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April 02, 2024

Election Litigation

In 2020, The Standing Committee on Election Law put together a resource of cases litigating election procedures in the 2020 election. We are pleased to bring you an updated version of that document for the 2022 election and beyond. While 2020 presented unique challenges relating to the development of new election procedures in response to the Coronavirus pandemic, the current election cycle presents novel legal issues as well.

The Committee is grateful to advisory committee member Frances Floriano Goins and her associates, Lauren Garretson and Ryan Gillespie, who authored this resource. This resource will be updated as new cases emerge.

Disqualification Under Section 3 of the 14th Amendment

Trump v. Anderson, No. 23-719, 601 U.S. ___ (2024)

Complaint Filed: September 2023; Writ of Certiorari Filed January 3, 2024

State: Colorado

Current Status or Final Disposition: Decided March 4, 2024

Summary: In September 2023, Plaintiffs, a group of Colorado voters, filed a petition against former President Trump and the Colorado Secretary of State Jena Griswold in Colorado state court, arguing that because President Trump had engaged in “insurrection or rebellion” against the United States, under Section 3 of the Fourteenth Amendment he was constitutionally ineligible to serve as President again, and thus the Colorado Secretary of State should not place him on the primary ballot. The state district court found that President Trump had “engaged in insurrection” under the meaning of Section 3, but denied the petition on the grounds that the Presidency is not an “office … under the United States” and the President is not an “officer of the United States” under Section 3. The Colorado Supreme Court reversed, holding that the Presidency is an “office … under the United States” and the President an officer, and that Congress need not pass legislation for disqualification to attach.

The United States Supreme Court, in a per curiam opinion, reversed the Colorado Supreme Court, holding that Section 5 of the Fourteenth Amendment, which enables Congress to pass legislation to enforce the Fourteenth Amendment is, on the Amendment’s face, the only mechanism to enforce Section 3. Furthermore, the Court reasoned, the States have no power under the Constitution to enforce Section 3 with respect to federal offices, evidenced by a lack of historical precedent of a State enforcing Section 3 against a federal officer, the Amendment’s empowerment of Congress to remove a Section 3 disability by vote which would be thwarted by a State being allowed to keep candidates off the ballot under Section 3, and a history of legislation being passed by Congress to enforce Section 3. The holding was unanimous, but two concurring opinions filed by Justice Barrett and Justices Sotomayor, Kagan, and Jackson, both faulted the main opinion for going beyond the stated issue of the states’ ability to enforce Section 3 to unnecessarily limit enforcement of Section 3 to action by Congress.

LaBrant v. Benson, Case No. 23-000137-MZ (Mich. Ct. Cl. November 14, 2023)

Complaint Filed: September 29, 2023

State: Michigan

Current Status or Final Disposition: Decided November 14, 2023

Summary: Plaintiffs brought suit against Jocelyn Benson, in her official capacity as Secretary of State of Michigan, asking for declaratory judgment disqualifying former President Donald Trump from holding presidential office under Section 3 of the 14th Amendment to the U.S. Constitution, which disqualifies persons who “have engaged in insurrection or rebellion against [the United States]” from holding State or federal office, as well as a permanent injunction against the Secretary of State from including President Trump on the primary election and general election ballots under the same theory.

The Michigan Court of Claims ruled against the plaintiffs on all counts for three reasons. First, the court held, the Michigan statutes governing the process for placing a candidate on the presidential primary ballot, namely MCL 168.614a and MCL 168.615a, use language that mandates the Secretary of State to list “individuals generally advocated by the national news media to be potential presidential candidates for each party’s nomination” on the ballot, and commits discretion to the political parties, not the Secretary of State. Second, citing a recent Minnesota decision discussing the same issue, Growe v. Simon, ___ N.W.2d ___ (Minn, 2023), the court held that the issue of President Trump potentially being disqualified under Section 3 was not yet ripe, because he has yet to compete in or win the Michigan primary, and has yet to win the general presidential election. Finally, quoting Castro v. New Hampshire Sec’y of State, ___ F.Supp. 3d ___ (D.N.H. 2023), which dealt with a similar injunctive relief claim under Section 3, the court held that the issue of disqualification was a nonjusticiable political question under Baker v. Carr, 369 U.S. 186 (1962), because “the Constitution commits to Congress and the electors the responsibility of determining matters of presidential candidates’ qualifications.” Furthermore, the court held, Section 3 is not self-executing based on the wording of Section 5, and because allowing the judiciary to remove a candidate from the ballot strips Congress of its power under Section 3 to “by a vote of two-thirds of each House, remove such a disability.”

The plaintiffs filed an appeal on November 15 and an emergency bypass application to the Michigan Supreme Court on November 16.

Redistricting

Alpha Phi Alpha Fraternity, et al., v. Brad Raffensperger, No. 1:21-CV-05337; Coakley Pendergrass et al., v. Brad Raffensperger et al., No. 1:21-CV-05339-SCJ; Annie Lois Grant, et al., v. Brad Raffensperger et al., No. 1:22-CV-00122-SCJ, (U.S. Dist. Ct. Northern Dist. of Georgia, Atlanta Division)

Complaint Filed: December 30, 2021; January 11, 2022

State: Georgia

Current Status or Final Disposition: Decided October 26, 2023

Summary: Three sets of plaintiffs brought lawsuits against Brad Raffensperger, in his official capacity as Secretary of State of Georgia, alleging that their voting rights have been violated by the redistricting plan recently adopted by the State of Georgia following the 2020 census. Specifically, the plaintiffs argue that Black voters are prevented from electing candidates of their choice because of how map-makers grouped Black voters together in some places and split them apart in others in an effort to reduce the number of districts where they had the ability to elect their preferred candidate. After the court denied the parties’ motions for summary judgment, the action proceeded to a bench trial on the merits of the plaintiffs’ claims. Although the court did not consolidate the three cases, the court heard all three cases at the same trial.

On October 26, 2023, U.S. District Judge Steve Jones issued a 516-page order, holding that the State of Georgia violated Section 2 of the Voting Rights Act when it enacted its congressional and legislative maps because “Georgia’s electoral system is not equally open to Black voters” in certain areas of the State, particularly in the metro Atlanta and Macon-Bibb regions. The court held that the Black communities in these areas of the State are sufficiently numerous, compact, and politically cohesive, and that the white majority votes as a bloc in these areas to typically defeat the Black communities’ preferred candidate. Because of this, Black voters in Georgia have “suffered significant harm” and “are entitled to vote as soon as possible for their representative under a lawful apportionment plan.” The judge ordered that the General Assembly produce a new map with an additional Black-majority congressional district in west metro Atlanta by December 8, 2023. The redrawn map must also include two additional majority-Black state Senate districts and five additional majority-Black state House districts. Gov. Brian Kemp announced that he was calling for the Georgia General Assembly to convene a special session on November 29 to redraw the maps.

Allen v. Milligan, No. 21-1086 (S. Ct.)

Complaint Filed: November 16, 2021

State: Alabama

Current Status or Final Disposition: Decided June 12, 2023

Summary: Voters and non-profit organizations brought suit in the U.S. District Court for the Northern District of Alabama against the Alabama Secretary of State and the Co-Chairs of the Alabama Permanent Legislative Committee on Reapportionment, alleging that Alabama’s congressional map diluted the voting strength of Black Alabamians in violation of Section 2 of the Voting Rights Act. Section 2 of the Act prohibits any state election law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” The district court entered a preliminary injunction blocking the use of the existing congressional map and ordering the creation of a new map with two majority-Black districts. The state official defendants applied for a stay of the injunction pending an appeal to the U.S. Supreme Court. On February 7, 2022, the U.S. Supreme Court granted the stay of the preliminary injunction. As a result, the original congressional map remained in place for the 2022 elections. On June 8, 2023, the Supreme Court issued a 5-4 decision affirming the district court’s decision to strike down Alabama’s original congressional map. Applying the “results test” of Thornburg v. Gingles, 478 U.S. 30 (1986), the majority opinion held that the congressional map must be stricken because it had a negative effect on Black Alabamian voters, even if the map was not drawn with racist intent.

Litigation over the congressional map continues in the U.S. District Court for the Northern District of Alabama.

Moore v. Harper, 597 U.S. No. 21 1271 (S. Ct.)

Complaint Filed: November 18, 2021

State: North Carolina

Current Status or Final Disposition: Application for Stay Pending Filing and Disposition of a Petition for Writ of Certiorari Denied (March 7, 2022); Petition for Writ of Certiorari Granted (June 30, 2022); Oral Argument held (December 7, 2022); Decided June 27, 2023

Summary: After the North Carolina Supreme Court struck down the North Carolina Legislature’s gerrymandered congressional districting map for violating the North Carolina Constitution, Republican lawmakers brought suit arguing that the “independent state legislature theory” authorizes state legislatures to violate the state constitution when drawing congressional maps and that state courts are powerless to intervene and stop them. The theory relies on a literal interpretation of the U.S. Constitution’s Elections Clause, which says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The theory argues that only state legislatures, not courts, have the authority to administer federal elections in their states. The North Carolina Supreme Court rejected the theory and held that the claims were justiciable in North Carolina courts because it is the duty of the state judiciary to protect the state constitutional rights of citizens. Additionally, the court held that the state legislative districting plans—enacted by Republicans on a party line vote—were unlawful partisan gerrymanders that violated the free elections clause, the equal protection clause, the free speech clause, and the freedom of assembly clause of the North Carolina Constitution. In March 2022, the U.S. Supreme Court rejected the Republican legislators’ emergency appeal to put the congressional map back in place immediately, but in June, the Court granted certiorari (without reinstating the contested congressional districting map) and agreed to hear the case. Oral argument was heard on December 7.

On June 27, 2023, in a 6–3 decision, the U.S. Supreme Court affirmed the ruling of the North Carolina Supreme Court rejecting the independent state legislature theory. The U.S. Supreme Court held that the U.S. Constitution’s Elections Clause does not give state legislatures exclusive authority over federal elections. Chief Justice Roberts authored the majority opinion, writing that the “Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.” The opinion further noted that “[w]hile the Court does not adopt a test by which state court interpretations of state law can be measured in cases implicating the Elections Clause, state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” This caveat may be expected to become a subject of future redistricting litigation.

Teigen v. Wis. Elections Comm’n, No. 2022AP91 (Wis. S. Ct.)

Complaint Filed: June 28, 2021

State: Wisconsin

Current Status or Final Disposition: Motion to Reconsider Denied (September 23, 2022)

Summary: Two Wisconsin voters sued the Wisconsin Elections Commission to challenge the use of drop boxes for absentee voting. The Democratic Senatorial Campaign Committee and several voting rights groups, such as Disability Rights Wisconsin, intervened as defendants. The complaint alleged that the Commission’s decisions around authorizing the use of drop boxes were (1) un-promulgated administrative rules, and (2) in violation of the Wisconsin statutes on voting by absentee ballot. Specifically, the plaintiffs argued that under Wisconsin law, a voter must personally mail or deliver, in person, an absentee ballot to the municipal clerk, and not a ballot drop box operated by the municipal clerk. The trial court granted summary judgment in favor of the voters on January 20, 2022. The defendants appealed all the way to the Wisconsin Supreme Court. The state supreme court issued its opinion on July 8, 2022, holding that the Elections Commission’s memorandums authorizing the ballot drop boxes were invalid under Wisconsin law. The intervenor-defendants filed a motion to reconsider, which the Wisconsin Supreme Court denied on September 23, 2022.

Restrictions on Voting by Mail

Concerned Vets. of Waukesha Cty. v. Wis. Elections Comm’n (Wis. Cir. Ct. Waukesha Cty.)

Complaint Filed: November 4, 2022

State: Wisconsin

Current Status or Final Disposition: Motion for Temporary Restraining Order and Temporary Injunction denied (November 7, 2022); Motion to Intervene granted (November 8, 2022)

Summary: The Concerned Veterans of Waukesha County, two voters, and a Wisconsin Republican representative sued the Wisconsin Elections Commission in an attempt to temporarily halt the counting of absentee ballots submitted by military personnel. The complaint alleged that there was a vulnerability in the Commission’s system for distributing absentee ballots, and that the clerk was not required to have up-to-date and accurate military elector lists in violation of Wisconsin election law. Just prior to filing suit, former Milwaukee Elections Commissioner Deputy Director Kimberly Zapata had been fired for illegally requesting military absentee ballots under fake names. The plaintiffs moved for a temporary restraining order and temporary injunction to sequester and verify military elector absentee ballots before they were counted. The motion was denied on November 7, 2022 without an opinion. On November 8, the Circuit Court for Waukesha County granted the Motion to Intervene by proposed intervenordefendants Union Veterans Council and a member of the military.

Ball v. Chapman, No. 102 MM 2022 (Sup. Ct. Pennsylvania)

Complaint Filed: King’s Bench Petition Filed October 16, 2022

Current Status or Final Disposition: Decided November 1, 2022 (Opinion forthcoming)

State: Pennsylvania

Summary: On October 16, 2022, various Republican groups filed a King’s Bench Petition—a petition seeking immediate relief from Pennsylvania’s highest court—challenging whether counties are permitted to count mail-in ballots that are timely cast and valid but are incorrectly dated or missing a date on the outer return envelope. Republican groups based their challenge on Pennsylvania Election Code 25 P.S. § 3146.6(a) and § 3150.16(a), which contain language that says all mail-in voters “shall sign and date” a portion of their ballot return envelope where they attest they are eligible to vote. On November 1, 2022, with opinions still forthcoming, the Pennsylvania Supreme Court granted in part and denied in part the Petitioners’ request for injunctive and declaratory relief. The court told counties to segregate and preserve any absentee mail-in ballots contained in envelopes with missing or incorrect dates and leave them uncounted in the upcoming election based on 25 P.S. § 3146.6(a) and § 3150.16(a). In the absence of Chief Justice Max Bear who passed away in October, the court split evenly (3-3) on whether failing to count the ballots violates federal law, 52 U.S.C. § 10101(a)(2)(B), which says that a vote cannot be disqualified over an error or omission that is not material to determining whether that person is qualified to vote. 

Voter Intimidation

Ariz. All. for Retired Ams. V. Clean Elections USA, No. 22-16689 (9th Cir.); No. CV 22 01823 PHX MTL (D. Ariz.)

Complaint Filed: October 24, 2022

Current Status or Final Disposition: U.S. District Court for the District of Arizona Granted Temporary Restraining Order (November 1, 2022); Unopposed Motion to Withdraw Previously Filed Emergency Motion Filed in Ninth Circuit (November 2, 2022)

State: Arizona

Summary: Plaintiffs, Arizona Alliance for Retired Americans and Voto Latino, filed an action in the U.S. District Court for the District of Arizona seeking to enjoin Clean Elections USA from using surveillance, photography, video recording, and social media activity to monitor two early voting drop boxes in Maricopa County. Melody Jennings, under the banner Clean Elections USA, was inspired to organize a group to monitor the drop boxes based on filmmaker Dinesh D’Souza’s film 2000 Mules in which he argued a theory of widespread voter fraud involving mail-in ballots and drop boxes. In the week of October 24, three separate Maricopa County voters filed formal complaints about voter intimidation near both early voter drop boxes, and there were reports that armed and masked individuals were observing ballot drop boxes. In their complaint, Plaintiffs alleged that Clean Elections USA was violating Section 11(b) of the Voting Rights Act and the Support of Advocacy Clause of the Ku Klux Klan Act. Plaintiffs’ motion for a temporary restraining order and preliminary injunction was denied by the District Court on October 28, 2022, and they filed an Emergency Motion for Immediate Injunction Pending Appeal on the same day. The case was consolidated with a related case filed by the League of Women Voters of Arizona on October 31, 2022. On November 1, 2022, the Arizona District Court issued a temporary restraining order against armed members of Clean Elections USA, ordering them to stay at least 250 feet away from the Maricopa County early voter drop boxes and barring the group from filming or following anyone within 75 feet of a ballot drop box or entrance to a building that houses one. The order also prohibits members from speaking to or yelling at (unless spoken to or yelled at first) voters who are returning ballots to drop boxes or anyone within 75 feet of a drop box. Jennings, the leader of Clean Elections USA, was also required to post a statement on their social media page stating that any past statements they made saying it is illegal to deposit multiple ballots in a ballot drop box is incomplete, and to clarify that a family member, household member, or caregiver can legally do so. The temporary order will remain in effect until November 15, 2022. As a result of the temporary restraining order being granted against the Defendants, Plaintiffs moved to withdraw their emergency motion in the Ninth Circuit on November 2, 2022. 

Fraud and Vote Dilution

Roberts v. Caskey, No. 22-2366-DDC-ADM (U.S. Dist. Ct. Kan.)

Complaint Filed: Petition for Writ of Mandamus Filed September 15, 2022

State: Kansas

Current Status or Final Disposition: Dismissed (November 10, 2022)

Summary: A group of Kansas voters filed a petition for writ of mandamus against the Kansas director of elections, Kansas Secretary of State Scott Schwab, Attorney General Derek Schmidt, and Governor Laura Kelly to challenge the results of the 2020 election and to request the removal of nearly all voting machines across the state. Plaintiffs alleged, among other things, that the electronic voting machines were not secure, undermined the 2020 election, and violated the Fourteenth Amendment. The petition also alleged that the defendants had illegally certified elections in 2020, 2021, and 2022 by using electronic voting machines that were not certified by a “Voting System Test Laboratory (VSTL) with an accreditation in good standing at the time of system testing” in violation of Kansas law and the Help America Vote Act. The petition requested that the U.S. District Court for the District of Kansas “de-certify” the 2020 presidential election results in Kansas, and “re-run the Kansas 2020 presidential election, in accordance with the law, as soon as possible, by way of a special election, with paper ballots only, on a single election day, with the paper ballots being counted by hand.” Plaintiffs subsequently filed a motion for a temporary restraining order on October 10, 2022 to request the removal of all electronic voting machines and ballot drop boxes for the 2022 midterm elections across Kansas. On October 19, 2022, the district court denied plaintiffs’ motion, finding that plaintiffs were unlikely to succeed on the merits of their case or suffer irreparable harm. The court then dismissed the suit on November 10, 2022, on the grounds that it lacked subject-matter jurisdiction. 

Harris Cty. Republican Party v. Tatum (Tex. Dist. Ct. Harris Cty.)

Complaint Filed: November 14, 2022

State: Texas

Current Status or Final Disposition: Complaint filed (November 14, 2022)

Summary: The Harris County Republican Party and its chair sued Harris County and its election administrator, Clifford Tatum, to challenge allegedly illegal alterations to election procedures during the November 8, 2022 midterm elections. Central to plaintiffs’ complaint is that “tens of thousands of registered voters” were allegedly disenfranchised due to the way Harris County ran the November 8, 2022 election. Specifically, the complaint alleges that Tatum violated the Texas Election Code by dealing with ballot scanner issues in a manner that resulted in “double votes” being cast for those ballots. By way of example, the complaint cites voters being given new ballots after being unable to scan their original ballots due to legibility problems. Additionally, the plaintiffs claim that thousands of voters were turned away from the polls when inadequate paper was supplied to polling locations, and that defendants violated state law by allowing county personnel to pick up election results from the polls on Election Day. Finally, although Harris County polling places were permitted to remain open for an extra hour on Election Day per court order, the plaintiffs allege that this resulted in additional illegal activity, such as not requiring late voting to be provisional.

O’Halloran v. Benson, No. 164955 (Mich. S. Ct.); No. 363503 (Mich. Ct. App.)

Complaint Filed: September 28, 2022

State: Michigan

Current Status or Final Disposition: Michigan Court of Appeals Denied Motion for Stay Pending Appeal (November 3, 2022); Michigan Supreme Court Stayed Opinion Pending Appeal (November 3, 2022)

Summary: This case was consolidated with DeVisser v. Benson, No. 363505 (Mich. Ct. App.). Republican legislative candidates and Republican election challengers sued Michigan Secretary of State Jocelyn Benson and the Michigan Director of the Bureau of Elections, arguing that the 2022 rules pertaining to partisan election challengers violated the Michigan Election Law. Specifically, Plaintiffs took issue with the 2022 requirement that every polling place or absenteeballot counting board have an election inspector designated as the “challenger liaison;” that election challengers communicate only with challenger liaisons; and a rule permitting challengers to be ejected from polling sites for failure to follow instructions. On October 20, the Michigan trial court struck down several of the 2022 rules for election challengers in accordance with Plaintiffs’ request. The defendants appealed to the Michigan Court of Appeals and moved for a stay pending appeal, but did not receive a response by the requested date. On October 28, the defendants filed an emergency application with the Michigan Supreme Court for leave to appeal and request for a stay pending appeal. On November 3, the Michigan Court of Appeals denied the motion for stay, but on the same date, the Michigan Supreme Court granted a stay pending appeal. As a result, the 2022 rules regulating election challengers remained in place for the midterm elections.

State v. Rogers, No. 21-06-08801 (221st Jud. Dist. Ct.)

Indictment Filed: June 24, 2021

State: Texas

Current Status or Final Disposition: Counts Dismissed (October 17, 2022)

Summary: Defendant Hervis Rogers was charged with two counts of illegal voting for casting a ballot in the March 2020 presidential primary in Texas while on parole. Texas Attorney General Paxton ordered Rogers’ arrest in July of 2021. Rogers had previously garnered national attention for waiting seven hours in line to vote in the 2020 presidential primary. The 221st Judicial District Court of Texas dismissed the illegal voting counts against Rogers without issuing an opinion on October 17, 2022. This decision followed the Court of Criminal Appeals of Texas’ September 28, 2022 decision affirming that the state’s attorney general cannot unilaterally prosecute election-related cases without first getting permission from county prosecutors.

Voter Eligibility

Mason v. State, No. 02-18-00138-CR, 2024 Tex. App. LEXIS 2223 (Tex. App. Mar. 28, 2024)

Original trial: March 28, 2018

First appeal: March 19, 2020 (affirmed, Texas 2nd Court of Appeals)

First reversal: May 11, 2022 (reversed and remanded, Texas Court of Criminal Appeals)

Final disposition: On March 28, 2024, the 2nd Court of Appeals reversed Defendant’s conviction, holding that the State’s evidence was not sufficient to prove beyond a reasonable doubt that she had violated Tex. Elec. Code § 64.012(a).

Summary: Defendant Crystal Mason attempted to vote in the 2016 general election. The poll worker and election judge were unable to find Mason’s name on the list of registered voters because she was on supervised release after being convicted of a felony and was therefore ineligible to vote, but they asked her whether she wanted a provisional ballot, and she filled out and cast the provisional ballot. Although her vote was ultimately not counted, Mason was later charged with a violation of Tex. Elec. Code § 64.012(a), which makes it a criminal offense to knowingly or intentionally vote or attempt to vote in an election in which the person knows they are not eligible to vote. Mason appealed her conviction to the 2nd Court of Appeals, which affirmed the decision. The Texas Court of Criminal Appeals reversed and remanded to the 2nd Court of Appeals, holding that the appellate court had misconstrued the statute, since the statute required the State to prove both (1) that Mason knew she was on supervised release after having been convicted of a felony, and (2) that she also actually realized that these circumstances made her ineligible to vote.

On remand, the 2nd Court of Appeals examined the sufficiency of the evidence supporting Mason’s conviction and found it lacking. While the appellate court held that the trial court was entitled to believe the testimony of the election judge, poll worker, and reporter, who testified that Mason had appeared to have read the provisional ballot language affirming that she was not a felon still serving imposed punishment, this was not sufficient for the State to prove that she had “actually realized” that she was voting knowing that she was ineligible to do so. Furthermore, the fact that Mason had provisionally voted in 2004 did not tend to prove that she knew what the voting requirements were in 2016; rather, it tended to prove that she did not understand the importance of the language because she was not punished for attempting to vote in 2004 despite being unregistered and therefore ineligible. Since the evidence was insufficient to prove a violation Tex. Elec. Code § 64.012(a) beyond a reasonable doubt, the appellate court reversed her conviction.

State of Florida v. Tony Patterson, Case No. 22-CF-011036-A (Cir. Ct. of the 13th Jud. Cir., Hillsborough Cty., FL)

Complaint Filed: Warrant Issued and Patterson Arrested on August 19, 2022

State: Florida

Current Status or Final Disposition: Prosecutors dropped charges on November 21, 2022.

Summary: Defendant Tony Patterson was arrested and charged with “election voting by unqualified voter” and “false swearing” during the 2020 election. Patterson was arrested along with 20 others as part of Florida Republican Governor Ron Desantis’ crackdown on purportedly unqualified voters in the 2020 election. Under a state constitutional amendment passed in 2018, felons in Florida who complete their sentences are legally allowed to vote unless they were convicted of murder or a felony sex offense. The 20 people arrested were not allowed to vote for this reason but say they were unaware of the rule, partly because Florida issued them voter registration cards after approving their applications. Prosecutors dropped the charges against Patterson on November 21, 2022 “upon information received from the Hillsborough County Supervisor of Elections, and in light of the Defendant’s sentence of incarceration” in a previous case. 

State of Florida v. Wood, Case No. F22-15009 (Cir. Ct. of the 11th Jud. Cir., Miami-Dade Cty., FL); State of Florida v. Wood, Case No. 3D22-1925 (Fla. 3d DCA)

Complaint Filed: Arrested on August 19, 2022

State: Florida

Current Status or Final Disposition: Motion to Dismiss Granted (October 21, 2022), Notice of Appeal Filed (November 8, 2022)

Summary: Defendant Robert Lee Wood was arrested and charged with “election voting by unqualified voter” and “false swearing” during the 2020 election. Wood was arrested, along with 20 others, as part of Florida Republican Governor Ron Desantis’ purported crackdown on unqualified voters in the 2020 election. Under a state constitutional amendment passed in 2018, felons in Florida who complete their sentences are legally allowed to vote unless they were convicted of murder or a felony sex offense. The 20 people arrested were not allowed to vote for this reason but say they were unaware of the rule. Wood filled out a voter application on September 30, 2020 and the Secretary of State in Tallahassee verified Mr. Wood’s application. The Supervisor of Elections then issued Wood a voter ID card. Wood was arrested on August 19, 2022 and Wood filed a motion to dismiss. The court granted Wood’s motion on October 21, 2022 because the case was brought by the Office of the Statewide Prosecutor, not the MiamiDade State Attorney’s Office. The court held that the Statewide Prosecutor had jurisdiction only when either the crime occurred in two or more judicial districts or the crime related to an organized criminal conspiracy affecting two or more judicial districts. Because neither requirement was met, the court held that the Statewide Prosecutor exceeded his statutory authority. Florida filed a Notice of Appeal on November 8, and the case is currently pending in the Florida 3rd District Court of Appeals.

Bette Eakin, et al. v. Adams Cty Bd of Elections, et al., No. 1:22-CV-00340 (U.S. Dist. Ct. Western District of Pennsylvania, Erie Division)

Complaint Filed: November 7, 2022

State: Pennsylvania

Current Status or Final Disposition: Complaint filed on November 7, 2022.

Summary: The campaign arm of John Fetterman, a United States Senate candidate from Pennsylvania, along with two Democratic campaign committees and two aggrieved Pennsylvania voters, filed a lawsuit in Pennsylvania Federal Court against 67 county boards of elections in Pennsylvania alleging that the Pennsylvania law precluding election officials from counting undated or improperly dated mail-in ballots violates the Civil Rights Act of 1964 and the First and Fourteenth Amendments of the U.S. Constitution. The lawsuit was brought in response to the Pennsylvania Supreme Court’s decision in Ball v. Chapman, No. 102 MM 2022, which ordered election officials not to count absentee mail-in ballots that contained an incorrect or missing date on the return envelope. The complaint alleges that enforcement of the envelope date instruction under Pennsylvania law serves no legitimate purpose because the date instruction is immaterial to determining whether a person is qualified to vote in Pennsylvania. Plaintiffs asked the court to enter declaratory judgment that the enforcement of the date provision violates federal law, as well as a preliminary and permanent injunction preventing counties from rejecting or refusing to count such ballots.

Mason v. State, No. PD-0881-20 (Ct. of Crim. App. of Tex.)

Complaint Filed: Indictment Filed February 3, 2017

State: Texas

Current Status or Final Disposition: Court of Criminal Appeals Remanded in Part to Court of Appeals for the Second District (May 11, 2022); Defendant-Appellant’s Brief on Remand Filed (October 14, 2022)

Summary: Defendant-Appellant Crystal Mason was indicted for voting while on parole for a felony conviction. Mason tried to vote in the 2016 election, but a poll worker informed her that she was not on the list of registered voters. The poll worker then informed Mason that she could cast a provisional ballot, which Mason did. According to Mason, she did not know that her being on probation prevented her from voting, and no one told her while she was in prison or on supervised release that she could not vote. While the provisional ballot was ultimately never counted, Mason was indicted and arrested for illegal voting in 2017. The 432nd District Court of Texas found Mason guilty in a bench trial, and Mason appealed her conviction up to Texas’ highest criminal court, the Court of Criminal Appeals. Mason argued that the Court of Appeals for the Second District of Texas had incorrectly affirmed her conviction in three ways: first, by holding that her lack of awareness about her ineligibility to vote was irrelevant; second, by finding that the state’s Illegal Voting statute criminalized good-faith submissions of provisional ballots by individuals who are actually ineligible to vote; and third, by holding that Mason had voted when her provisional ballot was never counted. The Texas Court of Criminal Appeals remanded Mason’s case to the Second District Court of Appeals for reconsideration of the first argument on May 11, 2022. Mason filed her Brief on Remand on October 14.

Vote Counting

Alexandra Mealer v. Lina Hidalgo, No. 2023-00964 (Tex. Dist. Ct. Harris Cty.)

Complaint Filed: Election Contest filed January 6, 2023

Current Status or Final Disposition: Election Contest filed January 6, 2023

State: Texas

Summary: The Republican candidate for Harris County Judge, Alexandra Mealer, filed an election contest against her Democratic opponent and winner of the contest, Lina Hidalgo, alleging that the contest was tainted by serious irregularities that had a disparate impact on Republican voters. Specifically, Mealer alleged that several dozen polling locations were forced to close early because they ran out of paper ballots and that these constructive poll closures amounted to voter suppression making the true result of the election unknowable. She also alleged that there was such “gross error” that intentional fraud or “incompetence as to shock the conscious” is the only explanation. Mealer asks the court to declare the election results void and order a new election.

Ted Boyd, et al. v. Hobbs, et al., Case No. CV-2022-01468 (Superior Ct. of Ari., Mohave Cty.)

Complaint Filed: December 9, 2022

State: Arizona

Current Status or Final Disposition: Court rejected contest and ruled in favor of Defendants (December 23, 2022); Motion for new trial filed by Defendants (January 3, 2022)

Summary: After a tight Arizona Attorney General race decided by 280 votes, failed Republican candidate, Abraham Hamadeh, two voters, and the Republican National Committee filed a lawsuit against newly elected Arizona Attorney General Kris Mayes, Arizona Secretary of State Katie Hobbs, and the county recorders and boards of supervisors for 15 counties in Arizona. Hamadeh previously filed a nearly identical lawsuit in Maricopa County on November 22, 2022, but it was dismissed for being premature because Arizona had not yet certified the election results. See Hamadeh et al., v. Mayes et al., CV-22-015455. This second suit was filed in Mohave County and Hamadeh alleged that errors and inaccuracies in the management of some polling place operations and in the processing and tabulation of ballots had a material impact on the November 8 election. Specifically, Hamadeh alleged that Defendants improperly disqualified early ballots, deprived individuals whose eligibility was questioned the opportunity to cast a provisional ballot, counted ballots without matching signatures, improperly tabulated votes, and improperly administered county voting rolls. Hamadeh requested “judicial intervention” to ensure that the candidate with the highest number of lawful votes is declared the winner of the Arizona attorney general race. On December 20, 2022, the judge dismissed Hamadeh’s claim concerning matching signatures but allowed the other claims to proceed. The remaining claims were argued at an evidentiary hearing on December 23. At the end of the hearing, the Judge ruled from the bench, rejecting Hamadeh’s remaining claims, and denied his petition to change the results of the election or count any additional votes. On January 3, 2023, Hamadeh requested a new trial alleging that there is “new and compelling evidence that not all legal votes were counted.” The motion remains pending.

Kari Lake and Mark Finchem. v. Hobbs, et al., Case No. 22-CV-00677-JJT (U.S. Dist. Ct., Dist. of Ari.); Kari Lake and Mark Finchem v. Hobbs, et al., Case No. 22- 16413 (9th Cir.)

Complaint Filed: April 22, 2022

State: Arizona

Current Status or Final Disposition: Notice of Appeal to 9th Cir. Ct. of App. (September 14, 2022)

Summary: Republican Candidate for Governor Kari Lake and Arizona State Secretary of State Candidate Mark Finchem filed a lawsuit in the U.S. District Court of Arizona on April 22, 2022 against Secretary of State Katie Hobbs and other election officials seeking a mandatory injunction to prohibit the use of electronic voting machines in the State of Arizona in the 2022 Midterm Election. The complaint claims electronic voting machines are unreliable and untested and argues that using the machines violates the rights of voters and office seekers and undermines public confidence in the validity of election results. Defendants filed a motion to dismiss on June 7 and June 8, and the court held a hearing on the motion to dismiss on July 11, 2022. The court granted the motion to dismiss in its entirety on August 26, and Plaintiffs filed their notice of appeal in the 9th Circuit on September 14. On December 1, 2022, the court, in a lengthy and blistering order, granted the Defendant’s motion for sanctions against Plaintiff’s attorneys because the judge found that Plaintiffs made several false, misleading, and unsupported factual assertions about voting machines and paper ballots in Arizona elections. The case is currently pending appeal in the 9th Circuit.

Kari Lake v. Hobbs et al., Case No. CV2022-095403 (Superior Ct. of Ari., Maricopa Cty.)

Complaint Filed: Complaint and Verified Statement of Election Contest (December 9, 2022)

State: Arizona

Current Status or Final Disposition: Complaint and Verified Statement of Election Contest (December 9, 2022), Verified Amended Petition to Inspect Ballots (December 14, 2022)

Summary: Republican Candidate for Governor Kari Lake filed a lawsuit in Maricopa County, Arizona on December 9, 2022 alleging numerous Election Day improprieties that purportedly impacted the election and disproportionately affected Republican candidates. Specifically, Lake alleges that (1) thousands of illegal votes were cast in the November 2022 election in Maricopa County because, among other things, ballots originally rejected for non-matching signatures were still counted; (2) Secretary of State and Governor-elect Katie Hobbs and Maricopa County Recorder Stephen Richer were involved in a government censorship campaign, and (3) vote tabulation machine errors and equipment failures, which Lake claims were intentional, reduced the number of votes cast by citizens who voted on election day, disproportionately affecting Republicans. The lawsuit seeks a series of orders including setting aside the certified results of the Arizona gubernatorial election and declaring Lake the winner. On December 14, 2022, Lake also filed a Verified Amended Petition to Inspect Ballots because of the alleged widespread breakdown in vote tabulation machines.

Finchem et al. v. Fontes et al., Case No. CV2022-053927 (Superior Ct. of Ari., Maricopa Cty.)

Complaint Filed: Verified Statement of Elections Contest filed (December 9, 2022)

State: Arizona

Current Status or Final Disposition: First Amended Verified Statement of Election Contest filed by Plaintiffs (December 12, 2022), Motion to Dismiss filed by Defendants (December 13, 2022)

Summary: Failed Republican Candidates Mark Finchem and Jeff Zink filed a lawsuit against Arizona Secretary of State Katie Hobbs and Democratic Secretary of State-elect Adrian Fontes alleging sprawling claims of election malfeasance in Maricopa County in the November 2022 election. Particularly, Plaintiffs allege widespread vote tabulation machine failures which led to voters standing in line for sometimes more than an hour to make sure their vote was properly cast. Plaintiffs also argue that Hobbs should have recused herself from her Secretary of State position because her candidacy for Governor created an impression of impropriety. Plaintiffs argue that these circumstances were so extraordinary that the vote should be nullified and redone. Defendants responded by filing a motion to dismiss on December 13, 2022 arguing that there was no problem with the certification of the vote tabulating machines, Secretary of State Hobbs was under no obligation to recuse herself, and Plaintiffs could not show how any alleged conduct impacted the result of the election, especially since the vote margin between the two candidates was almost five percentage points. On December 16, 2022, the court hear oral argument on the motion to dismiss, and Judge Melissa Julian issued an order the same day granting the motion and finding that Finchem and Zink failed to produce sufficient allegations regarding any of their claims. Specifically, the court ruled that Plaintiff’s arguments over technical issues failed because they failed to offer any legal theory under which the court could invalidate voting software certification and second guess the technical judgment of accredited laboratories. The judge also shot down Finchem’s election challenge over Hobbs’ alleged misconduct, holding that any misconduct was predicated only on public rumor, theory, or suspicion, and thus could not survive a motion to dismiss. The judge dismissed the case with prejudice and issued an order confirming the election of Secretary State-Elect Adrian Fontes.

ACLU of Nev. v. Cty of Nye, No. 85636 (Nev. S. Ct.)

Complaint Filed: Emergency petition for writ of mandamus filed (November 10, 2022)

State: Nevada

Current Status or Final Disposition: Nevada Supreme Court denied writ of mandamus (November 14, 2022)

Summary: The ACLU of Nevada filed an emergency petition for a writ of mandamus challenging Nye County’s plan to conduct a hand count of general election ballots after the general election ballots had already been machine tabulated. This action followed a previous emergency writ issued by the Nevada Supreme Court on October 21, 2022 prohibiting Nye County from carrying out part of the hand count plan, including by forbidding it from livestreaming the reading aloud of hand-counted ballots prior to polls closing. Despite the order, the County still moved forward with a hand count and the ACLU of Nevada filed another emergency petition on November 14, 2022. The ACLU argued that the hand count was unauthorized under Nevada law, violated statutory and regulatory laws, and infringed on voter protections under the Nevada Constitution. Specifically, they argued that because Nevada had already started counting votes by machine, the hand count was essentially a recount or audit that did not comply with state law. They also claimed that the hand count was an impermissible revision of their original plan and that the county failed to timely submit the plan and get approval from the Secretary of State as required by Nevada law. The Nevada Supreme Court denied the writ and concluded that the ACLU had not demonstrated that the court’s “extraordinary intervention” was warranted at the time because the ACLU had not pointed to a law that clearly prohibited a parallel hand count or precluded any post-deadline revisions to secondary vote-counting plans approved by the Secretary of State.

Voting Restrictions

Northeast Ohio Coalition for the Homeless, et al. v. Frank LaRose, No. 1:23-cv-26 (U.S. Dist. Ct. Northern Dist. of Ohio, Eastern Division) 

Complaint Filed: January 6, 2023  

Current Status or Final Disposition: Complaint filed 

State: Ohio 

Summary: The Northeast Ohio Coalition for the Homeless, Ohio Federation of Teachers, Ohio Alliance for Retired Americans, and Union Veterans Council filed a complaint against Secretary of State Frank LaRose challenging certain provisions of Ohio House Bill 458. They allege that the election-administration law imposes needless and discriminatory burdens on Ohioans’ fundamental right to vote. The bill was signed into law by Governor Mike DeWine on January 6, 2023 and imposes three new restrictions: (1) a photo-ID requirement that requires a driver’s license, state identification card, passport, or military ID when voting in person; (2) moving up the deadline for voters to fix minor technical mistakes in provisional and rejected mail ballots from seven days to four days after Election day; and (3) changing the deadline for voters to request a mail-in ballot from three days to seven days before Election day and the deadline for voters to return their mail-in ballots from ten days to four days after Election Day. The plaintiffs allege that the “challenged provisions are a solution in search of a problem” and are intended to make it significantly harder for lawful voters—particularly young, elderly, and Black Ohioans as well as military service members and other Ohioans living abroad—to participate in the state’s elections. They claim the restrictions are a violation of the First and Fourteenth Amendment to the U.S. Constitution and ask the court to declare them unconstitutional and enjoin the Defendant from enforcing them.