The Election Is Already Under Way in America’s Courts

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.

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