Election Day looms. Who's winning the legal war over mail-in voting?

Both parties are claiming victory as dozens of voting lawsuits are being decided. Here's what's changed so far.
A canvasser processes mail-in ballots on Oct. 7, 2020 in Glen Burnie, Md.
A canvasser processes mail-in ballots on Oct. 7, 2020 in Glen Burnie, Md.Drew Angerer / Getty Images

For roughly 24 hours, the rules for voting in North Carolina appeared settled.

On Wednesday, a federal court OK'd a deal between state officials and voting rights advocates that would ultimately allow more ballots to be counted in the key presidential battleground, capping months of litigation over the expanded use of mail-in voting during the coronavirus pandemic.

But by Thursday, a state court was demanding new changes. Further appeals have not been ruled out — despite the fact that Nov. 3 is just over two weeks away.

North Carolina isn’t the only state where voters are experiencing election-related whiplash. In Texas, where early voting has started, a federal court late Monday night reversed a lower court ruling that stopped Republican Gov. Greg Abbott’s limit of ballot drop boxes only to have more uncertainty introduced into the process on Thursday thanks to a state court ruling in a separate case.

Voting lawsuits have reached an all-time high in 2020, touching on everything from ballot receipt deadlines and postal delays to ballot drop boxes and processes to fix ballot errors. Republicans, backed by President Donald Trump’s re-election effort, have sought to make or keep the mail-in voting process strict, while Democrats and Joe Biden’s campaign have fought to relax rules that they say are unnecessary or dangerous in a pandemic. Democrats’ top attorney, Marc Elias, said on Twitter Friday night he had 30 cases still outstanding.

Rulings and reversals now are being handed down almost daily, accompanied by a steady stream of filings and appeals that could see states scrambling to implement changes right up to Election Day. In key battleground states where the presidential race is tight, voting rights advocates say these last-minute decisions have the potential to affect the outcome of the election.

Both sides have seen success, and both parties say those triumphs indicate they’re winning the war.

“We’re out-hustling them,” Democratic National Committee Chairman Tom Perez told NBC News, condemning Republican lawsuits as "shameless" and an effort to suppress votes.

“We are winning,” said Mandi Merritt, press secretary for the Republican National Committee, calling the lawsuits "Democrat efforts to overhaul our elections system."

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But where does that leave voters? In a briefing with reporters hosted by The National Task Force on Election Crises, Wendy Weiser, vice president of the Democracy Program at the Brennan Center for Justice at the NYU School of Law, said no one can definitively declare victory.

Weiser said there have been “mixed results” in lawsuits to remove impediments to voting, though “in lawsuits that were brought by the Trump campaign and the RNC to try and change the rules to restrict access to voting, those have been uniformly unsuccessful.”

Here are some of the biggest election policy changes that will affect people and their ballots next month.

Cure processes, counting plans

As states expanded mail-in voting processes this year, voting rights advocates and Democrats pushed to expand or create the ability for voters who make a mistake on their ballot to fix, or "cure," the problem. Those mistakes can be as simple as a voter forgetting to sign the ballot before it is returned.

Voters in Nevada, North Carolina and Arizona have new or updated processes to fix a defective ballot, due at least in part to various lawsuits, though North Carolina’s is still in flux. Perez said the state details whose ballots are defective, and the DNC will be contacting and encouraging North Carolina voters in their own voter files to fix errors.

Some states have moved to start counting mail-in ballots before Election Day in order to speed reporting of results, and Democrats have urged, and sued to defend, this ability, too. Republicans and their allies have sought to delay the counting of mail-in ballots in Michigan, Nevada and New Jersey. As of the publication time, all three states plan to count their ballots earlier than in past years.

Ballot deadlines

The most common reason for a mail-in ballot to be rejected has historically been that the ballot is received by election officials too late. In hopes of counting more otherwise-eligible ballots, Democrats and voting rights groups filed lawsuits in dozens of states seeking to force election officials to count ballots that were cast before the deadline — often proved through a postmark — even if they arrived a few days later.

Democrats and voting rights advocates have so far secured extended deadlines in Minnesota in Montana, Pennsylvania and North Carolina, though Republicans are appealing some of those rulings.

Suits in Maine, South Carolina, New Hampshire and Florida seeking ballot deadline extensions failed, while extensions in Michigan, Wisconsin, Indiana and Georgia were granted by lower courts, only to be later overturned by higher courts.

A Trump effort to stop New Jersey’s governor from extending the state’s ballot receipt deadline, among other mail-in voting expansions,was denied by a federal judge on Oct. 6.

While Democrats secured a ballot deadline extension in Wisconsin during the primary and one for the general election, a federal appeals court blocked that decision on Oct. 8.

A dissenting judge issued a furious 25-page opinion opposing the decision.

“Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices,” Judge Ilana Rovner wrote in the dissent. “Good luck and G-d bless, Wisconsin. You are going to need it.”

Democrats have appealed the ruling to the U.S. Supreme Court.

Nicole Flaherty watches as her 7-year old daughter Madelyn places the ballot in the box Cinnaminson, N.J., on Oct. 7, 2020.Christina Paciolla / AP

Drop boxes

Both parties have zeroed in this year on how people get their votes back to election officials.

Drop boxes, the popular mailbox-like containers to transport ballots from voters back to election officials, prompted a slew of suits. In Pennsylvania, the Trump campaign sued to try and bar the use of drop boxes; so far, Democrats have prevailed and the drop boxes remain active.

In Ohio and Texas, state officials limited each county to just one drop box each, earning rebukes from the courts.

“We are in the middle of the worst pandemic in a century coupled with reasonable concern over the ability of the U.S. Postal Service to handle what will undoubtedly be the largest number of absentee voters in Ohio’s history. The Secretary has not advanced any legitimate reason to prohibit a county board of elections from utilizing off-site drop boxes and/or off-site delivery of ballots to staff,” U.S. District Judge Dan Polster wrote in his decision, calling out Ohio Secretary of State Frank LaRose directly.

LaRose reportedly plans to appeal.

In Ohio’s Cuyahoga County, which includes Cleveland, the single drop box prompted traffic jams as voters dropped off their ballots, but the local election officials have installed a second drop box in the meantime.

In Texas, a state where some 39 of its counties are larger than the state of Rhode Island a federal judge blocked the order from the governor limiting ballot drop boxes. Attorney General Ken Paxton, a Republican, filed an immediate repeal and won a stay from a three-judge panel on the U.S. Fifth Circuit Court of Appeals. On Thursday, in a separate but related case, a state judge struck down Abbott's order — but the legal fight will continue, since it’s unclear what impact this ruling will have.

Ballot 'harvesting'

Democrats also sought to change existing rules on ballot collection, which is when volunteers or political operatives collect sealed mail-in ballots to deliver them to election officials. Republicans argue that what they call "ballot harvesting" leads to fraud. A Republican operative in North Carolina was charged after investigators said he collected and tampered with absentee ballots in 2018, though proponents of the practice say it's just another get-out-the-vote effort and fraud is rare.

Ballot collection is banned in many states unless a person is transporting the ballot for close family members, but Democrats sued unsuccessfully to allow ballot collection in Minnesota, Florida, Arizona, Maine and North Carolina. Republicans largely managed to defend those bans. The Supreme Court will soon review a ballot collection ban in Arizona, but the ban stands for now.

Democrats succeeded in Montana, where a district court overturned a state law banning ballot collection.

Native American reservations without home mail service benefit from ballot collection efforts, Democrats argued, and Native Americans routinely utilize get-out-the-vote groups and pooling ballots for delivery among friends. With nearly 80,000 Native Americans living in Montana, the ruling could be consequential for the close Senate race there.

They secured a partial win in Michigan, whena court allowed ballot collection to occur the weekend before the election. Republicans are working to appeal.