VPP Blog: Election Litigation Update

The Voter Protection Program is tracking scores of voting rights cases across the country. Litigated in every forum from state trial courts to the U.S. Supreme Court,  these cases are shaping the integrity of our election system and the right of every eligible citizen to cast a ballot safely and securely.

The cases come from all around the country: Rhode Island to Montana, and Texas to Michigan. And while the cases touch on every aspect of the right to vote – our bulleted rundown of significant cases is here – we’re seeing some trends emerge:

Mail-In Voting

Much of the voting rights litigation has centered around mail-in voting. Without producing any real evidence, President Trump and his allies have repeatedly decried mail voting as fraudulent, Meanwhile, voting rights advocates have sought to expand opportunities to vote safely by mail as COVID-19 cases spike across the country.

No Evidence of Systemic Fraud

One common theme in pre-election litigation has been courts’ refusal to countenance the partisan fiction that U.S. elections – and mail-in voting in particular – are plagued by fraud.  In Lamm v. Bullock, No. 20-0067 (D. Mont.), a federal judge refused to stop Montana from expanding mail-in voting, finding that the allegation of widespread voter fraud “is a fiction” and that the November election will be “free, fair, and efficient.” Similarly, in Trump v. Boockvar, No. 20-966 (W.D. Pa.), a federal judge dismissed a Trump campaign attempt to restrict the use of ballot drop boxes, finding that the campaign simply hadn’t produced any concrete evidence of fraud.

“A Concerted Effort to Restrict the Vote”

Despite the evidence that the 2020 election will be secure and free from widespread fraud, the pattern in pre-election litigation has been clear: The Democratic party and voting rights advocates have pushed to expand opportunities for voting, and especially voting by mail, in response to the safety restrictions imposed by the COVID-19 epidemic. The Republican party, in turn, has tried to restrict those opportunities.

Federal judges may not always side with efforts to expand and protect franchise, but some have noticed the pattern. In Memphis A. Philip Randolph Institute v. Hargett, No. 20-6046 (6th Cir.), a split appellate panel affirmed the denial of a preliminary injunction in a Tennessee case that challenged the state’s signature verification procedures and lack of a cure process for signature-mismatch issues. In dissent, though, Judge Karen Moore decried a “concentrated effort to restrict the vote” and lamented that courts recently “have sanctioned a systematic effort to suppress voter turnout and undermine the right to vote.”

Appellate Courts Are Heavily Weighting – And Perhaps Abusing – the Purcell Principle

When courts have rejected efforts to expand safe access to the ballot box, they have often cited to the principle articulated in Purcell v. Gonzalez, 549 U.S. 1 (2006), a per curiam decision that told courts to weigh “considerations specific to election cases” before granting injunctive relief in the runup to elections. But as a group of preeminent election law scholars argued this week in a U.S. Supreme Court amicus brief, Purcell simply requires courts to consider proximity to the election in determining whether relief is in the public interest. Purcell is not, and should never be, treated as a presumption or prohibition against relief.

Willingness to Discard Votes Remains a Minority Sentiment – For Now

Even when they haven’t found in favor of voting rights advocates, courts have been reluctant to retroactively discount votes cast under expanded voting rules. The Supreme Court’s decision in Andino v. Middleton, No. 20A55 (U.S.) is a good example of this inclination not to punish voters for following the rules. In Andino, a federal district court enjoined South Carolina from requiring witnesses for mail-in voting. The state sought to block the order on appeal. Meanwhile, though, some voters submitted their ballots without witness signatures. The Supreme Court ultimately did block the lower court decision, but refused to throw out votes that were cast while the injunction was in place. Similarly, in Mi Familia Vota v. Hobbs, No. 20-16932 (9th Cir.), the Ninth Circuit stayed a district court order extending Arizona’s voter registration deadline, but refused to invalidate registrations cast in reliance on the lower court’s order.

But there’s a cautionary note here. In both decisions, there were dissenters. In Andino, three justices would have effectively thrown out all the votes cast in reliance on the lower court order. And in Mi Familia Vota, a dissenting judge would have done the same.

Key Cases

Click through here for a bullet-point rundown of some of the biggest election cases that we’re following this week.

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