“A crush of lawsuits over voting in multiple states is creating a shadow war for the 2024 election”

AP reports:

“The Republican National Committee, newly reconstituted under Trump, has filed election-related lawsuits in nearly half the states. Recent lawsuits over voter roll maintenance in Michigan and Nevada are part of a larger strategy targeting various aspects of voting and election administration. …

“Democrats and legal experts are warning about how the lawsuits might overwhelm election officials and undermine voter confidence in the the results of the balloting.

The Democratic National Committee has a legal strategy of its own, building “a robust voter protection operation, investing tens of millions of dollars,” to counter the GOP’s efforts that seek to restrict access to the polls, spokesperson Alex Floyd said. …

“Voter ID rules, mail ballots and voter roll maintenance are among the RNC’s litigation targets. The latest is a lawsuit this month alleging that Michigan has failed to keep its voter rolls up to date. …

“A federal appeals court earlier sided with the RNC in a lawsuit in Pennsylvania questioning whether officials should count improperly dated absentee ballots. A Wisconsin lawsuit is targeting absentee voting procedures and ballot drop boxes. An RNC lawsuit in Arizona is aiming to invalidate or adjust the state’s 200-page elections manual while another in Mississippi seeks to prevent mail ballots from being counted if they are postmarked by Election Day but received days later. …

“Democracy groups and legal experts said the lawsuits could pave the way for false narratives challenging the validity of the 2024 election while consuming time and staff at election offices across the country.”

I’m not sure that I agree with the assessment that these lawsuits will reduce voter result in the elections. As Rick Hasen told the reporter, “most of the lawsuits are unlikely to win in court.” Insofar as this is the case, and especially when the judges rejecting the suits are Trump-appointed or otherwise seen as aligned with the GOP, then the narrative should be that the election will be conducted according to the rules that exist–as it should be. And if the GOP wins some of these cases in court, as in the Pennsylvania one mentioned in the piece, then the lawsuits are serving the purpose of making sure that the election is properly conducted pursuant to existing laws.

Democrats and allied groups have brought pre-election litigation for years and years, hoping to change the rules by which the election is conducted. The right to do so isn’t confined to parties and groups on the left. And insofar as these lawsuits are inappropriately disruptive if and when filed too close to the election itself, then the Purcell doctrine precludes consideration of their merits whether the plaintiffs are on the left or the right.

In considering one’s attitude towards this kind of pre-litigation, it’s necessary (at least for so-called “election experts”) to be impartial as to whether these lawsuits aim to change to rules to benefit Democrats or Republicans. Both parties want election laws to be most favorable to their side, and both sides pursue changes to election laws in the legislature as well as in court. But once the legislature has settled on the statutory rules for that particular election, and as long as those statutory rules are consistent with constitutional law (impartially interpreted), then the only role for pre-election litigation should be to make sure election administration practices conform to the applicable statutory law. If confined in this way, this kind of litigation should not interfere with the proper conduct of the election–or the public’s trust that the election is properly conducted. It’s only if either side succumbs to the claim that they lost the election solely because of the applicable laws, then there’s the risk that the voters for the losing side will feel robbed. But it’s the responsibility of both parties to tell their supporters that the result of the election is valid as long as the laws for conducting it are followed properly, even if the losing side wishes that the laws for conducting the election had been different.

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“Assembly as Political Practice”

Columbia’s actions this past week, especially its decision to invite the NYPD onto campus, have prompted me to post a new chapter, “Assembly as Political Practice,” forthcoming in the Oxford Handbook of Peaceful Assembly (Tabatha Abu El-Haj, Michael Hamilton, Thomas Probert & Sharath Srinivasan, eds.). Recent events highlight the interrelationship between protest politics and electoral politics, the rise of a new McCarthyism focused on educational institutions, its power, but also the pervasive devaluing of it as a form of politics. Most disheartening to me personally is the widespread perceived reasonableness of Columbia’s actions including among First Amendment scholars. It stems, in my view, from a misconception of assembly as a lesser form of speech and an inclination to over estimate the risks of disorder.

“[A]ssemblies come in a range of . . . forms, including annual parades, smaller political protests, and weekly gatherings of social groups. All these forms of assembly sustain and reinforce the capacity for democratic politics, and their value does not turn on their expressive ends alone. Both the possibility of effective democratic politics, and a proper construction of the right of peaceful assembly, demand that we recognize the value of assembly, as assembly, and its latent and constitutive political functions.”

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“Supreme Court declines to decide if vote-by-mail restrictions discriminate in some states”

USA Today:

The Supreme Court on Monday declined to decide if states that automatically let senior citizens vote by mail must let younger voters do the same, an issue that could affect millions of voters…..

Seven states – Texas, Indiana, Kentucky, Louisiana, Mississippi, South Carolina and Tennessee – allow older voters to request an absentee ballot for any reason but let others do so only under certain circumstances.  

The court on Monday rejected a challenge to these rules brought by three voters in Texas, just as it rejected a similar challenge in 2021 to Indiana’s voting rules. It also twice declined to hear earlier versions of the Texas suit brought by the Texas Democratic Party during the pandemic.

The challengers argued that the unequal treatment of voters is age-based discrimination prohibited by the 26th Amendment.

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