The Legal Fight for the Presidential Election Has Already Started

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September 17, 2020

Little-noticed court battles that could decide the presidential election have been underway for months in almost every swing state.

Democrats are pressing courts for lenient guidelines and remote alternatives to in-person voting, while Republicans defend conventional rules and methods. Expanding voting options is thought to favor the Democrats, even as the GOP expects to carry the in-person vote on Election Day. The abrupt changes and continued uncertainty could confuse voters and aggravate growing doubts about the election's legitimacy, with hundreds of thousands of ballots at stake.

Officials in Ohio and Pennsylvania are mired in disputes over efforts to install drop boxes for voters anxious about visiting polling precincts. Meanwhile, Republican and Democratic campaign arms have sparred over so-called ballot harvesting rules in Michigan, Minnesota, and Nevada. The public health crisis, and contested Republican claims about voter fraud, loom large over the controversies.

In Ohio, a fast-moving contest over drop-box voting has been eclipsed by a bitter public feud between state court judges and the Ohio GOP.

On Tuesday, Judge Richard Frye ruled that Ohio secretary of state Frank LaRose, a Republican, had no basis for limiting absentee ballot drop boxes to one per county. The state GOP denounced the ruling and accused Frye, an elected Democrat, of partisanship and bad faith. That drew a rebuke from Ohio Supreme Court chief justice Maureen O'Connor.

"Every one of Ohio's 722 judges, 800 magistrates, and numerous active-retired judges should be greatly concerned and voice their dismay at the irresponsible Republican Party allegation that politics controlled the judge’s decision," O'Connor said. "This is a blatant and unfounded attack on the independence of the Ohio judiciary."

In neighboring Pennsylvania, the Trump campaign is challenging guidelines that allow for dozens of ballot drop boxes across the state. Some 20 counties, including heavily Democratic Allegheny and Philadelphia counties, authorized remote ballot drop-off locations. The campaign filed a legal challenge before a federal judge in Pittsburgh, saying state law only authorizes the return of absentee ballots to a county board of elections office.

Pennsylvania Democrats are trying to resolve the controversy in state court. The Pennsylvania Supreme Court agreed on Sept. 1 to invoke extraordinary authority to resolve election rule disputes. In turn, the federal judge in Pittsburgh put the Trump suit on hold, since federal courts generally decline to resolve state law issues while state court proceedings are ongoing. The Trump campaign called the Democratic maneuver an obvious bid to "shop for a favorable forum." Democrat appointees have a five-to-two advantage on the state supreme court.

Judges also try to avoid last-minute changes to election rules, since late adjustments can confuse voters or create chaos for administrators. That practice, called the Purcell principle, played a decisive role in an April Supreme Court case involving postmarking rules for absentee ballots in Wisconsin. A few days before the balloting, a federal judge allowed voters in the state's April 7 election to submit absentee ballots as late as April 13, even if they were postmarked after Election Day. The High Court's conservative majority stopped that accommodation and faulted the district judge for what they called an improper last-minute change.

"This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election," the Court's decision reads.

The Trump campaign has invoked the potential for confusion in its attacks on absentee ballot collection operations. Some states allow voters to turn in absentee ballots via third parties, which Republicans derisively call "ballot harvesting." Many red states have banned the practice, though Democrats say it helps ensure the infirm or those with spotty postal service, such as residents on Indian reservations, can participate in elections.

"The left wants a system where every person—alive or dead, registered or not—is automatically mailed a ballot, where Democrat operatives go living room to living room, in the era of COVID no less, intimidating voters, collecting their ballots, and ensuring there's no secret ballot," Trump campaign spokeswoman Thea McDonald told the Washington Free Beacon. "These shady operatives then cherry-pick which ballots they deliver, ultimately stacking the deck in their favor."

Democrats have challenged ballot-harvesting bans across the country. They say such restrictions are redundant because the misconduct Republicans fear is already covered by laws that criminalize vote buying or ballot tampering. They also attacked ballot collection limits on free speech grounds. In a Michigan lawsuit, Democrats argued the state's ban has "a chilling effect on efforts to educate voters," since campaign volunteers or friendly neighbors who offer help returning absentee ballots could face criminal charges.

"The organizing ban involves the direct regulation of communication and political association, among private parties, advocating for a particular change," Democrats wrote in court documents.

Democrats attacked a similar law in Minnesota, which caps at three the number of ballots one person can deliver for other voters. Roles are reversed in Nevada, where the Democrat-controlled state house passed emergency legislation to permit third-party ballot collection in August. The Trump campaign intervened in a lawsuit on August 4 that asks a court to put the law on hold. Nevada's secretary of state, a Republican, also asked for an emergency regulation requiring any person returning 10 or more ballots to report to election offices and disclose any association with interest groups or campaign organizations.

Republicans prevailed in the ballot-harvesting disputes in Michigan and Minnesota. A decision in the Nevada case is pending before a Las Vegas federal court.