Election litigation may hit a record in the 2020 campaign season
I have been tracking election-related litigation brought across the country since 1996. That was four years before Bush v. Gore, in which the Supreme Court halted litigation over Florida’s vote recount in the 2000 election, thereby putting George W. Bush in the White House. These lawsuits range widely, including fights over which candidates can get listed on the ballot; disputes over campaign finance rules; and arguments over the legality of lines drawn to define congressional districts.
In my 2012 book, “The Voting Wars,” I noted that we have seen twice the amount of election litigation on average in each of the years after 2000 compared with the average amount of litigation in each of the years from 1996 through 1999.
I recently updated my research for my new book, “Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.” As you can see in the figure below, U.S. election lawsuits each year have nearly tripled since the end of 1999, from an average of 94 cases per year before Bush v. Gore to an average of 270 cases after. Election litigation was up 23 percent in 2016 compared with 2012. The midterm elections of 2018 saw 394 cases — the most at least since 1996, and likely ever.
My lawsuit database reveals all kinds of disputes, but I expect that many of this election season’s cases to be over the ground rules for the 2020 election. These include, for example, the rules for removing from the voter registration rolls the names of people who have not voted in recent elections, or rules for processing and counting absentee ballots. As a result, we can expect a record number of election lawsuits this year.
Why are election lawsuits increasing?
First, in close elections, the rules of the game matter, and the parties know it. Whether and how provisional ballots are counted can affect who wins — and so it’s worth fighting over those rules.
Second, the Supreme Court has signaled that it does not like courts to change election rules as the election gets closer. The closer we get to the election, the more skeptical the courts are of court-ordered election changes. Legal scholars call this the Purcell Principle. Knowing that, Democrats have been bringing more cases earlier in the campaign cycle.
Third and finally, in 2014, federal campaign finance rules changed to allow political parties to raise lawsuit-related money separately. The change, engineered by a lawyer named Marc Elias who brings many such suits, means that both parties have more funds for such litigation
For example, consider recent litigation Elias brought in the state of Michigan on behalf of Priorities USA, a pro-Democratic PAC. The suit challenges a Michigan law that prevents anyone from offering free rides to polling places on Election Day. According to the lawsuit, in 2016, Uber offered free or discounted rides to the polls in every state but Michigan because of this ban. The suit also challenges a Michigan law that does not allow people to collect and deliver completed absentee ballots, a ban on so-called ballot harvesting. Democrats are claiming that both laws are unconstitutional, and Republicans are seeking to intervene to defend these laws. That’s hardly surprisingly, since Michigan’s attorney general, Dana Nessel, is a Democrat. The party’s filing suggests that Republicans do not trust Nessel to aggressively defend the law.
How will these lawsuits affect the 2020 elections?
We really do not know. Even in a close election, it is very difficult to measure how laws and regulations affect election turnout or results. Say, for example, that the Michigan federal district court holds that people have a constitutional right to collect absentee ballots from strangers in Michigan. Even if campaign volunteers then collect many absentee ballots, we could not easily know how many would still have been turned in otherwise.
But even though the political parties don’t know which rules might affect the outcome, they have every incentive to litigate now, just in case it will win them even the slightest political advantage. There is little downside to suing if someone is going to pay for it. And whatever precedents such lawsuits set in this election could affect what happens in future elections as well.
“Vote early and vote often” was, once upon a time, supposedly the slogan for corrupt party organizations. That approach may be gone, but “sue early and sue often” is likely to stay with us for some time to come.
Richard L. Hasen (@rickhasen) is professor of law and political science at University of California in Irvine and the author of “Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy” (Yale University Press, 2020).