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Elections Q&As for Lawmakers: What Actions Might Draw Election Lawsuits in the Coming Year?

As the U.S. gears up for the 2024 elections, litigation surrounding absentee ballots, in-person voting, transparency in election results and more remain looming concerns for states.

By Lesley Kennedy  |  February 28, 2024

About this series: NCSL hosted legislators and legislative staff in December 2023 to answer common questions surrounding election processes and options, with an eye toward bill drafting in 2024 and beyond. Experts delved into topics ranging from absentee and mail voting and the role of poll watchers to technology and maintaining clean voter rolls. State Legislatures News broke down the questions and answers to help inform lawmakers on the intricacies of elections. Check Elections Q&As for Lawmakers often for more information.

The Expert: Jason Torchinsky, partner, Holtzman Vogel Law Firm, Washington, D.C.

Absentee ballots, in-person voting, transparency in election results. As the United States gears up for the 2024 elections, litigation surrounding these hotspots and more remain looming concerns for states.

Torchinsky, who specializes in campaign finance, election law, lobbying disclosure and issue advocacy groups and has served as lead counsel in many litigation matters dealing with First Amendment freedoms, election law and redistricting issues, stresses the need for states to adapt to the increased volume of absentee voting, a practice that has surged since its inception decades ago.

And one significant issue he points to is absentee ballot request deadlines.

"If your absentee ballot request deadline can be received by mail the day before Election Day, what are the odds that voter's actually going to get their ballot overnight from the postal service?" he posits, urging states to reconcile their deadlines with postal service delivery standards to avoid unrealistic expectations for voters.

Top Two Takeaways

  • Adjusting absentee ballot request and return deadlines to better align with postal service delivery standards is crucial to avoid disenfranchising voters and prevent litigation.
  • States may consider legislative measures to improve transparency and the timely reporting of election results. This includes providing more pre-processing time for absentee ballots to expedite result tabulation and offering regular updates on outstanding ballots

Torchinsky also emphasizes the importance of sufficient pre-processing times for absentee ballots. "The more time you allow for pre-processing, the timelier we're going to have election results, which will help increase confidence in elections," he says.

Regarding the contentious topic of absentee ballot return times, he notes the uncertainty they can inject into close races. "I will tell you the absentee ballots that have to be in by Election Day provide more certainty to the process," he says, acknowledging the debate overextending deadlines.

In-person voting issues, such as allegations of long lines and unequal allocation of resources, are also top of mind for election officials. Torchinsky highlights the potential for perceived unfairness when polling hours are extended in some areas but not others.

"There's an unfairness and a perception of unfairness when these things happen," he says, suggesting that states consider legislation to address such disparities.

Transparency and timely reporting of results are also critical factors in maintaining public trust in the electoral process, according to Torchinsky, who says delays in ballot counting can sow doubt among voters.

Lastly, Torchinsky says uniform procedures ensure all voters have equal protection and access and reiterates the role of pre-processing time in delivering swift and reliable election results.

"The more time that legislators allow their local election officials to do this, the faster we're going to have election results," he says.

Lesley Kennedy is NCSL’s director of publishing and digital content.

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