Case Updates: Week of Oct. 26-30

01 Nov Case Updates: Week of Oct. 26-30

Minnesota:

• In Carson v. Simon, a three-judge panel of the Eighth Circuit U.S. Court of Appeals reversed the decision of a district judge who had ruled that Republican electors did not have standing to challenge the extension by the Minnesota Secretary of State of the mail-in ballot receipt deadline. The Eighth Circuit panel concluded that the electors did have standing and that preliminary relief on their constitutional challenge to the deadline extension was warranted. The Eighth Circuit blocked the extension of the deadline and ordered that mail-in ballots arriving after Election Day be segregated from other mail-in ballots, in case their validity becomes an issue at a later stage of the litigation. The Trump campaign and others also filed a petition in the Minnesota Supreme Court to ensure that late-arriving mail-in ballots are segregated by election officials. See Trump v. Simon. News reports have indicated that the Minnesota Secretary of State will not seek a stay from the U.S. Supreme Court of the Eighth Circuit decision.

North Carolina:

• In Moore v. Circosta, the U.S. Supreme Court denied an application by North Carolina Republican legislators to stay a federal district judge’s decision that permitted the state election board’s extension of the mail-in ballot receipt deadline. The court did not provide reasons for denying the application. Justice Thomas would have granted the application. Justice Gorsuch wrote a dissenting opinion, which Justice Alito joined. The next day, the Supreme Court denied a similar application stemming from North Carolina state courts’ refusal to block a trial court consent judgment ordering the board to extend the deadline.

Pennsylvania:

• Last week, in Pennsylvania Democratic Party v. Boockvar, the U.S. Supreme Court denied a motion by the Pennsylvania Republican Party and others to block a decision of the Pennsylvania Supreme Court extending the absentee ballot receipt deadline. Pennsylvania Republicans subsequently filed a petition for writ of certiorari with the U.S. Supreme Court, asking the court to rule on the merits of the case. This week, the U.S. Supreme Court denied Republicans’ motion to expedite its consideration of the case, ensuring that the court would not rule prior to Election Day. Luzerne County, Pennsylvania filed a motion for new Justice Amy Coney Barrett to recuse herself from the case, but the motion was subsequently withdrawn after the Luzerne County Council voted against proceeding with the motion.
• In Bognet v. Boockvar, U.S. District Judge Kim Gibson determined that the Pennsylvania Supreme Court’s September decision creating a presumption of timeliness for absentee ballots arriving within the three-day period after Election Day, but without a postmark or with an illegible postmark, likely violates the Equal Protection Clause of the U.S. Constitution. However, Judge Gibson denied relief to the plaintiffs due to the close proximity of the election and the confusion a change in rules would cause. The plaintiffs appealed to the Third Circuit, which denied their motion for an expedited briefing schedule. The court ordered the parties to file briefs by Monday of the week following the week of Election Day.

Texas:

• In Anti-Defamation League v. Abbott, the Texas Supreme Court reversed a decision of the Third District Court of Appeals and dissolved an injunction issued by the trial court that blocked Governor Abbott’s order authorizing only one drop-off location per county for absentee ballots. Governor Abbott’s order therefore remains in effect.
• In Hotze v. Hollins, plaintiffs filed a complaint in federal district court against Harris County, Texas clerk Chris Hollins, alleging that the county’s provision of curbside voting violates Texas election law and the U.S. Constitution. The plaintiffs have asked the court to order the rejection of any votes already cast according to the county’s curbside procedures. A district judge has scheduled an emergency hearing for Monday morning.

U.S. Postal Service Cases:

• In Washington v. Trump, U.S. District Judge Stanley Bastian ordered daily hearings through Nov. 10 for the USPS to report on facilities and processing centers in particular regions of Michigan and Wisconsin.

Wisconsin:

• In Democratic National Committee v. Wisconsin State Legislature, the U.S. Supreme Court denied the application of the Democratic National Committee and others seeking to vacate a Seventh Circuit decision that blocked a district judge’s extension of Wisconsin’s absentee ballot receipt deadline. The court did not issue a majority opinion explaining the reasons for the denial, but Chief Justice Roberts issued a concurring opinion attempting to reconcile the case with a differing result in Pennsylvania Democratic Party v. Boockvar. Justices Gorsuch and Kavanaugh issued separate concurring opinions, while Justice Kagan authored a dissent.