10/31/2022

The midterm elections are right around the corner! With The Brief — our monthly newsletter that delivers an exclusive, in-depth review and analysis of the latest voting rights and democracy developments — we’ll keep you updated on what’s happening in courtrooms across the country and how these actions might affect your right to vote.

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October brought a whirlwind of courtroom activity, and with the midterms just eight days away litigation is going to continue heating up. The month started out with the U.S. Supreme Court hearing Merrill v. Milligan, the case that has the potential to reshape the future of Section 2 of the Voting Rights Act (VRA). A few weeks later, the Supreme Court announced that oral argument in Moore v. Harper, the case over North Carolina’s court-adopted congressional map that opens up review of the radical independent state legislature theory, will be held on Wednesday, Dec. 7, 2022. In Arizona, Pennsylvania, Wisconsin and elsewhere, courts heard challenges to mail-in voting, how ballots will be processed this fall, detailed instances of voter intimidation and more.  

As of Oct. 30, Democracy Docket has tracked 157 lawsuits filed in 2022 across 34 states. 95 of these lawsuits are currently active and ongoing. Of the active lawsuits, 38 seek to restrict access to voting. So, where does voting rights litigation stand as we head into Election Day? Let’s dive in.

Keep Your Eyes Peeled on Pennsylvania

Pennsylvania was back in the spotlight in October and everyone wanted in on the action.

By now, you’ve probably heard a lot about “undated” or “wrongly dated” mail-in ballots in Pennsylvania and may be wondering why this has become an issue that requires rounds of litigation to hash out. The gist is that Republicans have sued over and over again trying to toss out these mail-in ballots, which are either missing a date or have an incorrect date on their outer return envelopes, but are otherwise valid. This month, the GOP saw another opening to challenge these ballots after the U.S. Supreme Court vacated (meaning voided) a federal appellate court’s decision that had required Pennsylvania counties to include undated mail-in ballots that were timely and valid in election totals. To be clear: This Supreme Court action didn’t have any tangible effect on changing the status quo in Pennsylvania, given that both state court decisions and state guidance have reiterated that undated mail-in ballots must be counted, but the Republican National Committee (RNC) and company still filed a lawsuit trying to muddy the issue. The GOP’s petition alleges that counting mail-in ballots with incorrect or missing dates poses a “threat” of “an irreparable dilution of [Republicans’] votes” and requests that the court order the county boards to “segregate any undated or incorrectly dated ballots received for the 2022 general election.” Democrats have been requesting mail-in ballots at a much higher rate than Republicans, so this strategy of attacking mail-in voting isn’t very surprising. We’re awaiting a decision from the state Supreme Court that could come any day now.

• The verdict: Despite relentless Republican attacks on mail-in voting in Pennsylvania, counties have clear directions to count undated and wrongly dated mail-in ballots in the midterm elections. We’ll keep watching these outstanding lawsuits and update you on any changes.

There was yet another update on mail-in voting in Pennsylvania, this time about mail-in ballot cure procedures (the process by which a voter is notified of a technical mistake with their mail-in ballot and can attempt to rectify it). On Oct. 21, the Pennsylvania Supreme Court issued an order rejecting a Republican request to temporarily block the ability of county boards of elections to develop and implement cure procedures. The state of Pennsylvania does not have cure procedures outlined in its election laws, so the RNC and other GOP groups argued that the absence of statewide cure guidelines translates to a prohibition of curing at the county level. The state Supreme Court’s order, which affirmed a lower court’s decision, means that counties can offer cure processes.

• The verdict: Voters in counties with cure processes will be able to fix technical errors with their mail-in ballots when they vote this fall — a crucial victory given that Pennsylvania is a swing state with a significant number of mail-in voters. This also represents another blow to the GOP’s attack on mail-in voting in Pennsylvania.

The mail-in voting updates don’t stop there. On Oct. 18, a Pennsylvania trial court judge denied a conservative request to alter the rules regulating the use of drop boxes throughout Lehigh County, Pennsylvania. A few weeks before absentee ballots were sent out in Pennsylvania, a right-wing group asked a judge to require “in-person monitoring” of drop boxes and to place all drop boxes inside buildings. In rejecting this request, the judge held that “the integrity of mail-in voting via drop boxes in Lehigh County remains safe and secure.” The group that filed the lawsuit appealed this decision, but the state appellate court refused to pause the lower court’s ruling and the group then dismissed its appeal.

• The verdict: Lehigh County will deploy five drop boxes as planned for the midterm elections, meaning a safe and secure method of voting will stay open and accessible for the county’s voters. 

Witnesses, WEC and Wisconsin

Lawsuits around the counting and processing of mail-in ballots aren’t limited to Pennsylvania. In Wisconsin, there is a movement by conservative groups to limit this method of voting by focusing on niche, administrative aspects of the process. 

Earlier this year, the Wisconsin Elections Commission (WEC) issued guidance that permitted voters to ask election officials to spoil (meaning discard and disqualify) their returned absentee ballots and receive new ones if they change their minds or opt to vote in person instead. Conservatives filed a lawsuit to temporarily suspend the guidance, which was granted, then paused and then unpaused. The status after this intense back and forth? WEC withdrew its guidance, which is no longer in effect as of Oct. 28.

• The verdict: Now, the withdrawal of this guidance will limit options for voters who decide to vote via another method or change their minds about their vote and wish to re-vote. However, under Wisconsin law, voters who make a mistake, receive a damaged absentee ballot or need to fix minor errors on their absentee ballots that have not yet been cast and counted are still permitted to spoil their ballots and receive a new one from an election official.

We have more updates on the “red ink” guidance that Republicans sued over earlier this fall. Back in 2016, WEC — with the support of state Republicans — issued guidance allowing clerks to fill in missing or incomplete address information (using red ink) on voters’ absentee ballot witness certificates. Fast forward six years to September 2022 when a county Republican party successfully sued to block this guidance for the midterm elections, meaning that clerks cannot fill in missing information on absentee ballot certificate envelopes for the upcoming November elections.

But, after WEC withdrew its guidance following the lawsuit, confusion grew in the state about what qualified as a “missing” address and two lawsuits were filed seeking clarification. In one, a state judge ruled that WEC’s previous definition of an “address” (a street number, street name and name of municipality) is still in effect, meaning voters’ absentee ballots should be counted so long as they contain a witness address certificate that includes those details. The plaintiffs in this suit have filed another motion asking for clarification after it became apparent that counties are using different definitions of “address;” this motion is still pending as of last night. In the second lawsuit, a different judge declined to further clarify what a “missing” address meant.

• The verdict: Following whirlwind litigation on this topic, Wisconsin voters and election officials deserve clarity about what constitutes a sufficient address so that voters can ensure that their absentee ballot witness certificates contain all of the necessary components to have their votes counted. But, we wouldn’t be surprised if more litigation around this issue pops up leading to Election Day.

Voting by Mail Up and Down the East Coast

During the 2020 election cycle, then-President Donald Trump and his allies ramped up attacks on mail-in voting, claiming it resulted in voter fraud. In 2022, these attacks have only increased, causing Republicans to largely distrust this method of voting. Thankfully, courts have rejected most of the GOP lawsuits against mail-in voting.

On Oct. 7, a North Carolina judge denied a Republican request to temporarily adopt signature matching requirements for mail-in ballots in the upcoming midterm elections. The North Carolina Republican Party and two Republicans filed a lawsuit after the North Carolina State Board of Elections declined to give counties discretion to adopt signature matching requirements — a notoriously error-ridden process whereby election officials compare a voter’s signature on their ballot to the one in their voter registration file — for mail-in ballots. The state court rejected the Republicans’ request, finding that their lawsuit “failed to demonstrate a likelihood of success on the merits.” A few weeks later on Oct. 26, another North Carolina judge rejected a Republican request to move up the mail-in ballot receipt deadline, which the state moved from Nov. 11 (which is Veterans Day) to the next business day, Nov. 14.  

• The verdict: These decisions hand two victories to North Carolina voters: Mail-in ballots that are postmarked on or before Election Day and received by mail no later than Monday, Nov. 14 will be counted and election officials won’t conduct signature matching in order to process mail-in ballots. 
  

On the same day, Oct. 7, the Delaware Supreme Court struck down two pro-voting laws, one that created no-excuse mail-in voting and another that established same-day voter registration. In mid-September, a state trial court blocked the no-excuse mail-in voting law after finding it violated the state constitution, but upheld same-day voter registration. After holding oral argument, the state Supreme Court found that both laws violate the Delaware Constitution and invalidated them. 

• The verdict: This decision is a loss for Delaware voters who would have benefited from increased access to the ballot box via no-excuse mail-in voting and same-day registration.

In even more Oct. 7 news, the Maryland Court of Appeals (the state’s highest court) affirmed a decision to allow county boards of elections to begin canvassing and counting mail-in ballots beginning on Oct. 1, 2022. The Maryland State Board of Elections sought emergency relief to allow canvassers to “meet and to open envelopes, canvass, and tabulate mail-in ballots no earlier than 8:00 a.m.” on Oct. 1. Previously, Maryland election law prohibited opening any mail-in ballots before 8 a.m. on the Wednesday following Election Day. The state’s highest court affirmed a lower court’s decision to allow the early processing and counting of mail-in ballots to ensure that certification is not delayed. The court also rejected independent state legislature theory arguments put forth by the Republican gubernatorial candidate, Dan Cox, suggesting that the state court system couldn’t interfere with this timeline. 

• The verdict: This decision is a win for voters as county boards will be able to canvass and count mail-in ballots in a timely manner this fall. 

On Oct. 21, a New York judge issued a ruling in a Republican lawsuit challenging two absentee voting laws in the state. The judge allowed a law that permits people to vote absentee if they are concerned about contracting an illness such as COVID-19 to stand while striking down a law that allows for the counting and canvassing of absentee ballots on an expedited basis and prevents legal challenges to already counted ballots. The judge also ordered counties to separate and preserve absentee ballots after they’re counted in case ballots are challenged after the election. The decision was immediately appealed and paused on appeal, which means that both challenged laws remain in effect in New York. However, this lawsuit caused chaos when it became apparent that Republican county commissioners refused to process absentee ballots according to state law, citing the trial court’s decision (which, as a reminder, was paused on appeal). Albany County had one such commissioner, and Democrats sued to bring the county into compliance with New York law. Less than 24 hours after the lawsuit was filed, the Albany County GOP commissioner agreed to process and count absentee ballots as required by state law. Oral argument in the original Republican lawsuit challenging the two laws is scheduled before the state’s intermediate appellate court on Tuesday, Nov. 1, so keep an eye out for any updates on absentee voting in the Empire State.

• The verdict: Both laws are currently in effect in the state pending further action by New York courts, and rogue counties who tried to ignore this fact have been reined in — a win for voters who rely on absentee voting and for election officials who can process absentee ballots in an expedient manner.

What To Expect at the Polls in Missouri and Michigan

In June, Missouri caught up to other anti-voting states and enacted its own voter suppression law. House Bill 1878, a sweeping overhaul of the state’s election code that reads like a fantasy novel for right-wing election conspiracists, was subsequently challenged in two lawsuits. One of these lawsuits sued over H.B. 1878’s new photo ID requirement and its repeal of previously accepted ID options. On Oct. 18, a Missouri judge dismissed the lawsuit, finding that the plaintiffs lacked standing (the legal capacity to bring a lawsuit). The second lawsuit is still ongoing.

• The verdict: The state’s new photo ID requirement — under which Missouri voters must have a non-expired, acceptable Missouri or federal photo ID — is in place, imposing burdens on individuals who lack any of the qualified IDs.

In Michigan, on Oct. 20, a judge partially granted a request to nullify a set of 2022 rules pertaining to partisan elections challengers and poll watchers following two Republican lawsuits. The judge concluded that Michigan Secretary of State Jocelyn Benson (D) and the Michigan director of elections exceeded their authority in adopting the new set of rules and ordered them to amend the rules. This decision is currently being appealed.

• The verdict: This decision loosens up restrictions for partisan election challengers and poll watchers, but thankfully there are still rules in place to hopefully limit disruptive actions by partisan actors.

The Inner Workings of Running Elections

Seemingly obscure election administration issues have become the focal point of anti-voting lawsuits, and we need to pay close attention to them. In Nevada, Kansas and Texas, Republicans attempted to modify election rules to benefit them and hoped no one was watching.

The election conspiracies about electronic voting machines that are currently gripping rural, red counties could create major issues this election cycle. Nye County, Nevada provides an example of what happens when election officials decide to revert to a less accurate, more expensive and more time consuming method of processing votes: hand counting. In early September, Nye County announced a plan to use only paper ballots and hand count the results of the midterm elections, along with conducting parallel electronic tabulation. The American Civil Liberties Union of Nevada challenged this procedure, and on Oct. 21 the Nevada Supreme Court agreed that Nye County cannot live stream the vote counting process in which election results are read aloud prior to polls closing on Election Day. A few days later, the state Supreme Court issued a ruling in a separate but related lawsuit that affirmed the county’s plan to hand count its ballots alongside an electronic tabulation. 

But, the story doesn’t end there. On Oct. 27, it became apparent that Nye County was orally tabulating ballots in earshot of observers. (Side note: The Associated Press reported that it took several groups three hours to count 50 ballots each, with mismatched totals and recounts and volunteers appeared exasperated at how time consuming the effort was.) The Nevada Supreme Court reiterated that this process violates state law and ordered that “observers may not be positioned so as to become privy to the ballot selections and room tallies.” This order was followed by a letter from the Nevada secretary of state requiring the county to immediately stop any hand-counting processes until the secretary can ensure that the county isn’t violating state law.

• The verdict: Nevada courts and election officials are paying attention to what’s going on in Nye County and acting to put an end to any potentially illegal activity. And, while other counties across the country appear poised to jump on the hand-count train, Nye County’s bungled operation should be a warning that upending ballot counting has the potential to insert unnecessary chaos into the election process.

The attacks on electronic voting machines haven’t stopped, but yet another fringe request bit the dust in October. In Kansas, a federal judge denied a request to cease the use of electronic voting machines and drop boxes throughout Kansas ahead of the upcoming midterm elections. Six Kansas voters filed a lawsuit in September challenging the results of the 2020, 2021 and 2022 elections in Kansas, as well as the use of electronic voting machines and drop boxes throughout the state, based on frivolous claims. Thankfully, the judge rejected the arguments. Litigation on the full merits of the lawsuit is still ongoing, along with similar litigation in Arizona, Michigan, New Hampshire and Oregon.

• The verdict: In rejecting conspiracy theories about the state’s voting systems and elections, Kansas elections will run as planned this November. 

Bad news came out of Texas this month: On Oct. 26, the 5th U.S. Circuit Court of Appeals upheld strict residency requirements for voter registration in Texas’ Senate Bill 1111, thereby reinstating the law in full. A district court had previously blocked provisions of the law for violating the First and 14th Amendments, but the 5th Circuit reversed this decision after holding that the groups behind the lawsuit didn’t have the legal capacity to sue over S.B. 1111.

• The verdict: By keeping S.B. 1111 in effect in Texas, strict residency requirements for voter registration will be imposed on Texans in future election cycles, disproportionately impacting unhoused voters, students and others.

New Lawsuits We’re Watching

Democracy Docket is currently tracking 176 active lawsuits across 37 states, 15 of which were filed in October. Below we highlight a few new cases you may have missed and break down the key details.

Arizona Maricopa County Election Workers Regulations Challenge

Who: The RNC and the Republican Party of Arizona sued the Maricopa County recorder and other Maricopa County officials.

What: The lawsuit alleges that the county failed to have enough Republican election workers in the 2022 primary elections and imposed strict regulations on election workers, thereby making it harder for Republicans to participate in election administration.

Why: The plaintiffs argue that Maricopa County is violating state law by failing to recruit enough Republican election workers and creating “inhospitable work conditions” for Republican officials.

Learn more about Republican National Committee v. Richer here.

Pennsylvania York County English-Only Challenge

Who: CASA, a nonprofit civil rights organization “dedicated to uplifting and leveraging the voices of Pennsylvania’s immigrant and Latino communities,” filed a lawsuit against members of the York County Board of Elections.

What: The lawsuit challenges York County’s English-only election practices (i.e. having voting and registration materials only in English) given that the county has a substantial Puerto Rican population. 

Why: CASA alleges that, by failing to provide Spanish-language election materials, York County is violating Section 4(e) of the VRA, which “prohibits denying the right to vote to any person who attended a school in Puerto Rico in which the predominant classroom language was other than English because of his or her ‘inability to read, write, understand, or interpret any matter in the English language.’”

Learn more about CASA v. Wheeler here.

Texas Bexar County Polling Location Reduction Challenge

Who: The Texas Organizing Project sued a Bexar County, Texas judge and multiple Bexar County commissioners.

What: The lawsuit challenged the Bexar County Elections Department’s decision to close numerous polling locations for the upcoming 2022 midterm elections.

Why: The Texas Organizing Project alleges that the reduction in polling locations and the defendants’ failure to “operate a legally sufficient number of polling places on Election Day” violates Texas law. The group also alleges that having fewer polling locations will disproportionately impact minority voters who will be burdened by having to travel further distances in order to get to their polling places. After the lawsuit was filed, Bexar County announced that it came to an agreement with the plaintiff to operate 302 polling locations on Election Day.

Learn more about Texas Organizing Project v. Wolff here.

Facts, Stats and Testimony

Following multiple reports of voter intimidation in Arizona by right-wing groups monitoring drop boxes, two lawsuits were filed against the alleged vigilantes. The first lawsuit, Arizona Alliance for Retired Americans v. Clean Elections USA, moved at rapid speed after being filed on Oct. 24. During an Oct. 26 hearing on the plaintiffs’ motion for a temporary restraining order to prohibit Clean Elections USA and its members from engaging in any further voter intimidation tactics, Arizona voters spoke out about how these vigilantes — some of whom were armed and dressed in tactical gear — affected them. 

One voter, Jenea Phillips, was concerned about voting via drop box after hearing the reports about voter intimidation, but she decided to go to a drop box in Mesa, Arizona that was located at a courthouse since she thought that would be safer. When she got out to deposit her ballot, she noticed a running car was sitting in the parking lot and there was a cell phone under the visor pointing out the front windshield.

• Phillips testified that the whole situation felt “not right in [the] moment” and she reported the incident, stating “I should be able to vote without having photos or video taken and be concerned about where that would be shared.”

The main argument presented by the lawyer for Clean Elections USA in response to the concerns about voter intimidation? That people can’t be entirely certain that it is, in fact, Clean Elections USA behind the monitoring and, even if it is the group and its affiliates, what they’re doing is perfectly legal.

• The group’s founder, Melody Jennings, has posted on Truth Social (a right-wing media platform founded by former President Donald Trump) urging people to go to drop boxes in Maricopa County. And, the plaintiffs’ attorneys played a video from a local news reporter who interviewed drop box watchers accused of intimidating people and asked them what group they were affiliated with. One watcher responds, “Clean Elections USA.”

Unfortunately, on Oct. 28, the district court judge, citing First Amendment concerns, declined to block Clean Elections USA and its affiliates from monitoring drop boxes in Arizona during the 2022 midterm elections. This decision was immediately appealed to the 9th U.S. Circuit Appeals and will move quickly this week. In more positive news, the second lawsuit, which was filed by the League of Women Voters of Arizona, resulted in two groups that were accused of intimidating voters sending their members an “Official Stand Down order” in light of the litigation, writing that “[m]oving forward Operation Drop Box is officially Closed.”

What To Look Out For

With Election Day right around the corner, Democracy Docket is anticipating an onslaught of rapid election-related litigation. In particular, we’re watching out for litigation around:

• Challenges to voters’ eligibility;

• Intimidation of voters and/or election workers;

• The counting and processing of mail-in ballots and

• Counties that refuse to certify their election results.

These types of lawsuits have already picked up and will continue to spike through Election Day and continue throughout November. Just as the election won’t be decided the night of Nov. 8, election-related litigation might take days to weeks to be resolved. We’ll keep you up to date on crucial legal developments with our emails, Cases and News Alerts pages and social media.

And, for a more comprehensive preview of what we already know is coming next month, look for our November Litigation Look Ahead being published tomorrow.

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