Exchange of the Day (Between Zack Stanton and Justin Levitt)

Politico Q and A (on Justin’s ELB Covid-Election litigation list):

Stanton: You track the number of election-related lawsuits that have been filed. I understand that we’re now well above 150 cases?

Levitt: It was 226 the last time I checked. It’s moving very quickly.

Stanton: In terms of the number of voters potentially affected by these lawsuits, what are we talking about?

Levitt: Actually, I have to apologize: It’s 228 cases, and I haven’t added a couple, so it’s probably 230. It’s difficult to track. How many voters does this affect? I don’t honestly know. The better way to measure is this: There’s litigation now in 43 states, D.C. and Puerto Rico. And in a way, the litigation affects all of the voters in each of those states, not because it’s contesting the conditions that every voter will use to cast their ballots, but because it alters the framework under which the elections are held. Even a case that’s about just one candidate getting on the ballot affects the choices of who people will be able to vote for.

By the way, I’m tracking the pandemic-related election cases. But there are other cases, including a big one in Florida, that aren’t about the pandemic. So that is not to suggest that the states that aren’t on this particular list are free of election litigation; they just happen to be free of litigation based around the pandemic.

The second category has to do with mail-in ballots. Some of these lawsuits would’ve been brought in nonpandemic times. There is a string of litigation about how people get notified of mistakes in the absentee process—mismatches in signatures that voters sign to their absentee envelopes, which are then matched against their signatures in elections officials’ records—and whether they have a chance to fix those mistakes. Litigation about the absentee process picked up speed considerably when it became clear that far more of the public is going to vote by mail this year than normal. In 2016, I think about a quarter of ballots nationwide were cast by mail. So you see litigation over deadlines for mail-in ballots, or provisions about assisting people with ballots, or opportunities for voters to correct mistakes, or the excuse you may need to provide to vote absentee, or postage on absentee ballots, or the witnesses and notaries required by some states.

The third category has to do with in-person voting. Even in states that are “universal” vote-by-mail, you almost always have an option to go down to the county office and drop off a ballot in person or fill out a ballot in person. It’s not truly universal vote-by-mail; it just means everybody has the option. The fight this election cycle has never been about moving literally everybody to vote by mail; it’s about increasing the opportunities to vote by mail to mitigate serious capacity constraints for those who have to vote in person. Just like there are people who are hard to count in the Census, there are people who are hard to mail, and populations that really depend on in-person voting—very rural and very urban, minority communities, those who face issues like language access, people with disabilities. So there’s litigation over the hours of early voting, over curbside voting opportunities, over the availability of dropboxes and other in-person places to return the ballot. And those lawsuits are almost entirely pandemic-related.

And then the fourth category is pushback back against all the other three: that the administration of the election shouldn’t change. The other three categories have to do with people asking the courts to change or modify the rules for this election because of the pandemic and because of changed circumstances. Sometimes, elected officials or legislatures have changed the rules, and this litigation is pushing back against those changes, mostly under the notion that the officials or legislatures have overstepped and may not have the authority to make the changes they’ve made.

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