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A flurry of election lawsuits will help determine not just who votes in the presidential election but potentially who wins the contest between former President Donald Trump and Vice President Kamala Harris.
The Republican National Committee has filed more than 100 lawsuits, including some aiming to ensure that absentee ballots are only counted if they arrive by Election Day, that mailed ballots meet requirements such as having dates on them and that noncitizens − who are legally barred from voting in federal elections − are unable to vote.
The Democratic National Committee and civil rights groups worry that those lawsuits could, if successful, lead to restrictions that disenfranchise legitimate voters. The DNC and its allies are also pursuing litigation to block restrictions on voting and prevent last-minute changes in election rules.
The RNC contends the lawsuits are aimed at ensuring election officials follow the law. RNC Chairman Michael Whatley has said Pennsylvania policies for mail-in ballots “ignore the law” and “erode public confidence in our elections,” while the North Carolina State Board of Elections “violated the law” in how it registered voters.
“There has been a very large volume of litigation around the election this year,” said Sean Morales-Doyle, director of voting rights at the Brennan Center for Justice.
Here are some cases with potentially big ramifications:
Mississippi’s absentee ballot deadline
Legal experts say a Mississippi case about the deadline for absentee ballots could reach the Supreme Court and have widespread impact across numerous states.
Mississippi allows mailed-in ballots that are postmarked by Election Day to arrive up to five days later and still be counted. Another 12 states – including California, Florida, and New York – and the District of Columbia have similar grace periods ranging from one to 10 days for absentee ballots.
The Republican National Committee and Mississippi GOP challenged the law in federal court in January by arguing federal law ends voting on Election Day.
But county election officials represented by the state contend ballots just need to be cast by that deadline – confirmed by the postmark – and can be counted later.
The Justice Department sided with the state in arguing that setting an Election Day deadline could hurt military and overseas voters who mail in ballots.
If the case reaches the Supreme Court and the justices side with the RNC, the ruling could invalidate tens of thousands of ballots received after Election Day nationwide. More than 50,000 mailed ballots were rejected as late in 2020 without making deadlines tighter, according to a Massachusetts Institute of Technology study. But legal experts said it was unlikely the 5th Circuit or Supreme Court would make such a “radical” decision.
The potential outcome would be pretty dramatic, I certainly hope that the 5th Circuit isn’t willing to be quite that radical,” Morales-Doyle said.
The 7th U.S. Circuit Court of Appeals has already rejected a similar lawsuit in August from Illinois. In Mississippi, a U.S. District Court upheld the state’s deadline in July and Republicans appealed. The 5th U.S. Circuit Court of Appeals heard arguments Sept. 24.
“If the Fifth Circuit accepts the argument that the RNC is making, this would have very broad implications, and could conceivably make it up to the Supreme Court,” said Daniel Tokaji, dean of the University of Wisconsin Law School.
Certifying the vote in Georgia
Several lawsuits in Georgia could impact whether county election results are certified on time amid bipartisan fears that last-minute rule changes from the Georgia State Election Board could cause delays and invite election misinformation.
One of the rules, passed Sept. 20, requires three individuals in each of thousands of Georgia voting precincts to count the number of ballots by hand and match the totals to figures generated by machines. The Democratic National Committee and Georgia Democratic Party are arguing in a lawsuit filed Sept. 30 that the state legislature didn’t authorize the board to pass such a rule, echoing guidance Republican Georgia Attorney General Chris Carr gave the board.
“If the Hand Count Rule is allowed to go into effect, the general election will not be orderly and uniform – large counties will face significant delays in reporting vote counts” and “election officials will struggle to implement new procedures at the last minute,” according to the lawsuit.
Two Georgia county election boards near Atlanta, the boards for Cobb County and DeKalb County, also sued the state election board Tuesday over the hand-count rule and other last-minute changes.
Also on Tuesday, Georgia Judge Robert C. I. McBurney held expedited trial proceedings in a separate Democratic lawsuit targeting two August rules from the state election board. One rule requires county officials to conduct a “reasonable inquiry” before certifying results, while the other empowers county officials to examine any documentation created as the election was being conducted.
To “prevent chaos in November,” Democrats have asked McBurney to declare ahead of the election that the Nov. 12 county certification deadline is mandatory, and the new rules don’t change that.
McBurney also held trial proceedings Tuesday in a lawsuit filed by Julie Adams, a Republican on Atlanta’s Fulton County election board who refused to certify results in the May primary election – a growing phenomenon across different states. Adams is suing Fulton County to get access to election-related documents and to get a court to declare she is permitted to vote ‘no’ on certification. The county says she doesn’t have a right to the documents or to vote ‘no,’ but also says it has voluntarily given her document access.
McBurney appeared poised to largely give Adams a win when it comes to accessing documents, but give her a loss when it comes to certification.
“You can certify by looking at lots of records or a few records, interrogating poll workers, not interrogating poll workers, looking at everything to your heart’s content – within the narrow window of time that you have,” he said Tuesday.
Ballot errors in Pennsylvania
Pennsylvania, another crucial swing state, has had a couple of key cases pending about how to deal with errors on absentee ballots.
The state Supreme Court ruled Sept. 13 that absentee ballots with missing or incorrect dates on their outer envelopes should not be counted. The American Civil Liberties Union asked the U.S. Supreme Court on Sept. 27 to review the issue by arguing that rejecting ballots for an “immaterial error” would violate the 1964 Civil Rights Act and 1965 Voting Rights Act.
The state’s high court threw out another similar case Friday by ruling it wouldn’t “impose nor countenance substantial alterations to existing laws and procedures” because voting has already begun.
Justice Kevin Brobson agreed with the unsigned decision by writing the court had already ruled in February 2023 that failing to date or mistakenly dating envelopes “renders a ballot invalid as a matter of Pennsylvania law.” Justice Sallie Updyke Mundy joined his opinion.
Justice Christine Donohue also agreed by writing that overturning a statute “is serious business” and the court should review the entire statute rather than just a portion dealing with mistakes on absentee ballots. Justice Daniel McCaffery joined her opinion.
Chief Justice Debra Todd disagreed with the decision, writing that the issue was “of grave importance and it was “imperative” to resolve the dispute now.
In the second case, the RNC and Pennsylvania GOP asked the state Supreme Court on Sept. 18 to block instructions state Secretary of State Al Schmidt gave county election boards in March and August about how to fix mistakes with absentee ballots rather than have them thrown out. The flaws could be a voter forgetting to sign or date the ballot, or defects such as the lack of an outer security envelope.
Based on Schmidt’s guidance, some counties are sending automatic emails to voters whose mail ballots are flawed so they have the option of casting provisional ballots on Election Day. Republicans contend the legislature hasn’t given Schmidt or the counties the authority to help voters fix mail ballots so the ballots should be rejected entirely. Otherwise, Republicans argue the uncertainty about fixing mail ballot threatens to “unleash chaos and an erosion of public confidence in the election.”
Government lawyers responded that the Republicans muddled legal issues and misrepresented facts. Election officials for counties including those around Democratic strongholds of Philadelphia and Pittsburgh said they were trying to ensure voters get to cast a ballot even if mailed ballots are defective. The Democratic National Committee and state party argue the Republican argument would disenfranchise voters whose mailed ballots are rejected.
The state Supreme Court threw out the case Friday in an unsigned opinion that said Republicans waited too long to bring it. Republicans had filed a similar lawsuit in September 2022 that was dismissed for lack of jurisdiction in the local court, but then didn’t return to court until this September.
Brobson wrote an opinion agreeing with the decision that said Republicans raised “important questions” in their lawsuit, but that the general election is already under way, adding that the case “could have pursued these challenges in a more-timely fashion.” He said the issues should be resolved before future elections and that another lawsuit could be filed after the election. Mundy again joined Brobson’s opinion.
Dispute over voter registration identification in North Carolina
In North Carolina, the fight is over identification required to register to vote. The eventual decision in the courts could determine whether 225,000 voters are removed from the rolls, which is about three times more than Trump’s victory margin over Biden in the state in 2020.
The RNC and the state GOP sued the State Board of Elections in August for failing to require identification such as a driver’s license number or last four digits of a Social Security number. The result is that noncitizens could have been allowed to register, which fuels distrust in the election, Republicans argued.
Election board members responded it wasn’t clear the federal Help America Vote Act required registrants to provide ID numbers. The election board members accused Republicans of trying to remove hundreds of thousands of voters while voting is under way and urged a judge to dismiss the case.
Voting began Sept. 20 with ballots distributed to military and overseas voters.
U.S. Chief District Judge Richard Myers scheduled a hearing Oct. 17.
“It doesn’t strike me as implausible that you would see a case like that … before the Supreme Court in late October,” Aziz Huq, a University of Chicago law professor said.
