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State Voting Rights Litigation: An Overview

Democrats vs republicans are facing off in a ideological duel on the american flag. In American politics US parties are represented by either the democrat donkey or republican elephant
By Richard Dahl on September 21, 2020 7:10 AM

If you think the run-up to the Nov. 3 general election couldn't become more confusing, you're probably not paying close enough attention. At the moment, more than 200 voting-related lawsuits are awaiting resolution in state and federal courts.

Election-year legal challenges over voting procedures are nothing new, but there's never been anything like this year. Even before the emergence of the coronavirus, experts anticipated a record number of election-year lawsuits directed at state voting restrictions. With the arrival of the pandemic, the voting-related litigation has risen to astonishing levels.

According to Rick Hasen, a law professor at the University of California, Irvine, who tracks this sort of thing on his Election Law Blog, there were 248 of them as of Sept. 15.

Most of these cases have been brought by Democrats and progressive organizations seeking to expand the availability of voting by mail.

But, as CNN has reported, the Democrats and progressive organizations aren't the only ones filing suit. So are Republicans and conservative organizations.

When the conservatives do pop up in court, it's often in the form of the Republican National Committee, which has launched a “Protect the Vote" campaign. On Sept. 16, RNC listed 19 states in which it had brought, or intervened in, voting-related lawsuits to counter the voting-expansion efforts that, in RNC's view, threaten “the integrity of our elections."

In addition, the Trump campaign itself has brought three federal lawsuits – in Nevada, New Jersey, and Pennsylvania – over those states' efforts to expand voting by mail.

Making Sense of All This

The sheer volume of all this litigation is vast, but several legal experts and organizations are monitoring the activity. Hasen's Election Law Blog (mentioned above) is one. Another is the University of Michigan Law School's Civil Rights Litigation Clearinghouse, which has launched a project that tracks COVID-19 litigation, much of which is election-related. Somewhat conversely, the Brennan Center for Justice is tracking voting-rights litigation, much of which is related to COVID-19.

Meanwhile, SCOTUSblog and Election Law at Ohio State recently launched a 2020 “Election Litigation Tracker" that identifies the most important current cases making their ways through court systems.

Finally, another good source for making sense of all this litigation is a Sept. 3 Q-and-A article in Politico's digital magazine with law professor Justin Levitt, who specializes in election law at Loyola Marymount.

Courts Have Begun to Rule

With less than two months to Election Day, courts started to issue decisions. During the week of Sept. 7, four important rulings in three states made national headlines:

  • In Florida, a federal appeals court ruled that Floridians who have completed felony sentences must pay all fines and fees before they can vote. The ruling, which affects more than 700,000 former felons in that battleground state, reversed a ruling by a judge in a lower federal court.
  • Ruling on a challenge by a Green Party candidate, the Wisconsin Supreme Court ruled 4-3 to halt the printing of absentee ballots. Three days later, however, the court reversed itself and vacated the earlier ruling. Had the earlier decision stood, it would have meant that county clerks could not meet a Sept. 16 deadline for distributing ballots to municipalities
  • Two court rulings in Texas affected mail voting during the pandemic. In one, a federal appellate court sided with the state's Republican leadership to keep the state's age limit of 65 in place for absentee voting – Democrats had sought to eliminate the age limit. In the second decision, on Sept. 11, a state judge sided with Democrats in ruling that Harris County could send out absentee ballot applications to all 2.4 million of its registered voters. Attorney General Ken Paxton then announced that he was filing an emergency appeal of that decision to the state supreme court – and on Sept. 15, the court ruled that the ballot applications cannot be sent until the appeal is concluded.

Small Decisions Can Have Major Impacts

Summarizing all this litigation, the point is this: Court decisions can have an impact on voter turnout. Prohibiting several hundred thousand formerly incarcerated people in Florida from voting could be an important factor in determining the outcome in that state, which President Trump won in 2016 by 112,911 votes.

The recent court decisions in Texas, where polls are revealing a surprisingly tight race between Trump and Democratic nominee Joseph R. Biden Jr., could be critically important. The same is true in Wisconsin.

As election day nears, there will be more news of court decisions that could determine election outcomes. They may seem small in the grand electoral scheme of things. But they are not.

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