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Who's Faring Best in the Election Lawsuits?

Wooden judge gavel, legal book, letters vote and numbers 2020. Concept of election in year 2020.
By Richard Dahl on October 22, 2020 3:17 PM

Every day, or so it seems, we read about another court that's made an important ruling on voting rights.

The arrival of the coronavirus pandemic earlier this year prompted an unprecedented number of lawsuits to expand or restrict measures to allow people to avoid dangerous Election Day voting lines. Those who keep count say there have been a jaw-dropping 350 or so of such lawsuits, and they've come from both sides of the political aisle.

Generally, Democrats and Joe Biden's campaign have fought to relax rules they say are dangerous or unnecessary during the pandemic. Republicans and President Trump have sought to restrict these measures.

But there have been so many of these court challenges that it's hard to keep up. One day we read about a state that has made it easier to vote and the next day we read about one that has made it harder.

The Lay of the Legal Land

The wins for voting-rights group take a variety of forms. Some states have created or expanded processes for voters to fix defective ballots. Some have moved to start counting ballots before Election Day. And some have extended the deadline for counting ballots that were received after Election Day if they were postmarked by that day.

Opponents of these measures have also been successful in many states. For example, attempts to extend ballot deadlines failed in Florida, Maine, New Hampshire, and South Carolina. Opponents of expanded “ballot harvesting" measures – allowing volunteers to collect sealed ballots for delivery to election officials – have also been successful in several states.

The use of drop boxes for ballot collection has also been the subject of substantial litigation. A handful of states expanded the use of drop boxes in recent months, but opponents have pushed back with some success. On Oct. 12, for instance, a three-judge federal panel upheld an order by Gov. Greg Abbott, a Republican, to restrict their use to one per county.

Do We Know Who's Winning and Losing?

So, is anyone keeping score? Is one side getting the better of the other? If so, which one?

In large part, it depends on whom you ask. With just a few weeks remaining before Election Day, both sides were claiming victory.

But if we step back, can we detect any broad trends?

The answer is yes.

One of the trends, according to Rick Hasen, a law professor at the University of California-Irvine, is that efforts by President Trump and the Republican Party to claim that expansion of voting rights by mail and drop boxes heightens the likelihood of voter fraud have all been unsuccessful.

Another trend noted by Hasen and the New York Times is that federal appeals courts have lately been turning the tide on earlier successes enjoyed by voting-rights plaintiffs in federal district courts.

“There has been a very significant number of federal voting rights victories across the country and those in the last week or two – many if not most – have been stayed by appellate courts," Wendy R. Weiser, the director of the Democracy Program at the Brennan Center for Justice at New York University, told the Times. “We're seeing the brakes being put on the voting rights expansion at the appellate level in these jurisdictions, in many cases in ways that won't be remediable before the election."

The Supreme Court and Pennsylvania

Meanwhile, the most important development may be an October 19 U.S. Supreme Court ruling that upheld a Pennsylvania Supreme Court decision that made it easier to vote by mail. While this is a victory for Democrats in a key battleground state – at least for now – many legal experts think it may be more beneficial to Republicans if there is post-election litigation.

Here's why:

The justices deadlocked on this case, 4-4, which means that the lower court's ruling stands. It means that the U.S. Supreme Court has provided no guidance on the central issue this case raises: Whether a state supreme court has the final word on state laws or whether a legislature of a different political persuasion does.

This situation raises the possibility that the question will be revisited if there is post-election litigation and (presumably) Justice Amy Coney Barrett could cast the tie-breaking vote. If it comes to that, it could mean ballots will be tossed and it could be enough to swing the election.

Still, one thing should be clear by now: Nobody really has any idea what will happen after Nov. 3.

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