Inside the litigation election, where lawyers on both sides are duking it out in the courts like never before

• The 2024 election is already the most litigated in US history.
• Republicans and Democrats have been involved in a bevy of pre-election lawsuits.

With the 2024 US presidential election just days away, the high-stakes race is already the most litigated in modern American history.

For months, Republican allies of former President Donald Trump and Democratic allies of Vice President Kamala Harris, have been involved in a barrage of pre-election lawsuits, with Republicans waging the majority of the legal challenges in key battleground ground states. And while preelection litigation might not feel like a fundamental part of democratic presidential elections in the US, the 2024 cycle has proved it to be a keystone political strategy.

"Probably the most discouraging part of this whole litigation experiment is that it has little or no connection to democracy and credible elections," said John Hardin Young, an election law expert and senior counsel at the Washington, DC, law firm Sandler Reiff Lamb Rosenstein & Birkenstock.

"It's gamesmanship," said Young, who said litigation has "become part of the political strategy."

"It's, in a way, a prelude to postelection challenges where the political message has been mangled together with the litigation," he added.

Legal experts told Business Insider some of the lawsuits brought by Republicans could set the stage for potential court challenges after the election on November 5.

But it all really depends on how close the election between Trump and Harris is, the experts said. National polls suggest the race for the White House will be a tight one.

The Republican National Committee said that the party's "election integrity" operation, announced earlier this year with the Trump campaign, has been involved in 130 lawsuits across 26 states this election cycle.

Many of the lawsuits center on the handling of mail-in voting, overseas ballots, and voter rolls. Democrats have intervened in a slew of them.

When the RNC announced the "election integrity" program back in April, it said it would deploy more than 100,000 volunteers and attorneys across all battleground states.

"This gives voters confidence that their ballot will be counted properly, and in turn, inspires voter turnout," RNC spokeswoman Claire Zunk told BI in a statement. "While Democrats continue to interfere in our election and dismantle election safeguards, we are protecting the vote for all Americans."

The Trump campaign declined to comment for this story, referring BI to Zunk's statement. Harris' campaign referred BI to a previous interview with a campaign spokesperson discussing litigation strategy.

Harris campaign memo says the Republican lawsuits aim to 'sow doubt'

Operatives for the Harris campaign said in a recent memo to "interested parties" that Republicans' lawsuits are "part of an effort to sow doubt" in the results of the 2024 election.

"Trump Republicans believe they have a better chance of winning when fewer people vote and fewer votes are counted. That's why they are spreading misinformation and filing dozens of baseless lawsuits in an obvious attempt to suppress voter turnout," the October 11 memo obtained by Business Insider says.

The memo was written by Dana Remus, President Joe Biden's former White House counsel who is now leading the Harris campaign's legal team, and Monica Guardiola, the Democratic National Committee's acting co-executive director.

It says that Democrats are "prepared and enter this final stretch with a playbook to protect the integrity of our elections — before and after November 5."

Democrats, they say, have already intervened in "dozens of baseless Republican lawsuits to debunk their lies and defeat them in court."

The DNC, together with the Harris campaign, have scored 15 court wins over the last three weeks, largely after intervening in lawsuits brought by Republicans, the campaign told BI.

The memo says the upcoming election is already the "most litigated in American history," but that the campaign is the most prepared.

The 2020 general election previously held the record as the most litigious in modern history.

In the two-month period between November 3, 2020 and January 6, 2021, plaintiffs filed 82 lawsuits in 10 states and the District of Columbia, according to the Post-Election Litigation Analysis by the Stanford-MIT Healthy Election Project.

The American Bar Association logs less than 40 preelection lawsuits having been filed before Election Day 2020.

As of November 1, there were a record 203 voting and election cases pending in 40 states, with 25 lawsuits alone filed in the battleground state of Georgia, Democratic election attorney Marc Elias, who is also part of the Harris campaign's legal team, said on X.

And more are expected.

Republican legal strategy is more organized than 2020

In recent weeks, Republicans have faced a series of court losses but have also had some success.

A federal judge in the swing state of Pennsylvania this week dismissed a lawsuit brought by a group of Republican congressmen that sought new verification requirements involving overseas and military ballots. Judges in the swing states of Michigan and North Carolina also recently rejected RNC challenges targeting overseas voting.

The RNC pointed BI to nine recent court wins, including when a panel of Trump-appointed judges from the 5th US Circuit Court of Appeals ruled that Mississippi's law of counting properly postmarked mail-in ballots received after Election Day violates federal law.

Young, the election law expert, called the wave of litigation "part of the political messaging."

"The Republican litigation strategy doesn't seem to follow any particular rules, but really is an attempt to throw anything against the wall and see if anything sticks," he said.

Republican's 2024 litigation strategy, though, seems much more organized than in 2020 when Trump and his allies brought more than 60 lawsuits alleging voter fraud in unsuccessful attempts to challenge the results after Election Day, said Sophia Lin Lakin, a voting rights lawyer at the American Civil Liberties Union. The ACLU is involved in dozens of election-related lawsuits.

"In 2020, it felt slapdash and very reactive and improvisational," Lakin said, adding that now Republicans' efforts seem to be more strategic with the laying of "narrative groundwork."

"There is definitely a fair number of lawsuits that really do seem to have served no purpose other than a narrative purpose" to potentially be leveraged in the event that the election results are not favored by Republicans, said Lakin.

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Jason Torchinsky, a partner at the law firm Holtzman Vogel and a Republican election lawyer, told BI filing lawsuits before the election is an effective strategy.

there's no doubt there has been an "unprecedented level of preelection litigation" this cycle, "but all of that litigation is aimed at setting the ground rules whether you're coming at it from the right or the left."

"Preelection litigation to set ground rules is often much more successful than postelection litigation," Torchinsky said, explaining, "The courts are very, very reluctant to look like they are determining the outcomes of elections."

A possible 'period of uncertainty' after the election

During a Zoom panel discussion this week, Elias warned there may be a "period of uncertainty" after Election Day.

"But honestly, there have been periods of uncertainty after the elections for many years. It's just people get more anxious about them now," he said.

"So I think if people vote, they should have confidence that the process will almost certainly sort itself out OK," he said.