Even before the voting booth, the battle rages in the courts

American courts have been besieged for weeks with largely unsuccessful appeals over the electoral rules for the November 5 presidential vote, auguring a fierce challenge if the results turn out to be as close as expected.

These legal actions mainly come from the camp of the Republican candidate, former President Donald Trump, who still refuses to recognize his defeat against Democrat Joe Biden in 2020 and suggests that he will persist if he is beaten this time by Democratic Vice President Kamala Harris.

201 files in 40 states

They concern questions as diverse as the admissibility of ballots sent by mail, those of civilians or military personnel abroad, late deletions from the electoral lists, or even the certification of results by electoral agents.

The Democratic camp is also fighting step by step. “Five days before the vote, there are a record number of 201 electoral files pending in 40 states”indicated Thursday on social networks Marc Elias, lawyer specializing in electoral disputes on behalf of the Democrats. “Including 25 in Georgia, 19 in Pennsylvania, 15 in North Carolina, 14 in Wisconsin and 13 in Arizona”he said, citing five of the seven states announced as decisive.

Republicans largely losing

Republicans scored a success this week, with the Supreme Court authorizing the removal of some 1,600 voters from the rolls in Virginia due to questions about their American citizenship. But they are largely brought to the notice board of these pre-electoral disputes, in particular because of the late or absurd nature of their appeals.

A Pennsylvania judge sharply rebuffed six Republican elected officials who were calling for the invalidation of the military's postal ballots, made according to them vulnerable to foreign interference by regulations in force for more than two years. He criticizes them, among other things, for having taken legal action only 36 days before the vote, when 25,000 of these ballots had already been distributed, without demonstrating how they would be harmed.

In Georgia, a judge ruled Oct. 15 that election officials are legally required to certify results sent to them. He thus rejected the request of a Republican official to grant him power “discretionary” to block this certification in the event of suspicion of error or fraud.

The courts of this state, one of those where the Democrats won by the smallest margin in 2020, also opposed the entry into force of new rules enacted in September by an Electoral Commission favorable to Donald Trump.

“Small scale”

“It is indisputable that these last minute appeals are unlikely to go very far”explains to AFP Derek Muller, expert in electoral law, professor at Notre Dame University, in Indiana. Furthermore, for the most part, they barely cover “1000 or 2000 voters or ballots at a time”either “a very small scale to affect the outcome of the election”while in 2020 in the most contested states, the gap exceeded 10,000 votes.

“But if the election is extremely close, like in 2000 in Florida where it was decided by 537 votes, then everything counts”nuance Derek Muller. In this scenario, these legal battles “could foreshadow future litigation” after the vote, he adds.

The Republican camp has no illusions about the chances of success of these legal actions nor about their real importance, but they are part of a deliberate strategy, according to experts. “Donald Trump uses litigation to give a basis for grievances in order to be able to pose as a victim when he loses on a regular basis. He will lie about the results”says Marc Elias.

These remedies “aim to prepare the ground to then declare that the election was stolen”also estimated David Becker, founder of the Center for Election Innovation and Research, in an online discussion on the risks of violence after the election. According to him, they will serve “probably to stir up the passions and anger of the supporters of the unsuccessful candidate”.