Many millions of Americans are voting by mail or drop box because of the pandemic, and turnout could increase thanks to an unpopular president. The Republican Party has responded by accelerating its assault on voting rights and filing lawsuits at the eleventh hour to stop ballots from being counted.
President Donald Trump has suggested that the election will be rife with fraud given the number of mail-in ballots. (When asked to provide evidence of voter fraud in court, the Trump campaign has failed — because widespread voter fraud is a myth.) Trump argued that the Senate needed to confirm new justice Amy Coney Barrett because the Supreme Court could decide the election.
We’ve compiled a guide to some of the GOP’s most egregious attempts to steal this election through the courts.
In Pennsylvania, Republicans successfully petitioned the state’s Supreme Court to toss so-called “naked ballots,” the term for mail-in ballots that lack the dual envelope protection required under state law. Democrats had argued that such a decision could end up resulting in thousands of discarded ballots.
Republicans had also challenged the state’s extended deadline for receipt of mail-in ballots but were unsuccessful, even after taking their case all the way to the US Supreme Court.
State officials in Pennsylvania told the Washington Post that they are preemptively segregating late-arrival mail-in ballots in order to preempt any effort by the administration to undermine the results of the vote.
Florida Republicans successfully disenfranchised an estimated 774,000 people, receiving a ruling in their favor (from the Republican-stacked Eleventh Circuit US Court of Appeals) to significantly roll back a voter-enacted constitutional amendment to restore voting rights to people with felony convictions.
The constitutional amendment passed in 2018 with 64.5 percent of the vote, ending a practice that disproportionately disenfranchised the state’s black voters. But Republican governor Ron DeSantis and the Republican state legislature acted quickly to enact laws adding burdensome barriers to voting for people with felony convictions, including a law requiring people to pay their outstanding court fees and fines before casting a ballot.
Democrats and civil rights groups challenged the law, arguing that it amounted to a poll tax, but the Eleventh Circuit overruled a district court decision that found the law did, in fact, amount to a poll tax.
Harris County, Texas, has become a key battleground this election. In response to the COVID-19 pandemic, the county implemented universal curbside/drive-through voting, which is normally restricted to a narrow group of individuals under the state’s election code. Several prominent Republicans filed suit in federal court, asking the judge to end the expanded practice and to throw out more than 100,000 ballots that had already been cast this way.
Those Republicans — GOP power broker Steve Hotze, congressional candidate Wendell Champion, Texas state representative Steve Toth, and judicial candidate for Texas 80th District Court Sharon Hemphill — argued that not doing so “hurts not only the integrity and the reported outcomes of the election for all of the candidates and all of the voters who voted, but it could also dilute or otherwise diminish and cancel [their] casting of a legal vote for the candidates of their choice in the General Election.”
Fortunately, Judge Andrew Hanen, a George W. Bush appointee with a reputation as a GOP partisan, ruled on Monday that the plaintiffs didn’t have standing. However, Hanen suggested that Texans should avoid casting their votes in drive-through centers on Election Day.
Earlier this month, Texas governor Greg Abbott reduced the number of ballot drop-off sites to one per county. By 2019, Texas had closed more polling locations than any other state — and has closed 750 since 2012.
The Eighth Circuit US Court of Appeals issued a ruling on October 29 that requires state election officials to segregate mail ballots that arrive on Election Day from ballots that are postmarked by Election Day but arrive after, in order to leave the door open for a Republican challenge to ballots that arrive after the election.
Official government bodies had been advertising that mail ballots postmarked by Election Day would be counted, and the mail ballots sent to voters say that mail ballots postmarked by Election Day and received within seven days of the election would be counted.
Late last month, Republican lawmakers in North Carolina petitioned the US Supreme Court to stop a decision by the state board of elections to extend the deadline for receipt of mail-in ballots to November 12 in order to handle a massive influx of mailed ballots.
Normally, North Carolina law only allows ballots postmarked by Election Day to be received three days after. But the Fourth Circuit US Court of Appeals upheld the extended deadline, holding that, “There is no irreparable harm from a ballot extension: again, everyone must submit their ballot by the same date.”
“The extension merely allows more lawfully cast ballots to be counted, in the event there are any delays precipitated by an avalanche of mail-in ballots,” the court found.
The Supreme Court let the lower court ruling stand last week.
The Supreme Court voted 5-3, along partisan lines, to require mail ballots to arrive by 8 p.m. on Election Day in order to be counted, overruling a Wisconsin federal district court’s order that ballots postmarked by Election Day had up to six days after the election to arrive and be counted.
Justice Elena Kagan wrote in her dissent: “During COVID, the state’s ballot-receipt deadline and the court’s decision upholding it disenfranchise citizens by depriving them of their constitutionally guaranteed right to vote. Because the court refuses to reinstate the district court’s injunction, Wisconsin will throw out thousands of timely requested and timely cast mail ballots.”
During the primary in Wisconsin, the state had accepted mail ballots for up to six days after the election, as long as they were postmarked by Election Day. Eighty thousand ballots that were counted –– about 5 percent of the votes cast –– arrived after Election Day.
This change, between the primary and the general, could confuse voters and potentially result in thousands of Wisconsin ballots being thrown out.
In Michigan, Republicans successfully petitioned the Michigan Court of Appeals to overturn a lower court decision allowing ballots postmarked the day before Election Day to be received up to fourteen days after. As a result, voters now have to return their absentee ballots to their clerk by 8 p.m. on Election Day, which could end up disenfranchising thousands.
The Eleventh Circuit US Court of Appeals issued a ruling requiring mail ballots to arrive by Election Day in order to be counted, overturning a district court judge’s order that had extended the deadline to November 6.
In September, an Arizona judge issued an order allowing voters up to five days after the election to sign unsigned ballots and have their votes counted. The ruling extended a provision already in state law that allows such a cure period for ballots with mismatched signatures from those on file.
Republicans successfully appealed the decision, securing a reversal in a federal appeals court. Now, voters must sign their unsigned ballots by today. Late last month, Maricopa County reportedly had 11,000 ballots without signatures or with mismatched signatures.