Russell Wheeler, Visiting Fellow, Governance Studies Program, The Brookings Institution. This is an abbreviated and updated version of a recent article for Lawfare Efforts by former President Trump to reverse the 2020 election included a litigation blitzkrieg. As USA Today summarized: “[o]ut of the 62 lawsuits filed challenging the presidential election, 61 have failed.”
Although dramatic, the assertion is somewhat misleading. Based on all judicial votes, Trump performed slightly better, since a single case might produce an initial trial court decision and more judicial votes in several appellate courts—one case, but perhaps over ten separate judicial votes.
I tabulated 194 individual judicial votes in 42 post-election cases brought by Trump or his supporters, focusing on the 150 votes by 75 judges in 29 state cases. So analyzed, 18 percent of state judges’ individual votes were favorable to Trump, contrasted to only one percent in federal courts. (The original post explains case selection and method; I excluded some of the commonly referenced 62 cases, such as cases filed before the election, or those that plaintiffs dropped before any judicial action.)
Individual Judicial Decisions (Votes) in 2020 Presidential Election Cases
The state court litigation occurred in seven of the battleground states in which Trump and allies filed litigation; pro-Trump votes occurred in three of those states.
Judicial votes in 2020 election cases, by state
Note: to see additional data and total, scroll right.
Party affiliation made a difference. Thirty-five percent of decisions by Republican-affiliated state judges were for Trump, versus two percent of decisions by Democratic-affiliated judges. Put differently, 26 of the 27 pro-Trump votes came from Republican-party-affiliated judges even though two-thirds of the 75 votes by Republican-affiliated state judges did not support Trump’s claims. (If I could not ascertain party affiliation for the judge, no attribution was made in the data.)
State judges’ votes in 2020 election, by perceived party affiliation
Intermediate appellate courts
All six votes that state intermediate appellate court judges cast for Trump came from Republican-affiliated judges, five of them on Pennsylvania’s Commonwealth Court. Most were dissenting votes, but in one dispositive ruling the court’s president, sitting alone, set aside a small number of votes based on flawed guidance regarding a voter-identification deadline. (This is apparently Trump’s one favorable case outcome.)
Supreme courts Twenty-one of the 27 Trump-favorable votes came from dissents on the seven-member supreme courts of Wisconsin, Michigan, and Pennsylvania—ten cases in all. Nine were split decisions—five of the ten were four-three—largely but not exclusively along party-affiliation lines. Democratic-identified justices cast 35 of the 49 votes against Trump, Republican-identified justices cast 20 of the 21 pro-Trump votes
The Wisconsin Supreme Court, despite a four-three conservative justice majority, decided four cases against Trump, all by four-three margins. A stalwart of the Court’s conservative bloc (chosen in the state’s 2019 non-partisan elections) voted each time against the Trump campaign’s filings. The Court declined (here and here) the Trump campaign’s request to invoke its original jurisdiction to allow the campaign to contest certain ballots and declined a request to block the certification of the state vote. On appeal it rejected as untimely plaintiffs’ claims of voting irregularities.
The Pennsylvania Supreme Court, elected on a partisan ballot, has a five-member Democratic majority. It reversed a decision invalidating an executive official’s directive on poll-watchers’ distance from voting operations. A four-justice majority (one Democrat dissented) affirmed a trial court decision allowing officials to count otherwise qualified mail-in or absentee ballots lacking certain information on outside envelopes (here and here). The court, unanimously as to its main holding, reversed an emergency injunction suspending elector certification (here and here).
Michigan Supreme Court justices are party-nominated to run in non-partisan elections. During the 2020 election litigation, it had four Republican-affiliated and three Democratic-affiliated members. A majority of three Democrats and one Republican dismissed, without briefing and oral argument, plaintiffs’ efforts to invoke the court’s original jurisdiction to order an audit of votes. A six-justice majority, with one Republican dissenting, denied as moot an appeal’s request for an immediate, limited audit of votes. The Court unanimously rejected as moot an appeal contesting the certification of electors.
Most of the decisions were over procedure and jurisdiction, although, decided differently, some might have led to electoral reversals. There is nothing to suggest that the dissents were pretextual, although some justices voiced concern about the legitimacy of the election.
What Lies Ahead?
Trump attacked the U.S. Supreme Court’s failure to support his election fraud claims ("The Supreme Court really let us down!") That is hardly unexpected given his attacks on federal judges during his initial presidential run or as president. But I am unaware of reports of hostile phone calls to judges--state or federal—like those made to state election officials cajoling them to support his fraud claims, or of consistent attacks on state judges or calls for their removal by election or other means. His grievance-laden speech to the 2022 CPAC conference did not attack state judges.
Trump and his supporters, however, are seeking control of state and local election machinery, so as to protect his interests in a 2024 bid, as reported, for example, here and here. Jiggering state courts to be more sympathetic to fraud claims, may be in the offing. State supreme courts are the object of partisan and money-fueled battles including efforts, as Professor Marin Levy has described, to alter their size, so as to shape partisan line-ups. Clashes over the judicial response to Trump’s claims may be part of upcoming judicial elections, including efforts to seat more judges who would be receptive to fraud claims. A Wall Street Journal editorial supporting a Republican candidate for an open Pennsylvania Supreme Court seat argued that “[a]fter Pennsylvania’s 2020 election mess, the state Supreme Court needs an injection of judicial restraint.” It is interesting that the candidate who received that endorsement, and won the seat, said flatly he saw no evidence of significant fraud in 2020.
By a rough count, half of the 43 supreme court justices who considered Trump’s post-election claims (in all seven states) will appear on ballots themselves by 2026—years likely covering the next presidential election and post-election litigation. As candidates they will be free, under a 2002 U.S. Supreme Court decision, to tell voters how they view judges’ roles in election disputes and their views of the 2020 litigation.
Furthermore, judges may be more receptive to electoral challenges in 2024 if state legislatures seek to dictate the states’ electoral college members. Election expert Rick Hansen opines that to the degree that the 2024 election turns on the wording of state and federal constitutional provisions, post-election litigation advocates will
have an aura of respectability and expertise. Lawyers in fine suits making legalistic
arguments are much more appealing than desperate lawyers making unsubstantiated
claims of ballot box stuffing and other chicanery.
In short, although Trump clearly lost the 2020 election litigation battle, he received more judicial support than generally realized. That and other factors may suggest rosier prospects for him in court battles over the 2024 election.