Talking Election Law With The Brennan Center
Earlier today, FiveThirtyEight talked with Wendy Weiser, vice president of the Democracy Program at the Brennan Center for Justice, about the state of election law in the lead-up to the election. The conversation has been lightly edited.
Q: Something we’re tracking closely at FiveThirtyEight is all of the different election law cases making their way through the system. How important is it that many of these issues, like when a ballot can be postmarked in order to count, are being decided now? For instance, if the courts are resolving most of the questions about deadlines/ballot requirements now, does that actually leave less room for post-election maneuvering? Or is that unclear at this point?
It is always better to resolve election-related disputes before Election Day than afterward -- especially at a time when there is a concerted effort, including by the president of the United States, to undermine confidence in the results.
And indeed, among the unique elements of the contentious 2020 election is the unprecedented volume of election-related lawsuits long before the first ballot was cast. Overall, there have been roughly 300 pre-election lawsuits in state and federal courts. And a sizable chunk of these lawsuits dealt with the rules for counting absentee ballots.
The most common issues were whether to count absentee ballots sent before Election Day but received after (as of Oct. 28, 18 states and Washington, D.C., will count those ballots), and whether voters should be given notice and an opportunity to cure any technical defects with their absentee ballots before rejecting those ballots (as of Oct. 28, 23 states offer a cure opportunity, and other states like Pennsylvania limit the bases on which officials can reject ballots).
But now, those lawsuits have mostly run their course before the election. The upshot: The U.S. Supreme Court and the federal appellate courts have blocked all federal court rulings extending ballot receipt deadlines, but left standing extensions issued by state legislatures, state officials and state courts. And in total, the U.S. Supreme Court weighed in on 13 motions in 11 cases, but in a somewhat unusual move, the court didn’t issue a written explanation for its rulings.
At first, the court’s decisions seemed to be driven by the idea that federal courts should not issue rulings changing voting rules so close to an election, even when enforcing constitutional rights. But recent statements suggest that at least some justices would like to go further in rolling back voting rights protections, at least against state legislative decisions.
So what does this all mean for post-election litigation?
Not that much, in terms of candidates’ willingness to sue. Post-election litigation is not unusual in our system, with or without a pandemic. There are multiple points in the post-election process where legal disputes can arise, and if any party sees a potential advantage, we can expect litigation.
Typically, post-election litigation centers around recounts, which focus on determining voter intent on individual ballots. Think Bush v. Gore and hanging chads. We may well see recounts and contests this year if any races are close enough. But those are a normal part of the post-election process, and candidates can take advantage of those processes when they meet the criteria set by each state. (Look here for how the post-election process ordinarily works and how it could be impacted by measures taken to protect the vote during the pandemic.)
Sometimes, candidates spar in court over rejected absentee and provisional ballots. That was one of the big issues in the contested Senate election recount between Al Franken and Norm Coleman in 2008. This year, given the surge in absentee ballots and the likely increase in provisional ballots, that’s the most likely terrain for litigation -- as it was before the election.
Fortunately, some of the most contentious issues have already been resolved in pre-election lawsuits. But that doesn’t mean that they cannot come up again in different forms or under different legal theories. And some of the issues have not yet been fully vetted in court.
Take, for example, the Pennsylvania Supreme Court’s decision to prohibit election officials from counting “naked ballots,” meaning ballots that were not placed in an additional privacy sleeve in their absentee ballot envelopes. That ruling was based on the court’s interpretation of state law. No court has yet considered whether rejecting an otherwise valid ballot for this reason violates federal constitutional protections against undue burdens on the right to vote. If there is a large number of such naked ballots, as Philadelphia’s top election official predicted based on past elections, we might see that lawsuit.
We are less likely to see litigation (or at least successful litigation) over absentee ballots that were not rejected by election officials, because once a ballot is verified and counted, it can no longer be identified and removed from the count. A notable exception is Pennsylvania, where election officials will segregate the valid absentee ballots received after Election Day, as the state’s ballot receipt deadline is still the subject of ongoing litigation.
Courts generally do not change the rules after the election in a way that results in fewer ballots counting, and for good reason: Under the Constitution, voters should be able to rely on the state rules and practices in place when they cast their ballots.
Because you cannot un-count ballots, we are also likely to see lawsuits seeking to prevent ballots from being counted in the first place. Indeed, the Trump campaign has already filed a lawsuit trying to stop election officials from counting absentee ballots in Las Vegas until the campaign is offered an opportunity to observe and challenge those ballots. Republicans have also filed -- and lost -- suits to expand opportunities to observe and challenge ballots in Pennsylvania, North Carolina, Texas, and California. And on Oct. 27, the GOP sued to stop the counting of ballots cast via curbside voting in Harris County, Texas. These kinds of suits are unusual and tend not to succeed. But given the Trump campaign’s strategy so far, we may see a lot of them -- and even more outlandish ones seeking to declare the election rigged and invalid.
In short, if the results are close, the post-election litigation landscape may be almost as messy as the pre-election landscape. It will be constrained somewhat by the rulings issued before the election, but there is still a lot of room for maneuvering. Given the massive mobilization of election lawyers on both sides, we can expect no legal stone to be left unturned. And we may also see lawsuits that are little more than press releases by disappointed candidates.