A coalition of Republican-led states, predominantly spearheaded by Alabama Attorney General Steve Marshall, has put forth a series of arguments with the intention of establishing a strong legal foundation for potential GOP triumphs in the event of a disputed presidential election.
Less than six months remain before the start of voting for the 2024 election, and the battle over the election rules has already begun. Former President Donald Trump’s campaign is receiving backing from allies who have largely stayed out of the national spotlight: attorneys general from red states.
In recent months, these chief state legal officers have presented a series of arguments in court filings. Some of these arguments are remarkably extensive and seem to be strategically aimed at preparing for potential Republican legal triumphs in the event of a disputed presidential election. Additionally, these arguments may serve to bolster Trump and the GOP in other ways.
A group of Republican-led states, often spearheaded by Alabama Attorney General Steve Marshall, has consistently submitted briefs advocating for their positions in front of judges.
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- Throw out certain mail ballots,
- Weaken long-standing protections against racial discrimination in voting,
- Green-light gerrymandered district maps,
- And empower partisan state legislatures, rather than courts, to set election rules.
Political science professor Paul Nolette, who has extensively studied the role of state attorneys general (AGs), emphasizes that the various state practices being called into question could potentially form the basis of an argument alleging flaws in the 2024 election. He asserts that AGs have played a crucial role in driving these arguments forward.
Marshall’s office declined to comment on this story. However, last month Marshall spearheaded a coalition of red states that submitted an amicus brief to the Supreme Court, requesting a pause in Trump’s election subversion trial linked to the events of January 6, 2021. This position perfectly aligned the group with the interests of the Trump campaign.
In 2020, Marshall and several other state AGs attempted to overturn Trump’s election loss through legal means.
An election decided in the courts?
The risk of direct election subversion this year seems to have lessened, according to election law experts. This is due to significant federal legislation and the outcomes of the previous midterms. However, there is still a high likelihood that the election will be challenged and eventually resolved through legal means.
Advocates and experts argue that in such a scenario, these Republican AGs are in a favorable position to offer conservative legal arguments that could have a significant impact. Their influence could extend not only to court decisions but also to shaping the broader public debate.
However, democracy advocates caution that many of these claims could potentially jeopardize the fairness of elections. This is particularly concerning for measures that aim to impose new voting restrictions, diminish the influence of minority voters, or undermine the authority of courts in establishing election regulations.
Lizzie Ulmer, senior vice president of strategy and communications for States United Democracy Center, a pro-democracy group, emphasized that a significant portion of the anti-democracy movement relies on utilizing legal tactics as a means to further propagate their message of election denial.
“There are state Attorneys General from both political parties who are committed to upholding democracy and serving the public’s interest. However, it is important to acknowledge that there are currently some AGs who possess the power to cause significant harm. We have witnessed this in the past, and unfortunately, we continue to witness it today.”
Growing politicization
Republican attorneys general (AGs) have increasingly become involved in election cases of national significance, reflecting a growing trend over the past few decades.
Experts say that during less polarized times, state attorneys general generally portrayed themselves as non-partisan prosecutors. They often worked together, regardless of party affiliation, to address matters that were of public importance.
During the George W. Bush administration, there was a noticeable shift in the approach taken by Democratic Attorneys General (AGs). They started using high-profile lawsuits against Wall Street firms and corporate polluters, among others, to not only advance national policy and political objectives but also to enhance their own national profiles.
In the era of Trump, the shift has become even more pronounced. According to several close observers, a significant turning point occurred in 2017 when Republicans made a move to remove Mark Herring, the Democratic Attorney General of Virginia. This marked the end of a longstanding tradition in which neither party spent resources on targeting incumbent AGs from the opposite party. Although Herring ultimately succeeded in winning re-election, that election cycle witnessed an unprecedented level of campaign spending on Attorney General races.
In Republican-led states, the politicization of Attorney General (AG) offices reached its peak during the 2020 election. This was primarily driven by the Republican Attorneys General Association, an advocacy group for Republican AGs. In the run-up to the events of January 6, 2021, the group’s fundraising arm, the Rule of Law Defense Fund, sent out robocalls encouraging people to gather for a march to the U.S. Capitol. The purpose of this march was to “stop the steal” and “protect the integrity of our elections.”
During that time, Marshall, who was serving as the chair of RLDF, claims to have been unaware of the robocalls. He has chosen not to disclose whether RAGA or RLDF staff were present at the Capitol on January 6th, and his office has rejected public records requests for his calendars during that period.
Marshall, along with other Republican AGs, aimed to raise skepticism about the 2020 election results. In an interview with Newsmax shortly after the vote, he expressed his concerns about potential irregularities and fraud in other locations.
On Dec. 10, 2020, Marshall and other Republican attorneys general joined Trump for a meeting at the White House. Just a day before, Marshall had made an announcement that Alabama would be joining a lawsuit filed by Texas Attorney General Ken Paxton. The lawsuit aimed to overturn the election results in Pennsylvania and three other states, which were narrowly won by Joe Biden. In the end, a total of seventeen Republican-led states decided to support the Texas case.
Idaho AG disagreed
Idaho, under the leadership of its Republican Attorney General Lawrence Wasden, chose not to participate in the lawsuit. Wasden believed that the Texas lawsuit was an inappropriate use of the Attorney General’s office, as it aimed to dictate policy and meddle in the affairs of other states.
According to Wasden, the responsibility for making policies lies with the legislative branch of government, as stated in both state and federal constitutions. As an executive officer, the Attorney General does not possess the authority to make public policy. Wasden emphasized that it is not the role of the AG to engage in policy-making activities.
After serving for 20 years in office, Wasden faced defeat in his 2022 re-election bid during the Republican primary. Former U.S. Rep. Raul Labrador emerged victorious, a result that Wasden believes was fueled by GOP voter anger over his decision not to join the Texas case. Despite the outcome, Wasden remains steadfast in his conviction that his choice was the correct one.
“If Texas has the ability to control or impact the election outcome in Pennsylvania, it would set a precedent where California could likewise influence the election in Idaho,” explained Wasden. “Such a scenario goes against the principles of federalism.”
Labrador became attorney general in the same year and has since signed Idaho onto multiple election cases initiated by Republican AGs.
In 2021, Marshall decided to withdraw Alabama from the bipartisan National Association of Attorneys General, stating that the group had “moved too far to the left.” This decision was later followed by Texas, Missouri, and Montana in the following year.
During his testimony before Congress in 2022, Marshall chose not to explicitly state that Biden was “duly elected” when questioned under oath. Instead, he simply acknowledged that Biden is the current president of the country.
Months later, Marshall assumed the position of RAGA chair, taking the helm of Republican AGs and spearheading their efforts in election cases, all while keeping an eye on the upcoming 2024 election.
Weakening voting protections
Marshall has been a staunch advocate for implementing stringent voting laws in his state.
The office of John Doe vigorously and effectively defended an Alabama law in 2020 that prohibits individuals with prior convictions from voting. During that election, he also successfully persuaded the Supreme Court to reject a proposal for curbside voting, which voting advocates argued would provide greater accessibility for elderly and disabled voters.
Marshall’s efforts in supporting Republicans who aim to shape election regulations beyond the state of Alabama could potentially yield significant consequences.
In January, Marshall took the lead in a coalition of 17 red states that filed an amicus brief in support of a national Republican effort to urge Pennsylvania to disregard mail ballots that had incorrect or missing dates.
In the 2020 election in Pennsylvania, there were over 10,000 ballots like this, and how the case is resolved could potentially impact the outcome of this crucial swing state, especially if the margin is narrow. It is worth noting that Democrats have tended to vote by mail more frequently than Republicans in past elections.
The impact of the missing or incorrect dates on establishing a vote’s legitimacy could be broader than anticipated. In fact, a district court ruled last year that these discrepancies are considered irrelevant in determining the validity of a vote.
According to the court’s ruling, a missing or incorrect date cannot be utilized as a valid reason to discard a vote. This is based on the materiality provision of civil rights law, which was initially incorporated in the 1964 Civil Rights Act and later expanded to encompass non-federal elections in the Voting Rights Act the following year.
Alabama and the other states strongly criticized the district court’s ruling, describing it as “seriously misguided.”
According to their argument, the materiality provision should have a narrower interpretation, allowing states to implement reasonable measures to ensure ballot integrity. They also asserted that the provision does not grant a “private right of action,” limiting its enforcement to the U.S. Justice Department rather than civil rights groups involved in the Pennsylvania case.
According to Cameron Kistler, counsel at Protect Democracy, a nonpartisan democracy advocacy group, simply making the materiality provision more challenging to utilize would likely have a minimal effect. This provision has not been widely employed as a means to safeguard voting rights.
According to him, this occurrence should be viewed in conjunction with other conservative legal endeavors that aim to undermine voting safeguards. These include efforts to dilute the Voting Rights Act and indications from the Supreme Court that it may adopt a less rigorous approach when evaluating voting laws that are alleged to disenfranchise voters.
According to Kistler, the tools required to guarantee the integrity of elections are gradually being stripped away. He emphasizes that when all of these tools are removed, the situation becomes increasingly concerning.
Voting Rights Act
To further illustrate this point, Marshall’s office submitted a separate amicus brief in December. The brief argued that Section 2 of the Voting Rights Act, which is considered the most crucial provision after Section 5 was weakened by the Supreme Court ten years ago, does not grant individuals the right to take legal action.
Marshall and his allies urged a federal appeals court to reverse the ruling that declared Louisiana’s congressional map as a racial gerrymander under Section 2.
Many advocates had previously considered the idea that Section 2 lacks a private right of action to be far-fetched. However, a federal judge recently supported this notion in a case involving an Arkansas redistricting plan, brought by Republican Arkansas Attorney General Tim Griffin, who has supported several of Marshall’s amicus briefs. This decision was later upheld on appeal in December.
If Arkansas is successful in its case, it could significantly weaken the ability of the Voting Rights Act to combat racial discrimination in voting. This matter is expected to be brought before the Supreme Court for a ruling.
Marshall has taken steps to defend Alabama’s redistricting plan. His office has put forth an interpretation of the VRA that would make it extremely difficult to use as a tool against racial gerrymandering. This interpretation argues against the need for a new map with an additional majority-Black district. Experts have criticized this stance, stating that it would severely limit the effectiveness of the VRA in addressing racial gerrymandering.
According to Nicholas Stephanopoulos, a well-known election law scholar at Harvard Law School, Alabama’s approach to the question is in direct opposition to four decades of precedent.
The Supreme Court, dominated by conservatives, found the claim to be excessively extreme. Consequently, they directed Alabama to develop a fresh map.
Marshall’s response indicated a broader agenda that extended beyond the borders of Alabama.
He equated the ruling, which sought to empower Black voters, with the era of Jim Crow.
Marshall expressed concern over the brazen and divisive commandeering, emphasizing that if such actions were allowed without any objection, it would have a significant impact on America’s congressional elections. He warned that the consequences would be severe, as the nation would be divided solely based on race, with counties and cities facing separation, reminiscent of the unjust segregation that occurred in the past.
In 2021, Marshall spearheaded a coalition of 18 Republican-led states who submitted an amicus brief in favor of Arizona’s defense of a law. This law mandates that voters who fail to sign their mail ballots must do so by 7 p.m. on election night.
Marshall’s brief raises a crucial question, asserting that the responsibility of establishing election rules lies with state legislatures rather than the courts. While this may appear to be a minor issue, it touches upon a broader and more fundamental matter.
According to Marshall, the U.S. Constitution clearly states that state legislatures have the authority to decide how elections are conducted within their states. He emphasizes that it is the state legislatures, not federal courts, that hold the legal power to determine state election laws. Marshall argues that any attempts by the courts to excessively control election laws that have been properly enacted by state legislatures go against the constitutional framework and established legal principles.
Experts had previously cautioned that if North Carolina’s claim, known as the Independent State Legislature Theory, was accepted by the Supreme Court, it could have significant implications for election law. This claim would have granted partisan state lawmakers an unprecedented level of authority to determine the rules. However, the Supreme Court ultimately dismissed this argument.
Why AGs enjoy influence
Assessing the impact of amicus briefs on courts is a complex task, making it difficult to determine the extent of their influence. However, advocates argue that the involvement of state Attorneys General (AGs) in these briefs adds a significant level of credibility and authority to their claims. As the chief legal officers of their respective states, AGs possess a unique position that enhances the value of their arguments.
According to Dax Goldstein, a senior counsel at States United Democracy Center, state attorneys general (AGs) hold significant credibility due to their governmental role, unlike parties without such authority. As a result, when a sitting AG files a brief, it carries more weight compared to a brief filed by someone like John Eastman, who is a lawyer for Donald Trump.
Since a 2007 Supreme Court ruling, states have been granted more power than individual plaintiffs to bring lawsuits on public policy issues. This ruling came about when a group of states, led by Massachusetts, filed a lawsuit against the George W. Bush administration’s Environmental Protection Agency.
According to Kistler, state officials have a greater advantage in bringing legal challenges compared to private citizens. This is because states possess a stronger ability to initiate cases, and the judiciary system is more receptive to entertaining these cases. As a result, the active involvement of state officials can significantly impact the legal landscape.
According to Nolette, a political scientist from Marquette, it is not a coincidence that the series of briefs filed by the AGs in election cases seem coordinated.
According to Nolette, a significant amount of strategy is involved in the planning of these extensive arguments. He explains that attorneys general from both political parties utilize their partisan organizations, namely the Republican Attorney Generals Association and the Democratic Attorney Generals Association, to coordinate their efforts and identify the most favorable venues for achieving success.
According to Nolette, the act of trying to strengthen the likelihood of these arguments gaining traction is akin to purchasing a lottery ticket. Once they find a district court judge who supports their viewpoint, it gives their argument a newfound level of credibility. Nolette explains that even if the argument was considered far-fetched in previous years, having a federal judge on their side legitimizes it.
