Every four years or so, Americans are forced to face up to the fact that we have two presidential elections. One election takes place at the ballot box, in full view of the public where the voices and the votes of ordinary citizens determine who will run our government. The other election, as it were, takes place in the courts.
Election-related lawsuits have proliferated this election cycle. According to the Stanford-MIT Healthy Elections Project, which tracks Covid-19-related election litigation, almost 400 lawsuits have already been filed this election cycle. There are more than 35 lawsuits in the battleground state of Michigan, about 28 lawsuits in Texas in both the federal and state courts, almost 20 in Pennsylvania (which could be the state that decides the election) and 10 lawsuits in North Carolina, which President Donald Trump most likely also needs to win if he is to have any shot at re-election.
Unlike the election that is taking place at the ballot box, the election battle in the courts will be decided by a select group of judges, including the justices of the Supreme Court. But while the American voters will not get the final say, this fight is at least as important as the one that is happening at the ballot box. This is because the decisions of the judges and the justices of the Supreme Court will either make it easier or harder for voters to vote. If the election is close, those decisions may be critical to the outcome. If you make it easier for voters to vote you will increase turnout. Notably, some political operatives believe, as a rule of thumb, that high turnout generally benefits Democrats and low turnout general benefit Republicans.
However, to the extent that we are counting on the courts to solve our voting problems, we will be sorely disappointed. The courts are divided between those who believe we should remove all barriers that make it harder for citizens to vote and those who believe that voting is a privilege and the rules should be enforced as they are written, even when they make it harder for people to vote. The pandemic has made everything even more complex.
What does this mean? Voters should expect court decisions that are all over the place. While the rash of voting decisions from the courts have been all over the map, one message is clear. The courts will not save us from our voting problems. We will have to save ourselves. Three recent court decisions in litigation in the state of Texas provide good illustrations of the problem.
In Richardson v. Hughs, the plaintiffs, voters in Texas, challenged that state’s requirement that voter signatures on the envelope of mail-in ballots must match the signature on the voter’s vote-by-mail application. The plaintiffs were worried that a strict enforcement of the signature-matching requirement would disenfranchise voters who were otherwise eligible to vote. Signature matching is not a science. The United States Election Assistance Commission found in its 2018 report that 1.4 percent of mail ballots were rejected in the 2018 election. Sixteen percent of the ballots that were disallowed were reportedly rejected because of a signature-matching problem.
A federal district court sided with the plaintiffs and concluded that Texas’s method for matching signatures was unconstitutional. The district court ordered the secretary of state to give voters whose mail ballots have been rejected for this reason a chance to challenge the rejection before the election. In the alternative, the district court also gave the secretary of state another option. The secretary of state could notify local officials and tell them that they could not reject mail ballots because the signatures did not match.
But a few days ago, the U.S. Court of Appeals for the 5th Circuit issued an opinion that stopped the district court’s order from going into effect. The 5th Court said that the district court’s order is mistaken because it “minimizes Texas’ interest in preserving the integrity of its elections.” The appeals court faulted the lower court for taking “it upon itself to rewrite” the state’s “mail-in ballot signature-verification and voter-notification procedures.” The appeals court balanced the benefits of the government’s rule against the cost to the plaintiffs and concluded that it was not a close call. Texas has a “strong interest in safeguarding the integrity of its elections from voter fraud.” That interest “far outweighs any burden the state’s voting procedures place on the right to vote.” Therefore, the lower court’s order had to be stayed. It is too bad that the appeals court did not address the fact that there are few instances of voter fraud and researchers who have looked into the issue have called it a myth.
In Texas v. Hollins, the county clerk of Harris County, Chris Hollins, announced that he was going to send an application to vote-by-mail to every registered voter in his county, whether a voter requests an application or not. Hollins’ action would certainly have made it easier for his county to vote. But the state of Texas disagreed and sued Hollins in state court. The state lost in both the trial court and the court of appeals. But in a recent decision, the Texas Supreme Court concluded that state law does not authorize a county clerk to send mail ballots, en masse, to registered voters. The Texas Supreme Court interpreted Texas election law very narrowly and reasoned that the state legislature should be allowed to apply its voting laws uniformly across the state. Of course, two lower courts thought differently.
In Texas League of United Latin American Citizens v. Abbott, the plaintiffs in the case filed a complaint to challenge Gov. Greg Abbott’s order limiting absentee ballot locations to one per county. The district court agreed with the plaintiffs and on Oct. 9, it issued an injunction preventing the governor’s order from going into effect. The next day, the Court of Appeals for the 5th Circuit granted a stay of the district court’s order, which means that the governor’s order limiting absentee ballot drop boxes is still the law of the land, at least in Texas.
Texas is not that different from the rest of the country. For example, in Arizona, a federal court of appeals recently stayed the order of a federal district court judge that gave voters up to five days after Election Day to sign their ballots if they had failed to do so. And of course, just a few days ago, the justices of the U.S. Supreme Court divided 4-4 on an election law case out of Pennsylvania. The Pennsylvania Supreme Court issued an opinion that required the state’s election officials to count mail-in ballots received up to three days after Election Day, as long it is not evident that the ballots are postmarked after Election Day. And if we needed further proof, on Oct. 21, the U.S. Supreme Court, in a 5-3 vote, stayed the decision of a federal district court that would have allowed curbside voting in Alabama. As Justice Sonia Sotomayor pointed out in the dissent, curbside voting would have permitted voters who are at greater risk from Covid-19, including disabled voters, to vote in person while minimizing the risk to their health. But a majority of the court disagreed.
We turn to courts to help us address deficiencies in voting rules that are really not designed to stand up under any type of pressure, whether it is the pressure of close elections or the pressure of a pandemic, much less the pressure of both a close election and a pandemic. But the courts cannot help us; they are just as divided as we are. If we want elections to be decided at the ballot box and not in the courthouse, we need to save ourselves by passing laws that make it easier for voters to vote — and not harder.