Ongoing and Recent Litigation Over the 2020 Election

There have been hundreds of lawsuits already filed over the 2020 election. These lawsuits concern mail-in voting, the Electoral College, fraud, voter suppression, and a host of other issues. 

States continue to evaluate the best means of voting during a pandemic, meaning the legal controversy is far from over. Legal challenges may also occur post-election, particularly if the vote is close or turns on a single disputed state, such as Bush v. Gore in 2000.

FindLaw has compiled some notable lawsuits that have affected voting rights before the election, as well as ongoing lawsuits that may lead to changes before or after the 2020 election.

Which Texans Can Vote by Mail?

Texas Democratic Party v. Abbott

Texas is allowing anyone over the age of 65 to cast a mail-in ballot without any further conditions for the 2020 General Election. The Texas Democratic Party challenged this rule change in federal district court, arguing that the 26th Amendment of the U.S. Constitution prohibits voting restrictions by age for anyone over 18 and the state should allow anyone to vote by mail.

The case is important because the Texas Supreme Court has held that lack of immunity from COVID-19 does not qualify a Texas resident to vote by mail under Texas law. Holding the over-65 rule to be unconstitutional would mean many millions more people in Texas could vote by mail.

However, the Fifth Circuit recently held that this rule does not violate the 26th Amendment on its own. The real issue was whether the rule violates the Equal Protection clause by treating age groups differently. That question, however, was not raised before the Fifth Circuit. The Fifth Circuit therefore sent the case back down to the lower court on September 10, 2020. Texas residents must request a mail-in ballot by Oct. 23. As it stands, only Texas residents over the age of 65 can vote by mail because of COVID-19.

Can Low-Income Felons Vote in Florida?

Jones v. DeSantis, Raysor v. DeSantis

In 2018, Florida amended its constitution to allow people with felony convictions who had completed their sentences to vote. Florida lawmakers and its courts have interpreted this to mean that felons must have paid all fines, fees, and restitution in order to vote — which many cannot afford to do. Florida residents with felony convictions challenged this as a violation of their Due Process and Equal Protection rights.

This case has a long procedural history, meaning it's been bouncing around federal courts for awhile. This includes the Supreme Court. The most recent development came in the 11th Circuit, which on September 11th held that the 2019 law requiring felons to pay in order to vote was constitutional. As such, felons who have served their time but have outstanding fines and fees cannot vote in the 2020 election, despite the 2018 constitutional amendment.

Can New Jersey Send Mail-in Ballots to All Registered Voters?

Democratic Governor of New Jersey Phillip Murphy issued an executive order to send mail-in ballots to all registered voters in the state. The Trump campaigned sued, alleging this violates the U.S. Constitution by usurping the state legislature's power to set the time, manner, and place of voting. The case is currently in U.S. District Court for the District of New Jersey, which has yet to issue a ruling.

Winner-Take-All Electoral College System Is Constitutional

Baten v. McMaster

There have been several challenges to the winner-take-all system of Electoral College voting which occurs in 48 states. Under this system, the winner of the popular vote in that state gets all of its electoral votes. In our current political environment, this means that minority parties in some states end up with virtually no say in who gets elected president.

Residents of South Carolina challenged this approach. The Fourth Circuit found no constitutional violations, however. According to the federal appeals court, the founders gave states wide latitude to decide how their own Electoral College system works. This is in line with decisions in other circuits. While states are free to change their system of apportioning Electoral College votes, courts are not forcing them to.

Signature Requirements for Getting on the Ballot

SawariMedia v. Whitmer

Challenges over getting on the ballot have also arisen in the context of stay-at-home orders. In Michigan, for example, criminal justice reform advocates wanted to include a ballot initiative in the upcoming election. In order to do so, however, Michigan first requires a certain amount of signatures. The group challenged Michigan's enforcement of this requirement since they could not get signatures while forced to be at home.

The Sixth Circuit agreed that the signature requirement was too onerous during a pandemic.

Do You Need Two Witnesses and a Notary in Rhode Island to Vote Absentee?

Republican Nat. Comm. v. Common Cause Rhode Island

Election officials in Rhode Island agreed to waive the usual requirement that absentee ballots needed to be signed by two witnesses or a notary. A district court approved this agreement. Republicans challenged this loosening of restrictions against absentee ballots, arguing the requirements (which are unusually stringent compared to other states) are required to prevent fraud.

The Supreme Court, however, declined to take up the case. While the Supreme Court does not always explain why it declines to take up certain matters, in this case, the justices explained that since no election officials in Rhode Island had an issue with the agreement, the GOP lacked "a cognizable interest in the State's ability to enforce its duly enacted laws."

What About Witness Requirements in Alabama?

Compare the above case to Merrill v. People First of Alabama. In this case, a district court judge eased restrictions on absentee voting in Alabama. However, the Supreme Court did end up staying the lower court's order, meaning that in Alabama, voters who wish to vote absentee must have either two witnesses or a public notary sign their ballot.

The difference between this case and Rhode Island's? Only that Alabama election officials argued against easing the state's absentee voting requirements.

Election Litigation Is Increasingly Common

Lawsuits over election procedures are nothing new. Ever since the 2000 election, litigation has picked up during election years. While the 2020 election may have more lawsuits than ever before, it can be seen as the continuation of a trend.

As state legislatures continue to evaluate election procedures and courts resolve lawsuits, it falls on individuals to be aware of their voting rights, understand their state's laws, and vote.

The 2020 General Election is one of the most contentious in modern history. Both the Republican Party and the Democratic Party have argued the other side is using undemocratic measures. However, an overwhelming percentage of votes cast are received and counted properly. While current litigation involves important constitutional and voting rights issues, it remains true to say that your vote matters.

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