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Courts view GOP fraud claims skeptically as Democrats score key legal victories over mail voting

The Washington Post logo The Washington Post 9/28/2020 Elise Viebeck
a person standing in front of a building: A voter prepares to cast her mail-in ballot at the C. Blythe Andrews Jr. Public Library in Tampa on Aug. 16. © Octavio Jones/Reuters A voter prepares to cast her mail-in ballot at the C. Blythe Andrews Jr. Public Library in Tampa on Aug. 16.

For six months, the rules for how Americans can vote during the coronavirus pandemic have been locked in court battles while states across the country rushed to embrace mail ballots.

Now, with just weeks to go before the Nov. 3 election, voting rights advocates and Democrats have advanced on key fronts in the legal war, scoring victories that make mail voting easier, ensure votes cast by mail are counted and protect the wide distribution of mail ballots in some states.

A review by The Washington Post of nearly 90 state and federal voting lawsuits found that judges have been broadly skeptical as Republicans use claims of voter fraud to argue against such changes, declining to endorse the GOP’s arguments or dismissing them as they examined limits on mail voting. In no case did a judge back President Trump’s view — refuted by experts — that fraud is a problem significant enough to sway a presidential election.

Some of the Democrats’ wins have been preliminary. And in many cases, judges issued split decisions, granting some of the changes sought by liberal plaintiffs and otherwise maintaining the status quo as favored by Republicans.

But The Post found that judges appointed by both Republicans and Democrats alike have been dubious of GOP arguments that lowering barriers to mail voting could lead to widespread fraud.

“Do you have any evidence of any voter fraud actually existent in Montana in the last 10 to 20 years?” District Judge Dana L. Christensen, an appointee of President Barack Obama, pressed a GOP lawyer in a Missoula courtroom last week.

“No,” said the lawyer, James Bopp Jr., who is representing Republicans in a suit challenging the state’s decision to allow counties to run all-mail elections this fall. “No. But it is, with all due respect, I understand your question, but no, it’s irrelevant.”

Bopp went on to assert, without offering evidence, that counties proactively mailing ballots to voters could introduce voter fraud in the state. Christensen has not yet issued a ruling.

Many important rules for voting remain in flux after hundreds of cases were filed in more than 44 states. The decisions will shape the contours of an election already made singular by the public health crisis and Trump’s preemptive declarations that the outcome will be rigged.

[Trump’s escalating attacks on election prompt fears of a constitutional crisis]

So far, GOP lawyers have scored several defensive wins related to mail ballots, such as maintaining North Carolina’s witness requirement and keeping in place limitations on third parties collecting and returning ballots or applications, which Republicans deride as “harvesting,” in Florida, Minnesota and Michigan.

“The RNC continues to fight back against Democrat efforts to overhaul our elections system — and we are winning,” said Mandi Merritt, a spokeswoman for the Republican National Committee, in a statement.

Two other high-profile voting cases have also gone for Republicans, at least for now: In Florida, a federal appeals court sided with GOP state leaders who passed a law requiring people convicted of felonies to pay off fines before they can vote. And in Texas, Republican officials have successfully fended off efforts to make absentee voting available to those who fear exposure to the coronavirus.

a person standing in a harbor: Election worker Nancy Wilcox looks through mail-in ballot requests at the Johnson County election office in Olathe, Kansas, on Sept. 22. © Charlie Riedel/AP Election worker Nancy Wilcox looks through mail-in ballot requests at the Johnson County election office in Olathe, Kansas, on Sept. 22.

The landscape could change after Nov. 3: Trump has already indicated that he plans to aggressively challenge the election results if they don’t go his way, which could lead to a wave of new lawsuits after Election Day over which ballots should count.

But when it comes to setting the rules for the election, the results of litigation so far show that Republicans have struggled to offer proof for their claims about the risk of widespread voter fraud, according to court filings and oral arguments reviewed by The Post. In several cases, GOP lawyers cited minor episodes of alleged fraud that occurred in other states in past years, prompting rebukes from judges. And the RNC, which initially trumpeted several lawsuits against individual states, dropped its legal fight in California after the state legislature approved the Democratic governor’s plan to proactively mail ballots to voters A similar RNC case in Nevada was dismissed last week by a federal judge.

In his order, Judge James C. Mahan of the District of Nevada, who was appointed by President George W. Bush, wrote that “the alleged injuries are speculative.”

“Not only have plaintiffs failed to allege a substantial risk of voter fraud, the State of Nevada has its own mechanisms for deterring and prosecuting voter fraud,” he added.

Justin Levitt, a professor at Loyola Law School who tracks voting rights litigation, said the GOP fraud argument “has not found much purchase in the courts.”

“When actual judges are reviewing cases, they demand — whether you’re progressive or conservative — actual facts,” he said. “And the courts have not been kind to the unsupported claims of, ‘There’s going to be fraud,’ all-caps, exclamation points everywhere.”

Tumultuous year for voting

As Election Day approaches, unresolved voting lawsuits are producing headlines — and whiplash — almost daily. In South Carolina, a witness requirement for mail ballots that had been blocked by a federal judge was put back in effect Thursday by an appeals panel — an order that was then reversed Friday by the full court, which plans to review the case. Absentee voting has already begun in the state.

Meanwhile, a Montana state judge on Friday imposed a postmark-by-Election-Day deadline, gave voters more time to fix ballot errors and struck down restrictions on third-party ballot collection.

The judge, Donald L. Harris, wrote that Montana Secretary of State Corey Stapleton, a Republican, “presented no evidence that organized ballot collection services have ever interfered with or defrauded voters.”

“Nor has there been a single instance of ballot collection fraud in Montana,” wrote Harris, who was appointed in 2017 by Democratic Gov. Steve Bullock.

Key aspects of voting remain contested in battleground states: Republicans have appealed extended ballot receipt deadlines in Wisconsin, Michigan and Pennsylvania, as well as the use of drop boxes for returning ballots in Pennsylvania.

“If there are going to be changes that happen to the status quo, we’re getting really, really close to the time when a lot of them are going to be done by the courts — at least the big ones,” said Myrna Pérez, director of the Voting Rights and Elections Program at the Brennan Center for Justice.

Meanwhile, hundreds of thousands of Americans have already cast their ballots by mail or through early voting, meaning last-minute court decisions could inject even more confusion and uncertainty into an already tumultuous election year.

An unprecedented 198 million Americans — at least 84 percent of voters — are eligible to cast mail ballots during the general election, thanks to state policy changes. Eleven states have chosen to send voters applications for mail ballots because of the pandemic, while four states and D.C. plan to send actual ballots over criticism from Republicans. Before this year, five states already ran universal mail elections.

[How to vote in your state in the 2020 election]

“The positive thing that we can say is that the majority of election officials in this country have moved to provide more access to the ballot,” said Sylvia Albert, director of Common Cause’s voting and elections program, on a call with reporters last week.

The exceptions: Texas, Louisiana, Mississippi, Tennessee and Indiana, which are still barring most people from voting by mail during the pandemic, under the direction of Republican officials.

While governors and state legislatures of both parties have been responsible for broad expansions of mail voting, many battles over this year’s election policies have played out in the courts, which have fielded a rush of litigation.

By the beginning of July, voting rules were already the subject of more than 60 lawsuits. As of this month, the pandemic has produced more than 300 election-law cases around the country, according to a list maintained by the Stanford-MIT Healthy Elections Project.

Albert said voters have benefited from a general shift toward mail voting this year, but added that a clear winner in the legal battles has not emerged.

“I would actually say it’s a mixed bag, and that’s the reflection of the decentralization of our election system. So while state judges have actually found generally more in favor of expanding voting rights, federal courts have generally deferred to the wants of the local election officials,” she said.

Voting rights advocates and Democrats have doubled-down on priorities such as allowing all voters to use mail ballots and letting community groups collect and return them. Concerns about rejected ballots have also raised the stakes in battles over postmark rules and guaranteeing voters the chance to fix, or “cure,” their mistakes.

More than 534,000 mail ballots were tossed during primaries in 23 states this year, including more than 60,480 in Michigan, Pennsylvania and Wisconsin — states where Trump clinched his 2016 victory with a margin of roughly 80,000 votes.

Studies have found that the risk of ballot rejection is heightened for younger voters and voters of color, who tend to lean politically toward Democrats.

a group of people standing next to a sign: Students wait in line to register to vote or request a ballot for the November election as early voting begins Sept. 24 in Ann Arbor, Mich. © Emily Elconin/Reuters Students wait in line to register to vote or request a ballot for the November election as early voting begins Sept. 24 in Ann Arbor, Mich.

The Post examined 89 suits across 35 states and Puerto Rico that are directly relevant to mail voting for the general election, and found that Democrats and voting rights groups have won pivotal early victories when it comes to the technical details of which ballots count, even as Republicans seek to undo the decisions on appeal.

In about a half-dozen states, lawsuits from Democrats and voting rights advocates have produced rulings or agreements ordering election officials to count ballots if they are postmarked by Election Day but arrive within a certain period.

In a similar number of states, legal pressure has also led to new or longer “cure” periods for voters to fix problems with their ballots.

Levitt pointed to these decisions as an example of courts being “willing to modify the status quo in minor ways to accommodate the massive change of circumstances that is the pandemic,” but added that judges “have not accepted every claim by a long short.”

“The courts have modified existing practices somewhat, usually temporarily. They’ve not validated the more far-flung claims,” he said.

Many of the cases on the left have been shepherded by Marc Elias, the leading Democratic elections lawyer, who has estimated that his lawsuits have produced more than 20 victories so far. Elias declined to comment.

Trump campaign spokesman Ken Farnaso said the reelection committee is “fighting every day to protect American voters from the Democrats’ endless attacks on election integrity. We’ll continue that fight — regardless of the fact that, in some cases, liberal judges are legislating from the bench to stack the deck for Joe Biden.”

As evidence of the risk of election tampering, Merritt of the RNC pointed to scattered episodes, such as a Paterson, N.J., city council election in May that was invalidated amid charges of voter fraud, a case Trump has repeatedly touted. (Local leaders have said Trump’s remarks have oversimplified the episode, adding that many ballots were thrown out because of minor voter errors.) The president himself has encouraged voters to cast ballots twice as a way of testing the system, which is illegal.

Fraud allegations stumble

Republican arguments about alleged fraud in mail voting — especially Trump’s claim that despite safeguards, mail ballots can be used to manipulate elections on a grand scale — have been largely unsuccessful in persuading judges to keep existing restrictions on mail voting or allow their lawsuits to move forward.

The Post tallied 14 rulings in which federal or state judges declined to embrace the GOP’s arguments or dismissed them outright as speculative, overly general and lacking proof.

Judge Shelly D. Dick of the Middle District of Louisiana called the evidence for fraud offered by Republicans “woefully inadequate” this month while ordering the state to allow people directly affected by the coronavirus to cast mail ballots, as it did in recent primaries.

“They offer not a scintilla of evidence of fraud associated with voting by mail in Louisiana,” Dick, an Obama appointee, wrote of Republican state officials. “Strikingly absent is even a hint of fraud in the July and August primaries, where expanded mail voting was available to voters with COVID-19 comorbidities, caretakers, and others.”

Michigan Court of Claims Judge Cynthia Diane Stephens ruled the same week that state officials must count mail ballots postmarked no later than Nov. 2 that are received up to 14 days after the election.

“The documentary evidence in this case reveals that the incidences of voter fraud and absentee ballot fraud are minimal and that the fears of the same are largely exaggerated,” wrote Stephens, who was originally appointed to a state appeals court by a Democratic governor.

text: Vote-by-mail ballots ready for transport in Lauderhill, Fla. © Lynne Sladky/AP Vote-by-mail ballots ready for transport in Lauderhill, Fla.

And Judge Robert M. Dow Jr. of the Northern District of Illinois recently rejected a GOP effort to block election officials from sending mail ballot applications to state voters who participated in elections in the past two years. The program, enacted this summer under a new state law, applies only to 2020.

Dow, a George W. Bush appointee, wrote that the GOP’s allegations about the risk of voter fraud “rest primarily on unsupported speculation and secondarily on isolated instances of voter fraud in other states and historical examples from Illinois during the prior century.”

“The isolated incidents cited lend support to the proposition that over time voter fraud rates have ‘remained infinitesimally small,’ ” Dow added. The Cook County Republican Party withdrew its suit last week.

In a handful of cases, judges have said a state’s interest in preventing fraud outweighed the burden for voters imposed by certain restrictions on mail ballots.

On Sunday, Judge Michael H. Watson of the Southern District of Ohio declined a request from the League of Women Voters to block Ohio election officials from enforcing signature-matching rules without uniform standards and a robust “cure” period.

“The State has a substantial interest in preventing election fraud (however uncommon that may be), promoting confidence in elections, and administering an orderly election,” wrote Watson, a George W. Bush appointee. He noted that plaintiffs and national Republicans had cited “drastically different research regarding the threat election fraud actually poses.”

In North Carolina, a federal judge wrote last month that the state’s mail-ballot witness rule “plays a key role” warding off potential fraud in a state still grappling with the aftermath of an election fraud case involving a Republican operative in 2018.

Some early Democratic gains could be overturned in the dwindling weeks before Nov. 3. Republicans are appealing key cases they have lost, including and Pennsylvania, where the state Supreme Court this month ruled in Democrats’ favor on a number of mail-voting rules, including allowing ballots to be returned up to three days after Election Day.

GOP state leaders filed an appeal Monday to the U.S. Supreme Court — teeing up the first potential partisan voting case to go before the justices since the death of Justice Ruth Bader Ginsburg.

Separately, pending further review, a federal appeals court on Sunday stayed a lower court’s injunction that would allow mail ballots in Wisconsin to count if postmarked by Election Day and received up to six days later.

“The RNC routinely prevails on the most important claims, even before unfriendly courts,” said Merritt in a statement, adding: “We have won already won at the Supreme Court and many Federal Appellate courts, and we expect more victories to come.”

Robert Barnes and Ann Marimow contributed to this report.

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