Voting Rights Roundup: Key 2020 Court Battles Take Shape as Supreme Court Threat to Mail Votes Looms
LEADING OFF
● Supreme Court: This week, the Supreme Court set the stage for what could be the most important legal battle of the 2020 elections with its rulings in major cases over whether mail ballots may count if they are postmarked by Election Day but received afterward.
These cases rely on a radical constitutional theory that would effectively overturn the foundation of federalism and eliminate state-level judicial review when state courts try to safeguard voting rights from hostile GOP legislatures. In a worst-case scenario, this approach could allow the Supreme Court's far-right majority to throw out thousands if not millions of valid absentee ballots and potentially change the outcome of the election.
The conservative justices first reversed a lower court ruling in Wisconsin allowing postmarked ballots to count while refusing to overturn a state Supreme Court ruling in Pennsylvania that did permit such ballots count and a settlement by North Carolina officials extending the deadline by when postmarked ballots must be received after Election Day.
Shortly after those rulings came down, a panel of mostly conservative judges on the 8th Circuit Court of Appeals issued one of the most flagrantly partisan and undemocratic decisions in years to disqualify postmarked ballots in Minnesota—a ruling that experts lambasted as "outrageous" and "indefensibly wrong" as we'll explain below.
While North Carolina and Pennsylvania decisions appear on the surface to be victories for voting rights, they may be short lived, because the issues of postmarked ballots could swiftly return to the Supreme Court after Election Day. It's very possible the court's new hardline right-wing majority could invalidate votes after Election Day even though they were properly cast at the time voters mailed them, an outcome that would be an unprecedented judicial abrogation of the right to vote.
If voters have not already voted, they should forget about returning their absentee ballots by mail and risk them not arriving on time. To mitigate the impact of a hostile judiciary, they should instead return their mail ballots at a drop-box, polling place, or local elections office if their state or locality allows it, and if that isn't an option, voters should vote in-person and do it early if that's allowed where they live.
Common to many of these cases above are two legal principles, once of which stems from a 2006 Supreme Court ruling called Purcell v. Gonzales that gave rise to the so-called "Purcell principle." That principle says courts should be sternly reluctant to change election laws or procedures close to an election in an effort to avoid voter confusion or strains on election administration. Even when some election rules may be unconstitutional, federal courts are supposed to apply a much higher burden for overturning them to avoid creating chaos (state courts operate under different procedures varying based on state constitutional law).
Citing Purcell, the Supreme Court's conservatives refused to overturn a 7th Circuit Court of Appeals decision that overturned a lower court ruling requiring postmarked ballots to count in Wisconsin. But while the Supreme Court in Purcell did not say that no changes may ever be made when an election is near, many conservative judges have interpreted that guideline this year to block any relief for plaintiffs no matter how egregious the alleged constitutional violations.
The extraordinary circumstances of the pandemic, combined with Donald Trump's ongoing sabotage of the postal service creating unprecedented delays in mail delivery service, could very well have entitled the plaintiffs to relief in Wisconsin and many related lawsuits. Yet in case after case where lower federal courts have blocked GOP voting restrictions due to the pandemic, the conservatives on the Supreme Court and courts of appeals have overturned such rulings by citing Purcell regardless of how serious the violation of constitutional rights, with the high court often granting emergency stays that don't require it to provide any written explanation.
Right-wing judges over the last few weeks have brazenly wielded Purcell as a partisan cudgel against Democrats by selectively enforcing it to almost-consistently benefit Republicans and hurt voters. The Minnesota ruling in particular offers a stark illustration.
In that case, an 8th Circuit panel ruled 2-1 along ideological lines that Democratic Secretary of State Seve Simon had likely exceeded his powers and usurped the legislature's authority when he agreed three months ago in a lawsuit to count postmarked ballots received up to Nov. 10. The 8th Circuit directed Simon to segregate any postmarked ballots that arrive after Election Day as the case proceeds in case it finds his actions unlawful, strongly implying that the judges will toss out those ballots after Election Day when they issue a final ruling on the merits.
Granting a GOP lawsuit filed in September with just weeks to go, the court in Minnesota itself changed election procedures with just five days left until Election Day and after some mail voters had already voted with the postmark provision in mind. That outcome makes a mockery of Purcell by treating it as a one-way partisan ratchet for the GOP in which Republicans are allowed to wage last-minute challenges to attack voting rights—even changing the rules after ballots have been cast—but Democrats aren't allowed to do so to protect them.
Likely anticipating the catastrophic effects of an adverse ruling that could come from a potential appeal, Simon and Minnesota Democrats announced on Friday that they would hold off on trying to overturn the 8th Circuit ruling. Simon emphasized that "there is no ruling yet saying those ballots are invalid" and that Minnesota reserves "the right to make every argument after Election Day that protects voters."
While Purcell has largely guided federal courts, state courts operate under different rules due to two centuries of precedents establishing the guidelines of federalism, the second principle common to these cases. For that reason, it's particularly alarming that the Supreme Court has even considered potentially overturning state Supreme Court rulings in Pennsylvania and North Carolina where those courts were adjudicating issues based solely on state constitutional concerns without any questions of federal law at issue in good faith.
The Supreme Court left a ruling by the Democratic majority on Pennsylvania's Supreme Court in place when, for the second time in recent weeks, it refused the GOP's request for a stay that would block ballots postmarked by Election Day and received up to three days later. In two separate lawsuits over a settlement where the Democratic majority on North Carolina's state Board of Elections extended the deadline by when postmarked ballots must be received from Nov. 6 to Nov. 12, the Supreme Court refused to overturn a federal lower court ruling and refused to reverse a ruling by the majority-Democratic state Supreme Court that had upheld the settlement just days prior.
But each of these cases remain ongoing, and their fates appear ominous for voting rights based on how the justices ruled on the requests for the stays and Justice Brett Kavanaugh's separate opinion in the Wisconsin case. Three justices, Clarence Thomas, Samuel Alito, and Neil Gorsuch all would have gone nuclear in North Carolina and Pennsylvania by granting the stays, accepting an extreme and unprecedented view of the U.S. Constitution's Elections Clause.
The Elections Clause gives the "legislature" in each state the power to set the "times, places, and manner of holding" federal elections (though Congress "may at any time make or alter such regulations"). Republicans argue in these cases and in Minnesota that this clause only empowers the state legislature itself, not those who hold the power to set laws under state constitutions such as state courts, voters (via the ballot initiative process), or potentially even governors when they exercise their veto powers.
The Supreme Court rejected this interpretation of the Elections Clause in a 5-4 ruling in 2015 upholding the right of Arizona voters to strip their GOP-run legislature of the power to control redistricting by using a 2000 ballot initiative to create an independent redistricting commission. However, two of the justices in the majority in that ruling, Ruth Bader Ginsburg and Anthony Kennedy, are no longer on the court and have since been replaced by justices much further to their right.
While Thomas, Alito, and Gorsuch are not a majority on their own, Kavanaugh strongly cast doubt on the legality of counting postmarked ballots that arrive after Election Day in his Wisconsin ruling, a decision that drew fierce criticism over factual inaccuracies and Kavanaugh's having concocted a notion that "states also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter." Especially worrisome is that Kavanaugh approvingly cited a theory in the Supreme Court's infamous case Bush v. Gore, which decided the 2000 election for George W. Bush.
Kavanaugh's statement appears to support Trump's bogus claims that votes counted after Election Day, potentially even those that were received and not just postmarked by Election Day, are somehow illegitimate, and it's at odds with two key facts. First, no state does or ever has had official declarations of a winner on Election Night, and every state counts ballots such as provisionals and military ballots from abroad in the days or even weeks afterward. Federal law acknowledges as much by setting Dec. 8 as the last day to certify votes ahead of the Dec. 14 vote by Electoral College electors.
Second, the Republican legislatures in Wisconsin and Pennsylvania, both of which saw Democrats win more votes in 2018 but the GOP win gerrymandered majorities anyway, have refused to pass laws that would allow election workers to even begin preparing absentee mail ballots for counting ahead of Election Day. Nearly every other state lets workers begin processing such votes early even if they may still have to wait until Election Day to count them, and Pennsylvania and Wisconsin's inability to do so could drag out the vote counting past Election Night.
Because Trump's demagoguery against mail voting has meant that Democrats are voting by mail at much higher rates than Republicans, Trump has made it clear that he plans to try to overturn an election loss by claiming victory on Election Night based on a partial count even in the likely event that late-counted mail ballots ultimately cause him to lose. While Kavanaugh did not side with his three colleagues who would have granted these stays, he left little doubt where his inclinations lie on the merits.
That leaves new Justice Amy Coney Barrett, who did not weigh in on the requests for the stays. However, Barrett made clear via a spokesperson that she was not recusing herself but had simply not had time to get caught up to speed on the briefings, something that won't necessarily be the case if these cases return to the Supreme Court in the coming days. Trump himself has let slip that he rushed Barrett's appointment to the court just eight days before Election Day precisely because he wanted her to decide the election in his favor.
Consequently, there is a dire risk that all of the Supreme Court's conservatives aside from Chief Justice John Roberts could rule after Election Day against counting these postmarked ballots. Such a ruling would be an unprecedented assault on the sanctity of the election and a denial of due process afforded to voters in countless past cases, and such an outcome could spark a historic public backlash against the court itself.
If there's one silver lining, it may be that the potential for backlash could give the conservative hardliners pause to avoid giving congressional Democrats the public standing they would need to expand the Supreme Court by adding new justices in response. Furthermore, the potential margin of Trump's defeat itself may play into Kavanaugh and Barrett's willingness or lack thereof to brazenly discard votes, and if the polls are anywhere near close to the mark, Trump is poised to decisively lose next week.
Nevertheless, the fact that five justices on the Supreme Court appear very open if not eagerly willing to upend two centuries of established law, all to help a historically unpopular and authoritarian president cling to power in the face of a looming decisive defeat, is itself ample reason for Democrats to reform the court itself should they nevertheless overcome these barriers and win the presidency and Senate on Tuesday.
If they don't, the Supreme Court's conservative hardliners could make nakedly partisan rulings attacking the right to vote for years if not decades to come.
(Note: Daily Kos Elections contributing editor Arjun Jaikumar is representing a party in this Pennsylvania litigation. He took no part in the production of this writeup.)
FELONY DISENFRANCHISEMENT
● Tennessee: A state court has dealt a setback to voting rights advocates by ruling that Tennessee is not required to alter its felony disenfranchisement regime to restore voting rights to people with felony convictions from other states based on how the state where they were convicted treats voting rights for such individuals.
Felony disenfranchisement is more restrictive in Tennessee than almost anywhere else in the country, requiring voters to have completely served all parts of their sentence including prison, parole, and probation, and some of the most serious offenses result in lifetime disenfranchisement. Furthermore, Tennessee requires the payment of court fines and fees before voters may regain their rights, which results in post-sentence disenfranchisement potentially for life for those unable to pay off such assessments.
Consequently, 9% of Tennesseans are banned from voting, nearly the highest rate of any state, including 22% of Black voters, which is the highest rate in the country after several states have adopted reforms to lessen their disenfranchisement rates in the last several years. It's unclear how many of those affected would see their rights restored if Tennessee treated out-of-state convictions similarly to how those voters would have been treated in their native states.
ELECTION CHANGES
Please bookmark our litigation tracker for a complete summary of the latest developments in every lawsuit regarding changes to elections and voting procedures as a result of the coronavirus.
● Alaska: The Alaska Supreme Court, which has a GOP-appointed majority, has rejected a lawsuit asking that voters be notified of any problems with their mail ballots and be given a chance to fix them before Election Day. The state already requires officials to notify voters of any issues after the election.
● Arkansas: A federal court has rejected a lawsuit asking that Arkansas voters be notified of any problems with their mail ballots and be given a chance to fix them. Arkansas is one of only four states that does not give voters the opportunity to address any alleged signature mismatches.
Separately, voting rights advocates have filed a lawsuit in state court challenging a state law that says that absentee ballots may only be counted on Election Day. Election officials say they plan to keep counting such ballots "regardless of how long it takes to complete the process." It appears that the case has since been transferred to a federal court.
● Georgia: Republican-appointed judges on the 11th Circuit Court of Appeals have stayed a lower court ruling that required election officials to maintain paper backups of voter registration records at polling sites in the event of failures with the state's electronic voter check-in system that marred Georgia's June primary.
● Missouri: A Missouri state court has rejected a lawsuit seeking to count mail ballots postmarked by Election Day and received within a few days. The court also declined to block a pair of state laws: one requiring that only voters under 65 have mail ballots notarized (elderly voters, who are exempt, typically lean Republican) and another prohibiting voters from returning mail ballots in person.
● South Carolina: A federal court has ordered election officials not to reject mail ballots due to alleged signature mismatches and says that officials must also review any ballots that were previously rejected on such grounds. Ballots with missing signatures from voters or witnesses, however, will still not be accepted.
● Texas: Conservative judges on the 5th Circuit Court of Appeals have blocked a lower court ruling that held that an exemption in Texas' mask mandate for voters and poll workers violated the Voting Rights Act. Separately, the Texas Supreme Court upheld Republican Gov. Greg Abbott's order limiting election officials to just one mail return location per county.
Taken together, it's particularly cynical of Republican state Attorney General Ken Paxton to argue that the mask mandate violates voters' right to vote when he has personally ensured that many such voters have no alternative but to vote in-person after Paxton successfully fought in court against efforts to liberalize access to mail voting.
Meanwhile, a group of Republican activists and candidates have asked the state Supreme Court to throw out all ballots cast at curbside voting locations in Harris County. The court previously rejected similar challenges filed by Republicans, but an adverse ruling here could disenfranchise over 100,000 voters if the high court grants this request.
● Virginia: A Virginia state court has ruled that ballots lacking a postmark can't count if they arrive after Election Day.
● Wisconsin: A Wisconsin state court has dismissed a lawsuit seeking a declaration that mass ballot dropoff events in Madison were legal, saying that organizers who brought the suit and the city officials named as defendants were not in disagreement. Republicans had threatened to sue to block the events, known as "Democracy in the Park," but no such lawsuit ever came.
[Moderator: See also five-part series on litigation about mail voting during the 2020 general election. This series is part of Lawfare's collaboration with the Stanford-MIT Healthy Elections Project.
Mail Voting Litigation in 2020, Part V: Efforts to Halt Vote-by-Mail Expansion
Mail Voting Litigation in 2020, Part IV: Verifying Mail Ballots
Mail Voting Litigation in 2020, Part III: Challenges Seeking to Expand Delivery Options
Mail Voting Litigation in 2020, Part II: Submission of Mail-In Ballots
Mail Voting Litigation in 2020, Part I: Application and Eligibility to Vote By Mail
and
Republicans Gear up for Day-Of and Post-Election Day Litigation (Axios)
Stephen Wolf is an elections staff writer for Daily Kos who focuses on redistricting analysis and voting rights, authoring the weekly Voting Rights Roundup newsletter in addition to contributing to the Daily Kos Morning Digest of each day's campaign news. Wolf is also an avid cartographer, and his proposed map was chosen by Republican Gov. Larry Hogan's bipartisan commission to redraw Maryland's gerrymandered 6th Congressional District after it was struck down in court.