Talking Election Law with the Brennan Center

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.