The first article in this series, Legal Work Done Before Elections Can Prevent Giving Edge to Dems, covered the need for the GOP to improve its pre-election lawyering.
Five areas were raised, which will be discussed more in depth now.
The first topic is why the RNC and Republicans didn't mount a significant legal challenge to the Zuckerberg-Chan donations or any legal opposition to the consent decree in Georgia prior to the 2020 Election.
An investigation is necessary.
Several reasons could account for the lack of action.
First, the lawyers may not have known about the donations and/or consent decree.
Given the publicized accounts of these actions, this possibility seems unlikely.
Second, the lawyers may have known about the donations and consent decree but did not realize either how they would impact the election or the extent or depth of that impact.
It's essential that Republicans hire and retain only those lawyers possessing the legal and strategic experience (as well as sophistication) to understand the Democrats' actions.
The Democrats undertake legal actions and other pre-election maneuvers for reasons which will help them in future elections.
In turn, these Democratic tactics will diminish the chances for Republican candidates to win. It's incumbent upon Republican lawyers to determine the reasons for Democrats' actions, then file legal actions as appropriate.
Third, the lawyers may have known about the donations and consent decree as well as their potential impact and told their superiors at the RNC, but their superiors could have vetoed proposed legal action to counteract them.
Possible reasons to prevent a legal response include cost or a negative public relations impact. The negative impact (i.e., a direct effect on voting) of the donations and consent decree clearly outweighed any negative impacts of cost or public relations difficulties.
An probe needs to takep place to determine how party leadership responded.
Just as Republicans need sophisticated lawyers, they also need party leaders who have the sophistication to assess the situation and make proper decisions.
Regarding decisions on party leaders and lawyers, the party will have to make decisions on elections, retention, and hiring based on the answers to questions arising from the above investigations suggested.
The fourth issue was the need to pass strong voting laws.
Republicans need to elect legislators and governors who will use their positions to write and pass strong voting laws.
The GOP should also have groups which will advise legislators and governors on what elements make good voting laws, and what parts of a state's law and/or proposed law needs to be changed.
State election laws should make voting easy and accessible to all.
At the same time, however, they must contain provisions which are consistent with decreasing the possibility of fraud in elections.
Examples of such requirements include photo identification to vote, decreasing the number of days for early voting, etc.
State election laws must be precisely worded so that judges can easily decipher and apply them. Otherwise, judges could more easily interpret them in a manner other than as written (which often results in a partisan-based, or oriented, decision).
Some states with Republican legislatures and a Republican governor have used their control of the legislative and executive branches to enact strong voting measures while, inexplicably, others have not.
Some states passed laws which had only some elements of a strong voting law and thus maintained avenues in which election fraud could occur.
For example, while Georgia's new voting law required photo identification for voting, it also established a long time period for early voting and made the use of ballot drop boxes mandatory (both of which could contribute to election fraud).
The last issue concerns winning pre-election lawsuits.
Republicans will have to diagnose the reasons for their pre-election court losses in 2020 such as poorly drafted laws (discussed above), judicial biases (discussed below), quality of lawyers (discussed in the next article), facts which were difficult to overcome, etc.
It's difficult to definitely conclude that judicial bias based on party affiliation occurred.
Other factors may influence judicial decisions. An example of Republicans losing an important election law case before a court with a Democratic majority occurred at the Pennsylvania Supreme Court in 2020.
The court ruled that Pennsylvania's voting law could be changed to allow an extended period to receive absentee ballots (a change which advantaged Democrats).
Judicial biases can be addressed based on the type of judge which hears a case. Generally, two types of judges hear election cases.
Federal cases are heard by federal judges who are appointed by the president and confirmed by the Senate.
For federal judges, Republicans have a great deal of influence if a Republican is president.
Even if a Democrat is president and nominates judges, Republicans have some control via the Senate's role of confirming the judges.
Electing Republican presidents and senators, therefore, influences the types of judges which are appointed.
State cases are heard before state judges who are elected by a states' citizens.
For state judges, Republicans must convince voters to elect Republican state judges.
Persuading voters requires time, money, and commitment.
After Republicans thoroughly investigate their pre-election lawyering that occurred in 2020, they will be able to move forward with a plan for pre-election lawyering in 2024.
Michael B. Abramson is a practicing attorney. He is also an adviser with the National Diversity Coalition for Trump. He is the host of the "Advancing the Agenda" podcast and the author of "A Playbook for Taking Back America: Lessons from the 2012 Presidential Election." Follow him on his website and Twitter, @mbabramson. Read Michael B. Abramson's Reports — More Here.
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