Democrats challenge election laws in battleground states

A year before the 2020 presidential election, Democratic groups are filing lawsuits in new and emerging battleground states, challenging election laws and procedures they say disproportionately affect young and minority voters.

Those groups have filed seven lawsuits in recent weeks, challenging election laws in five states. And more suits are coming, said Marc Elias, the Democratic election law expert whose firm is overseeing the litigation. 

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In Georgia, Texas and Arizona, coalitions of Democratic groups are challenging state laws that will list Republican candidates first in any given race. Social science research has found that a candidate listed first on a ballot can benefit by as much as 2.5 percentage points, through what researchers call the primacy effect.

“Especially given the history of Republican efforts at voter suppression in Georgia, the result from the last election should not determine who wins the next one,” said Nikema Williams, who heads the Georgia Democratic Party. 

Last year, Georgia’s governor’s race and two congressional races were decided by 1 percentage point or less. In Texas, Rep. Will HurdWilliam Ballard HurdCNN's Bianna Golodryga: 'Rumblings' from Democrats on censuring Trump instead of impeachment Republicans preview impeachment defense strategy Davis: Congressman Will Hurd, If not now, when? MORE (R) won reelection by half a percentage point.

State Democratic parties have teamed up with the Democratic Congressional Campaign Committee (DCCC) and the Democratic Senatorial Campaign Committee (DSCC) in Texas and North Carolina to challenge new laws related to early voting. 

In Texas, the Republican-controlled legislature passed a ban on mobile early voting stations, which some counties have used to get hard-to-reach populations to the polls. 

In North Carolina, Democrats sued to reinstate a final day of early voting on the Saturday before an election — historically the most popular day for early voting. That suit may be moot, though: Gov. Roy Cooper (D) signed legislation last week bringing back the final Saturday voting.

The largest Democratic super PAC, Priorities USA, is challenging a Michigan law that allows election administrators to throw out absentee ballots if the signature on the ballot does not match a signature on file. And in Georgia, Priorities USA has joined the DCCC, the DSCC and the state Democratic party in asking judges to require counties to tell voters when their signatures do not match and their ballots are rejected.

“If you look at the nature of the cases we’ve been involved in in the past, the issues we are challenging can impact anyone,” said Aneesa McMillan, who directs voting rights programs at Priorities USA. “Our focus simply remains just ensuring all Americans who are eligible to vote, whether they’re Democrats or Republicans, have the opportunity to do so.”

Republicans defending the laws their legislators wrote say the Democratic lawsuits will make elections less secure. The Michigan lawsuit “is yet another example of liberals trying to strip away election security measures for their own benefit,” said Laura Cox, who heads the Michigan Republican Party.

“If it were successful, it could open the door to massive voter fraud in our state and call the legitimacy of Michigan’s absentee ballots into question,” Cox said.

But Democrats counter that absentee ballot fraud is so rare that it almost never takes place, and that signature matching laws are far more likely to exclude legitimately cast votes.

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“Signature matching has very little if any science behind it, and none when you’re talking about lay people matching signatures at the end of a long day administering elections,” Elias said in an interview. “At some point as a country we are going to have to confront the fact that we are throwing away tens of thousands of lawful votes in a futile effort to find one or two fraudulent votes.”

In Georgia alone, more than 8,000 absentee ballots were thrown out in 2018 because signatures did not match — about 3 percent of the overall number of absentee ballots cast that year.

Democrats and the American Civil Liberties Union have challenged signature-matching laws in recent years in Florida, Iowa and New Hampshire. They say those laws disproportionately affect the elderly, the disabled and people who might have suffered a stroke or other medical issue.

The flurry of lawsuits filed so far ahead of Election Day is part of a legal strategy meant to avoid last-minute court fights. 

In the past decade, several courts have put late challenges to election laws on hold to avoid confusion for voters or election administrators, said Richard Hasen, an election law expert at the University of California-Irvine. Hasen calls it the Purcell principle, after a 2006 case in which the Supreme Court blocked an injunction against Arizona’s voter identification law.

“Now is the time to clean up as many issues as possible to ensure a fair and even landscape in the 2020 election season,” said Kristen Clarke, who heads the Lawyers’ Committee for Civil Rights Under Law. “Now is a critical time to take corrective action.”

The new suits come after Elias and Democratic groups led successful challenges to district boundary lines in Pennsylvania, Virginia and North Carolina, and to other election laws in Wisconsin, Missouri, Iowa and Florida in recent years. 

This round of challenges is unlikely to generate the same types of major headlines, but they are meant to help in states where next year’s elections are expected to be closely fought.

“These lawsuits are all focused on provisions that will meaningfully impact the ability of voters to cast ballots and have their ballots counted equally with other citizens. They’re not necessarily the flashiest lawsuits,” Elias said. “But we believe they are meritorious lawsuits.”

Elias heads Perkins Coie’s Political Law Group, where he counts most Democratic senators, dozens of members of Congress, most of the party’s major committees and many of its largest super PACs among his clients. That allows the firm to group clients together when mounting challenges to different state election laws, he said.

Several groups said the litigation is necessary because the Justice Department has not taken its own steps to challenge state election rules. The department has had limited ability to intervene in states once covered by the Voting Rights Act after a 2013 Supreme Court decision struck down a critical element of that law, and the Trump administration has shown little interest in pursuing some voting rights cases.

“The Justice Department is missing in action. We’ve never seen this level of silence from the Justice Department,” Clarke said. “They are not out there responding to systemic issues raised by voters, they are not actively filing litigation. We’re stepping in to fill that void.”