Requiring an excuse for absentee voting. Paying for postage for mail-in ballots. Purging names from voter registration lists. Placing the names on ballots to provide an advantage in so-called “donkey votes.”
These are among the disputes that have generated a record number of lawsuits over the Nov. 3 election. Decisions in the cases will determine who will vote and how. And the political ground is shifting even during the ongoing primaries, as rulings change in the weeks before votes are cast.
“The ease of our ability to cast a vote that will be fairly counted depends in part on where you live,” said Richard Hasen, a law professor at University of California, Irvine and expert on election law. “I think there’s a lot of concern about voting rules, especially given the fact that we’re trying to conduct voting in the midst of a pandemic when the pandemic itself is a major campaign issue and where there is great uncertainty about the future generally.”
The coronavirus pandemic raised the stakes for disputes because restrictions on absentee voting, for example, might discourage people from voting at all. But President Donald Trump has repeatedly blasted mail-in voting, without evidence, for leading to massive electoral fraud and the most rigged election in history. Trump opposed mailing out absentee ballots or applications to all voters, as some states did for the primaries.
The closeness of the 2016 election illustrated why candidates and advocacy groups have become so litigious even before the pandemic. Democrat Hillary Clinton beat Republican Trump by nearly 2.9 million votes out of nearly 137 million cast, according to the Federal Election Commission. But Trump won three key states – Michigan, Pennsylvania and Wisconsin – by a combined 77,744 votes that put him over the top in the electoral college.
Lawsuits are setting the ground rules for this year’s vote. Democrats have fought to ensure mail-in ballots include postage, to count ballots postmarked – rather than received – by election day, to provide voters a way to remedy discrepancies in signatures that are rejected, and to allow community organizations to collect and deliver sealed ballots.
“Frankly this is the thing that keeps me up most at night,” Joe Biden, the presumptive Democratic nominee for president, said during a virtual fundraiser Friday. “Making sure everyone who wants to vote can vote. Making sure that the vote is counted, making sure we’re all trusting in the integrity of the results of the election.”
Republicans have fought to protect the integrity of voting by opposing mailing ballots to all voters, by preventing group collection of absentee ballots and by ensuring registration lists are updated.
“Mail-In Ballot fraud found in many elections,” Trump tweeted July 10. “People are just now seeing how bad, dishonest and slow it is.”
Lawsuits are defining how absentee ballots will be cast, who qualifies and how they can be submitted. The rules could vary between states. And changes from legal decisions could confuse voters and even the election officials working at polling places.
James Gardner, a law professor at the University of Buffalo, said restrictions on absentee voting and other requirements for identification and witnesses could discourage voting.
“Each of these little annoying things probably doesn’t have much of an effect, but cumulatively they may have an effect,” Gardner said. “That’s the strategy – to just heap up a mountain of obstacles. Eventually it gets high enough so that Democrats or Democratic leaning independents will not vote.”
Trump’s campaign and Republican groups have challenged efforts to ease absentee voting, suing Pennsylvania to change voting by mail by warning it could lead to more fraud.
“Election integrity should not be a partisan issue, yet Democrats are consistently trying to cheat and manipulate election rules to undermine safeguards and security around the November election,” said Jenna Ellis, Senior Legal Adviser to Donald J. Trump for President, Inc.
Pandemic contributes to record number of election lawsuits
Candidates, voters, party groups and advocacy groups have filed at least 151 lawsuits related to coronavirus and the election in 41 states through July 15, according to a count by Justin Levitt at Hasen’s electionlawblog.org. The pace is set to eclipse the record number of election lawsuits in 2018, after the number of lawsuits per election cycle tripled in the past 20 years, according to Hasen’s book Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.
The legal challenges come amid growing skepticism about elections. About one in four voters called voter fraud the biggest threat to the election, in an NPR/PBS Marist poll from January. But NPR noted the poll signaled how voters lived in different media bubbles: Voter fraud topped the list of concerns for Republicans and voter suppression was the greatest concern for Democrats.
“Election litigation is going up, regardless of the coronavirus,” Hasen said. “Part of it is this culture of disagreement over voting rules and hyperpolarization of society and unclear voting standards and decentralization.”
Part of the confusion about election rules stems from state and local governance of how elections are conducted. There are about 10,500 jurisdictions nationwide that administer elections, according to the Government Accountability Office.
Voters who don’t follow changes in election law closely might not understand changes in requirements for identification or absentee balloting, or the closure of polling places, experts said. Educating voters is something campaigns often undertake, for lack of government resources, experts said.
“One thing we often forget is that most voters don’t follow this very closely. It’s very easy for them to get confused,” said Mark Jones, head of the political science department at Rice University.
If a court ruling expands absentee voting, for example, local election officials need time to hire staff, mail out ballots and increase their budgets.
“It’s not something that you can do overnight,” Jones said.
Excuses to avoid voting in person the subjects of several lawsuits
Thirty-four states and the District of Columbia allow no-excuse absentee voting. But others require a reason such as a disability to avoid voting in person. Amid the pandemic, lawsuits in states such as Tennessee, Texas and Missouri sought to ease the rules, with mixed results.
The Texas Democratic Party sued the state to allow concerns about coronavirus to justify absentee voting in a place where only voters at least 65 years old can vote without an excuse.
But state Attorney General Ken Paxton said that “fear of contracting (the virus) unaccompanied by qualifying sickness or physical condition does not constitute a disability under the Texas Election Code for purposes of receiving a ballot by mail.” The state Supreme Court supported Paxton’s interpretation.
Democrats then won a ruling in U.S. District Court to distribute an absentee ballot to any eligible voter who wanted one. But the 5th U.S. Circuit Court of Appeals overturned the decision, saying it would be remembered “more for audacity than legal reasoning.” The U.S. Supreme Court refused July 1 to expedite consideration of the case.
Jones, the Rice professor, said the Texas Supreme Court decision allowed younger voters to apply for absentee ballots by checking a box citing a “disability,” if they truly believe voting in person could injure their health. But the excuse is still required.
“The difficulty is trying to educate the voters,” Jones said. “The Supreme Court has left it in the hands of the voter rather than the county to determine whether they have a disability.”
In Tennessee, a local judge reached a different conclusion. The case involved a few voters who have health problems and filed a lawsuit in Chancery Court because “fear of contracting the coronavirus doesn’t meet the criteria to vote by mail due to illness in Tennessee.”
In early June, Davidson County Chancellor Ellen Hobbs Lyle ordered changes to the absentee form so that all 4.1 million voters statewide could vote by mail during the pandemic. She scolded election officials June 11, after forms were changed to segregate pandemic concerns from other excuses for absentee voting including illness and disability.
“Shame on you for not following that procedure and just taking matters into your own hands,” Lyle said. She warned that “there always is the specter of criminal contempt if after today’s orders there’s still noncompliance and there’s disobedience.”
Secretary of State Tre Hargett cites the Chancery Court decision in a message on the state’s election website saying “if you are a registered voter and do not wish to vote in-person due to the COVID-19 situation, you are eligible to request an absentee ballot by mail.”
Witness requirement for absentee ballots draws challenges
Beyond disputes over who can request an absentee ballot, lawsuits in at least eight states have challenged requirements that absentee voters have witnesses confirm their ballots.
Minnesota requires the witness to be another registered voter, a notary or somebody who takes oaths to witness and sign an absentee ballot.
“The challenged provisions cannot survive judicial scrutiny under any circumstances,” said the lawsuit from Minnesota Alliance for Retired Americans Educational Fund and several voters. “In the context of a pandemic these burdens become entirely unjustifiable, requiring these voters to risk their health to obtain another registered voter’s or notary’s signature, or forfeit their right to vote.”
Minnesota Secretary of State Steve Simon waived the witness requirement for the Aug. 11 primary. But the dispute lingers for the Nov. 3 general election.
The tables can turn quickly.
Alabama postponed the March 31 Republican Senate runoff between former Attorney General Jeff Sessions and former college football coach Tommy Tuberville until July 14 because of health concerns.
Between those dates, U.S. District Judge Abdul Kallon ordered the state June 15 not to enforce several of its rules for the runoff, including requiring a notary or two witnesses to sign an absentee ballot and requiring a copy of photo ID for absentee voting. But the U.S. Supreme Court suspended Kallon’s order July 2 until the case is argued at the 11th U.S. Circuit Court of Appeals.
Voting by mail comes under attack
Five states – Colorado, Hawaii, Oregon, Utah and Washington – hold elections entirely by mail. In addition to Utah, another dozen states with Republican governors include voting by mail as part of no-excuse absentee voting. But Trump has claimed mailed ballots could lead to “massive election fraud” this year.
In West Virginia, postal carrier Thomas Cooper pled guilty in June to election fraud and injuring the mail after admitting he changed the party affiliation on multiple ballots from Democrat to Republican.
In California, the Republican National Committee and the advocacy group Judicial Watch filed separate lawsuits to block Gov. Gavin Newsom’s executive order to send absentee ballots to every active registered voter in the state. The state has allowed counties to hold all voting by mail, but only 15 of the 58 counties did so for the March 3 primary.
“Newsom’s ‘vote-by-mail’ mandate must be halted now – as mailing millions of ballots to dirty voting lists in violation of the law could cause a constitutional conflagration over the results of the 2020 elections,” said Judicial Watch President Tom Fitton.
But both groups dropped their lawsuits July 9, after state lawmakers approved legislation to mail ballots to all voters.
Newsom had argued that absentee voting was an important option amid a pandemic. The share of ballots submitted by mail grew from 59% in 2016 to 72% for the 2020 primary, according to the state.
The pandemic and the public interest “strongly favor providing more ways for Californians to vote, not fewer,” Attorney General Xavier Becerra said.
GOP files suit to fight ‘ballot harvesting’ in Pennsylvania
Trump’s campaign, the Republican Party and four Pennsylvania members of Congress sued June 29 to change how the state collects and counts absentee ballots.
The lawsuit argued that 67 county election boards and Secretary of State Kathy Boockvar “have inexplicably chosen a path that jeopardizes election security and will lead – and has already led – to the disenfranchisement of voters, questions about the accuracy of election results, and ultimately chaos” ahead of the Nov. 3 general election.
About 20 counties allowed voters to drop off completed ballots at collection sites without handing them directly to county elections offices, according to the lawsuit. The Trump campaign wants to prevent counting ballots that lack secrecy envelopes, or that have markings identifying the voter or party. The Trump campaign also wants to allow poll watchers to monitor vote counting outside their home counties.
The lawsuit claims there was a “hazardous, hurried and illegal” roll-out of mail-in voting during the primary that gives “fraudsters an easy opportunity to engage in ballot harvesting, manipulate or destroy ballots, manufacture duplicitous votes, and sow chaos.”
“Shifting from an absentee voting system to one that pushes unmonitored vote-by-mail creates opportunities for fraud, and encourages ballot harvesting where paid political operatives try to collect and deliver loose ballots,” said Ellis, the legal adviser to Trump’s campaign.
The head of the Pennsylvania Democratic Party called the Trump lawsuit an effort to suppress votes as a campaign tactic, noting Democrats far outpaced Republicans in getting their voters to apply for mail-in ballots ahead of the primary. Republican majorities in the state legislature expanded mail-in options last year, said Sincere Harris, executive director of the state Democratic Party.
“This voter suppression lawsuit is nothing but a cynical and desperate attempt to silence the voices of Pennsylvanians, because they know that the easier it is for everyday people to vote, the more likely it is that they will lose,” Harris said.
In response to the Trump lawsuit, the party and a group of Democratic lawmakers filed a lawsuit in Commonwealth Court to loosen rules for November voting. The lawsuit seeks to extend the deadline for mailed ballots to be postmarked rather than received on election day. The lawsuit also seeks to allow counties to collect mail ballots at drop boxes and to give voters a chance to fix mistakes on mail ballots.
“The stakes in this forthcoming election could not be higher,” the lawsuit said. “And any uncertainty or other inconsistency creates heightened space for mischievous havoc and genuine concern.”
Experts: Election fraud is rare, but still a risk
Experts including Hasen have argued that mail-in ballot fraud is rare and a small risk compared to the health risks this year.
“The principal Republican argument is that mail ballots are more vulnerable to electoral fraud, which is technically correct,” Jones said. “It’s just to date in the United States, we haven’t had many organized efforts to exploit mail ballots to the full potential.”
One example erupted in a special election May 12 in Paterson, N.J. The election was held entirely by mail because of the pandemic. Under state law, voters are supposed to mail absentee ballots, put them in designated drop boxes or bring them to the county board of elections. Anyone who completes a certification can become a “bearer,” who can collect and deliver ballots for three other voters.
New Jersey Attorney General Gurbir Grewal announced charges last month against four men alleging fraud in casting mail-in ballots, among other charges. Postal inspectors found hundreds of ballots in a local mailbox. Councilman Michael Jackson was charged with procuring multiple ballots that weren’t his, including at least one that was unsealed. Alex Mendez, a councilman-elect, was charged with collecting ballots for delivery and submitting registration applications he knew to be false.
Grewal said the charges sent a clear message: “If you try to tamper with an election in New Jersey, we will find you and hold you accountable.”
But Trump found an even broader threat from mail-in ballots as he highlighted the Paterson case. He argued against governors sending out millions of absentee ballots because of potential fraud.
“They’re going to be rigged,” Trump said in Atlanta on July 15. “They’re going to be a terrible situation.”
A rare example of federal ballot harvesting upended a 2018 House race in North Carolina. The state elections board ordered a new election in 2019 after refusing to certify the narrow lead that Republican Mark Harris held over Democrat Dan McCready in unofficial results.
One of Harris’ political operatives, Leslie McCrae Dowless, allegedly collected absentee ballots from voters in violation of state law and forged signatures, witnesses told the elections board. Dowless was indicted by a Wake County grand jury and charged with possession of absentee ballots and felonious obstruction of justice.
GOP Rep. Dan Bishop eventually won the seat in a special election.
Groups push for purging voter lists of ineligible names
Another contentious facet of elections deals with updating registration lists when voters die or move. Judicial Watch sued Pennsylvania in an effort to remove ineligible voters from the rolls in three populous counties: Bucks, Chester and Delaware. The state has 800,000 inactive registrations, according to the lawsuit.
“Dirty voting rolls can mean dirty elections – that’s one reason why we’re going to court to force Pennsylvania to follow federal law to clean up its voting rolls,” Fitton said.
Kathy Bookvar, the secretary of the commonwealth, replied that Pennsylvania makes a reasonable effort to remove the names of ineligible voters by reason of death or change of address.
Several voting-rights groups including state chapters of Common Cause and the League of Women Voters, intervened in the case.
“We have serious concerns that eligible voters in these three counties could be illegally purged from voter registration rolls,” said Adriel Cepeda Derieux, an attorney with the ACLU’s Voting Rights Project.
Requirement of voter ID at the polls raises objections
Voter identification remains a pesky legal issue.
In Kentucky, several groups and voters sued in U.S. District Court to overturn a law that requires a voter to include a copy of a photo ID with each application for an absentee ballot, or to sign an affirmation in front of an election officer.
One of the plaintiffs, Jeffrey Cosby, 64, of Ashland, has heart, kidney and gallbladder problems and would need his wife to make a copy of his driver’s license, which they want to avoid.
“Regardless of whether government offices and businesses reopen soon, all Kentuckians will still face unacceptable risks to vote,” the lawsuit said.
Kentucky Secretary of State Michael Adams denied that the photo ID law placed an unreasonable burden on voters. The case is unresolved.
In Wisconsin, a federal case challenged more than a dozen provisions for conducting elections, including voter identification. In a ruling June 29, a three-judge panel of the 7th U.S. Circuit Court of Appeals scaled back early voting and blocked absentee ballots returned by email or fax – but allowed expired student IDs to continue to be used for voter registration.
“On the positive side, the judges ruled that expired photo student IDs can be used as proof of identity to vote,” said Jay Heck, the executive director of Common Cause in Wisconsin, who called the state’s rules among the most restrictive in the country.
Who pays for absentee ballot postage?
The cost of postage for absentee ballots became the subject of litigation in a half-dozen states even though courts have refused in the past to force states to cover the cost. Voters have argued that requiring postage for absentee ballots amounts to a poll tax, forbidden under the Constitution and the Voting Rights Act.
The South Carolina Election Commission reached an agreement July 8 in a U.S. District Court case to provide prepaid postage for absentee ballots in the November election. Marc Elias, one of the lawyers who brought the case on behalf of Democratic Party groups and voters, estimated it could save voters more than $1 million.
But the results were different in other southern states, where the cost was considered negligible.
In Georgia, the Black Voters Matter Fund argued in a federal lawsuit that while the wealthy might not miss 55 cents for a stamp, lower-income voters could find the cost a burden and younger voters don’t use stamps because of online transactions.
“I believe that making voters buy and use their own postage stamps is a poll tax, which is deeply offensive to me as someone raised in the civil rights movement,” said Marilynn Winn, 59, of Fulton County. She doesn’t trust the mail system, but high blood pressure puts her at greater health risk for voting in person.
Georgia Secretary of State Brad Raffensperger called postage, gas or rideshare fares incidental to voting and he denied that they are poll taxes.
“Thus, if there is any burden at all, it is quite minimal and, indeed, no different than it has been for decades,” he said.
U.S. District Judge Amy Totenberg declined May 15 to force Georgia to cover postage for the June 9 primary, calling proposed remedies “not realistic or implementable” after tens of thousands of ballots were already mailed out. She cited an 11th Circuit decision that refused to force neighboring Florida to pay for postage for absentee ballots.
“Requiring a voter to pay for postage to mail a registration form or ballot to a Supervisor of Elections is not unconstitutional or otherwise unlawful,” U.S. District Judge Robert Hinkle wrote in the Florida case that the 11th Circuit upheld.
No vote for Florida felons with unpaid fines
The U.S. Supreme Court refused Thursday to hear a case covering nearly a million potential voters in Florida who argued they should be allowed to vote after serving felony sentences even if they can’t pay their fines and restitution.
The case will be argued next month in the 11th U.S. Circuit Court of Appeals. But voting-rights groups had urged the high court to hear the case faster because of a voter-registration deadline Mondayfor the primary election Aug. 18.
“Under this scheme, nearly a million otherwise-eligible citizens cannot vote unless they pay money,” Justice Sonia Sotomayor said in opposing the unsigned rejection of the case, calling the state law a “voter paywall.”
Most states restore felons’ right to vote after their sentences and parole are complete. Florida is among 11 states with the most restrictive rules, according to the National Conference of State Legislatures. Florida adopted a state constitutional amendment in 2018 to allow felons to vote after completing their sentences. But a state law required the felons to pay outstanding fines and restitution before voting.
The voters and their advocates contend the state law creates a “wealth barrier” to voting for felons who are unable to pay fines and restitution. They argued that the appeals court decision “creates chaos and confusion about who can and cannot vote, where a wrong guess creates the risk of criminal prosecution.”
The state responded that all felons are required to pay fines and restitution regardless of their wealth or indigence, so the voting law isn’t discriminatory.
“The State and all Floridians will be irreparably harmed if hundreds of thousands of ineligible voters take part in the upcoming elections,” Charles Cooper, a lawyer for the state, argued.
Who’s on first?
A couple of federal lawsuits sought to change the order of candidates on ballots in Arizona and Florida because of the traditional advantage that the top slot conveys. But federal judges rejected both requests.
In Arizona, names rotate on primary ballots because of a state court decision that noted the top position has “a distinct advantage.” But for general elections since 1979, ballots are topped by candidates in the same party as the governor who last won the county.
Democratic Party groups and voters challenged the process that they argued tended to benefit Republicans by 2.2% to 4.4%.
But U.S. District Judge Diane Humetewa dismissed the case after finding that the plaintiffs hadn’t proved that courts should resolve the issue, and hadn’t shown they faced an undue burden.
Florida got the same result at a federal appeals court.
U.S. District Judge Mark Walker had called the argument that ballot positioning should remain in legislative hands “hogwash.” He found the 1951 Florida law unconstitutional for putting candidates of the same party as the governor first on the ballot. But he didn’t dictate how to fix the problem.
The governor has been Republican for 20 years and the advantage to the positioning is estimated as high as 5.4%, according to the lawsuit from Democratic Party groups and voters. The bias is called a “windfall vote” or “donkey vote,” the lawsuit said.
“No matter the trappings defendants try to drape it in, this donkey is a donkey, not a racehorse,” Walker wrote.
But a three-judge panel of the 11th U.S. Circuit Court of Appeals overturned Walker’s decision in April. The panel found that the Democratic groups lacked the standing to sue and hadn’t proved they were injured, leaving the District Court “powerless to provide redress.”