it's trying to counter Democratic mischief.
“President Trump’s election integrity effort is dedicated to protecting every legal vote, mitigating threats to the voting process and securing the election,” RNC spokeswoman Claire Zunk said in a statement. "While Democrats continue their election interference against President Trump and the American people, our operation is confronting their schemes and preparing for November.”
This time around, Democrats say they’re prepared for whatever Trump and the RNC might do.
“For four years, Donald Trump and his MAGA allies have been scheming to sow distrust in our elections and undermine our democracy so they can cry foul when they lose,” Jen O’Malley Dillon, Vice President Kamala Harris’ campaign manager, said in a statement. “But also for four years, Democrats have been preparing for this moment, and we are ready for anything.”
The highest-profile litigation so far has been in Georgia, over new rules from a Republican-appointed majority on the Georgia State Board of Elections that has echoed the former president’s conspiracy theories about 2020. The rules could allow members of local election boards to try to refuse to certify elections, a gambit Trump supporters have tried, unsuccessfully, to reverse losses in 2020 and 2022.
A Trump-aligned group has sued to have courts declare that election board members have that power while Democrats have sued to overturn the new rules. Georgia Secretary of State Brad Raffensperger, a Republican, has questioned the wisdom of the board changing procedures so close to the election. Legal experts say the state board's rules conflict with longstanding Georgia law that certification is not optional.
Whether local boards delay or refuse to certify the results from this year's presidential election has been a growing concern, especially after a handful of local officials took that step during this year's primaries. But election experts say the fears of a certification crisis this fall are overblown, in large part because most state laws are clear that state or local boards must certify the official results brought to them by election offices. The courtroom remains the most important venue for candidates who want to challenge election results.
The litigation to date has often been about relatively esoteric matters, but some cases could have implications after November if Trump loses the election. The RNC has filed lawsuits in Michigan, Nevada and North Carolina alleging the states need to remove inactive or ineligible voters from their rolls. Late last month, Republicans sued North Carolina over a favorite issue — the risk of noncitizens voting, which is rare. They contend the state wasn't doing enough to safeguard against it.
So far none of the claims have succeeded. But if Trump loses the election in those states by a narrow margin, that sort of pre-election litigation could pave the way for him to claim in court that the vote was invalid.
The other area that could have ramifications in November and beyond is whether mail ballots arriving after Election Day can be counted. Nineteen states allow that as long as the ballots are sent before polls close. The RNC sued to overturn this provision in Nevada and Mississippi, but both cases were dismissed by judges.
The RNC has appealed those cases, and the first is scheduled to be heard by the 5th U.S. Circuit Court of Appeals later this month. It’s the sort of issue that could end up before the U.S. Supreme Court. Some Trump allies in 2020 hoped the court would declare him the winner, but the late-arriving mail ballot litigation at the time showed the limits of that tactic.
The Pennsylvania Supreme Court ruled that the state had to count mail ballots that arrived up to four days after Election Day. Republicans then appealed that ruling to the nation’s highest court, and late-arriving mail was counted separately in November 2020 while everyone waited for the Supreme Court to weigh in.
In the end, the Supreme Court didn’t take up the case. Trump lost Pennsylvania by more than 80,000 votes, so the 10,000 late-arriving mail ballots wouldn’t have even made a difference.
FILE - State Election Board member Rick Jeffares asks the crowd to settle down during a hastily planned State Election Board meeting at the Capitol in Atlanta, July 12, 2024. (Arvin Temkar/Atlanta Journal-Constitution via AP, File)/
WASHINGTON (AP) — The indictment charging Donald Trump with hoarding classified documents leveled one jaw-dropping allegation after another, including that he showed off a secret Pentagon attack plan to guests at his golf club and suggested his lawyer mislead the FBI about the presence of the White House records.
But those details proved beside the point to the Trump-appointed judge presiding over the prosecution, who dismissed the case on grounds that the special counsel who brought it was unlawfully put in the job.
A separate criminal case accusing Trump of conspiring to overturn the outcome of the 2020 election seemed an opportunity for a trial this year focused on Trump's failed effort to retain power after his loss to Democrat Joe Biden.
But the Supreme Court erased that possibility with an opinion that granted former presidents expansive immunity from prosecution.
A year that began with the prospect of a federal court reckoning for Trump will end without any chance of a trial, leaving voters without the finality of an up-or-down jury verdict in the two most consequential cases against the Republican presidential nominee. Yet both cases still loom over the election, their potential resurgence in the coming months making clear that at stake on Nov. 5 is not only the presidency but also possibly Trump's liberty.
If Trump loses to Democrat Kamala Harris, he is at risk of trial and possible conviction in the classified documents case, assuming a federal appeals court revives it, or in the election interference case, where prosecutors issued a new indictment after the Supreme Court's immunity opinion.
If Trump wins the White House, his attorney general could end both cases, and an already delayed sentencing in his state hush money case in New York — his only prosecution to reach a jury and end with a conviction — will be in even further flux.
That neither federal case made it to trial despite being brought well over a year ago highlights the complexities of prosecuting a former president and represents a vindication of sorts of the Trump team's strategy of delay. It’s also a reflection of the immense hurdles prosecutors encountered before Republican-appointed judges, some of them selected by Trump, who in one case articulated a hugely expansive and novel view of presidential power and in the other appeared deeply skeptical of the prosecution’s premise well before derailing it.
“The reality is that efforts to hold the former president legally accountable (before the election), independent of the realm of politics, have failed in a wide variety of venues for a wide variety of reasons,” said Temple University law professor Craig Green.
“And what that means is it’s up to the American people” — not the courts — “what they have in mind for their future president.”
The dismissal of the classified documents indictment was especially stunning because the case was seen inside the Justice Department and by legal experts as the most legally straightforward of the Trump prosecutions. Unlike the election interference case, it concerned behavior that occurred after Trump had left office in January 2021 and for which federal prosecutions are routine.
The outcome followed nearly two years of tensions between prosecutors and Aileen Cannon, a federal judge in Fort Pierce, Florida, with scant trial experience whose relationship with special counsel Jack Smith's team had long ago soured and whose willingness to entertain all manner of motions by Trump's defense lawyers had snarled the case before its eventual dismissal.
An indication of just how far afield the case had strayed from core factual issues was evident during a June hearing where Cannon occupied herself with the so-called Reno Regulations, the Ethics in Government Act and an esoteric legal principle, the “de facto officer doctrine.”
By day’s end, the government’s simmering exasperation had boiled over, with prosecutor David Harbach complaining that because of Cannon's persistent questions, he'd been able to make only one of his points.
“Mr. Harbach,” she snapped. “I don’t appreciate your tone. I think we’ve been here before, and I would expect decorum in this courtroom at all times.”
The hearing ended without a ruling.
But three weeks later, and two days after Trump survived an assassination attempt at a campaign rally in Pennsylvania, Cannon dismissed the case. Siding with Trump's arguments, she ruled that Smith had been appointed illegally by Attorney General Merrick Garland and should have been subject to confirmation by the Senate. Smith appealed, calling Cannon's ruling contrary to decades of precedent.
It's unclear how long it will take for the appeal to resolve, but if Cannon's opinion is overturned and Trump loses the election, prosecutors would be able to resurrect compelling evidence accrued during the investigation.
That includes an audio recording of Trump boasting of a sensitive document he said he knew was classified and security camera footage showing boxes of records being moved from a storage room at Mar-a-Lago, his Florida home, days before investigators came to collect documents. When that June 2022 visit occurred, a Trump lawyer handed over a single folder even though boxes of files remained at the property.
That August, the FBI recovered 11 sets of classified documents during a search of Mar-a-Lago, an action that followed heated disagreements between FBI and Justice Department officials focused less on the strength of the evidence and more on whether it was the appropriate investigative step.
Trump has maintained he did nothing wrong by retaining records from his presidency.
The investigation was far along by the time Smith, a war crimes prosecutor in The Hague and a known commodity inside the Justice Department who'd been brought in more than a decade earlier to lead its public corruption section, was appointed by Garland in November 2022.
Once on the job, Smith took steps to press the case toward indictment — his team successfully argued before a federal appeals court to secure grand jury testimony from a lead Trump lawyer, M. Evan Corcoran, whose cooperation Trump had sought to block by invoking attorney-client privilege.
Though Trump's legal peril had long been clear, one late surprise surfaced when prosecutors began presenting evidence to a grand jury in Florida — rather than the one in Washington they'd been using — to obtain the indictment. After all, the documents were found in Florida and indicting the case there would avert a court fight over proper venue.
The decision carried significant risk.
Before the indictment was unsealed, word came that the case had been assigned — randomly, the court clerk said — to Cannon.
It was an unwelcome development for a Justice Department that had tangled with her a year earlier when she ruled in favor of Trump's request for an independent arbiter to review the records seized by the FBI. That order was overturned by a unanimous federal appeals panel after prosecutors vigorously objected.
The fraught dynamic resumed where it had left off as prosecutors’ desire for a trial collided with Cannon’s deliberative, often quixotic, style that permitted drawn-out disputes on seemingly peripheral motions and produced flashes of exasperation.
When Cannon initially permitted the defense to file a motion that would include names of government witnesses, prosecutors implored her to reconsider, citing what they said were security risks. (She later agreed to have the witness names redacted). When she asked the two sides to formulate jury instructions, prosecutors complained she had articulated a “fundamentally flawed" premise of the case.
Under her watch, long-shot defense requests lingered for months, causing delays that led her to indefinitely postpone the trial date. She held a hearing on Trump's legally questionable claim that he was permitted under the Presidential Records Act to take the files to Mar-a-Lago, and agreed before dismissing the case to revisit a different judge's order that gave prosecutors access to Corcoran, Trump's lawyer.
Smith's team had hoped for a trial that could have started months ago. Instead, prosecutors found themselves before Cannon for a multiday hearing in June over Smith's appointment, where Harbach lamented that defense lawyers had been permitted to “hijack” the proceedings with what he said were frivolous arguments.
Days later, Trump's lawyers got an unexpected lift from the Supreme Court immunity ruling, which included a concurring opinion from Justice Clarence Thomas backing their position that Smith's appointment was illegal.
Just like that, an argument that to many legal experts seemed dubious had an endorsement from a member of the nation's highest court.
Even as frustrations mounted, department officials never sought Cannon's removal from the case, a low-probability request that likely would have exacerbated relations had it failed. They did not do so even when they told the Atlanta-based 11th U.S. Circuit Court of Appeals in August that her order dismissing the case relied on a “nonsensical” analysis.
The appeal is pending before that court, which has the option to reassign the case if it reverses Cannon's ruling.
Late last year, the judge overseeing Trump's election interference case was pushing toward trial.
With an eye toward a March 2024 date, U.S. District Judge Tanya Chutkan planned to summon District of Columbia residents to complete a questionnaire, a step toward winnowing the potential juror pool. Officials braced for a crush of reporters covering the historic trial.
It screeched to a halt in December.
From the start, allegations that Trump broke the law through actions he took in the White House seemed destined for a protracted court fight testing the limits of presidential power. So it was hardly surprising when Trump's lawyers demanded the case's dismissal, arguing he enjoyed absolute immunity from prosecution.
Chutkan, who was nominated by Democratic President Barack Obama, rejected the argument with a December ruling that said the office of the president “does not confer a lifelong ‘get-out-of-jail-free’ pass.”
But crucially, she put the case on hold to give Trump time to appeal to Washington’s federal appeals court and ultimately the Supreme Court.
It would be nearly a year from the time the case was frozen before it was back in Chutkan’s courtroom. By then, the indictment was slimmed down, and it wasn’t clear when — if ever — there would be a trial.
The investigation into the attack on the Capitol on Jan. 6, 2021 — which has become the largest in Justice Department history — had consumed agents and prosecutors by the time Garland was sworn in as attorney general two months later.
Prosecutors had begun charging rioters through a bottom-up investigative strategy heavily focused on the most violent offenders who attacked police and far-right militia group members who were suspected of planning and coordination. Another investigative effort searching for financial ties between the rioters and Trump allies ultimately hit a dead end.
One year into the investigation, Garland defended the department’s deliberate pace as pressure mounted for the Justice Department to hold accountable more than just those who stormed the seat of American democracy.
“The Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy,” Garland said at the time. “We will follow the facts wherever they lead.”
The facts led squarely to Trump, according to a conspiracy and obstruction indictment filed nearly nine months after Smith's appointment. Trump, for his part, has repeatedly maintained that he was entitled to challenge an election that he still insists was stolen even though judges and his own attorney general concluded otherwise.
The Trump team's pursuit of immunity claims, which Chutkan swatted away without a hearing, snarled the case before it could ever develop.
Without ever explicitly mentioning the 2024 election, Smith’s team in December asked the Supreme Court to leapfrog Washington’s federal appeals court and rule quickly on whether Trump could be prosecuted. Acknowledging the “extraordinary request,” Smith's team called it “an extraordinary case.” Trump’s campaign accused Smith of trying to rush to trial for political purposes.
After the Supreme Court denied Smith’s request to immediately take up the case, the federal appeals court heard arguments and joined Chutkan in turning aside the immunity claims. It would be another two months before the Supreme Court, in late April, said it was prepared to consider the case.
During arguments , several conservative justices indicated they were prepared to limit when former presidents might be prosecuted.
“This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” said Justice Brett Kavanaugh. The court, added Justice Neil Gorsuch, is writing a decision “for the ages." Both were nominated by Trump.
The Supreme Court moved quickly in prior cases involving presidents, deciding the 1974 Watergate tapes case against Republican President Richard Nixon just 16 days after arguments. In Trump’s case, the justices issued their ruling on July 1, the last day of their term and more than nine weeks after arguments.
The decision held that Trump was absolutely immune from prosecution for acts involving core constitutional functions — in the process, stripping from the indictment Trump’s dealings with the Justice Department — and at least presumptively immune for other official actions. The court also reaffirmed that no immunity exists for a president's private acts, like those taken as a candidate.
But the justices didn’t spell out which allegations Trump could be prosecuted for, leaving it to Chutkan to decide. Smith subsequently filed a new indictment removing references to allegations prosecutors believed could be considered official acts.
Among the acts in legal limbo is Trump's badgering of his vice president, Mike Pence, to refuse to certify the electoral results. Pence became an important witness for Smith's team after prosecutors secured court approval to enforce a subpoena for his grand jury testimony. It was a key courtroom victory given his proximity to the then-president and the fact that Pence took contemporaneous notes of conversations with Trump.
With prosecutors and Trump’s lawyers back in her courtroom for the first time this year, Chutkan vowed in September that the election would not affect how she proceeded. She acknowledged that whatever she decided would be appealed again, likely to the Supreme Court.
That means a trial, if it happens at all, could be a year or more away.
“There’s no rush to judgment here,” Chutkan said.
The classified documents case remains frozen unless an appeals court resurrects it.
That's in contrast to the election interference case, where, in an effort to persuade Chutkan that the case should proceed, prosecutors submitted a 165-page brief featuring revelations about the alleged conspiracy.
In one example, the filing unsealed this month quotes Trump as saying “the details don't matter” when he was told that bogus election fraud claims would not stand up in court. And it says he responded with “So what?” when informed that Pence was in potential peril at the Capitol on Jan. 6.
No matter what happens, the cases' topsy-turvy trajectory provides further proof that accountability for a president — whether through an impeachment process or criminal case — is never guaranteed, said Princeton University presidential historian Julian Zelizer.
The public is “counting on elected presidents to follow certain legal guardrails." But, he added, “holding them accountable is not very easy at all.”
Republican presidential nominee former President Donald Trump speaks at a campaign rally at the Findlay Toyota Arena Sunday, Oct. 13, 2024, in Prescott Valley, Ariz. (AP Photo/Evan Vucci)
Republican presidential nominee former President Donald Trump gestures at a campaign rally at the Findlay Toyota Arena Sunday, Oct. 13, 2024, in Prescott Valley, Ariz. (AP Photo/Evan Vucci)
