The presidential election’s most restrictive voting environments are in red states.
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There is a prevailing view among Democrats and journalists that 2024’s presidential election will have more barriers for voters and complications with vote counts than four years ago.
This is understandable. Donald Trump and his allies keep spreading lies that 2020’s election was stolen. After their January 6 insurrection failed, states where MAGA Republicans held power passed many new restrictions, especially surrounding mail ballots. Since Trump won his party’s 2024 nomination and took over the Republican National Committee, its new election law team — led by Christina Bobb, who has been indicted for 2020 election-related felonies in Arizona — has targeted post-Election Day processes where vote totals are tallied.
“Indeed, the RNC has set up an ‘election integrity office’ with 55 staffers and plans to hire hundreds of lawyers in key battleground states,” wrote William Roberts in late July for the International Bar Association website. “These legal troops will look to file for injunctions and recounts in a push to ensure tighter post-2020 election rules are followed.”
But this fearful view, which can be seen in news reports, fundraising emails, and statements from voting advocates, is obscuring that the legal landscape in every presidential battleground state — except Georgia — is better than what is being portrayed. That is not to suggest that Trump’s lies and attacks will cease if he again loses or if vote totals are close.
However, consider these facts. Democrats control the election machinery at the state level in every 2024 battleground state except Georgia. The most regressive new election laws adopted since 2020 are in red states — not 2024’s battlegrounds. In 2022’s midterm elections, MAGA candidates for statewide office lost in Arizona, Nevada, Michigan, and Pennsylvania. There was no red voter turnout wave. And since the midterms, Democrats have been winning most of the important battleground state court fights where Republicans have tried to impede the process.
The exception is Georgia, where GOP legislators have seized control of county election boards and appear to be setting the stage to delay or reject the results after voters have turned in their ballots. However, since 2020, many battleground state courts have overruled such attempts by Trump allies. And, equally important, there have been no recent recounts in statewide or federal elections where results were reversed when the initial margins exceeded 450 votes.
Justin Levitt — a voting rights lawyer and scholar who worked for the Biden White House and US Department of Justice, and has overseen presidential campaign election-protection efforts — has warned against being ensnared by 2024’s overly broad, dark, and fateful narratives.
“It cultivates the exaggerated impression that an election can just be ‘overturned’ or ‘stolen’ out from under us by pushing the right series of buttons,” Levitt recently wrote in Slate. “That is, it wants you to forget the fundamental fact that we’re in charge of our own electoral fates.”
Let’s take a closer look at 2024’s emerging legal landscape in two parts: casting a ballot and then counting votes.
The Landscape Facing Voters
To start, 2024’s voting rules generally are more stringent than 2020. Four years ago, the COVID-19 pandemic led officials to pivot and widely embrace mailed-out ballots as a public health emergency response. After the election, many red states imposed new regulations on that voting option, while many blue states formalized its expansion. But a closer look at the new laws finds most battleground state voters will not face barriers that weren’t there in 2022.
With the exception of Georgia, where several post-2020 laws created new hurdles for voting by mail and allowed mass challenges of voter registrations, the legal landscape in the other swing states appears to be shaping up in favor of Democrats. That outcome is the direct result of the election apparatus in those states being run by Democrats and Democratic governors vetoing regressive legislation passed by GOP-run legislatures.
That more-positive-than-not conclusion holds despite a handful of obstructive new laws, court rulings, and ongoing litigation in the presidential battleground states.
This assessment is based on reviewing possible impacts of every newly adopted state election law in 2023 and 2024, as compiled by the National Conference of State Legislatures (NCSL) and reviewing nearly 50 voting-restricting lawsuits filed by the GOP since 2022’s elections.
If one parses NCSL’s compendium, one will see few new restrictions on voting with mailed-out ballots in the battleground states. Most efforts to restrict this balloting option — which 46 percent of 2020’s presidential electorate used in response to the pandemic — have been via GOP-filed lawsuits that mostly have failed, according to this case-by-case listing.
The same holds true with in-person voting before Election Day. There are no substantive new restrictions. Except for Arizona’s new proof-of-citizenship law (which was blocked by a federal appeals court in August), no battleground state has new voter registration or ID requirements. (Voter ID requirements exist in all these states and have been the law for years. Most require documents with a photo ID; however Pennsylvania voters sign an affidavit.)
Three swing states — Nevada, Wisconsin, and Michigan — have same-day voter registration.
Thus, for the most part, voter registration, voting by mail, early in-person voting, and voter ID requirements will be the same in 2024’s general election as they were in 2022’s midterms.
The numbers and the overall pattern suggest that the GOP’s latest formal voter suppression tactics would be insufficient to alter the outcomes in 2024’s presidential battleground states.
For example, one Republican legal victory was preserving the requirement in Wisconsin that a witness fill out a form that must be submitted by a voter when returning their mail ballot — a step that complicates the process somewhat. However, it did not stop 426,000 Wisconsin voters in 2022, according to federal data. And of those mail ballots, only 4,000 were disqualified, owing to various errors with filling out the return envelope.
The exception, again, is Georgia. In 2021, it passed an omnibus election law requiring specific forms of ID to obtain a mailed-out ballot, limiting the use of drop boxes, and tightening mail voting deadlines. (In 2022, those restrictions did not stop Democratic Sen. Raphael Warnock’s re-election. He defeated MAGA Republican and ex-football star Herschel Walker.)
Voter Suppression Potential
There are a handful of ongoing GOP lawsuits, which, under the most draconian scenarios, could interfere with or obstruct several thousand voters in a battleground state. But that impact, which is speculative, does not come close to 2020’s presidential election margins in those states. Nor does it approach the narrowest presidential margins in any of 2024’s battleground states in their 2020, 2016, 2012, 2008, or 2004 presidential elections. The closest 2022 statewide contest in a 2024 battleground state was for US Senate in Nevada, where Democrat Catherine Cortez Masto defeated Republican Adam Paul Laxalt by 8,000 votes.
These numbers and the overall pattern suggest that the GOP’s latest formal voter suppression tactics would be insufficient to alter the outcomes in 2024’s presidential battleground states.
We can actually see how many voters were directly disenfranchised in the 2021-2022 election cycle. The latest federal data lists how many voters and ballots were disqualified in each state — in the first federal elections after Trump’s failed insurrection — along with the reasons why. Those figures suggest the newest anti-democratic laws will have limited reach this fall because the battleground state voting rules will be largely unchanged.
For example, Arizona’s requirement that newly registered voters provide proof of citizenship — which could discourage new registrants — is in legal limbo. On August 1, a federal appeals court blocked the law that had disenfranchised hundreds of voters in the state’s most populous county during July. Republicans say that they will appeal to the US Supreme Court. However, Joe Biden beat Donald Trump by 10,457 votes statewide in 2020. Statewide, that’s narrow. But numerically, it is a vastly larger margin than the number of voters likely to be impacted if the GOP wins and the new requirement takes effect.
More potentially impactful is Pennsylvania litigation over counting mail ballots where the return envelopes are improperly dated, which has led to more than 10,000 ballots being disqualified since 2022 in numerous elections across the state, according to voting rights attorneys. (However, Trump lost that state by 80,555 votes in 2020 — a much bigger benchmark.)
Similarly, a new Georgia law allows mass voter registration challenges. Since 2020, Trump loyalists have challenged tens of thousands of voters. Those challenges, which were vetted by officials working overtime, have almost entirely failed. The most recent wave of challenges across Georgia also have begun to be rejected. (Trump lost by 11,788 votes in 2020).
Indeed, it may be that the Georgia Election Board’s recent approval of a controversial new rule to require counties to undertake “a reasonable inquiry” before certifying results is in response to the early wholesale rejection of the voter roll challenges filed by other Trump allies.
In contrast, the most restrictive voting environments overwhelmingly are in red states.
In 2023 and 2024, Republicans restricted registration drives (Florida, Idaho), imposed stricter ID requirements (Idaho, Indiana, Montana, Ohio, Oklahoma), expanded paperwork and other restrictions for mailed-out ballots (Mississippi, Alabama, Arkansas, Louisiana, South Dakota), and set up special police to go after illegal voting (Florida, Arkansas, Texas).
While the next congressional majorities may come down to elections in those states, these red states will not be decisive when it comes to the Electoral College and presidency (unless no candidate reaches 270 Electoral College votes).
The Landscape Facing Ballots
If anything, the Republican National Convention’s pledge to aggressively litigate post-Election Day regarding the counting of the ballots suggests a more cynical strategy to steamroll the electorate’s decisions and delve into trench lawfare — a strategy reminiscent of Florida’s 2000 presidential election — where the US Supreme Court stopped a recount and elevated George W. Bush to the presidency.
These post-voting stages of the process, which are technical and dry, appear to be targeted by Republicans — or, at least, have been mentioned in their press statements.
Nonetheless, the GOP track record, despite filing numerous lawsuits in battleground state courts since 2020, has overwhelmingly not been in their favor.
Take Arizona. Like all of the other battleground states except Georgia and Nevada, Arizona has a Democratic governor who has vetoed regressive legislation. Those vetoes led its pro-Trump GOP to try to tilt other voting rules in their favor by going to court.
Since 2022, Arizona Republicans have sued to overturn all or part of the state’s election procedures manual, to decertify past results, to block drop boxes for mail ballots, and to claim their voter rolls are error-ridden. But most of these suits have lost or are pending, which, as time passes, makes them increasingly likely to be moot for November’s election.
This is especially true when it comes to challenging voter rolls — which the RNC and its allies have done in the other swing states. GOP activists may make a lot of noise about illegal voters, but a 1993 federal law bars removing voters 90 days before an election. That deadline fell on August 7 for 2024’s November 5 election. In other words, there can be no new removals.
Additionally, courts are very hesitant to change voting rules in the final weeks before ballots are printed, mailed in September to the military and citizens abroad, and voting begins. Essentially, the clock is running out on these kinds of rule-altering lawsuits.
A Different Example
Michigan has seen Republican litigation echoing similar dubious claims. But following the passage of two pro-voter state constitutional amendments in 2018 and 2022, Democrat-run Michigan has passed numerous laws and adopted many rules to make voting more accessible, inclusive, and safe. Arguably, the state is the nation’s current model for pro-democracy reform.
The NCSL compendium notes that Michigan has formalized voting with mailed-out ballots by instituting online applications and ballot tracking, creating a permanent absentee voter list, and requiring one drop box for every 15,000 voters (in Georgia, it’s one box per 100,000 voters). Michigan also formalized early in-person voting, criminalized threats to election officials, clarified the process of certifying winners, and restored registrations of felons who have completed their sentences.
Needless to say, Michigan Republicans, like their Arizona brethren, have filed multiple lawsuits to stop these inclusive efforts. But, as in Arizona, most of their suits have lost or are not likely to be resolved before November. And in rare instances where Republicans have won, such as on restoring stricter signature matching protocols for vetting mail ballot return envelopes, those victories are not likely to disenfranchise enough voters to sway 2024’s presidential results.
In 2020, Biden beat Trump in Michigan by 155,000 votes. In 2021-2022’s cycle, 24,000 mail ballots in Michigan were rejected, according to federal data, analysis of which estimated that one-fourth were rejected due to a “non-matching or incomplete” signature. What may have a larger impact in Michigan is whether the state’s large Arab American community, which strongly supported Biden in 2020, turns out for Harris. Biden’s support of Israel’s war on Hamas has greatly upset this bloc.
In other battleground states, there are some new laws that may impede certain parts of the process that previously made voting easier. In Arizona, for example, now only family members and caregivers can return mailed-out ballots for people with disabilities, including infirm seniors. Previously, third-party groups could help — which Republicans deride as “ballot harvesting.”
Post-2022 Litigation
The most extreme attempted interventions have come as lawsuits from Trump loyalists. Many are little more than conspiratorial talking points repackaged as litigation — serving to perpetuate false and propagandistic claims. Fortunately, most of these lawsuits have failed or are not likely to be resolved before November’s election.
This assessment is based on reviewing 250 lawsuits filed since 2022’s midterms. (These are listed 10-to-a-page on this website compiled by Marc Elias, one of the Democrats’ top election lawyers.) One-fifth of the suits concern the battleground states.
Many of the suits were built on “stop-the-steal” rhetoric that lingered after Trump’s loss. This is especially true in Pennsylvania, which arguably is 2024’s most pivotal battleground state.
There are a handful of lawsuits that keep litigating 2020’s election results that are not going to be changed — as their winners now hold office. There are other suits that echo other states and basically harass officials who do thankless jobs — such as culling voter lists of registrants who moved or died. And there are November-centered lawsuits that take aim at the most prevalent new voting trend, which is the public’s wide embrace of using mailed-out ballots when they are given that option.
Trump and his loyalists contend that mail-based voting unduly helped Biden, after that option was expanded by officials in response to 2020’s COVID-19 pandemic. However, that partisan belief is false. Researchers have found that the 2020 voting bloc that saw the greatest increase in turnout via using mailed-out ballots were rural Republicans: Trump’s base.
Nonetheless, GOP lawsuits in Pennsylvania have targeted this process in both petty and more consequential ways. One petty suit forced a county to redesign its ballot return envelope by replacing “20_ _” in the dating section with a voter filling in the entire year. Another GOP suit has challenged registering members of the military if their applications do not include sufficient identifying documents.
Lest this all seem too comforting, given the high stakes and high temperature of what many observers regard as an existential election, it should be noted that this analysis is restricted to the legislative and litigious efforts to shrink the electorate. That leaves extralegal hijinx for another day.
More significantly, Republican legislators have sued to block every county from deploying drop boxes for mailed-out ballots. They want voters to return the ballots to local precincts, which may undercut their use. (In 2022’s general election, 1.2 million Pennsylvanians, or 23 percent of its electorate, voted by mail, according to federal data). The case is ongoing.
As in Arizona, Pennsylvania Republicans don’t want third-party groups helping older or more infirm voters to return mailed-out ballots this fall. However, in April, a state court refused to block such assistance for the state’s primary election. The case is ongoing.
These suits are not likely to succeed for several reasons. Pennsylvania’s constitution has strong voting rights protections. Moreover, Republicans previously failed to overturn Act 77, the state’s Act 77 lost in court. On August 1, Republicans withdrew their appeal of that ruling.
The lawsuit that, if successful, might disenfranchise the largest number of voters concerns a 2019 law that expanded voting by mail. Another recent lawsuit that revived GOP claims against accepting or rejecting mail ballots if the voter has improperly dated the return envelope. Since 2022, pro-voter attorneys have said that more than 10,000 mail ballots have been disqualified across Pennsylvania for this reason. A court hearing was held on Aug. 1.
The Big Picture
With three months to go before Election Day, the legal landscape for voters in every presidential battleground state except Georgia is surprisingly favorable. That may not stop Trump and his loyalists from attacking the process in the media and, should he lose, from attacking the process and results in court, in the press, and, most worrisomely, in the streets. But any contestation of the swing state results will likely have to begin in the same state and federal courts that overwhelmingly have rejected GOP litigation since 2022.
Lest this all seem too comforting, given the high stakes and high temperature of what many observers regard as an existential election, it should be noted that this analysis is restricted to the legislative and litigious efforts to shrink the electorate. That leaves extralegal hijinx for another day.
Examples of the extralegal tactic would be targeted disinformation (e.g., telling voting-restored felons that they can’t vote or could be arrested for voting) or deploying squads of aggressive “poll-watchers” to challenge or intimidate would-be voters and/or officials — even though numerous federal and state laws criminalize such threats.
These kinds of interference are not unprecedented, but their effects tend to be very difficult to quantify. Just as judges are hesitant to change election rules at the 11th hour, so, too, are they reluctant to wade into the gray zone when political speech becomes a threat. Outright violence is clearly illegal.
In short, while the legal landscapes in 2024’s presidential battleground states are shaping up to favor Democrats more than Republicans, this serves as no guarantee of a free and fair election impervious to interference — especially in red-run Georgia. Nonetheless, the shape of 2024’s voting rules in most of the presidential battlegrounds favors participatory democracy.
Steven Rosenfeld is a longtime national political reporter. Most recently, he has specialized in election administration and disinformation. He has covered those topics for Washington Monthly, The New Republic, L.A. Progressive, AlterNet and others. Previously, he covered money and politics for National Public Radio, Monitor Radio, and Marketplace.
