State Courts File Astronomical Number of Lawsuits Ahead of Midterms | Analysis

By Miriam Seifter and Adam Sopko

The run-up to Election Day is often a controversial time.

In recent years, it has also become a contentious time – parties are increasingly turning to the courts to resolve disputes over voting rules.

This year, our research shows a significant increase in such lawsuits occurring in the state court system and challenging every step of the electoral process – whether it’s whether candidates or ballot initiatives fulfill the requirements to be on the ballot, what address information must be completed in order to accept mail-in ballots. It also extends to specific procedures for county clerks or poll watchers during voting.

This increase in state litigation paints a mixed picture. As scholars of state courts and constitutions, we have studied the crucial role of state courts in safeguarding elections and democracy.

State courts have made important decisions — for example, protecting the vote and rejecting extreme partisan gerrymandering — rooted in the distinctive Democratic provisions of state constitutions.

But the current volume of state election litigation also has the potential to derail the safeguards that state courts can provide. When every aspect of an election becomes a trial, negative effects can ensue, including destabilizing elections, already overburdened courts, and significant costs to states.

Numbers

In 2020, electoral litigation reached a new record, with hundreds of lawsuits filed around the presidential election.

But experts like law professor Rick Hasen have observed that it’s too early to tell whether the surge in lawsuits in 2020 was a trend or an aberration. One potential explanation was that the pandemic and former President Donald Trump’s polarizing candidacy fueled the peak of 2020 and that prosecutions would decline in coming years.

Two years later, a different picture is emerging.

The total volume of pre-election litigation has fallen somewhat — a smaller drop than you would expect in a non-pandemic, non-presidential election. Litigation in federal courts has dropped precipitously, falling to less than half of its presence in 2020, according to our research.

But in state courts, rather than declining, pre-election lawsuits have increased. Part of the increase is due to the expected conflict surrounding the post-2020 redistricting process. Most interestingly, we are seeing a continuation or increase in disputes over “election mechanics” – lawsuits challenging who, what, where and how to vote, even when there is no new virus throwing a unforeseen key in these mechanisms.

We emphasize that these numbers are provisional as of mid-October and are only estimates – and likely underestimates. State courts are notoriously hard to find; there is no central clearinghouse for information on prosecutions or state decisions. Our counts are based on searches in the LexisNexis legal database. Our full methodology and counts are posted on our website.

State courts and their role in democracy

The growing interest in state courts has potential benefits. State courts are a crucial line of defense for free and fair elections.

As one of us has explained elsewhere in her work with jurist Jessica Bulman-Pozen, all 50 state constitutions include explicit pro-democracy provisions – a “democracy principle”, for short – including many clauses without express federal consideration.

These resources make state courts more promising places to protect democracy than the United States Supreme Court has been recently. Recent court rulings have limited options for protecting democracy, including refusing to hear partisan complaints of gerrymandering and limiting the scope of the Voting Rights Act, which prohibits racial discrimination in voting.

In contrast, recent decisions by state courts across the country have applied the principle of democracy.

For example, state courts have upheld laws allowing mail-in voting, imposed new remedies against extreme partisan gerrymandering, and preserved the people’s ability to change their state’s constitution.

(A University of Pennsylvania student helps register another to vote during a campus election campaign on August 31, 2022. Michelle Gustafson for The Washington Post via Getty Images).

A closer look at this year’s cases – so far

Yet these important pro-democracy decisions are only part of the larger picture of litigation, the most salient feature of which is its volume.

The largest number of lawsuits relate to whether a candidate can properly appear on the ballot. Such “ballot access” lawsuits are long-running and typically involve candidates arguing over whether they or an opponent have met petition signatures, residency or other administrative requirements.

The other most important categories, and we believe the most concerning, include election administration and absentee voting – issues that are often mechanical, even prickly.

In Wisconsin and Pennsylvania, for example, several lawsuits are challenging whether mail-in ballots can be counted if they omit part of the voter’s address or date, as well as the eligibility of “healing.” ballots” – allowing poll clerks to contact voters to correct technical errors on their mail-in ballot.

In Arizona, the Republican National Committee and state affiliate filed two lawsuits against Maricopa County — and its Republican leaders — arguing that the county failed to explain why it didn’t hire an equal number of Democratic and Republican election workers.

In Michigan, two cases filed by Republicans challenge rules governing poll watchers, including their ability to use cellphones. In Ohio, a candidate for secretary of state argues that election observers should have access to voting machine software and source code.

Finally, another important slice of cases concerns ballot initiatives, a means of legislating directly by voters. Some of them, like an unsuccessful major challenge formatting Michigan’s abortion initiative, are trying to keep a measure off the ballot. Others are debating the charges weighing on the ballot initiative process.

The pronounced partisan cleavages are partly at the origin of the increase in disputes and give approximate patterns. As legal scholar Derek Muller has noted, the overall increase in election disputes “is decidedly bipartisan.” Both sides have been active in redistricting and ballot access cases.

But when it comes to the administration of elections, parties have tended to make different claims. Democrats and their allies have tended to take issue with the new voting restrictions. A network of right-wing litigants focused more on getting some votes counted. Steve Bannon has vowed to “judge every battle” in an effort to “take control of the electoral apparatus.”

Large silver boxes are stacked on a table in a room, with two people watching them in the background.
Election workers in Clark County, Nevada, examine mail-in ballot boxes on October 20, 2022 (Ethan Miller/Getty Images).

The pitfalls of so many trials

This hyperlitigation has drawbacks.

First, a flood of electoral disputes can undermine voter confidence in the electoral system. Disputes over every detail of the electoral process lay the groundwork for false narratives or later challenges to the validity of an election.

And while courts that serve as a safety net on key election issues can boost voter confidence in elections, some researchers worry that a deluge of lawsuits alleging election irregularities could undermine that confidence. Moreover, by inserting the courts into electoral administration, hyperlitigation can be accompanied by efforts to sow doubt in the legitimacy of the courts.

These challenges to the logistical aspects of the election align with a broader strategy to subvert the electoral system by overwhelming it – including through “bogus checks”, massive challenges to voter eligibility and frivolous demands for open files related to the elections.

Chaos may be the point.

The flood of election disputes also imposes considerable financial costs on state governments. Pennsylvania spent more than US$3.3 million in 2020, a presidential election year, to litigate election-related cases. He expects to spend at least as much or more this year.

Similarly, Montana’s secretary of state spent more than 10 times its budget on election litigation in 2022.

Finally, hyperlitigation weighs on the state’s court system, which hears more than 90 percent of all cases filed each year and is already under strain from pandemic-induced backlogs. Fulton County, Georgia, for example, has racked up around 200,000 cases during the pandemic, and states like North Carolina, Pennsylvania and Wisconsin are also facing significant backlogs. High volumes of election disputes prevent already overburdened courts from carrying out their essential public functions.

Although researchers have suggested ways to reduce election disputes, the trend is likely to persist, at least in the short term. State courts have a necessary role to play in safeguarding democracy. But at current levels, election disputes present serious problems as well as solutions.The conversation

Miriam Seifter is associate professor of law and co-director of the State Democracy Research Initiative at the University of Wisconsin-Madison. Adam Sopko is an attorney with the State Democracy Research Initiative at the University of Wisconsin Law School. They wrote this piece for The Conversation, where it first appeared.

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