“In the Most Litigated Election Ever, Early Democratic Wins but Few Clear Signals”


Ahead of an election that seems certain to have the most litigated voting rules ever, Democrats won important cases over the past week in the critical states of Michigan, Wisconsin and Pennsylvania.

But appearances can be fleeting. Even with only six weeks of campaigning left, experts say some of the most pivotal rulings are yet to come. And what may look like convincing legal victories may be overturned on appeal.

“Voting rights victories are the best outcome, but only if they last until the election,” said Nathaniel Persily, a Stanford University political scientist and the co-director of the Stanford-M.I.T. Healthy Elections Project.

That project tracks more than 300 legal battles over voting, involving issues like absentee ballots and assistance to voters that are broadly related to the coronavirus pandemic. But there are dozens more, over questions like placing third-party candidates on the fall ballot, whose rulings could also prove crucial in state or national races in November….

The Republican organizations argue that Democrats are trying to relax voting rules to make it easier to cast bogus Democratic votes. So far, that argument has not been persuasive, said Richard L. Hasen, an election law scholar and law professor at the University of California, Irvine.

Republicans have offered two arguments against making voting easier, he said — that relaxing rules violates state law, and that it violates the Constitution by promoting fraud, which dilutes the value of legitimate votes.

The fraud argument “has fallen flat in the courts so far,” he said, “because the Trump campaign has not been able to produce evidence to support that claim.” Republican lawyers were unable to document systemic fraud risks in hundreds of pages of documents submitted to a federal judge in a Pennsylvania lawsuit. A federal judge in Chicago ruled last month that Republican arguments that expanded absentee voting would abet fraud were “conjecture.”

But legal decisions often depend on who decides. The argument is likely to be tested again in the Michigan and Pennsylvania cases won by Democratic lawyers. The Michigan ruling, by a lower court, can be appealed in a state where the Supreme Court leans Republican. In Pennsylvania, a federal district judge nominated in 2019 by President Trump is expected to soon hear a Republican challenge to expanded mail balloting, based on the threat of fraud, that parallels the one rejected by the State Supreme Court this week.

That Pennsylvania case, with potentially crucial ramifications for mail-in voting, could race through the appeals process and to the Supreme Court in a matter of weeks, Dr. Hasen said.

The death of Justice Ruth Bader Ginsburg on Friday could complicate things further, removing one of the four liberal votes from the court and increasing the likelihood that conservatives would prevail on appeals that go to the court.


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