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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 sixteen case studies posted here. Coronavirus disease 2019 (COVID-19) also triggered cases that may have been time-sensitive but not quite emergencies, and many of these cases are described on the Ohio University Mortiz College of Law’s election-law website (moritzlaw.osu.edu/election-law) and the election-law blog (electionlawblog.org) of University of California at Irvine School of Law's professor Rick Hasen.

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.

Pandemic Social Distancing as an Obstacle to Ballot Petition Signatures in Ohio
Hawkins v. DeWine (James L. Graham, S.D. Ohio 2:20-cv-2781)
A district judge denied relief from in-person ballot petition signature requirements during the global COVID-19 infectious pandemic because mandated social distancing exempted First Amendment activity and voluntary social distancing is not state action.
Subject: Getting on the ballot. Topics: Getting on the ballot; COVID-19.

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.

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.

No Relief from Ballot Petition Signature Requirement During the COVID-19 Pandemic
Murray v. Cuomo (Mary Kay Vyskocil, S.D.N.Y. 1:20-cv-3571)
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.
Subject: Getting on the ballot. Topics: Getting on the ballot; COVID-19; matters for state courts; primary election; party procedures.

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. N.Y. State Bd. of Elections (Analisa Torres, S.D.N.Y. 1:20-cv-3325)
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.

Suit for Electronic Signatures to Get an Initiative on the Ballot During a Pandemic
Thompson v. DeWine (Edmund A. Sargus, Jr., S.D. Ohio 2:20-cv-2129)
A federal action sought changes to requirements for getting initiatives and referenda on the ballot during 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. The 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.
Subject: Ballot measures. Topics: Getting on the ballot; COVID-19; intervention; ballot measure.

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); 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)
Seven weeks before a primary election, a district judge approved a consent decree that nullified the witness requirement for absentee ballots in the election.
Subject: Absentee and early voting. Topics: COVID-19; absentee ballots; intervention; primary election.

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.
Subject: Absentee and early voting. Topics: COVID-19; absentee ballots; class action; primary election.

Extending the Ballot Petition Signature Deadline During a Pandemic
Esshaki v. Whitmer (Terrence G. Berg, E.D. Mich. 2:20-cv-10831)
Because of a stay-at-home order during the COVID-19 pandemic, a district judge extended the deadline for ballot petition signatures and halved the number of signatures required. 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.
Subject: Getting on the ballot. Topics: COVID-19; getting on the ballot; primary election; 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. Kundson (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, and related actions in the Western District remain pending.
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.