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A series of last-minute court challenges and surprising judicial decisions are sowing chaos in crucial battleground states and in some cases delaying ballots from getting out to voters.
In Iowa, Pennsylvania, Texas, and Wisconsin, a flurry of legal activity is causing potentially major problems for state and local officials to get mail ballots out to the voters who’ve requested them in a timely manner, and potentially invalidating ballots that have already been sent to voters. Pennsylvania and Wisconsin in particular could be the tipping-point states for the next president.
The chaos and delays threaten to disenfranchise people who are seeking to vote by mail to avoid potential exposure to the coronavirus. And it may be just the latest sign that this election will be fought as much in the courts as at the ballot box.
More than three dozen other voting cases are pending in states around the country, and if the race between President Trump and Joe Biden gets much closer, there’s a high likelihood that the race’s result winds up in the courts.
The clock is ticking on many of these cases: Federal law mandates that states send out ballots to overseas and military voters no later than Sept. 19, five days from now.
Here are the latest developments in the key states.
Pennsylvania county clerks were supposed to be able to start sending out ballots to voters on Monday. But that’s been delayed pending a court decision on a lawsuit from the state Democratic Party that’s seeking to boot the Green Party candidate from the state ballot.
That means that those ballots now can’t be sent out until the state's official voting ballot is certified, and that can’t happen until state courts decide that case. And if the court rules with Democrats, the entire state will have to reprint new ballots in a very short time period in order to get them out the door in time.
This is the first time Pennsylvania will allow everyone to vote by mail during a presidential election, and the state took weeks to count its ballots for this year’s primary, after the coronavirus and new election law sent mail voting skyrocketing in the state.
Pennsylvania will likely take weeks to count its ballots in November as well, because state law forbids officials from beginning to count ballots until Election Day. This Green Party-related delay adds an additional hurdle for local officials who are attempting to run a massive mail vote program for the first time, making it harder for them to get ballots to people in a timely fashion and sucking up valuable time they could be using to prepare for November.
On Thursday, Wisconsin’s conservative supreme court made a jarring last-minute ruling that they’d take up a Green Party challenge to get back on the ballot — even though county clerks had already printed ballots and were on the verge of sending them to voters.
It’s unclear whether any ballots were sent out already — the Wisconsin Elections Commission warned the court that hundreds of thousands may have been in the mail before the ruling. But the Milwaukee Journal-Sentinel reported that the state’s largest jurisdictions hadn’t mailed any ballots yet.
The Wisconsin Supreme Court could rule as soon as Monday whether they’ll reinstate the Green Party, which the state election board ruled a few weeks ago hadn’t qualified for the ballot. If they rule for the Greens, that would force clerks across the state to chuck their printed ballots and rush to reprint them on time, sowing even more chaos.
Wisconsin’s primary election was marred by partisan chaos and last-minute legal wrangling. Republicans in the state legislature refused to make it easier to vote because of coronavirus, and the Wisconsin Supreme Court and the U.S. Supreme Court forced last-minute changes to voting procedures. These moves suggest it could happen again heading into November.
On Monday, a federal judge ruled that 15,000 ballot-request forms from a liberal county were invalid because the county had filled out voters’ personal information for them before sending the forms to those voters.
Johnson County, home of Iowa City and the University of Iowa, had pre-filled voters’ mail ballot requests with information including their voter PIN numbers, and more than 15,000 had already been returned to the county. Similar decisions have come down in Linn and Woodbury Counties in recent days and could occur in other counties who followed suit.
The voters in those counties who applied for mail ballots thought they were all set and would be receiving their ballot in the mail soon, but now they won’t be. These counties will have to contact all of those voters, let them know about the rulings, and get them to send in a new ballot request before they can get a valid ballot, an additional hurdle to voting by mail. And the counties will now have to send out new forms to everyone in the county without their personal information, a huge logistical step just as mail voting gets going in earnest.
Texas is one of only six states that isn’t allowing everyone the right to vote by mail this year — and the only one that could be competitive at the presidential level. But a series of odd court rulings have left Texans in a legal gray area that’s only gotten more confusing in recent days.
On Thursday, a panel of federal judges upheld a Texas law that bans people under age 65 from voting by mail. But earlier court decisions have left that rule a bit murky and allowed people to decide for themselves whether their underlying health conditions made it unsafe for them to vote by mail during a global pandemic.
Some local officials, mostly in more Democratic areas, decided to send absentee ballot request forms to voters. On Friday, a state judge ruled that Harris County, home to Houston, was allowed to continue with its plan to send absentee ballot requests to every registered voter in the county, though the state’s Republican attorney general immediately appealed that decision.
More lawsuit appeals are likely in the works before it’s clear how Texans will be able to vote.