by Zachary Roth, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]

February 25, 2024

Fearing that Democrats hold a crucial edge in ballots cast before Election Day, national Republicans are working to convince their voters to take advantage of mail and early voting this year.

“We can’t play catch up. We can’t start from behind. We can’t let Dems get a big head start and think we’re going to win it all on Election Day,” Republican National Committee chair Ronna McDaniel said in November on a conference call aimed at promoting the group’s Bank Your Vote initiative to encourage early and mail voting. “Things happen on Election Day.”

But the party’s army of lawyers is, more quietly, sending a very different message. The RNC is fighting in courtrooms and legal filings in key election battlegrounds across the country to make it harder to cast a mail ballot and to have it counted.

On Feb. 20, attorneys for the RNC were in a federal courtroom in Philadelphia, in a bid to require that Pennsylvania throw out mail ballots with missing or incorrect dates.

Eleven days earlier, they filed a lawsuit challenging several provisions of Arizona’s newly adopted election rules, including a rule allowing voters who have not shown proof of citizenship to cast a mail ballot.

And that same day, they asked a court in Georgia to uphold a state law that imposes stricter rules on mail voting.

Separately, in recent months the RNC has asked courts to let it join the defense of laws in Ohio, Wisconsin, and North Carolina that similarly impose tighter rules on mail voting (judges in the latter two states denied the requests, while the Ohio motion was approved).

The party also has sued to block a New York law that lets people vote by mail without an excuse (the state’s Supreme Court this month dismissed the complaint). And it has formally weighed in against proposed changes to Nevada’s election rules, including one that makes it easier for election officials to prevent volunteer observers from disrupting the counting of mail ballots.

In January, the RNC went further than ever, filing a lawsuit in Mississippi that it has said aims to obtain a nationwide ban on mail ballots that arrive after Election Day. RNC lawyers stated plainly in their complaint that Republicans’ interests are at stake because mail voting tends to favor Democrats.

States with close races targeted

Though it’s received relatively little attention, the RNC’s legal onslaught could have a major impact on the 2024 elections.

Pennsylvania, Georgia, Arizona, Wisconsin, North Carolina, and Nevada are all set to be among the closest states in this year’s presidential race, while Pennsylvania, Ohio, Arizona, Wisconsin, and Nevada host pivotal U.S. Senate contests. New York, meanwhile, is home to several swing congressional districts that could determine control of the U.S. House.

And the legal effort against mail voting has been matched by a legislative one. Thirteen states, including Florida, Texas, North Carolina, Arizona, and Ohio, have passed 16 bills to restrict mail voting since the start of 2023, according to a database run by the Voting Rights Lab.

It all amounts to a multi-pronged effort to suppress voting by mail, voting advocates say — one that could threaten access to the ballot this fall, especially for Democrats, who are now more likely than Republicans to use mail voting. At its core are legal arguments aimed at convincing judges to interpret the law in ways that are explicitly adverse to voters.

The push sits uneasily alongside an RNC campaign to convince GOP voters to embrace mail and early voting. But it’s right in keeping with former President Donald Trump’s years-long, evidence-free campaign against voting by mail.

“In courtrooms and state legislatures across the country, Republicans are doing everything in their power to restrict mail-in voting,” said Marc Elias, a prominent Democratic election lawyer, in a statement. “The RNC’s legal strategy is clear. The Republican Party no longer seeks to earn the support of a majority of the American electorate. Instead, they are launching a legal assault on our democracy.”

A spokesman for the RNC did not respond to a request for comment.

A muddled message on mail voting

In 2020, many states loosened rules on mail voting in response to COVID-19. That year’s election saw record high turnout despite the pandemic, with nearly half of all voters casting a mail ballot — a huge increase from around 22% in 2016.

Even with COVID-19 tamed, many states have kept their more liberal mail voting rules in place, or, like New York, have passed new laws expanding access to mail ballots.

While leading Democrats have embraced mail voting, Trump has repeatedly denounced it, falsely claiming it opens the door to massive fraud.

“MILLIONS OF MAIL-IN BALLOTS WILL BE PRINTED BY FOREIGN COUNTRIES,” Trump tweeted in June 2020, adding that the result would be a “RIGGED” election.

It’s true that several of the extremely rare instances of proven voter fraud have involved mail voting. But there’s no evidence of systematic mail voter fraud of the kind that Trump has claimed threatens the integrity of a presidential election.

A voter fraud database run by the Heritage Foundation, a conservative think tank, lists 279 cases of “fraudulent use of absentee ballots,” going back to 1988 — since which time hundreds of millions of mail ballots have been cast.

Meanwhile, GOP lawyers have gone to the mat to try to put the mail voting genie back in the bottle.

“We’ve watched Democrats systematically try to codify those post-COVID changes that they made, and we’ve been in the courts trying to keep those pre-COVID protections in place for our elections,” RNC chair Ronna McDaniel explained in October. “There’s been a battle waged.”

It’s not surprising, then, that Democrats have in recent elections used mail voting at significantly higher rates than Republicans. So pronounced is the split that in 2020, President Joe Biden won the mail vote in 14 out of 15 states analyzed by 538.com, while Trump likewise won the Election Day vote in 14 out of 15.

That’s led the GOP to fret that it now often goes into Election Day already trailing by a significant margin. In response, the RNC last year launched the Bank Your Vote initiative to encourage Republicans to vote early or by mail.

The effort includes websites in all 50 states, and even an ad recorded by Trump — albeit without much visible enthusiasm.

“Sign up and commit to voting early,” Trump says. “We must defeat the far left at their own game.”

But Trump has continued to muddy that message.

“You know, we have these elections that last for 62 days,” Trump declared last month in his victory speech after the Iowa caucuses. “And if you need some more time, take as much time as you want. And so many bad things happen. We have to get rid of mail-in ballots because once you have mail-in ballots, you have crooked elections.”

RNC court filings

The RNC’s legal assault on mail voting suggests a similar view. In several court filings, RNC lawyers have suggested that tight safeguards are needed to ensure mail voting doesn’t allow for fraudulent votes.

Ohio’s law that restricts who can return a mail ballot on behalf of a voter should be upheld, the RNC argued in one typical filing, because it guards against “an increased risk of voter fraud and other irregularities.”

The Republican bid to restrict mail voting is part of a larger effort by the party since 2020 to devote more resources to “election integrity” — tighter election rules that prioritize anti-fraud measures over access. It includes a year-round election integrity legal department, which has said it worked with over 90 law firms and participated in nearly 100 lawsuits during the 2022 cycle.

So far this cycle, the RNC has paid over $4 million to two top Republican law firms, Consovoy McCarthy and Wiley Rein, according to FEC records. Thomas McCarthy, a co-founder of Consovoy McCarthy, is listed on RNC motions in the Mississippi, Georgia and Wisconsin cases, among others.

The focus on “election integrity” comes as McDaniel, the RNC chair, is reported to be stepping down at the end of the month. Trump’s choice to replace her, North Carolina GOP chair Michael Whatley, has stressed the importance of tight voting rules for Republican success, States Newsroom has reported.

Chipping away at mail votes

The most far-reaching of the RNC’s cases is the lawsuit it filed with other Republicans in January against a Mississippi law that allows mail ballots that arrive up to five days after an election to be counted, as long as they’re postmarked by Election Day.

Federal law sets Election Day as the Tuesday after the first Monday in November, the suit argues, so by extending the election past that day, Mississippi is violating federal law.

The RNC has said the goal is to obtain a ruling from a judge that bars post-Election-Day ballots from being counted not just in Mississippi but nationwide. The 5th Circuit, which contains Mississippi, is known as perhaps the most conservative judicial circuit in the country.

Election law experts have said it’s unlikely, but not impossible, that a court could accept the RNC’s argument.

If the case were to reach the Supreme Court, at least one justice appears friendly. In 2020, when the court upheld Wisconsin’s ban on late-arriving ballots, Justice Brett Kavanaugh wrote that states have the right to set election deadlines “to avoid the chaos and suspicions of impropriety that can ensue when thousands of absentee ballots flow in after election day and potentially flip the results of an election.”

Mississippi is one of 18 states — including key battlegrounds like Ohio, Nevada, Virginia, Texas, and New York — plus the District of Columbia, that count ballots that arrive after Election Day. (North Carolina last year passed a law that restricts mail voting in several ways, including by banning ballots that arrive after Election Day. It’s that law that the RNC sought unsuccessfully to help defend from a court challenge by Democrats, which is ongoing.)

The number of votes at issue could be significant. In 2020, the U.S. Postal Service said it processed nearly 190,000 ballots in the two days after the election. Most of those, it said, were in states that allow late-arriving ballots.

The Mississippi lawsuit makes clear that, despite the Bank Your Vote campaign, Republicans want to curtail mail voting because they think it gives Democrats an edge.

“Because voting by mail is starkly polarized by party, [allowing late-arriving ballots] directly harms Plaintiffs,” the RNC’s lawyers wrote in the complaint. “For example, according to the MIT Election Lab, 46% of Democratic voters in the 2022 General Election mailed in their ballots, compared to only 27% of Republicans. That means the late-arriving mail-in ballots that are counted for five additional days disproportionately break for Democrats.”

Pennsylvania case also crucial

The Pennsylvania case is another that could reverberate. In November 2022, the state Supreme Court ruled — in response to a suit filed by the RNC and other Republicans — that over 10,000 mail ballots on which the voter had neglected to write the date on the outer envelope, or had written an incorrect date, must be rejected.

The state’s NAACP chapter filed its own suit in federal court in response. The RNC quickly intervened, arguing that the state Supreme Court’s ruling should be upheld. A district court ruled for the NAACP in November, finding that the Civil Rights Act bars states from rejecting votes based on immaterial paperwork errors. The RNC appealed, arguing for a narrower interpretation of the landmark civil rights law, setting up the Feb. 20 hearing.

In a sign that the case could have an impact beyond Pennsylvania, 17 Republican-led states last month submitted an amicus brief in support of the RNC’s position.

The other cases may not have the same reach as those two. But together, they broadly aim to tighten the rules around mail voting to a degree that could significantly chip away at mail votes.

RNC lawyers have marshaled a range of arguments in these cases.

They have claimed, unsuccessfully, that New York’s law expanding access to mail voting violates the state’s constitution, which bans no-excuse mail voting. They’ve said Georgia’s new deadline to apply for a mail ballot of seven days before Election Day doesn’t violate the federal law barring deadlines of fewer than 11 days, because the federal government lacks the authority to regulate these deadlines.

No mail voting rule appears too small to escape the notice of RNC lawyers. This month’s lawsuit against Arizona targets a new rule that lets voters who registered without proof of citizenship — and therefore, under Arizona law, can vote in federal elections only — receive a mail ballot, arguing that state law bars these voters from voting by mail.

And they’ve submitted comments to a Nevada commission, criticizing a proposed rule there that gives election officials more power to ensure the counting process for mail ballots isn’t disrupted. The new powers could let election officials infringe on the public’s right to witness the counting, the group’s lawyers assert.

Meanwhile, supporters of mail voting say Republican fears about an influx of Democratic mail votes may be misplaced.

“Americans have used mail ballots for over a hundred years because they provide a safe and convenient way to ensure the right to vote,” said Barbara Smith Warner, the executive director of the National Vote at Home Institute, which advocates for mail voting. “Research has demonstrated time and time again that voting at home increases voter participation and turnout for all, with no partisan advantage for any side.”

“Attacks on mail ballots are red herrings to distract from their true intent — making it harder for citizens to vote, and sowing distrust in our elections,” Smith Warner said.

Georgia Recorder is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com. Follow Georgia Recorder on Facebook and Twitter.