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The ballot boxes and the courts, where 2020 election is being fought

Republican and Democratic officials have been engaged in legal battles across the country over election related issues tied to changes wrought by the pandemic.

San Francisco Department of Elections voting clerk Matty Makahiya places a ballot into a ballot box dropped off by a voter at a drive-up area in San Francisco, Tuesday, Oct. 20, 2020.
Jeff Chiu, Associated Press

The 2020 general election isn’t only being fought through the media and on ballots. The Democratic and Republican parties are also waging war in the nation’s courts on how the election should be managed during the coronavirus outbreak that shows no signs of calming before Nov. 3.

Voting goes to court

“If you live in America somewhere, chances are good you’ve seen a piece of election litigation in your state,” Justin Levitt, an attorney and Loyala Law School professor, said In an interview on The Washington Post podcast “Post Resports.”

“They’re clustered unsurprisingly in states that are viewed as battleground states,” he said. States like Michigan, Pennsylvania and Texas may have more election related lawsuits than clearly red or blue states, “but it’s really all over the place,” Levitt added.

He grouped the litigation into four categories:

  • Who or what is on the ballot. But since ballots have already been printed and in many states submitted, those cases have either been decided or are moot.
  • Mail-in voting procedures. The coronavirus pandemic prompted states to ramp up their mail-in voting procedures and most of these fights are over.
  • The third group has to do with the process of in-person voting, such as “curbside voting procedures, which precincts are open, where there’s PPE (personal protective equipment) available. And these, too, have mostly been settled.
  • “The fourth category is pushback against executive action or legislative action changing the procedures in light of the pandemic,” said Levitt. Many of These cases are still pending.

This week, one of these cases made it all the way to the U.S. Supreme Court.

The Supreme Court

The Supreme Court of the United States ruled on several of these cases this month.

On Wednesday, the Supreme Court sided with Alabama to uphold a state ban on curbside voting, Politico reported. Curbside voting would have prevented perspective voters from waiting indoors and inline. Chief Justice John Roberts joined justices Clarence Thomas, Samuel Alito Jr., Neil Gorsuch and Brett Kavanaugh in siding with Alabama, while more liberal leaning justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.

Earlier in the week, justices ruled that election officials in Pennsylvania will be allowed to count some mail-in ballots up to three days after the Nov. 3 election. The court was split on when it let stand a Pennsylvania Supreme Court ruling that will let state election officials accommodate mail-in ballots that were postmarked on or before Election Day, The New York Times reported. Absent from the ruling was written opinions from any of the justices explaining their rationale.

The state high court decision cited Postal Service delays and increased mail-in voting requests — as seen in much of the country — in its original determination to allow more time to count the ballots, reported CBS Pittsburgh’s KDKA2.

In the 4-4 tie, Roberts joined the liberal wing of the court.

According to NPR, Pennsylvania and Wisconsin are the only swing states where ballots are not processed or counted until Election Day.

“Pennsylvania voters deserve clarity and confidence in our election process — and tonight’s ruling from the United States Supreme Court makes clear our law will stand despite repeated attacks,” said Pennsylvania Attorney General Josh Shapiro in a statement.

In early October, the Supreme Court reinstated a South Carolina rule that required mail in ballots to have a witness signature, according to Politico. The decision overturned a lower court’s ruling that the witness requirement created a health risks during a pandemic.

Kavanaugh, a recent Trump appointee, wrote that the Supreme Court ““has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election.” According to Politico, no additional justice publicly supported Kavanaugh’s reasoning.

“This sends a strong signal that the Supreme Court is going to be wary of federal court ordered changes close to the election, even those done to deal with burdens on voters created by the pandemic (like the need to get witness signatures),” wrote University of California-Irvine law expert Rick Hasen, Politico reported.

Republicans for election integrity

In their “Protect The Vote” effort, the Republican National Committee and the Trump campaign say they are “aggressively fighting back against the Democrats’ assault on the integrity of our elections,” said GOP Chairwoman Ronna McDaniel.

The RNC says it is doing battle in 23 different states where the organization has filed a range of documents from amicus briefs to actually suing state governments about election related issues.

Democrats have also filed lawsuits in what they say is an effort to expand access to voting during the pandemic.

In California, a state with 55 electoral votes that will almost certainly go for Democratic presidential nominee Joe Biden, the “Protect The Vote” website lists four different cases where Republicans have sued the state. In Florida, Ohio and Pennsylvania, swing states with a high number of Electoral College votes, the RNC says it is “intervening” in multiple cases.

The Republicans list no legal conflicts in Utah.

Is it voter fraud or not?

Speaking at rally in Arizona Monday, President Donald Trump said “they found 50,000 (ballots) in a river. They found 53,000 in a creek. They found many in a garbage can that happened to be from the military. ... and they all had the name Trump on them.” Both of the allegations have been proven false, according to ABC News and Reuters.

During the first presidential debate, the president warned that during this election there “is going to be fraud like you’ve never seen,” citing an instance were around 1,000 voters in Virginia received two ballots, The Associated Press reported. But safe guards already in place in Virginia would have prevented voters from voting twice.

Research has shown that voter fraud is rare and often inconsequential when it does happen. The U.S. government says voted fraud falls into six categories: bribery, illegal voter registration, tampering with voting machines or ballot boxes, voter impersonation, vote buying and false advertising about the election date or how to vote,

Last week, Politico reported that the California Republican Party had set up its own nongovernment ballot drop boxes at locations around that state to accommodate GOP voters.

“California law allows third parties to collect completed mail ballots from voters and then deliver them to election officials. Republicans have long derided that practice as ‘ballot harvesting,’ but they now say they are simply matching Democrats by engaging in the tactic with drop boxes in Republican-friendly locations,” according to Politico.

The drop boxes were found at churches, gun shops and Republican Party office locations in parts of California with competitive House races, the outlets reported.

More than 50 ballot drop boxes were illegally labeled “official,” a crime the state Republican Party latter admitted to, The New York Times reported.

The state Republicans agreed to “no longer deploy these unstaffed, unsecured and unofficial ballot drop boxes,” said California Secretary of State Alex Padilla. The California GOP also said the boxes would be attended, ballots would be secured under legal guidelines and the boxes would not be labeled as “official,” according to Politico.

“It’s a stupid thing that they’re doing right now with those ballot boxes,” said former California Gov. and actor Arnold Schwarzenegger, a Republican. “I think it’s just Mickey Mouse stuff that, you know, has serious kind of effects. And I think that what they should do, really, is offer people hope and make everyone participate and make everyone be able to vote and those kind of things, rather than make those fake ballot boxes.”