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Election Law Blogger On The State Of Voting-Related Lawsuits


There's always a rush of lawsuits around voting in the final weeks before an election. This year, the pandemic has raised the stakes even higher, with record numbers of voters casting their ballots before Election Day. UC Irvine law professor Rick Hasen writes the election law blog, and he joins us to discuss the litigation we're seeing right now.

Good to have you back on the program.

RICK HASEN: It's great to be with you.

SHAPIRO: With as much early voting going on as we're seeing right now, is there more election-related litigation than in past years?

HASEN: Yeah, I think we're going to hit a record in this election season. I've been keeping track of election litigation since 1996. It's almost tripled in the post-2000 period after the disputed Florida election. And now we're in a situation where, I think, it's going to be an all-time record. It will beat the 2018 record, in part because there have been over 300 cases just involving the question of how to deal with coronavirus and the election happening at the same time.

SHAPIRO: Oh, interesting, 'cause I was going to ask whether the pandemic makes the kinds of cases we're seeing different from what we've seen in past elections. And it sounds like the answer is a definite yes.

HASEN: Well, you know, you see cases where the government changes the rules because of the pandemic and someone doesn't like that, or the government fails to change the rules despite the pandemic, and other people don't like that. So either way, the governments are facing lots of lawsuits.

SHAPIRO: And when you look at the cases that have been decided already, have courts tended to side more often with Democrats, who generally favor expanding voting access, or with Republicans, who are generally pushing to limit avenues to cast ballots?

HASEN: I think we could put the litigation in really three buckets. First are Democrats and voting rights groups that pushed to get expansion of voting rights during the pandemic. In those suits, we saw a lot of success early on in the district courts. But the United States Supreme Court and the federal appeals courts have taken a different tack, and they've reversed a lot of those earlier rulings. They've said that it's really up to the states to decide how to balance health against voting rights.

The second bucket are Trump and Republican Party efforts to try to argue that expansions of voting rights, like the inclusion of drop boxes, will dilute legitimate voters' votes and pave the way for voter fraud. Those cases have all been unsuccessful. And then the third bucket - and this is the most complicated one - is where state Supreme Courts have expanded voting. This happened most recently in Pennsylvania. And the question is whether state supreme courts can do that if state legislatures don't want them to. And that's the case where the Supreme Court divided 4-4 last night.

SHAPIRO: All right. Let's talk about that case because it's important not only because it's Pennsylvania, a big swing state, but because, as you note, the court was split. Ultimately, the lower court decision stands, which is a win for Democrats. But how significant is this ruling? And what does it possibly forecast about where we're going?

HASEN: Well, you know, I think its significance falls in two ways. First, there's the immediate results, which is that there's going to be more time for people to be able to send in their absentee ballots, assuming we don't get a later reversal by the Supreme Court if this case gets back to them. But at least for now, it's a win for Democrats.

But longer-term, it signals something potentially really significant, which is that you have four justices on the court, the four most conservative justices, who believe that a state Supreme Court doesn't have the power to rely on a state constitution in expanding voting rights if a state legislature doesn't want to. And the reason for that is that the Constitution says that state legislatures get to set the rules for presidential elections. This is an issue that's been going around in the courts since Bush versus Gore 20 years ago. But if we get a new Justice Barrett on the court, it could be that there would be five justices that would agree with this idea, and it would really limit the ability of state Supreme Courts to expand, say, the rules for recounts if there is any post-election litigation.

SHAPIRO: And in the next couple weeks until Nov. 3, what are you especially keeping a close eye on?

HASEN: Well, we're getting into the period, you know, where we've already had millions of people voting. There are still a few cases pending before the Supreme Court - one in Alabama about curbside voting and one out of Wisconsin about election delays. But really, we're going to be looking at how smoothly the election goes. And if it's a very close election in a state that matters for the Electoral College, is there some basis on which a party that's behind could try to contest the election or claim that certain categories of votes should or should not be counted? And of course, by then, all likelihood, we'll have a new justice on the Supreme Court, and that could change the balance of power on these questions.

SHAPIRO: And so I take it you're not planning to go on vacation on Nov. 4.

HASEN: Well, you know, even if the election goes just right and there's no major complications, it's going to take a long time to count the ballots. If the election is close - we know that a state like Pennsylvania, which never had no-excuse absentee balloting before this election season - they're going to have millions of ballots, and they're not allowed to process them early.

SHAPIRO: All right.

HASEN: And so we could be in a situation where the counting could take a week or two.

SHAPIRO: OK. That's UC Irvine law professor Rick Hasen. He's author of "Election Meltdown: Dirty Tricks, Distrust And The Threat To American Democracy."

Thanks for joining us.

HASEN: Thank you. Transcript provided by NPR, Copyright NPR.