December 02, 2022

Litigation in the 2022 Election

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. While 2020 presented unique challenges relating to the development of new election procedures in response to the Coronavirus pandemic, the 2022 election is not without its legal challenges.

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.

Redistricting

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)

Summary: After the North Carolina Supreme Court struck down the North Carolina Legislature’s gerrymandered congressional 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 strict 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 and agreed to hear the case. Oral argument is scheduled for December 7 and a ruling is expected before July 2023. 

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

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

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.