Finding the Same Misinformation in Anti-Voter Lawsuits and Anti-Voter Legislation

In the days before and after the 2020 election, President Trump’s campaign and his supporters filed a blizzard of lawsuits in an attempt to use the state and federal court systems to alter the outcome of the election. The Brennan Center tracked these suits, which were largely based on misinformation about voter fraud and overwhelmingly rejected by courts.

As the calendar turned to 2021, the Brennan Center tracked another trend: an unprecedented wave of restrictive voting bills in state legislatures. Last year, 19 states enacted 34 new laws to restrict access to voting, and state legislatures are showing no signs of slowing down in 2022.

The principal allegations underlying most of the lawsuits centered around claims about the security of the mail voting process. Not surprisingly, the most common theme of new restrictive voting legislation last year was an effort to restrict mail voting. These lawsuits and restrictive bills draw on claims about rampant mail voting fraud that are simply false — the evidence consistently indicates that mail voting has proven to be secure. Our research finds, however, that the 2020 lawsuits and the 2021 bills both consistently draw upon this same body of misinformation. In many states, the connections are quite specific.

For example, in Arizona, a lawsuit was filed contesting the results of the 2020 presidential election on the grounds of several false claims about voter fraud, including a claim that out-of-state voters were casting ballots in Arizona. This case was dismissed, but in 2021, Arizona legislators introduced a bill to expand voter roll purges with the goal of removing hypothetical out-of-state voters from the voter rolls. 

In Wisconsin, multiple cases challenged election officials’ acceptance of absentee ballots without a photo ID during the pandemic based on the law’s exemption to the state’s voter ID requirement for voters that are “indefinitely confined.” In one case filed weeks after Election Day, Trump sought to invalidate almost 30,000 votes in Wisconsin that were cast pursuant to this exemption. In 2021, two bills were introduced — one of which was passed by the legislature but was subsequently vetoed by the governor — to repeal the ID exemption for indefinitely confined voters.

And in Michigan, a case was filed challenging the state’s online system of requesting absentee ballots, taking particular issue with the system’s lack of a “wet signature” requirement and claiming that the “online system . . . invites fraud” that may affect the outcome of elections. In 2021, legislators introduced a bill specifically prohibiting the use of electronic signatures for absentee ballot applications and requiring a physical signature. Other baseless charges against the 2020 election were similarly reflected in 2021 legislation across the country. 

Our research demonstrates that the spurious litigation surrounding the 2020 election and the wave of new restrictive voting bills in 2021 both draw on the same body of misinformation about voter fraud and election integrity. 

The Brennan Center tracked hundreds of lawsuits related to the 2020 election. For this analysis, we focused exclusively on the subset of lawsuits that Trump and his supporters filed that relied on false claims about voter fraud and sought to disrupt or overturn the election. We included lawsuits filed before the election that relied on false fraud claims and sought to stop certain methods of voting or have certain categories of votes cast out. We also included lawsuits filed after the election that used false claims of fraud to seek to invalidate certain categories of votes or overturn the election entirely. We excluded cases filed by pro se litigants that made vague allegations of fraud that were not specific to any state or jurisdiction.footnote1_WaFsxHesmVSyOMvbocFrBkMPqkTTO8nWwcagaxBJA_lpM9oubj94D71For example, we excluded Ostrowski v. Office of Elections, No. 1:20-cv-00209 (E.D. Mo. Oct. 19, 2020), a case filed in Missouri that made a vague claim about election officials nationwide inviting fraud by not requiring mail ballots to be notarized. While Missouri legislators did in fact introduce a bill related to mail ballot notarization, MO S.B. 1362, the lawsuit’s claims were not specific to Missouri in any way.

What we were left with was a set of lawsuits filed in 17 states that relied on false claims of fraud and attempted to disrupt or overturn the election. We then compared the claims made in these cases to the restrictive provisions in voting bills introduced and enacted in these 17 states in 2021. We found a notable consonance. 

Overall, we found:

• President Trump and his supporters filed unsuccessful lawsuits pushing false claims about voter fraud and attempting to undermine or invalidate the election in at least 17 states before and immediately after the 2020 election.footnote2_ZKxJE-I9cpcfRcJM6-QgAQVbSr4qGYVbij-C3Kg6vNM_laD0jmZB5nVy2The 17 states identified were Arizona, California, Georgia, Iowa, Illinois, Massachusetts, Michigan, Minnesota, Montana, New Jersey, New Mexico, Nevada, Pennsylvania, Texas, Vermont, Washington, and Wisconsin.

• In 2021, legislators in 16 of these 17 states introduced bills to restrict access to voting.footnote3_gJ8oEDjw8gJgMraTPp7Q1RQ3Tnmclrg6F9wFNknFnU_mavkvN0OmC6H3The only state the Brennan Center identified where anti-voter litigation was filed but no restrictive bills were introduced in 2021 was Vermont, which was coincidentally the only state in the country where no restrictive bills were filed last year.

• In 15 of those 16 states, at least one provision in a new restrictive voting bill seems designed to address a false concern about voter fraud raised in a lawsuit by the Trump campaign or its allies that sought to disrupt or overturn the 2020 election in that state.footnote4_U7ZMhLVYc4BgVP73npSq-dRqgelK7Jr67kzD3VAQ_aUu9yaIxNdNm4These states were Arizona, California, Georgia, Iowa, Illinois, Michigan, Minnesota, Montana, New Jersey, New Mexico, Nevada, Pennsylvania, Texas, Washington, and Wisconsin. Each of those lawsuits was ultimately dismissed.

The similarities are just as strong when looking only at the most extreme category of lawsuits: the suits filed after Election Day seeking to overturn the results or block certification of an election.

• This type of lawsuit was filed in at least 12 states.footnote5_Z-Fp7UPVoxLff-Yl0SSQ0Dyj4Cdn1T0V6GSneDdxeow_tKfeg6Kc3Gvm5These states were Arizona, California, Georgia, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, Pennsylvania, Texas, Washington, and Wisconsin.

• In 11 of the 12 states where Trump and his supporters filed spurious litigation seeking to overturn the results of the 2020 election, a provision in a 2021 bill appears designed to address the false claims made in those suits.

Cases seeking to overturn the results of the election based on false theories of fraud were universally rejected by courts. Studies have consistently shown that voter fraud is a vanishingly rare phenomenon. Election officials and security experts uniformly agree that the 2020 election was one of the most secure in modern history, and election officials from both sides of the aisle have debunked voter fraud claims.

And yet, legislation was introduced in 2021 to solve the same “problem” raised in the lawsuits embracing these false theories — a problem that doesn’t exist. This evidence makes clear that the wave of anti-voter litigation in 2020 and the wave of anti-voter legislation in 2021 were both supported at least in part by the same body of misinformation and allegations that the 2020 election was invalid. 

Some states saw more litigation and more restrictive voting legislation than others. A deeper analysis of three states that featured extensive anti-voter litigation and long lists of new restrictive voting bills in 2021 — Georgia, Pennsylvania, and Texas — demonstrates the connections between false claims about voter fraud in 2020 lawsuits and restrictive provisions in 2021 voting bills.

Case Study: Georgia

Dozens of lawsuits were filed in Georgia relying on false claims about the 2020 general election and the January 2021 Senate runoff elections — from claiming widespread voter fraud, to objecting to various election procedures and policies that made it easier for voters to cast their ballots in 2020. Many of the same claims that animated litigation around the 2020 election and 2021 runoffs in Georgia inspired pieces of legislation introduced by state legislators last year that sought to restrict voters’ access to the ballot.

Litigation primarily pushed three false claims about fraud in Georgia: poll watchers were deliberately blocked from observing ballot processing, creating doubt in the accuracy of the counting process; somehow the state’s use of drop boxes increased the risk of fraud; and absentee ballots generally threatened election integrity and lead to fraud.

In addition to these theories about fraud, Georgia also saw litigation alleging that private foundations such as the Center for Tech and Civic Life were using grant funding to ensure preferential treatment for certain voters at the expense of others.

Each of these claims is false. In one case, a plaintiff falsely claimed that private funds were provided to Fulton County to “pay ballot harvesters” and to “pay for . . . the plan to remove the poll watchers from one political party so that the critical responsibility of determining . . . the validity of the count could be conducted without oversight,” and that “absentee voting records demonstrate illegal votes being counted and legal votes not being counted” in excess of 50,000 votes. This case was quickly thrown out on a motion to dismiss.

In 2021, the Georgia legislature passed one law and introduced a series of other bills based in part on these false claims. Senate Bill 202, signed into law less than five months after the 2020 election and less than three months after the state’s runoff election, prohibits local election administrators from accepting funding from private sources, expands the legal rights of poll watchers to observe elections without constraints by election administrators, limits the availability of drop boxes, and includes a host of provisions to significantly restrict access to mail voting such as imposing stricter identification requirements for absentee voters and a significantly shortened window to apply for absentee ballots. And before S.B. 202 was passed, at least one bill was introduced to ban the use of drop boxes in the state, and four bills were introduced to eliminate no-excuse mail and early voting altogether.

Case Study: Pennsylvania

In Pennsylvania, a flood of baseless lawsuits challenged the integrity of the 2020 election. Many of these legal challenges were driven by two false claims: that the state’s certification of the 2020 election was somehow invalid and that mail voting, and particularly the use of drop boxes, leads to fraud.

In one case, plaintiffs claimed that pre-canvassing mail ballots and providing voters with notice and cure opportunities before Election Day was illegal and allowed voters to “re-vote” and “change their ballot.” This is false. “Notice and cure” is a process by which election officials notify voters if there is an issue with their mail-in ballot and provide the voter with an opportunity to fix the mistake to ensure that their ballot is properly counted. It does not allow voters to “re-vote” and in no way risks the integrity of an election.

In another lawsuit, the Trump campaign claimed that the use of “unmonitored and/or unsecured drop boxes” contributed to the “single greatest threat to free and fair elections,” raising “questions about the accuracy of election results,” and providing “fraudsters an easy opportunity to engage in ballot harvesting, manipulate or destroy ballots, manufacture duplicitous votes, and sow chaos.” This is also false. Drop boxes are a secure method of ballot collection; election administrators follow similarly strict security protocols to collect ballots received via drop boxes as they do in collecting all other ballots. A federal judge — appointed by Trump himself — rejected Trump’s meritless challenge to drop boxes in Pennsylvania, citing the lack of evidence of any impending fraud.

These claims pushed by the Trump campaign and others in the litigation surrounding the 2020 election in Pennsylvania are demonstrably untrue. But while these arguments may not have had success in court, they certainly influenced legislators in the commonwealth, who introduced a number of bills responding to these “concerns.” At least five election sabotage resolutions were introduced in 2021 directly aimed at invalidating the results of the 2020 election in Pennsylvania. One bill was introduced to expressly prohibit election officials from providing any opportunity for voters to cure their mail ballots. And a number of other bills sought to severely limit mail-in voting in the commonwealth, including one bill that would limit the hours and days voters can deliver their ballots to drop boxes and require election inspectors to verify voters’ identification at drop box locations.

Case Study: Texas

Texas was the source of at least two lawsuits that sought to overturn the results of the 2020 presidential election in multiple states. In addition to these two suits, several cases were filed before the election seeking to block particular pro-voter policies on the basis of vague allegations of fraud. Many of these same claims fueled legislative efforts in the state last year to suppress votes and restrict access to the ballot.

Anti-voter litigation in Texas in 2020 relied on at least three false claims: that drive-thru voting would lead to fraud, creating doubt in the outcome of the election; that some counties were illegally allowing noncitizens to register to vote; and that increasing access to absentee voting will inevitably lead to a rise in fraudulent voting.

For example, at least four lawsuits were filed challenging drive-thru voting in Harris County, home to Houston; the county’s policy allowing drive-thru voting, the plaintiffs argued in one case, “creates an opportunity ripe for fraud,” which would cause the “outcome of the election [to be] in doubt.” And the Public Interest Legal Foundation, a conservative legal group, filed a suit against the Harris County Registrar claiming that the county illegally allowed noncitizens to register to vote. There is no evidence that there is any fraud risk with drive-thru voting. Both the Texas Court of Appeals and the Texas Supreme Court denied the group’s petition. Further, a federal court had previously recognized that claims of significant numbers of noncitizens being registered to vote in Texas are false.

In spite of the evidence, the Texas Legislature responded to these “concerns” and passed Senate Bill 1 in September of 2021, which prohibits drive-thru voting in the state and imposes additional restrictions on obtaining and returning an absentee ballot. Additionally, at least 26 restrictive purge bills were introduced in Texas last year that could wrongfully remove voters from the rolls because of unnecessary measures to prevent noncitizens from registering to vote, risking the disenfranchisement of eligible voters.

•  •  •

These case studies provide only a small window into the long list of connections between anti-voter lawsuits in 2020 and anti-voter legislation in 2021. Both can be connected in part back to the same body of misinformation and to specific false narratives about supposedly fraudulent votes cast in 2020.