If the way voters cast ballots in several battleground states this year is to be decided by judges, the next few weeks is crunch time.
Several major courts cases over voting in multiple states have trials set in September or may have decisions soon, spotlighting legal disputes among state elections officials, Republicans, Democrats and voting access advocacy groups in the next few weeks.
With 10 weeks until Election Day and ballots in several states going out well before then, the clock for courts to decide is already ticking loudly. September brings major court hearings and possible decisions on voting access disputes in large states like Texas, Pennsylvania and Minnesota, with some voting rights groups involved in trials across the country on the same days or within a week.
How to vote
Generally, Democrats and progressive groups have brought many of the suits and argued to expand access to voting, especially mail-in voting during the pandemic. President Donald Trump has made a litany of false claims about mail-in voting, and his campaign and the Republican Party have often been opposed to these suits and argued in court, generally, that rules for delivering ballots and counting votes should be stricter to prevent fraud.
“This is probably the busiest time,” Sophia Lin Lakin, deputy director of the American Civil Liberties Union’s voting rights project, told CNN recently, describing a “flurry” of court activity lined up in September that’s keeping election-focused lawyers busy. “You need a certain amount of time for these cases to play themselves out,” she said.
On Monday, the Fifth Circuit Court of Appeals will hear arguments on whether Texas can limit access to mail-in voting depending on a voter’s age.
Three days later, Minnesota’s highest court will consider the signature requirements for absentee ballots.
In other key states, rulings could come any day. In Florida, a federal appeals court is poised to decide questions over access to voting for felons, after hearing arguments in mid-August. And a federal court in Michigan is still considering what to do about a unique state law, which Democrats oppose, that prohibits voters from using ride-share services like Uber or Lyft to get to polls.
In Pennsylvania, elections officials have asked the state’s Supreme Court to quickly decide intense legal disputes between Republicans and Democrats over mail-in voting procedures and rules for poll-watchers. “Both voters and election officials need clarity on these critical election issues as soon as possible,” Pennsylvania’s Secretary of the Commonwealth Kathy Boockvar wrote in a filing last month, voicing a reality that’s dawning in many disputes.
In many of the cases, court decisions could impact tens of thousands of voters – if not more.
“This year is on steroids,” said Danielle Lang, co-director of the voting rights and redistricting section at the Campaign Legal Center, a litigation-focused group. Lang had argued before the federal appeals court in Florida, after the state restored voting rights to felons. CLC and other organizations have argued to lift a condition that forces people with felony convictions to pay court and other fees before they can be eligible to vote.
Hundreds of cases
The crucial moment for voting litigation comes this month after several progressive and voting access groups, as well as Democratic Party backers, built portfolios of dozens of lawsuits over the past few years seeking to make voting easier or to expand the voter pools. When the coronavirus pandemic shut down the country in March, the court activity hit a new level, with many state governments setting new plans for how people could vote safely, especially by not going to the polls. That ushered in the debate over mail-in voting, also called absentee voting.
“When this all started, we thought this would be extremely important for everyone to have the option to vote by mail, and for that method to be as easy as possible and safe as possible. So there were tranches of cases in that world,” Lakin of the ACLU said.
Overall, there are more than 200 suits related to the provisions for voting during the pandemic, spanning 43 states, the District of Columbia and Puerto Rico, according to Justin Levitt, a Loyola Law School professor who is tracking the suits. The Civil Rights Litigation Clearinghouse at the University of Michigan Law School counts a similar number of court cases involving coronavirus, with many of them related to the election.
The full landscape of voting lawsuits grapples with a variety of ways voters can cast ballots, and the exact details of the cases differ state to state and even case to case. Some cases relate to who can vote by mail – everyone or just people with special absentee voting reasons. Other cases center around how those ballots are counted – if they need to be sealed inside two envelopes, attested with a particular signature, or who may deliver them to elections officials – and when, if sent by mail, they must be postmarked or received by an election office.
Many cases are in state courts, testing the interpretation of state laws. In some states, a federal case will question whether voting laws are constitutional, and at times, those cases run parallel to the state-court fights.
“You’ll see five cases in a state,” Lakin said – a strategy she called “seeing what will stick.”
Pennsylvania and Ohio provide recent prominent examples, where multiple state and federal cases raise questions over the use of drop boxes, the alternative collection point to mailing a ballot for absentee voters. Trump has tweeted his opposition to drop boxes, making false claims about their safety.
Democratic strategy and the GOP
Priorities USA, a group that’s funded major litigation efforts for the Democratic Party and is spending more than $30 million in court, is involved in cases in several states. Led by well-known attorney Marc Elias, the Democrats’ cases often address what they call “four pillars” of voting during coronavirus. Those cases seek to provide free or prepaid postage for mail-in ballots, to advocate for elections officials to count ballots postmarked on Election Day (and count them if they arrive after), to allow for third parties to help collect absentee ballots, and to reduce requirements for signatures on mail-in ballots that would allow officials to discard more of them.
Aneesa McMillan, a Priorities’ spokesperson focused on voting rights, called the combination of the pandemic and recent questions about the US Postal Service’s reliability a “perfect storm” for voter suppression.
She acknowledged how the Democrats started bringing cases as early as 2015 that could set the terms for the 2020 election. The Democrat-brought cases vastly outnumber the times the Trump campaign and the Republican Party have sued over voting, though the conservatives have popped up in court in several lawsuits to voice their stance.
“They know we are working hard. It’s kind of a chase. They pop up wherever we may be doing our work,” McMillan said last week.
So far, among the hundreds of cases in multiple states, the Trump campaign has three major federal lawsuits – in New Jersey, Nevada and Pennsylvania – over voting procedures.
Trump campaign spokesperson Thea McDonald, when asked which election-related court cases the campaign views as key in the coming weeks, responded, “Every case we’re involved in is important in that effort.”
New round of cases
New lawsuits are being filed in waves each week, and in recent weeks, progressive groups have filed challenges that have responded to Trump’s focus.
The political debate over slow mail delivery created an inflection point. Twenty-four Democratic state attorneys general sued the Postal Service and Trump administration in multiple federal courts, and those cases are in their beginning stages. “There is no time to waste,” US District Judge Stanley Bastian remarked at a hearing last week in one of these suits, led by Washington state.
In another novel legal battle, Rock the Vote, Voto Latino, Common Cause and other groups sued the Trump administration over its executive order pushing back on social media companies that censor disinformation. The executive order is an election issue because Twitter, for instance, has put disclaimers on false tweets from the President that could scare voters into avoiding mail-in voting or submitting their ballots at drop boxes instead of through the mail.
The late blooming cases – and even those that have been active for months – may not all ultimately come down to judges. Sometimes, the strategy is to use the pressure in court to force a settlement. Settlements in several states, like Virginia and Arizona, have ended some court fights and determined how voting will work.
“Even if we do get a settlement or something that works out, there’s another state,” McMillan said.