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Maryland is the only state that doesn’t start processing absentee ballots on or before Election Day.

New Election Policies Targeted in Flood of Lawsuits

By Wendy Underhill | Oct. 25, 2022 | State Legislatures News | Print

In 2020, litigation exploded around how elections are run. The flood of cases gave rise to at least three litigation trackers: The American Bar Association’s Standing Committee on Election Law keeps a list of election-related cases; the nonpartisan Election Law at Ohio State program and SCOTUSblog created a 2020 Election Litigation Tracker; and the Brennan Center for Justice launched a Voting Rights Litigation Tracker.

Will the 2022 election generate a similar deluge? Hard to say. The partisan fever that gripped the nation during and after the 2020 election hasn’t cooled—but it’s also not a presidential election year.

What can be said, though, is that some recent election legislation found its way into the courts even before the laws went into effect. That may mean it’s no longer enough to get the votes in two chambers and a governor’s signature when setting election policies; at least some new laws will need a court’s seal of approval, too.

Here’s a handful of recent examples:

  • Arizona enacted a law this year that would require voters to prove citizenship at registration. The U.S. Department of Justice sued, and a federal court has blocked the law from going into effect, at least temporarily.
  • Last year, Montana enacted three election-related laws, the first adding new voter ID requirements for in-person voting, the second limiting ballot collection practices and the third ending Election Day registration. (Since 2005, Montana has permitted residents to go to an election office—not a polling place—to register and vote on Election Day.) A coalition including the Montana Democratic Party and several Native groups sued on all three new laws. The cases were combined, and a district court granted an injunction, preventing the new laws from going into effect. The secretary of state appealed, and the state Supreme Court upheld the injunction, for now. It’s not the end of the road, of course, in that the merits of the case are yet to be heard.
  • In Delaware, Election Day registration took a different path to court. This year, the Legislature enacted a law permitting voters to register and vote on the same day and another removing the requirement that voters provide a reason to vote absentee. The state Supreme Court ruled unanimously that both portions violated the Delaware Constitution. That puts the First State back to where it had been previously: Voters must register by Oct. 15, and anyone who wants to vote absentee must give a reason, such as absence from the jurisdiction on Election Day, illness, disability or a work shift that conflicts with voting. The next step could be a constitutional amendment, but that’s a high bar. Delaware is the only state that can amend its constitution without a vote of the people—but two-thirds votes in both chambers in two consecutive legislative sessions are required.
  • And in Maryland, the governor vetoed a bill that would have allowed absentee/mail ballot processing to begin before Election Day, as opposed to two days after the election as is required under current law. (The Old Line State is the only state that doesn’t start processing absentee ballots on or before Election Day.) The state board of elections asked a judge to suspend the existing law because it slows ballot counting and thus delays the release of election results. The request was granted, then appealed, and earlier this month a Maryland court of appeals panel upheld the lower court’s decision. So, early processing it is—but this is an example of courts, not legislatures, setting policy.

“Stay tuned” applies to all these cases, as either the next phase of litigation unfolds or the two sides rethink their policies and strategies.

And yet, it’s a truism that election policy is best set well before campaigning and voting begin. While not governing law, the Purcell principle guides courts to avoid changing the status quo shortly before an election to avoid confusion for voters and administrators.

In fact, Alabamians will vote on that very thing this November; if adopted, Amendment 4 would prohibit changes to election processes within six months of an election.

Wendy Underhill directs NCSL’s Elections and Redistricting Program.

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