COVID-19 and the Most Litigated Presidential Election in Recent U.S. History: How the Lawsuits Break Down
Working in bipartisan pairs, canvassers process mail-in ballots — for what is already the most litigated presidential election in recent U.S. history — at the Anne Arundel County Board of Elections headquarters on October 7, 2020, in Glen Burnie, Maryland. (Photo by Drew Angerer/Getty Images)
The COVID-19 pandemic has contributed to an unprecedented wave of election litigation.
A FRONTLINE analysis of two databases tracking lawsuits found that more than 400 election-related cases have been filed in the U.S. in 2020 by political parties, campaign committees, activists and individual voters. The majority of cases have focused on voting by mail in the midst of COVID-19, voting in person during the pandemic, and the counting of a historic number of mail-in ballots, FRONTLINE found.
More than a third of the cases remain unresolved as early voting proceeds across the country, according to data from the Healthy Elections Project.
That’s a record-breaking amount of litigation, according to Rick Hasen, a professor of election law at the University of California, Irvine. With more than two months left in the year, 2020 has already outpaced the 196 election lawsuits filed before and after the 2000 election, pitting then-President-to-be George W. Bush against former Vice President Al Gore. The 2020 race will “almost certainly” be the most litigated in American history, Hasen wrote in an email to FRONTLINE.
“I think litigation has affected peoples’ behavior already,” Michael McDonald, a professor of political science at the University of Florida who has tracked early voting data since 2008, told FRONTLINE. “They’re concerned whether their vote will be counted.”
Even as litigation has introduced uncertainty around voting procedures, record numbers of people have cast their ballots early, to ensure their votes count. More than 74 million early ballots had been cast by October 28, surpassing the 2016 election’s previous high of 47 million early votes, according to McDonald.
In general, this year’s lawsuits fall into two broad categories: Liberal groups have sought to loosen voting procedures, and conservatives have tried to tighten them. Cases range from mail-in and curbside voting to lack of safety measures at polling places. Other lawsuits tackle early voting, voter registration, photo ID and witness signature requirements, as well as voting rights for those with a felony conviction.
Read more: 2020 Election Could Hinge on Whose Votes Don’t Count
According to Justin Riemer, chief legal counsel for the Republican National Committee, the RNC strategy is “trying to protect existing safeguards in the process to minimize confusion and chaos and to stop last-minute changes, which are simply not good for voters and for administering the election.”
“It’s really frustrating when we’re out there defending the laws that are on the books,” Riemer said. “That does not mean we’re making it harder to vote.” (In the excerpt from Whose Vote Counts, below, FRONTLINE talked to the Democratic and Republican National Committees about 2020 voter legislation.)
Sophia Lakin, deputy director of the American Civil Liberties Union’s Voting Rights Project, sees it differently. She says Clark’s line of thought follows something called the Purcell Principle, which states that courts should be reluctant to change voting laws close to an election. But Lakin told FRONTLINE hewing to that principle can block necessary changes to voting laws.
“It can’t be used as a tool to just prevent voters from being able to vote,” said Lakin, who has brought 25 cases to court this year, up from the ACLU’s typical presidential-election-year caseload of 6 to 8. “Not all changes are equal or equally confusing or equally disenfranchising. It’s being used in a way to be a bright line of rule, even when there was [or] is still time to fix some of these issues.”
Several groups have created databases to track COVID-related election litigation, including the Brennan Center for Justice at New York University Law School and the Healthy Elections Project, a venture between Stanford University and Massachusetts Institute of Technology.
FRONTLINE delved into these databases to determine what types of lawsuits are most prevalent.
1. Voting by Mail During COVID-19
The majority of 2020 election-related lawsuits have sought to remove barriers to voting by mail, aiming to provide alternatives to in-person voting during the pandemic. More than 200 of the Healthy Elections Project’s 418 tracked cases, and 183 of The Brennan Center’s 265, fall into this category.
The ACLU’s Voting Rights Project has pushed states, such as Missouri and Alabama, to provide universal vote-by-mail options. The ACLU has also filed lawsuits that would make fear of contracting COVID-19 an acceptable reason to request an absentee ballot in states such as in Kentucky.
“We also looked at the barriers of being able to vote by mail, such as witness requirements or signature requirements,” said the ACLU’s Lakin. Other examples of vote-by-mail lawsuits include challenges to states that require mail-in ballots to be notarized or accompanied by copies of photo identification.
In a typical general election, 12 states require notary or witness signatures on mail-in ballots, but due to the pandemic, six of these states — Minnesota, North Carolina, Oklahoma, Rhode Island, South Carolina and Virginia — have either loosened or suspended that requirement, according to the Brennan Center.
Elsewhere, litigation surrounding witness signatures is ongoing. On October 14, a federal judge ordered North Carolina to ensure that ballots have one witness signature, revising an earlier court memo loosening signature requirements. A higher court could still issue a decision in this case. (North Carolina originally required two witness signatures but adjusted to requiring just one earlier this year.)
Eight states require voters to submit copies of their legal photo IDs with ballot applications or ballots: Alabama, Arkansas, Kentucky, Maine, North Dakota, New Hampshire, South Dakota and Wisconsin — although pending lawsuits in four of these states and three others (North Carolina, Oklahoma, and Texas) could still mean laws change before polls close.
The remainder of vote-by-mail issues tackle distribution of absentee ballots, ballot applications, pre-paid postage, and drop-box and drop-off locations.
Read more: Here’s Why Concerns About Absentee Ballot Fraud Are Overhyped
On the other side of the issue, conservatives have cited fears of voter fraud in lawsuits against the expansion of mail-in voting. In Pennsylvania, the Trump campaign sued to prohibit the use of ballot drop boxes, accusing the state of having “sacrificed the sanctity of in-person voting at the altar of unmonitored mail-in voting.” But a federal judge rejected the claim, ruling there was little evidence that drop boxes would lead to voter fraud.
“We’re seeing a number of incidences in which there are spurious and unsubstantiated allegations of fraud,” said Myrna Perez director of the Brennan Center’s Voting Rights and Elections Program. “A lot of it is trying to discredit an election before it’s even happened.”
2. In-Person Voting During COVID-19
Beyond the expansion of mail-in voting, election administrators are facing the challenges of making in-person voting safe during a resurgent pandemic that has killed 225,000 Americans to date. At least 33 states will require or strongly recommend that voters wear masks in polling places, ABC News reports, although enforcement during early voting has been limited.
Those safety concerns have also sparked a wave of litigation. The Healthy Elections Project has identified 69 cases that include concerns over in-person voting amid the COVID-19 pandemic, dating back to the primary season.
A group of Kentucky civil rights organizations sued the state in May over a new in-person voter ID requirement. The complaint noted the disproportionate harm the pandemic had caused to Black, elderly and disabled voters, and alleged that forcing those voters to go to a government office to obtain ID would put them at risk of illness or death. The suit was dropped after Kentucky abandoned the new rules in August.
Read more: With Election 2020 Underway, a Key Provision of the Voting Rights Act Languishes
COVID-19 has also sparked legal battles over curbside voting, a practice that allows voters to cast ballots from parking lots or sidewalks outside polling places. In Texas, a collection of advocacy groups sued to force a number of changes to in-person voting, including expanding curbside voting and tightening mask requirements in polling places. The coalition lost when a federal judge ruled their objections a “political question” that could not be challenged in court. In Arizona, a disabled voter has sued to expand curbside voting; that case is still pending. And in Alabama, a lawsuit forced the state to allow curbside voting, although officials have asked the U.S. Supreme Court to reverse that decision.
And when states have instituted COVID-19 precautions in polling places, not everyone has been pleased. A group of Minnesota voters, backed by Republican lawmakers, sued Gov. Tim Walz in August, arguing that his executive order requiring masks in public places conflicted with state law and would violate their right to vote by forcing them to wear masks in polling places. A federal judge rejected their claim in October, and an appeal is pending.
3. Still to Come: Accepting, Correcting and Counting Ballots
And then there are the issues surrounding how and when mail-in ballots will be accepted and counted. More than 70 cases in the Brennan Center database involve ballot deadlines and correcting minor but potentially disqualifying mistakes.
On October 28, the Supreme Court extended the deadlines for receiving absentee ballots to after election day in two key swing states: Pennsylvania and North Carolina. In Pennsylvania, election officials can receive ballots up to three days after election day and up to nine days in North Carolina. Democrats welcomed the decisions, while the Republican party argued against the extensions. In Pennsylvania, however, the case may not be over. Following the decision, Supreme Court Justice Samuel Alito, Clarence Thomas and Neil M. Gorsuch indicated they may return to the decision.
Earlier in October, a federal judge allowed a similar extension in Minnesota to move forward. In Michigan, Indiana and Wisconsin, appeals courts ruled the other way, overturning extensions and requiring that absentee ballots arrive by the time polls close. On Monday, the U.S. Supreme Court rejected a final bid to extend the Wisconsin deadline in a 5-3 decision. (For more on Wisconsin and its implications for the general election, see FRONTLINE’s latest documentary, Whose Vote Counts, streaming now.)
In Arizona and Texas, federal courts have allowed more time to correct minor ballot issues. In Arizona, a district court extended the deadline to correct unsigned ballot envelopes, from 7 p.m. on election night to five business days after election day. In Texas, an appeals court instructed the secretary of state either to notify voters whose ballots were rejected due to mismatched signatures or not to reject ballots for this issue. The secretary of state has appealed.
Moving forward, there’s the potential for a whole other category of lawsuits. “What if an election office goes down the day before the election and is not able to execute their election day plans for people to vote?” asked the University of Florida’s McDonald. “I don’t think we’re out of the woods yet on litigation.”
And then there’s the looming possibility of litigation arising after November 4, pending election results — along the lines of the recount lawsuits in 2016 and 2000. President Donald Trump has claimed he expects the 2020 election to be “rigged,” with the Biden campaign preparing for legal challenges.
Justin Levitt, a Loyola University law professor, sees pre-election litigation as a “positive thing” that can resolve legal conflicts before they cause serious problems, he told FRONTLINE.
“It’s the difference between asking for permission and begging for forgiveness,” Levitt said. “You get the rules ahead of time.”
October 29, 2020: This story was updated to reflect Supreme Court decisions regarding North Carolina and Pennsylvania.