Litigation Over the 2020 Election and Its Lasting Impact

In this article, we compiled some notable lawsuits in 2020 from the General Election that affected voting rights and voting laws of today.

Which Texans Can Vote by Mail?

Texas Democratic Party v. Abbott

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

The case is critical because the Texas Supreme Court decision 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 unconstitutional would mean millions more people in Texas could vote by mail in person.

But, the Fifth Circuit Court in September 2020 held that this rule doesn't violate the 26th Amendment. The real issue was whether the rule violated the Equal Protection clause by treating age groups differently. That question was not raised before the Fifth Circuit.

The Fifth Circuit returned the case to the lower court on Sept. 10, 2020. Texas residents must request a mail-in ballot by Oct. 23. only Texas residents over 65 can vote by mail because of COVID-19.

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

Trump Campaign v. Governor Phillip Murphy

The case involves an election challenge by then President Donald Trump's campaign on the executive order issued by Gov. Phillip Murphy directing the state to send mail-in ballots to all registered voters. The executive order also stipulates that election officials should count all ballots received within 48 hours after the close of polling locations on Nov. 3, regardless of the postmark date, or by Nov. 10 if the ballots were postmarked by Nov. 3.

The Trump campaign argued that the executive order violates the U.S. Constitution by infringing on the state legislature's power to set the time, place, and manner for picking presidential electors. It sought to declare the executive order unconstitutional and prevent the distribution of mail-in ballots. But, after the executive order, the state legislature in New Jersey passed a law that followed its provisions.

In response to the suit, the U.S. District Court dismissed the request of the Trump campaign. The U.S. District Judge referenced the guidance provided by the U.S. Supreme Court, stating that the federal courts should generally respect the state legislature's decision in modifying election laws amid the coronavirus pandemic. The judge ultimately ruled that ballot votes should not get counted after election day. But the ruling maintained that the state's election administration should decide the timing for counting ballots.

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 to vote — which many cannot afford. Florida residents with felony convictions challenged this as a violation of their Due Process and Equal Protection rights.

This case has a lengthy procedural history. This means it's bounced around federal courts for a while, including the Supreme Court. The most recent development came in the 11th Circuit, which, on Sept. 11, held that the 2019 law requiring felons to pay to vote was constitutional. As such, felons who have served their time but have outstanding fines and fees can't vote despite the 2018 constitutional amendment.

Ballot Canvassing Observation Dispute

Donald J. Trump for President Inc., v. Boockvar, Secretary of the Commonwealth of Pennsylvania, et al.

During the 2020 presidential election, Trump's campaign petitioned to allow closer observation of ballot canvassing in Philadelphia County. It argued the current ballot canvassing set up at the Philadelphia County Board of Elections prevented campaign representatives and watchers from effectively observing the ballot canvassing. The county board of elections argued that the election code was met as long as watchers from each political party were in the room.

The Commonwealth Court of Pennsylvania ruled in favor of the Trump campaign, highlighting issues related to election integrity. The court ruled that the opportunity for "meaningful observation," as intended by the Election Code, was not given in this case. But the Pennsylvania Supreme Court overturned the decision of the Commonwealth Court. The Pennsylvania Supreme Court reinstated the previous ruling of the lower court, denying the request of the Trump campaign for closer observation. The Pennsylvania Supreme Court noted that the current arrangement complies with the Election Code. This was a crucial setback to the Trump campaign as Pennsylvania is a battleground state. The state chose President Joe Biden in the election.

The Winner-Take-All Electoral College System Is Constitutional

Baten v. McMaster

The winner-take-all system of Electoral College voting in 48 states has faced several challenges. Under this system, the popular vote winner in that state gets all 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. According to the federal appeals court, the founders gave states wide latitude in deciding how the Electoral College system works. This is in line with decisions in other circuits. While states can change their systems of apportioning Electoral College votes, courts are not forcing them to. South Carolina's electoral votes went to Trump.

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. But Michigan requires a certain amount of signatures to do so. The group challenged Michigan's enforcement of this rule since it could not get signatures while forced to be at home.

The Sixth Circuit agreed that the signature rule 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 rule that two witnesses or a notary sign absentee ballots. A district court approved this agreement. Republicans challenged this loosening of restrictions against absentee ballots. They argued that the rules, which are unusually stringent compared with other states, prevent fraud.

The Supreme Court 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."

Can Lower Federal Courts Change Election Rules Before An Election?

Republican National Committee v. Democratic National Committee

The Democratic National Committee and the Democratic Party of Wisconsin sued the Wisconsin Elections Commission over state laws related to absentee voting procedures for the 2020 election, which included the presidential primary. They argued that the law unduly imposed restrictions on absentee voting. The U.S. District Court for the Western District of Wisconsin ruled in favor of the plaintiff and issued an injunction to ease some restrictions.

The U.S. Supreme Court issued a stay order, stopping the enforcement of the district court order that eased absentee voting restrictions. The Supreme Court based its decision on the principle that the lower federal state courts should not change election rules shortly before an election.

What About Witness Requirements in Alabama?

Compare the above Rhode Island case to Merrill v. People First of Alabama. In this case, a district court judge eased restrictions on absentee voting in Alabama. But the Supreme Court stayed the lower court's order. This means absentee voters must have two witnesses or a public notary sign their ballot in Alabama.

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

Absentee Ballot Drop Box Limitations

Texas League of United Latin American Citizens v. Abbott

The Texas League of United Latin Americans sued Gov. Greg Abbott over his directive to limit the number of absentee ballot drop boxes in each Texas county. The plaintiffs argued that the order infringed on their voting rights protected by the First and 14th Amendments and the Voting Rights Act, saying the directive imposed an undue burden on their right to vote.

The Western District of Texas initially issued an injunction on the governor's order, but the Fifth Circuit Court overturned the injunction. The court ruled that the drop box limitation did not unduly burden the voters' voting rights. The court also noted that during the COVID-19 pandemic, extending the early voting period and earlier delivery of absentee ballots extended voting rights.

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, it is continuing a trend.

As state legislatures continue to look at election procedures and courts resolve lawsuits, people must know their voting rights, understand their state's laws, and vote.

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

You Don't Have To Solve This on Your Own – Get a Lawyer's Help

Meeting with a civil rights lawyer can help you understand your options and how to protect your rights.