Most of the major election cases we have been tracking in this weekly digest have now been resolved—although a few remain open and new ones (perhaps many) can be expected on and after Nov. 5.
On Oct. 23, Pennsylvania’s highest court came down in favor of the right to cast a provisional ballot if a voter’s mail-in ballot contains errors, in a ruling the U.S. Supreme Court on Friday declined to disturb. The Supreme Court also last week allowed Virginia to proceed with its purge of about 1,600 registered voters, a number that is likely too small to shift statewide results. Though the Fifth Circuit in Oct. invalidated Mississippi’s deadline for accepting mail-in ballots that arrived after Election Day, the ruling will not apply in this cycle. In Oct., Georgia courts also rejected the Georgia State Board of Elections’ attempts to institute a battery of 11th hour rule changes.
Though dozens of other lawsuits remain pending, none appear primed to meaningfully affect how election officials across the country count or process their votes. We await a possible tsunami of Election Day and post-Election Day litigation to see whether or how that may change.
The pre-election news cycle provides clues for what may lie ahead. Many of the cases so far filed have had clear echoes of the 2020 presidential election, seeking to raise unfounded fears of voter fraud or false claims of ineligible immigrant voting or to encourage baseless non-certification of eventual election results. Other cases sought to address legitimate concerns of voter disenfranchisement, of needed voting administration fixes, or of steps that may need to be taken to advance safe, free, and fair voting, counting, and certification of the votes.
In this top ten list, we capture the vital developments of the past week. We identify the most important of the hundreds of cases that were resolved or that remain open for their rule of law implications, which also conveys an overall sense of the election litigation landscape. The criteria that we use to derive this list are as follows:
- Seriousness of implications for the democratic process;
- Potential to distort democratic process or subvert democratic outcomes in a state or nationally; and
- New and notable development or unresolved and serious legal question with implications for the democratic process.
For questions, comments, or suggestions, please contact lte@justsecurity.org.
(List updated as of Nov. 4, 2024 at 12 p.m. ET.)
2024 Election Litigation Top 10
| Rank | Change in Position | Weeks on Chart | Case Title | Jurisdiction |
|---|---|---|---|---|
| 1 | Same | 6 |
Pennsylvania Mail-In Ballot Challenges With Election Day approaching, the U.S. Supreme Court declined to disturb a favorable ruling for voters in a Pennsylvania case, Genser v. Butler County Board of Elections. Republicans failed to persuade SCOTUS to stay the Pennsylvania Supreme Court’s order, which allowed voters whose mail-in ballots have certain deficiencies to cast a provisional ballot. Meanwhile, in Baxter v. Philadelphia Board of Elections, the Pennsylvania Supreme Court granted Republicans’ request to stay a lower court ruling, which therefore will not allow for the counting of un- and mis-dated absentee and mail-in ballots in the upcoming election. In Center for Coalfield Justice v. Washington County Board of Elections, a challenge to the board’s refusal to notify voters if their mail-in ballots were rejected remains pending at the Pennsylvania Supreme Court. |
Supreme Court of Pennsylvania |
| 2 | Same | 5 |
Just six days before Election Day, the U.S. Supreme Court allowed Virginia to resume a purge of an estimated 1,600 registered voters. A lower court had blocked Virginia’s purge in response to a lawsuit filed by civil society groups and the Department of Justice (DOJ), finding that it violated the National Voter Registration Act’s so-called “quiet period” within 90 days of an election. In Alabama, civil society groups and the DOJ brought similar suits that were later consolidated. U.S. District Judge Anna Manasco, a Trump appointee, issued a preliminary injunction blocking the state’s voter purge on Oct. 16. |
U.S. District Court, Eastern District of Virginia, Alexandria Division |
| 3 | New | 1 |
Pennsylvania Major Party Mail-In Ballot Access Cases In Pennsylvania, both Republicans and Democrats filed lawsuits claiming that voters have not received the mail-in ballots they requested. On Nov. 1, following a petition by the Pennsylvania Democratic Party, a judge ordered Erie County to take measures to ensure that up to about 18,200 voters who never received their mail-in ballots are able to vote. In Bucks County, the Trump campaign and Republicans alleged that voters were unable to request and receive an on-demand mail-in ballot, with the plaintiffs submitting declarations from only three voters supporting that claim. On Oct. 30, a judge permitted voters to request and return a mail-in ballot at the Bucks County elections office or its satellite offices through Nov. 1. |
Court of Common Pleas of Erie County, Pennsylvania |
| 4 | New | 1 |
Georgia Ballot Return Challenges Less than four days from Election Day, both parties have filed lawsuits related to how absentee ballots are returned— with Georgia Republicans focusing on the hand-return of ballots and Democrats and civil rights groups on return deadlines. Republicans filed a state case Friday night arguing against hand returns of ballots past Nov. 1, which the state court rejected on Saturday. After they lost, the RNC filed a similar lawsuit in federal court on Sunday. Meanwhile, civil rights groups and Democrats have both filed lawsuits in Cobb County’s Superior Court seeking to extend return deadlines for more than 3,000 absentee ballots that were not timely sent. In the former, a judge ordered Cobb County to send ballots to affected voters no later than Nov. 1 and to accept any received before 5 p.m. ET on Nov. 8. The ruling has been appealed. |
Superior Court of Fulton County, State of Georgia |
| 5 | ⬇ -2 | 5 |
Overseas Voter Eligibility Challenges In Michigan, North Carolina, and Pennsylvania, Republicans have lost challenges to rules allowing overseas and military voting under the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). The North Carolina Court of Appeals on Oct. 29 unanimously denied a request to stay the lower court’s decision, and on Nov. 1, Republicans asked the North Carolina Supreme Court to pause that ruling pending review. Meanwhile, the Michigan Court of Appeals denied the Republicans’ request to expedite their appeal. These attacks on absentee voting under UOCAVA have stoked controversy among military service members and others. Separately, thousands of voters have been individually challenged in Pennsylvania on similar grounds. |
Court of Appeals, State of Michigan |
| 6 | ⬆ +1 | 3 |
Georgia State Conference of the NAACP, et al., v. Raffensperger Civil rights groups on Sept. 24 challenged provisions of Georgia’s S.B. 189, which was passed earlier this year. The plaintiffs asked the court to block a provision that empowers private citizens to challenge another voter’s eligibility. They also challenge a provision that imposes requirements on voters without a permanent address, arguing that it unduly burdens voters experiencing homelessness. State and national branches of the Republican Party moved to intervene in support of Raffensperger. The court may consolidate this case with two similar lawsuits (here and here). |
U.S. District Court, Northern District of Georgia, Atlanta Division |
| 7 | ⬆ +2 | 3 |
Department of Homeland Security Sharing of Citizenship Information Challenges Florida, Texas, and Ohio have all sued the Department of Homeland Security (DHS) requesting additional information relating to immigrants’ citizenship status. That comes after the attorneys general of those three states joined 13 others to send a letter to Secretary of Homeland Security Alejandro Mayorkas demanding that DHS hand over this data. |
U.S. District Court, Northern District of Florida, Pensacola Division |
| 8 | ⬆ +2 | 6 |
Mi Familia Vota, et al., v. Fontes, et al. This consolidated case challenges two Arizona laws establishing new proof of citizenship standards for voters and requiring those who cannot meet those standards to be removed from voter rolls. Though it will no longer affect Arizonans’ right to vote in the 2024 presidential election, the case could have broader implications because the RNC and Republican state legislators have argued that the Arizona law should stand because Congress lacks authority to regulate presidential elections. Oral arguments were Sept. 10. |
U.S. Court of Appeals, 9th Circuit |
| 9 | ⬇ -3 | 4 |
Republican National Committee, et al. v. Wetzel, et al. On Oct. 25, the Fifth Circuit Court of Appeals ruled that Mississippi’s mail-in ballot receipt deadline was preempted by federal law and remanded the case to the lower court to determine the appropriate relief. However, the ruling will not apply during this election, as the mandate will not issue until after the election. The Mississippi law, which permitted the counting of ballots received up to five business days after the election as long as they are postmarked on or before Election Day, remains in effect pending further lower court proceedings. |
U.S. District Court, Southern District of Mississippi |
| 10 | ⬇ -6 | 3 |
RNC, et al., v. Aguilar, et al. On Oct. 28, the Nevada Supreme Court affirmed that late ballots without a postmark received in Nevada within three days of Election Day must be counted. Republicans originally sued to stop two Nevada counties—Washoe and Clark—from counting these ballots, but a trial judge rejected the request in a decision affirmed on appeal. |
Supreme Court of Nevada |
The other cases considered for inclusion this week were (in approximate rank order under our criteria): (11) Boustani, et al., v. LaRose (Ohio, federal court) ; (12) Republican National Committee v. North Carolina State Board of Elections (North Carolina, federal court); (13) Fontes v. Lewis, et al. (Arizona, state court); (14) Wisconsin Voter Alliance v. Kristina Secord (Wisconsin, state court); (15) Election Worker Intimidation Cases (Arizona, federal court and state court (here and here)) (Nevada, federal court); (16) Wassenberg v. North Carolina State Board of Elections (North Carolina, federal court); (17) Georgia Election Board Challenges (Georgia, state courts in Fulton (here and here), Dekalb, and Muscogee Counties); (18) Dagusen, et al., v. Aguilar, et al (Nevada, state court); (19) Hagen v. Montgomery County Board of Commissioners (Pennsylvania, state court); (20) Strong Communities Foundation of Arizona, Inc., v. Fontes (Arizona, state court).