The Vote And Voting Problems, Pre-Election Day 2020

It’s been a busy month for court cases related to the election, with emergency rulings coming down as recently as yesterday afternoon, when a federal judge refused to throw out over 125,000 ballots cast at drive-through sites in Harris County, Texas. (In a late-night order, an appeals court also refused to issue an emergency injunction that would have shut down drive-through voting sites on Election Day.)

But the most closely watched court has been the Supreme Court, and depending on the outcome of the presidential race, it will likely continue to be where attention is most focused. It has taken us a while to get much of an explanation from the justices about the reasoning behind many of their responses to emergency voting-related orders, but by refusing two different times to haltt a Pennsylvania Supreme Court decision that allows election officials to count mail-in ballots that are received up to three days after Election Day, we got some insight into how the justices are thinking about these cases. There’s been some significant disagreement on the court, including among the conservatives, but Chief Justice John Roberts’s perspective is the one that’s been decisive in their orders so far. And essentially, if we look at what Roberts wrote in other cases, he largely thinks that federal courts should not be making changes to election procedures in the lead-up to the vote and instead, should be deferential to state courts and elections boards.

Under that line of reasoning, an extended ballot receipt deadline in Minnesota which was recently thrown into question by a federal appeals court ruling would seem to be safe, since it was the result of a state court consent decree, but the wrinkle is that none of the pre-election cases that made it to the Supreme Court were decided with the input of Justice Amy Coney Barrett, who joined the court just last week. Her approach to these cases — including whether she’d recuse herself — is still unknown, and that leaves a big question mark as we move from the pre-election phase of litigation into the cases that will revolve around procedures on and after Election Day.

Roberts was the decisive vote in most of the controversial cases before the election, so that uncertainty is a big deal if (and this is also a big if!) we end up in a situation where the margin is close enough in a key state for the late-arriving ballots to be potentially decisive. The rest of the Supreme Court’s conservative bloc — with the exception of Barrett, of course — has signaled that they do not agree with Roberts’s approach to state court rulings on election law, and several suggested that they think the Pennsylvania ruling is unconstitutional.

Donovan Sheets from Tallahassee, Florida: If I have already received my mail-in ballot, can I still vote in person as long as I do not submit my mail ballot?

Generally, yes, but like everything else about election administration, it depends on the state. Some states will let you vote as normal; others will have you cast a provisional ballot, which will be discarded if it’s later found that you voted by mail as well. Some states require you to bring your mail ballot to the polls so it can be spoiled or destroyed; others will just take your word for it — particularly useful for people who requested a mail ballot but haven’t received it yet (in which case voting in person is almost certainly your only option). To see what the rules are in your state, check out this very helpful ProPublica article.

On Monday afternoon, a federal district court judge in Texas dismissed an effort by Republicans in the state to throw out about 127,000 ballots in Harris County cast via drive-through voting. The judge, Andrew Hanen, ruled that the group of activists and candidates who brought the case don’t have standing to sue. But the Republican-appointed judge also seemed irritated by the fact that they waited so long to bring the complaint before the court, asking the plaintiffs, “Why am I just getting this case?” He noted, too, that even if the plaintiffs had cleared the bar for standing, he still wouldn’t have granted the injunction for ballots already cast, although he did say that he would block Harris County from offering drive-through voting on Election Day. (Again, this is all hypothetical since he ruled that the plaintiffs don’t have standing.)

Hanen did order the county to maintain all drive-through voting records and data in case his ruling is reversed by a higher court — so it’s possible we haven’t heard the last of this. But the Texas Supreme Court rejected a similar case from the same plaintiffs yesterday. Now that Hanen, who’s known as an especially conservative judge, also ruled against the GOP plaintiffs, things are not looking good for this election saga.