Here's how Donald Trump could fight to overturn a 2024 loss

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Former President Donald Trump and his Republican allies appear to be laying the groundwork for legal challenges to the 2024 election if Trump loses, following the same playbook they pursued in 2020. The Republican National Committee has filed more than 100 election-related lawsuits so far, with many focusing on the same issues that Trump claimed cost him the election last time, such as illegitimate mail-in ballots being counted and a lack of safeguards against noncitizens voting.

Under a program called "Protect the Vote," the RNC said it recruited 200,000 poll watchers, along with "aggressive attorneys" and set up an election-integrity hotline to protect legal votes and stop election interference. The lawyers will be monitoring the accuracy of voting machine testing, voting early and on Election Day, processing mail ballots and post-election audits and recounts.

The more than 60 lawsuits that Trump and his allies filed − and lost − challenging the 2020 results give an indication of how he might try to overturn a loss in court this time.

Already this year, Republicans have argued there aren't sufficient safeguards in three swing states against noncitizen voting or against improperly completed absentee ballots. (Noncitizens are legally barred from voting in federal elections.)

Despite polls showing a neck-and-neck race, Trump maintains the only way he could lose on Nov. 5 is through election fraud. Trump said he is watching the election closely because of what he continues to claim was “rampant Cheating and Skullduggery” last time, according to a Sept. 17 post on Truth Social. The next day he said, without evidence, Democrats were registering tens of thousands of illegal voters.

Trump has refused to unconditionally commit to accepting the outcome of the upcoming election. "If everything's honest, I'd gladly accept the results," Trump told the Milwaukee Journal-Sentinel. "If it's not, you have to fight for the right of the country."

The strategy is nothing new. Trump refused to say he’d concede if he lost to Democratic nominee Hillary Clinton in 2016. Trump was filing lawsuits through Election Day that year, making claims of fraud under the banner of "Stop the Steal" that returned in 2020.

The rejections of 2020 election fraud claims in court were resounding. The U.S. Supreme Court turned away Trump's cases. A federal judge in Michigan called one lawsuit “a historic and profound abuse of the judicial process.” Arizona lawmakers laughed at Trump lawyer Rudy Giuliani’s lack of evidence. In a related lawsuit, Dominion Voting Systems reached a $787 million settlement with Fox News over false claims Trump and his allies promoted − and the right-leaning cable network repeated − accusing the company’s machines of switching Trump votes to President Joe Biden's column.

Despite those failures, Trump is a tireless litigant who can be expected to try again.

“The ability to point to a battle in the courts provides a veneer of legitimacy,” said Sean Morales-Doyle, director of voting rights at the Brennan Center for Justice. “It is nailing hooks in the wall now so they have something to hang their hat on later when they want to question the outcome of the election. It sows distrust and it’s something you can point back to later when you’re upset with the outcome of the election.”

Changes since 2020 could curb lawsuits. Congress tried to reduce challenges to election results by updating the archaic Electoral Count Act governing how presidential votes are tallied. Some lawyers might shy away from election cases because several of Trump's lawyers were charged criminally, convicted and sanctioned for their advocacy.

The Trump campaign didn't respond to a request for comment.

The Republican National Committee told Paste BN it has filed 119 election integrity lawsuits in 25 states by mid-September. The group's stated goals are to make sure that legal votes are cast and counted properly. Lawsuits so far targeted a variety of issues, but two major themes focused on preventing noncitizen from voting and ensuring that mail-in ballots are cast correctly.

"We are committed to the basic principle − and commonsense law − that only Americans decide American elections," RNC Chair Michael Whatley said after filing back-to-back lawsuits in North Carolina over citizenship issues.

Republicans and conservatives find lawsuits 'failed to present evidence'

Republican federal and state election investigators found no widespread fraud in 2020. Then-Attorney General Bill Barr called Trump's "avalanche" of claims "nonsense" and "absolute rubbish."

Former Arizona GOP House Speaker Rusty Bowers said Giuliani told him: “We’ve got lots of theories. We just don’t have the evidence.”

Trump has falsely claimed that his cases last time were all thrown out on a "technicality," and not considered on the merits. But in a report titled “Lost Not Stolen,” a group of prominent conservative legal experts determined judges dismissed 30 claims of fraud and misconduct put forth by Trump and his allies after holding evidentiary hearings.

Judges across the political spectrum – at the state and federal level, including some appointed by Trump – rejected lawsuits challenging the election results. A federal judge in Michigan found one case filled with “speculation, conjecture, and unwarranted suspicion." In Wisconsin, a federal judge appointed by Trump threw out a lawsuit asking to give the legislature the power to name new presidential electors by ruling he "lost on the merits."

"There is nothing I’ve seen in 2020 or in the days since to indicate that any court in any state is simply in the bag for any presidential candidate," said Justin Levitt, a professor at Loyola Law School. “I haven’t seen any judge indicate, ‘Yeah, just send me a case and I alone will cause magic to happen and change the results.’”

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What are GOP lawsuits expected to challenge in 2024?

Despite the lack of evidence four years ago, lawyers say Trump's post-election lawsuits this year could focus on the following allegations:

• Irregularities among absentee ballots, such as a lack of signature or date.
• Ineligible voters, such as noncitizens or felons.
• Ballots being counted improperly.
• Observers being blocked from monitoring vote counting.

Rick Hasen, a law professor at UCLA who tracks election litigation, said litigation this seems “less serious” than in 2020, when litigants fought over whether pandemic changes in election rules violated state laws or constitutions. As an example, Hasen cited GOP lawsuits this year challenging absentee ballots postmarked by Election Day and received afterward, which he said courts have upheld repeatedly.

“Now a lot of the litigation is more minor or raising more long-shot theories," Hasen said.

The time-frame remains tight for anyone to challenge election results. The Electoral College will vote Dec. 17 – about six weeks after the Nov. 5 election.

Lawsuits could be filed in state or federal court, depending where the litigants saw an advantage. The state Supreme Courts in Arizona and Georgia have strong conservative majorities. The high courts in Michigan, Pennsylvania and Wisconsin have narrower left-leaning majorities. And the U.S. Supreme Court has a 6-3 conservative majority, with three justices appointed by Trump and one by Biden.

Spotlight on mail-in ballots

The popularity of mail-in ballots has grown dramatically, especially among Democrats. More than 43% of voters mailed their ballots in 2020, up from 24.5% in 2016, according to the U.S. Election Assistance Commission. About 60% of Democrats, compared to 32% of Republicans, reported voting by mail in 2020, according to surveys.

Republicans are trying to prevent from being counted ballots that come in late or fail to comply with requirements such as a signature or date, and they are likely to sue to block counting ballots for those reasons after a close outcome in a key state.

The Pennsylvania Supreme Court upheld a law Sept. 13 that prevents election officials from counting undated mail-in ballots. Thousands of ballots were discarded in the April primary with missing or incorrect dates on the outer return envelopes, in a state Biden won by about 80,000 votes in 2020.

A court had ruled in August that rejecting undated ballots from otherwise eligible voters in the counties around Philadelphia and Pittsburgh would violate the right to vote. But Republicans appealed and won the order to strictly enforce state law, in what Whatley at the RNC called "a huge win" in an "absolutely critical" state.

Lawsuits target noncitizens, but they 'don’t illegally vote in detectable numbers'

Republicans filed several lawsuits to prevent noncitizens from voting. But election integrity experts say the problem is essentially nonexistent, accounting for just 30 votes out of 23 million cast in 42 jurisdictions in one Brennan Center for Justice study.

Republican National Committee lawsuits dealing with citizenship include:

In the swing states of Nevada and North Carolina, Republican lawsuits have alleged that the states are not adequately checking citizenship for voter registration. In Arizona, the state Supreme Court on Aug. 22 reinstated an Republican-backed law, which required voters to prove their citizenship when registering to vote using a state form. But voters could still register with federal forms.

Despite the spotlight, data shows barely any noncitizens vote − probably because they would be documenting themselves violating state and federal laws, which could lead to criminal charges and deportation. The libertarian Cato Institute found in a 2020 study that “noncitizens don’t illegally vote in detectable numbers.”

“There has already been an enormous amount of noise – I think wildly unwarranted – about the issue of noncitizens voting,” Levitt said.

Charges and sanctions against lawyers could discourage some lawsuits

Lawyers are ethically bound as officers of the court not to lie in their arguments, and they can be charged criminally for fraud or false statements.

In Georgia, Trump lawyers Rudy Giuliani and Jenna Ellis were among those charged federally for a conspiracy to overturn the election, in part by falsely claiming thousands of felons, underage people and dead people voted in the state in 2020.

Georgia Secretary of State Brad Raffensperger has testified to Congress that investigators found four ballots attributed to dead people, none for underage voters and fewer than 74 still serving a felony sentence.

Trump 2020 lawyers have also been charged in Arizona and some also faced disbarment proceedings in several states, while others were fined in Michigan.

Election watchers say the sanctions might discourage some lawyers − but not all − from taking on the cases.

“I think you will find lawyers who are willing to step up,” Hans von Spakovsky, an election expert at the conservative Heritage Foundation, said. “But I think there are lawyers out there, particularly with some of the bigger law firms, who aren’t willing to risk the kind of actions against them that other lawyers have suffered.”

He called the criminal charges and bar complaints against lawyers “an outrageous abuse of the judicial system” and “totally wrong.”

“Those lawyers were doing what they’re supposed to do under the professional code of conduct, which is to vigorously represent their client,” von Spakovsky said.

Trump lawyer Sidney Powell was charged and sanctioned for claiming massive fraud without evidence and asking judges to overturn results.

“I think that what we should see are more cautious and well-founded lawsuits,” said Tim Parlatore, a former Trump lawyer who wasn’t involved in the election lawsuits. “The biggest problem they faced in 2020 with fraud lawsuits was overselling.”

Parlatore said a simpler strategy would have been litigation demanding the government hand over evidence such as suspicious ballots or video of poll watchers blocked from observing ballot counting – and then asking judges to invalidate results depending on the findings.

“If they have pursued that type of strategy it would have gotten much more traction,” Parlatore said.

Congress updated Electoral Count Act to discourage lawsuits aimed at seating fake electors

Congress sought to discourage lawsuits by updating the 1877 Electoral Count Act. The archaic law was worded confusingly and opened the door to arguing that state legislatures could swap Democratic presidential electors for Republicans in states Biden won.

GOP electors in four states have been charged with crimes such as filing false documents: Arizona, Georgia, Michigan and Nevada. Trump and his allies have argued the electors were recruited in case he won his court challenges.

Congress tried to prevent that strategy by making it harder for lawmakers to challenge electors while counting votes Jan. 6, 2025. The statute also designated a single official − usually the governor − to submit official certificates of each state's electoral votes.

Those provisions aimed to discourage lawsuits seeking to replace electors. But the strategy of fielding alternate electors remains a potential goal for lawsuits this year.

Sen. J.D. Vance, R-Ohio, who is Trump’s vice presidential nominee, told the All-In podcast Sept. 10 he would have voted to allow states submit alternate slates of electors in 2020. But former Rep. Liz Cheney, R-Wyo., called his stance “illegal and unconstitutional.”