Election lawsuits might gum up final vote counts, experts say

Courts could take weeks to sort through those cases related to Tuesday's races, even though it is rare for litigation to determine the outcome

Democratic candidate for U.S. Senate, Lt. Gov. John Fetterman, speaks during a campaign rally on Nov. 6. Fetterman, who is challenging Mehmet Oz for the seat, filed a federal lawsuit Monday related to the counting of some mail-in ballots.  (Tom Williams/CQ Roll Call)
Democratic candidate for U.S. Senate, Lt. Gov. John Fetterman, speaks during a campaign rally on Nov. 6. Fetterman, who is challenging Mehmet Oz for the seat, filed a federal lawsuit Monday related to the counting of some mail-in ballots. (Tom Williams/CQ Roll Call)
Posted November 8, 2022 at 12:35pm

Dozens of courtroom fights over Tuesday’s elections, both months-old and new, have a chance to delay the results of the midterm elections or even decide the results of some close races, election law experts said.

While it’s normal for some elections to spawn court disputes, those experts said, there are already more than 100 active lawsuits this cycle. Sorting through those cases, and adjudicating the ones filed once votes come in, could take weeks.

There are already legal cases in Pennsylvania that could add drama to the election results, particularly in a high-profile Senate race between Democratic Lt. Gov. John Fetterman and Republican Mehmet Oz that could play a role in which party controls the chamber next Congress.

But for any lawsuits to truly matter, the vote would have to be so close that the contested ballots could determine the outcome of a race — which doesn’t happen often.

“If the election is a blowout, if it's a wave election, we will not have as much litigation,” Spencer Overton, a George Washington University law professor who specializes in voting rights, said.

But election lawsuits still are poised to play a role in the story of the midterm elections. News outlets have reported groups ready to challenge outcomes in key states. And election law experts and pundits have expressed concerns about how false claims about contested elections could spread on Twitter and other social media sites.

Two years ago, President Donald Trump spearheaded a wave of litigation about claims of mail-in ballot problems that were central in his false claims of election fraud following his loss in the presidential election.

Weeks to resolve

Jocelyn Benson, Michigan’s Democratic Secretary of State, told reporters last week that some challenges are meant to gum up the process rather than hash out legal issues.

“I think it's important to be clear, or at least make the case that there are times where lawsuits are filed not to enforce the law or based on any merits, but instead to cause confusion, get media and further partisan strategies,” Benson said during a Center for Election Innovation & Research event.

Sorting out those challenges could take days or weeks, Rebecca Green, an associate law professor at William & Mary Law School, said. And it depends on the races remaining close after election day.

“It could take weeks for these to resolve, so that is possible whenever there are close elections,” Green said.

There are a number of reasons why it may take a while to know which party will control Congress next year. If control of the House is close and there are election challenges swirling, things could get "pretty messy," legal experts said.

Green said many of the legal cases will be a “tweet with a filing fee,” meant to make a political argument instead of a legal one. “We’ve seen litigation filed by political actors to signal to voters or their base rather than bringing forward claims of actual problems,” Green said.

Green, who is co-director of the law school’s election law program, said the courts will likely have to take some time sorting through the wheat from the chaff of such filings.

On top of that, “it’s hard to know where lightning will strike,” meaning a close race where there’s a genuine legal issue about counting ballots, Green said.

Still there are a few things she and other election law experts are watching out for, including fights over absentee ballots. If a race is close, the candidate leading initial tallies has an incentive to disqualify as many absentee ballots as possible, Green said.

That could put the courts in the position to decide key races, Green said.

“Courts have to interpret the law as they understand it, and it can be incredibly complex, as we saw in cases like Bush vs. Gore,” Green said. “And that's how our system works. It relies on courts to make those final calls. And we could find ourselves in that situation again.”

Pennsylvania fight

That includes Pennsylvania, which hosts a close Senate contest and several competitive House seats. For more than two years Republicans have sought court rulings that the state cannot count ballots received on time but not bearing a separate date.

On Monday, Fetterman and several House campaigns argued in a federal suit that requiring ballots to carry a separate date violates voters’ civil rights.

“The date on a mail ballot envelope thus has no bearing on a voter’s qualifications and serves no purpose other than to erect barriers to qualified voters exercising their fundamental constitutional right to vote,” the suit said.

The candidates also filed to intervene in an ongoing state case, saying Republicans have been “seeking electoral advantage at the eleventh hour” by disqualifying undated mail-in ballots when the vast majority have been returned by Democrats.

Both parties have fought over counting undated ballots since the 2020 election. The U.S. Court of Appeals for the 3rd Circuit ruled in May that that the state requirement of a date on ballots violated civil rights law.

That was appealed to the Supreme Court — with Oz filing a brief in the case — but the Supreme Court last month ordered that the case be dismissed as moot, meaning the issue is once again unsettled.

The NAACP and ACLU also weighed in last week, filing their own lawsuit that argued that tossing undated ballots over a “trivial paperwork error” would again violate civil rights law.

The groups said in the lawsuit that “the presence or absence of a handwritten date on the envelope is utterly immaterial to determining whether the ballot was timely received, much less to assessing a voter’s qualifications.”

Those are just three of the lawsuits over the state’s voting practices. There are other ongoing disputes over the “curing” process of local election boards contacting voters to correct errors on their ballots and poll-book checking.

Wave of lawsuits

Across the country, advocates like the Democratic-aligned group Defend Democracy have tracked more than 100 active lawsuits about voting practices.

That includes litigation in other hotly contested states like Michigan. That state’s Supreme Court recently upheld state voter challenge provisions after Republicans argued they restricted the ability to challenge ineligible voters.

Overton said that such litigation has increased substantially in the last two decades, with a focus on challenging ballots from Democratic-leaning and diverse portions of the electorate.

That is part of a broader trend where both parties seek advantage both at the ballot box and the courthouse, Overton said, such as candidates seeking to exclude absentee ballots if those are expected to have more votes for their opponents.

“A lot of this is a fight over whose votes are going to count in an attempt to make the electorate look a particular way,” Overton said.