The midterms have sparked debate as to whether this election is a referendum on the future of American democracy. Historian Michael Beschloss and President Joe Biden have sounded the alarm, while law professor Jonathan Turley and commentator Jonah Goldberg insist that democracy is not on the ballot. (“You’re all losing your frickin’ minds,” Goldberg writes.) But at least from a legal standpoint, this is no ordinary election. According to Democracy Docket, GOP-aligned groups have filed nearly five times the number of anti-voting lawsuits that they brought in 2021 and three times the number filed in 2020. And this time around, the fight is not focused on whether folks should be allowed vote. It’s about canceling votes after they’ve been cast, particularly if via dropbox or absentee ballot, the use of which was popularized during the COVID-19 pandemic. And the GOP has opened new frontiers on criminal penalties if voters make mistakes.
In Florida, Governor Ron DeSantis’s novel “Office of Election Crimes and Security” is already having an effect on turnout, particularly among black voters, fifteen of whom have already been arrested for allegedly (but inadvertently and in some instances on the advice of election officials) voting when they did not qualify. The Florida legislature has made it illegal to deliver, or even to possess, more than two absentee ballots for people who are not close relatives; errors can trigger a $5,000 fine and up to five years in prison. New laws also limit the ability of third-party groups to register voters—96,000 were aided in 2018, down to 31,000 so far this year—else they face up to $50,000 in fines. These and other new ballot restriction rules disproportionately hurt black voters, who are mostly Democrats. “I have been one who has collected hundreds of ballots, all legitimate ballots, to help persons and make it convenient for them to vote,” La Von Bracy, a director of a religious nonprofit, told the Washington Post. “Now I’m getting calls from people saying ‘Ms. Bracy, can you come get my ballot?’ I say, ‘Sorry, no. I’m not going to risk getting a police record.’”
Another trio of GOP-backed cases in Michigan, Wisconsin, and Pennsylvania puts in stark relief how the courts have become weaponized since Donald Trump’s legal escapades in 2020. In Michigan, the Republican candidate for secretary of state, Kristina Karamo, along with a collection of poll “watchers” and “challengers,” sued the Detroit city clerk, Janice Winfrey, seeking an injunction banning the counting of absentee ballots that aren’t physically requested in person rather than absentee (including for military personnel overseas). Only Detroit voters, who are 77 percent black, were targeted. In 2018, the Michigan state constitution was amended by referendum to guarantee citizens “the right, once registered, to vote an absent voter ballot without giving a reason, during the forty (40) days before an election, and the right to choose whether the absent voter ballot is applied for, received and submitted in person or by mail.” (Emphasis added.)
The case wasn’t dismissed outright. In an eight-hour virtual hearing on November 3, during which Detroit election officials who’d otherwise be running the election were called to testify, Judge Timothy Kenny chastised Karamo’s lawyer for “fishing” and “speculating,” demanding: “Where is the evidence?” The plaintiffs’ lawyer, Daniel Hartman, retorted: “What I’m trying to prevent is the person that is sitting in China who hasn’t been to the United States or Detroit in 18 years, who may or may not exist, from casting a ballot through this lack of election security.” (This is where judicial taxpayer dollars are going these days.) In a brutal 24-page opinion issued Monday, Judge Kenny ruled that the Republican challenge “failed dramatically” and carried “intolerable” harm to Detroit citizens: “While it is easy to hurl accusations of violations of law and corruption, it is another matter to come forward and produce the evidence our Constitution and laws require.”
In Wisconsin, the Republican Party of Waukesha County sued the Wisconsin Elections Commission, but managed to secure a temporary restraining order banning the use of a “guidance” document for election workers. The document addressed what to do when voters provide incomplete information on the absentee ballot certificate envelopes—specifically, when the address of the person who witnessed them cast their ballot is missing or incomplete. That’s right. The gripe is not about the actual voter’s information—it’s instead about the details of the address of the individual who served as a witness. The guidance told election officials that they were allowed to fill in missing information if they have a reliable source. The Wisconsin GOP claimed it was “harmed” by this. The courts agreed. On September 13, the commission withdrew its guidance following a ruling prohibiting it from providing any such advice. Voters, for their part, were left to fend for themselves to ensure their votes weren’t canceled on that technicality.
Along similar lines, the Republican Party of Pennsylvania and the Republican National Committee won their legal bid to stop the counting of all mail-in ballots lacking a date on the outer envelope. Again: nothing wrong with the name or address, mind you, or the contents of the actual ballot. This time, the ruling came down after people had already voted. In its decision finding for the GOP, the Pennsylvania Supreme Court admitted that the court was “evenly divided” on whether not counting the ballots violated the federal Voting Rights Act. It issued the injunction anyway. As a result, over 2,000 ballots have already been rejected in Philadelphia, a city whose population is over 46 percent black. Although election officials have made efforts to inform voters that their ballots had been tossed out, since the November 1 decision, reaching everyone has proven to be impossible. Said voter Jean Terrizzi, 95, to the Washington Post: “I am totally disabled” and will just have to “let it go.”
The bright side is that Michigan’s Judge Kenny is not alone in holding tight to the ballast of the rule of law. Other courts have mandated, for example, that Vassar College students have a place to vote under New York law (the Republican county board of elections commissioner has appealed), and that Spanish-speaking Pennsylvanians have Spanish-language materials and assistance in voting, as federal law requires. Perhaps most strikingly, in Arizona, a state that’s frighteningly poised for potential violence at the polls, a judge entered a restraining order preventing camo-clad ballot-watchers—some reportedly already hiding in bushes—from openly carrying firearms within 250 feet of a polling location.
Phew, I guess.