This presidential election is already the most litigious in American history — and that’s before the first vote has been counted.
Hundreds of lawsuits have been filed on expanding early voting, complaints that Homeland Security Department agents are intimidating get-out-the-vote efforts and other battles. Many of those cases are swiftly funneling their way toward the Supreme Court.
On a single day last week, the Trump campaign announced one lawsuit to challenge ballot counting in Nevada and lost another lawsuit at the Pennsylvania Supreme Court over whether ballots with mismatched signatures will be counted.
Meanwhile, a Texas appeals court ruled that counties could operate multiple ballot drop-boxes, and in Minnesota the attorney general announced a deal to prevent a security company from deploying armed personnel to the polls.
“Usually it’s Election Day,” said Josh Blackman, a professor at South Texas College of Law. “I don’t remember so much litigation over pre-election skirmishing.”
From one corner of the country to the other, the battles over who can vote and how they will cast ballots are just as important as the fight for the White House.
Democrats are generally pushing for the widest voting possible, demanding mail-balloting, extended windows to cast and count those ballots and fewer fraud checks such as signature-matching or witnesses to verify that ballots are cast legitimately.
The Trump campaign and Republican-led states are pushing to maintain fraud controls, and the president has not been shy about his thoughts on mail-in voting.
The parties’ divisions make sense given the math of the electorate.
Republicans are generally more likely to turn out than Democrats, which is why polling of likely voters usually has Republican candidates performing better than polling of registered voters. So if more people are voting, the results are likely to be better for Democrats.
Ballotpedia.com, a massive compendium of election action, is tracking more than 400 lawsuits filed this year across 46 states, the District of Columbia and Puerto Rico.
About 80 deal with candidates trying to get on ballots, and 30 cases deal with measures on ballots. Other lawsuits are over in-person voting, postponements and the like. But the biggest chunk — about 230 cases — involve mail-in voting, said Jerrick Adams, Ballotpedia’s ballot expert.
“As we’ve moved through the election cycle, we’ve seen the focus of these cases shift accordingly,” he said. “Early in the cycle, challenges to eligibility criteria were the most common subject. Now that we’re approaching Election Day, the focus has shifted to return and receipt deadlines.”
Some lawsuits go well beyond that.
Mia Familia Vota Education Fund, an immigrant rights group, filed a convoluted challenge last week in federal court in the District of Columbia accusing President Trump, Attorney General William Barr and acting Homeland Security Secretary Chad Wolf of “violently suppressing opposition” by deploying officers to protect federal property from rioters.
Mia Familia says some demonstrators are supporting voting so the deployment of federal troops violates voting rights. The group has sought a temporary restraining order that, among other moves, would gag Mr. Trump’s Twitter account and order him to stop questioning vote-by-mail.
The morass of legal battles could confound voters.
Take Houston, where local election officials announced that they would deploy multiple ballot drop-off boxes for the county of nearly 5 million. Gov. Greg Abbott, a Republican, then issued a directive limiting counties to a single box.
A federal district court ruled that the governor’s limit was unconstitutional and restored the multiple drop boxes. A federal appeals court then blocked the ruling and restored the governor’s limit.
A state judge then ruled Mr. Abbott’s move illegal, saying it went beyond his powers as governor. That decision was upheld Friday by a state appeals court. The case could reach the state’s Supreme Court.
Those justices have been drawn into another major legal battle over the state’s absentee voting law. Texas is one of only a handful of remaining states that require a reason for voters to cast an absentee ballot. Disability, age and travel are valid excuses.
Democrats challenged that requirement, arguing that fear of contracting COVID-19 is a disability so every voter should be able to cast absentee ballots. The state’s high court rejected the challenge, arguing that state law clearly intended different standards and to allow anyone to claim disability defeated the purpose of that law.
The Texas high court is controlled by Republicans.
Republicans, or conservatives in states where elections are nonpartisan, also hold the numerical edge on the top courts in Arizona, Florida, Michigan, Ohio and Wisconsin. Democrats hold the edge in North Carolina and Pennsylvania, which has joined Texas as one of the key legal battlegrounds.
The Keystone State justices had already approved an extended deadline for receiving and counting mail-in ballots, ruling that they can be received up through three days after Election Day as long as they are postmarked by Nov. 3 — or even if the postmark is illegible or doesn’t exist.
On Friday, the justices weighed in with a new decision: that election officials must accept mail-in ballots even if the signatures on them don’t match those on file for a voter.
The justices said nothing in state law requires signatures to be verified, so if election officials are satisfied with the vote save for the signature, they cannot reject it.
Former House Speaker Newt Gingrich took to Twitter on Friday to complain about the state of affairs in Pennsylvania voting.
“Pennsylvania Democrats are methodically changing the rules so they can steal the election,” he wrote. “It is amazingly open, dishonest, ruthless and will work unless the state (especially Philadelphia) is flooded with law enforcement.”
But the state ruling extending the ballot deadline got a blessing last week from the U.S. Supreme Court, where a 4-4 tie left the state ruling in place.
Pennsylvania Republicans filed a petition late Friday with the high court, apparently hoping for a new hearing after the expected addition of a ninth justice. Judge Amy Coney Barrett could be sitting on the Supreme Court as early as this week.
Courts are supposed to consider what is known as the Purcell Principle, named after a 2006 case in which the Supreme Court ruled that judges should try to avoid making last-minute changes to voting procedures.
That came into play during this year’s primaries, particularly in a case out of Wisconsin, where Democrats wanted to expand the deadline for casting absentee ballots. A lower federal court agreed but the justices, in a 5-4 ruling, blocked that, ruling it would “alter the nature of the election.”
Chief Justice John G. Roberts Jr. has been the key vote, siding with the court’s three Democratic-appointed justices on the Pennsylvania deadlines case but with the court’s other Republican appointees in requiring witness signatures for absentee ballots in South Carolina.
“At every juncture, I think the court is just going to maintain the status quo. That’s their M.O.,” Mr. Blackman said. “The court generally doesn’t like to change things so close to an election.”
That means, though, that the court is making major rulings often in short one-paragraph orders.
The effect is that witness signatures have been upheld by some courts and struck down by in others, and ballot deadlines have been altered by some judges and left untouched by others.
As long as the Supreme Court doesn’t take the reins, the conflicting rulings will loom over elections, potentially for years to come.
“Once the dust has settled, we’re going to have a rather massive number of federal court decisions, a significant number of which invoke the Purcell principle,” said Ballotpedia’s Mr. Adams. “These cases will have some precedential impact on the interpretation and application of that doctrine in future election cycles.”
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