November 30, 2020

Current Litigation

The Standing Committee on Election Law is pleased to provide you with a list of pending and recent cases litigating election procedures for the 2020 election.  Given the Coronavirus, the prevalence of early and mail-in voting, and the hyper-partisanship of our politics, it’s an unusual year.  And the following list is an unusually long docket.  We hope you will find it helpful as you navigate this complicated election year. In addition, you might also be interested in an article highlighting the numerous unsigned orders of the Supreme Court (New York Times, October 26:  Adam Liptak, “Missing from Supreme Court’s Election Cases:  Reasons for its Rulings.”). 

The Committee is grateful to advisory committee member Frances Goins and her associate, Lauren Garretson, who authored this memo.  Given the press of time, we hope you will be forgiving of any inadvertent errors.

U.S. Supreme Court Decisions

Brnovich v. Democratic National Committee, No. 19-1257 (S. Ct.)
(fraud and vote dilution claims)

Complaint Filed: Petition for Writ of Certiorari Filed April 27, 2020

State: Arizona

Current Status or Final Disposition: Petition for Writ of Certiorari Granted (October 2, 2020)

Summary: This case was consolidated with Arizona Republican Party v. Democratic National Committee, No. 19-1258 (S. Ct.). Individual voters, the DNC, and others sued the Arizona Secretary of State alleging that state laws imposing criminal penalties for assisting with ballot collection and for casting ballots in the incorrect precinct were unconstitutional, even though their ostensible purpose was to prevent voter fraud. The complaints alleged violations of the First and Fourteenth Amendments, and the Voting Rights Act insofar as the laws allegedly denied the right to vote on account of race or color, unduly burdened the right to vote, and denied voters equal protection by treating voters differently across counties. The District Court ruled in the defendants’ favor, but the Ninth Circuit reversed and remanded, holding that Arizona’s policy of wholly discarding out-of-precinct ballots and the criminalization of collecting absentee ballots have a discriminatory impact on African-American, Native American, and Latino voters in violation of the Voting Rights Act. The Supreme Court granted certiorari on October 2.

Common Cause Rhode Island v. Gorbea, No. 20A28 (S. Ct.)
(witness and notary requirements for voting by mail)

Complaint Filed: July 23, 2020

State: Rhode Island

Current Status or Final Disposition: Application for Stay of District Court’s Order Approving Consent Decree Judgment Denied (August 13, 2020)

Summary: Common Cause Rhode Island, the Republican National Committee, and others filed suit against Rhode Island Secretary of State Gorbea and members of the state board of elections. The plaintiffs claimed that a state law requiring that absentee ballots be signed by two witnesses or a notary violated the First and Fourteenth Amendments and the Americans with Disabilities Act. Plaintiffs argued that the notary or witness requirement for absentee ballots unduly burdens the right to vote in the midst of a pandemic without additional accommodations. On July 30, the parties entered into a consent decree suspending the notary or witness requirement for the primary and the November Election. The Republican National Committee moved the First Circuit and then the Supreme Court to stay the consent decree. The Supreme Court denied the stay, reasoning that this case differed from People First of Alabama v. Merrill, because here the state elections officials support a consent decree and did not oppose temporarily suspending the witness requirement. The Court further noted that the RNC lacked a substantial interest in enforcing Rhode Island’s laws in this case, especially because the witness requirement had not been in place in the most recent election.

Democratic National Committee v. Wisconsin State Legislature, Nos. 20A64, 20A65, 20A66 (S. Ct.)
(voter registration deadlines)

Complaint Filed: March 18, 2020

State: Wisconsin

Current Status or Final Disposition: Emergency Application to Vacate Stay Denied (October 26, 2020)

Summary: The DNC and the Democratic Party of Wisconsin sued state elections commissioners ahead of the April 7, 2020 Wisconsin Spring Election, alleging that Wisconsin’s procedures for registering to vote and absentee voting violate due process. The amended complaint for declaratory and injunctive relief alleged that, in light of the COVID-19 pandemic, Wisconsin laws unduly burden voters’ right to vote under the First and Fourteenth Amendments, violating procedural due process and equal protection. The District Court for the Western District of Wisconsin granted the plaintiffs’ motion for a preliminary injunction in part by: (1) extending the voter registration deadline for the Spring Election from March 18 to March 30, 2020; (2) extending the voter registration deadline for the November 3 Election from October 14 to October 21; (3) extending the deadline for accepting absentee ballots in the November 3 Election that are postmarked by the date of the Election to November 9, 2020; (4) lifting a ban on delivery of absentee ballots for domestic civilian voters, thus allowing online access to request replacement absentee ballots for an additional week; and (5) temporarily eliminating residency requirements for poll workers. On October 6, the Wisconsin Supreme Court issued an opinion in response to a certified question from the Seventh Circuit finding that the Wisconsin Legislature could represent the state’s interests on appeal. Following that, the Seventh Circuit, in a per curiam decision, stayed the District Court’s injunction on October 8 as to the extended deadlines for voter registration and receipt of absentee ballots for the November 3 Election. The plaintiffs’ emergency application to vacate the Seventh Circuit’s stay was denied by the Supreme Court on October 26, 2020, reasoning that state legislatures bear primary responsibility for setting election rules.

Middleton v. Andino, No. 20A55 (S. Ct.)
(witness and notary requirements for voting by mail)

Complaint Filed: May 1, 2020

State: South Carolina

Current Status or Final Disposition: Order Granting Stay (October 5, 2020)

Summary: Individual voters, the Democratic National Committee, and the South Carolina Democratic Party sued members of the South Carolina State Election Commission, alleging that certain state laws restricting who can vote absentee and requiring a witness signature on absentee ballot envelopes violated the First, Fourteenth, Twenty-Fourth, and Twenty-Sixth Amendments, as well as the Voting Rights Act. Plaintiffs asserted that these restrictions abridged the right to vote on the basis of age, discriminated against voters on the basis of race or color, imposed a poll tax, unduly burdened the right to vote, and were preempted by the Voting Rights Act. The Fourth Circuit granted a preliminary injunction enjoining only the enforcement of the witness signature requirement for absentee ballots for the November 2020 election. The Supreme Court stayed the injunction on October 5, thereby reinstating the witness-signature requirement. The Supreme Court reasoned that (1) the Constitution entrusts the protection of citizens’ health to the state governments; and (2) federal courts should not alter state election rules close to an election except in extraordinary circumstances.

Moore v. Circosta, Nos. 20A71, 20A72 (S. Ct.)
(fraud and vote dilution claims)

Complaint Filed: September 26, 2020

State: North Carolina

Current Status or Final Disposition:  Emergency Applications for Injunction (October 22, 2020); Applications for Injunctive Relief Denied (October 28, 2012)

Summary: Individual voters, the Speaker of the North Carolina House of Representatives, and the President Pro Tempore of the North Carolina Senate sued the Chair of the North Carolina State Board of Elections in federal court, challenging a consent judgment in North Carolina Alliance of Retired Americans v. State of North Carolina. Plaintiffs argued that the Board infringed on the legislature’s authority by setting new “Times” and “Manners” for elections as part of the consent judgment, and that the new procedures violate the Fourteenth Amendment and the Elections Clause by not only changing the time and manner of holding federal elections, but also by denying equal protections to voters who had already cast their ballots. The new “Times” and “Manners” included an extension of the absentee ballot receipt deadline, a provision allowing voters with notice and opportunity to cure ballot defects even after Election Day, and a provision not to reject ballots dropped off at ballot boxes by third parties. The District Court declined to enjoin the consent judgment, as did the Fourth Circuit Court of Appeals. Plaintiffs appealed to the U.S. Supreme Court, seeking an emergency stay. On October 28, the Supreme Court denied the application in a 5-3 decision, leaving in place the extended deadline for receiving absentee ballots after the election. After the election, the Supreme Court is expected to take up the merits of plaintiffs’ arguments that the Board did not have the authority to agree to extend the deadline for accepting absentee ballots.

Republican Party of Pennsylvania v. Boockvar, Nos. 20A53, 20A54, 20-542 (S. Ct.)
(absentee ballot deadlines)

Complaint Filed: July 10, 2020

State: Pennsylvania

Current Status or Final Disposition: Emergency Applications for Stay Denied (October 19, 2020); Petition for Writ of Certiorari Pending (October 23, 2020); Motion to Recuse Filed and Subsequently Withdrawn (October 27, 2020); Motion for Expedited Consideration of Petition for Writ of Certiorari Denied (October 28, 2020)

Summary: The Pennsylvania Democratic Party sued Pennsylvania Secretary of the Commonwealth Boockvar and others seeking to extend the deadline for accepting absentee and mail-in ballots beyond November 3 if postmarked by November 3. The Pennsylvania Supreme Court exercised its Extraordinary Jurisdiction to interpret Pennsylvania’s Act 77, which allows all electors to vote by mail without proving that they will be absent on Election Day, and extended the absentee ballot receipt deadline by three days to prevent the disenfranchisement of voters. The defendants alleged that this action violates the U.S. Constitution. Several republican state officials and the Republican Party of Pennsylvania, as intervenor-respondents, applied for a partial stay of the Pennsylvania Supreme Court’s judgment. After that stay was denied, the Republican Party of Pennsylvania and the republican state officials filed emergency applications for stay of the Pennsylvania Supreme Court’s order with the U.S. Supreme Court. The U.S. Supreme Court denied those emergency applications for stay in a 4-4 vote. After the appointment of Amy Coney Barrett to the Supreme Court, the Republican Party of Pennsylvania asked the Court to rule on the merits of the case before November 3 by filing a petition for writ of certiorari seeking a decision on the merits of the underlying constitutional issues accompanied by a motion for expedited consideration. The motion for expedited consideration was denied by a 5-3 vote, but the writ remains to be decided after the election.  The Luzerne County Board of Elections in Pennsylvania filed a recusal motion as to Justice Barrett with respect to the writ and the motion for expedited review, which it then withdrew the same day after Justice Barrett recused herself from hearing the motion on the grounds that she would not have had time to fully review the filings.

People First of Ala. v. Merrill, Nos. 19A1063, 20A67 (S. Ct.)
(witness and notary requirements)

Complaint Filed: May 1, 2020

State: Alabama

Current Status or Final Disposition: Defendants’ Emergency Application for Stay Filed with the U.S. Supreme Court October 15, 2020; Stay Granted (October 21, 2020)

Summary: Plaintiffs People First of Alabama, individual voters, and others sued Alabama Secretary of State Merrill, claiming that the State lacked the requisite safety and accessibility procedures for voting during the COVID-19 pandemic. Specifically, the plaintiffs claimed: (1) the requirements that absentee ballots be notarized or witnessed by two adults, the prohibition against curbside voting, and the photo identification requirements as applied interfered with the right to vote; (2) the state had failed to provide reasonable accommodations for those individuals with health conditions that made in-person voting high risk amidst the pandemic; and (3) the witness requirements and the prohibition against curbside voting violated the Voting Rights Act. The Supreme Court granted the application for stay by the defendants, and stayed the Northern District of Alabama’s September 30 order granting a permanent injunction pending appeal to the Eleventh Circuit.

Republican National Committee v. Democratic National Committee, No. 19A1016 (S. Ct.); Nos. 20-1538, 20-1539, 20-1545, 20-1546, 20-2835 (7th Cir.)
(absentee ballot deadlines)

Complaint Filed: Application for Stay Filed April 4, 2020

State: Wisconsin

Current Status or Final Disposition: Application for Stay Granted by U.S. Supreme Court (April 6, 2020); Preliminary Injunction Granted in Part and Denied in Part by U.S. District Court, Western District of Wisconsin (September 21, 2020); Stay of Preliminary Injunction Granted by Seventh Circuit (October 8, 2020)

Summary: The Democratic National Committee and the Democratic Party of Wisconsin sued state elections commissioners over various state laws restricting absentee voting ahead of the state’s April 7, 2020 election that included the presidential primary. Plaintiffs alleged that defendants had violated the First and Fourteenth Amendments by unduly burdening the right to vote, denying procedural due process, and denying equal protection; the District Court agreed and enjoined the restrictions on. The Supreme Court stayed the District Court’s order on April 6, finding that the relief ordered as to the deadline for submitting absentee ballots contradicted the general rule that lower federal courts should not change election rules close to an election. Then, ahead of the November 2020 Election, the District Court entered a preliminary injunction extending the deadline for voter registration to October 21 and extending the absentee ballot receipt deadline to November 9 for all ballots postmarked by November 3. The Seventh Circuit stayed the District Court’s injunction on October 8.

In re: Enforcement of Election Laws and Securing Ballots Cast or Received After 7:00 p.m. on November 3, 2020, No. SPCV20-00982-J3 (Sup. Ct. Chatham)

Complaint Filed: November 4, 2020

State: Georgia

Current Status or Final Disposition: Petition Dismissed (November 5, 2020)

Summary: The Georgia Republican Party and President Trump’s campaign committee filed a Petition to Command Enforcement of Election Laws with the Superior Court of Chatham County. The petitioners alleged that the Chatham County Board of Elections had failed to safely store absentee ballots received after 7:00 p.m. on Election Day, November 3, and that such ballots should have been disqualified because they arrived after the absentee ballot deadline. The court dismissed the petition, finding no evidence that ballots had arrived after the 7:00 p.m. deadline on Election Day, nor any evidence that the Chatham County Board of Elections had not complied with election laws.

Grossman v. Galvin, No. SJC-2020-XX (Mass. S. Ct.)

Complaint Filed: August 17, 2020

State: Massachusetts

Current Status or Final Disposition: Relief Denied (August 26, 2020)

Summary: Plaintiffs sued the Secretary of the Commonwealth alleging a state law requiring that absentee ballots for the primary be received by Election Day, September 1, 2020, violated the Massachusetts and U.S. Constitutions. In a one-line opinion, the Massachusetts Supreme Court held that the September 1 deadline for accepting absentee ballots for the primary was not unconstitutional.

Donald J. Trump for President, Inc. v. Benson, No. 20-000225-MZ (Mich. Ct. Claims)

Complaint Filed: November 4, 2020

State: Michigan

Current Status or Final Disposition: Emergency Motion for Declaratory Relief Denied (November 6, 2020)

Summary: President Trump’s campaign committee and an individual voter trained as an election challenger sued Michigan Secretary of State Benson. The plaintiffs alleged that Benson had violated the Equal Protection Clause of the state constitution, the constitution’s “purity of elections” clause, and a state statute providing for election inspectors to be present at Absent Voter Counting Boards by failing to properly oversee the Counting Boards or providing for video surveillance of absentee ballot drop boxes. The plaintiffs averred in their complaint that the individual election challenger had been excluded from the Counting Board during the absentee ballot review process, but no further details were provided by the plaintiffs. They asked the Michigan Court of Claims to halt all counting of absentee ballots until an “election inspector” from each of the major political parties was present at every Absent Voter Counting Board, and to order Benson to segregate all ballots that were not “being inspected and monitored as required by law.” The court denied the plaintiffs’ motion for declaratory relief, finding that vague allegations that an unnamed local election official had barred an election challenger from a Counting Board could not provide the basis for issuing an injunction against Benson. Additionally, the statute providing for video surveillance only applied to drop boxes installed after October 1, 2020. The court also found that the plaintiffs’ request was moot, since the complaint had not been filed until the afternoon of November 4, when the vote counting in Michigan had largely been completed. 

League of Women Voters of Michigan v. Benson, No. 161671 (Mich. S. Ct.)

Complaint Filed: May 22, 2020

State: Michigan

Current Status or Final Disposition: Motion for Reconsideration Denied (September 11, 2020)

Summary: The League of Women Voters of Michigan and individual voters sued Michigan Secretary of State Benson to challenge the state’s law requiring that election officials reject filled-out absentee ballots that arrived after Election Day. Plaintiffs alleged the requirement was no longer valid after the Michigan Constitution was amended to give every voter the right to submit an absentee ballot at any time, without stating a reason, within the 40 days preceding a primary or general election. Plaintiffs sought a writ of mandamus from the Michigan Court of Appeals to order election officials to accept absentee ballots cast in the August 4 primary that were postmarked by Election Day and received within six days of the primary. On July 14, 2020, the Court of Appeals denied the writ, holding that the law setting the deadline for accepting absentee ballots did not violate the amended Michigan Constitution. Plaintiffs then sought leave to appeal to the Michigan Supreme Court, which was denied, as was their subsequent motion for reconsideration.

NAACP of Minnesota v. Simon, No. A20-1041 (Minn. S. Ct.)

Complaint Filed: June 4, 2020

State: Minnesota

Current Status or Final Disposition: Stipulation to Dismiss Appeals (August 18, 2020)

Summary: Plaintiffs, the NAACP of Minnesota and individual voters, sued the Minnesota Secretary of State over a state law requiring that: (1) absentee ballots be witnessed by Minnesota voter, notary, or other person authorized to administer oaths, and (2) hand-delivered absentee ballots be received by 3:00 p.m. on Election Day, and all mailed absentee ballots by 8:00 pm. The plaintiffs initially alleged that these laws violated both the state and U.S. Constitutions by denying procedural due process to voters. After settlements and partial consent decrees, plaintiffs agreed with defendants to voluntarily dismiss their appeals.

LaRose v. Simon, No. A20-1040 (Minn. S. Ct.)

Complaint Filed: May 13, 2020

State: Minnesota

Current Status or Final Disposition: Stipulation to Dismiss Appeals (August 18, 2020)

Summary: Plaintiffs sued the Minnesota Secretary of State, challenging two state laws as unconstitutional under both the Minnesota and U.S. Constitutions: (1) that absentee ballots must be witnessed by a registered Minnesota voter, notary, or other person authorized to administer oaths, and (2) and that hand-delivered absentee ballots must be received by 3:00 p.m. on Election Day, and all mailed absentee ballots by 8:00 p.m. The plaintiffs requested a declaratory judgment that the two laws were invalid, and an injunction preventing the Secretary of State from enforcing the laws. The parties ultimately stipulated to dismiss the appeals after two settlements and partial consent decrees satisfied plaintiffs’ demands for both the primary and general elections.

Absentee Ballot Deadlines

Driscoll v. Stapleton, No. OP20-0293, DA20-0295 (Mont. S. Ct.)

Complaint Filed: March 13, 2020

State: Montana

Current Status or Final Disposition: Preliminary Injunction Affirmed in Part and Reversed in Part (September 29, 2020)

Summary: Plaintiffs sued Montana Secretary of State, challenging the deadline requirement of 8 p.m. on Election Day for the receipt of absentee ballots, claiming that this requirement imposed an undue burden on the right to vote and denied voters due process under the Montana Constitution. The Secretary of State petitioned the Montana Supreme Court for a stay of a Montana ccourt’s injunction of the deadline requirement, which the Montana Supreme Court granted. The Montana Supreme Court ultimately vacated thcounty court’s injunction extending the deadline and reinstated the original deadline, finding that the preliminary injunction would only cause more confusion for voters and, further, that it did not violate the state constitution.

Ohio Dep’t of Health v. LaRose, No. 2020-0388 (Ohio S. Ct.)

Complaint Filed: March 17, 2020

State: Ohio

Current Status or Final Disposition: Case Dismissed (March 31, 2020)

Summary: The day before Ohio’s March primary, the Ohio Department of Health ordered that polling places be closed, and the Secretary of State LaRose issued a directive to extend the deadline for absentee voting through June 1, with in-person voting originally postponed to June 2. The Ohio Democratic Party and the Libertarian Party sued, challenging the Secretary of State’s power to set a new election date and seeking an order directing the Boards of Elections to make various arrangements for prepaid postage of absentee ballots, additional assistance for absentee and disabled voters, and further extend the time for voting. The General Assembly then passed an act voiding the Secretary of State’s directive, and the court dismissed the Ohio Democratic Party’s case at its request. The Ohio Supreme Court then dismissed the Libertarian Party’s remaining claims, finding that the case was moot after the Secretary’s directive was rescinded.

Barnette v. Lawrence, No. 2:20-cv-05477 (E.D. Pa.)

Complaint Filed: November 3, 2020

State: Pennsylvania

Current Status or Final Disposition: Motion for Temporary Restraining Order Denied, Motions to Intervene of Democratic National Committee and Pennsylvania Democratic Party Granted (November 6, 2020)

Summary: Barnette, a candidate for Pennsylvania Congress, and others sued the Chair of Montgomery County Board of Elections Lawrence and other elections officials, alleging that the Board of Elections was violating the Equal Protection Clause of the Fourteenth Amendment by pre-canvassing absentee ballots prior to 7:00 a.m. on Election Day. The plaintiffs sought a temporary restraining order from the U.S. District Court for the Eastern District of Pennsylvania to enjoin the defendants from pre-canvassing ballots before Election Day and from contacting any voters to notify them of defective ballots. The plaintiffs then withdrew their motion for a temporary restraining order given that a related case was pending a hearing in Pennsylvania state court on November 6. The district court consequently denied the motion for a temporary restraining order. 

Republican Party of Pennsylvania v. Boockvar, Nos. 20A53, 20A54, 20-542 (S. Ct.) (absentee ballot deadlines)

Complaint Filed: July 10, 2020

State: Pennsylvania

Current Status or Final Disposition: Emergency Applications for Stay Denied (October 19, 2020); Petition for Writ of Certiorari Pending (October 23, 2020); Motion to Recuse Filed and Subsequently Withdrawn (October 27, 2020); Motion for Expedited Consideration of Petition for Writ of Certiorari Denied (October 28, 2020); Order Regarding County Boards of Election (November 6, 2020)

Summary: The Pennsylvania Democratic Party sued Pennsylvania Secretary of the Commonwealth Boockvar and others seeking to extend the deadline for accepting absentee and mail-in ballots beyond November 3 if postmarked by November 3. The Pennsylvania Supreme Court exercised its Extraordinary Jurisdiction to interpret Pennsylvania’s Act 77, which allows all electors to vote by mail without proving that they will be absent on Election Day, and extended the absentee ballot receipt deadline by three days to prevent the disenfranchisement of voters. The defendants alleged that this action violates the U.S. Constitution. Several republican state officials and the Republican Party of Pennsylvania, as intervenor-respondents, applied for a partial stay of the Pennsylvania Supreme Court’s judgment. After that stay was denied, the Republican Party of Pennsylvania and the republican state officials filed emergency applications for stay of the Pennsylvania Supreme Court’s order with the U.S. Supreme Court. The U.S. Supreme Court denied those emergency applications for stay in a 4-4 vote. After the appointment of Amy Coney Barrett to the Supreme Court, the Republican Party of Pennsylvania asked the Court to rule on the merits of the case before November 3 by filing a petition for writ of certiorari seeking a decision on the merits of the underlying constitutional issues accompanied by a motion for expedited consideration. The motion for expedited consideration was denied by a 5-3 vote, but the writ remains to be decided after the election.  The Luzerne County Board of Elections in Pennsylvania filed a recusal motion as to Justice Barrett with respect to the writ and the motion for expedited review, which it then withdrew the same day after Justice Barrett recused herself from hearing the motion on the grounds that she would not have had time to fully review the filings. Following the November 3 Election, Justice Alito issued an order to the county boards of election to segregate all ballots received by mail after 8:00 p.m. on Election Day, and to count those ballots separately. 

Accommodations for Disabled Voters

Indiana Vote by Mail, Inc. v. Okeson, No. 20-02605 (7th Cir.)

Complaint Filed: April 29, 2020

State: Indiana

Current Status or Final Disposition: Seventh Circuit Affirmed District Court’s Denial of Injunction (October 6, 2020)

Summary: Plaintiffs sought a preliminary injunction to enjoin the enforcement of a state law stating that voters may only vote by mail under a list of enumerated excuses. The plaintiffs argued that any voter, not just the disabled, military, or seniors, should be permitted to vote by mail in the November 2020 election in light of the COVID-19 pandemic. The District Court denied the injunction, and the Seventh Circuit affirmed, finding that the state’s voting laws did not interfere with plaintiffs’ right to vote and did not violate the U.S. Constitution.

Drenth v. Boockvar, No. 1:20-cv-00829 (M.D. Penn.)

Complaint Filed: May 21, 2020

State: Pennsylvania

Current Status or Final Disposition: Defendants’ Motion for Summary Judgment Granted (August 18, 2020)

Summary: The vice president of the National Federation of the Blind of Pennsylvania and the organization itself sued Secretary of the Commonwealth Boockvar, challenging the state’s refusal to give disabled voters the option to receive their mail-in ballots online, as allowed for members of the military. Plaintiffs alleged that the refusal to grant these accommodations to disabled voters violates the Americans with Disabilities Act. The U.S. District Court for the Middle District of Pennsylvania granted the defendants’ motion for summary judgment after the parties reached an agreement to implement a remote ballot marking system for the November 2020 Election.

Ballot Drop Boxes

A. Philip Randolph Inst. of Ohio v. LaRose, Nos. 20-4063, 20-4068 (6th Cir.)

Complaint Filed: August 26, 2020

State: Ohio

Current Status or Final Disposition: Stay Pending Appeal Granted (October 9, 2020); Case Nos. 20-4063 and 20-4068 Consolidated (October 15, 2020)

Summary: Plaintiffs, the A. Philip Randolph Institute of Ohio, the League of Women Voters of Ohio, the Ohio State Conference of the NAACP, and individual voters, challenged Ohio Secretary of State LaRose’s directive limiting each county in the state to one drop box for absentee applications and ballots for the 2020 general election, alleging the directive violates the right to vote under the First and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth Amendment. The District Court for the Northern District of Ohio enjoined the Secretary from enforcing the one-drop box limit, ruling that state law permits county election officials to install additional drop boxes in each county and to allow staff to collect absentee ballots off-site. The Sixth Circuit stayed the District Court’s ruling pending appeal, citing Supreme Court and Sixth Circuit Precedent to support its conclusion that the stay was in the public interest and that federal courts should generally not alter state election rules during an election.

Texas League of United Latin American Citizens v. Abbott, No. 20-50867 (5th Cir.)

Complaint Filed: October 1, 2020

State: Texas

Current Status or Final Disposition: Stay Pending Appeal Granted (October 12, 2020)

Summary: Plaintiffs, the Texas League of United Latin American Citizens, the League of Women Voters of Texas, and others sued Texas Governor Abbott, challenging the validity of the governor’s order limiting absentee ballot drop box locations to one per county under the First and Fourteenth Amendments and the Voting Rights Act. Plaintiffs argued that the governor’s order unduly burdens the right to vote and deprives voters of equal protection since each county, regardless of population size, is limited to a single drop box. The District Court for the Western District of Texas entered an injunction barring election officials from enforcing the governor’s order to limit each county to one absentee ballot drop box. On appeal, the Fifth Circuit held that the District Court had misapplied the Anderson-Burdick balancing test for voting-rights claims, and concluded that the drop box limit did not impose any burden on Texans’ right to vote. Additionally, the Fifth Circuit noted that voting rights had been expanded under the COVID-19 pandemic by (1) extending the timeframe for early voting by six days, and (2) permitting absentee ballots to be delivered up to forty extra days prior to Election Day.

Hotze v. Hollins, No. 20-0863 (Tex. S. Ct.); No. 4:20-cv-3709 (S.D. Tex.)

Complaint Filed: October 28, 2020

State: Texas

Current Status or Final Disposition: Writ of Mandamus Denied by Texas Supreme Court (November 1, 2020); Complaint for Injunctive Relief Dismissed by U.S. District Court for the Southern District of Texas (November 2, 2020)

Summary: The Republican Party of Texas and Republican activists sued Harris County Clerk Hollins and others over “drive-through” voting in Harris County, Texas. Harris County is home to the city of Houston and is Texas’ most populous county. The plaintiffs challenged the legality of approximately 127,000 votes cast at drive-through voting sites in the county during the early voting period. The plaintiffs claimed that drive-through voting was an illegal expansion of curbside voting under the “Elections Clause” of the U.S. Constitution, because only curbside voting, not drive-through voting, is allegedly allowed under Texas law. The defendants countered that drive-through polling places are not governed by the curbside voting statutes and that the plaintiffs, who were not the state legislature, lacked standing to bring suit under the Elections Clause. The plaintiffs sought emergency injunctive relief via a writ of mandamus filed in the Texas Supreme Court, which the Court denied. The plaintiffs also simultaneously filed a complaint seeking emergency and permanent injunctive relief in the United States District Court for the Southern District of Texas on the additional basis that Harris County’s drive-through voting process violated the 14th Amendment to the federal constitution.  Following an emergency hearing on the morning of November 2, the District Court denied plaintiffs’ motion the same day on the basis that the plaintiffs lacked standing, and also noting that the suit was untimely since drive-through voting had been in place in Harris County for the Texas primary in the summer of 2020.

Restrictions on Voting by Mail

Memphis A. Phillip Randolph Institute v. Hargett, No. 20-06046 (6th Cir.)

Complaint Filed: May 1, 2020

State: Tennessee

Current Status or Final Disposition: District Court’s Order Affirmed (October 15, 2020)

Summary: The Memphis A. Philip Randolph Institute and others sued Tennessee Secretary of State Hagett and others, challenging state laws that prevent voters from voting absentee unless they meet certain limited criteria, which do not include concerns about COVID-19. On appeal, the Sixth Circuit, in a divided opinion, held that the plaintiffs did not have standing to bring their claims.

Texas Democratic Party v. Abbott, Nos. 19A1055, 19-1389 (S. Ct.), No. 20-50407 (5th Cir.)

Complaint Filed: April 7, 2020; Amended Complaint Filed April 29, 2020

State: Texas

Current Status or Final Disposition: U.S. Supreme Court Denied Motion to Expedite Consideration (July 2, 2020); Fifth Circuit Remanded to District Court (September 10, 2020)

Summary: Plaintiffs the Texas Democratic Party, Chair of the Texas Democratic Party, and individual voters filed suit against Texas Governor Abbott, alleging that a Texas statute permitting only individuals aged 65 years or older to vote by mail without excuse constituted age discrimination in violation of the Twenty-Sixth Amendment. The plaintiffs initially asked the District Court for the Western District of Texas for a preliminary injunction to (1) declare that the Texas Election Code’s definition of “disability” as it relates to mail-in voting encompasses all registered voters during the ongoing COVID-19 pandemic, and (2) order that all mail-in ballots, regardless of reason for voting by mail, be tabulated in the final election results. The District Court granted the plaintiffs’ preliminary injunction, finding that no rational basis existed for differentiating voters without a disability aged 65 and older and voters younger than 65. The Supreme Court denied a motion to expedite consideration of the petition for a writ of certiorari. On appeal from the District Court, the Fifth Circuit vacated and remanded the District Court’s grant of the preliminary injunction, holding that the Texas statute survived the constitutional challenge under the Twenty-Sixth Amendment’s prohibition against denying the right to vote based on age.

Felon Voting Rights

Jones v. DeSantis, No. 19A1071 (S. Ct.); No. 20-12003-AA (11th Cir.)

Complaint Filed: June 28, 2019

State: Florida

Current Status or Disposition: Supreme Court Denied Application to Vacate Stay (July 16, 2020); Eleventh Circuit Granted in Part Motion to Stay (July 29, 2020); Eleventh Circuit Reversed District Court’s Decision and Vacated Injunction (September 11, 2020)

Summary: Individual voters sued Florida Governor DeSantis and state elections officials to challenge Florida’s requirements that felons must pay all fees, fines, and other restitution ordered by a court in order to complete their sentences and restore their right to vote. Plaintiffs argued that the requirements violate the Equal Protection Clause of the Fourteenth Amendment, the Twenty-Fourth Amendment, the Voting Rights Act, and the Florida Constitution. Following a bench trial in the District Court for the Northern District of Florida, the plaintiffs won declaratory and injunctive relief. On appeal, the Eleventh Circuit ruled for the defendants by staying the preliminary injunction in part. The plaintiffs’ application to vacate the Eleventh Circuit’s stay was denied by the Supreme Court. Finally, the Eleventh Circuit reversed the District Court and vacated the challenged portions of its injunction, determining that the Due Process Clause did not impose an obligation on Florida to provide felons with the information necessary to determine whether they had paid all court-ordered fees and completed their sentences.

Fraud and Vote Dilution

Arizona Republican Party v. Fontes, No. CV2020-014553 (Maricopa Cty. Sup. Ct.)

Complaint Filed: November 12, 2020

State: Arizona

Current Status or Final Disposition: Motion to Dismiss Granted and Application for Preliminary Injunction Denied (November 19, 2020)

Summary: Plaintiff Arizona Republican Party filed suit against Maricopa County Recorder Fontes and the Maricopa County Board of Supervisors. The plaintiff sought mandamus relief to compel the defendants to perform the hand count sampling of ballots from precincts, rather than vote centers, as allegedly required under Arizona law, and an injunction to prevent the defendants from certifying the election results and issuing the official canvass. After hearing oral arguments, the Maricopa County Superior Court granted the defendants’ motions to dismiss, and denied the plaintiff’s application for preliminary injunction.

Constantino v. City of Detroit, Nos. 20-014780-AW (Wayne Cty. Cir. Ct.), 355443 (Mich. Ct. App.)

Complaint Filed: November 9, 2020

State: Michigan

Current Status or Final Disposition: Plaintiffs’ Petition for Injunctive Relief and Plaintiffs’ Motion for Protective Order Denied by Wayne County Circuit Court (November 13, 2020); Leave to Appeal Denied by Michigan Court of Appeals (November 16, 2020); Application for Leave to Appeal Filed with Michigan Supreme Court (November 17, 2020)

Summary: Individual voters and poll challengers sued the City of Detroit, the Detroit Election Commission, and other state elections officials, alleging voter fraud throughout Wayne County as a result of violations of Michigan law. The plaintiffs made various claims under both the Michigan Constitution and Michigan statutory law, including statutory election law violations and equal protection violations. The plaintiffs requested that the Wayne County Circuit Court require the defendants to conduct an independent, non-partisan audit of the election results in Detroit. The Wayne County Circuit Court denied the plaintiffs’ requests for relief, holding that “[i]t would be an unprecedented exercise of judicial activism for this Court to stop the certification process of the Wayne County Board of Canvassers,” and noting that the affidavits submitted largely did not even concern activity at the Detroit Election Headquarters. Plaintiffs filed a motion for immediate consideration, a motion for peremptory reversal, and for leave to appeal with the Michigan Court of Appeals. The Court of Appeals granted the motion for consideration but summarily denied the remaining motions “for failure to persuade the Court of the existence of manifest error requiring reversal and warranting peremptory relief without argument or formal submission.” The plaintiffs then filed an application for leave to appeal and a motion for immediate consideration with the Michigan Supreme Court, which are currently pending.

Stoddard v. City Election Commission of Detroit, No. 20-014604-CZ (3rd Judicial Cir. Ct. Mich.)

Complaint Filed: November 4, 2020

State: Michigan

Current Status or Final Disposition: Motion for Injunctive Relief Denied (November 6, 2020)

Summary: Individual voter Stoddard and the Election Integrity Fund filed suit against the City Election Commission of the City of Detroit, Chairperson of the City Election Commission Winfrey, and the Wayne County Board of Canvassers. The plaintiffs requested a preliminary injunction to: (1) require the defendants to retain all original and duplicate ballots and poll books; and (2) enjoin certification of the county election results until party inspectors could compare the duplicate ballots with the originals. The plaintiffs claimed that an injunction was necessary because party inspectors were not present at each table inside the absentee vote counting board location. The Third Judicial Circuit Court for Wayne County disagreed with the plaintiffs, finding that the plain language of the relevant state statute only required that each major party have a representative present at the site of the absentee vote counting. The court also noted that the plaintiffs had failed to identify concrete occurrences of the alleged violations of state election law. 

Kraus v. Cegavske, No. 82018 (Nev. S. Ct.)

Complaint Filed: October 23, 2020

State: Nevada

Current Status or Final Disposition: Motion for Stay and to Expedite Appeal Granted in Part and Denied in Part (November 3, 2020)

Summary: An individual voter, President Trump’s campaign committee, and the Nevada Republican Party sued Nevada Secretary of State Cegavske and state elections officials. The plaintiffs sought an injunction against the Registrar of Voters for Clark County to prevent the registrar from using artificial intelligence to authenticate ballots, which the plaintiffs claimed deprived them of the right to observe the ballot-counting process. The Nevada Supreme Court agreed to expedite the appeal given the time-sensitive nature of the election. But the Court ultimately agreed with the district court that the plaintiffs had failed to present sufficient evidence that enjoining the use of artificial intelligence to process ballots was necessary to ensure that the defendants complied with election laws. 

Election Integrity Project of Nevada v. Nevada, Nos. A-20-820510-C (Clark Cty. Dist. Ct.), 81847 (Nev. S. Ct.)

Complaint Filed: September 1, 2020

State: Nevada

Current Status or Final Disposition: Petition for Writ of Mandamus Denied by Nevada Supreme Court (October 7, 2020); Application for Emergency Permanent Injunction Denied by Clark County District Court (November 20, 2020)

Summary: Plaintiffs the Election Integrity Project of Nevada and Republican Senate candidate Sharron Angle filed a complaint for preliminary and permanent injunctions and declaratory relief against the state of Nevada on relation of Nevada Secretary of State Cegavske. The plaintiffs asked the Clark County District Court to enjoin the Secretary from certifying Nevada’s election results due to alleged widespread voter fraud enabled by purported unconstitutionally enacted mail-in ballot legislation. The legislation had been enacted to permit statewide voting by mail and the mailing of ballots to all active, registered voters in light of the COVID-19 pandemic. The plaintiffs claimed that the mail-in ballot legislation violated Nevada law by containing unfunded mandates, and that it violated equal protection under the Nevada Constitution. The District Court denied the motion for a preliminary injunction on September 29, 2020, holding that the manner of allocating funds between local and state units of government was a non-justiciable political question and an exclusive function of the legislative branch. The plaintiffs then filed a petition for a writ of mandamus with the Nevada Supreme Court, which was denied on October 7, 2020. The Nevada Supreme Court held that the district court below had properly decided that the plaintiffs had not made the requisite prima facie showing that they were entitled to a preliminary injunction to prevent the Nevada Secretary of State from implementing the mail-in ballot legislation. Following the November 3, 2020 election, the plaintiffs applied for an emergency permanent injunction, which the district court denied.

Kelly v. Commonwealth, No. 68 MAP 2020 (Penn. S.Ct.)

Complaint Filed: November 21, 2020

State: Pennsylvania

Current Status or Final Disposition: Commonwealth Court’s Preliminary Order Vacated (November 28, 2020)

Summary: Plaintiffs, Republican candidates for the U.S. and Pennsylvania Houses of Representatives and individual voters, filed suit after the November 3 Election against the Commonwealth of Pennsylvania and the Pennsylvania General Assembly, as well as state officials. The plaintiffs sought a declaratory judgment that portions of Pennsylvania’s Act 77, which provided for universal mail-in absentee ballots, were unconstitutional. The plaintiffs also requested an injunction prohibiting Pennsylvania’s certification of the November 3 election results. The Commonwealth Court of Pennsylvania granted a preliminary injunction on November 25, 2020 to enjoin the certification of any remaining election results in the state. Defendant Secretary of the Commonwealth Boockvar applied to the Pennsylvania Supreme Court to exercise extraordinary jurisdiction to hear the case. A few days later, the Pennsylvania Supreme Court vacated the Commonwealth Court’s preliminary injunction in a per curiam decision. In a concurring statement, Justice Wecht noted that the plaintiffs “have failed to allege that even a single mail-in ballot was fraudulently cast or counted,” thereby rendering the extraordinary relief sought entirely inappropriate.  

Donald J. Trump for President, Inc. v. Boockvar, No. 20-3371 (U.S. 3d Cir. App.)

Complaint Filed: November 9, 2020

State: Pennsylvania

Current Status or Final Disposition: Denial of Injunction Pending Appeal and of Leave to Amend Affirmed (November 27, 2020)

Summary: Plaintiffs, Donald J. Trump for President, Inc. and two individual voters sued Secretary of the Commonwealth Boockvar and county boards of elections, alleging that Pennsylvania election officials had enabled voter fraud. Specifically, plaintiffs took issue with the state’s mail-in ballot procedures, and claimed that the regulations for observing and monitoring the counting of ballots in Pennsylvania had been invalidly enacted, presenting opportunities for widespread voter fraud, and thus denied voters due process under the Fourteenth Amendment to the U.S. Constitution. The U.S. District Court for the Middle District of Pennsylvania dismissed the suit in its entirety, with prejudice, for lack of evidence supporting the allegations of voter fraud, and denied the plaintiffs leave to amend their complaint. The court concluded in its opinion accompanying the order granting defendants’ motions to dismiss by saying that it “has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.” The court went on to add: “At bottom, Plaintiffs have failed to meet their burden to state a claim upon which relief may be granted.” The president’s reelection campaign appealed to the Third Circuit Court of Appeals, arguing that the District Court had abused its discretion in not permitting the campaign to amend its complaint a second time. Additionally, the campaign had sought an injunction to undo Pennsylvania’s vote certification. The Third Circuit affirmed the District Court’s decision, denying the campaign the opportunity to amend its complaint another time and denying an injunction pending appeal, noting that “tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too.”

In re: Canvassing Observation, Nos. 425 EAL 2020 (Penn. S.Ct.) and 1094 C.D. 2020 (Penn. Commonwealth Ct.)

Complaint Filed: November 3, 2020

State: Pennsylvania

Current Status or Final Disposition: Order by the Commonwealth Court of Pennsylvania Reversing Denial of Allowing Closer Observation of the Canvassing of Ballots (November 5, 2020); Emergency Petition for Allowance of Appeal Filed in Supreme Court of Pennsylvania (November 5, 2020)

Summary: President Trump’s campaign committee petitioned to allow campaign representatives to more closely observe the canvassing of ballots in Philadelphia County. The Court of Common Pleas of Philadelphia County Election Court below had denied the motion. The committee claimed that the Philadelphia County Board of Elections had configured their ballot-canvassing tables in a manner that made it difficult to observe the process by candidates, candidates’ representatives, and watchers. The Board countered that so long as observers were permitted to be present in the canvassing room, they had an opportunity to observe the canvassing process as required by the state’s Election Code. The Commonwealth Court of Pennsylvania reversed, finding that the intent of the relevant portion of the Election Code was to provide an opportunity for “meaningful observation,” and that this opportunity had been denied to observers in Philadelphia County. On November 5, the defendants filed an emergency petition of appeal in the Supreme Court of Pennsylvania.

In re Hotze, No. 20-0671 (Tex. S. Ct.)

Complaint Filed: August 31, 2020

State: Texas

Current Status or Final Disposition: Petition for Writ of Mandamus Denied (October 7, 2020)

Summary: The Republican Party of Texas and individual voters sued the Texas Secretary of State over the decision to extend early voting, permitting voters to drop off absentee ballots in person to the early voting clerk’s office, and sending out unsolicited vote-by-mail applications. The plaintiffs alleged that these practices violated the Texas Constitution and the Texas Election Code, would lead to voter fraud, and that the governor’s order suspending parts of the Election Code was constitutionally invalid because it violated the separation of powers. Plaintiffs sought to preclude the secretary from enforcing the suspension of these provisions of the Election Code by petitioning the Texas Supreme Court for a writ of mandamus. That court denied the petition without hearing oral argument or issuing an opinion.

Number of Polling Locations

Robinson v. Board of Elections, No. 1:20-cv-01364 (D.D.C.)

Complaint Filed: May 21, 2020

State: District of Columbia

Current Status or Final Disposition: Case Dismissed with Prejudice (June 30, 2020)

Summary: Individual voters filed suit against the D.C. Board of Elections alleging that the closure of the majority of polling places in Ward 8 violated the Voting Rights Act because the policy prevented members of a protected class from having equal opportunities to participate in elections. Ward 8 of D.C. is over 92% African-American. The District Court for D.C. denied the plaintiffs’ motion for a temporary restraining order in a telephonic hearing. The court dismissed after the parties settled the case.

Anderson v. Raffensperger, No. 1:20-cv-03263 (N.D. Ga.)

Complaint Filed: August 6, 2020

State: Georgia

Current Status or Final Disposition: Motions to Dismiss Granted, and Motion for Preliminary Injunction Denied (October 13, 2020)

Summary: Individual voters, the Democratic Party of Georgia, and the Democratic Senatorial Campaign Committee sued Georgia Secretary of State Raffensperger, members of the Georgia State Election Board, and members of various county boards of registration and elections over complaints that the closing of several polling locations, combined with inadequate election equipment and poll-worker training, led to extraordinarily long wait times for voters during the primary election. The plaintiffs alleged that these circumstances deterred Georgians from voting during the primary, and that the long lines, lack of trained poll workers, and technical issues placed an undue burden on their right to vote. Plaintiffs sought a preliminary injunction in advance of the November Election. The District Court for the Northern District of Georgia held that the plaintiffs lacked standing, as they could not show that individual voters would suffer future injuries in the November Election, and that even if the plaintiffs did have standing, the relief they sought was inappropriate and too vague.

Griffin v. Hawaii, No. 1:20-cv-00298 (D. Haw.)

Complaint Filed: July 2, 2020

State: Hawaii

Current Status or Final Disposition: Defendants’ Motion to Dismiss with Leave to Amend Granted (September 28, 2020); Amended Complaint Filed (October 13, 2020)

Summary: A political candidate sued Hawaii pro se over the state’s vote-by-mail program, arguing that it would, among other things, reduce the number of in-person polling sites available in the state, thereby increasing voter fraud and rendering in-person voting options inadequate. The court granted the defendants’ motion to dismiss with leave to amend because the plaintiff had failed to provide a basis for federal jurisdiction and failed to state a claim. A hearing on the matter is currently scheduled for October 28, 2020.

Nemes v. Bensinger, No. 3:20-cv-00407 (W.D. Ky.)

Complaint Filed: June 8, 2020

State: Kentucky

Current Status or Final Disposition: Voluntarily Dismissed (July 17, 2020)

Summary: Republican state representatives and individual voters filed a class action against county elections officials and others, alleging that certain counties’ reductions of in-person voting options for the June 23, 2020 primary (including one county’s decision to have a singular polling site), violated the First and Fourteenth Amendments, and the Voting Rights Act. The plaintiffs claimed that these restrictions denied the right to vote on the basis of race. The District Court for the Western District of Kentucky denied the plaintiffs’ motion for a preliminary injunction because it did not find that the reduction in polling sites violated the U.S. Constitution or the Voting Rights Act. The court held that the plaintiffs could not show that voters of the protected class (mostly African-American) would face a disproportionate burden in voting. The case was voluntarily dismissed when the Kentucky Secretary of State stated that he would not permit single polling sites in the state’s larger counties during the November Election.

Democracy North Carolina v. North Carolina State Board of Elections, No. 20-1728 (4th Cir.); No. 20-cv-457 (M.D.N.C.)

Complaint Filed: May 22, 2020; First Amended Complaint Filed June 5, 2020; Second Amended Complaint Filed June 18, 2020

State: North Carolina

Current Status or Final Disposition: Fourth Circuit Granted Motion to Voluntarily Dismiss (October 6, 2020); District Court Granted in Part and Denied in Part Intervenors’ Motion for Relief (October 14, 2020)

Summary: Democracy North Carolina, the League of Women Voters of North Carolina, and individual voters sued the State Board of Elections over state laws that impose restrictions on in-person early voting availability, mail-in absentee voting, and voter registration. The plaintiffs alleged that North Carolina’s 25-day registration waiting requirement burdens North Carolinians’ right to vote under 42 U.S.C. § 1983, the First and Fourteenth Amendments, and the Americans with Disabilities Act. They also sought a waiver of the state’s requirement that absentee voters notarize or have their ballot signed by two witnesses, and to relax the 25-day deadline for requesting absentee ballots. In particular, the plaintiffs wanted increased health and safety measures at the polls, with additional polling locations in light of the COVID-19 pandemic. On October 6, the Fourth Circuit granted the motion to voluntarily dismiss the case.

Texas Organizing Project v. Callanen, No. 5:20-cv-01189 (W.D. Tex.)

Complaint Filed: October 6, 2020

State: Texas

Current Status or Final Disposition: Plaintiff’s Motion to Remand to State Court Granted (October 7, 2020)

Summary: The Texas Organizing Project and others sued the elections administrator of Bexar County and others, alleging that Bexar County’s decision to close election-day polling sites, failure to post required notices for polling sites online, and a decision to restrict the appointment process for volunteer deputy registrars violated the Texas Election Code. The defendants removed the case to the District Court for the Western District of Texas. The court then granted plaintiffs’ motion to remand to state court, finding that it lacked federal question jurisdiction and holding that even if it had jurisdiction, it should abstain because a case alleging violations of state voting laws is better decided in state court.

Redistricting

Miller v. Thurston, No. 20-2095 (8th Cir.)

Complaint Filed: April 22, 2020

State: Arkansas

Current Status or Final Disposition: Motion to Stay Denied and District Court’s Judgment Reversed July 23, 2020

Summary: Plaintiffs sought to place a constitutional amendment on the Arkansas ballot to amend the state constitution’s redistricting provisions. They alleged that the state’s ballot access requirements were unconstitutional as applied during the COVID-19 pandemic. Plaintiffs sought a preliminary injunction to require the Arkansas Secretary of State to accept petitions signed by 6% (instead of 10%) of the total votes cast in the prior gubernatorial election, to accept electronic signatures for ballot access, to extend the deadline for collecting signatures from July 3 to September 3, and to enjoin the enforcement of a requirement that signatures be gathered in the presence of a canvasser and a notary. The District Court for the Western District of Arkansas granted plaintiffs’ motion in part, enjoining the enforcement of the requirements that the petition be witnessed by a canvasser and sworn before a notary in-person. The Eighth Circuit reversed on the grounds that the District Court was wrong in applying strict scrutiny to the state’s in-person signature witness and notarization requirements.

Signature Requirements for Voting by Mail

League of Women Voters of Ohio v. LaRose, No. 2:20-cv-03843 (S.D. Ohio)

Complaint Filed: July 31, 2020

State: Ohio

Current Status or Final Disposition: Motion for Preliminary Injunction Denied (September 27, 2020)

Summary: Plaintiffs, the League of Women Voters of Ohio, the A. Philip Randolph Institute of Ohio, and individual voters sued Ohio Secretary of State LaRose, alleging that state laws requiring elections officials to compare voter signatures on absentee ballots with their voter registration records, with no statewide standards for doing so, violated the First and Fourteenth Amendments. The plaintiffs sought to enjoin LaRose from enforcing those provisions of the law that require elections officials to engage in signature matching without providing enough time for voters to cure any defects. The U.S. District Court for the Southern District of Ohio denied injunctive relief, finding that plaintiffs were unlikely to succeed in proving that the signature-matching process was unconstitutional.

Lewis v. Hughs, No. 20-50654 (5th Cir.)

Complaint Filed: May 11, 2020

State: Texas

Current Status or Final Disposition: Denial of Motion to Dismiss Affirmed (September 4, 2020); Order Withdrawing Previous Order Affirming Denial of Motion to Dismiss (October 2, 2020)

Summary: Individual Texas voters, Voto Latino, and others sued Texas Secretary of State Hughs to challenge the constitutionality of various state laws in light of the ongoing COVID-19 pandemic. Such provisions included (1) that voters pay for the postage required to return their early voting ballots by mail; and (2) that voters submit two “matching” handwriting samples. The plaintiffs alleged that the signature-matching requirement violated the First and Fourteenth Amendments by unduly burdening the right to vote. Hughs filed a motion to dismiss on the grounds of sovereign immunity, which the Fifth Circuit denied on September 4, 2020. The Fifth Circuit then, without elaboration, withdrew its September 4 Order on October 2, 2020.

Self Advocacy Solutions North Dakota v. Jaeger, No. 3:20-cv-00071 (D.N.D.)

Complaint Filed: May 1, 2020

State: North Dakota

Current Status or Final Disposition: Permanent Injunction Granted (August 28, 2020)

Summary: Self Advocacy Solutions North Dakota and other advocacy groups sued North Dakota Secretary of State Jaeger and the Grand Forks County auditor, challenging a state law that does not provide voters an opportunity to cure mismatched signatures on their ballots. The District Court for the District of North Dakota issued a preliminary injunction on June 3, finding that there was no potential for voter confusion as a result of enjoining the signature-matching process, which occurs after voters cast their ballots. As such, the court reasoned, the admonition that federal courts should refrain from changing election rules close to an election did not apply.

Voter Identification Requirements

Spirit Lake Tribe v. Jaeger, Nos. 1:16-cv-008, 1:18-cv-222 (D.N.D.)

Complaint Filed: October 30, 2018

State: North Dakota

Current Status or Final Disposition: Consent Decree Approved (April 27, 2020)

Summary: The Spirit Lake Nation and Standing Rock Sioux Tribe sued over the state’s voter identification law, which required that the identification card include the voter’s current residential street address to cast a ballot. The Native American groups claimed that this unduly burdened their right to vote, as many lacked street addresses by virtue of living on reservations in North Dakota. The opposing parties entered into a consent agreement, whereby the state permitted Native American voters who do not possess a residential address to locate their residence on a map when applying for an absentee ballot or when voting at the polls, have county officials provide their addresses, and thereby permit their ballots to be counted even if the address mismatches that on their identification cards.

Donald J. Trump for President, Inc. v. Boockvar, No. 602 M.D. 2020 (Penn. Commonwealth Ct.)

Complaint Filed: November 9, 2020

State: Pennsylvania

Current Status or Final Disposition: Defendants’ Motions to Dismiss Granted (November 21, 2020)

Summary: Plaintiffs Donald J. Trump for President, Inc. and two individual voters sued Secretary of the Commonwealth Boockvar and county boards of elections, alleging that Pennsylvania election officials had enabled voter fraud. Specifically, plaintiffs took issue with the state’s mail-in ballot procedures, and claimed that the regulations for observing and monitoring the counting of ballots in Pennsylvania had been invalidly enacted, presenting opportunities for widespread voter fraud, and thus denied voters due process under the Fourteenth Amendment to the U.S. Constitution. The U.S. District Court for the Middle District of Pennsylvania dismissed the suit in its entirety, with prejudice, for lack of evidence supporting the allegations of voter fraud. The court concluded in its opinion accompanying the order granting defendants’ motions to dismiss that it “has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.” The court went on to add: “At bottom, Plaintiffs have failed to meet their burden to state a claim upon which relief may be granted.” President Trump’s legal team has indicated that they plan to appeal the decision to the Third Circuit Court of Appeals. 

The Andrew Goodman Foundation v. Bostelmann, No. 3:19-cv-00955 (W.D. Wis.)

Complaint Filed: November 19, 2019

State: Wisconsin

Current Status or Final Disposition: Stipulation of Dismissal (August 24, 2020)

Summary: The Andrew Goodman Foundation sued various state elections commissioners, challenging the constitutional validity of Wisconsin’s student voter identification restriction under the Twenty-Sixth Amendment. This voter identification law mandates that only certain types of student IDs will be accepted for voting purposes, and only if that individual is currently enrolled in that same school as a student. The plaintiff claimed that the student voter identification restrictions unduly burdened the right to vote on the basis of age. Ultimately, the parties stipulated to dismissal.

Luft v. Evers, No. 2:11-cv-1128 (7th Cir.)

Complaint Filed: December 13, 2011

State: Wisconsin

Current Status or Final Disposition: Seventh Circuit Affirmed in Part, Reversed in Part, Vacated and Remanded in Part the District Court’s Order (June 29, 2020); Cases Consolidated by District Court (August 20, 2020)

Summary: Individual voters filed a class suit against Wisconsin Governor Evers and members of the Wisconsin Government Accountability Board, challenging a state law enacted in 2011 limiting which forms of photo identification could be used to vote. Plaintiffs argued that this law violates the Fourteenth and Twenty-Fourth Amendments, and the Voting Rights Act by denying due process and equal protection to individuals who do not have the requisite photo IDs. On appeal, the Seventh Circuit affirmed the district court’s holding that Wisconsin’s student identification provision was invalid. The Seventh Circuit found that the requirement that student identification cards may only be used to vote if the student also shows proof of current enrollment, differentiating those forms of identification from others, lacked a rational basis for differentiating voters using student identification and voters using other forms.

Voter Intimidation

Davis v. Benson, No. 355265 (Mich. Ct. App.)

Complaint Filed: October 22, 2020

State: Michigan

Current Status or Final Disposition: Court of Claims’ Injunction Affirmed; Appeal Pending to the Michigan Supreme Court (October 29, 2020)

Summary: An individual, Michigan Open Carry, Michigan Gun Owners, and the Michigan Coalition for Responsible Gun Owners sued Michigan Secretary of State Benson and others, seeking a declaratory judgment and a preliminary injunction enjoining the enforcement of her directive banning the open and concealed carry of firearms at or near polling sites. The plaintiffs claimed that the directive conflicted with existing Michigan law and interfered with individuals’ Second Amendment rights. The Michigan Court of Claims granted the plaintiffs’ preliminary injunction in part by enjoining Benson’s directive to the extent it prohibited open and concealed carry in places not already prohibited by law. Defendant appealed, and the Michigan Court of Appeals affirmed the lower court’s injunction, finding that while the defendant raised legitimate concerns about how open carry could lead to voter intimidation, the state already had laws in place for preventing such intimidation. The defendant immediately appealed to the Michigan Supreme Court.