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.