A group of Republican-led states, led by Alabama Attorney General Steve Marshall, has been putting forth a series of arguments aimed at setting the stage for potential legal victories for the GOP in case of a disputed presidential election.
Less than six months remain before voting begins, and the battle for the rules of the 2024 election has already begun. The campaign of former President Donald Trump is receiving assistance from allies who have largely stayed out of the national spotlight: attorneys general from conservative states.
In recent court filings, these chief state legal officers have put forward a range of arguments, some of which have far-reaching implications. It seems that these arguments are being made to establish a foundation for potential Republican legal victories in the case of a contested presidential election, or to otherwise support Trump and the GOP.
A group of Republican-led states, frequently spearheaded by Alabama Attorney General Steve Marshall, has consistently filed briefs urging judges to:
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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.
Paul Nolette, a political science professor at Marquette University in Milwaukee, who has extensively studied the role of state AGs, suggests that all these state practices could be used to argue that the 2024 election was flawed. He emphasizes the critical role of AGs in advocating these arguments.
Marshall’s office did not provide a response when asked to comment on this story. However, last month, Marshall led a coalition of red states in submitting an amicus brief to the Supreme Court. The brief called for a pause in Trump’s election subversion trial, which was connected to the events of January 6, 2021. This position perfectly aligned with the interests of the Trump campaign.
In 2020, several state attorneys general, including Marshall, attempted to challenge the outcome of Trump’s election in court.
An election decided in the courts?
The experts in election law have stated that the risk of outright election subversion this year seems to have diminished to some extent. This can be attributed to significant federal legislation and the outcomes of the previous midterms. However, the likelihood of the election being challenged and ultimately resolved in the courts remains considerably high.
Advocates and experts argue that in such a situation, Republican AGs are in a prime position to offer conservative legal arguments that have the potential to be crucial. Their influence can be felt through directly shaping court decisions and by permeating the wider public discourse.
However, democracy advocates caution that many of these claims could pose a threat to fair elections. This is particularly true for those that advocate for new voting restrictions, diminish the influence of minority voters, or weaken the authority of courts in setting election rules.
Lizzie Ulmer, senior vice president of strategy and communications for States United Democracy Center, a pro-democracy group, emphasized that a significant aspect of the anti-democracy movement revolves around utilizing legal tactics as a means to propagate the election denier message.
“There are state attorneys general from both political parties who are dedicated to promoting democracy and upholding the law. However, it is important to acknowledge that there are currently some attorneys general who have the ability to cause significant damage. We have witnessed this in the past, and unfortunately, we continue to see it happening today.”
Growing politicization
The Republican AGs’ participation in high-stakes election cases signifies a continuation of the longstanding trend where AGs assume increasingly politicized roles.
Experts say that in less polarized times, state attorneys general (AGs) were typically seen as apolitical prosecutors who often joined forces across party lines to address matters of public importance.
During the George W. Bush administration, there was a notable shift in the approach taken by Democratic AGs. They started using high-profile lawsuits against Wall Street firms and corporate polluters, among other targets, as a means to further national policies and political objectives. This strategy also served to enhance their individual national profiles.
In the era of Trump, the shift has become even more pronounced. According to several close observers, a pivotal moment occurred in 2017 when Republicans attempted to remove Mark Herring, a Democrat and the then-Virginia Attorney General. This marked the end of a longstanding tradition where neither party would spend money to target incumbent AGs from the opposing party. Although Herring ultimately won re-election, that particular cycle witnessed an unprecedented level of campaign spending on AG races.
In states controlled by Republicans, the politicization of Attorney General (AG) offices peaked during the 2020 election, with a focus on the Republican Attorneys General Association. This advocacy group for Republican AGs saw its fundraising arm, the Rule of Law Defense Fund, sending out robocalls encouraging people to join a march to the U.S. Capitol on January 6, 2021. The purpose was to “stop the steal” and “protect the integrity of our elections.”
At the time, Marshall, the Alabama Attorney General, was the chair of RLDF. He claims to have been unaware of the robocalls. Marshall has chosen not to disclose whether RAGA or RLDF staff were present at the Capitol on January 6. Additionally, his office has denied public records requests for his calendars during that time period.
Alabama Attorney General Steve Marshall, along with his fellow Republican AGs, aimed to raise questions about the validity of the 2020 election results. In an interview with Newsmax shortly after the vote, Marshall expressed his concerns regarding irregularities and fraud that may have occurred in certain locations.
Marshall and several other Republican AGs accompanied Trump in a meeting at the White House on Dec. 10, 2020. The day before, Marshall declared that Alabama would join the lawsuit initiated by Texas Attorney General Ken Paxton, aiming to overturn the results in Pennsylvania and three other states that Joe Biden won by a narrow margin. Eventually, seventeen Republican-led states showed their support for the Texas case.
Idaho AG disagreed
Idaho, under the leadership of its Republican Attorney General, Lawrence Wasden, took a different stance from the other states involved in the lawsuit. Wasden believed that the Texas lawsuit was an inappropriate use of the Attorney General’s office to influence policy and intrude on the affairs of other states.
“The legislative branch of government, both at the state and federal levels, is responsible for the policy-making function, according to Wasden,” said States Newsroom. “As an executive officer, the AG does not possess such powers. It is not the appropriate role for us to make public policy.”
After serving in office for 20 years, Wasden experienced a loss in his 2022 reelection bid during the Republican primary. His defeat came at the hands of former U.S. Rep. Raul Labrador, and Wasden believes that this outcome was due to Republican voters’ anger towards his choice to not join the Texas case. Despite the setback, he remains steadfast in his belief that his decision was the correct one.
According to Wasden, it is not in line with the principles of federalism for one state, like Texas, to have control or influence over the election outcome in another state, such as Pennsylvania. He argues that if this were allowed, it would set a precedent where any state, like California, could potentially influence elections in other states, like Idaho. Wasden emphasizes that this goes against the fundamental principles of federalism.
Labrador became attorney general later that year and has since signed Idaho onto several election cases initiated by Republican AGs.
In 2021, Marshall took the step of withdrawing Alabama from the bipartisan National Association of Attorneys General, citing the group’s perceived leftward shift. Following Marshall’s lead, Texas, Missouri, and Montana also decided to leave the association the following year.
During his testimony before Congress in 2022, Marshall was asked under oath about Biden’s election and declined to explicitly state that he was “duly elected.” Instead, Marshall responded by acknowledging that Biden is currently serving as the president of the country.
Months later, Marshall assumed the position of chair of RAGA. Currently, he is spearheading the efforts of Republican AGs in tackling election cases, with a keen focus on the upcoming 2024 elections.
Weakening voting protections
Marshall has been a staunch advocate for implementing stringent voting regulations in his state.
In 2020, his office vigorously and effectively defended an Alabama law that prohibits individuals with previous convictions from voting. Additionally, during the same election, he successfully persuaded the Supreme Court to reject a proposal for curbside voting, a measure that voting advocates argued would provide greater accessibility for elderly and disabled voters.
Marshall’s efforts to support Republicans in shaping election regulations extend beyond the boundaries of the Yellowhammer State and hold significant potential for impact.
In January, Marshall took charge of a coalition consisting of 17 red states. They submitted an amicus brief in support of a national Republican effort to compel Pennsylvania to reject mail ballots that had incorrect or missing dates.
In the 2020 election in Pennsylvania, there were more than 10,000 ballots like these. How this case is resolved could potentially impact the outcome of this critical swing state, particularly if the margin is very close. It is worth noting that Democrats have historically voted by mail at higher rates compared to Republicans.
The impact, however, could extend even further. In fact, a district court ruling from last year concluded that the absence or inaccuracy of dates does not affect the validity of a vote.
According to the court ruling, it was determined that a missing or incorrect date cannot be used as a valid reason to reject a vote. This is because the materiality provision of civil rights law, which was initially established in the 1964 Civil Rights Act and later extended to cover non-federal elections in the Voting Rights Act, prohibits the dismissal of a vote based on such grounds.
The district court’s ruling was deemed “seriously misguided” by Alabama and the other states in their brief.
The argument put forth by some is that the materiality provision should be interpreted in a narrower sense, suggesting that it does not prevent states from implementing reasonable measures to ensure ballot integrity. Additionally, they assert that the provision does not grant a “private right of action,” limiting 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, making the materiality provision more challenging to utilize would likely have a limited impact. This provision has not been one of the most commonly employed tools for safeguarding voting rights.
In the midst of various conservative legal assaults on voting safeguards, including endeavors to diminish the Voting Rights Act and indications from the Supreme Court about potentially lessening the level of scrutiny applied to voting laws that potentially harm voters, he emphasized the significance of this development.
Kistler expressed concern over the gradual removal of the tools necessary for ensuring free and fair elections. The collective impact of these actions is increasingly troubling.
Voting Rights Act
In a clear demonstration of their stance, Marshall’s office submitted an additional amicus brief in December, asserting that Section 2 of the Voting Rights Act, which holds great significance after Section 5 was rendered ineffective by the Supreme Court ten years ago, does not grant individuals a private right of action.
Marshall and his allies urged a federal appeals court to reverse a ruling that deemed Louisiana’s congressional map a racial gerrymander under Section 2.
Many advocates used to consider the idea that Section 2 does not provide a private right of action as absurd. However, a federal judge recently supported this notion in a 2022 case concerning an Arkansas redistricting plan. The case was initiated by Arkansas Attorney General Tim Griffin, a Republican, who has backed several of Marshall’s amicus briefs. This decision was upheld on appeal in December.
The Supreme Court is likely to address the issue, which has the potential to significantly undermine the power of the VRA in combating racial discrimination in voting.
According to Nicholas Stephanopoulos, a renowned election law scholar at Harvard Law School, Alabama’s approach to the question goes against 40 years of precedent.
The Supreme Court, dominated by conservatives, found the claim to be too extreme. As a result, they directed Alabama to create a new map.
Marshall’s response indicated a broader agenda that extended beyond the borders of Alabama.
He likened the ruling, which sought to empower Black voters, to Jim Crow.
Marshall expressed his concern about the brazen and divisive commandeering that is taking place. He emphasized that if this issue is not addressed, it will have a lasting impact on America’s congressional elections. Marshall stated that this kind of behavior would result in people being grouped together solely based on their race, leading to the division of counties and cities. He drew a parallel to the wrongful segregation that occurred in the past and emphasized the importance of preventing such a scenario from happening again.
Marshall spearheaded a group of 18 Republican-led states that submitted a 2021 amicus brief endorsing Arizona’s defense of a law that mandates voters who fail to sign their mail-in ballots to do so before 7 p.m. on election night.
Marshall’s brief raises a crucial question about the authority to set election rules: should it rest with state legislatures or the courts? While it may appear to be a minor issue, this argument touches upon a more fundamental aspect of our democratic process.
“The right of state legislatures to determine the manner of holding elections within their respective states is clearly stated in the U.S. Constitution,” Marshall expressed. “As a result, it is the state legislatures, and not the federal courts, that have the legal authority to establish state election laws. When courts try to excessively regulate election laws that have been properly passed by state legislatures, it goes against both our constitutional framework and legal precedent.”
Experts cautioned that if the Independent State Legislature Theory, which North Carolina presented to the Supreme Court last year, were to be accepted, it could have significant implications for election law. This theory would grant partisan state lawmakers considerable authority in determining the rules. However, the Supreme Court ultimately dismissed this argument.
Why AGs enjoy influence
Assessing the influence of amicus briefs on courts is a challenging task, making it difficult to determine the extent to which they sway judges. However, advocates emphasize the significant role of state Attorneys General (AGs) as the top legal representatives of their respective states. This position grants their claims a valuable sense of authority, further enhancing the impact of amicus briefs.
Dax Goldstein, a senior counsel at States United Democracy Center, emphasized the significance of state attorneys general (AGs) due to their governmental role. Unlike parties without a governmental role, AGs are regarded with greater credibility. Goldstein highlighted the distinction between a brief filed by a sitting AG and one filed by someone like John Eastman, a lawyer representing Donald Trump.
Furthermore, states have been granted more authority than individual plaintiffs to file lawsuits on public policy matters following a 2007 Supreme Court decision. This ruling came about when a coalition of states, led by Massachusetts, took legal action against the Environmental Protection Agency during the George W. Bush administration.
According to Kistler, state officials have a greater advantage in bringing legal challenges compared to private citizens. The willingness of the judiciary to consider these cases further amplifies this difference.
According to Nolette, a political scientist at Marquette University, the coordinated nature of the series of briefs filed by the Attorneys General in election cases is not a coincidence.
According to Nolette, planning far-reaching arguments involves a great deal of strategy. He explains that attorneys general from both parties utilize their partisan organizations, such as the Republican Attorney Generals Association and the Democratic Attorney Generals Association, to coordinate their efforts and identify the most favorable venues for success.
“It’s as if purchasing a lottery ticket, aiming to enhance the likelihood of those arguments gaining traction,” Nolette remarked. “And once they secure the support of a district court judge, it elevates their credibility. They can then assert, ‘A federal judge has endorsed our perspective, so this argument holds merit, even if it was once deemed far-fetched.'”
