In 2020, Donald Trump and his allies filed some 60 lawsuits challenging the results of the presidential election. These efforts often ended in humiliating losses for Trump-aligned lawyers like former New York City Mayor Rudy Giuliani, but the lesson others on the right took home wasn’t simply to give up. Instead, Republicans have doubled down and started fighting even earlier. 

While Democrats, their allies and many state and local governments were able to fend off dozens of legal challenges two years ago, they also benefited greatly from the fact that most of the lawsuits were completely spurious, and often being argued by blatant hucksters and cranks like Rudolph Giuliani and Sydney Powell. This time will be different. According to PBS, the Republican National Committee has already filed 73 lawsuits across 20 states this year, hiring 37 lawyers and investing millions in an “election integrity” team for 2022.

The right has also spent the last two years building an army of poll watchers and volunteer poll workers, often challenging election agencies for failing to staff poll places with equal numbers of Republican and Democratic workers. PBS also reported that Republican-aligned groups have held some 5,000 trainings on identifying voter fraud, while other right-wing freelancers have begun monitoring ballot dropboxes, drawing charges of voter intimidation.

Voters dealing with headaches from those volunteers may likewise find themselves in an uphill battle against local law enforcement. In Arizona, for instance, more than half of the state’s sheriffs subscribe to the extremist “constitutional sheriff” ideology, wherein the sheriffs believe that they are empowered to supersede state and federal governments to nullify any laws they deem unconstitutional. And these efforts are all in addition to the myriad voter suppression laws that have been enacted since 2020, as well as numerous right wing legal challenges to federal and state laws meant to protect voting rights and fight gerrymandering.

In short, trying to make sure the 2022 election is free and fair is slated to be extraordinarily contentious, expensive, and time-consuming. Are Democrats ready?

The Democratic machine is gearing up, too

Because of the chaos that ensued in the aftermath of the 2020 election, Democrats have known for some time to expect a growing slew of legal challenges to any future elections. For 2022, Democrats have set aside a combined $50 million for litigation and voter protection between the Democratic Congressional Campaign Committee, the Democratic National Committee, and the Democratic Senatorial Campaign Committee, according to Reuters. The source for their story added that the massive budget would be the most the party has ever spent on such efforts in a single election. 

The party will also get some help via a number of outside groups, particularly from two of their most notorious Super PACs: Priorities USA and American Bridge 21st Century. Priorities USA told Reuters they’ve set aside some $20 million for voting rights, while American Bridge is budgeting another $10 million.

Some Democratic efforts will also find common cause with many groups focused on voting rights, like the ACLU and NAACP Legal Defense Fund, though they are likely to sit out the more nakedly partisan brawls that may emerge starting November 8.

A question of strategy

Much of the funding Democrats and their allied groups have set aside may end up in the hands of Elias Law Group, a new firm founded by longtime Democratic campaign lawyer Marc Elias. Elias is credited with coordinating the litigation surrounding the 2020 election, where Republican challenges were nearly all defeated. A longtime partner at the powerful law firm Perkins Coie, Elias chose to strike out on his own in 2021, founding his own firm focused on supporting Democrats, fighting for voting rights, and all things election-related. His firm already employs dozens of attorneys and has argued cases in front of the Supreme Court. He also founded Democracy Docket, a media project focused on voting rights, elections, gerrymandering and litigation.

Elias is the Democratic Party’s go-to lawyer in elections, and he’s proven himself a worthy counsel. Election law expert Richard Hasen deemed Elias’s litigation during 2020 “indispensable,” but he and others have also criticized Elias for strategic misfires, such as bringing a voting rights case in Arizona that resulted in the Supreme Court further weakening the Voting Rights Act. Given the right-wing lean of the federal courts, more ambitious and aggressive lawsuits could end up actually accelerating the winnowing of voting rights already in progress. Elias dismissed such criticism in a profile in the New Yorker earlier this year, raising concerns that Democrats placing so many eggs in his basket could backfire.

The question of whether Democrats are up for the challenge in this year’s midterms is also difficult to answer because we don’t yet know exactly what they’ll be up against. Republicans are going into overdrive to complicate the coming elections and suppress votes, but their efforts might already be effectively mitigated thanks to the normalization of more widespread mail-in voting during the pandemic. Similarly, in a recent New York Times story, both GOP and Democratic election officials told the paper that they don’t expect right-wing efforts to build an army of conspiracy-minded election day volunteers to cause widespread disruptions. 

Normally, we’d advise donors on where they should give to help with a specific issue, but we won’t really know where money will be needed (or how high the priority will be) until Election Day at the earliest. For now, donors can continue funding GOTV efforts and some campaigns where last-minute donations may be helpful. Next week, we’ll check back in with how donors should start planning the post-election, regardless of the outcome.