77 Days to Go: Election Litigation Update by Rick Hasen

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Today marks 77 days until Election Day on November 8 … and yet, as the big day draws near(er), there is still a lot of uncertainty about what will happen with election litigation in numerous states. Fortunately, UC-Irvine law professor Rick Hasen has a handy roundup in his (must-read) Election Law Blog:

With 77 days to go until Election Day, and early voting starting much sooner in some places, here is the major litigation affecting election procedures and voting that I’m watching the most closely:

Wisconsin: One trial judge required Wisconsin officials to accept an affidavit instead of one of the strict voter ids for voting. A 7th Circuit panel reversed that holding, and we are awaiting the entire 7th Circuit en banc to rule on this question.  A second trial judge struck a number of election rollbacks in Wisconsin, including those limited to early voting. The state has petitioned the 7th Circuit to stay that judge’s order pending appeal. I expect we will hear something on this case this week.

[BREAKING: the appeals court granted the stay yesterday; as Rick notes in a later post – 

“The fact that the court denied the stay without issuing an opinion could be a sign that the court recognizes the urgency of the time.  An opinion can come later when there is an appeal on the merits.  It could be a sign that the issues raised by Wisconsin are frivolous.

What this means: Wisconsin needs to go ahead and let localities … continue to set voting hours and otherwise implement the judge’s order.”]

North Carolina: The 4th Circuit struck a number of challenged election rollbacks based upon a finding that North Carolina passed the law with racially discriminatory intent. The state will file a cert. petition in the Supreme Court, and in the meantime it has asked the Supreme Court to reinstate some of the laws that the 4th Circuit blocked. Chief Justice Roberts has asked the plaintiffs to file a reply by this Thursday, the 25th. Expect a ruling the following week (and given the slow pace set by the Chief, I do not expect the stay to be granted so close to the election).

Texas: We thought things were done in Texas for the time being, after the 5th Circuit found that Texas’s strict voter id law violated Section 2 of the Voting Rights Act and ordered a softening by the trial judge (as well as a remand after the election to consider whether Texas acted with racially discriminatory intent). Texas and the plaintiffs agreed in the trial court on an affidavit requirement for softening to apply in this election only, which seemed to settle things for November. But last week the Texas AG left open the possibility of seeking emergency relief with the Supreme Court to get the full voter id requirement reinstated for November. Nothing’s been filed yet, and given the lengthy delay and timing such a request would almost certainly be denied.

Ohio: We are waiting on a couple of cases out of the 6th Circuit over whether the Ohio legislature’s rollback of early voting was permissible. Two lower courts said it was not. Frankly, I’m quite surprised these rulings are not out yet as time is tight—and the theories of the plaintiffs here seem the shakiest in terms of proving a violation. [Update: Only one of these two pending cases is about the early voting aspect of this law. The other deals with other aspects.]  We are also awaiting a 6th Circuit ruling on a so-far-unsuccessful challenge to its voter purge procedures, for removing people from the ballot who have not been active voters.

Arizona: Democrats are looking for a court order to make sure that the long lines that materialized in the primary will not reappear on election day. Awaiting a district court ruling.

Kansas/EAC: The D.C. Circuit is considering an appeal over the issue of whether [EAC executive director Brian Newby] exceeded his authority when he allowed Kansas and Arizona to require documentary proof of citizenship for voters who register to vote in federal elections using the federal form. There is also litigation over the “dual” voting system that SOS Kobach has put in place over the objections of voting rights activists. [Update: There’s another one of these Kansas cases pending before the 10th Circuit.]

That’s a lot – if not an unusual amount – of election litigation with eleven weeks to go. We are soon likely to get into the territory where courts are leery of changing election laws due to the so-called “Purcell principle” … but in the meantime election officials in those states are probably staying loose and preparing to make last-minute changes based on the outcomes of one or more of these cases. It’s unfortunate but represents the new normal, especially in presidential election years.

As Rick notes, you can keep with all of these cases and more at ELB or by using the “the Major Pending Election Cases at the indispensable Election Law @ Moritz website.”

Stay tuned (and keep calm) …