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

The same false information about voter fraud and election integrity that spurred legal challenges to the 2020 presidential election results also shows up in the postelection wave of voter suppression legislation.

Published: April 13, 2022

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_m7b94ld 1 For 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_q1btypo 2 The 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_j2n9xfl 3 The 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_40clj2x 4 These 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_x8eeqaj 5 These 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.

End Notes