House Speaker Mike Johnson’s threat got overwhelmed by the news of Joe Biden’s departure from the presidential race, but it may have given away the Republican Party's fall strategy.
On the same Sunday that Biden announced his exit and endorsed Vice President Kamala Harris, Johnson predicted that his party would file lawsuits to keep Biden’s name on the ballot in several states, including such competitive battlegrounds as Georgia, Nevada and Wisconsin.
Republicans wouldn’t have had much of a case. Biden, after all, had yet to be nominated, so any lawsuit would have looked to force his name on a ballot where it hadn’t yet appeared.
But the fact that Republicans greeted Harris’ entry into the race with the threat of litigation provides a sobering reminder that the GOP has little intention of conceding an electoral loss on Nov. 5. That’s simply when a second contest will begin — one aimed not at swing-state voters but a battalion of right-wing Federalist Society-approved judges installed on federal courts and the deeply conservative supermajority on the U.S. Supreme Court.
Look closely and that second battle is already underway. While the usual rituals of an election play out nationwide — rallies, TV ads, conventions, sofa memes — a shadow fight is already unfolding in battleground-state courts. They include lawsuits in Michigan, Arizona and Nevada that seek to knock voters off the rolls in the weeks before the election, as well as litigation in Nevada and elsewhere hoping to void absentee ballots received after Election Day.
These lawsuits rely heavily on unsubstantiated Republican fantasies about dead people and non-citizens casting ballots. Even if these cases go nowhere, they could redound to the GOP’s benefit simply because they seed the groundwork for claims that the election has been stolen and cast doubt among the party’s base about the process and the legitimacy of the results.
But while most such cases are likely to be dismissed or brushed aside, as were nearly five dozen cases related to similar claims after the 2020 election, it’s a mistake to remember Rudy Giuliani’s press conference outside Four Seasons Landscaping and write these off as a joke.
The GOP’s election-denial legal machinery has been fine-tuned since then. The promotion of discredited fraud assertions is now at the very heart of the Republican Party: The Republican National Committee, now co-chaired by Lara Trump, the ex-president’s daughter-in-law, is already part of more than 90 active voting and election cases across nearly two dozen states. Many of the GOP’s failed challenges in 2020 were dismissed by courts because they were filed too late, after the election; Republicans learned their lesson and got a head start this time.
Sharper and more sober legal minds abound in 2024 as well. Consovoy McCarthy, the elite Washington, D.C., law firm that’s deeply connected to the GOP and the conservative legal movement — well known for hiring Justice Clarence Thomas' former clerks after their tenure and training at the Supreme Court — is at the forefront of several important cases.
Conservatives have also mastered the intricacies of circuit-shopping, the dark art of placing the nuttiest legal theories cooked up in Federalist Society hothouses before the most rabidly ideological judges. File even the most ludicrous election-related case in Amarillo, Texas, and it there is a nearly 100 percent chance it will be heard by Judge Matthew Kacsmaryk. He founded the Fort Worth chapter of the Federalist Society and was later plucked from an extreme religious liberty organization by right-wing judge whisper Leonard Leo and installed as the only federal judge at the Amarillo courthouse; Kacsmaryk then suspended nationwide access to mifeprestone, a drug used to induce abortion, and overruled the Biden administration to reinstate the Trump-era “Remain in Mexico” immigration policy.
It’s all too easy to imagine a Judge Kacsmaryk, or a Judge Aileen Cannon, causing chaos with a decision that slows down the certification process after Election Day and before the Electoral College meets in mid-December. This, in turn, could open the doors to all sorts of potential chicanery regarding elector slates in GOP-led state legislatures and multiple questions that the U.S. Supreme Court would need to decide.
The Roberts court has already demonstrated, during this year's case on presidential immunity, that the conservative supermajority is happy to slow-walk the process to benefit Trump and the Republicans, aiding his strategy to postpone any prosecution until after the election, before ultimately placing Trump above the law. The same court moved quickly, on the other hand, to reverse Colorado's decision to Trump from its primary ballot for his actions in fomenting an insurrection on Jan. 6, 2021.
It’s cases like these where many Americans still want to believe that the court will come to the defense of American democracy. They — along with many in the media — cling to the hope that Chief Justice John Roberts is the umpire and institutionalist that he has long claimed to be, rather than the lifelong Republican who has looked to unravel the Voting Rights Act since his earliest days in Washington. He is also the jurist responsible for the decisions that have gutted and corrupted our politics, drowning it in billions of dollars in dark money (Citizens United), unleashing a new era of voter restrictions and suppression across the South (Shelby County) and blessing the most extreme partisan gerrymanders in our nation’s history (Rucho v. Common Cause).
After all, the GOP’s determination to capture the courts — which comprise the third branch of the federal government, not a neutral tiebreaker — has always been about cementing its control over power and elections, determining which voices count and which do not. It is worth remembering that three of the current justices proved their bona fides to the Federalist Society and the conservative legal movement that put them on the bench through their work for the GOP on the 2000 case Bush v. Gore, which halted the Florida recount and installed a Republican in the White House.
John Roberts is not your friend. Now this muscular conservative supermajority, secure in its power, has come into its own. One need not be a democracy doom-and-gloomer to worry about the litigious six weeks that will surely follow this election. One need only remember Bush v. Gore.
On Nov. 5, 175 million of us will cast ballots. Sometime after that, nine justices might render the only votes that count.
