Fox News presents a view of pre-election litigation as “rife with repeated legal battles to protect the voting processes from left-wing attorneys leveraging the courts to strip election safeguards.”
I have to say, I’m still waiting for an explanation of the substantive rationale for a “safeguard” that disenfranchises a voter who’s otherwise eligible to vote but messed up a ballot envelope date that election officials don’t use for any administrative purpose.
Category Archives: The Voting Wars
“‘Bunch of bull.’ NC voters furious to learn candidates want to disqualify them.”
There’s a challenge to the eligibility of 60,000 voters in the NC Supreme Court race decided by just a few hundred votes. Among the challenged voters: the incumbent justice’s parents.
Any mass challenge to voter registration is going to involve some mistakes. (That’s why real safeguards for mass list maintenance are so important at any point in the calendar, and why hurried and high-stakes post-election procedures are significantly more problematic than procedures before the 90-day NVRA cutoff, with time to address the errors.)
This Carolina Public Press piece interviews some of the people on the challenge list in the NC Supreme Court race, with a welcome reminder that there are real people behind the big numbers.
More real people here from the Asheville Watchdog and here from Popular Information.
“Will NC Republicans have the votes to override Cooper’s veto of powers-stripping bill?”
The story above was about how well the North Carolina elections process works. Jury’s still out on the state’s democracy process, though.
This News & Observer piece reviews the legislation tacked on to a Helene relief bill, stripping state executive officials’ powers in Democratic hands that might check the Republican-supermajority legislature. The legislation was passed largely on party lines, vetoed by the Governor, and now needs every Republican legislator in the state House and Senate in order to override the veto. The Republican Senate has already moved to override. But that “largely on party lines” statement is really important: three Republican members of the House voted no as the bill was on its way to passage, and there are a lot of eyes on them as the House sets up an override vote for next week.
More mail ballot deadline controversy in Mississippi
Advocates protest an apparent conversion of the day after Thanksgiving to a work day, limiting the opportunities for curing mail ballot errors potentially relevant in a very tight Supreme Court race.
“Whitmer signs bills restricting firearms at Michigan polling places, vote counting centers”
At least a few election workers are likely breathing just a bit easier.
“Washoe County Commissioner Mike Clark raised 9 election concerns. We looked into each one.”
The Reno Gazette-Journal takes the professed concerns of a county commissioner both literally and seriously.
“Questions about provisional ballots remain as Casey and McCormick withdraw lawsuits”
The Democratic and Republican parties will withdraw 20 lawsuits on behalf of their candidates for Pennsylvania’s U.S. Senate seat following incumbent Sen. Bob Casey’s concession Thursday to Senator-elect Dave McCormick.
Filed in more than a dozen counties, the cases challenged decisions by boards of election on whether to count provisional ballots with mistakes made by voters or poll workers.
But with McCormick more than 16,000 votes ahead, Casey on Thursday evening called McCormick to congratulate him on the win. Hours later, the Pennsylvania Department of State called off a statewide recount triggered by the narrow margin of less than 0.5% of the vote, saying it was in the best interest of taxpayers.
More than 6,000 votes for Casey or McCormick hung on the outcome of the cases, with the McCormick camp arguing flawed ballots should be tossed and the Casey campaign arguing that some should be counted.
Although each side had already won decisions, there was no reason to keep fighting and the parties reached mutual agreement to end the litigation, election lawyer Adam Bonin told the Capital-Star on Friday.
Lawyers for the Republican party did not return calls from the Capital-Star on Friday.
“We’re thrilled for the victories we had,” said Bonin, who filed some of the lawsuits on behalf of Casey’s campaign and the Democratic Senate Campaign Committee. “There were definitely strong arguments on appeal but that battle is for another day.”
Voting rights advocates, meanwhile, are looking ahead to renewed efforts to ensure voters who make a mistake on mail ballots are not disenfranchised.
The Republican National Committee has asked the state Supreme Court to decide whether a requirement to write the date on mail-in ballots is constitutional. Voting rights groups agree the court should take up the issue. …
“Could This Presidential Election Be Decided by the Supreme Court? It is unlikely that the court ends up playing a major role in the outcome, according to elections experts, but it is possible. Here’s why.”
As the polls open on Election Day, the race between Vice President Kamala Harris and former President Donald J. Trump appears to be a dead heat, leading some to fear that the election will be dragged out and the U.S. Supreme Court could determine the outcome.
A handful of election-related disputes have already reached the Supreme Court. Last week, the court issued decisions that allowed Virginia to purge 1,600 people from its voter rolls, declined to remove Robert F. Kennedy Jr. from the ballot in two battleground states and allowed voters in Pennsylvania whose mail-in ballots had been deemed invalid to cast provisional ballots in person.
The question remains if the presidential election will be so close that the court, which has a 6-3 conservative majority, will take up a case in the days or weeks ahead that decides who the next president is.
It is unlikely that the Supreme Court ends up playing a major role in the outcome, according to elections experts, but it is possible. Here’s what to know….
“Billionaires help bankroll legal funds used by parties to challenge election rules”
Even before the results of the presidential election are tabulated, partisan actors are busy behind the scenes filing lawsuits seeking clarification about existing election rules and, in the most extreme cases, taking aim at the processes governing which ballots are counted and even how ballots are counted.
Much of this barrage of lawsuits is coming from groups aligned with former President Donald Trump, including the Republican National Committee (RNC), which is already active in more than 130 cases — though critics say many of these lawsuits are based on “unreliable data” and “shoddy methodology.”
One RNC-litigated case has challenged the validity of ballots that are mailed before Election Day but arrive with election officials in the days after, something that is currently allowed in 18 states plus Washington, D.C. Others have challenged the validity of ballots from overseas voters who are U.S. citizens. While still others have charged that election officials haven’t taken aggressive enough actions to ensure that noncitizens do not illegally cast votes in this year’s election.
For the past decade, both the RNC and its Democratic Party counterpart — the Democratic National Committee (DNC) — have been allowed to collect large contributions from donors earmarked to support the parties’ election-related legal fights. But this year, the RNC appears to be more aggressively courting donors to support its legal battles.
A new Issue One review of federal campaign finance data shows the RNC’s legal fund has raised nearly four times as much money as the DNC’s legal fund — $54 million versus $14 million through Oct. 16, the date of the most recent campaign finance reports.
n fact, the RNC legal fund sums are up $37 million (or more than 200%) compared to 2020, and up about $51 million (or about 1,700%) compared to 2016. And while the DNC’s legal fund sums are up about $12 million (or about 600%) from 2016, they are actually roughly the same as 2020.
Who’s underwriting these efforts? Issue One’s analysis shows that ultra-wealthy Americans, including at least 50 billionaires, are among those helping fund the parties’ legal battles, including more than three dozen billionaires who have given to the RNC’s efforts and a dozen who have supported the DNC’s….
My New One at Slate: “Thousands of Pennsylvania Ballots Will Be Tossed on a Technicality. Thank SCOTUS.”
I have written this piece for Slate. It begins:
Last week, the Supreme Court allowed Virginia to conduct a last minute voter purge to remove potential non-citizens from the rolls despite a federal law that seemed to bar the practice. And it refused for now to put on hold a Pennsylvania Supreme Court ruling allowing some state voters who mistakenly failed to include required secrecy sleeves over their absentee ballots to vote instead using a provisional ballot at a polling place.
But perhaps the most important thing that the court did in relation to the 2024 elections came two Supreme Court terms ago and was more indirect. Its actions could be costing thousands of voters their right to vote in Pennsylvania and elsewhere.
On Friday, the Pennsylvania Supreme Court put on hold a lower court ruling holding that could have prevented the disenfranchisement of thousands of Pennsylvania voters who cast timely mail-in ballots but with incorrect or incomplete dates. The Pennsylvania court may well have acted out of fear of violating the U.S. Supreme Court’s 2023 ruling in Moore v. Harper and the “independent state legislature theory.” Moore may be deterring other state courts too from appropriately protecting voters more aggressively under their state constitutions.
Pennsylvania’s law disenfranchising voters who cast timely ballots but make an immaterial mistake is nonsensical. If a mailed ballot has arrived at election offices before election day, so we know it is timely, who cares if a voter has written in her birthdate rather than the correct date that she signed the ballot? The date requirement on a timely mailed ballot serves no purpose when state law requires ballots to be received by election day. Thousands of ballots are expected to be tossed in the upcoming election for this technical defect….
Why did the state Supreme Court reject all these attempts? The most recent rejection appears to be all about timing. Even if the “Purcell principle” is overused and selectively applied, changing the rules just days before the election is generally a bad idea. But the court also might have been worried that it would have gotten a quick U.S. Supreme Court smackdown under Moore v. Harper if it did so. And that fear of being slapped down might have been why the state supreme court also didn’t take up the issue earlier….
This is what was hanging over the Pennsylvania Supreme Court when it decided against protecting voters in its state who make an immaterial voting mistake. If it reads its Constitution too aggressively to protect the rights of voters, it faces a Supreme Court that has given itself the power to strike such a ruling down and keep the state court in check. Moore is acting as a deterrent to protecting voting rights, especially through novel interpretations of state constitutions. Especially given that the federal courts are not protecting voting rights aggressively under the U.S. Constitution, this new hamstringing hurts.
Justice Samuel Alito signaled as much in a statement he issued in the other Pennsylvania case I flagged at the top of this piece, the one about secrecy sleeves on absentee ballots. Alito, writing for himself and other ultra-conservative justices Clarence Thomas and Neil Gorsuch, agreed that procedural problems meant the court should not take up the issue at this time. But he flagged the Moore issue even though he had no obligation to explain himself in this emergency case. As Chris Geidner wrote for his indispensable Law Dork substack, Alito was telling the world that “he, Thomas, and Gorsuch were open, in the context of Tuesday’s general election, to considering in a future case whether the Pennsylvania Supreme Court had gone too far.”…
“Why Pennsylvania’s unusual voting laws make it ripe for rigged election claims”
Jane Timm for NBC News:
With Pennsylvania expected to be a close and crucial state in the 2024 race for the presidency, it’s unusual election laws are again under the microscope.
First, there’s the counting. The state doesn’t have early voting — instead offering the time-consuming and paperwork heavy option of on-demand mail balloting. It also doesn’t process its mail ballots ahead of Election Day.
So, in the hours after polls close on Election Day, when many battleground states will be reporting their early, mail and Election Day totals, Pennsylvania will be counting ballots around the clock in a mad dash to catch up.
Then there’s the “fixing” or “curing” of ballots with minor errors, such as a mail-in ballot mixing a signature. If a ballot has errors, each county in the state decides on its own whether it will let voters “fix” them, creating significant differences in voting policy throughout the state. (Most states have a statewide policy for curing ballots.)
And finally, after the ballots are counted, there can be challenges. Pennsylvania laws give residents a spate of ways to challenge and delay certification of the results with recounts, appeals, and litigation.
Election experts say Pennsylvania’s laws make it fertile ground for rigged election claims to flourish. They also stressed that there is little reason to believe that unsubstantiated voter fraud claims—and any lawsuits associated with them—will actually stop the certification of the results.
“The Pennsylvania legislature had multiple opportunities to clarify and improve the state’s election law,” said Nate Persily, an NBC News election law expert and professor at Stanford Law School. “It deliberately chose not to. The gaps in the law provide a vacuum that gets filled with conspiracy theories and require the courts to bring coherence to an incoherent regime.”
Please Stop Wishcasting the Supreme Court into a Decisive Election Role
Justin here. There’s a tsunami of election litigation cascading through the legal system right now. It’s producing a lot of public anxiety, in part because it’s designed to produce a lot of public anxiety.
But none of the current litigation mess is actually seriously destabilizing the 2024 election process. And absolutely none of it is realistic meaningful fodder for the Supreme Court.
It’s natural to be freaking out. These elections are incredibly important. The outcome is likely to be very close. And the Supreme Court has indulged in some questionable jurisprudence of late, including historic cases involving one of the contenders. (I’m looking at you, Trump v. US). In a last-minute decision, they’ve even (maybe) deployed a made-up equitable judicial doctrine meant to stop unwarranted last-minute election changes to block implementation of a very real federal law meant to stop unwarranted last-minute election changes. Sometimes, it’s true, up is down.
So it’s understandable to combine all of these thoughts: to think that the current electoral litigation morass is just prelude for the Supreme Court to go full Godzilla in the aftermath.
But wishcasting or doomcasting the Supreme Court into a decisive role in the 2024 election is at this point just indulgent dystopian fiction. That’s not how any of this actually works.
There are three types of election lawsuits out there right now. First, an increasingly vanishing handful of cases in a few states over limited election procedures might still yield a result in the next few days. But as Derek has highlighted, these cases hold relatively few ballots in the balance. As important as they are to the individual voters involved, they’re not going to change a result before the election. And that means they’re not going to change a result after the election either.
Second, there are a handful of cases with real arguments over significant issues that have yielded an answer effectively locked in for this election. But they’re now out of time. The fighting will continue — some will eventually be upheld, some overturned — but without further impact on the 2024 cycle.
The third category is by far the largest: the slew of cases that. Were. Never. Going. To. Win.
Ever.
They’re press releases and fundraising emails and vigilante manifestos, with a fancy cover page and a few footnotes, usually brought by the wrong person at the wrong time seeking relief that isn’t available. Reformat them in Comic Sans and you’ll see them for what they are. A lawsuit without provable facts showing a violation of actual laws is just a Tweet with a filing fee. You can tart up numbered paragraphs with all the legalese you want, and it’s still not going to 1) magic you up a unicorn or 2) disappear 200,000 legitimate votes.
It’s alarming to think that even one Justice might want even one of any of these cases. But it takes five Justices to act. And there aren’t five Justices who would find any of this remotely tempting.
Take, for example, the Pennsylvania Supreme Court’s decision last week about a voter who submits an (invalid) mail ballot without a “secrecy envelope,” and then votes a (valid) provisional ballot. The RNC asked the Supreme Court to step in, under the mysterious “independent state legislature” theory. Could this be the one?
Nope.
The same Justices currently sitting on the Supreme Court effectively killed this notion just 16 months ago. The pitch then was that the federal Constitution gives state legislatures a special exemption from normal state law (but only for federal elections). And the Court firmly rejected it, 6-3. True, the Court said that in addressing a state’s election structure, “state courts may not transgress the ordinary bounds of judicial review.” But in Pennsylvania, the state courts just interpreted a state statute, using its normal tools of statutory interpretation. That’s as ordinary as it gets. The 2023 case was far tastier bait than this, and only three Justices were biting.
And yes, those three Justices noted the argument again yesterday, even as they agreed with the majority in a unanimous statement to send this case where it belonged. 6-3 is still 6-3 is still 6-3. There’s no reason to think anyone on the Court has changed their minds.
Or, if you prefer, take the Fifth Circuit’s decision last week that Mississippi mail ballots have to be received by election day in order to count. Is that just a setup for the Supreme Court to step in after the election?
Nope.
The decision is a little nuts. But even this reactionary appellate panel balked at applying its own logic in the middle of an election with ballots already being cast. It handed down a decision on what the law means, but deferred a remedy. This is the Circuit repeatedly chastised of late for decisions too outlandish even for an exceedingly conservative Supreme Court. Five Justices aren’t going to leapfrog them on the road to Crazytown.
I mean, Cap probably said it best.
There’s a notion that these cases are galaxy-brain traps, “zombie lawsuits” waiting to ravage the post-election landscape. But there’s a pretty big missing step between here and there: a plausible legal argument sufficient to grant election-swinging relief. Just as in 2020, courts this cycle in election cases have not simply been indulging what some might presume to be partisan priors: if you look only at the ostensible partisan composition of the bench, you’d get the outcome wrong much of the time. Instead, courts have largely been acting like … courts, discarding most nonsense as it comes. There’s more than enough horror going around already this Halloween — we don’t need to indulge the litigious supernatural.
Speaking of seasonal Gore, I’ll concede that all bets are off if the election comes down to 537 ballots. At that margin, anything and everything matters: a butterfly ballot flaps its wings in one part of a state and the winds change in another. But with a margin even slightly bigger than that — a very close election, or even a very very close election — this election isn’t coming down to the lawyers, or the courts, nor even the Supreme Court. It will, once again, be up to the voters.
“Republican battleground-state legal blitz falters ahead of election”
Donald Trump’s Republican allies have suffered a string of courtroom setbacks in battleground U.S. presidential election states as Election Day draws closer, losses which could boost voter turnout and speed certification of the eventual winner.
In the past three weeks, Trump’s allies have been dealt at least 10 court losses in battleground states that could decide the outcome of the Nov. 5 contest between Republican former President Trump and his Democratic rival, Vice President Kamala Harris.
On Friday, they were dealt another loss in Virginia, when a federal judge blocked the state’s removal of people it said had not proved their citizenship from its voter rolls.
U.S. District Judge Patricia Tolliver Giles said the removal ran afoul of a federal prohibition on purging large numbers of voters in the 90 days before an election. The state, which is not a swing state this election, said it would appeal.
The other decisions include four rulings against Republicans in Georgia, where judges have blocked last-minute changes to election rules championed by Trump’s allies, including one that would have required poll workers to hand count ballots, as well as cases seeking to purge voter rolls and block some Americans who are living overseas from voting.
The party’s recent losses suggest its legal strategy is coming up short in court, which some legal experts said will likely be a net positive for voter turnout. The losses in Georgia, meanwhile, will likely make it easier for officials there to quickly count and certify vote totals, the experts said….
“Democrats Ready Thousands of Lawyers for Final Days of Race”
WSJ:
Remus, a partner at Covington & Burling, is a Yale Law graduate with a diverse résumé, including a clerkship to conservative Justice Samuel Alito. Her inner circle includes Bob Bauer, a personal lawyer to Biden and White House counsel to former President Barack Obama who also teaches law at New York University. They have assigned priority to better coordination with local lawyers who are steeped in the minutiae of state election laws and how to best navigate their hometown courts. A series of teams, each focused on a specific battleground or priority state, have been running for the past year, with local attorneys working with a designated partner at one of a handful of large, national law firms that are helping to guide strategy.
More than 400 lawyers have been writing thousands of pages of draft legal pleadings and memos that could be deployed quickly in fast-moving litigation. A larger network of about 10,000 lawyers is on tap to be on the ground and supporting voter protection at polling places across the U.S. Senior advisers have held weekly brainstorming sessions that in effect work like legal game theory, with top lawyers sketching out strategies for addressing a host of hypothetical scenarios that could arise in legal combat over the election results.
The group has focused heavily on planning for potential delays or disruptions to the certification of vote totals, both at the county and state level, and in Congress. They say they are prepared to respond to any efforts to intimidate voters and election workers, including physical unrest on Election Day or during state vote counts afterward.
Other heavy hitters in the Harris camp include two lawyers who served as U.S. solicitor general: Seth Waxman, who has argued more than 80 cases at the Supreme Court; and Donald Verrilli, who successfully defended the constitutionality of the Affordable Care Act in a landmark 2012 case. …