All posts by Justin Levitt

The list of COVID-19 election cases hits 325

October 30, 2020, 9:21 amcourt decisions, election administration, election law and constitutional law, Supreme Court, The Voting WarsJustin Levitt

Justin here. I’m tracking the litigation over election issues related to COVID-19 … and the list of cases just hit 325. (The Stanford-MIT Healthy Elections Project also has a really useful sortable database of these cases, with more info. And Josh Douglas is separately tracking just the federal appeals, to see how they shake out.)

A reminder: the number in each state isn’t necessarily a good indication of the contentiousness of the issues: any individual case may be a good case or a shoddy one, or a “big” case or a “small” one — and some can be both at the same time. (The Eighth Circuit’s ruling Rick rightly called “outrageous” is probably a small case with respect to the number of ballots it will ultimately impact, and a giant case when it comes to the legal questions at issue). And some of these cases are essentially repeat claims of others. But overall, that’s still an awful lot of legal paper.

There’s an upside to some of this: with litigation brought in March, April, or May, as the pandemic reached the primaries, we got resolution of some pretty contentious issues in June, July, August, September. and October. That’s less to fight about in November. Which is good for everyone. There are some new cases, mostly asking for increasingly localized relief, and a few bomb-throwers that will be tossed out of court. Most of the cases are now done.

These are just the cases I know of — I’m sure I’m missing some. State court cases are particularly difficult to track. I think that five states have still been spared so far (Kansas, Nebraska, Washington, West Virginia, and Wyoming) … but if you know of a COVID-related election case I’m missing here, please let me know.

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The list of COVID-19 election cases hits 275

October 6, 2020, 1:49 pmelection administration, election law and constitutional law, Election MeltdownJustin Levitt

Justin here. I’m tracking the litigation over election issues related to COVID-19 … and the list of cases just hit 275. (The Stanford-MIT Healthy Elections Project also has a really useful sortable database of these cases, with more info.)

A reminder: the number in each state isn’t necessarily a good indication of the contentiousness of the issues: any individual case may be “big” or “small” — or a good case or a shoddy one — and some of these cases are essentially repeat claims of others. But overall, that’s still an awful lot of legal paper.

There’s an upside to some of this: with litigation brought in March, April, or May, as the pandemic reached the primaries, we got resolution of some pretty contentious issues in June, July, August, September, and squeaking into October. That’s less to fight about in November. Which is good for everyone. There are some new cases, mostly asking for very tailored relief, and a few bomb-throwers that will be tossed out of court. Most of the cases are now done.

These are just the cases I know of — I’m sure I’m missing some. State court cases are particularly difficult to track. I think that five states have been spared so far (Kansas, Nebraska, Washington, West Virginia, and Wyoming) … but if you know of a COVID-related election case I’m missing here, please let me know.

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Wisconsin GOP tries to stop Racing Sausages from promoting civic participation

September 30, 2020, 11:21 amcampaign financeJustin Levitt

The Wisconsin GOP sent a letter yesterday claiming that it would be improper “electioneering” and/or vote buying for MLB and the Brewers’ Racing Sausages to encourage early voting.

The legal citations in the letter seem … off.

The assertions with respect to campaign finance seem … at odds with the rather emphatic views of the Wisconsin GOP in particular on uninhibited election-related spending as a core component of free speech.

But I’m most baffled by the political calculation. Picking a losing legal fight with MLB and the Racing Sausages seems like an odd late-September strategy.

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PA legislators ask SCOTUS to stay mail deadline ruling

September 29, 2020, 7:37 amabsentee ballots, election law and constitutional law, Elections ClauseJustin Levitt

(Cross-posted at Take Care)

The state Senate leadership in Pennsylvania, intervenors in litigation over the deadline to receive ballots cast by mail, has just asked the U.S. Supreme Court to stay a Sept. 17 decision of the Pennsylvania Supreme Court. The Pennsylvania Supreme Court ruled that ballots must be counted if they’re received by Nov. 6, unless a preponderance of the evidence shows that those ballots were mailed after Election Day. The stay request asserts that this decision violates the federal law setting November 3 as Election Day, and also that it violates the Elections Clause of the Constitution.

That latter claim is worth a moment. The Elections Clause says that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . ,” unless Congress says otherwise. The U.S. Supreme Court has consistently interpreted this delegation to the “Legislature” to mean a delegation to the state lawmaking process (see, e.g., the 2015 opinion by Justice Ginsburg upholding Arizona’s independent redistricting commission).

The stay application filed at the U.S. Supreme Court claims that the Pennsylvania Supreme Court “has substituted its will for the will of the General Assembly, and this substitution usurps the authority vested in the General Assembly by the Elections Clause.” The stay application also claims that “denying the requested stay will have a cascading effect on th[e] Court’s docket,” with a lot of other cases in the hopper.

Those are big claims. But I’m not at all sure that the frame is right … and I’m quite sure that granting the stay on Elections Clause grounds would have a much larger and more disruptive cascading impact.

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The list of COVID-19 election cases hits 250

September 21, 2020, 10:46 amcourt decisions, election administration, election law and constitutional law, Election MeltdownJustin Levitt

Justin here. I’m tracking the litigation over election issues related to COVID-19 … and the list of cases just hit 250. (The Stanford-MIT Healthy Elections Project also has a really useful sortable database of these cases, with more info.)

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The list of COVID-19 election cases hits 200

August 16, 2020, 1:54 pmelection law and constitutional law, election law biz, Election MeltdownJustin Levitt

Justin here. I’m tracking the litigation over election issues related to COVID-19 … and the list of cases just hit 200. 202, actually.

The number in each state isn’t necessarily a good indication of the contentiousness of the issues: any individual case may be “big” or “small” — or a good case or a shoddy one — and some of these cases are essentially repeat claims of others. But overall, that’s still an awful lot of legal paper for mid-August.

These are just the cases I know of — I’m sure I’m missing some. State court cases are particularly difficult to track. I think that seven states have been spared so far (Delaware, Kansas, Nebraska, Vermont, Washington, West Virginia, and Wyoming) … but if you know of a COVID-related election case I’m missing here, please let me know.

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The list of COVID-19 election cases

June 11, 2020, 5:34 pmelection administration, Election Meltdown, The Voting Wars, votingJustin Levitt

Updated as of December 23: the post below lists 335 cases in 45 states, DC, and Puerto Rico.

AND ANOTHER UPDATE: I’ve joined forces in this enterprise with the Stanford-MIT Healthy Elections Project, and a team led by Zahavah Levine. The Project is an enormous resource for observers and officials generally. And the COVID-19 election litigation tracker has more information on each case, in an amazing interface and with an even more robust back-end database, putting case information in a more searchable, sortable format.

I’ll also continue to maintain the list below for those who find the flat-format summary useful, but you’ll be able to find all of the cases in both locations, with info updated for the duration of the pandemic. Which we can all hope will be over soon.

(A small note on the counting: here, each lawsuit filed is a separate “case”; there, each court is separately tallied. So a suit in trial court that was then appealed is tallied as one “case” here and two “cases” there. But it’s the same substance regardless.)

* * *

Hi, all. Justin here. A few months ago, I set out to try to follow a few lawsuits brought over election practices in light of COVID-19, to see if I could spot some patterns (like Rick). Then I kept adding to my working list. And I eventually got to a place where I’ve tracked quite a lot of them. (And I’m 100% sure I’m missing some.)

As a resource for others looking for trends, I’ll try to keep this post periodically updated, as new cases come in and old ones get resolved. As anyone who’s tried this knows, it can be particularly difficult to track cases in state court — so if you know of a case (or a dispositive result) not captured or linked on this list, please just let me know and I’ll happily add.

The post below delineates the state, the court, a shorthand indication of the issue(s) involved, and the date (and where I can, link) for decisions.

[Note: this list does not purport to be a list of all current litigation over election issues. There was plenty of litigation before COVID-19 (some of which is still unresolved — indeed, some of which has been unresolved for years), and there have been some recent cases that don’t involve the pandemic. Election Law @ Moritz has continuing updates of the major election cases, COVID-19 and not; the Michigan Civil Rights Litigation Clearinghouse has continuing updates of the major COVID-19 cases, election and not. This list tries to capture all of the COVID-19 election cases, “major” and not. Also, thanks to Eda Harotounian, Erika De La Torre, David Nir, Richard Winger, and several readers for the assist on some of the details below.]

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Vote-by-mail and voter-registration

March 16, 2020, 1:44 pmabsentee ballots, voter registrationJustin Levitt

In normal times, I think of absentee voting as an essential option, but I’ve not (yet?) bought into 100% vote-by-mail. The postal service is an astonishingly great institution, but there are some communities it serves less well than others, including large-scale-apartment dwellers and rural Native reservations; it can lead to limitations for those who want both privacy and language or disability assistance; and it can increase opportunities for coercion. That’s not a critique of the absentee process — just a recognition of its limitations.

These are not normal times. And in the age of a global pandemic transmitted through crowds and disproportionately impacting elderly pollworkers, it is 100% right to be moving — with legal authorization quickly, to give as much time to prepare as possible — to radically expand opportunities for voters to receive and cast ballots by mail.

But as we do, it’s worth remembering that voting by mail puts more pressure on voter registration.

When voting at the polls, it’s often possible to fix small registration problems, or local moves to a new address. (Indeed, the NVRA guarantees a right to the latter.) And in same-day registration states, someone who is unregistered can use a trip to the polls to get registered, too.

But voting by mail makes it really important to get registration names and current addresses right, up front. Otherwise, it’s hard to get your mail ballot in the first place.

None of this is news to people who work full-time on Vote by Mail issues, like the world-class team at Vote at Home. But for others scrambling to expand vote by mail options in an emergency: voter registration needs to come along as well, with substantial spending on extra publicity encouraging voters to check and update their registration before the ballots go out.

In other words:

So think of it this way:

Practice social distancing.
Wash your hands for 20 seconds. #StayTheFHome.

And triple-check your voter registration.
— Justin Levitt (@_justinlevitt_) March 16, 2020

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Good night, and good luck

January 7, 2020, 3:11 pmUncategorizedJustin Levitt

And now, I give you the inimitable Dan Tokaji, a national treasure. He’s at the helm for the next week.

I can’t leave without thanking Rick, again, for keeping this forum so vigorously alive. It’s like drinking from a fire hose even over the holidays, when people really should have better things to do with their time. And every time I help for a short stretch, I’m reminded how staggering it is that he manages to do this day in and day out.

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