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Election Litigation: COVID-19 and Emergency Election Litigation
A global infectious pandemic triggered changes in election procedures. It also triggered litigation over election procedures. Some of the cases filed in federal courts required emergency action by the court, and the case-management challenges posed by these cases are described in the thirty-three case studies posted here.
This page is part of the Federal Judicial Center’s special topics website on election litigation, which includes several hundred additional case studies of emergency election litigation in federal courts. The site also includes FJC publications on certain election law statutes and a bibliography of election law scholarship.
Coronavirus disease 2019 (COVID-19) also triggered cases that may have been time-sensitive but not quite emergencies, and many of these cases are listed in the following external resources:
- The Ohio University Mortiz College of Law’s election-law website (moritzlaw.osu.edu/election-law).
- The election-law blog (electionlawblog.org) of University of California at Irvine School of Law's professor Rick Hasen.
- The Stanford and MIT Healthy Elections Project's tracking of election litigation related to COVD-19 (healthyelections-case-tracker.stanford.edu/cases).
- Tracking by Mortiz and SCOTUSblog of major cases, some of which may come before the Supreme Court (scotusblog.com/election-litigation).
No Constitutional Right to Distribute Absentee Ballot Applications
Lichtenstein v. Hargett (Eli Richardson and Aleta A. Trauger, M.D. Tenn. 3:20-cv-736)
A time-sensitive federal complaint challenged Tennessee’s proscription on the distribution of absentee ballot applications by persons other than election officials, noting the importance of absentee voting during a global infectious pandemic. The district court denied immediate relief.
Subject: Absentee and early voting. Topics: Absentee ballots; COVID-19; case assignment; signature matching.
Staying a Federal Action While a State Action Proceeds Over Mailing Unsolicited Absentee Ballot Applications in Detroit During an Infectious Pandemic
Reed-Pratt v. Winfrey (Robert H. Cleland, E.D. Mich. 3:20-cv-12129)
During the global COVID-19 infectious pandemic, a federal action challenged the legality of Detroit election officials’ mailing out unsolicited absentee ballot applications. Recognizing the complexity of applying state law on the matter during the pandemic, the district judge declined jurisdiction over the state claims and stayed the federal claim pending a related action in state court.
Subject: Absentee and early voting. Topics: Absentee ballots; COVID-19; matters for state courts; enforcing orders.
A Consent Decree Waiving the Witness Requirement for Voting by Mail in Rhode Island During an Infectious Pandemic
Common Cause Rhode Island v. Gorbea (Mary S. McElroy, D.R.I. 1:20-cv-318)
For the June 2020 presidential primary election in Rhode Island, the governor suspended the state’s requirement that mail-in ballots be witnessed by a notary or by two other witnesses. A district judge approved a consent decree applying the witness requirement suspension to elections in Rhode Island in September and November. The court of appeals and the Supreme Court denied a major political party’s motion to stay the consent decree.
Subject: Absentee and early voting. Topics: Absentee ballots; COVID-19; intervention; interlocutory appeal; laches; primary election.
Modifying the Postmark Requirement for Mailed Ballots in New York
Gallagher v. New York State Board of Elections (Analisa Torres, S.D.N.Y. 1:20-cv-5504)
New York’s allowance for voting by mail during the global COVID-19 infectious pandemic of 2020 had a postmark requirement, but prepaid mail was not always postmarked, so a district judge ordered that ballots received by the day after the election would be counted without a postmark and ballots received by the following day would be counted unless they had a postmark after election day.
Subject: Absentee and early voting. Topics: Absentee ballots; COVID-19; intervention; primary election; class action.
Getting a New Party on California’s Ballot During a Pandemic
Kishore v. Newsom (Dolly M. Gee, C.D. Cal. 2:20-cv-5859)
A complaint challenged the signature requirements to get a new party on the ballot during an infectious pandemic. Because gathering signatures was not the only way to get on the ballot, the district court denied the party relief. Voters could register as members of the new party, and registrations could be recruited by email or social media.
Subject: Getting on the ballot. Topics: Getting on the ballot; COVID-19; laches; interlocutory appeal.
Ballot Petition Signature Requirements in Oregon During a Pandemic
People Not Politicians Oregon v. Clarno (Michael J. McShane, D. Or. 6:20-cv-1053)
A district judge granted relief to proponents of an initiative with respect to the number of ballot petition signatures required and the deadline for submission. But the Supreme Court stayed the injunction. The court of appeals determined that the stay made resolution of the case in time for the election impractical.
Subject: Ballot measures. Topics: Getting on the ballot; ballot measure; COVID-19; laches.
Ballot Petition Signature Requirements in Maine During the COVID-19 Pandemic
Bond v. Dunlap (1:20-cv-216) and Jorgensen v. Dunlap (1:20-cv-272) (Nancy Torresen, D. Me.)
Because of social distancing made necessary by the global COVID-19 infectious pandemic, prospective candidates in Maine’s 2020 general election sought court-ordered modifications to the ballot petition signature requirements. One candidate’s effort was unsuccessful, and the other’s was mooted by her obtaining a sufficient number of signatures without judicial modification.
Subject: Getting on the ballot. Topics: Getting on the ballot; COVID-19; intervention; laches.
Electronic Ballot Petition Signatures in Rhode Island During a Pandemic
Acosta v. Restrepo (Mary S. McElroy, D.R.I. 1:20-cv-262)
Because of the global COVID-19 infectious pandemic, a district judge in Rhode Island ordered election officials to accept ballot petition signatures electronically.
Subject: Getting on the ballot. Topics: Getting on the ballot; COVID-19.
No Constitutional Right to Greater Publicization of Early Voting for a Special Congressional Election
McMurray v. Mohr (Lawrence J. Vilardo, W.D.N.Y. 1:20-cv-689)
A district judge denied immediate relief to plaintiffs who sought an injunction requiring county election officials to publicize more widely early voting opportunities for a special congressional election.
Subject: Absentee and early voting. Topics: Early voting; COVID-19; interlocutory appeal.
No Relief from Reductions in Polling Locations in Kentucky During a Pandemic
Nemes v. Bensinger (Charles R. Simpson III, W.D. Ky. 3:20-cv-407)
Because of the global COVID-19 infectious pandemic, some populous counties in Kentucky planned to operate only one polling place each for a primary election in which voting by mail would be encouraged. A federal judge denied a requested injunction to require more polling places.
Subject: Voting procedures. Topics: Poll locations; COVID-19; intervention; case assignment; recusal; primary election.
Initiative Ballot Petition Signature Requirements in Idaho During an Infectious Pandemic
Reclaim Idaho v. Little (B. Lynn Winmill, D. Idaho 1:20-cv-268)
Because of social distancing made necessary by the global infectious COVID-19 pandemic, sponsors of a ballot initiative sought modifications to the ballot petition signature requirements. A district judge decided that the plaintiffs were entitled to relief and suggested two possibilities. The state instead sought a stay of the injunction. Although the district court and the court of appeals denied the state a stay, the Supreme Court granted one, and online signature collection efforts ceased. The plaintiffs then determined that court resolution of their case through the federal court’s three levels would take too long to make certification of their initiative for the ballot possible.
Subject: Ballot measures. Topics: COVID-19; getting on the ballot; ballot measure; enforcing orders; interlocutory appeal; laches.
No Additional Polling Place in Washington, D.C.’s Ward 8 During the COVID-19 Pandemic
Robinson v. Board of Elections (Dabney L. Friedrich, D.D.C. 1:20-cv-1364)
Because of poor mail service in the ward and health risks resulting from the COVID-19 global infectious pandemic, two plaintiffs sought an order requiring the establishment of an additional polling location in their ward. The district judge denied immediate relief.
Subject: Voting procedures. Topics: Poll locations; COVID-19.
Relief from Absentee Ballot Application Deadline Because of Overwhelmed Website
Nicholas Jones for Congress v. Idaho Secretary of State (B. Lynn Winmill, D. Idaho 1:20-cv-242)
During the 2020 COVID-19 global infectious pandemic, a federal district judge extended the absentee ballot application deadline by one week because the secretary of state’s application website was overwhelmed.
Subject: Absentee and early voting. Topics: Absentee ballots; COVID-19; attorney fees; primary election.
No Immediate Relief from Expanded Absentee Voting Opportunities During an Infectious Pandemic Because of Delay in Bringing the Case
Curtin v. Virginia State Board of Elections (Rossie D. Alston, Jr., E.D. Va. 1:20-cv-546)
Because of the COVID-19 global infectious pandemic, Virginia voters were permitted to vote absentee on account of disability. A suit challenging broad absentee voting rights as diluting plaintiffs’ voting rights did not result in immediate relief, because the suit was brought about two months after the guidelines became public. After the preliminary injunction decision, plaintiffs voluntarily dismissed the case.
Subject: Absentee and early voting. Topics: Absentee ballots; COVID-19; laches; primary election; case assignment; early voting.
Opportunity to Cure Missing and Mismatched Absentee Ballot Signatures in California
Fugazi v. Padilla (Kimberly J. Mueller, E.D. Cal. 2:20-cv-970)
A candidate and several voters challenged the certification of a primary election, alleging that absentee voters were not given sufficient opportunities to cure missing or mismatched signatures. Absentee voting was important in the election because of a global infectious pandemic. The district judge denied the plaintiffs immediate relief because although a mailing to voters who had signature problems was confusing, and the election office was closed to visitors, clarifications were available by telephone.
Subject: Absentee and early voting. Topics: Signature matching; absentee ballots; COVID-19; enjoining certification; intervention; primary election; class action.
No Relief from a Constitutional Amendment Waiting Time Requirement During a Pandemic
Fight Back Fund v. Illinois State Board of Elections (Rebecca R. Pallmeyer, N.D. Ill. 1:20-cv-2791)
During a global infectious pandemic, supporters of a state constitutional amendment sought relief from a requirement that proposed amendments be passed by the legislature at least six months before an election, in light of interruptions to the legislature’s work because of the pandemic. The district judge denied immediate relief, because the legislature had not passed the plain-tiffs’ proposal.
Subject: Ballot measures. Topics: Ballot measure; getting on the ballot; COVID-19; case assignment.
No Relief from New York’s Ballot Petition Signature Requirements During the COVID-19 Pandemic
Murray v. Cuomo (Mary Kay Vyskocil, 1:20-cv-3571) and Eisen v. Cuomo (Philip M. Halpern, 7:20-cv-5121) (S.D.N.Y.)
A plaintiff, whose ballot petition signatures for a primary election were ruled invalid because the signatures had not been collected or witnessed by a member of the party, was denied relief from a signature requirement that was both shortened in time and in number because of an infectious pandemic. Later, a different judge denied another prospective congressional candidate relief from ballot-petition signature requirements.
Subject: Getting on the ballot. Topics: Getting on the ballot; COVID-19; matters for state courts; primary election; party procedures.
No Pandemic Relief from a Ballot Petition Signature Requirement for Signatures Due Very Early in the Pandemic
Garcia v. Griswold (William J. Martinez, D. Colo. 1:20-cv-1268)
A prospective primary election candidate sought relief from a state supreme court denying her relief from the ballot petition signature requirement despite social distancing made necessary by a global infectious pandemic. The federal district judge denied the candidate relief because of her delay in bringing the case and because the pandemic had a small impact on signature gathering, as signatures were due early in the pandemic.
Subject: Getting on the ballot. Topics: Getting on the ballot; COVID-19; laches; intervention; primary election; matters for state courts; case assignment.
Suits to Extend Deadlines for Ballot Petition Signatures in Nevada During a Pandemic
Fair Maps Nevada v. Cegavske (Miranda M. Du , 3:20-cv-271) and Fight for Nevada v. Cegavske (Richard F. Boulware II, 2:20-cv-837) (D. Nev.)
An organization collecting signatures to put a constitutional amendment on Nevada’s ballot received a court-ordered extension of the due date during a global infectious pandemic, which triggered state-ordered social distancing, on a finding of diligence in collecting signatures before social distancing went into effect. An organization seeking the recall of Nevada’s governor did not receive a deadline extension on a finding that it collected few signatures before social-distancing requirements.
Subject: Ballot measures. Topics: Ballot measure; COVID-19; getting on the ballot.
Canceling an Election During a Pandemic
Yang v. New York State Board of Elections (1:20-cv-3325) and Key v. Cuomo (1:20-cv-3533) (Analisa Torres, S.D.N.Y.)
Because all but one candidate for a party’s presidential nomination had announced suspension of their campaigns, and in light of a global infectious pandemic, election officials in New York canceled the party’s 2020 presidential primary election, leaving in place primary elections for other offices in most of the state’s counties. A district judge and the court of appeals concluded that it was unconstitutional to remove from the ballots candidates who had merely suspended their campaigns.
Subject: Election dates. Topics: Enjoining elections; COVID-19; primary election; getting on the ballot; intervention; absentee ballots; party procedures; class action.
Ohio’s Ballot Petition Signature Requirements During a Pandemic
Thompson v. DeWine (Edmund A. Sargus, Jr., 2:20-cv-2129), Duncan v. LaRose (Michael H. Watson, 2:20-cv-2295), and Hawkins v. DeWine (James L. Graham, 2:20-cv-2781) (S.D. Ohio)
Federal actions sought modifications of Ohio’s requirements for getting candidates and measures on the ballot in a time of social distancing to prevent transmission of COVID-19 during a global pandemic: acceptance of electronic signatures, a reduced signature requirement, and extended deadlines. One district judge ordered acceptance of electronic signatures and an extension of the deadline but not a reduction in the number of signatures required. The court of appeals, however, stayed the injunction, finding ballot access requirements modest even during the pandemic. A second judge denied relief to a pro se minor presidential candidate. A third judge denied relief, reasoning in part that social distancing is not state action.
Subject: Getting on the ballot. Topics: Getting on the ballot; COVID-19; intervention; ballot measure; pro se party; case assignment.
Electronic At-Home Absentee Voting for Blind Voters
Powell v. Benson (Gershwin A. Drain, E.D. Mich. 2:20-cv-11023), Drenth v. Boockvar (Jennifer P. Wilson, M.D. Pa. 1:20-cv-829), and Hernandez v. New York State Board of Elections (Lewis J. Liman, S.D.N.Y. 1:20-cv-4003)
In light of the greater need for absentee voting in 2020 because of the COVID-19 global infectious pandemic, lawsuits in three states resulted in electronic at-home absentee voting for blind voters that protected the secrecy of their ballots.
Subject: Absentee and early voting. Topics: COVID-19; absentee ballots; Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA); intervention; class action; primary election.
Whether Voting by Mail During a Pandemic Dilutes Legitimate Votes
Paher v. Cegavske (Miranda M. Du, D. Nev. 3:20-cv-243)
A district judge denied an injunction to voters who complained that extensive voting by mail during a global infectious pandemic would dilute legitimate votes, finding the allegation too speculative to afford standing or merit relief.
Subject: Absentee and early voting. Topics: COVID-19; absentee ballots; intervention; primary election.
Nullification of an Absentee Ballot Witness Requirement During a Global Infectious Pandemic
League of Women Voters of Virginia v. Virginia State Board of Elections (Norman K. Moon, W.D. Va. 6:20-cv-24)
During the global COVID-19 infectious pandemic, seven weeks before a primary election, a district judge approved a consent decree that nullified the witness requirement for absentee ballots in the election. Later, the judge approved a similar consent decree for the general election.
Subject: Absentee and early voting. Topics: COVID-19; absentee ballots; intervention; primary election; attorney fees.
Modification of Utah’s Signature Requirements for a Prospective Candidate During an Infectious Pandemic
Garbett v. Herbert (2:20-cv-245) and Brown v. Herbert (1:20-cv-52) (Robert J. Shelby, D. Utah)
A district court modified the ballot petition signature requirement for a prospective gubernatorial candidate because of social distancing during the COVID-19 global infectious pandemic. Even with the modified requirement, the plaintiff was unable to qualify for the primary election ballot. After the injunction was issued, a prospective legislative candidate sought relief from the ballot petition signature requirements, but the court denied the second plaintiff relief.
Subject: Getting on the ballot. Topics: Getting on the ballot; COVID-19; case assignment; primary election; interlocutory appeal; intervention; pro se party.
Whether Requiring Postage for a Mailed Ballot Is an Unconstitutional Poll Tax
Black Voters Matter Fund v. Raffensperger (Amy Totenberg, N.D. Ga. 1:20-cv-1489)
In light of widespread absentee voting by mail during the 2020 global COVID-19 infectious pandemic, a federal complaint alleged that requiring voters to pay the postage was an unconstitutional poll tax. The district judge denied relief for an imminent primary election for practical reasons. After careful consideration of the law and the facts, the judge ultimately decided that absentee ballot postage is not a poll tax.
Subject: Absentee and early voting. Topics: COVID-19; absentee ballots; class action; primary election.
No Relief from the Ballot Petition Signature Requirements for Arizona Initiatives During a Pandemic
Arizonans for Fair Elections v. Hobbs (Dominic W. Lanza, D. Ariz. 2:20-cv-658)
A district judge declined to order Arizona to accept electronic signatures to get initiatives on the November ballot during social distancing made necessary by a global infectious pandemic. The judge was not confident that the proposed remedy would not conflict with Arizona’s constitution, which the plaintiffs had not challenged. Moreover, the judge was not convinced that the pandemic would persist or that the plaintiffs could not have qualified their initiatives for the ballot had they collected the signatures required before the pandemic.
Subject: Ballot measures. Topics: Ballot measure; getting on the ballot; COVID-19; intervention; matters for state court; laches.
Ballot Petition Signature Requirements in Illinois During a Pandemic
Libertarian Party of Illinois v. Pritzker (1:20-cv-2112) and Morgan v. White (1:20-cv-2189) (Rebecca R. Pallmeyer, N.D. Ill.) and Bambenek v. White (Sue E. Myerscough, C.D. Ill. 3:20-cv-3107)
Lawsuits filed in two of Illinois’s districts sought modifications to ballot petition signature requirements in light of social distancing made necessary by the global COVID-19 infectious pandemic. An agreed order modified the requirements for candidates. The district judge gave election officials part of the adjustments from the agreed order that they requested, and the court of appeals declined to stay the district judge’s decision. District judges in both districts denied relief from the signature requirements for ballot measures.
Subject: Getting on the ballot. Topics: Getting on the ballot; ballot measure; COVID-19; case assignment; interlocutory appeal; laches; intervention.
Ballot Petition Signature Deadlines in Michigan During a Pandemic
Esshaki v. Whitmer (Terrence G. Berg, 2:20-cv-10831), SawariMedia LLC v. Whitmer (Matthew F. Leitman, 4:20-cv-11246), Kishore v. Whitmer (Sean F. Cox, 2:20-cv-11605), Detroit Unity Fund v. Whitmer (Stephanie Dawkins Davis, 4:20-cv-12016), Jobs for Downriver v. Whitmer (George Caram Steeh, 2:20-cv-12115), and Eason v. Whitmer (Robert H. Cleland, 3:20-cv-12252) (E.D. Mich.)
Because of Michigan’s stay-at-home order during the COVID-19 pandemic, a district judge extended the deadline for candidates’ ballot petition signatures and halved the number of signatures re-quired. The court of appeals ruled that the judge was right on the merits but not empowered to specify the remedy. On remand, the district judge ruled that the state’s implemented remedy did not quite pass constitutional muster, and the judge informed the state defendants of a possible constitutional remedy. In a second case involving a proposed statewide initiative, the state never proposed to a second judge an adequate remedy, but the case was ultimately withdrawn for failure to provide evidence of substantial signature collection results. Two additional judges denied ballot petition signature relief, and a fifth case before a fifth judge was dismissed by stipulation. A sixth judge dismissed an action filed more than a month after the ballot petition deadline.
Subject: Getting on the ballot. Topics: COVID-19; getting on the ballot; ballot measure; laches; primary election; intervention; pro se party.
Unsuccessful Challenge to Ohio’s Changed Primary Election Procedures During the COVID-19 Pandemic
League of Women Voters of Ohio v. LaRose (Michael H. Watson, S.D. Ohio 2:20-cv-1638)
A district judge found that Ohio’s primary election accommodations for the 2020 COVID-19 pandemic did not result in unconstitutionally cumbersome voting.
Subject: Registration procedures. Topics: COVID-19; registration procedures; absentee ballots; National Voter Registration Act; primary election; intervention.
Standing to Seek an Absentee Ballot Extension During a Pandemic
Mays v. Thurston (James M. Moody, Jr., E.D. Ark. 4:20-cv-341)
The district judge denied a request for an order during a global infectious pandemic extending the deadline for absentee ballots from received by election day to mailed by election day, finding that any difficulty that the plaintiffs would have in submitting their absentee ballots on time would arise from the pandemic and not from state action.
Subject: Absentee and early voting. Topics: COVID-19; absentee ballots.
Election Modifications in Wisconsin Because of a Pandemic
Democratic National Committee v. Bostelmann (3:20-cv-249), Gear v. Knudson (3:20-cv-278), and Lewis v. Knudson (3:20-cv-284) (William M. Conley, W.D. Wis.) and City of Green Bay v. Bostelmann (William C. Griesbach, 2:20-cv-479) and Taylor v. Milwaukee Election Comm’n (Pamela Pepper, 2:20-cv-545) (E.D. Wis.)
In light of a global infectious pandemic, federal litigation to modify election procedures for the April 2020 election in Wisconsin, which included a presidential primary election, began about three weeks before the election. Shortly after a complaint was filed, and again a few days before the election, a federal judge in the Western District of Wisconsin ordered some modifications to enable absentee voting by mail. The judge declined to order a delay in the election. The court of appeals reversed the district judge’s modification to absentee voter witness certification requirements, and the Supreme Court reversed the district judge’s extension of time to mail absentee ballots after election day. Suits in the Eastern District were unsuccessful. For the general election in November, the Western District judge again ordered modifications, but the court of appeals stayed the injunction.
Subject: Absentee and early voting. Topics: COVID-19; registration procedures; absentee ballots; enjoining elections; interlocutory appeal; voter identification; intervention; primary election; voting technology; case assignment; class action.
No Ordered Modification of Absentee Ballot Procedures on the Night Before an Election
Williams v. DeSantis (Robert L. Hinkle, N.D. Fla. 1:20-cv-67)
During the global infectious COVID-19 pandemic, a federal judge declined to modify absentee ballot provisions in a presidential primary election in response to a complaint filed on the night before election day.
Subject: Absentee and early voting. Topics: Absentee ballots; COVID-19; laches; intervention; case assignment; primary election.