The Vote And Voting Problems, Pre-Election Day 2020

The 8th Circuit Court of Appeals has just ruled that Minnesota cannot count ballots that arrive after 8 p.m. on Nov. 3. Earlier this month, a federal judge upheld a state court agreement — originally approved in August — that allowed the counting of absentee ballots received up to seven days after Election Day, but state Republicans quickly appealed the decision.

In its ruling, the 8th Circuit wrote that the state legislature, not the secretary of state, had the authority to set election law. It also instructed the state to segregate the late-arriving ballots; it remains to be seen whether they will be counted.

If the early margins of victory are sufficiently high, then we are unlikely to see high-profile lawsuits challenging the count. This scenario becomes more plausible if the margins are closer than the polls predict, and if multiple states are still in play.

The most likely litigation scenarios involve rejected absentee ballots. Given the surge in absentee ballots this year, and the potentially high numbers of absentee ballot rejections, it is not impossible that the number of rejected absentee ballots could exceed the margin of victory in multiple states. This would be novel: In past elections, the number of rejected absentee ballots has generally been too small to swing elections.

Nationally, the absentee ballot rejection rate was just under 1.5 percent in 2018 — and more in states like Georgia (3.1 percent), North Carolina (6.1 percent) and Pennsylvania (4.5 percent), not to mention non-battlegrounds like New York (13.7 percent) and Arkansas (7.6 percent). While these rates are high, absentee ballots in past elections have made up only a tiny portion of the total ballots cast in most battleground states, and so the total number of rejected ballots was fairly low.

But this year, absentee ballots are expected to make up roughly half the votes in those states. We have already seen high numbers of absentee ballot rejections in the primaries. In Wisconsin — which Trump won by just under 23,000 votes in 2016 — 23,196 ballots were rejected in the presidential primary alone.

Based on these numbers, campaign attorneys seeking to maximize their candidates’ chance of victory are likely to consider pursuing post-election litigation, recounts and contests in states with wider margins than they ordinarily would consider. As we’re seeing during the lead-up to Election Day, these disputes could be litigated in multiple federal and state courts at the same time.

What does this mean for the courts? For one thing, they may be very busy. Litigation is a normal (though episodic) part of the counting process, and election officials and parties are used to that. Beware of efforts to paint ordinary lawsuits as an election crisis.

What is not normal is for courts to announce a new legal doctrine after Election Day that results in valid votes not being counted and potentially impacting the outcome of the election. That is what happened in Bush v. Gore, and the Supreme Court paid a price in lost credibility as a result. Fortunately, we are not likely to see a situation where this could happen again this year.

But that doesn’t mean that the role of the courts hasn’t changed substantially this year. It has.

The U.S. Supreme Court has made it clear in case after case that while it doesn’t want to change voting rules so close to an election, it’s not interested in expanding voting rights, either. The impact of this on the federal judiciary has been swift and dramatic. After the high court issued a ruling on Oct. 2 halting a voting rights win out of South Carolina (and reinstating the state’s witness requirement for absentee ballots), more than a dozen federal courts of appeals across the country followed suit. These decisions will make it harder for advocates to protect voting rights going forward. And looking ahead, at least some of the justices seem poised to go further and shield state legislative decisions against voting rights challenges regardless of when they are brought.

But federal courts aren’t the only institutions that protect voting rights. Congress is another critical player. As Justice Gorsuch wrote this week, if a state’s rules for federal elections “need revision,” the Constitution makes clear that “Congress is free to alter them.”

Two key bills that are currently pending before Congress would undo some of the Supreme Court’s recent decisions and would expand voting access across the country (along with other democracy reforms): H.R. 1 (the For the People Act) and the John Lewis Voting Rights Advancement Act. The House passed both bills this year, but they stalled in the Senate. If they pass next year, there will be less cause for voting rights advocates to turn to the courts.

Typically, rulings issued before Election Day do not change afterward. But just yesterday, Justice Alito, joined by Justices Thomas and Gorsuch, penned an opinion openly inviting interested parties to come back to the court after Election Day to prevent Pennsylvania from counting late-arriving ballots, despite the Pennsylvania Supreme Court’s ruling that the state constitution requires those ballots to count, and despite the fact that the U.S. Supreme Court twice denied pre-election motions to block those ballots from being counted. Pennsylvania Secretary of State Kathy Boockvar, for her part, has agreed to segregate those ballots in the event they are disputed after the votes are cast. So the short answer is yes, there is reason to think that the Supreme Court’s ruling with respect to those ballots could change.

Based on the opinions issued over the past week in cases out of Wisconsin, Pennsylvania and North Carolina, there are at least four votes on the high court for one of the claims raised by the Pennsylvania GOP — that the U.S. Constitution prevents state courts from interpreting their state constitutions to constrain state legislatures in a way that changes their federal election procedures. This argument is inconsistent with the Supreme Court’s past pronouncements on the constitutional provision at issue, most recently in 2015. If it takes hold, it would cause chaos in election law, upending countless past decisions and practices across the country. It’s worth noting, too, that Justice Amy Coney Barrett did not take part in any of the pre-election cases, and her vote could well be decisive if the issue comes up again.

On the other hand, it is still pretty unlikely that the Supreme Court will reverse course in a way that changes the vote in Pennsylvania. First, only three justices signed onto the suggestion that the court may rule differently in this case before the count is done. Chief Justice Roberts is unlikely to go along; in a separate opinion in the Wisconsin case, he suggested that he does not think the Constitution limits state supreme courts in this way. In that same case, Justice Kavanaugh stressed the need for “the rules of the road” to “be clear and settled” before the election, suggesting that he too might not support a post-election ruling that tosses out ballots cast by voters who relied on the rules set beforehand. For her part, Justice Barrett may very well recuse herself from considering cases impacting the presidential election, as many have urged her to do after the president tied the nomination to his election litigation prospects.

More broadly, despite all the pre-election activity, the chances that the Supreme Court will rule in a case that determines the presidency is very, very small.

At this point, the vote is unlikely to be close enough for litigation to make the difference. Moreover, Democrats have mobilized their voters to vote early, either in person or by mail, reducing the number of ballots that can be contested later.

The justices have a strong incentive to avoid that scenario. If the Supreme Court helps decide the presidency or control of the Senate by issuing a ruling that’s sharply split on ideological lines, it would dramatically undermine confidence in both the court and the election. It would also strengthen the calls for reforming the court.