The Election Is Already Under Way in America’s Courts

And the two parties—and the judges they have appointed—are on completely divergent legal paths.

An illustration of a check box made up of legal columns
Getty / The Atlantic

Although the election is not technically until November 3, election season is already well under way—most significantly in the dozens of election-litigation cases that are determining how people can vote, whether they can vote, and whether their votes will be counted. In the many cases that have already been decided, a clear pattern has emerged: Republican litigants seek to limit the franchise, and Republican-appointed judges often allow them to do so; Democratic-appointed judges favor Democratic litigants who seek to expand it. While election law and voting rights might seem to have become nakedly partisan, only one side is actually favoring democracy.

Each state establishes the rules and procedures for how its residents vote. Those rules are subject to the constraints imposed by the U.S. Constitution, as interpreted by the courts. This election cycle is also complicated by a pandemic that creates all sorts of challenges to holding the election, and by a president, backed by his political party, who seems intent on making voting harder.

So far, the litigation has mainly been of two kinds. One kind seeks to make voting easier and to ensure that more people are able to vote. Texas Democratic Party v. Abbott challenged a Texas law that permits voters over the age of 65 to vote by mail for any or no reason, but requires voters under the age of 65 to provide an excuse in order to vote by mail. Texas has stated that risk of exposure to the coronavirus does not qualify as an excuse. Republican National Committee v. Democratic National Committee involved a challenge to Wisconsin’s cut-off requirements for absentee ballots and absentee-ballot requests. People First of Alabama v. Merrill involved a challenge to Alabama’s prohibition on curbside voting and the state’s requirements that a notary or two witnesses sign absentee ballots and that voters submit a copy of their photo identification. Finally, Raysor v. DeSantis was a challenge to Florida’s statutory requirement that persons with felony convictions pay all court costs and fees before regaining their right to vote under the state’s constitutional amendment.

While these lawsuits seek to extend the right to vote, others seek to restrict it. In Donald J. Trump for President v. Murphy and Donald J. Trump for President v. Cegavske, courts were asked to invalidate New Jersey’s and Nevada’s expansions of voting by mail and extensions for counting ballots. RNC v. Newsom also involved a challenge to a state’s vote-by-mail expansion and Donald J. Trump for President v. Boockvar involved a challenge to Pennsylvania’s use of drop boxes to collect mail-in ballots. Curtin v. Virginia State Board of Elections concerned Virginia’s adoption of no-excuse absentee voting.

The case captions tell much of the story. Republican Party officials, including those in President Trump’s reelection campaign, are trying to stop states’ efforts to expand voting—they are suing to prevent mail-in voting, extensions for counting ballots, and drop-box voting, and intervening in lawsuits in order to defend Republican-led states’ ability to enforce voting restrictions in the midst of the pandemic. The Democratic Party and its voters and interest groups, by contrast, are using litigation to make voting easier for more people to do safely, and not in person, in the midst of the pandemic.

Many of the rulings also break down along these lines. Two district court judges who were appointed by President Barack Obama issued rulings in the Alabama and Wisconsin cases that would have prevented states from enforcing some of their voting restrictions during the coronavirus crisis. In the Florida case, a district judge appointed by President Bill Clinton invalidated the state’s requirement that recently released persons pay court fines and fees before voting when the state would not tell them how much they owed. In the Alabama and Wisconsin cases, the five Republican-appointed justices on the Supreme Court allowed the states to enforce voting restrictions, but the Democratic-appointed justices would not have. In the Florida case, the Republican-controlled U.S. Court of Appeals for the Eleventh Circuit upheld Florida’s pay-to-vote scheme. A majority of the Republican-appointed justices on the Supreme Court also allowed Florida to enforce the scheme in the primary election, whereas a majority of Democratic-appointed justices would have prohibited the state from doing so. In the Texas case, a Democratic-appointed district judge invalidated Texas’s law prohibiting voters under the age of 65 from voting without an excuse, but a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, with two Republican-appointed judges, put that opinion on hold and allowed Texas to enforce the law, because they concluded that the law was likely constitutional. The Pennsylvania Supreme Court, which has a majority of justices elected as Democrats, rejected an attempt to limit late ballots and drop boxes, and a Michigan state-court judge appointed by a Democratic governor expanded the period for counting mail ballots.

Of course, Democratic-appointed judges sometimes reject claims to expand voting. One of the judges on the Fifth Circuit panel was nominated by President Obama, and although he would not have upheld the Texas law, he instead directed that the suit proceed first in state court. Sometimes Republican-appointed judges affirm laws or lower-court decisions that expand voting. The Supreme Court kept in place a lower-court ruling suspending a requirement that witnesses or a notary witness the completion of absentee ballots. However, in that case, the state election officials did not defend the law, and even then, Justice Clarence Thomas, Justice Samuel Alito, and Justice Neil Gorsuch would have set aside the lower-court order. Yet these examples are rare, and the overall trend in such cases is overwhelming.

These are merely the lawsuits happening before the election; after the election others will all but surely follow. The post-election lawsuits may include variations on the Court’s infamous decision in Bush v. Gore, which involved a challenge to Florida’s manual recount. Other cases might include challenges to rejected ballots. In the primaries this year, more than 534,000 mail-in ballots were rejected for various reasons, including the sometimes dubious suggestion that signatures did not match or that the markings were unclear. Research shows that Black and Hispanic voters’ ballots are much more likely to be rejected than those of white voters. And some lawsuits could challenge rejected ballots or efforts to count mail-in ballots after Election Day. Given the millions of people who might vote by mail this year, and the fact that many states do not allow mail-in ballots to be counted before Election Day, most of those ballots will not be counted by the end of Election Day or even the day after.

Any one of these lawsuits is significant and has the potential to sway the election in swing states. The Florida lawsuit in particular affects whether 750,000 people can vote in a state that President Trump won by 115,000 votes. Altogether, there is no doubt that these cases could decide the election. Coupled with the pattern of partisanship so far, this means that a lot will ride on which judges hear those cases, and which party’s president appointed them.

This is why in his speech at the Democratic National Convention, President Obama pleaded with people to “make a plan” to vote, and vote early if possible—now, if possible. The election system and basic pillars of democracy such as voting rights have become prey to hyperpolarization, with one party bent on degrading democracy for its own success.