Marty Goetz, left, unpacks a bottle of alcohol from the COVID-19 prep kit as they start to set up their polling place Monday, June 1, 2020, for the voting for Tuesday's Pennsylvania primary in Jackson Township near Zelienople, Pa. (AP Photo/Keith Srakocic)
Key legal fights over voting remain unresolved as election day draws close
By Pam Fessler/NPR
Marty Goetz, left, unpacks a bottle of alcohol from the COVID-19 prep kit as they start to set up their polling place Monday, June 1, 2020, for the voting for Tuesday's Pennsylvania primary in Jackson Township near Zelienople, Pa. (AP Photo/Keith Srakocic)
(Washington) — Many of the approximately 300 lawsuits filed this year over voting rules have been settled. But some key ones remain unresolved and court decisions could still reshape how voting is conducted in some crucial battleground states.
The flurry of last-minute legal action comes as more than 5 million people have already cast ballots early or by mail, causing some confusion over what voters have to do to ensure that their votes count.
Several other important cases could end up before the Supreme Court before Election Day.
Be patient with results
Results of the Nov. 3 election in Pennsylvania, and across the country, likely won’t be known for days.
The counting of ballots continues after election night most years. This year’s expected surge in mailed ballots means election offices will need extra time to tally all the votes.
As that occurs, some candidates may call for the counting to end and for themselves to be declared the winner. However, winners will be decided when all the votes are counted — that’s the American election system at work.
WITF’s journalists will cover that process, and WITF will rely on The Associated Press to call races for the winner based on the AP’s rigorous, time-tested method.
Republicans have already asked the high court to block a recent decision by Pennsylvania’s Supreme Court that would allow absentee ballots to be counted if they’re received up to three days after Election Day, as long as they’re mailed by Election Day.
Democrats and state election officials argue that this deadline extension is needed to protect voters against possible mail delays. But Republicans say the state Supreme Court overstepped its authority and that this a decision for the state legislature to make.
Other cases that could wind up before the Supreme Court include one in Wisconsin, where Republicans are fighting a federal court ruling allowing ballots there to be counted up to six days after Election Day.
Alabama officials are also trying to block a recent federal court decision that would waive that state’s identification and witness requirements for absentee voters who are at high risk of contracting COVID-19. Alabama Secretary of State John Merrill said the state will seek relief from the Supreme Court because “we believe that it’s federal judicial overreach and … a legislator in a robe” trying to override state voting laws.
Morris Romig drops off his voter mail-in ballot application at the Voter Registration office in the Lehigh County Government Center in Allentown, PA., on Tuesday, September 15, 2020. Romig said he’s worried about fraud and doesn’t know who to believe. He said he’s going to vote one way or another in this election.
The political parties are also at odds over how much time Arizona voters will have to fix signature problems with their ballots. A similar fight is being waged in North Carolina over how absentee voters can correct ballot mistakes. Voting rights groups are also challenging a requirement in Missouri that some voters need to have their mail-in ballots notarized.
With so many cases still up in the air, legal experts say it’s difficult to tell whether Democrats or Republicans are coming out ahead. Democrats have won numerous victories — including fending off a Republican effort to prevent Nevada from automatically sending out ballots to all registered voters.
“I would say Democrats and voting rights group had some important victories, but on those cases that made it up the food chain, they have tended to do not as well,” said Rick Hasen, an election law expert at the University of California, Irvine.
Hasen thinks such victories could be even rarer in the weeks ahead because courts are reluctant to make changes in voting rules too close to an election. “Any kind of last minute changes that expand voting rights coming now are going to have a really tough road as they go up the appellate process,” he said.
How such cases are decided could prove crucial after the election, when potential legal challenges to the outcome might end up before the Supreme Court. President Trump has already said that he thinks that will happen.
Gene J. Puskar / AP Photo
Chet Harhut, deputy manager, of the Allegheny County Division of Elections, wheels a dolly loaded with mail-in ballots, at the division of elections offices in downtown Pittsburgh Wednesday, May 27, 2020.
Alabama Secretary of State Merrill this week also released a letter, signed by a number of Republican secretaries of state, that calls for swift Senate confirmation of Trump’s Supreme Court nominee, Judge Amy Coney Barrett, to ensure that all the seats on the high court are filled by Election Day.
“In the case an election issue is challenged in court, America cannot afford a tie vote,” they wrote Senate Judiciary Committee Chairman Lindsey Graham.
Justin Levitt of Loyola Law School is more optimistic such an outcome can be avoided. The former Justice Department official thinks one benefit of all the current litigation is that it reduces the chance of a legal challenge after Election Day revolving around such questions as whether ballots received after Election Day can be counted.
“The fact that the courts have weighed in on that issue now means it’s far less likely to want to weigh in on that issue after Election Day. And that’s true for a lot of the different claims that have been pressed so far about which ballots are legitimate and which aren’t,” he said.
A collection of interviews, photos, and music videos, featuring local musicians who have stopped by the WITF performance studio to share a little discussion and sound. Produced by WITF’s Joe Ulrich.