What I’m Watching on the Docket
At the end of last year, the Republican National Committee bragged about its involvement in 70 lawsuits that challenge election rules and laws. While that number may be inflated, it is a testament to a growing understanding that the rules of elections matter.
In recent years there has been an increased awareness that the drawing of district lines is more important to the outcome of legislative elections than candidate quality or the issue environment. Gerrymandering is proof that rules of elections can be dispositive in electoral outcomes.
More recently, our country has been gripped by disputes over whether former President Donald Trump is eligible to appear on the 2024 ballot at all. The courts’ interpretation and application of the 14th Amendment, not the voters or campaign strategists, will determine the answer.
Not a day goes by that a court in some part of the country isn’t considering and deciding what the rules will be for the 2024 elections. Not all of those cases hold the same magnitude or media attention as the cases involving gerrymandering or Trump’s eligibility. Many of these cases deal with more technical issues of election administration.
Make no mistake, the rules of how people vote in practice quickly dissolve into who can vote and whose vote is counted. In a closely decided electorate, these rules often decide who gets elected and who takes office.
As we begin a consequential election year, here are a few of the most important cases I am watching.
South Carolina Racial Gerrymandering: After deciding two blockbuster voting cases last year, the U.S. Supreme Court only granted review of one, less significant, voting case this term. Following the 2020 census, South Carolina redrew its congressional maps to make Republican Rep. Nancy Mace’s district more conservative. The state achieved this by moving more than 30,000 Black voters out of her district and replacing them with white voters. A lower court struck the map down as an illegal racial gerrymander. Expect a ruling from the Supreme Court early this year.
Trump, Trump and more Trump: With the former president under indictment in four separate cases expect lots of important rulings from courts around the country. The headliners will be how the Supreme Court (and lower courts) handle questions involving Trump’s eligibility to run for president under Section 3 of the 14th Amendment and his broad claims of immunity from prosecution for his conduct in the post-2020 election period.
It is no understatement to say that if you are not paying attention to the courts then you are not paying attention to democracy.
Wisconsin Mail-in Voting: There are four separate pending lawsuits involving Wisconsin’s mail-in voting laws, two of which deal with the state’s unnecessarily complex rules involving the requirement that voters have their mail-in ballots “witnessed” by someone who is a U.S. citizen and can attest to the voter’s eligibility. That witness must then complete and sign a certification accompanying the voter’s ballot. These requirements have caused confusion for many years and have led to the rejection of thousands of otherwise lawful votes. Expect the courts to sort out what is and is not required in the battleground state well in advance of Election Day in November.
Pennsylvania Undated Mail-in Ballots: Like Wisconsin, Pennsylvania has a history of discarding otherwise lawful mail-in ballots for seemingly absurd reasons. In 2020, the focus was on so-called naked ballots. These were mail-in ballots placed directly in the return envelope rather than in an otherwise useless “secrecy envelope” (which itself was placed inside the return envelope). This year the focus is on so-called “undated” or “wrongly dated” mail-in ballots: legal ballots that are returned where the voter failed to write a date or wrote the incorrect date next to their signature on the outer return envelope. Since Pennsylvania counties date stamp when each ballot is received, and that stamp determines if a ballot was received on time, the voter’s date is seemingly irrelevant. Indeed, counties acknowledge that they don’t rely on the voter’s written date for any purpose. They just check to make sure the outer return envelope has some date (past, present or future). Lawsuits challenging this requirement are in various stages in federal court. Decisions are expected before the fall.
Republican Election Vigilantism: One of the most concerning threats for democracy is the growing trend of Republican election vigilantism. In the lead up to the midterm elections, right-wing groups organized stakeouts at drop boxes in Arizona. Since 2020, Georgia has seen a dramatic uptick in mass challenges aimed at disenfranchising tens of thousands of voters. State laws in Arizona, Montana and elsewhere set the stage for more challenges and voter intimidation in those states. Several critical lawsuits are pending in court and will be decided before the 2024 election.
Previously Ignored Voting Rights Act Cases: Most people paying attention to democracy in courts are aware of the major provisions, like Section 2, of the Voting Rights Act. Few are even aware of several more obscure provisions that are already being used — some for the first time ever — in 2024. If successful, they will expand the time periods for all citizens, but particularly minority and young voters, to register to vote and apply for and receive mail-in ballots for the 2024 presidential election. Another set of these would strike down all witness requirements for mail-in voting. Already four cases have been filed using this novel theory, with more almost certainly on the way soon.
These are only a fraction of the hundreds of cases that will be litigated and decided this year in advance of Election Day. It is no understatement to say that if you are not paying attention to the courts then you are not paying attention to democracy — a key factor in who wins and loses this November.