The 2020 presidential and 2022 midterm elections saw massive claims of electoral fraud and election-related lawsuits, primarily by Donald Trump’s campaign or by Republicans. Cristina Ramirez looks at the risks and flaws of US election administration and how they relate to election litigation. Looking closely at how Brazil runs its elections through a strong, independent and centralized Electoral Management Body, she writes on how similar improvements in how US elections are designed and run could lessen the risk of the system being abused through election litigation.

“The Democrats tricks from 2020 won’t work this time. In 2024 we’re going to beat the Democrats at their own game and the RNC legal team will be working tirelessly to ensure that”

This quote is from Charlie Spiess, the former co-counsel of the Republican National Convention (RNC), in a press release announcing the formation of a new ‘electoral integrity programme’ in anticipation of the 2024 elections.

The rise of election-related lawsuits

The 2020 presidential elections were plagued by unprecedented and extensive electoral litigation, primarily driven by Donald Trump’s unsubstantiated claims of electoral fraud. The Stanford MIT Healthy Elections Project reported that 400 lawsuits were filed before Election Day, with an additional 86 filed by January 6, almost all by Trump’s campaign. Despite these efforts, most claims failed to produce significant results even though some were not resolved before the 2022 mid-term elections. However, they did succeed in sowing doubt about the legitimacy of the US electoral system among many Republican Party members. In fact, according to a poll conducted by the Washington Post and the University of Maryland, which tracks the evolving views of the Jan 6 attacks, as of January of 2024 31 percent of Republicans still believed that the 2020 elections were illegitimate.

In the lead-up to the 2022 midterm elections new litigation emerged, targeting the mechanics of voting (who votes, and where and how). For example, these lawsuits sought tighter restrictions on mail-in and absentee ballots and challenged various aspects of election administration, including the times and dates for postmarking ballots, and rules governing poll workers, drop boxes, and early in-person voting. The sheer volume of the lawsuits had no parallel in American electoral history.

Fast forward to the 2024 presidential elections and both sides are gearing up for a post-election legal fight. The RNC continues to challenge different aspects of electoral administration. Recent lawsuits are also targeting voter roll maintenance, a trend which started with the 2021 Georgia senate runoff where 300,000 voter challenges were filed on unfounded claims. In the US, 46 states have rules which allow for registered voters to challenge the eligibility of other individuals to cast their vote. Many of these rules and procedures are over 100 years old and predate the modernization of electoral administration. In the run up to the 2024 presidential elections, election denier groups have continued to file these challenges en masse, particularly in swing states, mostly relying on faulty data and even going as far as conducting “massive knock on doors” sessions to “certify” people´s registered residence. While typically dismissed, these massive challenges pose significant risks to the integrity of the elections, such as overwhelming electoral officials, disenfranchising eligible voters, and undermining trust in election processes.

The risks and flaws of US election administration

As explained by a report by the liberal think-tank Protect Democracy, these risks are made worse by the divergence, as with most issues in the US electoral system, amongst the legal framework of states. While some states can limit voters´ challenges through strict statues or procedures (e.g. Minnesota and Florida) others (e.g. Georgia) are significantly more flexible in their requirements.

The current excess of litigation in the US electoral system underscores three major flaws in how US elections are governed:

• Fragmented electoral framework: The lack of a unified national electoral code allows inconsistencies and distortions on electoral management and dispute resolution mechanisms across states while at the same time creating negative elite incentives. This fragmentation enables partisan actors to target state with weaker or outdated laws to attempt to manipulated elections trough litigation (e.g. Georgia´s rule about roll call challenges).
• Over-politization of election laws: Since election laws are crafted by local elected officials, there is a strong potential for these laws to reflect partisan interests, which leads to the creation of electoral regulations that benefit one party over another or at least give the perception of partisans’ biases, further fueling litigation.
• Over-reliance on general courts for electoral litigation: The absence of specialized electoral courts to handle election disputes results in delayed and inconsistent rulings and burdens general courts which may not have the necessary expertise to address complex electoral cases efficiently and fairly.

How elections are governed in Brazil

A look at the electoral governance model of Brazil, the second largest democracy in the Americas and one of the most decentralized countries in the world, yields interesting contrasts. A younger democracy, Brazil modeled its 1831 Constitution on the US’. However, at least due in part to management of the electoral process by the legislative and local authorities (consistent with a decentralized electoral administration), this period was plagued by manipulations and corruption scandals through practices such as falsifying election records at local polling stations, misreporting vote counts in remote and small towns, and the tactic known as “beheading of candidates” (“degola” in Portuguese), where local legislative verification committees refused to recognize a candidate’s election victory despite receiving a majority of the votes.

“3º dia – Sétima edição do Teste Púb” (Public Domain) by O Tribunal da Democracia

This changed significantly with the 1932 Decree establishing an Electoral Code which was applicable to all federal states, and which shifted electoral oversight from the legislative to the more independent and non-partisan judicial branch, establishing the Electoral Justice system. Elections in Brazil are organized by a single Electoral Management Body (EMB) tasked with the fundamental dimensions of electoral governance: rule adjudication and rule implementation, as well as rulemaking shared with the legislative branch. The EMB is made up of professional civil servants and rotating judges from other courts and oversees the entire electoral process, including voter registration, financial reporting, electoral logistics, and the inauguration of officials. At the top is the Superior Electoral Court (TSE), composed of seven members: three justices from the Federal Supreme Court (STF), two from the Superior Court of Justice (STJ), and two lawyers nominated by the STF and chosen by the President. The TSE has no partisan representation, ensuring its autonomy from political parties. For this reason it has been argued that this institutional design is the reason why the TSEs emerged as a pivotal force in the country’s democratic consolidation.

How Brazil’s electoral code enforces electoral integrity

This was illustrated during the 2022 elections in which the TSE played a crucial role in maintaining electoral integrity against the backdrop of Jair Bolsonaro, a populist president with autocratic tendencies and who had been hailed as the Brazilian Trump. Even before the presidential elections took place, Bolsonaro repeatedly questioned the reliability of the electronic voting system, which has been successfully used since 1998. Not unlike Trump, he claimed without evidence that Brazil’s electoral system was prone to fraud, alleging he was unfairly denied a first-round victory in 2018, despite these claims being refuted by authorities in 2021. During the 2022 electoral cycle he even went as far as repeated the claims of fraud in front of diplomats during a meeting (which led to the TSE subsequently barring him from running for office for eight years).

After his reelection defeat, Bolsonaro´s Liberal Party filed a 31-page frivolous complaint in connection with an alleged software bug, demanding the TSE to annul votes casted on 60 percent of Brazil’s electronic voting machines. Not only was the lawsuit dismissed but the party was fined 22.9 million Brazilian reals (around four million US dollars). In the ruling, based in Article 80 of the Electoral Code which allows the judges to provide fines for “bad faith litigations”, Alexander Moraes, the president of the TSE, argued “The complete bad faith of the plaintiff’s bizarre and illicit request … was proven, both by the refusal to add to the initial petition and the total absence of any evidence of irregularities and the existence of a totally fraudulent narrative of the facts”.

The centralized nature of Brazil’s EMB and its political independence allows it to provide strong, expedite and uniform responses to electoral litigation abuses and to disincentivize political elites to attempt to manipulate the system. This is not to say that the Brazilian system is infallible, and it has been accused of overstepping its power and of conducting judicial activism.

The need to update US election law

Previous research suggests that in developed democracies with high-quality governance, institutional design has little impact on electoral outcomes. As the literature on developed democracies suggests, this is because informal institutions – those unwritten norms that fill gaps left by formal institutions, coordinate overlapping or conflicting rules, and regulate political behavior alongside official laws – impose limitations on elites and compensate for the lack of a more formal legal framework. However, in the US’ current hyper-partisan environment, these unwritten norms are increasingly exploited by bad-faith actors aiming to undermine the system. This is why, following the 2020 election, experts recommended updating laws to manage disputes over presidential elections, suggesting that states create dedicated tribunals of experienced judges to expedite the resolution of such disputes and that Congress revise the outdated Electoral Count Act of 1887.

Although what works for one country doesn’t mean that it will also work for another, it is possible to conclude without difficulty that improvements in institutional design in the US electoral system which are geared towards reducing the influence of partisanship in the bodies which manage elections could help mitigate the risk of manipulations of the system through the abuse of litigation.

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