The lawyers are busy.
And the future of voting is at stake.
With four months until November’s election, a flurry of lawsuits in state and federal courts is seeking to change election rules in Pennsylvania and dozens of other states around the country. They could shape how people cast their ballots and whether those votes are counted.
The latest salvo landed this week when the Trump campaign and Republican National Committee filed a federal lawsuit challenging Pennsylvania’s use of mail ballot drop boxes, its procedures for counting mail ballots, and restrictions on poll watchers. It marked a shift, with the GOP on offense in the state for the first time this election cycle instead of defending against Democratic and progressive groups’ legal challenges.
That and other lawsuits are part of a national fight unfolding, particularly across swing states such as Pennsylvania, where small margins could decide who wins the presidency in November. And the fight comes amid the coronavirus pandemic, which has made voting more complicated than normal.
“We are seeing a surge in litigation,” said Wendy R. Weiser, head of the Democracy Program at the Brennan Center for Justice at New York University. “There’s been an increasing number of lawsuits around election administration and voting rights across the country.”
The lawsuits are about the fundamental right to vote — and how easy or hard it will be to exercise. The rules that guide how voting happens also play a factor in determining who ultimately gets counted on Election Day. Even small differences matter in Pennsylvania, a state Donald Trump won by less than 1% of the vote.
And these are no tiny tweaks being sought.
Pennsylvania Alliance for Retired Americans, in a lawsuit funded by Democratic super PAC Priorities USA, seeks an extension of mail ballot deadlines, prepaid postage for ballots, and allowing third-party collection of ballots, among other things. The Pennsylvania NAACP wants mail ballot applications to be sent to all voters, hand-marked paper ballots at polling places, strict limitations on polling place closures, better notice of polling place changes, and in-person early voting.
The Trump campaign, the RNC, and a group of Republican congressmen from Pennsylvania want mail ballot drop boxes to be banned, ballots without secrecy envelopes to be thrown out, poll watchers, currently limited to their home counties, to be allowed anywhere in the state.
And those are just the cases still alive in the courts. At least two other lawsuits have been thrown out or withdrawn, and there are ongoing attempts by conservative group Judicial Watch to force counties to clean their voter rolls and remove people’s registrations.
That’s a reflection of a number of trends, Weiser said, including a general increase in attention over the last decade to how electoral systems affect voter participation and election outcomes. Lawmakers have introduced an increasing number of election-related bills in Harrisburg and across the country.
In other states, some of the court fights have come about as legislatures try to impose new limitations on voting, especially in the wake of the U.S. Supreme Court’s 2013 Shelby County v. Holder decision. That ruling removed a Voting Rights Act requirement for federal pre-approval of election changes in states with a history of racially discriminatory voter suppression.
Democrats and Republicans have gone to court as part of broader campaigns with partisan implications. Generally, their lawsuits fit within a pattern: Democrats tend to focus on making it easier to vote, while Republicans focus on election security and integrity.
“From the Democratic perspective, it’s our mission to enhance accessibility to the vote for all Pennsylvanians who are eligible, and to make sure that that vote is counted,” said Kay Yu, a Philadelphia-based lawyer who leads voter protection efforts for the Pennsylvania Democrats. “We will use any tool that we can to effectuate that set of goals.”
Top Democratic election lawyer Marc Elias has filed a number of lawsuits in recent months, including the Pennsylvania Alliance for Retired Americans suit, focused on principles he believes vote-by-mail systems must follow to allow maximum voter participation.
Vonne Andring, the Pennsylvania Republican Party’s head of litigation, noted that election-related lawsuits are not new by any means. But she pointed to what she called “a new and very troubling phenomenon” of “flat-out thefts and misuse of constitutional power” in the state Supreme Court’s 2018 ruling throwing out the congressional district map as an unconstitutional partisan gerrymander — and Gov. Tom Wolf’s order extending mail ballot deadlines for six counties in the primary election. (The U.S. Supreme Court twice declined to take up Republican arguments that the 2018 ruling was unconstitutional, as did a lower federal court.)
“When we have a governor [who] rules like a king and a high court that rules like a legislature,” Andring said in a statement, “there is little wonder why the Trump campaign filed a federal lawsuit.”
Both sides regularly accuse the other of trying to change election rules for partisan gain. Democrats say Republicans are suppressing votes, especially from people of color, to win elections, and Republicans accuse Democrats of trying to expand access in unsafe ways that invite fraud to help their cause.
“Democrats are using the coronavirus as an excuse to get wholesale election changes that fit their far-left agenda, but we are fighting back to protect the vote,” RNC spokesperson Michael Joyce said in a statement.
In addition to partisan concerns, the coronavirus is fueling a great deal of this year’s litigation.
Several of the lawsuits take on the electoral system not in general but as it works during the pandemic. For example, mail ballot deadlines that might work in other times may not when county elections offices have to maintain social distancing and when mail delivery is more uncertain than usual.
And while there may be multiple voting options normally, the coronavirus makes in-person voting a health risk that some voters are unwilling to take. As voters’ options change, so do the challenges — and their significance.
“The litigation we’re seeing this year is less of responding to new attacks on voting and restrictions but actually a preexisting set of obstacles that are suddenly salient and unreasonable in the time of the pandemic,” Weiser said.
The surge in mail voting, for example, puts a spotlight on issues such as tight deadlines. Similarly, confusion around polling places and long lines to vote in person underscore the need for changes.
All of these are issues, Weiser and others said, that can be addressed by lawmakers, even in the form of one-time emergency legislation — such as what the Pennsylvania General Assembly passed in March to postpone the state’s primary until June and allow counties to reduce the number of polling places they offer because of staffing issues.
Otherwise, that’s where courts come in.
Pennsylvania lawmakers are on their summer recess, dampening chances of taking up election legislation in the near future. They can be called back to Harrisburg for a specific issue. Otherwise, any legislative changes to voting laws would have to wait until the House and Senate reconvene in September.