These vote-by-mail lawsuits could help decide the presidential election

Courts have become battlegrounds in battleground states during the coronavirus pandemic.
Image: Pam Fleming
Workers stuff ballots and instructions into mail-in envelopes at the Lancaster County Election Committee offices in Lincoln, Neb., on April 14, 2020.Nati Harnik / AP file

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By Lauren Egan

WASHINGTON — As health experts warn that the country could still be grappling with the coronavirus pandemic this fall, lawsuits aiming to expand access to mail-in ballots in key battleground states could help determine the outcome of the presidential race.

Nonpartisan groups, such as the Campaign Legal Center, as well as a handful of Democratic organizations, including Priorities USA, are backing lawsuits in more than a dozen states in an effort to eliminate administrative hurdles that could make vote-by-mail difficult or even inaccessible to voters.

“A large percentage of people are going to vote by mail, maybe even a large majority,” said Paul Smith, vice president of litigation and strategy at the Campaign Legal Center, a nonpartisan organization that works to support access to voting and is currently litigating cases related to the coronavirus and vote-by-mail in Minnesota, Texas and New Jersey.

“It's incredibly important this year that everyone is able to choose to vote by mail without an undue burden,” Smith said.

Most battleground states offer no-excuse absentee voting, meaning that any registered voter can vote by mail without needing a reason to do so. But all of these states have regulations — such as requiring a witness signature or requiring the ballot to be received by Election Day — that voting rights experts and activists say are onerous and could lead to mass disenfranchisement this fall.

In North Carolina, for example, Democratic legal groups filed a lawsuit arguing that the state should provide prepaid postage for all ballots, eliminate the requirement for two witnesses to sign a mail-in ballot, extend the deadline for when a mail ballot must be received, and allow for voters to fix any signature discrepancies before the state can reject a ballot.

“For people living alone and afraid to go out into the world, [finding witnesses] becomes a huge burden,” said Smith, adding that this will disadvantage senior citizens and those with underlying health conditions who are trying to avoid contact with people due to the pandemic.

In Florida, Democratic organizations filed a lawsuit seeking to suspend ballot-return deadlines and laws limiting who is allowed to collect vote by mail ballots and deliver them to local election offices.

Similar lawsuits have been filed in Arizona, Michigan, Minnesota, Pennsylvania and Wisconsin, all of which will be critical in deciding the race between President Donald Trump and presumptive Democratic nominee Joe Biden.

The North Carolina and Arizona suits could also affect tight Senate races in those states that could determine which party controls that body after Election Day.

“We need to make sure every eligible voter has access to vote-by-mail, that way every individual doesn't have to choose between their fundamental right to vote and their decision to keep themselves and their family safe,” said Myrna Pérez, director of the Voting Rights and Elections Program at the Brennan Center for Justice, a nonpartisan law and policy institute at New York University Law School.

Elections and voting rights lawyers say that they hope the vote-by-mail cases will move through the courts quickly. Delays in litigation, experts warn, could make it difficult for cash-strapped states to prepare for an election that will demand greater resources than previous years.

“My hope is that as many of these matters are resolved as far out from these elections as possible,” said Pérez. “The closer you get to an election the more you want stability in terms of what is available to voters because you want to make sure voters know what they're doing and what the rules are.”

Lawsuits that are still caught up in the courts in November will not delay the election from taking place said Rick Hansen, a professor of law and political science at the University of California, Irvine and the author of "Election Meltdown."

"Lawsuits will not stop the actual voting. At some point the courts will clarify what the rules are on election day. That would not prevent lawsuits trying to change or challenge results after election day, however," Hansen said, adding that some cases could make their way to the United States Supreme Court.

"But the chances of a 'do over' in the presidential race are extremely small. It did not happen in Florida 2000 despite the many problems there," Hansen continued.

Republican groups, fueled by Trump’s vocal opposition to mail-in voting, which he has falsely claimed leads to voter fraud, are putting up a fight. The Republican National Committee and Trump’s reelection campaign have committed $20 million to combat voting rights lawsuits.

“MAIL-IN VOTING WILL LEAD TO MASSIVE FRAUD AND ABUSE. IT WILL ALSO LEAD TO THE END OF OUR GREAT REPUBLICAN PARTY. WE CAN NEVER LET THIS TRAGEDY BEFALL OUR NATION,” Trump tweeted Thursday, adding “BIG MAIL-IN VICTORY IN TEXAS COURT TODAY.”

Texas, a traditionally red state that Democrats hope to turn blue, requires voters who wish to vote by mail to demonstrate a physical condition or sickness that prevents them from going to their polling place. On Thursday, the Texas Supreme Court ruled that lack of immunity to COVID-19 does not qualify a person to apply for a mail-in ballot.

Experts say the Texas case is likely headed to the U.S. Supreme Court.

Trump voted by mail in Florida in the 2018 midterm elections and White House press secretary Kayleigh McEnany, who has also made false statements about mail-in voting and has argued that the option should not be available to anyone who wants it, voted absentee in Florida 11 times in the past 10 years.

Despite a perception that mail-in voting benefits Democrats, new research from the Institute for Economic Policy Research at Stanford University shows that while vote-by-mail does tend to increase overall voter turnout, it does not affect either party’s share of turnout.

But limiting access to vote-by-mail could benefit Republicans this fall, one expert said.

Tom Pepinsky, a government professor at Cornell University, recently co-authored a report that found partisanship to be “the single most consistent factor” that determines Americans’ response to the coronavirus, with conservatives less likely than liberals to perceive the virus as a threat and respond accordingly.

“If it is the case that some states refuse to allow (or expand) postal balloting, this could benefit Republicans if Republicans are more willing to show up to vote in person,” Pepinsky said.

“There's still too much we don't know,” Pepinsky added. “But I do think that a general takeaway is that efforts to deny postal balloting seem like they would help the GOP, but run the risk of backfiring by firing up Democrats to defend their voice.”