Former President Donald Trump is clearly laying the groundwork for challenging the results of the 2024 election. He is already stating that if he loses it is because of nefarious acts on the part of Democrats. The Republican Party has put in place all kinds of ground troops to challenge election results and there are a number of sympathetic local and state voting officials who have indicated they will be looking to question the electoral count.
Trump’s forces plan to create enough uncertainty about the results in key swing states to avoid certification in certain counties that could lead to an entire state’s results not being certified. This would be a building block toward Congress refusing to certify Electoral College results, which would throw the election into the House of Representatives where Trump would win (because the vote is based on state-by-state delegation majorities). This would be the playbook whether or not the Republicans maintain control of the House, although these efforts to undermine the election become more difficult if Democrats take back the House.
I am a member of two organizations that work to inoculate against efforts to create chaos around legitimate election results. We have been working diligently to inform citizens about the integrity of the election process. I am concerned that we are in for a more coordinated and sophisticated replay of Trump’s 2020 challenges to the election outcome. If Trump loses the election and contests it once again on grounds it was “stolen,” the effort will be led by legions of lawyers directly being coordinated by the Republican National Committee. Considering what they learned last time from their more than 60 rejected legal challenges, they will make an attempt at a more substantial evidentiary showing. They will try to prove that there was voter fraud that can only be redressed by not certifying election results.
Republican lawyers have filed nearly 90 lawsuits intended to lay the groundwork for post-Election Day challenges, according to Democracy Docket. Most of the cases have been filed in the swing states and many embrace theories about stolen elections or voter fraud that the courts have to date rejected. Some focus on allegations of immigrant non-citizens voting—another area devoid of any meaningful evidence. Election experts believe these pre-election efforts will fail but are intended to provide a basis for reopening or supplementing these challenges after Election Day.
Putting false claims in the form of a lawsuit is a tactic designed to create legitimacy for the accusations. Last election, there was a total lack of evidence to support the stolen election claims. The Harris campaign has hundreds of lawyers ready to contest these claims this time. The assumption is Trump lawyers will be filling cases with great fanfare again, but without the requisite actual evidence to support their contentions.
The efforts of the two organizations that I am extremely proud to be participating in—the American Bar Association Task Force on Democracy, chaired by former Homeland Security Secretary Jeh Johnson and former U.S. Court of Appeals Judge Michael Luttig, as well as Keep Our Republic—developed under the auspices of former House Majority Leader Dick Gephardt and former Sen. Tim Wirth of Colorado—have been holding sessions throughout key swing states with a variety of local civic groups including local bar associations. These efforts have been bipartisan and quite successful in driving local attention to how our election process operates, and what to expect in terms of how voting is tabulated. People have heard from local election officials about how their work is conducted, helping to drive a much more thorough understanding of why there are strong protections against voter fraud and other irregularities, spurious Election Day charges aside.
What is apparent, however, is that challenges to certification simply cannot gain much traction or survive legal challenge without lawyers leading the charge. When it comes to mischievous certification challenges intended to undermine the perception of integrity in the election process, lawyers are the ones drawing up the papers and filing the false claims. There are certainly respected lawyers coming the other way who will defend the election process, but there is no doubt, like in 2020, Trump forces will include many lawyers who are willing to engage in unethical behavior to achieve the former president’s anti-democratic objectives.
Members of Trump’s 2020 legal cabal—17 so far—have faced disciplinary actions, including disbarment in some cases, stemming from their Big Lie election denial activity. Still, there is no doubt that there are yet more lawyers that are in place to attempt to create disruptions in the election process this time around.
Meaningful challenges to election certification cannot be seriously pursued without lawyers who are willing to take on those cases. Lawyers take oaths to uphold the laws and the Constitution, and the very essence of our democracy is integrity in the election process so that government of the people is a reality.
The ABA Task Force on Democracy has laid out its neutral, bipartisan mission very clearly. “We are working to ensure all lawyers understand: (i) their advice and counsel must always be faithful to and consistent with the Constitution and laws of the United States and the constitutions and laws of the states in which the advice and counsel is given; and, (ii) they will be held accountable under the applicable Rules of Professional Conduct (RPCs) for any advice and counsel given that is unfaithful or contrary to the RPCs, the Constitution and laws of the United States, and/or the respective state constitutions and laws. And consistent with the foregoing, we encourage state licensing authorities to be quick to investigate and act on any such violations. especially when related to our elections.”
Yet bar associations and bar disciplinary committees in swing states have been noticeably silent in putting lawyers in those states on notice. Attorneys need to understand that legal activity aimed at disrupting election certifications that are frivolous, unfounded, or lack reasonable merit, will be aggressively pursued by the bar, and the punishments will be severe.
It is not enough, given what transpired in 2020 when lawyers made false allegations that resulted in serious disciplinary action against them. The drumbeat is once again announcing that undermining the election process will be part of the post-election game plan. It is not enough for the organized bar to act only after the fact.
The organized bar in swing states must warn—now—about the serious consequences that lawyers will face for making specious claims. If Trump loses and activates the certification challenges we can all see coming, failing to do so will stand out as an enormous failure of the profession.
As a national organization, the ABA can only provide guidance as to what local bar groups should do—they can’t force their hand. But to date, I am sorry to say, I have not seen the kind of action from local bar associations in swing states that would make me a man proud (as opposed to a Proud Boy) to be a lawyer.
Fortunately, a group of concerned lawyers created a bipartisan organization called the 65 Project, named for the 65 lawsuits Trump forces filed around the country which were rejected by Democratic and Republican judges alike. Their stated purpose is to hold accountable “Big Lie lawyers who bring fraudulent and malicious lawsuits to overturn legitimate election results” and, “to revitalize the disciplinary process so that lawyers, including public officials, who subvert democracy will be punished.” They are putting ads in bar journals in swing states with the very blunt messaging: “Don’t lose your law license because of Trump.”
Hopefully, these efforts will spur bar associations in those states to quickly drive their own clear admonishments out to all their members, all of which have sworn an oath to be officers of the court. That’s something they cannot do if they are lying to the courts about phony claims. So, to those lawyers contemplating trying to manipulate our election process I say stand back—and to those lawyers looking to uphold election integrity, please stand by.
Tom Rogers is executive chairman of Oorbit Gaming and Entertainment, an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, a member of Keep Our Republic (an organization dedicated to preserving the nation’s democracy). He is also a member of the American Bar Association Task Force on Democracy.
The views expressed in this article are the writer’s own.
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