The Supreme Court
The results of a new Gallup poll offer alarming evidence of a serious erosion of confidence in the American judicial system. And if that was not enough of a signal, a survey done by Monmouth University delivered more bad news for people concerned about the rule of law in this country.
It found that almost a quarter of the American public would not be “bothered at all” if the president suspended some “laws and constitutional provisions.” Another quarter would only be bothered “a little.”
Reading these results, I was reminded of the quote from the Pogo comic: “We have met the enemy, and it is us.”
As commentators from Alexander Hamilton to the present have said, the rule of law can only survive if the people have faith that it is applied impartially and equally and that everyone will follow the rules, even when it is inconvenient for them to do so. Faith — that is the right word.
Hamilton understood this.
In Federalist 78, he predicted that the judiciary “will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” The judiciary, he argued, would “have neither FORCE nor WILL, but merely judgment.”
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The quality of that judgment, he continued, “may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of public justice and public security.”
In Federalist 22, Hamilton noted that unless people have faith in judges and respect their judgments, “laws are a dead letter.”
Four years ago, the National Judicial Council, echoing Hamilton, offered advice for people new to the bench. “As a judge,” it said, “you have no ability to enforce the decisions you make. … If you sentence someone to jail, you have no power to make certain that sentence is carried out.”
That is why the council described the power of courts as “fragile” and concluded that the rule of law depends on the willingness of “good people” to “follow the law because that is what good people do.”
The new surveys highlight that fragility and document a dramatic loss of faith in the courts and the rule of law among “good people” in the United States. Let’s start with Gallup.
It summarizes its major findings: “Americans’ confidence in their nation’s judicial system and courts dropped to a record-low 35% in 2024. The result further sets the U.S. apart from other wealthy nations, where a majority, on average, still expresses trust in an institution that relies largely on the public’s confidence to protect its authority and independence.”
“Since 2020,” Gallup continues, “confidence in the courts … has seen a sharp decline — 24 percentage points.” In fact, the only nations that have seen anything close to such a precipitous decline are “Myanmar (from 2018 to 2022) overlapping the return to military rule in 2021, Venezuela (2012-2016) amid deep economic and political turmoil, and Syria (2009-2013) in the runup to and early years of civil war, and others that have experienced their own kinds of disorder in the past two decades.”
That’s some company for a nation supposedly steeped in the traditions Hamilton initiated.
The bad news does not end there. Gallup reports: "The judiciary stands out for losing more U.S. public confidence than many other U.S. institutions experienced between 2020 and 2024.”
Things don’t look much better in the Monmouth survey. It found stark partisan divides in what respondents would think if the president disregarded the “laws and constitutional provisions to go after political enemies.” Just over one-third of Republicans said, “It wouldn’t bother them at all if Trump suspended some laws and constitutional provisions to go after political enemies, while an additional 34% said it would only bother them ‘a little’ if the incoming president took such a step.”
But, as The Washington Post’s Aaron Blake notes, it isn’t only Republicans who have these views. Trump-leaning independents have also shifted significantly. “Overall, the percentage of independents who say they would be bothered a lot if Trump targeted his enemies has dropped from 68 percent in June, to 60 percent in October, to 55 percent today.”
These results are partially attributable to the fact that the question Monmouth asked named Donald Trump as the person who might suspend the law.
An Ipsos poll done last spring did not refer to Trump when it asked whether “a strong president … should be allowed to rule without too much interference from courts and Congress.” Even so, 52 percent of Republicans said yes.
The Gallup results help explain why many Americans would be okay with presidential departures from the rule of law. If people aren’t confident in courts or have lost faith in the judgments they make, it is hardly surprising that they might be open to such defiance.
Why does the United States find itself in this grim situation?
Many factors could be cited, including questionable ethical judgments by Supreme Court Justices, unpopular judicial decisions, and partisan attacks on courts and judges.
But here, I’d like to suggest that the judiciary has not helped itself in the way it goes about its business. Take the nation’s highest court.
As the journalist Kevin Drumm puts it, “The Supreme Court has always been political, but … it [has never] been so nakedly political.” Drumm is right to say, “They barely even bother trying to hide it.”
In the lower courts, similar things are happening. For example, Alma Cohen of Harvard Law School has shown that “the judges’ political affiliations, inferred from the party of the appointing president, can be used as a predictive tool for decision outcomes in 92% of the circuit court decisions studied.”
And do you think it is an accident that Republican litigants have beat a path to Amarillo, Texas, to get their cases heard by federal District Judge Matthew Kacsmaryk, who New York Democratic Sen. Chuck Schumer calls the MAGA movement’s “favorite judge”? Judge shopping is hardly one-sided. For years, liberals tried to get cases heard in the 9th U.S. Circuit Court of Appeals, which was notorious for the leftward tilt of its decisions.
The American public has gotten the message. More than six in 10 now say that “politics, not law” explains Supreme Court decisions.
Finally, why should anyone respect the court or its justices when they don’t display respect for each other in their written opinions? Just read what Justice Samuel Alito said about the justices who had decided Roe v Wade, which he called “egregiously wrong from the start.”
He accused them of “usurp[ing] the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” Or recall Justice Sonia Sotomayor’s suggestion that the court is putting its survival in peril by making decisions that “are just political acts."
Ultimately, we cannot snap our fingers and restore public confidence in courts and faith in the rule of law. But we can call on judges at every level of the court system to stop digging the hole any deeper.
The new polling results should be a wake-up call and a reminder that unless they behave in ways that inspire, rather than undermine, belief in the fairness of their rulings, “good people” may conclude that the rule of law is a hoax. And that is a stepping-stone to authoritarianism.
Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
The results of a new Gallup poll offer alarming evidence of a serious erosion of confidence in the American judicial system. And if that was not enough of a signal, a survey done by Monmouth University delivered more bad news for people concerned about the rule of law in this country.
It found that almost a quarter of the American public would not be “bothered at all” if the president suspended some “laws and constitutional provisions.” Another quarter would only be bothered “a little.”
Reading these results, I was reminded of the quote from the Pogo comic: “We have met the enemy, and it is us.”
As commentators from Alexander Hamilton to the present have said, the rule of law can only survive if the people have faith that it is applied impartially and equally and that everyone will follow the rules, even when it is inconvenient for them to do so. Faith — that is the right word.
Hamilton understood this.
In Federalist 78, he predicted that the judiciary “will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” The judiciary, he argued, would “have neither FORCE nor WILL, but merely judgment.”
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The quality of that judgment, he continued, “may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of public justice and public security.”
In Federalist 22, Hamilton noted that unless people have faith in judges and respect their judgments, “laws are a dead letter.”
Four years ago, the National Judicial Council, echoing Hamilton, offered advice for people new to the bench. “As a judge,” it said, “you have no ability to enforce the decisions you make. … If you sentence someone to jail, you have no power to make certain that sentence is carried out.”
That is why the council described the power of courts as “fragile” and concluded that the rule of law depends on the willingness of “good people” to “follow the law because that is what good people do.”
The new surveys highlight that fragility and document a dramatic loss of faith in the courts and the rule of law among “good people” in the United States. Let’s start with Gallup.
It summarizes its major findings: “Americans’ confidence in their nation’s judicial system and courts dropped to a record-low 35% in 2024. The result further sets the U.S. apart from other wealthy nations, where a majority, on average, still expresses trust in an institution that relies largely on the public’s confidence to protect its authority and independence.”
“Since 2020,” Gallup continues, “confidence in the courts … has seen a sharp decline — 24 percentage points.” In fact, the only nations that have seen anything close to such a precipitous decline are “Myanmar (from 2018 to 2022) overlapping the return to military rule in 2021, Venezuela (2012-2016) amid deep economic and political turmoil, and Syria (2009-2013) in the runup to and early years of civil war, and others that have experienced their own kinds of disorder in the past two decades.”
That’s some company for a nation supposedly steeped in the traditions Hamilton initiated.
The bad news does not end there. Gallup reports: "The judiciary stands out for losing more U.S. public confidence than many other U.S. institutions experienced between 2020 and 2024.”
Things don’t look much better in the Monmouth survey. It found stark partisan divides in what respondents would think if the president disregarded the “laws and constitutional provisions to go after political enemies.” Just over one-third of Republicans said, “It wouldn’t bother them at all if Trump suspended some laws and constitutional provisions to go after political enemies, while an additional 34% said it would only bother them ‘a little’ if the incoming president took such a step.”
But, as The Washington Post’s Aaron Blake notes, it isn’t only Republicans who have these views. Trump-leaning independents have also shifted significantly. “Overall, the percentage of independents who say they would be bothered a lot if Trump targeted his enemies has dropped from 68 percent in June, to 60 percent in October, to 55 percent today.”
These results are partially attributable to the fact that the question Monmouth asked named Donald Trump as the person who might suspend the law.
An Ipsos poll done last spring did not refer to Trump when it asked whether “a strong president … should be allowed to rule without too much interference from courts and Congress.” Even so, 52 percent of Republicans said yes.
The Gallup results help explain why many Americans would be okay with presidential departures from the rule of law. If people aren’t confident in courts or have lost faith in the judgments they make, it is hardly surprising that they might be open to such defiance.
Why does the United States find itself in this grim situation?
Many factors could be cited, including questionable ethical judgments by Supreme Court Justices, unpopular judicial decisions, and partisan attacks on courts and judges.
But here, I’d like to suggest that the judiciary has not helped itself in the way it goes about its business. Take the nation’s highest court.
As the journalist Kevin Drumm puts it, “The Supreme Court has always been political, but … it [has never] been so nakedly political.” Drumm is right to say, “They barely even bother trying to hide it.”
In the lower courts, similar things are happening. For example, Alma Cohen of Harvard Law School has shown that “the judges’ political affiliations, inferred from the party of the appointing president, can be used as a predictive tool for decision outcomes in 92% of the circuit court decisions studied.”
And do you think it is an accident that Republican litigants have beat a path to Amarillo, Texas, to get their cases heard by federal District Judge Matthew Kacsmaryk, who New York Democratic Sen. Chuck Schumer calls the MAGA movement’s “favorite judge”? Judge shopping is hardly one-sided. For years, liberals tried to get cases heard in the 9th U.S. Circuit Court of Appeals, which was notorious for the leftward tilt of its decisions.
The American public has gotten the message. More than six in 10 now say that “politics, not law” explains Supreme Court decisions.
Finally, why should anyone respect the court or its justices when they don’t display respect for each other in their written opinions? Just read what Justice Samuel Alito said about the justices who had decided Roe v Wade, which he called “egregiously wrong from the start.”
He accused them of “usurp[ing] the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” Or recall Justice Sonia Sotomayor’s suggestion that the court is putting its survival in peril by making decisions that “are just political acts."
Ultimately, we cannot snap our fingers and restore public confidence in courts and faith in the rule of law. But we can call on judges at every level of the court system to stop digging the hole any deeper.
The new polling results should be a wake-up call and a reminder that unless they behave in ways that inspire, rather than undermine, belief in the fairness of their rulings, “good people” may conclude that the rule of law is a hoax. And that is a stepping-stone to authoritarianism.
Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
People walk through debris caused by Israeli attack in Khan Yunis, Gaza.
In a shocking development last week, Amnesty International effectively exonerated Israel of genocide.
This was easy to miss, and not just because of the recent crush of news. Amnesty’s report, titled “‘You Feel Like You Are Subhuman’: Israel’s Genocide Against Palestinians in Gaza,” buried the lede, as journalists say. And most of the media coverage reflected that.
The New York Times’ headline read: “Amnesty International Accuses Israel of Genocide in Gaza.” The Los Angeles Times’ was similar: “Amnesty International says Israel is committing genocide in Gaza.”
Before I get to Amnesty’s overlooked acquittal of Israel, it’s worth noting that calling its report unfair would be a profound understatement. Here’s the first sentence: “On 7 October 2023, Israel embarked on a military offensive on the occupied Gaza Strip … of unprecedented magnitude, scale and duration.”
In other words, the story of the Israel-Gaza war, as far as the storied human rights group is concerned, begins not with Hamas’ unprecedented terrorist attack on civilians that day, which included rapes, kidnappings and other forms of staggering, premeditated barbarity. Rather, it begins with Israel’s response to Hamas’ aggression. Hamas, by the way, is an organization that was literally founded on the principle of genocidal eradication of Israel.
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This is a bit like beginning a report on America’s “genocide” in Japan by stating, “On April 18, 1942, the United States embarked on a military offensive on the Japanese nation of unprecedented magnitude … ” — leaving out, until some 50 pages later, that whole Pearl Harbor thing.
None of this is to say that the Israel-Gaza war hasn’t been horrific. Nor is it to say that Israel deserves no criticism for its conduct of the war — even if I think most of the criticisms are exaggerated, often for ideological reasons.
But the Genocide Convention of 1948 is very clear about what constitutes actual or attempted genocide: "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group."
The idea that Israel is dedicated to genocide of the Palestinians has been routinely bandied about for decades at the United Nations and by anti-Israel governments and organizations. But the Palestinian population has grown more than eightfold since Israel’s founding, according to the Palestinian Central Bureau of Statistics, and the population of the Gaza Strip has increased 600% since 1960.
One of the most important words in the U.N.’s definition of genocide is “intent.” And if Israel, which even its enemies characterize as supremely competent and lethal, intends genocide, it’s really, really, bad at it. Indeed, if genocide were the goal, you would think Israel would stop dropping leaflets warning civilians to evacuate areas it’s about to attack or sending Palestinians caravans of aid.
Which brings us back to Amnesty International’s exoneration. On page 101 of its 296-page report, the authors acknowledge that the question of intent is a huge problem for those who accuse Israel of genocide. But they go on to reject “an overly cramped interpretation of international jurisprudence … that would effectively preclude a finding of genocide in the context of an armed conflict.”
If Israel were actually trying to eliminate the Palestinians as a people, I think it would be obvious and easy for Amnesty and others to prove. But the point is that the report essentially concedes that Israel isn’t committing genocide under prevailing interpretations of international law.
Imagine if a prosecutor noted during a murder trial that under the existing statutes and case law, the defendant was not guilty. That might be considered an important concession.
As Commentary’s Seth Mandel writes, “So Amnesty International dissents from international law. That’s fine. Just be up-front about it: Amnesty is not accusing Israel of ‘genocide,’ it is accusing Israel of a different crime which Amnesty has named ‘genocide,’ just so it could use that word.”
It would be one thing if Amnesty issued a report calling for a more capacious definition of genocide under international law. I’d be open to such a recommendation. The existing definition still has the taint of the Soviet Union’s meddling to ensure it didn’t cover its crimes in Ukraine. A better, fairer definition of genocide wouldn’t be bad news for Israel, but it would for Russia and China.
Amnesty didn’t want a discussion about the proper definition of genocide, though. It wanted headlines alleging that Israel committed the crime — and it got them.
(Jonah Goldberg is editor-in-chief of The Dispatch and the host of The Remnant podcast. His Twitter handle is @JonahDispatch.)
Donald Trump's obsession with crowds could be turned against him.
Monti is a professor of sociology at Saint Louis University.
How might Americans’ willingness to act out in public be put to better use than the destructive mess some of us want to make on behalf of Donald Trump and the rest of us hope to avoid?
My answer to this question builds on Trump’s obsession with crowds and how they could accomplish the very thing he has for so long managed to avoid: accountability for the crimes he has long committed against many individual Americans and more recently against the whole of the American people.
In thinking out loud about how to punish him, I can see how a prison sentence would inspire his supporters to come out even more strongly to support his claims about rigged elections and corrupt courts.
Be that as it may, for however long he occupies a prominent spot on the public stage, the rest of us must worry about the best way to avoid the violence he inspires others to do in his name and figure out how to hold him accountable for crimes he has committed.
Trump wasn’t the first person with aspirations to become autocrat-in-chief and there will be others in the future. None will be as consequential or memorable as Trump — not because of what he set out to do but because of the dramatic way he failed and then slunk out of Washington on the day Joe Biden was inaugurated.
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The late historian Hugh Davis Graham pointed out more than a half-century ago that the central paradox in American history was the odd juxtaposition of popular unrest with the stability of important social and political institutions. Americans have been unrestful for a long time.
But how did Americans come to use crowds and civil unrest this way?
The answer to this question is even more surprising but would probably please Trump because he could blame it all on foreigners.
It was the Greeks’ fault.
Not the modern ones. The ones that Aristotle and Plato lived among and whose writings on politics still inform the way we govern ourselves today.
The origins of the unexpected union of popular unrest and institutional stability go back thousands of years. They can be traced to the ancient cities of Greece and the way Greeks made room for crowds in their social and political routines.
The ancient Greeks were aware of the destructive potential of crowds. Their cities, not unlike our own, could be difficult to manage and their people tough to keep in line. That is why Greek leaders found ways for crowds to come together in public and express their views on matters of common concern.
Of particular interest to us would be the trials of Greek elites accused of violating their city’s laws or committing other kinds of serious offenses. The accused in these cases had more social standing, power and wealth than the hundreds and sometimes thousands of people who were invited to render an opinion in public about the offending party’s guilt or innocence.
Everyday people, many of whom might not have had legal standing as “citizens” in their city, were asked to weigh in on these matters. Greek crowds were invited to make loud declarations about official misconduct and public insults to people’s sensibilities.
The other thing these trials accomplished was to provide a public rebuke for the highest and mightiest citizens of the city who learned they could be held accountable for serious violations of the law and breaches of the public’s trust.
Slaves might be killed for their misdeeds, because they had nothing to give up except their life. But wealthy and powerful people could lose their property, be expelled from the city or, most importantly perhaps, be publicly shamed.
I’ll be returning to this idea shortly.
The Greeks’ public deliberations would have looked rowdy, but they more closely resembled a big public arbitration. The idea was for people to argue out loud about what should be done and gradually reach some middle ground about what fair punishment looked like.
Everyone could walk away satisfied that justice had been served. Public order was restored. The community could move on.
People with money, power and social prestige — being more equal than everyone else — eventually figured out how to limit their accountability to the people they sought to rule. This change took a long time to happen. It is not the only reason why people with less standing in cities took to acting out in public without the permission of city leaders. But it was a big one.
Modern crowds, less easily constrained than the ones ancient Greek leaders organized, became more threatening to city leaders. Threatening or not, large numbers of less privileged people learned how to defend themselves when their rights were being ignored and their status as full-fledged members of the city was questioned. Like their better-off neighbors, the masses asserted the privilege to break important rules and customs and get away with it.
Which brings us back to Donald Trump.
Trump is already expected to give up a lot of money because of his sexual assault conviction. Should a judge eventually decide he needs to be locked up for another crime he committed, putting him in a jail cell or confining him to his shrinking New City condo or Mar-a-Lago estate would certainly be an option.
If we were back in ancient Greece, however, judges would turn the decision about what to do with Trump over to several hundred or thousands of his fellow Americans. They would let “the people” come up with a punishment, one that might not fit the crime but would certainly be appropriate for the criminal.
The problem, of course, is that our courts don’t ask the public what punishment should be handed down. But we could imagine what the result would look like if they did.
A great many of Trump’s detractors would want to lock him up. His supporters would want him to get nothing more than a slap on the wrist. Facing each other on the streets of New York or wherever his sentence was being handed down, these two crowds might be inclined to fight it out.
Trump would love that. Most of the rest of us probably wouldn’t.
If we take a page from the Greeks’ handbook on crowds, however, there’s a good chance we could avoid a nasty public fight. The courts could fashion a punishment that tortures Trump, just like the Greeks might have done, by shaming him in public.
Make Trump work off his sentence in soup kitchens and homeless shelters, helping disabled people and wounded veterans, and assisting immigrants to resettle and find jobs.
In serving some of the very people he’s spoken against most nastily and gone out of his way to continually insult, it wouldn’t matter if he was faking it and didn’t change his attitude towards such people. It only matters that he would be held publicly accountable for his crimes and the rest of us have a chance to watch his public act of contrition.
I think it’s a punishment the ancient Greeks would have understood and the rest of us could live with.
Most importantly, perhaps, it’s a punishment that would deny Trump the chance to declare himself the martyr he muses about being when he isn’t comparing himself to Abraham Lincoln or God.
Donald Trump is a convicted felon but is still eligible to serve as president.
Gross is a clinical associate professor of law at the University of Wisconsin Law School and director of the school’s Public Defender Project.
What can a felon do? Become president of the United States.
What can’t a felon do? That’s quite the list.
Ever since Donald Trump was found guilty of falsifying business records back in May — something that hasn’t changed despite the fact he has managed to have his sentencing postponed until after the election — people have asked me, a law professor, whether a convicted felon can be elected president of the United States. So let me break it down.
The Constitution lists only three requirements to hold the office of president: The person must be a natural-born citizen, be at least 35 years old and have lived in the United States for at least 14 years. The natural-born citizen requirement was put in place to prevent a member of a European monarchy from emigrating to the United States and acquiring enough influence to become president. The age and residency requirements had a similar goal: to prevent the children of influential politicians who spent time outside the United States from getting elected solely on name recognition.
While the drafters of our Constitution envisioned the possibility that a president would commit “high crimes and misdemeanors” in office and created the mechanism of impeachment to remove that person from office, they never conceived of the need to point out the obvious: that someone already convicted of high crimes would be an exceptionally poor choice to be president.
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When Alexander Hamilton publicly confessed to an extramarital affair with a married woman, the consensus was that his private infidelity made him unsuitable to hold public office. Fast forward almost 250 years: Trump, a man who served as president and wants his old job back, has been convicted on 34 felony counts of falsifying business records to cover up an extramarital affair.
What do they have in common? Like Trump, Hamilton made what could be regarded as hush-money payments to cover up his affair. But unlike Trump, Hamilton chose to reveal the affair to convince his political opponents that he hadn’t falsified records while serving as the secretary of the treasury.
Hamilton’s reputation suffered greatly, and his presidential ambitions were squashed, but he was never charged with, let alone convicted of, a crime. The drafters of our Constitution regarded his poor moral judgment enough to disqualify him.
Meanwhile, Congress and state legislatures have routinely imposed far-reaching“collateral consequences of conviction” on people convicted of crimes. They are barred from employment, housing, public benefits, educational opportunities and even participation in our democracy.
These sanctions are imposed automatically upon conviction in addition to whatever sentence a judge might impose. They reflect a moral judgment that people who commit crimes have placed themselves in a separate class of citizens who can be legally discriminated against.
With that in mind, consider such consequences in Florida, where Trump resides. He would be potentially disqualified from a wide range of jobs, including some of the ones he has previously held: He could be denied a license to run a hotel or restaurant, to operate as a real estate broker and even to sell lottery tickets.
Consider as well the contradiction between all the various responsibilities of the president of the United States and all the jobs that convicted felons are deemed too irresponsible to have.
Perhaps the most absurd result of another Trump presidency would be that the commander in chief of the U.S. armed forces, who possesses the power to use nuclear weapons, would be barred by federal and state law from owning a firearm.
Along similar lines, the president is the head of federal law enforcement with pardoning power. Yet he doesn’t meet the minimum qualifications to be a law enforcement officer in Florida because he was convicted of a crime involving a false statement. And he would likely be barred from serving on Florida’s parole commission.
On the diplomacy front, the president can negotiate a ceasefire between warring factions such as Russia and Ukraine, but Trump’s conviction would likely bar him from serving as a court-appointed mediator in his home state.
There are other elements of irony in the ways a felon president cannot participate in some basic processes of government: Trump would not be able to lobby Congress or even serve as a presidential elector.
He also would have the power to issue an executive order ending birthright citizenship. Setting aside the fact that such an order would be blatantly unconstitutional, it is worth noting that his felony convictions for falsifying business records are crimes of “moral turpitude,” a category of crimes that would bar him from becoming a citizen if he wasn’t born in the United States.
One study estimates that there are over 27,000 rules that bar people convicted of crimes from holding professional licenses. A report by the Heritage Foundation found that many of these barriers to employment are counterproductive and actually increase rates of recidivism.
But if there is one collateral consequence of a felony conviction that makes perfect sense is that you shouldn’t be eligible to serve as president of the United States. Even if your sentencing has been delayed until after the election. The fact that this is not even a talking point one month before the election is beyond belief.
Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute.
Across the country, the earliest deadlines to register to vote before the Nov. 5 presidential election have passed — including in two swing states, Arizona and Georgia. That hard deadline will have a decisive impact on who can vote this fall.
In contrast, there are dozens of ongoing lawsuits — almost entirely from Republicans and groups allied with former President Donald Trump — that have been filed since late summer and contest how battleground states have maintained their voter rolls and register voters.
But with less than one month before Election Day, most of the registration-centered litigation appears unlikely to impact voters this fall. That’s because most of the suits are ongoing in state and federal court, where most judges are averse to last-minute rulings — especially once voting is underway.
The notable exceptions are Arizona’s new proof of citizenship requirement to register for its state and local elections — which was upheld by the Supreme Court — and, possibly, a Georgia effort to mass-challenge registrations (which counties havebegun to reject).
On the other hand, this swarm of lawsuits has given Trump campaigners a prop to sow myths about illegal voters — even if their claims are never evaluated.
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This split-screen reality exists because the court of legal option — which has rules of evidence and standards of proof — is not the same as the court of public opinion, where the First Amendment protects political speech, regardless of its veracity.
Nonetheless, in recent weeks most of the voter roll litigation has seen little action. Many officials who have been sued have not responded — delaying the process. Few evidentiary hearings have been scheduled. And some suits have been withdrawn for reasons that do not surprise legal experts — including conservative Republicans who investigated and reported on Trump’s 2020 claims and found “Biden’s victory is easily explained.”
“When you look at what is likely to take place in 2024 if it is a close election, the report ‘Lost, Not Stolen’ is really a handy reference guide,” said Ben Ginsberg, legal counsel for the George W. Bush and Mitt Romney presidential campaigns. “[It] looks at all 64 cases that were filed in 2020, which are similar to the issues that have already been raised in the pre-election litigation for this year. And what we concluded is that the charges that were brought by Donald Trump and his supporters, all 64 cases, lost because of a lack of evidence — not because there were procedural deficiencies in the cases.”
A Georgia lawsuit by two Trump activists in metro Atlanta is a telling example of a suit that collided with an established federal law — and, after initial bluster, was withdrawn.
The National Voter Registration Act of 1993 instructs states how to maintain voter rolls and expands registration. It also bars removing a registered voter within 90 days of an election. The Trump activists sued one day before that cutoff. Their lawsuit began: “Fulton County does not maintain, nor does it even attempt to maintain, accurate voter rolls.”
That claim is false. Nonetheless, the suit wanted a federal court to order Atlanta officials to disregard the NVRA’s purge deadline if their allies challenged tens of thousands of voter registrations — as was done in 2022’s general election. On Sept. 16, the activists withdrew their suitwithout citing a reason.
Election analysts have reported that there are more than 100 lawsuits across America that target different steps in the process. According to Democracy Docket — a voting rights news platform that tracks election litigation — more than a dozen suits challenging the NVRA have been filed in 2024’s seven battleground states (Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania and Wisconsin).
Almost all challenge technical aspects of the NVRA. For example, they allege:
Most of these claims have not been factually evaluated. And there are yet more voter-list-centered lawsuits. However, a large number of partisan suits does not mean there are massive problems. Indeed, on Oct. 7, the Supreme Court declined to hear a Pennsylvania suit challenging a White House directive to expand registration.
As registration closes in many states, it appears that most of this Republican litigation will not impact voters. Rather, experts say its goal is to “sow doubts” if Trump loses.
“What’s important in 2024 is to beware of the rhetoric,” Ginsberg said. “A campaign and party that loses a close election is going to find reasons to file cases.”
Correction 10/15/24: Democracy Docket was previously referenced as run by Democratic Party lawyers. They are a voting rights news platform founded by attorney Marc Elias that tracks election litigation.
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