Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute.
Justin Levitt has been on the frontlines in some of American democracy’s biggest legal battles for two decades. Now a law professor at Los Angeles’ Loyola Marymount University, he has worked as a voting rights attorney and top Justice Department civil rights attorney, and he has advised both major parties.
In this Q&A, he describes why 2024’s partisan election litigation is likely to have limited impacts on voters and counting ballots. But that won’t stop partisan propagandists and fundraising from preying on voters.
The interview has been edited for length and clarity.
Steven Rosenfeld: The 2024 presidential election has more partisan litigation targeting how elections are run than I've ever seen. Does this worry you?
Justin Levitt: It sure seems like a lot. … That said, I don’t generally gauge the amount of litigation by the raw quantity of filings — not least because I got internet-famous for 30 seconds in 2020 by reminding people that a lawsuit without provable facts of a legal violation is just a tweet with a filing fee. And, so, for the privilege of 400 bucks or so, you too can file a lawsuit, and have it count toward the total volume. But that doesn’t mean there's anything of substance in there. I tend to evaluate the degree of litigation, not just by adding up numbers, but by sort of how serious some cases are. By that count, I think there are probably more cases now, but not more serious cases. And I think that's meaningful.
Sign up for The Fulcrum newsletter
SR: How can we help readers understand what is and is not serious? I always thought that a serious case when it came to election challenges and recounts was you had to prove that there were enough votes in dispute that would change the outcome.
JL: That’s one good measure. And meaningfully dispute — not just [dispute] with made-up facts that can't be proven. So, in 2020, I think there were zero lawsuits, at least concerning the presidential election after the election, that had to do with meaningfully disputed ballots. Contrast that with before the election trying to get clear on the rules that were going to be in place. There was a hefty amount of litigation over what we do in a pandemic; some pushing for relaxation of the normal rules, some pushing against administrative action that relaxed the normal rules, and an awful lot of uncertainty at stake. There was a lot more litigation with a meaningful capacity to impact the way Americans cast and count ballots in 2020 than there is now. And that was all pre-election, not post-election.
SR: Many of 2024’s pre-election suits have not yet been decided or heard by judges. Many officials have not even replied to recently filed suits. What are people to make of that?
JL: I think what people are to make of those is not very much. In most cases, those lawsuits are not going to affect the final result. And they’re not going to affect the process of filing a ballot, either. For example, the most significant of mail ballot cases, right at the moment, have to do with the deadline for returning ballots and, in particular, challenges to state deadlines. The easiest thing that readers can do to make sure that their mail ballots get in on time, regardless of the litigation, is fill them out and get them in. There is no serious challenge, at least as far as I’m aware, to any mail ballot that arrives by Election Day.
SR: Yet when I look at the litigation, I see partisans, especially Republicans, targeting little-known steps and claiming the process is flawed. They exaggerate the impact of mistakes. They say results can’t be trusted unless voters are disqualified and ballots thrown out.
JL: That’s happening. And definitely going to happen. I’ll get back to the mistakes in just a second, because I think you're right about that, and yet, I don’t think it ends up mattering.
But the point about creating the context for noise and disruption is 100 percent going to happen. And how do I know that? I know that because for eight years now, the median candidate of a major political party has claimed, without evidence, that there is a vast amount of fraud in the process, including for elections that he won. And so, is that coming again? You bet. Is it true? No. It hasn’t been true for eight years, and it’s still not true now.
But that messaging, that noise and the disruption that follows from it is absolutely coming. And also, it doesn't change the result. Some of the litigation is premised on a view of the law as magical legalism. If you say the right words in Latin in the right order, it's like casting a spell, and, all of a sudden, you can magically sweep away millions of votes. I understand the view, the under-informed view, because some of these processes seem byzantine. But the law at its heart is a dispute resolution system. It is not a venue for magic in the way we actually make electoral choices. And the things that lawsuits are pointing to as mistakes are not even mistakes. Sometimes they're just perceptions of mistakes, or perceptions of things that are allegedly contrary to law — but aren’t in any way.
But sometimes [the litigants] do actually capture real mistakes. It turns out that we have a process for resolving those mistakes and it’s not “Throw away all of the ballots.” The measure of a voting system is not, “Have we made a mistake,” just like the measure of any human endeavor is not, “Has there been a mistake?” The measure of a voting system is, what are the belt and suspenders procedural processes? Is it robust enough to actually resolve mistakes? What do we do if a mistake happens? And it turns out that every election structure in literally every county across America has a bunch of safeguards for figuring out what we do in case of mistakes, and most of the litigation now just ignores all of that.
SR: That’s true, of course. But isn’t much of the litigation’s purpose to sow propaganda and distrust?
JL: It’s more than just propagandizing; it’s for fundraising. An awful lot of this is messaging-based. But that is not just for the message itself. That’s because the message usually comes attached to, “We're fighting for you and give us money.” There’s an enormous amount of litigation at the moment that is being filed either for pure messaging or for fundraising. It’s a big business now. That’s not what litigation should be for.
We saw this, for example, in the period between November of 2020 and January of 2021 — I’m going to use this as an example, although it was surely not the only example — President Trump's personal leadership PAC, which is a fundraising vehicle that effectively is completely unconstrained by campaign finance rules. It can be used for any purpose at all, including, “I feel like going out to dinner at a nicer place,” or “I feel like buying a jet,” or “I feel like buying a house.” It's walk-around money. It's money that goes straight into his wallet, effectively. I believe that one fundraising vehicle raised $30 million between November and January based on appeals that were almost exclusively focused on “Keep us in the litigation fight,” even when there was zero accountability for ensuring that any of that money would actually be used for litigation.
I cite that example because it’s big business to be filing cases to show that you’re in the fight, or to demonstrate that you’re in the fight, even if there’s not really that much to be fighting about, or even if the courts are extremely unlikely to give you relief. So how should readers sort of figure out which is which? I have a real easy benchmark.
SR: Which is …
JL: If the election is within 537 votes in a major swing state — and that number is not obviously taken out of thin air, that’s the margin in Bush vs. Gore [in 2000 in Florida] — then absolutely every one of these lawsuits is important. Why? Because absolutely every one of them matters, because everything matters. A butterfly ballot flapping its wings somewhere could change the results. That close a margin means that the margin of victory is inevitably less than the margin of error. A tiny change in one place changes the election. But I say that in order to make the more important point: With a margin of more than 537 votes, none of these cases matter. Absolutely none of them.
Even if an election is really close, and 2020 was really close in a number of states, if it’s not 500 votes close, then the thing that decides the election is the choices of the people who turn out, and not the lawyers and not the courts. And I say that as a law professor and an election lawyer who’s deeply invested in the importance of some of these concepts. But honestly, the people are going to end up deciding this election — not lawyers.
SR: This is very clarifying and grounding, especially as people's anxieties are rising.
JL: I don’t begrudge them the anxiety. There’s a whole industry out there that’s designed to stoke their anxiety and then, usually, to channel that anxiety toward a request for a little bit of money. So, I am in no way belittling people for feeling freaked out, because there are a lot of people who are paid very handsomely to try to make sure that they’re freaked out.
I’m only saying I’m giving them permission not to feel freaked out about the process, about the structure. I've been in this business for more than two decades now. And I worked in a variety of roles, including in campaigns, in government. I also have served as a precinct election official. The system was put to the test about as thoroughly as any system ever has been in 2020 where there was a conscious attempt to break the process and a lot of not-conscious factors that could well have broken the process, including a once-a-century pandemic. And the process held remarkably thoroughly. That’s credit to a giant roster of people and officials and election workers. And it didn’t just happen.
But in a system with thousands of alleged points of failure, none of them failed. And in order to swing an election, you need all of them to fail. And absolutely none of them did, despite enormous pressure to the contrary. So, I am quite confident that this year, the processes and systems are robust enough and resilient enough.
