GOP planning 'attack on the courts' in key swing state ahead of 2024 election: attorney

Marc Elias — the election attorney who represented the Democratic National Committee in court for more than a decade — is warning that Republican state lawmakers are planning to deploy a "bogus legal theory" to challenge election results in a must-win battleground state.

In a post to his website Democracy Docket, Elias called attention to a Michigan lawsuit Republican legislators filed as a challenge to two constitutional amendments voters in the Mitten State approved in 2018 and 2022. The 2018 amendment expanded voter registration efforts and made it easier for voters to obtain ballots and vote by mail. The 2022 amendment expanded early voting in Michigan and further protected the validity of mail-in ballots.

"GOP plaintiffs and their attorneys want to lay a predicate now to contest the 2024 election. Just as former President Donald Trump and his allies did after the 2020 election, Republicans are planning on blaming the voting rules for why they lost," Elias wrote. "They will couple it with an attack on the courts and false claims of fraud."

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The lawsuit against those two amendments is based on the Independent State Legislature (ISL) theory, which the Supreme Court of the United States (SCOTUS) already rejected in the 2022 Moore v. Harper case. That theory posits that state legislatures alone have the power to govern federal elections and and that state-level judges don't have the power to rule on anything pertaining to federal elections, including redistricting maps.

Elias wrote that even though SCOTUS already rejected the ISL theory, Republicans are hoping to have the case "remain pending and unresolved by Election Day 2024," in order to have a "cynical tool to claim election fraud and illegal voting rules robbed them of a fair outcome."

"It would give them a basis to contest the outcome of the Michigan results once again in court and Congress. When they fail, it will fuel their pathological election denialism," he wrote.

The 2018 and 2022 elections were particularly consequential for Michigan — voters in 2018 elected Gretchen Whitmer and Dana Nessel (the state's first Democratic governor and attorney general, respectively, since 2011). In 2022, Michiganders reelected both Whitmer and Nessel, and also gave Michigan its first Democratic-controlled legislature in decades. Michigan proved decisive in the last two presidential elections with its 15 electoral college votes going to Donald Trump in 2016 and to Joe Biden in 2020.

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