Parties duel in the courtroom over 2024 voting methods

The vice presidential nominees of both parties landed in Arizona yesterday to usher in the first day of early voting—and to stump for as many early votes as possible. At a rally in Tucson, Republican vice presidential candidate Sen. J.D. Vance introduced a GOP-led election integrity team for Arizona. The Trump campaign, along with the Republican National Committee and Arizona GOP, appointed Trump adviser Harmeet Dhillon to spearhead the team. The goal? File lawsuits.

“We have defended Arizona’s elections in numerous cases this cycle, including proof of citizenship requirements, all the way to a victory in the Supreme Court of the United States,” a Trump-Vance press release said. “In the coming days, the RNC and AZGOP will file new litigation to secure Arizona’s elections, as we are committed to protecting the vote and defending Election Integrity.”

President Joe Biden won Arizona by just 10,760 votes in 2020. Republicans claimed that widespread fraud changed the outcome of the election in the state and also requested recounts and audits in Pennsylvania, Georgia, and Michigan. They argued that these actions would flip enough electoral votes to install former President Donald Trump in a second term. This year, both parties are taking to the courts ahead of Election Day, and both say their arguments will ensure a fair election. While Democrats push to expand ways to vote, Republicans are filing lawsuits to close what they see as loopholes wide enough for fraud.

In the last presidential election, roughly 89 percent of all Arizona ballots were cast via mail, turned in at drop boxes, or delivered to election offices. It was a pandemic story that played out across the country. More than half of Pennsylvania’s voters mailed in a ballot in 2020. In Georgia, more than 1.3 million voted by mail, accounting for just more than 74 percent of ballots. And in Michigan, 85 percent of voters, more than 2.8 million, cast absentee ballots.

Republicans are increasingly advocating for mail-in or absentee voting this year while also scouring the states for practices that could encourage abuse of the system. Republican National Committee Chairman Michael Whatley said his organization is behind more than 120 pending lawsuits across 26 states.

Michigan

For the 1.5 million voters who requested mail-in ballots as of July, casting their vote could look different than in past elections. In the past two years, the Democratic-majority legislature has passed dozens of election law changes in accordance with Proposal 2, a 2022 citizen-referred constitutional amendment to update the election code. The proposal allowed early voting for the first time in the state and required the legislature to set up online tracking for absentee ballots. Every municipality must have at least one ballot drop box, and election officials may start tabulating votes eight days before Election Day but may not report results until after polls close. The amendment also expanded the types of photo identification allowed at the polls and even let voters sign an affidavit if they forgot their ID.

The Republican National Committee in September filed a lawsuit against Michigan Secretary of State Jocelyn Benson, claiming that she was giving inaccurate or incomplete instructions to poll workers. Benson instructed workers to count mail-in ballots that are missing a perforated stub or do not match the corresponding poll book number as “challenged” ballots. That allows the vote to be tabulated, but the RNC argues it runs afoul of state law that mandates the election inspector match all absentee ballots to the correct voter number.

It’s a small example of a larger plan to start litigating any departures from state code ahead of Election Day.

In July, Gov. Gretchen Whitmer signed Senate Bills 603 and 604 into law. They stipulate that recounts are only allowed if the number of challenged ballots could change the result of the election. Candidates must request recounts, and the fee for doing so will be higher. The number of signatures they need to request a recount also increased.

One of the laws removed the Board of State Canvassers’ authority to investigate possible fraud. The board contains equal numbers of Democrats and Republicans appointed by their respective state parties. Now, only law enforcement and state officials may decide which fraud claims to pursue. The RNC threatened to bring a lawsuit but had not as of this week.

The Democratic National Committee has decried ongoing litigation from the RNC as “a series of meritless lawsuits … which serve only to undermine faith in our electoral system,” according to a brief filed in an earlier Michigan case.

Pennsylvania

The state Supreme Court this week declined to take up an RNC lawsuit over the practice of allowing election officials to “cure” ballots. Under new guidance from Pennsylvania Secretary of State Al Schmidt, election workers may alert a voter whose mail-in ballot is unsigned or contains some sort of fixable error before the ballot is tabulated. Republicans had hoped to block the practice, arguing that ballots should remain untouched once they are cast.

The state Supreme Court also rejected a case from left-leaning voting rights groups that attempted to reverse a requirement to toss out undated ballots.

“The court issued its opinion on undated and incorrectly dated ballot envelopes. … Petitioners then, inexplicably, waited over a year—during which time the commonwealth conducted a municipal primary, municipal election, and general primary election—to challenge the envelope dating requirement,” Pennsylvania Justice Kevin Brobson wrote in a concurring opinion. “It is what has become an all-too-common practice of litigants who postpone seeking judicial relief on election-related matters until the election is underway that creates uncertainty.”

The court applied the same reasoning in rejecting the RNC’s case, saying it was too close to the election to make immediate changes and doing so would disrupt the democratic process. RNC Chairman Whatley called the dismissal of the lawsuit over undated ballots a victory for the party. He did not comment on the ballot curing case.

“Anywhere between 1 and 3 percent of votes could be tossed because of just simple oversight,” Lauren Cristella, president of the Philadelphia-based Committee of Seventy, told WORLD. “Mistakes that the voters make that don’t actually call into question the validity of their vote or whether it’s a legitimate vote, just that they didn’t follow the rules to the letter of the law.”

North Carolina

The RNC and the state GOP sued the North Carolina State Board of Elections in August over 225,000 registered voters who did not provide proper identification. Trump won the state in 2020 by just over 74,000 votes. In the lawsuit, Republicans raised the alarm that the election board failed to require a driver’s license number or the last four digits of a Social Security number on voter registration forms, which they said could allow noncitizens to vote in the presidential election. Board members countered that the federal Help America Vote Act of 2002 did not make it clear that they were supposed to require numerical identification and that Republicans simply wanted to disrupt the voter rolls after voting had begun.

“MAGA Republicans are shamelessly attempting to sow doubt in our elections and undermine our democratic processes, laying the groundwork for Donald Trump and his lackeys to baselessly challenge election results this November,” a DNC spokesman said in a statement.

But North Carolina GOP communications director Matt Mercer argued the courts must quickly purge the rolls of affected voters rather than risk illegal votes: “It is incumbent on the board to ensure this information is collected and verified, and that’s what this lawsuit seeks to do. It comes as no surprise to us that Democrats want to make this lawsuit about anything other than the merits.”

But the courts could be running out of time, as well. The National Voter Registration Act prohibits any changes to voter rolls within 30 days of a federal election.

Georgia

In the Peach State, the Democratic Party is the primary litigant in the latest string of lawsuits. The majority-Republican Board of Elections approved two new rules in August. One allows county officials to conduct a “reasonable inquiry” before certifying the results, and another allows them to “examine all election-related documentation.” The national and state Democratic parties sued, arguing that the rules do not clarify what constitutes “reasonable inquiry” and are vague enough to allow election officials to reject valid results. Current state law requires all votes to be certified by Nov. 12. Plaintiffs argued in a bench trial last week that the last-minute changes could disrupt certification and push it past the state deadline.

Democrats are also taking a new hand count requirement to court. Last month, the same election board passed a rule that requires poll workers to count by hand all ballots cast on Election Day. Three poll workers in each precinct must separate ballots into stacks of 50 and verify that the total numbers match. They are not tasked with tallying the vote results. When the rule was proposed, Secretary of State Brad Raffensperger, a Republican, expressed concern that moving ballots from tabulating machines to several poll workers could disrupt the chain of custody. But proponents said extra verification can help voters have confidence that the machines correctly counted ballots. If there is a discrepancy in the number of ballots, the rule states election officials can take steps to fix the issue, but it does not say how.

The outcomes of the pending lawsuits could influence November’s election just as much as the ballot results. At a CNN town hall meeting earlier this year, Trump said he would accept the 2024 results “if I think it was an honest election.”