Lawyers from both sides are facing off in an unprecedented election dispute

• The 2024 election is already the most contentious in US history.
• Republicans and Democrats were embroiled in a series of lawsuits leading up to the election.
• Trump's allies are leading most of the litigation, and experts predict there will be more clashes after the election.

With the 2024 US presidential election just a day away, the highest-stakes race is already the most contentious in modern American history.

For months, Republican allies of former President Donald Trump and Democratic allies of Vice President Kamala Harris have been embroiled in a barrage of pre-election lawsuits, with Republicans filing the most legal challenges in key battleground states. And while pre-election litigation may not seem like an essential part of Democratic presidential elections in the U.S., the 2024 cycle has shown it to be a crucial political strategy.

“Probably the most disheartening thing about this whole litigation experiment is that it has little to no connection to democracy and credible elections,” said John Hardin Young, an election law expert and senior counsel at the Washington, D.C. law firm Sandler Reiff Lamb Rosenstein & Birkenstock.

“It’s gamesmanship,” said Young, who said litigation has “become part of the political strategy.”

“It is in some ways a prelude to the post-election challenges where the political message has been garbled along with the litigation,” he added.

Legal experts told Business Insider that some of the lawsuits filed by Republicans could form the basis for possible court challenges after the Nov. 5 election.

But it all really depends on how close the election between Trump and Harris is, the experts said. National polls suggest the race for the White House will be close.

The Republican National Committee said Operation Election Integrity, announced earlier this year in connection with the Trump campaign, was involved in 130 lawsuits in 26 states this election cycle.

Many of the lawsuits center on the handling of absentee ballots, overseas ballots and voter rolls. The Democrats have intervened in a number of these.

When the RNC announced the Election Integrity program in April, it said it would deploy more than 100,000 volunteers and lawyers in all battleground states.

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“This gives voters peace of mind that their ballots are being properly counted and, in turn, increases voter turnout,” Claire Zunk, a spokesperson for the RNC, told BI in a statement. “As Democrats continue to interfere in our elections and dismantle election protections, we are protecting the right of every American to vote.”

The Trump campaign declined to comment for this story, referring BI to Zunk's statement. Harris' campaign team referred BI to an earlier interview with a campaign spokesman about litigation strategy.

Harris campaign memo says Republican lawsuits aim to 'sow doubt'

Harris campaign activists said in a recent memo to “interested parties” that the Republicans’ lawsuits were “part of an effort to sow doubt about the results of the 2024 election.”

“Trump Republicans believe they have a better chance of winning if fewer voters vote and fewer votes are counted. “So they are spreading misinformation and filing dozens of baseless lawsuits in an apparent attempt to suppress voter turnout,” the Oct. 11 memo, obtained by Business Insider, says.

The memo was written by Dana Remus, President Joe Biden's former White House counsel who now leads the Harris campaign's legal team, and Monica Guardiola, acting co-executive director of the Democratic National Committee.

It says Democrats are “prepared and entering the final stages with a plan to protect the integrity of our elections – before and after November 5th.”

They say Democrats have already intervened in “dozens of baseless lawsuits filed by Republicans to expose their lies and defeat them in court.”

The DNC and Harris campaign have scored 15 court victories in the last three weeks, largely after intervening in lawsuits brought by Republicans, the campaign told BI.

The memo said that the upcoming election was already “the most contentious in American history,” but that the campaign was the best prepared.

The 2020 general election was previously considered the most contentious in modern history.

During the two-month period between November 3, 2020 and January 6, 2021, plaintiffs filed 82 lawsuits in 10 states and the District of Columbia, a post-election legal analysis by the Stanford-MIT Healthy Elections Project found.

The American Bar Association said fewer than 40 primary election lawsuits were filed before Election Day 2020.

As of Nov. 1, a record 203 voting and election cases are pending in 40 states, with 25 lawsuits filed in the battleground state of Georgia alone, said Democratic election lawyer Marc Elias, who is also part of the Harris campaign's legal team .

And more are expected.

The Republicans' legal strategy is better organized than in 2020

In recent weeks, Republicans have suffered a series of court losses, but have also had some successes.

A federal judge in swing state Pennsylvania last month dismissed a lawsuit from a group of Republican congressmen seeking new verification requirements for foreign and military ballots. Judges in the swing states of Michigan and North Carolina also recently rejected RNC challenges that targeted elections abroad.

The RNC pointed BI to nine recent court victories, including a ruling by a Trump-appointed panel of judges on the 5th U.S. Circuit Court of Appeals that found Mississippi's law to count properly postmarked mail-in ballots received after Election Day violated federal law.

Young, the election law expert, called the wave of litigation “part of the political message.”

“The Republicans' litigation strategy doesn't seem to follow any specific rules, but is really an attempt to throw everything against the wall and see if anything sticks,” he said.

But Republicans' litigation strategy for 2024 appears to be much more organized than in 2020, when Trump and his allies filed more than 60 voter fraud lawsuits after Election Day in unsuccessful attempts to challenge the results, said Sophia Lin Lakin, a voting rights lawyer at the American Civil Liberties Union. The ACLU is involved in dozens of election-related lawsuits.

“In 2020, it felt sloppy and very reactive and improvisational,” Lakin said, adding that Republican efforts now appear more strategic and aimed at laying “narrative groundwork.”

Jason Torchinsky, a partner at the Holtzman Vogel law firm and a Republican election lawyer, said BI is an effective strategy for filing lawsuits before the election.

“Pre-election litigation to set ground rules is often much more successful than post-election litigation,” Torchinsky said. “The courts are very wary of giving the impression that they are deciding the results of elections.”

During a Zoom panel discussion last week, Elias warned that there could be a “period of uncertainty” after Election Day.

“But honestly, there were periods of post-election uncertainty for many years. People are just more worried about it now,” he said.

“So I think when people vote, they should have confidence that the process will almost certainly turn out well,” he said.