The Three Buckets Of Election Law Cases We’re Likely To Get
Over the next few weeks, I’m going to be checking in with election law experts to see which cases they’re watching and which issues they think are most important. If you have questions along those lines, please submit them to our form and I’ll do my best to answer them!
Yesterday, I talked with Daniel Tokaji, the dean of the University of Wisconsin Law School, and he had a helpful way of thinking about the types of cases we may see over the next month.
Right now, we are in pre-election litigation season. (It’s a bit of a misnomer, yes, because many people are already voting, but let’s go with it since the real point is these are the fights that happen before Election Day.) These are the cases that Maya previewed on Oct. 15 (“The 7 Election Law Court Cases We’re Watching”). Many of them are about issues like signature requirements and rules for mail-in voting.
But we’ll also probably see a slew of new cases on Election Day itself. In normal years, these cases are generally about the mechanics of in-person voting — what happens if poll workers don’t show up, machines malfunction, etc. Those lawsuits usually aim to extend the hours at polling places to make up for time that was lost due to problems. This year, if there’s any unrest or tension at polling sites (like people showing up with guns, which is a possibility that’s worrying some election officials), that could also be the subject of legal fighting.
And finally, we may see a barrage of post-election legal cases, which would likely revolve around the counting of absentee and provisional ballots. There are plenty of reasons why absentee ballots could be subject to a legal dispute, Tokaji said — for example, if they’re filled out incorrectly. But, he added, it’s important to remember that those fights will probably only happen if the race is close.