Elections Go to Court
Elected officials often look like the most partisan people in the elections world. This year, however, that description may more accurately belong to the lawyers who duke it out on behalf of political parties.
Amid the COVID-19 pandemic, a wave of election changes emerged to expand, regulate and/or secure absentee and mail voting options. But those changes have had a rocky reception, culminating in an election season characterized by litigation as it is by campaigning and getting out the vote.
Expand mail/absentee voting? Get sued. Don’t expand mail/absentee voting? Get sued.
The policy positions generally fall along party lines, with Democrats suing to expand absentee voting options, and Republicans suing to maintain current policy or roll back newly implemented changes.
Nearly all aspects of absentee/mail voting have come under fire, though most litigation has centered on four flashpoints: all-mail elections, absentee ballot eligibility and applications, witness requirements, and how ballots can be returned. In fact, many lawsuits touch on more than one of these issues, though we address each topic separately below.
Five states—Colorado, Hawaii, Oregon, Utah and Washington—currently employ all-mail voting, where every registered voter receives a ballot in the mail. Lawmaker and voter interest in mail voting increased during the primaries as a way to give voters the option to avoid in-person voting if they feared contracting COVID-19. In addition to the five all-mail states, seven states mailed ballots to all registered voters during the primaries: Alaska (Democrats only), Maryland, Montana (counties’ choice; all opted in), Nevada, New Jersey and Wyoming (Democrats only).
California, Nevada, New Jersey and Vermont all plan to mail ballots to all voters for the 2020 general election, while not making the change permanent. These changes, though, have been met with some resistance. In California, the Republican National Committee (RNC) sued Governor Gavin Newsom (D) after he issued an executive order implementing statewide mail voting, arguing that the order usurped the state legislature. When the legislature passed a nearly identical law, the RNC voluntarily dismissed the case.
Nevada and New Jersey both remain embroiled in active litigation with President Donald Trump’s campaign. Shortly after New Jersey Governor Phil Murphy (D) issued an executive order requiring an all-mail election in November, the president’s campaign filed a complaint alleging violations of the Elections and Electors Clauses of the U.S. Constitution, the 14th Amendment and various federal statutes.
In Nevada, Trump’s campaign, along with the RNC and the state Republican Party, sued the Republican secretary of state on the basis that newly enacted legislation does not require uniform standards for processing and counting ballots and allows election officials to accept mailed ballots without postmarks if they are received by 5 p.m. on the third day after an election.
Absentee Ballot Eligibility and Applications
Sixteen states require an excuse to use an absentee ballot, though 10 of those states have temporarily waived excuse requirements or authorized COVID-19 as a valid excuse for the November election.
The six states that have not expanded eligibility requirements for absentee voting are facing litigation led by individual voters and state Democratic parties. Indiana, for example, is being sued over the state’s absentee ballot policies, which do not allow voters to use COVID-19 concerns to request an absentee ballot and which restrict absentee voting to certain categories of voters, such as those over a certain age.
Similar lawsuits are active in Louisiana, Mississippi, South Carolina, Tennessee and Texas.
To increase the use of absentee ballots, some states are opting to mail absentee ballot applications to registered voters, after several states took this novel approach during the primaries. This option has been a source of contention, as well. The Disability Law Center of Alaska is pursuing a lawsuit against the state for mailing absentee ballot applications only to voters over age 65. In Illinois, the Cook County Republican Party has sued the state for passing a law that requires absentee ballot applications be sent to most registered voters.
If a person is quarantined or self-isolating, it may be hard to find a witness, so some states have opted to loosen witness or notary requirements for absentee or mail ballots. In Minnesota, for example, individual voters and the Minnesota Alliance for Retired Americans Educational Fund sued the North Star State over two laws requiring witness signatures on absentee ballots. In a June consent decree, Minnesota agreed not to enforce the laws in 2020. Rhode Island similarly agreed to suspend witness/notary requirements after Common Cause and the League of Women Voters brought suit; the RNC’s motion to overturn the consent decree was denied by the U.S. Supreme Court.
Alabama is being sued over witness requirements (as well as photo ID requirements for absentee ballot applications), while Missouri faces a suit against the state’s notary requirement. Witness requirements are also being challenged by the American Federation of Teachers in New Hampshire, the League of Women Voters in North Carolina, the Democratic Congressional Campaign Committee and state Democratic Party in Oklahoma, the state Democratic Party and Democratic National Committee (DNC) in South Carolina, the League of Women Voters in Virginia (partially settled) and the state Democratic Party and DNC in Wisconsin.
In most states, voters must pay a ballot’s return postage. Seventeen states, however, require local election officials to provide return postage for mailed ballots, and New Jersey leaves it to the discretion of county clerks.
Several states that don’t prepay return postage for voters faced lawsuits. In Georgia, for example, Black Votes Matter Fund challenged the requirement that voters must pay postage to return absentee ballots and ballot applications, arguing that it constitutes a poll tax. Although part of the case was dismissed, the part concerning voters who cannot afford postage will move forward. Georgia also faces another suit, brought by the New Georgia Project, on the same postage issue.
These challenges have come mostly from the left, and more are underway in Maine, New Hampshire, Oklahoma and South Carolina, often as part of lawsuits challenging multiple election laws.
Issues have also arisen over receipt deadlines for ballots and whether those received after the polls close must be discarded—often due to a mismatch between state and U.S. Postal Service deadlines. In general, left-leaning groups have sued over Election Day receipt deadlines (see lawsuits in Georgia, Minnesota, Montana, New Hampshire and South Carolina), while right-leaning groups have sued over later deadlines that allow ballots to come in after Election Day in Illinois and Nevada.
Democrats sued Arizona for its lack of a signature cure process, Georgia for providing an insufficient number and distribution of polling places, Montana for prohibiting people from collecting others’ ballots unless the situation falls into one of six exemption categories and Oklahoma for imposing criminal penalties on anyone who helps a voter obtain an absentee ballot.
As part of their challenge to Illinois's decision to mail absentee ballot applications, Republicans also sued the state for giving government employees a paid holiday on Election Day and allowing 16-year-olds to serve as election judges. They are also pursing litigation in Pennsylvania that challenges the state’s new vote-by-mail law, which allows voters to return absentee and mail-in ballots at locations other than a county’s board of elections and disallows poll watchers at ballot return locations.
And, of course, the battle over felon voting rights continues in Florida. After voters approved a ballot measure restoring the right to vote to people with felony convictions, the legislature enacted a law making the restoration of rights contingent upon the payment of fines, fees and restitution. That law in turn prompted a lawsuit arguing that it imposes an illegal poll tax. The issue has been in the courts for months, and a ruling from the 11th U.S. Circuit Court is expected before November.
Despite nearly 6,000 legislative seats up for reelection and the fact that many of the winners will have a hand in redistricting, the story so far of this upcoming election is litigation. "There is an avalanche of voting litigation this year," notes legal scholar Nate Persily, and "we should expect 2020 to break records in terms of the number of election-related lawsuits that are filed."
We don’t know how everything will shake out—and however it goes, it’s bound to be messy—but we’re here to help.
COVID-19 Election Cases from Election Law Blog
Pending Election Law Cases from Moritz College of Law, The Ohio State University
Civil Rights Litigation Clearinghouse, a special collection from the University of Michigan Law School
Mail Voting Litigation in the COVID-19 Pandemic from Healthy Elections