Litigation Tracker: 2020 Voting Rights Cases

Democratic National Committee, et al v. Wisconsin State Legislature, et al, 20A66 (U.S.)

• On October 26 the U.S. Supreme Court rejected, by a 5-3 vote, a request by the Democratic National Committee to reinstate a district court order that extended Wisconsin’s absentee-ballot receipt deadline.
• A Wisconsin statute requires that absentee ballots be received — not just postmarked — by the close of polls on Election Day. But a federal district court judge issued an order extending the receipt deadline by six days in light of the COVID-19 crisis. The federal Seventh Circuit appellate court then blocked (“stayed”) that order, and the plaintiffs asked the Supreme Court to lift the stay and allow the order to take effect.
• The Supreme Court refused, denying the stay. There was no opinion by the majority, only concurrences by Chief Justice Roberts, Justice Gorsuch, and Justice Kavanaugh. The dissent, by Justice Kagan, was joined by Justice Sotomayor and Justice Breyer.
• The Chief Justice found the district court’s injunction improper because it came “in the thick of election season.”  He distinguished the issue presented here — the authority of federal courts to overrule state legislative determinations about election rules — from that presented in the Pennsylvania stay applications that the Court denied on October 23, Scarnati v. Boockvar and Republican Party of Pennsylvania v. Boockvar. For Roberts, those Pennsylvania applications “implicated the authority of state courts to apply their own constitutions to election regulations.”  Slip. Op. at 1 (Roberts, C.J., concurring in the denial).
• Justice Gorsuch, joined by Justice Kavanaugh, criticized the district court for substituting its own policy response to COVID for that of the state legislature. Notably, Justice Gorsuch emphasized that “state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.” Slip Op. at 2-3 (Gorsuch, J., concurring in the denial).
• In the most expansive of the four opinions, Justice Kavanaugh identified three alternative and independent reasons that the district court’s injunction had been unwarranted: (1) Its order came too close to an election, in violation of Purcell; (2) It failed to defer to the judgment of the state legislature in addressing public health and safety during the pandemic; and (3) It failed to give proper weight to the state’s interest in its chosen election deadline in the Anderson-Burdick framework. Notably, in a footnote, Justice Kavanaugh went out of his way to endorse the view of Article II’s Elections Clause espoused in Chief Justice Rehnquist’s concurrence in Bush v. Gore: According to Justice Kavanaugh, “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”  Id. at 9, n.1.
• Finally, Justice Kagan penned a dissent.  She pointed out that large numbers of Wisconsin voters will be disenfranchised through no fault of their own during the COVID-19 pandemic; criticized the Seventh Circuit panel for fixating on the timing of the district court’s order to the exclusion of the constitutional questions presented; and emphasized the district court’s thorough fact-finding and reasoning. She also criticized Justice Kavanaugh’s concurrence for adopting a view of the Elections Clause that would require more, not less, federal court involvement in elections.  See Slip Op. at 11, n.6 (Kagan, J., dissenting from the denial).

Merrill v. People First of Alabama, No. 20A67 (U.S.)

• On 10/15, the Alabama Secretary of State filed an emergency application to the U.S. Supreme Court, seeking to stay a preliminary injunction that permits Alabama counties to implement curbside voting. The Eleventh Circuit upheld the curbside-voting injunction, although it stayed other aspects of the order that dealt with witness and photo-ID requirements.
• On 10/21, the Supreme Court voted 5-3 to grant the Secretary of State’s application. The majority did not give its reasoning. Justice Sotomayor penned a dissent, joined by Justices Breyer and Kagan, arguing that the District Court’s decision was amply justified by the need to impose COVID-19 related safety precautions. She ended her opinion by quoting one of the case’s plaintiffs to explain what was at stake: “Plaintiff Howard Porter, Jr., a Black man in his seventies with asthma and Parkinson’s Disease, told the District Court: ‘[S]o many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we’re past that – we’re past that time.’ Election officials in at least Montgomery and Jefferson Counties agree. They are ready and willing to help vulnerable voters like Mr. Porter cast their ballots without unnecessarily risking infection from a deadly virus. This Court should not stand in their way. I respectfully dissent.”

These are actually two cases — Scarnati v. Boockvar, No. 20A53 (U.S) and Republican Party of Pennsylvania v. Boockvar, No. 20-542 (U.S.),

• Both cases arose out of a September 17 Pennsylvania Supreme Court decision extending the state’s absentee-ballot receipt deadline until November 6 and established a presumption that unpostmarked ballots timely were cast. The Pennsylvania Supreme Court argued that its decision was mandated by the state constitution.
• Pennsylvania Republican legislators and the state Republican party sought an emergency stay from the U.S. Supreme Court in two separate cases: Scarnatti v. Boockvar, 20A53, and Republican Party of Pennsylvania, 20A54. They argued that the state court’s order violated the U.S. Constitution’s Elections Clause as well as a federal law establishing one national Election Day.
• On October 19, the U.S. Supreme Court denied a stay in both cases by a 4-4, with no rationale given for the denial. Justices Thomas, Alito, Gorsuch, and Kavanaugh noted that they would have granted a stay. Chief Justice Roberts joined with Justices Breyer, Sotomayor, and Kagan to ensure that there was no majority to support a stay.
• But Pennsylvania voters are not out of the woods. On October 23, the applicants in Pennsylvania Republican Party came back, filing a petition for certiorari asking the Court to consider the question on the merits on an expedited basis, reaching a decision before Election Day. That case is No. 20-542.
• On October 28, the Court denied the motion to expedite consideration of the cert petition after the Pennsylvania Secretary of State agreed to segregate ballots arriving after the close of polls on November 3. The Court will now not hear the case until after Election Day, but could still grant cert and take it up on the merits.
• On 11/4, the day after Election Day, the Trump campaign moved to intervene before the Supreme Court.

Wise v. Circosta, No. 20A71 (U.S.), and Moore v. Circosta, No. 20A72 (U.S.)

• Late Tuesday evening, 10/20, the full federal Fourth Circuit voted 12-3 to deny a request by North Carolina Republican legislators to enjoin a set of changes to state election procedures including an extension of the state’s ballot-receipt deadline.
• Having been denied an appellate injunction by the Fourth Circuit, the legislators sought relief from the U.S. Supreme Court. On 10/28, the shorthanded Court voted 5-3 to deny an injunction, allowing North Carolina to go forward with an extended ballot receipt deadline. Justice Gorsuch, in dissent, argued that the extension was likely unconstitutional because it was instituted by the State Board of Elections, not directly by the state legislature. According to Judge Gorsuch, under the Constitution’s Elections and Electors clausses, only the state legislature — or Congress itself — can dictate the terms of elections.
• A multistate coalition of 15 state attorneys general, led by Washington D.C.’s Karl Racine, filed an amicus brief on behalf of respondents — the North Carolina Board of Elections — at the Supreme Court. The brief argues that it is important to give states the flexibility to respond to the COVID crisis with reasonable, common-sense steps to protect the right to vote — included expanded vote-by-mail deadlines.Read the brief here.

Bognet v. Boockvar, No. No. 20-3214 (3d. Cir.)

• On Thursday, 10/22, a Republican candidate for the House of Representatives and four voters sued to stop Pennsylvania’s election officials from implementing the state Supreme Court’s decision in Pennsylvania Democratic Party v. Boockvar, No. 133 MM 2020, 2020 WL 5554644 (Pa. Sept. 17, 2020), which extended the deadline to receive absentee ballots from November 3 to November 6 and established a presumption that ballots received by November 6 were timely cast.  According to the plaintiffs, the state Supreme Court’s order usurped the state legislature’s authority to set the rules for federal and presidential elections and conflicts with a federal statute that establishes a national election day for federal elections.
• On 10/28, federal district court judge Kim Gibson denied plaintiffs’ motion for a preliminary injunction.
• This is the appeal from that denial. On 11/13, a unanimous panel of the Third Circuit denied the appeal, finding that plaintiffs had no standing to sue.

Carson v. Simon, No. 20-3139 (8th Cir.)

• This is a challenge, brought by two Republican electors, to a Minnesota Secretary of State agreeing to extend the absentee ballot receipt deadline from November 3 to November 10. The electors argued that the Secretary violated federal law and the Elections Clause, which — for the electors — only allows state legislators to determine the time, place, and manner of the election.
• On 10/11, the district court denied a preliminary injunction on standing grounds, and on 10/19, it denied a stay pending appeal.
• On 10/29, a divided panel reversed the district court and remanded, ordering the district court to enter an injunction segregating all ballots received after the close of polls on 11/3. If the merits case concludes with the determination that the extension was illegal, those ballots can then be discounted.
• The state has announced that it will not seek Supreme Court review of the Eighth Circuit’s decision.
• A multistate coalition of attorneys general, led by Washington, DC’s Karl Racine, filed an amicus brief supporting Minnesota’s Secretary of State. The brief cites the positive experiences of many states that implemented common-sense protections to the right to vote — including expansions of mail-in voting and extensions of voting deadlines — in light of COVID-19.

Craig v. Simon, No. 20-3126 (8th Cir.)

• Minnesota law requires that an election be postponed, and a new special election scheduled, when a major party political candidate dies within 79 days of a general election.
• On September 21, Adam Weeks died. He was the Legal Marijuana Now Party candidate for Minnesota’s second congressional district. So, under state law, the election could not go forward November 3. Instead, a special election would be set for February. Angela Craig, a Democrat and the incumbent, sued the Secretary of State, seeking to force the state to hold the election in November.
• The district court agreed with Craig, and Republican candidate Tyler Kistner, who intervened, sought an appeal from the federal Eighth Circuit.
• The panel unanimously denied Kistner’s request for a stay, finding that Kistner was unlikely to succeed on the merits of his appeal because Minnesota’s statute likely conflicted with federal law establishing a uniform date of federal elections.  The panel also found that Kistner would not incur irreparable harm if the election goes forward as originally scheduled.
• A few days after the Eighth Circuit’s decision, the U.S. Supreme Court declined to step in, meaning that the election will go forward on November 3.

Memphis A. Philip Randolph Institute v. Hargett, No. 20-6141 (6th Cir.)

• On Monday, 10/19, a unanimous panel of the Sixth Circuit denied a motion to stay a district court order that preliminarily enjoined a Tennessee statutory requirement that would have required first-time voters who registered by mail or online to vote in person.
• In its decision, the appellate court emphasized that a stay pending appeal is a matter of judicial discretion and found that, notwithstanding any probability of success on the merits of the plaintiffs’ claim, an injunction was not warranted. The court noted that reliance interests counseled against an injunction: Voting was ongoing, and many voters might have relied on communications from Tennessee’s secretary of state and other elections officials who instructed first-time voters that they were not required to vote in person. Moreover, the state had delayed in requesting a stay, and the public interest in orderly elections weighed against a change in the rules.
• Judge Karen Nelson Moore concurred to emphasize this last point, noting that “[a]t least where disturbing a lower court order that has been in place for a substantial period of time in the lead up to an election could result in voter confusion and the state has not offered sound reasons to justify that risk, the equities do not support staying the order pending appeal, even with an election looming.” Slip. Op. at 5.

Mi Familia Vota v. Abbott, No. 20-50907 (5th Cir.).

• The federal Fifth Circuit blocked a lower court order requiring voters to wear protective masks at polling places.
• The case arose after the Governor of Texas created a polling place exception to Texas’ face mask rule. Plaintiffs challenged the exception, arguing that it placed a burden on the right to vote by forcing voters to choose between health and voting.  A federal district court entered a preliminary injunction, requiring mask wearing in polling places, but the Fifth Circuit reversed, reasoning that changing the rules in the middle of the election would create disparate treatment of voters and cause confusion among voters and poll workers.

Minnesota Voters Alliance v. Walz, No. 20-3072 (8th Cir.)

• On 10/26, the Eighth Circuit denied a motion for an injunction pending appeal in a case where the Minnesota Voters Alliance sought to enjoin Governor Walz’s executive order requiring Minnesotans to wear a face covering in indoor public settings, including polling places.
• The plaintiffs, who lost at the district court, had argued that the executive order was inconsistent with Minnesota law and violated the First Amendment by restricting a form of political expression—not wearing a mask—in and around polling places. The Eighth Circuit did not explain its reasons for denying an injunction pending appeal.

Moore v. Circosta, No. 20-2107 (4th Cir.) and Wise v. North Carolina State Board of Elections, No. 20-2104 (4th Cir.)

• Late Tuesday evening, 10/20, the full Fourth Circuit declined to enjoin a set of changes to North Carolina election procedures ordered by the State Board of Elections pursuant to a state-court consent decree. Some Republican state legislators and voters had collaterally attacked those changes – including an extension of the ballot-receipt deadline – on the ground that they purportedly violate the U.S. Constitution’s Equal Protection, Elections, and Electors Clauses. The district court declined to issue a preliminary injunction, despite finding a likely violation of the Equal Protection Clause.
• The Fourth Circuit’s denied an injunction by an overwhelming vote – 12-3 – and rejected the plaintiffs’ claims on multiple grounds: The plaintiffs lacked standing to raise their Elections and Electors Clause claims; they were unlikely to succeed on the merits of their Equal Protection claim; the district court should have abstained from hearing the case pending the resolution of outstanding state-law issues in state court; and, in any event, an injunction would be improper in light of the Supreme Court’s decision in Purcell v. Gonzalez. The plaintiffs responded by filing an emergency application to the U.S. Supreme Court.

Priorities USA v. Nessel, No. 20-1931 (6th Cir.)

• On Wednesday, 10/21, a divided panel of the Sixth Circuit stayed a district court order that preliminarily enjoined Michigan’s prohibition on transporting non-disabled persons to the polls.  The district court found the prohibition was preempted by the Federal Election Campaign Act.  While Attorney General Nessel had declined to appeal that decision, both houses of the Michigan legislature, among others, intervened and sought a stay from the circuit.
• The panel majority determined, as a threshold matter, that the legislature has standing to appeal.  The legislature claimed that, as an institution, it was injured by the district court’s suspension of the voter-transportation prohibition.  The panel majority agreed with the legislature that it had suffered an institutional injury, but also analogized the case to United States v. Windsor, where legislative agents were allowed to stand in and defend the validity of a law where executive officials declined to do so.
• On the merits, the majority rejected the district court’s preemption analysis and found that the equities weighed in favor of staying the injunction.  In the majority’s view, the FECA’s preemption provision did not apply to laws, like Michigan’s voter-transportation prohibition, that are aimed at preventing vote-bribing and voter fraud.
• Chief Judge Cole dissented, emphasizing that the legislature lacked a cognizable interest in the case sufficient to confer standing, and criticized the majority for finding, without evidence, that the voter-transportation prohibition prevents voter fraud.

Richardson v. Hughs, No. 20-50774 (5th Cir.)

• On Monday, 10/19, a split panel of the Fifth Circuit stayed a district court order that would have prevented Texas elections officials from rejecting ballots based on mismatching signatures or, alternatively, required them to establish a process for voters to address any concerns about their signatures.
• In the panel majority’s view, the district court overstepped its authority by rewriting state law. The majority also found that the district court erred by applying Mathews v. Eldridge to evaluate the plaintiffs’ due process claims, instead of the Anderson-Burdick framework for constitutional challenges to state elections laws. And under Anderson-Burdick, the majority found that Texas’s signature-verification requirement does not impose a severe burden and is justified by Texas’s interest in preserving the integrity of its elections.
• Judge Higginbotham concurred, suggesting that the majority went too far in addressing the merits of the state’s arguments: Instead, he would have relied on the equitable principle embodied in Purcell v. Gonzalez that federal courts should not change election rules on the eve of an election.

Hotze v. Hollins, No. 20-20457 (5th Cir.). This was an emergency appeal, filed on the eve of Election Day, from a federal judge’s dismissal of a lawsuit seeking to disqualify more than 127,000 Harris County voters. The voters had used drive-through voting locations supplied by the Harris County clerk.

• A panel of the federal Fifth Circuit denied the appeal.

Bognet v. Boockvar, No. 3:20-cv-215 (W.D. Pa.)

• At Issue:  On Thursday, 10/22, a Republican candidate for the House of Representatives and four voters sued to stop Pennsylvania’s election officials from implementing the state Supreme Court’s decision in Pennsylvania Democratic Party v. Boockvar, No. 133 MM 2020, 2020 WL 5554644 (Pa. Sept. 17, 2020), which extended the deadline to receive absentee ballots from November 3 to November 6 and established a presumption that ballots received by November 6 were timely cast.  According to the plaintiffs, the state Supreme Court’s order usurped the state legislature’s authority to set the rules for federal and presidential elections and conflicts with a federal statute that establishes a national election day for federal elections.
• On 10/28, federal district court judge Kim Gibson denied plaintiffs’ motion for a preliminary injunction. Judge Gibson held that the plaintiffs lacked standing to challenge the ballot receipt deadline extension. He did find that the presumption of timely mailing likely violated the Equal Protection guarantee, but denied relief because the Purcell principle counseled against changing the rules the week before Election Day.

Council on Am.-Islamic Relations – Minnesota v. Atlas Aegis, No. 20-cv-2195 (D. Minn.)

• Voting rights plaintiffs sued a private company and associated individuals for recruiting armed ex-soldiers to “secure” polling sites in Minnesota. The plaintiffs argued that the defendants’ recruiting efforts, public statements, and “patrol” actions constituted voter intimidation in violation of the Voting Rights Act.
• On 10/29, the district court agreed with plaintiffs, enjoining defendants from, inter alia, sending armed agents within 2,500 feet of polling places.

Carson v. Simon, No. 20-cv-2030 (D. Minn.)

• In a state court consent decree, the Minnesota Secretary of State agreed not to enforce the state’s Election Day deadline to receive mail-in ballots. That agreement was attacked in federal court by voting rights opponents.
• On 10/11, the district court refused to issue a preliminary injunction blocking the Secretary’s agreement. On Monday, 10/19, the district court issued a new order declining to block the order pending appeal.
• In denying the injunction pending appeal, the district court doubled down on its standing analysis: Though the plaintiffs argued that the Secretary of State violated federal law and the Elections Clause by not enforcing the absentee ballot deadline, any injury that they might suffer from the Secretary’s action was either speculative or too generalized and broadly shared by all Minnesota voters.

Hotze et al v. Hollins, 20-3709 (S.D. Tex.)

• Plaintiffs filed in the Southern District of Texas on 10/28, seeking to invalidate more than 127,000 ballots cast at Harris County’s 10 drive-though polling stations. They claimed that the polling stations were not authorized by state law and therefore violated the Elections and Electors Clauses of the Constitution, which dictate that state legislatures — and, for plaintiffs, only legislatures — must approve every aspect of state election procedures.
• A preliminary injunction hearing was held at 10:30 am on November 2, the day before Election Day. Judge Andrew Hanen dismissed the suit, finding that the plaintiffs had no standing to sue since they were not injured by the drive-through voting. Judge Hanen said that, if the plaintiffs did have standing, he would likely have blocked Harris County from using the drive-through stations on Election Day, but would not have invalidated the votes already cast.

Johnson v. Benson, No. 1:20-cv-948 (W.D. Mich)

• In light of a decision issued by the Michigan Court of Appeals in Michigan Alliance for Retired Americans v. Benson, No. 354993 (Mich. Ct. App.) – where the Court of Appeals reversed a lower court’s order extending the deadline to receive absentee ballots and permitting collection of ballots by third parties – the federal district court has ordered that this case will be held in abeyance pending the outcome of any appeal to the Michigan Supreme Court. The Michigan Secretary of State has filed a copy of guidance she issued to clerks’ offices, which instructs them to comply with the Court of Appeals’ order.

League of Women Voters of Arkansas v. Thurston, 20-5174 (W.D. Ark.)

• Arkansas allows election officials to reject an absentee ballot because of a signature mismatche without offering the voter a chance to fix the problem. The League of Women Voters asked a federal judge to enjoin the practice of discarding ballots in that situation without notice and an opportunity to cure.
• On October 26, the district court denied the injunction. It noted that “there appears to be much merit to Plaintiffs’ arguments that notice and an opportunity to cure signature deficiencies in absentee ballots ultimately will reduce voter confusion and disenfranchisement, encourage voter participation, and prove to be in the public interest as this litigations continues.”
• But ultimately, the court found that it was too close to the election to make an immediate change. The opinion is here.

Mi Familia Vota Education Fund v. Trump, No. 20-cv-3030 (D.D.C.)

• On 10/21, a voting rights group sued the President, Attorney General Barr, and Department of Homeland Security Secretary Wolf, arguing that their actions around the 2020 elections, taken together, constitute voter intimidation in violation of the Voting Rights Act, the Ku Klux Klan Act of 1871, and the First, Fifth, and Fourteenth Amendments to the U.S. Constitution.
• After a hearing on 10/29, the judge denied the plaintiffs’ motions for a TRO and preliminary injunction.

Trump v. Way, 20- 10753 (D. N.J.)

• On 10/22, Judge Shipp of the New Jersey federal district court dismissed a suit filed by the Trump campaign that sought to block a New Jersey law expanding mail-in voting. Under the law, all active registered voters in the state were sent a ballot at least 29 days before the election. Plaintiffs claimed that the mail-in voting expansion “guaranteed “ voting fraud.
• Judge Shipp dismissed the case after finding that Plaintiffs could not clear the threshold for litigation by showing that the law inflicted a concrete and non-speculative injury on them. The court found that Plaintiffs’ fraud allegations were “conclusory” and not backed by allegations of “impending” or “imminent” harm. Even if purported ballot fraud has occurred on scattered occasions in the past, as Plaintiffs alleged, it would still be speculative to assume the fraud would recur.

Parnell v. Allegheny County Board of Elections, No. 2:20-cv-1570 (W.D. Pa.)

• On 10/26, Judge Ranjan in the Western District of Pennsylvania entered a consent decree establishing procedures for the Allegheny County Board of Elections to handle ballots received from 28,879 voters who were initially sent incorrect ballots.
• Pursuant to the consent decree, which was sought by two Republican congressional candidates, no matter what ballot (incorrect or correct) is submitted by the affected voters, the county board of elections will only count votes for those offices the voter is actually eligible to vote for.
• The consent decree followed a text-only order that Judge Ranjan entered on Friday, 10/23, denying a requested temporary restraining order that would have required the county board of elections to permit poll watchers to access certain satellite office locations.  In the judge’s view, the plaintiffs were unlikely to succeed on the merits of their claim that the limitations on poll-watcher access violated the Equal Protection Clause, and they would not suffer any irreparable injury without relief.

Donald J. Trump for President, Inc. v. Philadelphia County Board of Elections, No. 983 CD 2020 (Pa. Commw. Ct.)

• On Friday, 10/23, a panel majority of the Pennsylvania Commonwealth Court affirmed a trial court order that previously denied the Trump campaign’s effort to place campaign representatives as poll watchers in satellite election offices.  In the majority’s view, satellite election offices do not qualify as “polling places” or “public sessions” to which poll watchers have access under state law.
• One judge dissented, reasoning that state law was ambiguous as to the status of satellite election offices and that this ambiguity should be resolved in favor of allowing poll-watcher access in order to promote the integrity of the voting process.

Donald J. Trump for President, Inc., v. Simon, No. A20-1362 (Minn.)

• Issue: Minnesota’s Secretary of State agreed to extend the state’s mail-in ballot receipt deadline. That extension was challenged by Republicans, and is now being litigated in the federal Court of Appeals for the Eighth Circuit. Meanwhile, the Trump campaign has gone to the Minnesota Supreme Court seeking to segregate mail-in ballots received in Minnesota after the statutory Election Day deadline so that, if necessary, post-election remedies will be available for alleged violations of the Elections/Electors Clauses.
• Status: The petition was filed on October 28.

In re Juan Gerardo Perez Pichardo and the Republican Party of Texas, 20-815 (Tx. Oct. 20, 2020)

• Harris County, Texas – home to Houston, and Texas’ most populous county – announced in June that it would set up 10 drive-through voting locations for the 2020 general election. The Republican Party of Texas sued to stop the county from proceeding, but – with voting already underway – a state appellate court refused to intervene.
• On October 22, the state Supreme Court denied the Republican Party’s request to intervene, too, allowing the drive-through voting to go forward.

In re Nov. 3, 2020 General Election, No. 149 MM 2020 (Pa.)

• On Friday, 10/23, the Pennsylvania Supreme Court unanimously held that the state’s election code does not allow absentee or mail-in ballots to be rejected based on signature comparisons.
• In the court’s view, Pennsylvania state law plainly and unambiguously does not allow signature comparisons for mail-in ballots. The court argued that this clear meaning was reinforced by recent legislative changes that expanded the availability of vote-by-mail and limited the bases for challenging absentee and mail-in ballots.
• Pursuant to this ruling, third parties cannot challenge—and elections officials cannot reject—ballots on the ground that a voter’s signature on the official ballot-return envelope does not “match” another signature on file.

In re Steven Hotze, no. 20-0863 (Tex.)

• Two Republican legislative candidates and a state legislator petitioned the Texas Supreme Court to invalidate more than 100,000 votes cast at Harris County’s drive-through voting locations.
• The petition is considered unlikely to succeed because the same court rejected the same plaintiffs’ attempt to stop drive-through voting just last week. The petition was filed 10/28.
• On November 1, the Texas Supreme Court denied the petition without comment.

• On Friday, 10/23, the Trump campaign and Nevada Republican Party filed a lawsuit seeking to halt mail-in ballot counting in Clark County, Nevada.
• The lawsuit argued that Nevada law and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution required Clark County to permit poll watchers to observe and assert challenges to the counting of mail-in ballots.
• On the same day that the plaintiffs filed suit, a judge of the Carson City District Court denied their request for a temporary restraining order and allowed Clark County election officials to continue processing mail-in ballots.
• Merits hearings in the case are set for the week of October 26.

Lambert v. Benson, No. 35526 (Mich. Ct. App.)

• Michigan Secretary of State Benson issued a directive banning the open carry of guns at polling places on Election Day.  Plaintiffs challenged her authority to issue this guidance. Judge Murray on the Michigan Court of Claims preliminarily enjoined the guidance, finding that it should have been issued as rule under Michigan administrative law.  Benson and Attorney General Nessel appealed.
• On 10/29, a three-judge panel of the Michigan Court of Appeals declined to hear the appeal.  The court noted, however, that voter intimidation and brandishing a firearm in public remain illegal, and pointed out that local law enforcement had authority to enforce those laws.
• AG Nessel indicated that her office will appeal the case to the Michigan Supreme Court.