Election officials are scrambling ahead of the November vote to ramp up alternative methods like mail-in voting as the coronavirus pandemic raises concerns about the safety of in-person voting.
That dash to expand polling options could bring a new wave of court fights around the 2020 election, legal experts say. As states move to bolster balloting options — or face challenges to such plans — both sides in the debate are likely to take those decisions to court.
And when Election Day arrives, questions over the handling of mail-in ballots could lead to more court fights.
“We do not want the election resolved in the courts and so I hope it does not come to that,” said Richard Pildes, a law professor at New York University.
Legal experts say the nightmare scenario would be a situation resembling the Supreme Court’s decision on Bush v. Gore, which was seen as an ideological one that undermined both the legitimacy of the court and the 2000 presidential election results among critics of the decision.
“We know that the current partisan divide over the legitimacy of the U.S. Supreme Court can be timed to the release of the Bush v. Gore decision,” said Charles Stewart, a political science professor and election expert at MIT. “So, we have to be worried both about the legitimacy of the result and the legitimacy of the courts.”
States are hoping to avoid the situation Wisconsin faced this week where widespread in-person voting took place, despite last-minute efforts to avoid that outcome amid a virus that had infected some 2,500 and killed nearly 80 in the state by the Tuesday vote.
“There’s nonstop work being done by election officials to plan for November,” Stewart said.
The hope is that the pandemic will have abated enough to allow for in-person voting, which could be done more safely if early voting is expanded to reduce crowding on Voting Day. But given the fears over inciting a second wave of infections, that may not be advisable by the fall.
All states allow at least some mail-in balloting for select voters. While some states have relatively expansive mail voting systems, others have few provisions.
The fight over expanding voting options has already sparked legal battles. Texas is one of the states that has cases pending in court over efforts to expand mail-in balloting.
Under the current state election rules in Texas, only voters with a “qualifying reason” — advanced age, disability, incarceration or planned travel — can mail in ballots, despite public health guidance to avoid public gatherings. But a lawsuit filed by Texas Democrats ahead of the July primary runoff seeks to have that criteria expanded by including social distancing as a qualifying disability.
Progress toward developing a voting failsafe by November is likely to be uneven among the states given that not all are beginning from the same starting point, and because the push has increasingly become riven by partisan politics.
States that have a head start will be better off, though, experts said.
“States that already have a well-developed vote-by-mail program may well have the capacity to supersize it, and states that don’t may well have the capacity to provide some incremental vote-by-mail capacity,” said Justin Levitt, a professor at Loyola Law School.
“But it will be a herculean task for a state without much vote-by-mail capacity to get to almost everyone voting by mail by November. That takes expertise and systems, equipment and personnel, and the capacity to print a lot more ballots. And it is not easy to get any of those quickly.”
Lorraine Minnite, a political science professor at Rutgers University-Camden, put it even more starkly.
“A large-scale change in procedure hastily administered will likely not run smoothly even under the best of conditions,” she said.
Experts warn that expanded mail-in voting could lead to more voter errors and omissions, create more opportunities for fraud or coercion, and pose special challenges for those who move frequently or lack a permanent address.
Edward Foley, a law professor at Ohio State University, said that if states are too slow to mail out ballots, litigation could arise from those issues.
“The most likely problem to trigger litigation would be if voters request absentee ballots on time, but election officials because they are overwhelmed with the high volume of absentee ballot requests fail to send the ballots to voters in time for voters to return them by the legally specified deadline,” Foley said.
“This, then, creates a problem of wrongful disenfranchisement of eligible voters, through no fault of the voters but because of the government’s own problems, and requires a court to come up with an appropriate remedy,” he added.
Rick Hasen, a professor of law and political science at the University of California Irvine, said that more courts may be drawn into a battle similar to the one playing out in Texas over whether voting by mail should require a valid excuse.
“There are a number of issues courts may address related to the vote by mail and the coronavirus,” he said. “Do states have to expand ballot deadlines to deal with a flood of absentee ballots? Do voters have a right to be told their absentee ballots have been rejected and given the opportunity to ‘cure’ a problem for rejecting a ballot like a purported signature mismatch?”
According to Levitt, one common thread among states is the urgent need for money to ramp up mail-in operations.
“The single most important piece is funding,” he said. “There are a lot of logistics between here and there, including space and machinery and people to process mail ballots, and that takes money.”
The more than $2 trillion coronavirus stimulus package included $400 million for states to expand early voting, election by mail and for other election matters.
“The recent funding from Congress is an extremely welcome start, but only barely a start,” he added. “There needs to be much more, and quickly: it does little good to get more funding for this in October.”