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Legal fights leave question marks over ballot access in presidential battleground states

A ballot drop box in Madison, Wisconsin, that has been put out of commission. Since 2020, drop boxes have become a target for many on the right, who argue that they were insecure and could allow for fraud — though very few examples have been found in Wisconsin or elsewhere. (Credit: Wisconsin Examiner)

Zachary Roth, News From The States
May 14, 2024

In Wisconsin, voters don’t yet know whether the ballot drop boxes that were in use in the state for years will be allowed this fall. 

Georgians are waiting to find out whether much of their state’s sweeping 2021 voting law, which imposed a range of restrictions, will be in place. 

In North Carolina, procedures for same-day voter registration and voter ID are still being fought over. And the rules to be used by election administrators to run Arizona’s vote also are up in the air. 

With less than 120 days until some states mail out general election ballots, important voting regulations in nearly every major 2024 battleground remain the subject of legal battles. That means court decisions yet to come could go a long way toward determining the level of Americans’ ballot access.

They could also help determine the next president. A New York Times/Siena poll released May 13 found President Joe Biden leading or trailing narrowly in the key states of Wisconsin, Michigan and Pennsylvania, which together would likely be enough for him to win reelection, while former President Donald Trump leads more comfortably in Nevada, Arizona, and Georgia. The leading polling averages also show a very tight race. 

Donald Trump and Joe Biden during a presidential debate in 2020. (Photo by Morry Gash-Pool/Getty Images)
Donald Trump and Joe Biden during a presidential debate in 2020. The leading polling averages suggest that the 2024 presidential election, a rematch between Trump and Biden, will be a tight race. (Photo by Morry Gash-Pool/Getty Images)

Many of these high-stakes legal cases stem from lawsuits filed by Republicans or their allies, looking to impose tighter rules on the voting process to guard against fraud, which is extremely rare. Almost all the rest come from claims brought by Democrats or their allies, or by voting advocates, aiming to loosen the rules and expand access.

In a recent statement, Democrats called the GOP lawsuits “meritless,” and “designed only to try to undermine our democracy and voters’ confidence in it.” But federal courts have increasingly given respectful hearings to politically charged claims that many experts have called frivolous — meaning there can be few guarantees about how these cases will fare.

The uncertainty that comes with unresolved litigation could risk voter confusion in the fall, especially if there are late rule changes, some experts warn. But voting advocates say court rulings that favor voters are welcome, even if they come late in the game. 

“I don’t think any voter is going to be confused or unhappy if the change in the rules favors their ballot being counted when it otherwise would have been rejected,” said Jon Sherman, the litigation director at the Fair Elections Center, a voter advocacy group.

The pileup of crucial cases in pivotal states is similar to other recent cycles. That means voting advocates on the ground have some practice at ensuring that voters get the most up-to-date information, said Hannah Fried, the founder and executive director of All Voting Is Local. The organization works with grassroots partners to protect and expand voter access.

“But it does get harder later on in the cycle,” Fried added. “And there’s a lot of litigation.”

Perhaps most striking, it means that, as an election with historically high stakes approaches, just how easy it will be for millions of Americans in pivotal states to cast a ballot and have it counted remains an unanswered question.

Here are some swing states and their biggest legal disputes:

Wisconsin

In the Badger State, which polls suggest could be closer than any other in this year’s presidential race, two key voting issues are still unresolved in the courts. 

On May 13, the state’s Supreme Court began hearing a case in which progressive groups, now joined by the state’s Democratic attorney general, are challenging a 2021 decision that banned the ballot drop boxes that many voters had used for years to return mail ballots. At the time of that ruling, there were 570 drop boxes operating in the state, the Wisconsin Examiner has reported

During and after the 2020 election, drop boxes became a target for many on the right, who argued that they were insecure and could allow for fraud — though very few examples have been found in Wisconsin or elsewhere.

Since 2021, the state Supreme Court’s majority has shifted from conservative to liberal, raising hopes among Democrats that the ban could be overturned. 

A second ongoing case could turn out to be even more consequential, because it affects not just how easy or hard it is to cast a ballot, but whether certain votes will be counted at all. 

Unlike in almost all other states, mail ballots in Wisconsin must be signed by a witness who can verify the voter’s identity, and the witness must provide their full address. In 2016, the state issued guidance that if a witness had left off a part of their address, like the ZIP code or town, local election administrators could fill it in if they could reasonably ascertain it. That allowed those ballots to be counted.

But in 2022, a Republican lawsuit led a state court to block that guidance, meaning those ballots — which could number in the thousands this fall, advocates estimate — are now at risk of being rejected.

lawsuit brought by the League of Women Voters charges that rejecting ballots based on immaterial factors like a missing ZIP code violates federal civil rights law. 

“It makes no sense to reject the ballot when you can locate and identify the witness,” said Sherman, of the Fair Elections Center, which is representing the plaintiffs in the case. “You’re just rejecting it based on a technicality.”

A district court ruled for the LWV, and the case is currently on appeal. 

Georgia 

The Peachtree State’s sweeping 2021 voting law imposed tighter rules on various aspects of the voting process, and made Georgia the poster child for a wave of concern about voter suppression after the 2020 election. Two important lawsuits spurred by the measure, both of which could have big implications for the mail ballot process, remain ongoing.

One, brought by voting and civil rights groups and consolidated from a group of similar suits, challenges several of the law’s planks, many relating to mail ballots. 

Among them: rules limiting where ballot drop boxes can be placed and when they can be made available to voters; restrictions on who can help a voter return a mail ballot; and a requirement that mail ballots be rejected if the voter birthdate on the outer envelope doesn’t match with the voter’s registration record. 

The suit also challenges the law’s assessment of criminal penalties on people who give food and water to voters waiting in line — a provision that has made the jump to popular culture among critics of the GOP’s strict voting polices.

A federal court has temporarily blocked some challenged provisions, and declined to block others. In February, the U.S. Justice Department asked to intervene on the side of the plaintiffs. The litigation is ongoing.

A separate lawsuit filed by civic engagement groups challenges provisions of the law that restrict their ability to help people apply for a mail ballot. The measure fines outside groups $100 for every ballot application they send to a voter who has already requested or received an application, and adds other rules to the process. 

“(I)n some cases (the challenged provisions) are impossible to comply with or would present such prohibitively expensive financial burdens that some groups, like Plaintiffs…may have no choice but to cease their operations in Georgia altogether,” the groups bringing the lawsuit, who helped hundreds of thousands of Georgians to register in 2020 and 2021, allege in the complaint.

The Republican National Committee and other national and state GOP groups have joined Georgia in defending the challenged provisions. A trial took place in federal court last month, and a ruling is awaited.

Arizona

The Grand Canyon State was the closest in the nation in 2020. Now, Republicans and their allies have filed lawsuits against Democratic election officials there, mostly seeking stricter voting policies. 

The Republican National Committee and state GOP are challenging the Election Procedures Manual, a list of rules for running elections released last year, as required by law, by Secretary of State Adrian Fontes. 

Republicans allege that the manual makes it too hard to remove voters from the rolls if they’re found to have said they’re a noncitizen when answering a questionnaire for jury duty; wrongly allows voters who haven’t shown proof of citizenship to vote in the presidential election and to vote by mail; doesn’t require election officials to do enough to find noncitizens on the rolls; and wrongly limits the public’s ability to view a voter’s signature to verify their mail ballot. The litigation is ongoing.

Another lawsuit, this one brought by a conservative legal group founded by the former Trump White House adviser Stephen Miller, challenges election rules adopted by Arizona’s largest county, Maricopa, as well as two other counties. One of its claims is that Maricopa’s placement of voting sites favors Black and Hispanic voters and discriminates against white and Native voters. It also charges that all three counties make it too easy for a voter to “cure” their mail ballot in cases when the signature on the ballot doesn’t match that in voter registration records. 

A state appeals court paused the case on May 1. America First Legal did not respond to a message asking about their plans for responding. 

North Carolina

Two important voting rules in the Tarheel State are still being hashed out in the courts.

A trial began May 6 in a challenge brought by the state NAACP to North Carolina’s voter ID law, which was passed in 2018. The lawsuit claims that the measure, which requires voters to present one of 10 forms of ID, discriminates against Black and Hispanic voters, who are more likely to lack ID. 

An earlier restrictive voting law passed by North Carolina Republicans, that included a strict photo ID requirement, was struck down in 2016 by a federal judge, who ruled that it targeted Black voters with “surgical precision.”

Another lawsuit, this one filed by the progressive group Democracy NC, targets a different voting restriction — a provision of a state law passed last year that makes it easier for election officials to reject votes cast by voters who used same-day voter registration, if mail sent to their address is returned as undeliverable. 

It isn’t yet clear whether the suit will be heard before the election. A federal judge last month declined a Republican request to put it on hold. 

Michigan

The Great Lakes State has flipped back and forth in recent presidential elections and may again be pivotal this year. Several election cases are underway there, which could affect voters.

The RNC and state GOP are suing Democratic Secretary of State Jocelyn Benson over guidance from her office instructing local election officials to give a “presumption of validity” to the signatures that people voting by mail must provide when applying for a mail ballot, and must also write on the ballot return envelope. The guidance violates the state Constitution and state law, Republicans allege.

Secretary of State Jocelyn Benson in 2022. (Photo by Ken Coleman/Michigan Advance)
Secretary of State Jocelyn Benson in 2022. Several election cases are underway in Michigan, which could affect voters. (Photo by Ken Coleman/Michigan Advance)

Benson’s office has sought to have the case thrown out, claiming the plaintiffs “have not identified a single signature that they contend local clerks have been required to accept … that otherwise would not have been accepted.”

It isn’t known how many votes might be at stake, but in 2022, nearly 1.9 million Michiganders voted by mail — around 42% of all voters.

Two other lawsuits, one filed by the RNC and another by a conservative legal group, the Public Interest Legal Foundation, accuse Benson of inadequate voter roll maintenance and aim to require her office to do more to remove names from the rolls. Fifty-three of the state’s 83 counties have more registered voters than eligible voters, the RNC claims. 

A federal judge dismissed the suit filed by PILF, which has brought numerous similar lawsuits in other suits, mostly unsuccessfully. That ruling is currently being appealed. Benson’s office has asked a judge to dismiss the RNC suit

Finally, Michigan GOP lawmakers are challenging reforms approved by voters via ballot measures in 2018 and 2022, which allowed early voting and no-excuse vote-by-mail, among other steps. Republicans claim the measures improperly bypassed the state legislature, which has exclusive authority to set voting rules — a version of the “Independent State Legislature Theory” that the U.S. Supreme Court rejected last year.

A federal judge last month threw out the lawsuit, but Republicans filed an appeal May 3. Though experts see the challenge as a long shot, any unexpected ruling favorable to the plaintiffs could throw the state’s election into turmoil, given the popularity of early and mail voting.

Pennsylvania

Republicans in the Keystone State are also relying on the Independent State Legislature Theory in a lawsuit that challenges Gov. Josh Shapiro’s creation of an automatic voter registration system. That system was facilitated by a 2021 executive order issued by Biden, which gave states access to federal data to help set up such voting registration. Biden’s order is also being challenged.

The lawsuit claims that both Biden’s order and Shapiro’s creation of the AVR system — which fulfilled a promise he campaigned on — improperly sidelined the state legislature. 

A district court dismissed the case, but last month Republicans filed a petition asking the U.S. Supreme Court to intervene. Most observers see that as unlikely. But, as with the Michigan case, any ruling blocking Pennsylvania’s AVR system could create barriers for many potential voters. 

Also not entirely resolved is the status of mail ballots with missing or incomplete dates. 

A 2022 RNC lawsuit seeking to have those ballots — which numbered over 10,000 in 2020 — thrown out was successful. Lawyers for the American Civil Liberties Union filed their own suit seeking to reverse the ruling, which was rejected. The ACLU could still ask the U.S. Supreme Court to intervene, or take the issue back to a lower court. But it looks likely that the ruling saying the ballots must be rejected will stay in place for the fall. 

Nevada

Since 2020, the Silver State has been a hotspot for Republican efforts to stoke fears about illegal voting, based on little evidence. 

The Republican National Committee and state GOP are suing Democratic Secretary of State Cisco Aguilar, charging that the state is violating federal voting law by not doing enough to maintain accurate voter rolls. Three counties, the lawsuit alleges, have more registered voters than people eligible to vote, and two more — including Clark County, the state’s key Democratic stronghold — have implausibly high registration rates of over 90%. 

Aguilar has called the suit “meritless,” saying the GOP’s claims are based on flawed data, and has sought to have it thrown out. 

Conservative groups have in recent years filed numerous similar lawsuits aimed at forcing election officials to more aggressively pare the rolls, and most have failed. 

New York

Unlike the other states here, New York isn’t a presidential battleground, but it contains several swing congressional districts that could help determine control of the House. 

Voters in the Empire State face uncertainty thanks to a lawsuit filed by the RNC and other Republicans, including Rep. Elise Stefanik, which challenges a Democratic-backed reform, passed last year, allowing voters to cast a mail ballot without an excuse. The plaintiffs allege the law violates the state constitution.

In 2020, when no-excuse mail voting was temporarily allowed because of the pandemic, nearly 2 million New Yorkers — over 20% of total voters — took advantage of it.

A district court dismissed the lawsuit in February, and an appellate court unanimously affirmed that ruling May 9. Four days later, Republicans asked the U.S. Supreme Court to intervene.

News From The States is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. News From The States maintains editorial independence.

This article is republished from News From The States under a Creative Commons license. Read the original article.