While the nation’s attention has been focused on the president’s COVID-19 diagnosis and the ensuing questions surrounding that, it’s important to remember there will still be an election in one month. As we reach the four-week mark, the country is closing in on 350 lawsuits filed related to the 2020 elections and COVID. This is very likely to be the most important week so far for those suits. The Supreme Court is expected to weigh in on cases from Pennsylvania and South Carolina, and the justices may set limits on what state and federal courts can do to accommodate voters during the pandemic as well as preemptively resolve one key issue should the 2020 elections go into overtime. I’m not optimistic.
So far, litigation has been a mixed bag for those seeking to protect voting rights during the pandemic. Some courts have extended the deadline for the receipt of absentee ballots, given COVID-related delays, or removed requirements for witness signatures for such ballots. Other courts have rejected accommodations, including in Texas, where both state and federal lawsuits have been unsuccessful in removing the requirement that those under 65 who wish to vote by mail should be able to use the danger of the ongoing pandemic as an excuse to do so. The Texas Supreme Court unanimously rejected the argument that lack of immunity to COVID-19 counts as a “disability” to allow voting by mail. Texas Attorney General Ken Paxton, who has recently been accused of bribery by several top aides, previously threatened to prosecute voters who try to vote absentee because of fear of contracting COVID-19.
The Trump campaign, the Republican Party, and Republican government officials, however, have so far failed in blocking government expansion of voting by mail in places like Nevada. Courts have rejected their evidence-free arguments that such expansion will “dilute” the votes of legitimate voters by injecting fraudulent ballots into the process.
Generally, though, the Republican side may be far more successful in blocking lower court orders sought by Democrats and voting rights groups seeking to expand voting by mail. Although Democrats in particular have crowed about some of their (sometimes partial) victories, things are far from over.
The biggest cases in play this week are already before the Supreme Court on an emergency basis. These Pennsylvania and South Carolina cases illustrate the state of play and the kinds of arguments Republicans are making throughout the country to try to make voting by mail harder and thereby shrink turnout in an apparent attempt to benefit Republicans.
In South Carolina, a federal district court held that a requirement that those voting by mail obtain a witness signature unconstitutionally burdened voters’ rights during the pandemic, given the higher risk of COVID coming from obtaining such signatures. This followed similar, unchallenged orders from the judge during the primary season. A 4th U.S. Circuit Court of Appeals panel reversed, but the full 4th Circuit reinstated the requirement. The Republican Party and South Carolina government have gone to the Supreme Court to restore the requirement, even as voting by mail has already begun.
In Pennsylvania, the state Supreme Court released a series of decisions related to voting by mail. Republicans challenged part of the state ruling that allows ballots received up to three days after Election Day without a legible postmark to be accepted as valid votes and counted as part of the vote totals. They have also challenged other decisions made by the Pennsylvania Supreme Court in a separate lawsuit that is working its way through the federal courts.
Between these cases, we see the four main arguments that Republicans are making against easing voter requirements during the pandemic, three of which could well resonate with the five-justice conservative majority on the Supreme Court.
First, let’s consider the weakest of the Republican arguments, that the acceptance of mail-in ballots received after Election Day without a valid postmark violates federal law establishing a single day for holding the federal election. A number of state and federal courts have agreed to extend ballot deadlines for the receipt of absentee ballots. Some have required that ballots be postmarked by Election Day; others, like Pennsylvania, have gone further and accepted ballots received within a short period after Election Day without a valid postmark.
It seems quite unlikely that the Supreme Court will agree with Republicans that unpostmarked ballots cannot be accepted if they arrive a few days after Election Day. The undisputed evidence is that not all ballots get a postmark from the post office, and accepting ballots arriving within a few days of the election without evidence they were mailed after Election Day seems a reasonable way of interpreting the federal law requiring that ballots be cast on Election Day. Otherwise postmarking would become a de facto federal requirement for late-arriving ballots, disenfranchising voters who acted on time because of lack of post office procedures.
The Trump campaign and Republicans are also attacking accommodations made by federal courts during the pandemic on grounds that voters are not heavily burdened by vote-by-mail rules during the pandemic. Under an amorphous doctrine created by the Supreme Court known as the Anderson-Burdick test, when voters claim that a voting rule unconstitutionally burdens the right to vote under the equal protection clause, courts balance the burden on voters with the justification for rules set out by the state. The greater the burden on voters, the more evidence states need to produce to justify their rules.
Some lower courts, like the district court in the South Carolina signature case, have held that Anderson-Burdick balancing looks different in a pandemic. While ordinary rules like signature requirements or absentee ballot receipt dates impose only minor burdens on voters in ordinary times, these requirements can be quite burdensome on voters during the pandemic. Without evidence that these laws serve key government purposes, they must be put on hold during the pandemic.
Other, more conservative courts have been less accommodating of voters during the pandemic, and more solicitous of weak evidence states present of the need for strict voting rules like a witness signature requirement, which state officials in South Carolina acknowledged prevent no appreciable voter fraud. The Supreme Court, in a case stemming from the April 7 Wisconsin primary, partially rolled back a federal court expansion of voting rules for receipt of absentee ballots. The vote was 5–4 along party lines, and we can expect the Ginsburg-less court to follow a 5–3 pattern in these cases.
The third argument we are seeing from Republicans in both federal and state cases is something I have dubbed the Purcell principle, which suggests that courts should not accept challenges to state laws the nearer the date to an election because changes to voting close to the election can cause voter and election administrator confusion.
The Purcell principle has never been fully explained, it has been applied inconsistently, and it focuses on only one aspect of how courts should consider emergency changes to the rules. It also doesn’t follow ordinary Supreme Court practice of considering a number of factors when adjudicating whether to grant emergency relief. Still, many courts this cycle, including the Supreme Court, have rejected changes to voting rules on grounds they come too close to the election. The South Carolina case is particularly interesting since the witness signature requirement was not in place in the primary and has been used for voting so far. Reinstating it now would cause more confusion and disenfranchisement.
The final argument that Republicans are advancing is the boldest and perhaps most dangerous one. The argument is that when state supreme courts apply their state constitutions’ provisions protecting a right to vote to loosen voting rules in a pandemic, these state courts are usurping the power given by the Constitution to state legislatures to set the manner for conducting presidential elections. The argument echoes an argument that three conservative justices on the Supreme Court accepted in the 2000 Bush v. Gore case ending that presidential election. It’s a dangerous idea that a state court applying a state constitution is taking away legislative power, particularly in states like Pennsylvania where the state legislature has itself approved the constitutional provisions being applied.
But this argument is likely to resonate with at least some of the conservative justices on the court. As professor Ned Foley explains, this argument for vast legislative power to set the rules for presidential elections could have dire consequences and that “partisan state legislatures wielding this power could create difficulties that call into question the fairness of the election.”
Of all the arguments advanced by Republicans in these lawsuits, this argument about legislative power can do the most mischief. Most dangerous is the idea, furthered in a recent Bart Gellman Atlantic piece, that state legislatures could try to disenfranchise voters and take back their power to appoint presidential electors directly even after the votes are counted.
In short, Democrats have won some important battles. But who wins the war is uncertain in front of a Supreme Court that has not been protective of voting rights. Republicans have plenty of arguments that may appeal to that court’s conservative majority.