Even as someone who follows this litigation closely, I was astounded by this detailed analysis passed along by a knowledgeable reader:

There is no question that the 2020 election gave rise to more litigation than any election in modern history.  The post-election story is well-chronicled:  the Trump campaign and its allies brought more than 5 dozen suits, and lost all but one – and the loss involved no more than a couple of hundred provisional ballots in Pennsylvania.

The pre-election story is not documented quite as well, but it should be, as the outcomes were instructive. On the left, party committees, Super PACs, advocacy organizations and, to a lesser extent, civil rights groups brought dozens of suits challenging state election laws, regulations, or practices – particularly, though not exclusively, as they related to voting during the pandemic.  Overall, the litigation was unsuccessful, with losses outnumbering even partial wins by a ratio of more than 7:1. 

A number of these unsuccessful cases achieved some success at the trial court level, only to be stayed – and ultimately, overturned – on appeal.  Many, though, were rejected at every level.  The sums spent on these cases appear from public reporting to be considerable – well into the tens of millions of dollars.   

The experience should inform the approach of those who care deeply about voting rights issues in 2022 and beyond. Legal challenges to voting rules are an indispensable response, among others, to voter suppressive activity, but the 2020 record suggests the importance of a strategic approach to the choice of suits and a realistic assessment of the costs of failure. Some cases, like Brnovich, gave rise to harmful precedent, making future challenges to laws that restrict the franchise much more difficult. 

Details on an extensive and representative sample of these cases, organized by states that had competitive federal elections, follow:  

• Arizona
  • Ballot receipt deadline.  AZ’s received-by deadline was challenged in federal court; after defendant’s motion for a stay was granted in part, Democratic-aligned groups, including Priorities USA, settled for nominal gains (i.e., greater public communication about the received by deadline).  Voto Latino Foundation v. Hobbs, Dkt. 19-cv-5685 (D. Ariz.).
  • Cure deadline for missing signatures.  AZ allows ballots with mismatched signatures to be cured within 10 days of the election, but does not allow cure for missing signatures.  Democratic party organizations challenged this law in federal court; a trial court victory was stayed by the 9th Circuit, which ultimately upheld Arizona law.  See Arizona Democratic Party v. Hobbs, 18 F. 4th 1179 (9th Cir. 2021).
  • Voter registration deadline. Two nonprofit advocacy and voter registration groups sued the state seeking to extend the voter registration deadline in light of the Covid-19 pandemic. The trial court initially extended the deadline; the 9th Circuit ultimately stayed the extension with a 2-day grace period, and allowed voters who had registered past the deadline in the interim to remain registered. Mi Familia Vota v. Hobbs, 2:20-cv-1903 (D. Ariz); Nos. 20-16932, 20-17000 (9th Cir.).
  • Ballot collection ban/bar on counting of out-of-precinct ballots.  This case, brought by Democratic party organizations, stemmed from the 2016 cycle, but was pursued through negative decisions at the District Court and before a panel of the 9th Circuit, in a process that continued through the 2020 cycle.  DNC v. Reagan, 904 F.3d 686 (9th Cir. 2018).  The 9th Circuit’s en banc decision striking down the laws (see DNC v. Brnovich, 948 F.3d 989 (9th Cir. 2020)), gave rise to the Supreme Court’s decision to review the case.  The Supreme Court then  substantially narrowed the ability to bring vote denial claims under Section 2 of the Voting Rights Act.   Brnovich v. DNC, 141 S. Ct. 2321 (2021).

• Florida
  • Ballot receipt deadline & ballot collection prohibition.  In May 2020, the Florida Alliance for Retired Americans and Priorities USA sued the state and each county supervisor of elections, arguing that its received-by deadline and ballot collection prohibition were unconstitutional.  Nielsen v. DeSantis, Dkt. 20-cv-236 (N.D. Fla.).  The case was resolved following a loss at the preliminary injunction stage (see Neilsen v. DeSantis, 2020 WL 5552872 and 2020 WL 5552871) for a nominal settlement that included greater public communication about early voting options.

• Georgia
  • Signature matching procedures.  In mid-2019, the Democratic Party of Georgia, the DSCC, and the DCCC brought a federal court action against the state, arguing that the mail ballot signature matching processes were unconstitutional and demanding a sounder process for signature matching.  The case was settled by the state, which agreed that a reviewing clerk alone could not conclude that a signature was mismatched; the clerk would need to seek review from 3 colleagues and the signature would be determined to be mismatched only upon agreement of 2 of the 3.  Democratic Party of Georgia v. Raffensperger, 19-cv-5028 (N.D. Ga.) 
  • Ballot receipt deadline/ballot collection prohibition/pre-paid postage.  In May 2020, the New Georgia Project brought suit against the state in federal court, contending that the received-by deadline, lack of pre-paid postage, and prohibition on third-party ballot collection were unconstitutional.  New Georgia Project v. Raffensperger, Dkt. 20-1986 (N.D. Ga.).  Only the deadline extension request was successful at the trial court, and that order was stayed on appeal, resulting in the election proceeding with a received-by deadline.  New Georgia Project v. Raffensperger, 976 F.3d 1278 (11th Cir. 2020). 
  • In-person polling place availability. In August 2020, a lawsuit was brought in federal court challenging the state’s failure to provide a sufficient number and equitable distribution of election day polling places and resources required to administer the election, resulting in long lines for voting. The state’s motion to dismiss the lawsuit was granted in mid-October. Anderson v. Raffensperger, 497 F. Supp. 3d 1300 (N.D. Ga. 2020).
  • Pre-paid Postage. A federal court action, brought by an advocacy group known as Black Voters Matter, challenged the state’s policy of requiring voters to provide their own postage on absentee ballots and ballot applications. The court entered a final judgment in favor of the state in August 2020. Black Voters Matter Fund v. Raffensperger, No. 1:20-cv-1489 (N.D. Ga).
• Iowa
  • Absentee Ballot Application. A lawsuit was filed by the DSCC, challenging an agency order directing counties to only distribute “the blank Official State of Iowa Absentee Request Form,” as opposed to a pre-addressed form, in advance of the November 2020 election.  An emergency motion to stay the order was granted, but that decision was ultimately reversed and remanded by the Iowa Supreme Court.  DSCC v. Pate, No. 5571060642 (Iowa Dist. Ct., Polk Cnty.); No. 20-1281 (Iowa Sup. Ct.).
  • Absentee Ballot Application. A lawsuit was filed by LULAC seeking to enjoin a new law which prohibited election officials from using information from the voter registration database to fill in missing or incorrect information on a voter’s absentee ballot application.  The plaintiff’s motion for a temporary injunction was denied; the Iowa Supreme Court affirmed that decision.  League of United Latin American Citizens of Iowa v. Pate,  950 N.W.2d 204 (Iowa 2020).
  • Drop Box Restrictions. The Secretary of State issued guidance stating that drop boxes were only permitted at county auditors’ offices or on county property immediately surrounding those offices.  Motions for a temporary injunction and for a stay of the administrative action brought by LULAC were denied.  League of United Latin American Citizens of Iowa v. Pate (Iowa Dist. Ct. Polk Cnty.)
• Indiana 
  • Ballot receipt deadline. The non-profit advocacy group Common Cause and the state chapter of the NAACP brought a lawsuit against the state seeking to replace the received-by deadline for mail ballots with a postmarked by deadline. The suit was successful at the trial court, but that decision was stayed and reversed by the 7th Circuit. Common Cause Indiana v. Lawson, 977 F.3d 663 (7th Cir. 2020).

• Maine
  • Ballot receipt deadline.  The Maine Alliance for Retired Americans, brought suit against the state, arguing that its received-by deadline violated the state constitution.  The trial court and Maine Supreme Judicial Court rejected that argument.  Alliance for Retired Americans v. Secretary of State, 240 A.3d 45 (Maine 2020).

• Michigan
  • Ballot receipt deadline/ballot collection prohibition/pre-paid postage.  The Michigan Alliance for Retired Americans sued the state in state court, seeking to replace the received-by deadline with a postmarked-by deadline; to require prepaid postage; and to overturn the prohibition on third-party ballot collection.  At the trial court, the suit was partially successful, resulting in a ballot deadline extension; but the state appeals court reversed, and the receipt deadline remained in place for the general election.  Michigan Alliance for Retired Americans v. Secretary of State, 964 N.W.2d 816 (Mich. App. Ct. 2020). 
  • Ban on providing free transportation to the polls.  Priorities USA sued the state in federal court, seeking a declaration that its prohibition on political parties and other entities providing free transportation to polling places was unconstitutional.  The suit was successful at the trial court, but the decision was stayed on appeal.  Priorities USA v. Nessel, 978 F.3d 976 (6th Cir. 2020). 

• Minnesota
  • Witness requirement.  MN law required a witness for each absentee ballot.  A state court action (captioned Minnesota Alliance for Retired Americans Education Fund v. Simon) brought in mid-2020 resulted in a settlement with the MN Secretary of State waiving that requirement for the 2020 general election.
  • Ballot receipt deadline.  The same settlement also altered the ballot receipt deadline from a received-by deadline to a postmarked-by deadline.  Republican electors challenged that settlement in federal court, resulting in an appellate court order reinstituting the received-by deadline on October 29, 2020, i.e., 5 days before the election.  Carson v. Simon, 978 F.3d 1051 (8th Cir. 2020).
  • Voter assistance restrictions. The DSCC brought suit to challenge the limits on assistance provided to voters in filling out and returning their ballots. A temporary injunction was granted by the district court; the Minnesota Supreme Court ultimately affirmed that injunction with respect to ballot completion, and vacated it with respect to ballot collection. DSCC v. Simon, 950 N.W.2d 280 (Minn. 2020).
• New Hampshire
  • Ballot receipt deadline/mail registration process/pre-paid postage/ballot collection prohibition.  In August 2020, the AFT brought a NH state court action challenging a number of aspects of NH absentee voting law under its state constitution.  The trial court decided against the plaintiffs on all issues save one (related to online availability of absentee ballot requests).  American Federation of Teachers v. Gardner, Hillsborough Superior Ct.

• North Carolina   
  • Ballot receipt deadline.  Existing North Carolina law allowed ballots postmarked by Election Day and received 3 days after to be counted.  By settlement with the State Board of Elections, the North Carolina Alliance for Retired Americans extended that deadline to 9 days after Election Day and established a cure procedure for certain deficiencies in ballots, including a missing witness signature.  The settlement agreement was attacked in federal court litigation brought by Republican entities and was temporarily enjoined, but ultimately remained in place for the 2020 election.  See, e.g., Moore v. Cincosta, 494 F. Supp. 3d 289 (M.D. N.C. 2020); Wise v. Circosta, 978 F.3d 93 (4th Cir. 2020).

• Oklahoma
  • Ballot receipt deadline/mail voter ID requirements.  Democratic party organizations brought suit to challenge state law and practice regarding ballot receipt (due on election day); mail voter documentation (requiring a witness, notary, or ID photocopy); and lack of pre-paid postage.  A federal district court rejected the sought-after preliminary injunction, and the court entered judgment in favor of the state.  DCCC v. Ziriax, 487 F. Supp. 2d 1207 (N.D. Okla. 2020).  

• Pennsylvania
  • Ballot receipt deadline/ “naked” ballots/notice and cure process.  A number of cases were consolidated into a state supreme court action, including those brought by the Alliance of Retired Americans, the Pennsylvania Democratic Party, and the RNC.  The ultimate decision, Penn. Democratic Party v. Boockvar, 238 A. 3d 345 (Pa. 2020), had mixed results:
    • The ballot receipt deadline was extended by 3 days, though that decision was appealed to the Supreme Court of the United States, causing doubt about whether those ballots ultimately would be counted; they were segregated from the total and not included in the final, certified result.
    • The court determined that the so-called “secrecy sleeve” was required for a ballot to be counted, such that naked ballots — initially estimated to number 100,000 — would not be counted. 
    • In addition, the court determined that only the legislature could have established a mandatory notice and cure process for deficient ballots and that it had not done so.  

• South Carolina  
  • Witness requirement/ballot receipt deadline/pre-paid postage.  Democratic party organizations brought a federal court action against the state arguing that a number of aspects of the vote by mail process, including the received-by deadline and witness requirements, were unconstitutional.  The received-by deadline argument was rejected at each level, but the witness requirement was stricken by the trial court, see Middleton v. Andino, 488 F. Supp. 3d 261 (D. S.C. 2020) in a decision affirmed by the Fourth Circuit (such that it was eliminated, temporarily, see 990 F.3d 768 (4th Cir. 2020) (en banc)).  The Supreme Court stayed the decisions striking down the witness requirement, however, and it remained in place for the 2020 election. Andino v. Middleton, 141 S. Ct. 9 (2020).  The parties did enter into a joint stipulation that the state would provide prepaid postage for all absentee ballots in the 2020 election.   
  • Voter Registration SSN requirement.  A case brought by the South Carolina Democratic party challenging the state requirement that voters provide their complete Social Security Number to register to vote gave rise to a settlement eliminating that requirement.  S.C. Democratic Party v. Andino, 2020 WL 410120 (D.S.C. 2020)  

• Texas
  • Straight ticket voting.  The Texas Alliance for Retired Americans and Democratic party organizations brought a federal court challenge to Texas’s prohibition of straight ticket voting in mid-2020.  The challenge was successful at the trial court level, but was stayed on appeal such that the state’s ban on straight ticket voting was in place for the 2020 election.  Texas Alliance for Retired Americans v. Hughes, 976 F.3d 564 (5th Cir. 2020). 
  • Ballot receipt deadline/signature matching process.  The Texas Alliance for Retired Americans brought a federal court action challenging Texas’s received-by deadline and signature matching process.  A different case involving the same issues, filed by the League of Women Voters, reached judgment on these issues before the Alliance for Retired Americans litigation did.  A comprehensive trial court decision declined to alter the ballot receipt deadline, but the signature matching process was found unconstitutional.  The decision was stayed on appeal, such that the challenged law remained in place for the 2020 election.  Richardson v. Texas Secretary of State, 978 F.3d 220 (5th Cir. 2020).       
  • Challenge to limitations on absentee ballots.  The Fifth Circuit rejected a challenge brought by the state Democratic party to state law that allowed all of those 65 and older to request an absentee ballot as a matter of right, while limiting absentee voting to younger voters with a qualified excuse (e.g., disability).  Texas Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. 2020). 
  • Dropbox limitation.  In September 2020, Texas Governor Greg Abbott issued an executive order limiting the use of dropboxes by providing that only one dropbox per county could be used.  The Texas Alliance for Retired Americans and other Texas advocacy groups challenged that order in federal court.  They were successful at the trial court level, but the decision was stayed on appeal and Governor Abbott’s executive order was permitted to take effect for the 2020 election.  Texas LULAC v. Hughes, 978 F.3d 136 (5th Cir. 2020). 

• Wisconsin
  • Ballot receipt deadline/ witness requirement.  A federal action brought by the DNC weeks before the spring primary and continuing through the summer alleged that four of the state laws, including the state’s received-by deadline and mail ballot witness requirement were unconstitutional.  There were two trial court orders partially in the DNC’s favor — one before the primary, and one before the general election.  Each was ultimately stayed by an appellate court: in the case of the primary, by the Supreme Court; and in the case of the general election, by the 7th Circuit. RNC v. DNC, 140 S.Ct. 1205 (2020); DNC v. Bostelmann, 977 F.3d 639 (7th Cir. 2020).