It’s been a couple of weeks since the last edition of the Election Law Case Round-up. With less than a week to go before election day, I thought I’d try to get you caught up on what has been recently decided and what is still pending in election law cases.
We’ll start with a case that’s still working its way through the Courts. In Pennsylvania, the State courts have taken over the role of the legislature and made wholesale changes to election laws. The courts ruled that the election day deadline for mail-in ballots and the strict scrutiny signature requirements were a burden to voters, and any ballot that was postmarked by 3 Nov and received by 6 Nov could be counted.
The democratic governor, Tom Wolf, attempted to make the changes to the voting laws in the keystone state, but failed to get the changes past the Republican led legislature.
About a week ago, the Supreme Court declined to issue a stay, by a 4-4 vote. The plaintiffs in this case have already refiled their petition for emergency relief. Will the Supreme Court issue an emergency stay now that there is a full bench? I don’t know, but seeing as the four conservative Justices all voted to issue a stay for the original petition, I’d say maybe.
Next up is a case out of Texas, where a US district court judge inserted his own judgement into the portion of texas Election Law that requires signature verification on absentee ballots. Judge Orlando L. Garcia, a Clinton appointee, decided his process for identifing, matching and/or rejecting signatures on absentee ballots was better than what the duly elected state legislature came up with. Fortunately, the 5th circuit court of appeals decided he went too far, and that rewriting election law really isn’t within the purview of a US district court judge. They issued an emergency stay, preventing judge Garcia’s order from going into effect.
Tennessee has one of the narrowest definitions of who can vote by absentee ballot in the country. The state has very strict signature matching requirements, and the NAACP and some union groups challenged them in US District Court. The judge there declined to issue a preliminary injunction preventing the state from enforcing those requirements, so the plaintiffs appealed to the 6th circuit. A three judge panel from that appeals court upheld the district judge’s ruling.
In a slightly weird case out of Indiana, a three judge panel of the 7th circuit struck down a district court judge’s ruling about a very narrow section of that states election law. The section in question allowed the extension of voting hours if and only if a very specific set of circumstances occured. The statute also limited who could sue for relief to the county board of elections, and only if the board voted unanimously to do so. Apparently, the case has been extant for more than a year, but the plaintiffs only requested an injunction in the last few weeks.
The last case of the day come from Wisconsin, where the Supreme Court upheld a ruling from the 7th circuit. I covered this case here, but the statements from the Justices in this case are very interesting.
“The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” wrote Justice Neil Gorsuch.
It follows “that a State legislature’s decision either to keep or to make changes to election rules to address COVID–19 ordinarily ‘should not be subject to secondguessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.’” from Justice Kavanaugh’s concurrence. A deadline is not unconstitutional merely because of voters’ “own failure to take timely steps” to ensure their franchise. Voters who, for example, show up to vote at midnight after the polls close on election night do not have a right to demand that the State nonetheless count their votes. Voters who submit their absentee ballots after the State’s deadline similarly do not have a right to demand that the State count their votes.