A number of important voting lawsuits remain unresolved or could still be appealed, legal challenges that could lead to post-election fights over which ballots will count in key states.
The lawsuits cover fundamental aspects of voting during the coronavirus pandemic, such as when mail ballots must arrive to be counted, whether ballots cast by alternative means — such as drive-through voting lanes — are valid, and procedures for counting mail ballots.
More than 300 voting lawsuits were filed this year as the pandemic collided with the race between President Trump and Democratic nominee Joe Biden. With political tensions running high, both sides have prepared strategies for post-election litigation — Republicans say they plan to focus on Philadelphia, Milwaukee, Nevada’s Clark County and the state of North Carolina, while Democrats say they are prepared to litigate around the country to ensure every eligible ballot counts.
Here are the biggest cases awaiting final rulings or that could see more litigation after polls close Tuesday.
Texas: Are ballots valid in Harris County if they were cast in drive-through lanes?
This year, in response to the pandemic, Harris County Clerk Chris Hollins created a new early-voting option that allowed people to cast ballots from the safety of their cars. Voters embraced this choice for the general election, but a conservative activist and group of Republican candidates sued to stop it, arguing drive-through voting is not permitted under Texas law. At stake are nearly 127,000 votes already cast in drive-through lanes in an increasingly Democratic county.
Judge Andrew Hanen of the Southern District of Texas rejected the GOP lawsuit after an emergency hearing Monday, one day after the Texas Supreme Court declined Republicans’ request to preemptively throw out the votes. Hanen concluded that the GOP plaintiffs lacked standing but ordered Harris County to keep all drive-through voting records in case of further court action.
Prominent Republican figures such as lawyer Ben Ginsberg, who represented the Bush-Cheney campaign during the 2000 recount in Florida, had filed briefs urging Hanen not to invalidate the ballots. Republicans appealed to the U.S. Court of Appeals for the 5th Circuit, which declined Monday night to block drive-through voting on an emergency basis. It was unclear as polls opened Tuesday if the plaintiffs planned further action.
Pennsylvania: Can ballots that arrive by mail between Election Day and end of day Nov. 6 be counted?
The Pennsylvania Supreme Court ruled in September that mail ballots would count if they were postmarked on or before Election Day and received by election officials no later than Nov. 7. The ruling was a victory for voting rights advocates and Democrats. Republicans sought an injunction from the U.S. Supreme Court, which denied their request last week and then declined to fast-track the lawsuit.
But there are signs the dispute might not be over. Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch suggested they would revisit the case after the election. A petition for full review in the case is pending before the Supreme Court, and Pennsylvania counties have been told to segregate ballots received after 8 p.m. on Nov. 3 in case of further litigation.
Trump recently called the Supreme Court ruling that allows the extended deadline a “terrible decision.” After the polls close in Pennsylvania on Tuesday evening, he told reporters, “we’re going in with our lawyers.”
North Carolina: Can ballots that arrive by mail between Election Day and end of day Nov. 12 be counted?
For months, Republicans have sought to invalidate the extended deadline for mail ballots in North Carolina, which emerged from a consent agreement between plaintiffs and the State Board of Elections in the fall. But the GOP had little luck in federal or state court.
Last month, the Trump campaign asked the Supreme Court to block a ruling by the U.S. Court of Appeals for the 4th Circuit that allowed the extension to remain in place. North Carolina Republicans joined the effort, but the high court declined to undo the later deadline on an emergency basis.
The case could get another look from the justices after the election.
Minnesota: Can ballots that arrive by mail between Election Day and end of day Nov. 10 be counted?
A court-backed consent decree extended the mail ballot deadline in Minnesota in late summer, drawing a legal challenge from Republicans.
A federal district judge found the GOP plaintiffs lacked standing to bring their lawsuit. But a divided three-judge panel of the U.S. Court of Appeals for the 8th Circuit reversed that ruling last week, suggesting that Republicans were likely to prevail in their argument that the consent decree overrode the role of the state legislature. “There is no pandemic exception to the Constitution,” two of the judges wrote.
The panel ordered Minnesota election officials to separate ballots hand-delivered after 3 p.m. or arriving by mail after 8 p.m. on Election Day, in case they are invalidated by another court. The state declined to appeal to the Supreme Court, but the case could see further action after Election Day, particularly if the margin in Minnesota is small.
Nevada: Does Clark County have to provide the signature of every registered voter to the Trump campaign? Will the county be forced to change its procedures for counting mail ballots?
Nevada chose to mail ballots to voters in the fall because of the pandemic, drawing a legal challenge from Trump’s campaign that was later dismissed in federal court.
But last month, the campaign filed two new actions in Clark County, a Democratic stronghold that includes Las Vegas. One requested changes to county procedures for handling mail ballots, and the other sought images of voter signatures, a possible prelude to challenging mail ballots individually.
State judges denied Republicans’ requests in both lawsuits Monday. The GOP later filed a notice of appeal in the case involving procedures for mail ballots.
Emma Brown, Anna Brugmann, Keith Newell, Tobi Raji, Aaron Schaffer and Maya Smith contributed to this report.