Whither Republican National Committee v. Democratic National Committee?

06 Aug Whither Republican National Committee v. Democratic National Committee?

Although we are still a month away from the traditional Labor Day start of the presidential campaign season, the battle in the courts over how the election will be conducted is already well underway. While some amount of litigation would have happened in any event, much of the early activity is a result of alterations of the voting processes in response to the Covid-19 pandemic. This week alone has seen major developments in at least three separate federal lawsuits, each involving how absentee voting is being conducted this year. Some of these lawsuits are almost sure to reach the U.S. Supreme Court, potentially very soon.

In one of these cases, the U.S. District Court for the Middle District of North Carolina on Tuesday ordered North Carolina election officials to provide absentee voters with notice of material errors in their absentee ballots and an opportunity to remediate those errors. The court provided this relief on the basis that it was required under the Due Process Clause of the Fourteenth Amendment, in order to protect the voters’ right to vote, a fundamental liberty. However, whether this relief will survive appellate review is hard to predict, as the Supreme Court has not previously identified exactly what process voters are due under the Due Process Clause.

In the second case, the U.S. District Court for the Southern District of New York, relying primarily on the Equal Protection Clause of the Fourteenth Amendment, on Monday ordered New York election officials to count certain absentee ballots cast in the state’s June primary election that had previously been excluded from the count. At issue were ballots that had not been counted because they did not bear the required postmark evidencing that they had been mailed on or before Election Day. But the court found evidence that some timely mailed ballots were postmarked while some were not, and therefore said that as long as the ballots had been delivered by the second day after Election Day and did not bear a postmark later than Election Day, they should be counted even without a legible postmark.

In the third lawsuit, on Wednesday the Trump campaign filed a sweeping complaint against Nevada’s newly adopted election process in which all of Nevada’s registered voters will be mailed a ballot for the coming general election. One of the lawsuit’s several claims challenges the provision in the law that allows absentee ballots without a legible postmark to be counted if they are received by the third day after Election Day, an accommodation very much like the relief that the New York district ordered. But the complaint alleges that this accommodation could allow some Nevada voters to cast their votes after Election Day, in violation of the federal statute (3 U.S.C. § 1) that establishes the date for federal elections.  

Both the second and third cases raise questions that could require revisiting the Supreme Court’s April 2020 decision in Republican National Committee v. Democratic National Committee. That case, which in some sense marked the start of the 2020 election season in the U.S. Supreme Court, involved how to adapt to a dramatic increase in the number of voters using absentee ballots in the primary election in the state of Wisconsin.

From the moment last winter when the 2020 pandemic began to take hold in the United States, election officials have been working feverishly to ensure that voters are nonetheless able to vote safely in this year’s elections. Beginning in mid-March, when the first wave of the pandemic was building in many urban areas, a number of jurisdictions elected to postpone their primary elections until they could either develop new protocols for safer in-person voting or accommodate a substantial increase in mail-in voting. Wisconsin, however, opted instead to press forward with its primary election as scheduled in early April.

Unfortunately, Wisconsin election officials were not prepared for the dramatic last-minute increase in requests for absentee ballots that resulted when voters decided they did not want to risk voting in-person just as the pandemic was arriving. The result was tens of thousands of Wisconsin primary voters who timely requested absentee ballots but did not receive them in time to cast them. Several days before Election Day, a federal district court ordered state election officials to allow these voters to cast and return their absentee ballots for six additional days beyond Election Day.

On expedited review, the day before the Wisconsin primary the U.S. Supreme Court modified the district court’s order to prohibit the counting of any absentee votes cast after Election Day. The Court explained that permitting voters to vote after the prescribed Election Day would work a fundamental transformation of the election itself. The Court did not alter the portion of the district court’s order that permitted absentee ballots to be received up to six days after Election Day, but imposed a new requirement that these late-arriving ballots bear a postmark on or before Election Day.

The problem with this requirement is that not every piece of mail actually receives a postmark, as the district court in New York acknowledged in its order this past Monday. Both the new Nevada law and the New York district court order attempt to finesse the postmark problem by presuming that mail received within two or three days of Election Day is, under current U.S. Postal Service processes, likely to have been mailed by Election Day, unless it bears a postmark that affirmatively proves it to have been mailed after Election Day.

Yet these accommodations still could run afoul of the Supreme Court’s RNC v. DNC decision and its apparently firm stance against election procedures that could permit voting to occur beyond Election Day. The New York district court saw it as “virtually impossible” that an absentee ballot received the day after Election Day was cast after Election Day, and “highly likely” that an absentee ballot received by the second day after Election Day was timely cast. But the Supreme Court might not see the issue this way, and the Nevada district court might first have its own chance to consider the issue.