Let's Talk About Election Litigation

Election Litigation Roundup

We’re going to be following election-related court cases for the next few weeks—at least. Lawsuits may well determine the outcome of this election. They get filed for lots of reasons before the election: Typically, Democrats challenge measures they see as voter suppression, laws that make it more difficult or even impossible for eligible citizens to vote, like identification acts or mass purges of voters from electoral rolls. Republicans challenge what they think is voter fraud, like this election cycle’s host of allegations—despite the fact that there is no evidence of it and they are losing in court—that noncitizens are voting.

This cycle, Republicans are filing so many meritless cases that it’s fair to wonder if their goal isn’t to win legitimate cases at all. Those cases are useful as a way to try and convince voters, in advance of the election, that the system is rigged against Trump.

We have been there before, of course.

But the Republican National Committee (RNC) and other MAGA plaintiffs are having no more success in court this go-round than they had in 2020 when they lost 61 of the 62 cases they brought challenging the election. MAGA’s efforts to disenfranchise voters continues, but the good news is, they are not succeeding. Courts continue to reject cases that would make significant changes too close to the election or that run afoul of long-established principles. Tonight, we take a look at developments in some of the most important cases.

On Monday, courts in Michigan and North Carolina rejected efforts by Republicans to disqualify the ballots of some categories of military voters and Americans abroad. The RNC and the North Carolina Republican Party appealed the following day. Both cases targeted people who have never lived in the state their absentee ballots are counted in, but were born overseas to parents who were residents of the state and so are permitted to vote there. The Michigan case also targeted the spouses of military and overseas voters. The judge in North Carolina noted there was no legitimate reason to treat an entire group of citizens who are eligible to vote differently from other voters.

Tuesday, the Georgia Supreme Court rejected an appeal by the RNC asking the state’s high court to permit laws recently adopted by the State Election Board to stay in effect. The Court continued the block, imposed by a superior court judge, of rules that could delay certification and require a hand count of ballots. 

Tuesday in Michigan, a federal judge rejected a lawsuit brought by the RNC over its dissatisfaction with how Michigan officials are maintaining voter rolls. It wanted the court to give it access to information it could use to peer over the secretary of state’s shoulder and criticize the job she’s been doing. The RNC claimed it needed to purge allegedly “ineligible” voters she’d missed from Michigan's rolls. Judge Jane Beckering rejected the RNC claims as “speculative,” which was generous, given that Michigan has carefully updated its voter rolls for this election.

In Nevada, a lawsuit brought by Washoe County against Postmaster Louis DeJoy was dismissed on Monday, after DeJoy abandoned his plan to outsource the county’s mail processing to California, which the suit said would have delayed ballot processing. The county argued the Postal Service failed to win approval from the Postal Regulatory Commission before it set its plans in motion and that the plan would violate federal law. This change would likely have impacted future elections, not this one, but it shows that a well-timed lawsuit that is meritorious—here, the county was trying to protect its voters—can get results.

A case decided earlier this month in Pennsylvania involved whether voters could cure defective mail-in ballots. What happens if you write in your birthdate instead of the date you mail your ballot? Or make another technical but irrelevant error when you fill it out or put it back in the envelope to mail it in? Shouldn’t you get to fix that error? The RNC sued, saying no. The state Supreme Court rejected their argument and held that counties that offer notice-and-cure procedures can continue to do so, enabling those voters to cast a ballot.

In Arizona, a case based on a state law that requires voters to provide proof of citizenship, which violates the Motor Voter Act and runs the risk of disenfranchising young, elderly, or impoverished voters who may not have the limited documents necessary (primarily a passport or certified copy of their birth certificate) available. The Maricopa County Recorder wanted to invalidate old voter registrations just weeks ahead of the election based on allegations citizenship data hadn’t been collected for some voters. A judge said there was no authority for them to disenfranchise those votes and that, in any event, it was too close to the election. In a case along a similar line, the ACLU went to federal court in Ohio today to prevent naturalized citizens from being singled out and required to show citizenship papers before they vote, which violates a 2006 court order. Trump’s camp has been making up claims noncitizens are voting and is trying to block American citizens from voting, just because they are immigrants.

There is a longstanding rule called the Purcell principle that rejects changes offered too close to elections because they are confusing and can make it too difficult for officials to administer the election. Many of these cases, which are based on lies about noncitizen voting and voter fraud, are attempts to remove voters from the registration rolls within the 90-day “quiet” period where the NVRA forbids that. It’s shocking to see Republicans trying to disenfranchise military voters, too.

We discussed RNC v. Wentzel back in September, just ahead of oral argument before the Fifth Circuit. That case is still pending. The court has not ruled, even though the issue involves counting ballots in this election, the kind of case most courts prioritize this close in time. In Wentzel, the RNC challenged a Mississippi law that permits mail-in (absentee) ballots that are received up to five business days after the election to be counted, so long as they are postmarked by election day. These absentee ballots are used by folks in the military who are stationed abroad and their families, Americans who live abroad, and others who need an absentee ballot.

The ballots were mailed out this year with instructions that so long as they were postmarked by election day and received on time, they would count. A win for the RNC would leave those voters with no recourse, and it’s hard to imagine even the Fifth Circuit doing that. But the longer this case sits without a decision, the more difficult it becomes to avoid speculating the court could be holding it to issue another bombshell opinion, like the one that sent Dobbs on its way to the Supreme Court and upended 50 years of abortion rights. That’s because the RNC argues in this case that election day means election DAY, and not up to five days later. That same argument could be used to argue against early voting too. All of this seems like meshugaas in a country that relies heavily on early voting, but we also relied on abortion rights and the Voting Rights Act for decades too. So, while this case should be an easy one, and that’s what I expect, that the court will reject the argument that absentee ballots received after election day cant be counted, it may do that for this election but leave issues of both pre-and post-election day ballot counting open for future elections. It is, after all, the Fifth Circuit.

Why file so many weak cases? Part of it is throwing spaghetti up against the wall in hopes a few strands might stick. Maybe they’ll find a Judge Aileen Cannon or a Matthew Kacsmaryk, who is ideologically aligned with them. Or maybe they can convince voters they should just stay home because it will take a lot of time to vote and their vote probably won’t even get counted—or matter at all if they don’t live in a swing state. Why bother, this narrative goes. It’s the ultimate form of voter suppression that Republicans are running out of their playbook this year.

Push back against those voter suppression narratives with everything you’ve got if they’re circulating around you! You may have heard some of this without even realizing that’s what it is. Been told that your vote doesn't matter unless you're in a swing state? That's a narrative designed to suppress your vote, to convince you it's not worth the effort. And it's not true. For one thing, there are the down-ballot races; control of the Senate and the House is at stake, and it’s essential to the future of the many issues we care about, like abortion and climate change, if not to democracy itself. Your state and local races will have enormous significance for your future, as will the state constitutional amendments on some of our ballots, like the Florida abortion rights measure we discussed on Tuesday.

Turnout matters. If there is massive turnout and a Harris win, it make it much more difficult for Trump to claim he lost due to fraud. An election where the difference in votes is 10,000 or 50,000 is very different from one where it's 250,000. Turnout matters. Everyone should go vote.

As we often reflect here, people wouldn't be trying so hard to keep you from voting or to keep your vote from counting if it weren't so important. If there's one message to share with our friends and neighbors right now, it's this: vote like your future depends on it. Or like your daughter's future depends upon it. Because it does.

Election Day is less than two weeks away. Hang in there.

We’re in this together,

Joyce