Election Law Litigation Update

Today officially marks two weeks until Election Day. Despite the close proximity to the election, there is still active litigation taking place across the country with the potential to greatly affect the landscape on Election Day and the days that follow.

MI Court Strikes Down Absentee Ballot Extension

On Friday, the Michigan Court of Appeals struck down a 14-day absentee ballot return extension previously ordered by a state Court of Claims judge. According to the AP:

Absentee ballots must arrive by Election Day to be counted, the Michigan Court of Appeals said Friday, blocking a 14-day extension that had been ordered by a lower court and embraced by key Democratic officials in a battleground state.

Any changes must rest with the Legislature, not the judiciary, the Republican-appointed appeals court judges said in a 3-0 opinion. . . 

Michigan law says absentee ballots must be turned in by 8 p.m. on Election Day to be valid. But Court of Claims Judge Cynthia Stephens had ordered that any ballots postmarked by Nov. 2 could be counted if they arrived within two weeks after the Nov. 3 election.

Courts have also struck down absentee ballots return extensions in Wisconsin and Indiana.

The Court of Appeals' decision also struck down another part of the Court of Claims' decision which allowed ballots returned by non-family members to be counted.

5th Circuit Restores Ability for Texas Election Officials to Enforce Signature Matching Policy

On Monday, the 5th Circuit reversed a lower court's decision and restored the ability for Texas officials to enforce the state's signature matching policy. As reported by the Texas Tribune:

The appeals court halted a lower court’s injunction, which had not gone into effect, that would have required the Texas secretary of state to either advise local election officials that mail-in ballots may not be rejected using the existing signature-comparison process, or require them to set up a notification system giving voters a chance to challenge a rejection while their vote still counts.

Requiring such a process would compromise the integrity of the mail-in ballots “as Texas officials are preparing for a dramatic increase of mail-in voting, driven by a global pandemic,” reads the Monday opinion issued by Judge Jerry E. Smith.

“Texas’s strong interest in safeguarding the integrity of its elections from voter fraud far outweighs any burden the state’s voting procedures place on the right to vote,” Smith wrote.

The lower court's opinion required the state to get rid of its signature verification law or to implement new procedures as ordered by the court.

Groups Appeal WI Absentee Ballot 7th Circuit Decision to SCOTUS

Last week, several groups announced they would appeal a 7th Circuit decision which struck down several changes to Wisconsin's election administration procedures, changes that were hastily implemented with the excuse of protecting the public from the COVID-19 pandemic. As noted above, a decision to extend the absentee ballot return ballot deadline was among the policies reversed by the appeals court. The Supreme Court has yet to announce whether it will take up the case.

Deadlocked SCOTUS Keeps 3-Day Absentee Ballot Deadline Extension in Place in PA

On Monday, the U.S. Supreme Court denied an emergency stay that would have struck down Pennsylvania's absentee ballot return extension. According to NPR

The U.S. Supreme Court said Monday that election officials in Pennsylvania can count absentee ballots received as late as the Friday after Election Day so long as they are postmarked by Nov. 3.

The court declined without comment to take up one of the highest-profile election law cases in the final stretch before Election Day. Pennsylvania Republicans had sought to block the counting of late-arriving ballots, which the state's Supreme Court had approved last month.

Republicans sought the emergency stay, arguing that it is up to the state's legislature — not the court — to set rules for how elections are conducted. They also said the court's ruling could allow ballots cast after Election Day to be counted.

Cases like this 4-4 decision show the importance of confirming Judge Amy Coney Barrett to the Supreme Court as soon as possible. Without a clear majority, the default rule is to reject stays before the Court.

NC Witness Signature Requirement Remains Intact

On Monday afternoon, the North Carolina State Board of Elections issued guidance to elections officials directing them to contact voters who submit ballots without a witness signature. As reported by OBX Today:

Absentee ballots in North Carolina without a witness signature on the ballot envelope will not be counted, and mail-in voters that made the mistake will have to submit a new ballot.

The state Board of Elections issued new guidance to the counties Monday afternoon as part of a complicated legal battle between Republicans and Democrats over North Carolina’s absentee ballot rules.

The state board said in a news release that county boards of elections across North Carolina are now contacting voters whose absentee ballot return envelopes were not properly completed to inform them of the steps necessary to ensure their votes are counted.

This new guidance comes in response to a ruling last week by a federal judge to keep the witness requirement intact but to allow voters to cure certain ballot errors for ballots that have already been returned.