Behind a paywall. A snippet:
“At a time when more than a dozen conservative states have enacted new voting limitations and no evidence of substantial fraud has emerged from the 2020 presidential contest, election law experts say the lower standard could have an enormous impact on a wave of lawsuits that may be filed under the 1965 Voting Rights Act in coming years.”
Raleigh News & Observer on the latest court ruling in the tug-of-war between federal and state officials, as well as the press, over voting records in North Carolina.
WSJ reports on the recent explosion of election-related litigation but also the challenges lawsuits have in light of new rulings like Brnovich.
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.
A federal judge ruled Friday that the election for Minnesota’s 2nd Congressional District should proceed in November as originally scheduled, despite the recent death of a third-party candidate.
Democratic U.S. Rep. Angie Craig asked the judge to require that the election be held in November instead of being delayed until February — after the Sept. 21 death of Legal Marijuana Now Party candidate Adam Weeks triggered a state law that led to the postponement.
The court’s order is here.
A Philadelphia judge ruled Friday that President Donald Trump’s campaign does not have the right for poll watchers to observe activities inside the city’s new satellite election offices.
The campaign sued the city last week, arguing its representatives should be permitted inside the offices, where voters can request, complete, and submit mail ballots.
Common Pleas Judge Gary S. Glazer issued a ruling Friday denying the petition.
The lawsuit had echoed false claims Trump himself made during last month’s presidential debate, when he said “bad things happen in Philadelphia.” The campaign argued it had a right to observe the offices because they were marketed as early voting locations.
A lawyer for the city argued during a hearing this week that the offices are not official voting locations like polling places, and that campaigns have a right to observe the counting of mail ballots beginning on Election Day.
You can find the opinion at this link.
The court found that the burden on the state in keeping the system going outweighed the risk of disenfranchisement. The court’s order concludes:
The state could have extended the registration deadline until midnight on October 6th, which would have given these potential voters a fighting chance. Instead, the state chose to notify the public during a normal workday and gave them only seven hours to somehow become apprised of their rights and register, all while also participating in their normal workday, school, family, and caregiving responsibilities. One would expect the state to make it easier for its citizens to vote.
Unfortunately for these potential voters, this Court cannot remedy what the state broke under these circumstances. This Court must consider the consequencesof extending voter registration deadline. Having done so, the motion for preliminary injunction, ECF No. 3, is DENIED.
In so ruling, this Court notes that every man who has stepped foot on the Moon launched from the Kennedy Space Center, in Florida. Yet, Florida has failed to figure out how to run an election properly—a task simpler than rocket science.
You can find a majority, concurring, and dissenting opinion here. The judges broke along the party lines of the president that appointed them.
A federal judge has ruled Ohio’s system of verifying signatures on absentee ballot applications is not burdensome enough to be struck down as illegal, rejecting arguments made by a coalition of voting-rights groups that sued the state.
U.S. District Judge Michael Watson wrote that while Ohio’s signature-matching requirements impose a “moderate” burden on voters, they have other options to cast a ballot if their vote is improperly rejected, including casting a provisional ballot on Election Day. He agreed with Ohio Secretary of State Frank LaRose that the state has a legitimate interest in promoting an orderly and secure election, justifying that burden.
“Additionally, the Court believes that changing the rules regarding verification of signatures on ballots at this time would be particularly damaging,” Watson, a President George W. Bush appointee, wrote in an order issued Sunday evening that rejected the voting-rights activists’ request to issue what’s called a preliminary injunction. “Some public officials have unfortunately regularly cast doubt on the security and legitimacy of voting by mail. A federal court enjoining part of the State’s procedure for maintaining the security of mail-in voting in the weeks leading up to the election could further undermine public confidence in elections.”
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.)
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, and now September. 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.
AP:
Mississippi law does not allow absentee voting by all people who have health conditions that might make them vulnerable to COVID-19, the state Supreme Court ruled Friday.
A majority of justices reversed a Sept. 2 decision by Hinds County Chancery Judge Denise Owens, saying she too broadly interpreted some changes that legislators made to state law this year.
“Having a preexisting condition that puts a voter at a higher risk does not automatically create a temporary disability for absentee-voting purposes,” justices wrote.
Rob McDuff is a Mississippi Center for Justice attorney who sued the state on behalf of people with conditions including kidney disease and diabetes. He said Friday that the Supreme Court ruling does allow absentee voting by people with conditions that are serious enough to be considered a physical disability….
Other voting rights groups filed a similar lawsuit Aug. 27 in federal court, arguing Mississippi’s absentee voting restrictions put people at risk amid the pandemic. They filed additional papers Thursday asking a judge to block two requirements — that a voter have absentee ballot forms notarized and that people have an excuse to vote absentee, such as being out of town on Election Day. Waiving the excuse would open absentee voting to many more people.
In a thoughtful 37-page opinion, in one of the most closely watched pieces of litigation surrounding the conduct of the 2020 election, a federal court (Trump appointee Judge Nicholas Ranjan) has used Pullman abstention to decline to consider the Trump Campaign’s constitutional claims against a number of Pennsylvania election rules (including on whether drop boxes are permissible under Pa law and whether absentee ballots not in sealed secrecy envelopes may be counted).
The judge found that many of the constitutional claims in the case depended upon interpretation of state law, and that the state law issues in the case were contested and being resolved now in state court proceedings. It is thus possible, after the cases are heard by state court and the rules clearly determined, that the Trump Campaign could seek to return to federal court to pursue federal constitutional claims. (It is also possible that the campaign will appeal this ruling and seek to get the abstention ruling reversed.)
There’s one interesting procedural aspect of the case. The court notes that if the Trump Campaign had sought a preliminary injunction, the court likely would have had to rule (and tentatively interpret the state law questions) before deciding on abstention. But the campaign did not seek this preliminary relief, thereby letting the court abstain. Seems like a potential blunder by the Trump lawyers in not seeking a preliminary injunction.
A federal district court has rejected arguments that the system violates equal protection or the 26th amendment (which was made on the grounds that older voters can vote without an excuse but others cannot). It will not issue a preliminary injunction.
A very important and correct ruling on both due process and equal protection grounds.
From the unsigned order:
Once again in its appellate briefs the Board asks this court to reverse the district court’s decisions and permit the Board to determine the best options for balancing the, plaintiffs’ interests with the statutory ballot access requirements in Illinois. In doing so, the Board devotes not a word to addressing the harm this would cause to candidates and parties who have relied on the agreed preliminary injunction order. Nor does the Board explain how it would make the relevant determinations regarding ballot access, but any change made now, after the deadline for submitting signatures has passed, is certain to severely limit or prevent third-party or independent candidates from accessing the November ballot. The Supreme Court has instructed that federal courts should refrain from changing state election rules as an election approaches. See, e.g., Republican Nat’l Comm. v. Democratic Nat’l Comm., ––– U.S. –––, 140 S. Ct. 1205, 1207 (2020) (per curiam); Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (per curiam). In reviewing the claims before us, we decline to allow the Board to change the ballot-access requirements on the eve of the deadline for certifying the final contents of the ballot. Indeed, the Purcell principle takes on added force where, as here, the Board seeks to challenge injunctive relief that it initially agreed was necessary and proper. And only after engaging in meaningful delay, including in pursuing this appeal, did the Board change course and put at risk the reliance the plaintiffs have placed in the orders entered by the district court.