Oct.28

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The Legal Battles Are Escalating--Even before the Election

We have some more legal news. Oddly enough, it doesn't involve either Rudy Giuliani or Donald Trump—at least, not directly. Republicans are clearly worried about not getting enough votes a week from tomorrow, so they would like to get the Supreme Court to just call the election for them and get it over with now. Would save a lot of trouble. Here are the major legal battles going on now.

• Arizona: Republicans are claiming that noncitizens are voting. Due to a (somewhat complicated) computer glitch, 218,000 voters were found to be registered despite not having shown proof that they were citizens. The Republicans sued to have them removed from the voting rolls but lost in the state Supreme Court. Meanwhile, the RNC is fighting the state's election procedures manual. A court threw out its suit, but the RNC is appealing it. This suit is about electioneering, photography, and intimidating activity within 75 feet of a polling place. The appeals court hasn't ruled on the merits yet, but has suspended restrictions on the banned activity while it gears up to consider the case.
  
  
• Georgia: The Republican-controlled Georgia Board of Elections passed a number of last-minute rules that affect the election, including one that allowed precincts and counties to delay certifying the vote if they suspect that something is amiss with the election. Democrats sued and a judge ruled that the Board had no authority to investigate suspicious voting. That was up to the courts. The RNC appealed but the Georgia Supreme Court refused to expedite the case, so it will come up next year. Another Georgia judge also ruled that county officials may not delay certifying the count, even if they think something is wrong. State law does not grant them investigative authority.
  
  
• Michigan: In one case, the RNC sued Michigan because it didn't like how the state was maintaining its voter rolls. A lower court ruled that: (1) the RNC didn't have standing to sue and (2) if it had, it would have lost on the merits of the case. In another case, the RNC tried to block votes from overseas voters who have never lived in Michigan. Under federal law, if an American citizen is born overseas to American parents and has never lived in the U.S., that person is legally entitled to vote in federal elections. Michigan state law allows them to vote in state elections if Michigan was the state his or her parents last lived in. The RNC lost this, too, because the law is crystal clear on this. So the RNC naturally appealed, but the appeals court declined to expedite the case.
  
  
• Nevada: The fights here revolve around voter rolls and absentee ballot procedures. The RNC sued Nevada SoS Cisco Aguilar (D), claiming he has failed to purge noncitizens from the rolls. It claims that 6,136 noncitizens are registered and some of them voted in 2020. The DNC argued that election procedures should be determined by the state legislature and the SoS according to state law, not by the courts, so the case should be thrown out. The case is pending.
  
  
• North Carolina: Litigation in North Carolina delayed sending out absentee ballots by 2 weeks as Robert Kennedy Jr. tried to get off the ballot after the legal deadline for ballot changes had already passed. The Republican-controlled Supreme Court agreed with Kennedy that state law is only advisory and what random candidates want is more important. But wait, there is more. The RNC challenged 225,000 voter registrations. The DNC challenged the lawsuit on the grounds that the National Voter Registration Act bars purging voter rolls within 90 days of an election. A federal appeals court will hear the case today. The real problem is that there aren't always penalties for bringing totally frivolous lawsuits.
  
  
• Pennsylvania: Last month, the Pennsylvania Supreme Court ruled that absentee ballots where the envelope was not dated may not be counted, even if the ballot arrives before Election Day (in which case there is no question at all that the vote was cast before Election Day). Since then, the Court ruled 4-3 that voters whose ballots are rejected for lack of a date must be given an opportunity to cure the ballot. The RNC doesn't want the ballots cured (because it believes most absentee ballots are from Democrats), so it has asked the U.S. Supreme Court to overrule the Pennsylvania courts. In addition, six Republican congressmen are trying to block overseas ballots because they say the state is not taking adequate measures to prevent fraud. The judge hasn't ruled yet.
  
  
• Wisconsin: A disability rights group has challenged the state's absentee balloting system which doesn't allow electronic voting except for overseas voters. The group wants disabled voters to be able to vote electronically even though all electronic voting, domestic and overseas, is potentially subject to hacking and is a horrible idea. The case is still pending and a ruling could still come down before Election Day. Given that election boards don't know beans about security and given a year to prepare probably couldn't get it right, we are not optimistic that if some judge issues an order on Friday to allow electronic voting on Tuesday for people who say they are disabled, all will be rainbows and unicorns.
  

And these are just the major cases filed already. There is still a week to go. Think of all the cases we might have pending next Monday. In principle, the election system works, but when one party is trying to break it, well, it wasn't designed to be resistant to legal attacks. (V)