Litigation Look Ahead: November

A bright blue background with a hand holding a crystal ball revealing a gavel, a mail-in ballot, the U.S. Constitution and an electronic voting machine

With Election Day on Nov. 8, November is going to be filled with rapidly moving litigation around who gets to cast a ballot and have it counted. In particular, we’re watching out for litigation around challenges to voters’ eligibility; intimidation of voters and/or election workers; the counting and processing of mail-in ballots; conspiracy theories around electronic voting machines and counties that refuse to certify their election results. 

Below we outline cases with courtroom activities or filings to look out for this month. This is not an exhaustive list — new lawsuits will be filed, and pending cases are subject to scheduling conflicts, delays or case developments that change the course of litigation. Keep an eye on our Cases and News Alerts pages for any developments in these lawsuits and others.

Voting rights litigation: what to expect.

Given the imminent deluge of yet-to-be-filed litigation around Election Day, other lawsuits are quieter this month. There are likely updates to come out of Arizona and New York and we can expect litigation to pick up right around Nov. 8 and in the weeks following Election Day

Key dates: Hearing on Nov. 1, 2022

Following multiple reports of voter intimidation in Arizona by right-wing groups monitoring drop boxes, including allegations that individuals were filming voters and some were armed and dressed in tactical gear, two lawsuits were filed against the alleged vigilantes. In the first lawsuit, Arizona Alliance for Retired Americans v. Clean Elections USA, a federal district court judge declined to temporarily block Clean Elections USA, a right-wing group behind vigilante drop box monitoring in Arizona, and its supporters from monitoring drop boxes in Arizona during the midterm elections. This decision was immediately appealed to the 9th U.S. Circuit Court of Appeals, where the Alliance is asking the court to issue an injunction pending appeal “to protect Plaintiffs’ members and countless other Arizona voters from severe and irreparable harm.” Briefing on this motion will wrap up on Nov. 1 and we can expect the 9th Circuit to act quickly on the request.

In a separate but related lawsuit, the League of Women Voters of Arizona is also challenging various drop box monitoring activities by Arizona groups. The plaintiff has asked the judge to issue an order prohibiting the named groups, “their co-conspirators, and all of their volunteers and agents, from engaging in activity that is actively intimidating voters.” A hearing on the plaintiffs’ motion for a temporary restraining order and preliminary injunction is scheduled for Tuesday, Nov. 1. This case is expected to move quickly and we’ll keep you updated on the hearing and any other movement.

Key dates: Hearing on Nov. 15, 2022

Earlier this year, New Hampshire adopted Senate Bill 418, a voter suppression law that requires voters who register to vote for the first time on Election Day but lack a valid photo ID to vote on an affidavit ballot, which is then separated from other completed ballots. After the election, these voters have seven days to mail documentation establishing their identity to the secretary of state in order for their votes to be counted. If voters fail to do so, their votes will be discarded from the official election results and their names will be referred to the attorney general’s office for investigation. A lawsuit was filed by state organizations and voters challenging the law, which was then consolidated with another challenge to S.B. 418. The defendants, the New Hampshire secretary of state and attorney general, are seeking to toss the lawsuits by arguing that the voters lack standing (the legal capacity to bring a lawsuit) because, as registered voters, they will not be impacted by S.B. 418. The defendants further argue that the organizations challenging the law also don’t have standing to sue because the entities “do not vote” and “do not register to vote.” A hearing on the defendants’ motion to dismiss is scheduled for Nov. 15.

Key dates: Oral argument on Nov. 1, 2022

Election Day is close and parties in New York are still fighting over absentee voting in court. On Oct. 21, a New York judge issued a ruling in a Republican lawsuit challenging two absentee voting laws in the state. The judge allowed a law that permits people to vote absentee if they are concerned about contracting an illness such as COVID-19 to stand while striking down a law that allows for the counting and canvassing of absentee ballots on an expedited basis and prevents legal challenges to already counted ballots. The judge also ordered counties to separate and preserve absentee ballots after they’re counted in case ballots are challenged after the election. The decision was immediately appealed and paused on appeal, which means that both challenged laws remain in effect in New York as of Oct. 31. Oral argument is scheduled before the state’s intermediate appellate court on Tuesday, Nov. 1, after which a decision will be released stating if the two challenged laws are allowed to remain in place.

A separate Republican lawsuit filed earlier this summer also challenges the absentee excuse law that allows voters to cite concerns about illness as a valid reason to vote absentee. A trial court judge declined to block the law, rejecting the plaintiffs’ arguments that the law violates the New York Constitution and that their votes will be “diluted” by unlawfully cast absentee ballots if the law remains in place. The plaintiffs appealed this decision and oral argument before the state’s intermediate appellate court is also scheduled for Tuesday, Nov. 1.

Redistricting litigation: what to expect.

Maps are set for the 2022 elections, but redistricting litigation out of North Carolina and South Carolina is still moving through the court system.

Key dates: Brief due on Nov. 18, 2022

Moore v. Harper, the U.S. Supreme Court case that threatens to upend the way federal elections are run, will be fully briefed by mid-November ahead of oral argument on Dec. 7. The case, originating out of a redistricting battle over North Carolina’s congressional map, raises the right-wing independent state legislature (ISL) theory, which argues that the Elections Clause of the U.S. Constitution gives state legislatures exclusive authority to set federal election rules, including drawing congressional maps, free from interference from other parts of the state government like state courts and governors. So far, the opening brief in support of adopting the ISL theory has already been filed by the Moore parties. The Harper parties, who are opposing any application of the ISL theory, have also filed merits briefs. Nearly 70 amicus briefs — 16 in support of Moore that embrace the ISL theory, 48 in support of Harper that repudiate the ISL theory and five in support of neither party — have also been filed. Next, the Moore petitioners will file their reply brief in support of their position advancing the ISL theory by Nov. 18.

Key dates: Closing arguments on Nov. 22, 2022

Last October, the South Carolina State Conference of the NAACP and a voter filed a lawsuit challenging the state’s congressional map, which was drawn with 2020 census data, for being a racial gerrymander in violation of the 14th and 15th Amendments. A trial was held this October and closing arguments are scheduled to take place before the district court judge on Nov. 22.

Subscribe to our monthly newsletter, The Brief, for an in-depth review of legal updates at the end of the month and look out for our next monthly litigation look ahead in November. Stay up to date on important cases and court decisions in November on our Cases and News Alerts pages.