Mail Voting Litigation in 2020, Part V: Efforts to Halt Vote-by-Mail Expansion

This post is the fifth of a five-part series on litigation about mail voting during the 2020 general election. This series is part of Lawfare’s collaboration with the Stanford-MIT Healthy Elections Project.

The potential disruption of in-person voting because of the coronavirus pandemic has prompted varied reactions from state governments. Some states, such as California, Nevada, New Jersey and Vermont, announced plans to send mail-in ballots to all registered voters. Other states, such as Connecticut, expanded the list of acceptable excuses for using absentee ballots to include fear of the coronavirus. But not everyone supports the expansion of vote-by-mail or relaxation of rules concerning the use of absentee ballots. In several states, including potential battleground Texas, state officials have refused to expand vote-by-mail access. And just as litigation has sought to expand opportunities for remote voting, litigation has also sought to restrict it.

This post—the last in a five-part series on vote-by-mail litigation—discusses the legal challenges to the expansion of mail voting. These include challenges to state statutes or regulations that authorize the automatic delivery of ballots or ballot applications to all registered voters, relax regulations governing the collection and delivery of mail ballots by third parties, and eliminate witness and notary requirements.

In lawsuits across the country, litigants are presenting two central arguments against vote-by-mail expansion policies. First, opponents claim that expanded mail-in voting will lead to fraud, thereby diluting the value of legal votes, in violation of the First and Fourteenth Amendments. (There is no evidence that vote-by-mail ballots are particularly susceptible to fraud.) Second, opponents argue that state officials lack the legal authority to change the rules related to voting by mail and that major changes must be left to the legislative branch.

Fraud and Vote Dilution

Plaintiffs in Pennsylvania, Nevada, Virginia, New Jersey, Illinois, Montana, Hawaii and Texas have challenged state and county attempts to expand access to mail ballots, arguing that mail voting will increase the incidence of voter fraud. Six of these eight cases are still pending. The plaintiffs in Virginia voluntarily withdrew their case before a ruling on the merits, while federal judges in Nevada and Vermont dismissed the lawsuits on standing grounds, finding that the plaintiffs had not alleged a particularized injury, because any potential vote dilution would affect all voters, not just the plaintiffs in the lawsuits. Although the federal case in Nevada was dismissed, a similar case continues in state court.

The lawsuits challenging mail voting follow a consistent formula. The plaintiffs assert that mail ballots are inherently prone to fraud and that the state has failed to establish basic minimum safeguards to ensure ballot reliability. The complaints often include anecdotal references to instances of voter fraud at the state or local level, using examples from within and outside the state where the suit is filed. The complaints then argue that a spike in fraudulent mail-in ballots will dilute validly cast votes, thereby depriving citizens of their right to vote under the First and Fourteenth Amendments.

The Pennsylvania lawsuit is a prominent example of this pattern of legal argument. There, in federal court, the Trump campaign alleges that mail-in voting “is the single greatest threat to free and fair elections.” The complaint takes aim at the state’s recently passed mail-in voting law, Act 77, which adopted no-excuse mail-in voting for all qualified voters. The complaint quotes from a 2005 report prepared by the Commission on Federal Election Reform, which was co-chaired by former President Jimmy Carter and former Secretary of State James A. Baker, as observing that “[a]bsentee ballots remain the largest source of potential voter fraud.” The complaint also alleges that Pennsylvania has a history of fraudulent elections and that mail ballots will create administrative difficulties and encourage hard-to-detect “ballot harvesting.”

Lawsuits in other states have followed a similar playbook. In federal court in New Jersey, the Trump campaign is challenging Executive Order 177 (codified by the legislature as A4475), which directed the state to automaticallyBecome a supporter of IT Security News and help us remove the ads.