The majority of those lawsuits fall under four major questions. Here’s what they are.
1. Who gets a ballot mailed to them
Should registered voters automatically get ballots sent to them? Nine states and D.C. are doing that this year, something President Trump has cast as nefarious. But five of those states regularly held all-mail elections before the pandemic spurred more states to take it up. At least nine other states will send out applications to request a ballot.
Republicans are perhaps most aggressive in their lawsuits to stop states from mailing out ballots, but they are also fighting plans to mail ballot applications in some places. The Trump campaign and Republican National Committee are suing two states, Nevada and New Jersey.
The state of Texas is suing the state’s most populous county for sending out applications for mail-in ballots to registered voters. Illinois Republicans are suing their state for the same thing. The RNC has won initial victories in Iowa on this by stopping election officials from sending out applications with voter’s pre-filled information, arguing that those forms should be blank to avoid fraud.
Democrats and advocates for mail voting are trying to get states to expand absentee ballots by suing at least six states to lift restrictions on who can request a mail-in ballot. (Fear of getting the novel coronavirus is not a valid excuse for voting absentee in Indiana, Texas and Tennessee, for example.)
2. Whether the ballot is filled out ‘correctly’ and accepted
Filling out a ballot correctly will require voters to follow their state’s instructions exactly.
Voting rights advocates say legitimate ballots not being counted is far more likely to be a problem than widespread fraud. This primary season, more than 500,000 mailed ballots were rejected for reasons such as arriving late or for technical errors. Meanwhile, there is still no evidence of widespread voter fraud by mail. But there is evidence of a racial disparity in whose mailed ballots have been counted or rejected; in Florida, Black and Hispanic voters were twice as likely as White voters to have their ballot thrown out.
“It shows how significant the problem is,” said Wendy Weiser with the Brennan Center for Justice, which is advocating for expanded vote by mail during the pandemic and closely tracking litigation across the nation, as well as being involved in some.
So Democratic lawyers and voting rights advocates are fighting stricter laws, like ones in Michigan, that require election officials to throw out mailed applications if they don’t think the signature on the envelope matches what is on file with the state.
Democrats argue voters should have time to remedy those differences. They are suing in Arizona to allow voters who didn’t sign their ballot envelope to fix it, by requiring the state to notify voters and give them time to offer up a signature. Democrats have had success fighting similar restrictions in North Dakota and Illinois. They also just announced a lawsuit in the politically important state of North Carolina to expand the types of mistakes voters can fix, such as not having a witness sign the ballot.
Republicans are in court trying to uphold states’ laws that require election officials to toss ballots, including in Arizona, Ohio and Pennsylvania.
Democrats and voting rights advocates are also concerned about requirements in some states that voters find a witness to sign off on their ballot, arguing that’s untenable in a pandemic. Judges have been sympathetic to this, eliminating witness requirements in Minnesota and Rhode Island — the latter going all the way to the U.S. Supreme Court. And here’s what a federal court in South Carolina said about that state’s witness law: “The character and magnitude of the burdens imposed on [voters] in having to place their health at risk during the covid-19 pandemic likely outweigh the extent to which the Witness Requirement advances the state’s interests of voter fraud and integrity.”
“Courts understand those create unreasonable hurdles to voting in the time of the pandemic,” Weiser said. The exception to this might be North Carolina. The state reduced its two-witness requirement to one, but left-leaning groups are struggling in court to eliminate that last witness requirement.
3. How voters send their ballot back to the election office
The majority of states make voters pay their own postage to mail ballots. In Georgia and four other states, groups on the left are suing to make postage prepaid, according to the nonpartisan National Conference of State Legislatures.
What if your neighbor, or even a campaign volunteer, says they’re driving ballots to the local election office to drop off (and thus skip going through Postal Service)? Could they take yours?
In many states, handing your sealed ballot off to someone else is legal to varying degrees. But many on the right derisively call this “ballot harvesting” and are arguing it should be illegal. Attacking ballot collecting is a regular feature of Trump’s Twitter feed, and the RNC has tried hard to curtail laws allowing it this year. So far, they haven’t had any big wins.
But courts have overturned bans that criminalize ballot collection in Minnesota and Arizona. In Arizona, a federal court ruled the state’s law criminalizing ballot collection has “a discriminatory impact on American Indian, Hispanic, and African American voters in Arizona,” some of whom live far away from post offices and rely on others to mail their ballots for them. Arizona officials have appealed this to the Supreme Court.
Another way to drop off a ballot that more states are providing is through a ballot collection box, which is like a mailbox for ballots only. Republicans are suing in Pennsylvania to try to stop allowing unmonitored ballot drop boxes. (Some states have cameras monitoring these boxes.)
4. Whether your ballot will get counted if it arrives after Election Day
This is the biggest and most consequential question. Voting rights advocates say late ballots are by far the most frequent reason ballots get rejected. And it could get worse. The Postal Service recently told 46 states and D.C. that the agency can’t guarantee ballots will arrive on time under states’ existing deadlines for voters. Fewer than half of the states count late-arriving ballots. There are lawsuits going on to extend deadlines or keep deadlines firmly on Election Day in more than a dozen states, including swing states Florida, Wisconsin, Pennsylvania and North Carolina.
With so many lawsuits pending on so many aspects of voting, both sides expect at least some of these cases to make it to the Supreme Court before the election. Relying on the court is not something voting rights advocates want to do. They haven’t had much luck in recent years, and the court under Chief Justice John G. Roberts Jr. in 2013 famously gutted the Voting Rights Act designed to protect minority voters. Its conservative bent is even stronger now.