As Election Day approaches, more than 100 election-related lawsuits have been filed nationwide to sow voter confusion and tee up courtroom battles that could affect elections beyond 2022.
Since at least the 2018 midterm election cycle, almost every state now has amended election laws, including Republican efforts to tighten election security and Democratic measures to expand voting access and weaken some restrictions that voting advocates say enhance turnout and minimize difficulties for minority constituents.
Now, the most litigation ever filed before an election is setting the stage for a potentially divisive post-election political field. Many of the GOP-led challenges seek to challenge new rules for mail-in voting, early voting, vote counting, and voter registration.
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Omar Ochoa, a Texas-based attorney and former federal law clerk, told the Washington Examiner there are nearly 30 states with ongoing litigation related to election laws stemming from 2020 challenges.
Election experts say the increase in election litigation points back to the Supreme Court‘s notorious ruling in the 2000 case Bush v. Gore, while lawsuits reached peak prominence and intensity after former President Donald Trump‘s 2020 election defeat, which he contested, and in a year that was already plagued with pre-election court challenges to mail-in ballot rules in Pennsylvania and disputes regarding absentee ballot deadlines in Michigan and Georgia.
“The truth is, there’s always been election litigation throughout the country’s history for a variety of reasons. But now it seems to be just kind of a different subject matter … and that’s voter access to elections,” Ochoa said.
Here are the states where court litigation is having a major impact on election rules:
Wisconsin
In-person early voting began on Tuesday in Wisconsin, a state that is enduring ongoing lawsuits inspired in part by Republicans attempting to make absentee voting more difficult following Trump’s 2020 loss.
In July, the state Supreme Court banned absentee ballot drop boxes located anywhere other than in a local election clerk’s office, adding that only the voter can be the one to return the absentee ballot. A lower federal court later altered the law to allow people with disabilities to receive assistance with turning in their ballots.
A judge also sided with a GOP-backed lawsuit that held election clerks are not allowed to fill in missing witness address information. Voters that want their ballots counted must include a signature and address of a witness.
Additionally, there are two pending lawsuits in the state regarding how much of a witness’s address should be present in order for a clerk to accept the ballot.
In Wausau, City Clerk Kaitlyn Bernarde told a local CBS affiliate that “over 100 ballots” out of 4,000 absentee ballots requested came back with missing information that is needed to make their vote count. Clerks began contacting voters to correct the ballots, though some did not include emails or phone numbers to provide workers with easy ways to contact the voters.
Arizona
Some of the most recent litigation filed in Arizona came this week in a pair of lawsuits attempting to stop people from intimidating voters over their use of drop boxes. The litigation was filed on behalf of a left-of-center group Voto Latino and the Arizona Alliance for Retired Americans, citing concerns over a group of individuals who were “filming and photographing voters as they approached the drop box outside of the Maricopa County’s Mesa Juvenile Court,” accusing some voters of being “ballot mules.”
Meanwhile, a judge is reviewing a new law known as HB 2243 that requires people to provide proof of citizenship in order to register to vote. A judge has blocked enforcement of that policy for this fall, and the case will determine what the rules are for the 2024 election.
“It required county recorders to cancel a voter’s registration if the county recorder had reason to believe the person wasn’t qualified to vote,” Ochoa said.
Michigan
Michigan Secretary of State Jocelyn Benson (D) lost a legal challenge last week brought by the Republican National Committee, resulting in a judge invalidating new instruction manuals for election challengers created by the Bureau of Elections.
Michigan Court of Claims Judge Brock Swartzle ultimately found some of the instructions, such as a ban on the use of electronic devices at absentee counting boards, contradicted the law or failed to go through the proper rule-making procedure with input from the public and state lawmakers.
“Jocelyn Benson not only disregarded Michigan election law in issuing this guidance, she also violated the rights of political parties and poll challengers to fully ensure transparency and promote confidence that Michigan elections are run fairly and lawfully,” RNC Chairwoman Ronna McDaniel said in a statement.
Pennsylvania
The RNC and a coalition of GOP groups have also filed a lawsuit that is still under consideration in Pennsylvania over absentee ballots dating and whether outside parties can be allowed to examine voting machines.
Pennsylvania law requires voters to hand-write a date on the outer envelope when returning mail ballots — however, the question of whether they can be counted without a date has been a contentious issue since the 2020 election.
The new lawsuit arose after it became apparent, due to a number of previous lawsuits that made the state law murky, that some county officials who run the elections in their various localities may throw out ballots without the proper dates, while some counties will consider them valid.
The state Supreme Court said Friday it will likely rule on the issue without oral arguments as the Nov. 8 Election Day inches closer.
North Carolina
The Supreme Court is slated to hear arguments in December over a highly contentious legal challenge brought by North Carolina GOP leaders that could upend state courts’ ability to regulate federal elections.
GOP lawmakers in the Tar Heel State argue its state Supreme Court overstepped its authority when it relied on a vague state constitutional provision to justify rejecting the Republican-led legislators’ congressional election map. Now, constituents preparing to vote in the November midterm elections are bound to congressional districts drawn by outside “special masters” for the present election cycle.
Republican lawmakers in the high-stakes case, Moore v. Harper, are asking the high court to rule that the U.S. Constitution’s elections clause allocates decisions about the “times, places, and manner” of holding federal elections only to state legislatures.
Democratic and other outside critics have argued GOP lawmakers are pushing a vague “independent state legislature” theory that takes away the checks and balances that state courts have over state legislators. However, supporters of the theory say that legislatures should be able to establish rules in federal elections without being held in check by state constitutions through interpretation by state courts.
The Justice Department filed an amicus brief to the high court on Wednesday asking the justices to reject the independent state legislature theory, saying it would lead to “extraordinarily disruptive consequences” if the 6-3 conservative majority embraces the theory.
Solicitor General Elizabeth Prelogar, appealing to historical and traditional fundamentals of the U.S. Constitution, argued to the justices that accepting the theory “would mean that constitutional provisions in nearly every state — many of them dating to the founding — were either wholly invalid or could be applied only to state elections.”
