10.23 Election Litigation Update

Scores of voting rights cases are moving quickly through state and federal courts around the country – and the Voter Protection Program is watching closely. We’re tracking the cases so that we can use our understanding of the law to help expand and protect the right to vote in the 2020 election season.

In this blog space, we’ll provide regular updates on important cases and note some of the significant trends. (For a blast from the pretty-recent past, you can see our October 20 litigation update here.)

Click here for a bullet-pointed list of the last week’s most important decisions and the cases that we think are likely to be decided in the coming days.

Keep reading for trends and highlights…

A Divided Supreme Court Debates Whether Voting Rights Expansions Can Take Effect

In perhaps the most significant rulings of the past week, the U.S. Supreme Court on 10/19 refused to interfere with Pennsylvania court decisions allowing a commonsense three-day extension for accepting mail-in ballots and creating a presumption that any nonpostmarked ballot received during those days was timely mailed.

But the short-handed Court was equally divided: Four justices would have overruled Pennsylvania’s highest court, stopping a sovereign state from interpreting and applying its own constitution to expand and protect the right to vote. The cases were Scarnati v. Boockvar, No. 20A53 (U.S) & Republican Party of Pennsylvania v. Boockvar, No. 20A54 (U.S.).

Now, the divided court must turn to the clutch of voting rights cases that are awaiting decision – and more that are likely to land on its docket in the coming days. The Court has yet to decide a pair of cases: Swenson v. Wisconsin State Legislature, No. 20A64 (U.S.), and Gear v. Wisconsin State Legislature, No. 20A65 (U.S.). The cases – discussed in greater detail here – all ask the Court to rule on whether voting rights expansions can go forward.

Meanwhile, it seems likely that a recent decision by the federal Fourth Circuit will end up at the Court before long. On Monday night, 10/20, the full Fourth Circuit voted 12-3 not to block North Carolina from implementing voting rights protections including an extension of the deadline for receiving mail-in ballots.  That case, like many others we have seen this election cycle, involves state legislators who seek to maintain heavy burdens on the right to vote notwithstanding the extraordinary conditions created by the COVID-19 pandemic.

The Fight Continues Over the Meaning and Scope of the Purcell Principle

In the last edition of this blog, we noted that courts rejected voting rights expansion have often cited to the principle articulated in Purcell v. Gonzalez, 549 U.S. 1 (2006). Purcell 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 briefPurcell simply requires courts to consider the possibility of creating confusion close 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.

Unfortunately, some courts and judges are overreading Purcell – and, even worse, treating it as a one-way street. They’re using Purcell to justify blocking all voting rights protections, even when the protection is the status quo and eliminating the protection, not imposing it, would cause voter confusion.

Consider what happened in Andino v. Middleton, 20a55 (Oct. 5, 2020). Andino was about South Carolina’s statute mandating witness signatures on absentee ballots. That requirement was blocked by a district court for this summer’s primary election. So, going into the fall, the status quo was that South Carolina effectively didn’t require witness signatures. When a district court extended that order through the fall election, though, the Supreme Court stepped in. Writing to explain the Supreme Court stay that reinstated the witness requirement, Justice Kavanaugh cited Purcell for the proposition that “courts ordinarily should not alter state election rules in the period close to an election.”

But it was the Supreme Court that altered the rules close to the election, not the district court. The district court preserved a status quo set in June, allowing the general election to proceed under the same rules that were in place this summer. And the Supreme Court’s order increased, rather than diminishing, the chances of voter confusion.

Courts Don’t Have Much Patience for Suits to Stop Election Administration Grants

The nonprofit Center for Tech and Civic Life has granted hundreds of millions of dollars to municipalities across the country to fund a safe and secure 2020 election season. In a year when governments have badly underfunded election administration, the grants are intended to support everything from ballot drop boxes to poll worker recruitment.

More than 2,100 grant applictations attest that municipalities love the grants. But some voting rights opponents didn’t. Instead, they sued, advancing the novel and unsupported contention that the use of private funding to support elections somehow violates the Elections Clause of the U.S. Constitution.

So far, courts aren’t buying it. For instance: In Wisconsin Voters Alliance v. City of Racine, No. 20-cv-01487 (E.D. Wis.), a federal judge last week refused to block the use of the funds, characterizing the plaintiffs’ arguments as “at most a policy argument for prohibiting municipalities from accepting funds from private parties to help pay the increased costs of conducting safe and efficient elections.” Meanwhile, in Minnesota Voters Alliance. v. City of Minneapolis, No. 20-cv-2049 (D. Minn.), the district court held that the plaintiffs didn’t have standing to sue, because they couldn’t plausibly allege that the funding injured them: “For example, nowhere do they allege that they will be unable to cast a ballot, or that they will be forced to choose between voting under unsafe pandemic conditions and not voting at all.”

THIS WEEK’S LITIGATION TRACKER

A bullet-point list of big court decisions from the last week and cases that we’re closely tracking for the coming week.

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