Flurry of pre-election legal cases is now 'standardized' strategy, experts say

A flurry of U.S. election-related lawsuits are playing out in courts nationwide with more than 160 cases already on the books, and experts say that’s just par for the course during a modern presidential contest.

At least 165 election-related lawsuits have already been filed, the majority focusing on issues such as who should be eligible to vote, how ballots are cast and counted, and how to ensure election security and protect against alleged voter fraud.

But several legal analysts say they doubt that any of these lawsuits will have a protracted impact on the 2024 election and describe the nature of the claims as fairly standard fare, especially during the more than two decades since George W. Bush fended off Al Gore and a mountain of legal challenges to win the 2020 presidential election.

“I think we’re going to have a lot of litigation, but I would be surprised if we have any jugular hints,” George Washington University law professor Jonathan Turley told Fox News Digital.

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The most high-profile lawsuits to date have been filed in Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania and Wisconsin, which are the seven battleground states that carry a combined total of 93 electoral votes and which are widely expected to help decide the election in favor of either Democrat Vice President Harris or Republican former President Trump.

The close race and wave of recent court cases have led some observers to fear that the lawsuits will either disenfranchise would-be voters, keep one or the other candidate’s supporters from participating in the election, or generate doubts over voting results after the race is decided.

But such concerns are likely unfounded, Turley notes.

“In the five presidential elections I’ve covered, I don’t think any pre-election challenge had a huge impact,” he said.

Turley added that preliminary lawsuits are increasingly used by both parties as a “placeholder” of sorts, both to fuel their own respective narratives about the election and to create a pre-existing record of problems in swing states, which they can then revisit after the election.

And it’s not as if this is a new strategy.

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The U.S. saw a “similar ramping up in 2016 and 2020. I think the closest before then was Bush v. Gore,” Turley said. 

The standard then was to “ramp up [cases] after the election,” he added. “Now it’s become standardized to line up hundreds of attorneys [beforehand], and we’re seeing the same trajectory.”

In the wake of the 2020 election, Trump’s campaign filed 60 lawsuits attempting to challenge the election results in key swing states. And while the number of lawsuits was unusual, experts note that the practice itself is actually quite standard.

In fact, the early wave of court filings is actually better for lawyers and judges, given the tight time frame between the elections, state election certifications and Inauguration Day, according to Andrew McCarthy, a former U.S. assistant attorney general for the Southern District of New York. 

That’s part of the driver behind the early filings in many states, he told Fox News, adding that most of the lawsuits had been filed months earlier and are just now making their way before judges and appellate courts in affected states.

From there, judges prefer to deal with them as quickly as possible, he said.

“Courts don’t mind getting involved in this area if it’s to be a referee on what the rules ought to be” for an election, McCarthy told Fox News Digital. “But they never want to be in a position of looking like they’re deciding the election.”

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In other words, the more they can rule on ahead of the election to avoid the appearance of bias or political sway, the better, he said.

“If you’re going to do this right and competently in a way that is representative of the way the legal system is supposed to work, you have to litigate these issues before the election,” McCarthy said. “Because the time frame after the election is just too compressed to do anything in the way of a meaningful election investigation, especially if the issue is fraud.”

Get the latest updates from the 2024 campaign trail, exclusive interviews and more at our Fox News Digital election hub.