Millions Of People Are Already Voting And Courts Keep Changing The Rules
“This court leaves voters to their own devices. Good luck and G-d bless, Wisconsin. You are going to need it,” one judge wrote Thursday.
WASHINGTON — Over the span of just four days this week, there was a breathtaking flurry of court action affecting how millions of Americans can vote in the November election.
On Monday, the US Supreme Court ruled that voters will need a witness for mail-in ballots in South Carolina — after voting had already started in the state. A federal appeals court reinstated Arizona’s Election Day deadline for absentee voters to fix ballots missing their signature. On Tuesday, a New Jersey federal judge rejected the Trump campaign’s challenge to the state’s plan to accept mail-in ballots without a clear postmark through Nov. 5 and to start counting ballots that arrive before Election Day. On Wednesday, the Texas Supreme Court blocked a county clerk from sending absentee ballot applications to 2.4 million registered voters in the Houston area.
With numerous mail-in voting cases pending less than a month before Election Day, judges are frantically trying to resolve legal fights over how people vote remotely during the coronavirus pandemic. Voting procedures are normally set by state lawmakers and election officials, but the pandemic has upended the usual practices. The degree to which judges have been asked to step in has led to an extraordinary amount of uncertainty — for voters as well as candidates and their political parties — so close to Nov. 3.
On Thursday, the US Court of Appeals for the 7th Circuit voted 2–1 to block an injunction that would have extended Wisconsin’s deadline for people to register to vote online or by mail — from Oct. 14 to Oct. 21 — and required state officials to count absentee ballots that arrived by Nov. 9 as long as they were postmarked by Election Day. Judge Ilana Rovner dissented and summed up the chaos of voting this year.
“Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices,” Rovner wrote. “Good luck and G-d bless, Wisconsin. You are going to need it.”
The 7th Circuit order was the latest addition to the patchwork of pandemic-related state laws, gubernatorial actions, and court decisions that will make it easier for voters in some states to vote remotely than in others and lay out different timelines for how long after Election Day states will count absentee ballots. The 11th Circuit last week blocked an order that would have allowed ballots in Georgia that arrived by Nov. 6 to be counted, reinstating the state’s Election Day deadline. In Indiana, on the other hand, a judge ordered the state to count ballots through Nov. 13 as long as they’re postmarked by Election Day; the state is appealing.
More big decisions are imminent. The Supreme Court is poised to rule any day about whether Pennsylvania can count mail-in ballots that arrive after Nov. 3. A judge in Texas will decide if Republican Gov. Greg Abbott can bar counties from having multiple drop boxes for voters to turn in ballots as opposed to putting them in the mail (USPS has faced delays following attacks from President Donald Trump and his administration). A judge in North Carolina is mulling whether state officials violated the law when they extended the timeline for counting absentee ballots and made it easier for voters to fix ballot problems. Alabama is challenging an order that would lift the state’s requirement that absentee voters have a witness sign their ballots for voters with medical conditions that put them at greater risk from COVID-19.
The closer it gets to Election Day, judges will run up against the “Purcell principle,” a legal doctrine based on a 2006 Supreme Court case, Purcell v. Gonzalez, that warns courts against making changes to voting rules and procedures close to an election. Justice Brett Kavanaugh cited it this week in a short opinion explaining his vote to restore South Carolina’s witness requirement for absentee ballots.
But with so many more voters casting their ballots early this year because of the pandemic, courts are grappling with how to balance the Purcell principle with making sure the right to vote is protected. In the Wisconsin case, Rovner wrote that courts should not “turn a blind eye” to the reality of the pandemic and that the decision by her colleagues would disenfranchise potentially tens of thousands of voters. In the US Supreme Court order putting South Carolina’s witness requirement back in place, the justices had to contend with the fact that voting had already started in the state, and voted to allow a two-day grace period for ballots that don’t have a witness signature and were already in the mail.
More than 5.4 million people across the US have already cast their ballots as of Wednesday, CNN reported.
Regardless of what the Supreme Court might do going forward, election officials in states where cases are pending in state and federal court are in limbo until there are final decisions. Some have hedged the guidance they’ve published for voters on their websites and social media accounts, or delayed releasing information at all; others have announced deadlines that are still being litigated.
“The world is completely topsy-turvy right now. This isn’t like any election cycle that people have been in.”
In Wisconsin, a federal judge had issued an order on Sept. 21 extending the deadline to register to vote online or by mail and extending the timeline for the state to count ballots postmarked by Election Day. But while that case has been up on appeal before the 7th Circuit, Reid Magney, a spokesperson for the Wisconsin Elections Commission, told BuzzFeed News that his office was waiting to publicize the new dates ordered by the judge last month. Marc Elias, a lawyer for the Democratic National Committee and the Wisconsin Democratic Party, which brought the case, did not immediately return a request for comment about whether they would ask the full 7th Circuit to reconsider the case and keep the legal fight alive.
“The Wisconsin Elections Commission is preparing to implement [the judge’s] orders. Because the case is still on appeal at the 7th Circuit, we have not publicized the potential extensions of voter registration and absentee ballot return deadlines. Luckily, the first deadline he extended isn’t for about a week, so hopefully the courts can get this sorted out,” Magney wrote in an email. “In March and April, many voters were confused by shifting court rulings, so we don’t want that to happen again.”
Celina Stewart, senior director of advocacy and litigation for the League of Women Voters, said they’ve had to be more careful this year about how they notify voters about state-by-state voting information because there’s so much fast-moving litigation. The group is active in court pushing to expand mail-in voting but also has a voter education arm. Stewart said that in some cases they’ve waited to push out alerts about new rules or deadlines if a court order is expected to quickly go up on appeal to avoid confusing voters.
“The world is completely topsy-turvy right now. This isn’t like any election cycle that people have been in,” Stewart said.
One of the biggest unresolved issues is whether states can count ballots received by mail after Election Day. Judges in some states have ruled that given the spike in absentee voting during the pandemic and USPS delays, officials must accept ballots for several days past Nov. 3 if the envelope is postmarked by Election Day — and under certain circumstances, even if the postmark isn’t clear. In other cases, judges have kept Election Day deadlines intact.
Some of these pending cases are in battleground states. In a 4–3 decision last month, the Pennsylvania Supreme Court ruled that ballots postmarked by Election Day must be counted if they arrive by 5 p.m. on Nov. 6. Ballots without a clear postmark, or without a postmark at all, could also be counted during the extra three-day window absent clear evidence they were mailed after Election Day, the court held.
Republican state lawmakers and the Pennsylvania Republican Party petitioned the US Supreme Court to step in and restore the state’s Election Day deadline. State lawmakers argued in a Sept. 28 brief that the Pennsylvania Supreme Court’s decision “usurps” the legislature’s power to decide how elections should be run.
“In a year where there is a very real possibility that the final presidential election result hinges on Pennsylvania, the new rules imposed by the decision of the Supreme Court of Pennsylvania (a body elected in partisan elections) could destroy the American public’s confidence in the electoral system as a whole,” lawyers for the Republicans wrote.
Pennsylvania Democrats and Pennsylvania Secretary of State Kathy Boockvar argued in favor of keeping the longer timeline for counting mail-in ballots in place.
The state supreme court’s ruling “ensured that Pennsylvanians would not be forced to choose between exercising their right to vote and protecting their health,” the Pennsylvania attorney general’s office, which is representing Boockvar, argued in a brief.
Briefing before the US Supreme Court finished on Oct. 6. The justices did not say when they would rule. In the meantime, Boockvar’s office has continued to publicize the Nov. 6 deadline for counting ballots postmarked by Election Day, tweeting about it as recently as Tuesday. A spokesperson for the secretary of state’s office declined an interview request.
The Supreme Court’s decision in Pennsylvania could apply to ballot counting fights in other states, but until there’s a ruling, those other cases will go forward.
In North Carolina, a state court judge on Oct. 2 approved an agreement between voting rights groups and election officials to have the state accept ballots postmarked by Election Day until 5 p.m. on Nov. 12. North Carolina requires absentee voters to have someone witness when they sign their ballot; the agreement that the state judge signed off on would also allow voters who sent in a ballot without a witness signature to sign a form certifying that their ballot is legitimate, as opposed to having to start over and find a witness.
But a series of new lawsuits, appeals, and competing court orders since then have left the agreement on hold. Election officials are waiting for the courts to resolve the tangle of litigation before notifying voters about what to do if there are problems with their ballots — even as ballots continue to arrive by mail.
The Trump campaign, Republican National Committee, Republican state lawmakers, and other Republican groups and lawmakers filed a pair of lawsuits in federal court to challenge the terms of the agreement reached by North Carolina election officials. On Oct. 3, US District Judge James Dever III, who was handling both cases, entered a temporary restraining order halting the new agreement and transferred the cases to another judge, US District Judge William Osteen, who was presiding over other litigation about how North Carolina runs mail-in voting.
Osteen heard arguments on Oct. 8 about whether he should extend Dever’s order putting a pause on the new rules through the election. Meanwhile, North Carolina election officials have appealed Dever’s order to the 4th Circuit, arguing that because there are conflicting court orders about how to deal with ballots missing a witness signature, election officials can’t notify voters who have already sent back ballots that have problems. State Republicans also have a pending challenge to the earlier state court order before the North Carolina Court of Appeals.
“We are awaiting guidance from the courts on exactly how ballots with deficiencies should be cured during the pandemic. As soon as we know, our county boards of elections will quickly reach out to voters to inform them on how to make sure their vote counts,” Patrick Gannon, a spokesperson for the North Carolina State Board of Elections, told BuzzFeed News in an email. “We will also provide as much outreach as possible through press releases, TV and radio appearances, social media, etc.”
In Arizona, ballots must be received by 7 p.m. on Election Day to be counted. A federal district judge last month rejected a request to extend that deadline for Navajo Nation members. The lawsuit alleged that postal delivery times are slower for people living on reservations, especially compared to wealthier communities in the state. The tribal members had asked the judge to order the state to count tribal members’ ballots postmarked by Nov. 3 and received by Nov. 13.
In a Sept. 25 order, the judge denied the request, finding the plaintiffs failed to show that tribal members’ ballots had been “disproportionately thrown out” in the past because of the state’s Election Day deadline. The tribal members appealed, and the 9th Circuit is set to hear arguments on Oct. 13.
In Indiana, a federal judge ordered that the state count ballots received by Nov. 13 as long as they are postmarked by Election Day. Republican state officials appealed and on Oct. 6, US District Judge Sarah Evans Barker put her own decision on hold while the case is before the 7th Circuit.
Barker wrote that she hadn’t changed her mind that Indiana’s Election Day deadline for accepting mail-in ballots was likely unconstitutional given the pandemic, but explained that she was nevertheless pausing her order “to avoid providing absentee voters with a false sense of security.” ●