Coronavirus leads to outbreak in voting litigation

Voting is “an inviolable right” sacred to Americans because it preserves all rights, according to a federal judge who recently ruled that all registered voters in Alabama may vote absentee this year because of the pandemic.

The ruling by District Judge Abdul K. Kallon came in response to a lawsuit that is part of a spike in voting rights litigation across the country. The number of cases filed in federal courts is significantly higher than during the last presidential election cycle, according to information from the Transactional Records Access Clearinghouse at Syracuse University.

Finger with I Voted Today button in front of many voting stickers given to US voters in Presidential election

So far this year, there have been more than 200 federal voting rights lawsuits filed across the country. In the last six months, there were 155 election rights lawsuits, compared with 85 such suits in the same period of 2016, according to the TRAC report.

Two years ago, just 47 voting rights suits were filed in federal courts during the same period.

Pandemic cases lead the increase

Sophia Lin Lakin, the deputy director of the American Civil Liberties Union’s Voting Rights Project, said the increase in litigation is also reflected in state court filings across the country. The spike, she said, is almost entirely driven by the pandemic and concerns about people’s ability to vote safely.

“Obviously, it’s a result of a couple of things, the biggest one being COVID,” Lakin said. In addition, “there’s been some sort of reactive litigation in response to reforms that have been passed,” some of those unrelated to the virus.

Lakin said in a typical big election year, the ACLU would probably bring five or six election-related cases in the lead-up. This year, the organization has filed more than two dozen cases since April, earlier in the pandemic.

“That’s a huge difference that’s largely been driven by the need to kind of push states along to adopt or be ordered to adopt common sense solutions to voting during this once-in-a-century pandemic,” she said.

In addition to efforts by the ACLU, other voting rights organizations and the Democratic Party to expand voting rights and make it easier to vote during the pandemic, lawsuits filed by the Republican Party and the Trump campaign have sought to curtail those efforts on the grounds they could make voting more vulnerable to fraud.

The courts have been handing down mixed rulings, Lakin said. But many cases are resolved through settlements, consent agreements or by state officials enacting the requested changes, making the litigation moot.

Some case results will linger past the pandemic

And while some of the litigation seeks changes just for the pandemic, some of the resulting reforms will linger past COVID-19. For example, Lakin noted, some lawsuits challenge rejections of ballots for technical issues, such as a missing date or a mismatched signature. The lawsuits seek to allow voters time and opportunities to correct any mistakes to have those votes counted.

“Those types of cases will, I assume, outlive the pandemic because those are issues that could be concerning outside that context,” Lakin said.

On the other hand, some cases address issues that are particularly concerning because of the pandemic. For instance, if a voter is required to have a mail-in ballot witnessed or notarized, that would require the voter to seek contact outside the home with individuals who could expose the voter to risk of infection. While these requirements might be considered an inconvenience in ordinary times, they could rise to unconstitutional barriers to voting during the pandemic, Lakin said.

Social distancing and voting

One of those cases was brought by the ACLU in Alaska. As the ACLU wrote in its summary of the case, “No one should have to break social distancing recommendations to vote.”

The Alabama case involved challenges to three provisions of the state’s election laws: the requirement that a notary or two witnesses sign absentee ballot affidavits, the requirement that absentee voters submit a copy of their photo ID with an absentee ballot application and the “de facto ban on curbside voting,” which is normally reserved for people who have physical disabilities.

The plaintiffs in that case argued that these provisions forced voters to risk exposure to COVID-19 in order to vote.

As Kallon wrote in his 197-page ruling, “Without this relief, the plaintiffs believe voters will face an impossible choice between jeopardizing their health by engaging in person-to-person contact they would not otherwise have or sacrificing their right to vote during the COVID-19 pandemic.”

Kallon quoted one witness, Howard Porter, a Black man in his seventies: “So many of my (ancestors) even died to vote. And while I don’t mind dying to vote, I think we’re past that – we’re past that time.”

While the state argued that the challenged provisions were necessary to preserve the legitimacy of the election and prevent voter fraud, Kallon disagreed, finding that the “plaintiffs have proved that their fears are justified.”

The challenged legal requirements, if imposed during the pandemic “unduly burden the fundamental Constitutional rights of Alabama’s most vulnerable voters and violate federal laws designed to protect America’s most marginalized citizens,” the judge added.

The judge suspended the legal provisions but emphasized that his ruling doesn’t undermine their credibility outside the pandemic or beyond this year’s Nov. 3 election.

Georgia district has the most federal voting lawsuits this year

According to the TRAC report, three federal districts had the highest number of federal voting rights lawsuits filed this year:

Northern District of Georgia where a total of 15 cases have been filed. The Atlanta Journal-Constitution reports that courts there are hearing “cases over voter registration purges, long lines, ballot postage, paper ballots, voter registration backups and election security.”
Eastern District of Michigan (Detroit) with 13 voting rights lawsuits this year. According to the Brennan Center for Justice, the cases brought in that district include a case challenging laws, including one that makes it a crime to hire a motor vehicle or other conveyance for taking voters physically unable to walk to an election. A court invalidated that restriction, but the ruling is being appealed by the state legislature.
Western District of Texas (San Antonio) with 10 cases this year. Among the cases in that district was one brought by parties, including the Texas College Democrats, challenging a new law limiting county election officials’ ability to open early voting locations with flexible hours, according to the Brennan Center. That case was dismissed.

The TRAC report said when examined relative to population the district with the most cases was the District of Columbia with six cases, followed by Maine, with five cases, and the Middle District of Louisiana, with three election-related federal lawsuits.

Contact Elaine Silvestrini at Elaine@legalexaminer.com. Follow her on Twitter at @WriterElaineS.