Throughout American history judges have generally to avoid getting involved in political questions, including litigation about elections. They followed Supreme Court Justice Felix Frankfurter鈥檚 famous to avoid 鈥渆mbroilment鈥� in 鈥渢he political thicket鈥� of 鈥減arty contests and party interests.鈥�
This tradition began to in the 1960s, when courts took up cases involving . And since the Supreme Court鈥檚 2000 decision, which effectively decided that year鈥檚 presidential election, political parties have increasingly turned to the courts in search of electoral advantage.
Prior to 2000, an average of 96 election law cases brought every year in state and federal courts. By 2004, that average jumped to 254, most of them filed at the state level.
This year, the that as of Oct. 15, 365 such cases have been filed in 44 states.
Many of those cases arise from state efforts to respond to the difficulties of campaigning and voting during the COVID-19 pandemic. Democrats generally have supported efforts to , such as in Michigan, where they in getting the courts to extend the period during which late-arriving mail ballots could be legally counted. Republicans generally have opposed those efforts.
When The Voting Happens
This year鈥檚 election-related litigation began to emerge in the spring as states tried to cope with the pandemic鈥檚 first wave during the political primary season.
Those cases fell into two major categories. Some were filed to try to change the date when people voted in presidential primaries. Others focused on how people voted in those primaries and the general election.
Sixteen states the dates of their primaries, and most did so without resorting to litigation.
Nonetheless, some states faced lawsuits over the timing of presidential primaries, filed by political candidates and public officials, including in New York and Wisconsin.
In April, Andrew Yang, then a Democratic presidential candidate, the New York State Board of Elections after it effectively canceled the Democratic presidential primary. He argued that doing so was illegal since he already had met the requirements for having his name to appear on the ballot. One month after the suit was filed, a judge agreed with Yang and the state to proceed with its presidential primary.
Wisconsin proved to be a particularly fertile ground for litigation over its April primary. In one case, the Wisconsin legislature prevailed in the governor鈥檚 executive order postponing in-person voting.
In another Wisconsin case, the U.S. Supreme Court sided with the Republican National Committee and the state party when it a plan to extend the period to return absentee ballots in the primary election.
How The Voting Happens
In cases concerning the ways people could vote, Democrats in Kansas to force Secretary of State Scott Schwab to implement a law permitting voters to cast ballots from any polling station within their home county. Schwab argued that the complexity of developing necessary administrative regulations prevented him from doing do so in time for this year鈥檚 election.
A state court judge dismissed the suit but said that county officials could, if they wished, implement the Kansas on their own without waiting for the state to act.
In Ohio, a federal judge also an American Civil Liberties Union suit seeking to extend the deadline for absentee voting for the state鈥檚 presidential primary and move from in-person to universal mail balloting. The plaintiffs claimed that the state鈥檚 inefficient absentee-voting system would disenfranchise people through no fault of their own unless the deadline was changed and that in-person voting during the pandemic would pose a health risk.
Focus On Mail-In Ballots
Many of this year鈥檚 election-related cases specifically on mail-in ballots. This is not surprising given President Donald Trump鈥檚 well-publicized on voting by mail.
Some of this litigation has been brought to opportunities to cast that kind of ballot or to ease the requirements for doing so. Other cases have been by groups opposing such changes and raising concerns about voter fraud.
Recent rulings in some of those cases have made voting by mail more difficult; others have made it easier.
In the first category, the U.S. Supreme Court on Oct. 5 that South Carolina could require people voting by mail to have another person sign their ballot as a witness. However, over the objection of Justices Samuel Alito, Neil Gorsuch and Clarence Thomas, the court declined to invalidate the more than 20,000 ballots that had been cast prior to its ruling.
Three days later, in a victory for Wisconsin鈥檚 Republican Party, a federal appeals court that state鈥檚 requirement that in order to be counted, mail-in ballots must be in the hands of election officials by 8 p.m. on Election Day.
But, also on October 8, Justice Elena Kagan a request from Montana Republicans to block some counties from proactively mailing ballots to voters starting the next day.
In another victory for supporters of mail balloting, a federal judge in Pennsylvania a lawsuit filed by the Trump campaign seeking, among other things, to block the use of drop boxes as receptacles for mail ballots.
Full Employment For Election Lawyers
November 3 is litigation to resolve election-related disputes. In fact, both the and campaigns have assembled armies of lawyers who will be ready to bring lawsuits in the election鈥檚 aftermath.
President Trump already has that he expects the Supreme Court to again resolve a contested presidential election.
For someone who the complex intersections of politics and law, the use of litigation to resolve electoral disputes that we are seeing this year is a reminder of what the famous French aristocrat and author Alexis de Tocqueville early in the 19th century: namely, that 鈥淪carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.鈥�
Nonetheless, when courts and judges take sides in cases that shape the outcome of a hotly contested election, they open themselves up, as Frankfurter warned, to that they are making purely partisan decisions rather than strictly following the law. That is why public confidence in the Supreme Court in the aftermath of its Bush v. Gore decision.
Whatever decisions judges make this year, the rush to the courthouse to shape the 2020 election will pose real challenges for their legitimacy, which ultimately on the public鈥檚 belief that they are not simply political actors.
And if the Supreme Court again decides who becomes president, it may further weaken its already with the American public and deepen the divide in an already dangerously polarized nation.
is associate provost, associate dean of the faculty and the Cromwell Professor of Jurisprudence and Political Science at .
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