Voting Rights Litigation Update: Absentee Ballots, State Legislatures

Published: 10.27.20

One week out from the election, voting rights cases are moving quickly through the courts. The VPP’s Litigation Tracker, which summarizes many significant voting rights cases from the past month, is here.

This blog post takes a closer look at two related issues before the courts this week: Absentee ballot receipt deadlines, and the courts’ authority to alter state statutory voting schemes.

Absentee Ballot Receipt Deadlines

The federal courts of appeals and the U.S. Supreme Court continue to grapple with litigation challenging the extension of mail-in ballot receipt deadlines.

Here’s the state of play in some key battleground states as of October 27: Ballot receipt extensions in Minnesota, North Carolina, and Pennsylvania are still in place. Challenges to the extensions in North Carolina and Pennsylvania are pending before the Supreme Court – in Pennsylvania’s case, for the second time – and a Minnesota challenge is before the federal Eighth Circuit.

In the face of the COVID-19 crisis and the USPS mail slowdown, some states extended their deadlines for counting mail-in votes so that voters who send their ballots by Election Day won’t be disenfranchised by late delivery. For instance:

  • In a state court consent decree, Minnesota agreed to count ballots received up to seven days after Election Day.
  • The Pennsylvania Supreme Court held that the state constitution requires election officials to count ballots received up to three days after Election Day.
  • A federal district court ordered Wisconsin to count ballots received up to six days after Election Day.
  • North Carolina’s Board of Elections voted to extend its ballot receipt deadline by nine days.

Each of those extensions was challenged in federal court. Some of the challenges are ongoing, potentially with serious ramifications for voters who mail their ballots on time: In Wisconsin, for instance, the federal district court estimated that more than 100,000 votes might be unfairly discounted without the change.

But a federal court of appeals blocked the Wisconsin extension from taking effect, citing the Purcell principle to justify federal court nonintervention in election procedures. On the evening of October 26, the U.S. Supreme Court voted 5-3 not to disturb the appellate court’s order. The VPP’s summary of the three concurrences and dissent is here.

And while an evenly split Supreme Court declined on October 19 to block the Pennsylvania Supreme Court’s deadline extension, the Republican Party of Pennsylvania continues to mount new challenges through both a collateral attack in federal district court and an attempt to get a second bite at the apple at the U.S. Supreme Court. That Supreme Court petition is briefed and pending decision just as Justice Amy Coney Barrett takes the bench.

Meanwhile, after running a complex procedural gauntlet, cases challenging the North Carolina ballot extension are also waiting on the Supreme Court’s docket. There too, Republican legislators seek to upset the ballot receipt extension – which the federal Fourth Circuit court of appeals voted 12-3 to keep in place – less than a week before Election Day.

The Republican challenge to Minnesota’s ballot extension is running a step behind, with a hearing scheduled on October 27. The extension is defended by a multistate coalition of state attorneys general led by Washington, DC’s Karl Racine.

When Can Courts Alter State Legislative Voting Schemes?

The concurrences by Justices Kavanaugh and Gorsuch in the Wisconsin case – Democratic National Committee, et al v. Wisconsin State Legislature, et al, 20A66 (U.S.) – clarify that some Supreme Court justices embrace a theory, once confined to the fringes of the legal world, that only state legislatures and Congress can set election rules.

Justice Gorsuch’s concurrence emphasizes that “state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.” Slip Op. at 2-3 (Gorsuch, J., concurring in the denial). In a footnote, Justice Kavanaugh’s concurrence explains why, at least for the court’s more conservative justices, state legislatures have that special role: “The text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.” Id. at 9, n.1.

The constitutional text the justices are talking about is Article I, § 4 – the Elections Clause, which provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time make or alter such Regulations, except as to the Place of chusing Senators.”

But does the Elections Clause mean that only state legislatures – and not state judges interpreting legislation, or the state constitutional provisions that provide the basis for state legislative enactments – can define state elections procedures? If so, a federal court could overrule the Pennsylvania Supreme Court’s application of its own state constitution to extend the ballot receipt deadline. In fact, that is exactly what the Pennsylvania Republican Party is now asking the federal courts – both the Supreme Court and, simultaneously, a federal district court in western Pennsylvania – to do.

As Justice Kagan pointed out in her Wisconsin dissent, that outcome is profoundly activist and interventionist, expanding the role of the federal judiciary to second-guess state courts – a posture that conservative justices frequently deride. The view of the Elections Clause espoused by Justice Kavanaugh would require more, not less, federal court involvement in elections, see Slip Op. at 11, n.6 (Kagan, J., dissenting from the denial), as federal courts step in to tell state courts how they can interpret and apply state statutes.

The Chief Justice, at least, seems to concede that the Supreme Court should be wary of overruling a state court’s interpretation of its own laws and constitution. In his Wisconsin concurrence, Justice Roberts distinguishes between Wisconsin and the Court’s earlier 4-4 decision in the Pennsylvania cases – Scarnati v. Boockvar, No. 20A53 (U.S) and Republican Party of Pennsylvania v. Boockvar, No. 20-542 (U.S.) where the Chief Justice voted with the court’s three more liberal members to let the extension go forward. The difference, Roberts explained, hinges on deference to state courts: “[T]his case presents different issues than the applications this Court recently denied in Scarnati v. Boockvar, ante, at ___, and Republican Party of Pennsylvania v. Boockvar, ante, at ___. While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes.” Slip. Op. at 1 (Roberts, C.J., concurring in the denial).

Of course, as in so many other areas, the resolution of what seems to be a 4-4 split will depend on the vote – if she declines to recuse herself – of the newest justice, who takes the bench this morning.

Litigation Tracker

VPP’s summary of significant voting rights cases from the final months of the election is updated daily.

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