Thanks in part to the Supreme Court’s signals in 2014 that courts resolve election litigation well in advance of the election, many of the hottest disputes have already been resolved. But there is still a fair amount of major election litigation still to be resolved, now a little more than two months before Election Day (and just a few weeks before the beginning of early voting in some places).
Among the most important issues already resolved for Election 2016: Texas has considerably softened its strict voter identification law, thanks to a 5th Circuit en banc decision which the Supreme Court rushed to decision for mid-July. (There may still be an attempt to take this to the Supreme Court to overturn it in future elections). North Carolina‘s strict set of voting rules, including its voter id law, were blocked by the 4th Circuit for use in this election, and the Supreme Court deadlocked over what to do about it. (There’s a promised cert. petition to the Supreme Court after the election in this case too). Wisconsin’s strict voter id law, and some of its other laws, have been found to be unconstitutional or in violation of the Voting Rights Act. The 7th Circuit rejected an attempt to allow affidavits instead of IDs to vote in the 2016 election, but crafted a compromise allowing some people who go to the DMV to start an identification process to vote in this election.
Here’s the major litigation left that we know of (with more cases potentially being filed as the election gets closer);
Ohio: The 6th Circuit blocked a district court order requiring Ohio to keep its “Golden Week,” which it tried to eliminate, allowing registration and early voting during one week before the election. Democrats have gone to the Supreme Court trying to get that order reversed. We should hear something late this week or early next week. I expect Democrats to lose. We are still waiting for 6th Circuit rulings on a case involving provisional/absentee voting, and one on an Ohio vote purge. (The Supreme Court also rejected an attempt by Gary Johnson to get him listed as a Libertarian on the Ohio ballot).
Michigan: The state has asked for the Supreme Court to stay an order requiring Michigan to keep using straight-ticket voting this election. I expect the order by Thursday (the ballot printing deadline) and I expect Michigan to lose. Michigan Republicans do not want voters who reject Trump to have an easy way of rejecting the entire Republican ticket.
Arizona: Democrats are looking for a court order to make sure that the long lines that materialized in the primary will not reappear on election day. The case may partially settle.
Kansas/EAC: The D.C. Circuit is considering an appeal over the issue of whether an EAC bureaucrat exceeded his authority when he allowed Kansas and Arizona to require documentary proof of citizenship for voters who register to vote in federal elections using the federal form. There is also litigation over the “dual” voting system that SOS Kobach has put in place over the objections of voting rights activists. There’s another one of these Kansas cases pending before the 10th Circuit. And there is a state court case about Kobah’s dual voting system.
[If you want details on any of these cases, use the search box on ELB or check out the Major Pending Election Cases at the indispensable Election Law @ Moritz website).