By Thomas Catenacci
The 2020 election season has seen an unprecedented number of lawsuits as a result of the coronavirus pandemic and changing voting laws, which could ultimately sway the election’s outcome, according to experts.
More than 325 lawsuits have been filed since the primaries across 45 states, Washington D.C., and Puerto Rico as of Friday, according to Election Law Blog, which has tracked election litigation. As coronavirus spread rapidly through the country in March amid the ongoing 2020 primaries, states were forced to delay primaries and reevaluate existing voting laws, The New York Times reported.
“The amount of litigation is almost certainly going to be a record,” a law professor at the University of California, Irvine School of Law who runs Election Law Blog, Rick Hasen, told the Daily Caller News Foundation.
“We had a record in 2018, and things are even more litigious this year, in large part thanks to COVID,” Hasen said.
Broadly, much of the litigation has concerned states who opted against altering certain laws, which voting rights groups and Democrats demanded, Hasen added. Other lawsuits have come about as a result of states making changes that Republicans opposed.
“Almost all of them have been filed by the progressive left and their allies in the Democratic Party,” Hans von Spakovsky, manager of Heritage Foundation’s Election Law Reform Initiative, told the DCNF.
In September, Democratic presidential nominee Joe Biden’s campaign formally assembled a legal war room comprised of lawyers who are fighting cases nationwide, according to The Associated Press. Marc Elias, who was general counsel to former Secretary of State Hillary Clinton’s 2016 presidential campaign, is leading the war room.
Elias and his team have been involved in more than 60 cases, 18 of which are active, according to Democracy Docket, a website Elias created to “spotlight” voter suppression.
“They are trying to force states to push absentee or mail-in voting as much as possible,” von Spakovsky continued. “The second big thing is they’re trying to void any and all of the security protocols that states have in place for absentee ballots.”
The litigation has shined a light on the process of counting and rejecting absentee ballots. The most common causes of mailed ballots getting rejected are lateness, mismatching signatures and missing signature, all issues which have been central to ongoing lawsuits, according to FiveThirtyEight.
Many states have changed their voting policies for the Nov. 3 election, allowing more people to vote by mail, according to Vote.org. A record 76% of Americans have been able to vote by mail in the general election, according to The Times, making the issue extremely contentious as the election quickly nears.
Further, a whopping 75.7 million Americans have already voted, according to The U.S. Elections Project. More than 50 million of those early voters have done so by mail.
Here are the important issues that could significantly affect the election outcome.
“The greatest Election Fraud in our history is about to happen,” Trump tweeted on Aug. 23.
On Sept. 2, Trump tweeted that 2020 “will be the most corrupt election in history” and on Oct. 7, he tweeted that there are “Fake, Missing and Fraudulent Ballots all over the Country.” Twitter flagged the Oct. 7 tweet.
The Heritage Foundation established the Election Fraud Database, which has been cited by the White House. The database is a sampling, not a comprehensive list, of election fraud cases in which a conviction was secured or a state body determined fraud occurred, according to von Spakovsky.
The database has compiled nearly 1,300 proven instances of voter fraud in federal and local elections dating back to 1982. About 280 of the instances have occurred since 2015 and 14 have occurred since January.
However, an April report published by the Brennan Center for Justice said voter fraud is “incredibly rare” and less likely than getting struck by lightning. It added that localities employ several tools including identity verification, bar codes and harsh sentencing guidelines for those caught committing fraud.
The Center published a variety of studies, which it says show voter fraud isn’t rampant in the U.S.
But von Spakovsky said that this view, that fraud isn’t widespread, is misguided. While voter fraud might be rare, it can still be impactful in certain races, he added.
“Where fraud can make a difference is in a close election. And we have close elections all the time in this country,” von Spakovsky told the DCNF.
“When people vote, they’re not just voting on the presidential race,” he continued. “They’re voting for congressional offices. They’re voting for statewide offices. They’re voting for their state legislatures. They’re voting for county commission seats and town council seats.”
“And in many of those races, they’re won by a small number of votes,” von Spakovsky said.
The Public Interest Legal Foundation (PILF), a right-leaning legal group, has focused on inaccurate voter rolls to show the existence of voter fraud. PILF’s April report, which Trump cited, had made an error, according to ProPublica, and was later corrected.
PILF’s September report showed that there were 349,773 apparently deceased registrants across 41 states’ voter rolls. The report also purported to show that tens of thousands of voters voted twice in 2016 and 2018.
“Every problem that you see with election mailings, you can root it back to the voter roll itself because the address was wrong, the name was spelled wrong, or it was listed in the wrong precinct,” Logan Churchwell, PILF’s communications director, told the DCNF.
Pennsylvania officials announced on Oct. 14 that 29,000 voters had received wrong ballots. That incident came weeks after ballots in New York City, Atlanta and Washington, D.C. were reportedly sent to the wrong addresses. (RELATED: Nearly 300,000 ‘dubious’ ballots sent out just in L.A. county)
“These big counties that have hundreds of thousands, even millions of voters in them that are for the first time having to print ballots for everyone,” Churchwell said. “You can’t just go buy an HP printer at Walmart and start printing ballots with it. You have to engage with companies that have the printers.”
PILF discovered through open records requests that ballot issues have occurred in many places across the country, including in battleground states in the Midwest, according to Churchwell. Voters have reported receiving their ballot in the mail only to find card stock in the envelope, for example.
“Sometimes those companies that get the contract don’t have a lot of experience with ballots,” he added.
The Department of Justice (DOJ) outlined the wide-ranging approach it has implemented to investigate and prosecute voter fraud in a Thursday press release. It state that the DOJ will investigate all forms of election fraud including “destruction of ballots, vote-buying, multiple voting, submission of fraudulent ballots or registrations, and alteration of votes.”
Attorney General William Barr said in a statement: “Americans have the opportunity once again to help shape the future of this nation by exercising their right to vote. [The DOJ] will work tirelessly alongside other federal, state, and local agencies to protect that right as it is administered by state and local jurisdictions across the nation.”
Late-arriving mail ballots has been the subject of multiple lawsuits, some of which have reached the Supreme Court.
The Supreme Court upheld a lower court ruling on Monday in a 5-3 vote, prohibiting the State of Wisconsin from counting mail-in ballots that arrive days after the election. Citing the pandemic, voting rights groups, state and national Democratic parties and the League of Women voters had sought to extend ballot counting in Wisconsin, according to NBC News.
“In a Presidential election, counting all the votes quickly can help the State promptly resolve any disputes, address any need for recounts, and begin the process of canvassing and certifying the election results in an expeditious manner,” Justice Brett Kavanaugh said in the court’s opinion.
The ruling means Wisconsin residents must get their ballot in by 8 p.m. on Nov. 3, according to The AP. Roughly 80,000 ballots were received late during the state’s April primary.
On Wednesday, the Supreme Court contrasted its Wisconsin decision with opinions allowing the States of Pennsylvania and North Carolina to accept ballots after the day of the election, The Times reported.
First, the court refused to issue an order telling Pennsylvania elections officials whether to reject or accept late ballots. The court had previously sided with a state court on Oct. 19, which allowed ballots to be counted up to three days following the election even if they aren’t postmarked, CNBC reported.
Second, the court upheld lower court rulings, which allowed North Carolina elections officials to accept ballots nine days after the day of the election, according to the Times. The state legislature only called for a three-day extension.
Chief Justice John Roberts sided with Republicans in the Wisconsin case, but not in the Pennsylvania and North Carolina cases because the former involved federal intrusion on state law.
“While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes,” Roberts wrote.
Mismatched and missing signatures on ballots is the second most common cause for rejected ballots behind lateness, according to FiveThirtyEight.
“Instead of Florida 2000, where you had two guys with the magnifying glasses very carefully looking at punched holes in ballots, now they’re going to be looking at signatures,” Churchwell predicted.
Voting rights groups have argued that determining if a ballot’s signature matches the one on file can be subjective, according to FiveThirtyEight. Lila Carpenter, an American Civil Liberties Union Voting Rights Project paralegal, wrote in 2018 that a ballot signature requirement “affects voters already at the margins.”
“[Democratic Party’s lawyers] are trying to void out signature comparison requirements,” von Spakovsky said. “They don’t want that happening.”
The Brennan Center for Justice touted signatures as an important security measure to prevent voter fraud.
“We actually compare every single signature of every single ballot that comes in and we compare it and make sure that it matches the one on their voter registration record,” said Kim Wyman, Washington Secretary of State, CBS affiliate KEYE-TV.
On Monday, U.S. District Judge P.K. Holmes rejected a lawsuit that argued that the State of Arkansas should allow voters with mismatched signatures to correct their ballots, according to the AP.
However, U.S. District Judge Richard Gergel issued an order Tuesday halting South Carolina counties from rejecting absentee ballots due to missing or mismatching signatures, according to The State. Gergel ruled that counties who mull a signature rule must seek approval from the courts and allow voters to correct their signature.
“If any county board of voter registration and elections … is employing or plans to employ a signature matching procedure, it must stop doing so immediately,” South Carolina head of elections Marci Andino wrote in a directive to all local county boards, The State reported.
Drop Boxes and Curbside Voting
On Tuesday, the Texas Supreme Court upheld Republican Gov. Greg Abbott’s order that limited counties to a single drop-off box, according to the Texas Tribune. A federal appeals court had previously upheld Abbott’s order.
Plaintiffs argued that limiting each county to just one drop-off violated voters’ equal protection rights, according to the Texas Tribune. However, the judges on the state’s high court said Abbott’s order “does not disenfranchise anyone” since it provided other ways to vote.
Prior to the court’s ruling, the law firm challenging Abbott, the Campaign Legal Center, said in a press release, “if Abbott’s proclamation is allowed to stand, it will create voter confusion.”
A similar battle in Ohio over ballot drop boxes ended on Oct. 23 after the League of Women Voters and Ohio NAACP dropped their lawsuit, The AP reported. The groups had sued Ohio Secretary of State Frank LaRose over a directive he issued limiting counties to one ballot drop box.
“Boards of elections are prohibited from installing a drop box at any other location other than the board of elections,” the directive said.
Three separate courts ruling in the case ultimately favored LaRose, according to WBNS-10TV. On Oct. 12, the 6th Circuit Court of Appeals ruled in a 2-1 decision that LaRose’s ballot box directive was lawful.
The majority opinion ruled that the order was “unlikely to harm anyone” given the many other ways Ohio residents could vote, WBNS reported.
Curbside voting for disabled and sick people is widely available including in states like Michigan, Texas, and North Carolina. However, some state officials have prohibited such voting for security reasons.
Alabama Secretary of State John Merrill opposed curbside voting, which he labeled “illegal activity,” since it would break the chain of custody for ballots, according to AL.com.
On Oct. 21, the Supreme Court sided with Merrill and his fellow Alabama Republicans and granted their request to prohibit curbside voting.
“Post-election litigation, on the presidential level, will matter only if the election is so close in a state that is pivotal for an electoral college victory that it would make sense to bring suit,” Hasen said.
Churchwell and von Spakovsky agreed that post-election litigation will depend on the election results. If the race is close, both agreed that the litigation would revolve around the rejected ballots.
About 300,000 mail-in ballots were rejected in the 2016 election, according to an ABC News analysis. More than 500,000 were rejected during the 2020 primaries, including 23,000 in Wisconsin. Trump won the state by roughly 22,500 votes in 2016, the Times reported.
“There frankly may be some pretty fierce litigation over those ballots that got rejected or litigation over ballots being counted, for example, after Election Day that we’re missing information required by state law,” von Spakovsky said.
Further, following Justice Amy Coney Barrett’s confirmation to the Supreme Court on Monday, the court will not issue 4-4 decisions if it were to review post-election litigation, if she does not recuse herself. Although Barrett has recused herself from election cases since joining the court, she declined to commit to recusing herself from all cases during her confirmation hearings, according to CNN.
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