Pam Fessler for NPR:
With so many cases still up in the air, legal experts say it’s difficult to tell whether Democrats or Republicans are coming out ahead. Democrats have won numerous victories — including fending off a Republican effort to prevent Nevada from automatically sending out ballots to all registered voters.
But Democrats have also had some of their earlier wins overturned. The South Carolina witness requirement is the most recent example. Republicans have been successful in a number of cases, including one to require felons in Florida to pay off all fees and penalties before they can vote.
“I would say Democrats and voting rights group had some important victories, but on those cases that made it up the food chain, they have tended to do not as well,” said Rick Hasen, an election law expert at the University of California, Irvine.
Hasen thinks such victories could be even rarer in the weeks ahead because courts are reluctant to make changes in voting rules too close to an election. “Any kind of last-minute changes that expand voting rights coming now are going to have a really tough road as they go up the appellate process,” he said.
How such cases are decided could prove crucial after the election, when potential legal challenges to the outcome might end up before the Supreme Court. President Trump has already said that he thinks that will happen.
Alabama Secretary of State Merrill this week also released a letter, signed by a number of Republican secretaries of state, that calls for swift Senate confirmation of Trump’s Supreme Court nominee, Judge Amy Coney Barrett, to ensure that all the seats on the high court are filled by Election Day.
“In the case an election issue is challenged in court, America cannot afford a tie vote,” they wrote Senate Judiciary Committee Chair Lindsey Graham, R-S.C.
Justin Levitt of Loyola Law School is more optimistic such an outcome can be avoided. The former Justice Department official thinks one benefit of all the current litigation is that it reduces the chance of a legal challenge after Election Day revolving around such questions as whether ballots received after Election Day can be counted.
“The fact that the courts have weighed in on that issue now means it’s far less likely to want to weigh in on that issue after Election Day. And that’s true for a lot of the different claims that have been pressed so far about which ballots are legitimate and which aren’t,” he said.