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Talking Election Law with the Brennan Center

If the results are close, the post-election litigation landscape may be almost as messy as the pre-election landscape. And given the massive mobilization of election lawyers on both sides, we can expect no legal stone to be left unturned.

Published: October 30, 2020

Cross-posted from FiveThirtyEight

Earlier this week, 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.

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 Octo­ber 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 Octo­ber 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 Octo­ber 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.

What does that mean for court cases that have reached the Supreme Court already, like the court case you mentioned in Pennsylvania? Is there reason to think the justices’ previ­ous ruling could change? What does that mean more broadly for cases still wind­ing their way through the federal system?

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.

And finally, what altern­at­ives to a Bush v. Gore post-elec­tion situ­ation should we be think­ing about? What if it’s a margin of 40,000 to 100,000 votes in a hand­ful of states that’s at issue, not 500 votes in a single state, as was the case in 2000? How does that change the role of the courts and the possible outcomes?

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 protect­ing voting rights, either. The impact of this on the federal judi­ciary has been swift and dramatic. After the high court issued a ruling on Octo­ber 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.