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Even without Florida’s "hanging chads" of 2000, Trump vs. Biden is already showing signs that it will give Bush vs. Gore a run for its money in the Election Litigation Debacle Derby. 

This year’s race is already being fought out in courts across the country because of the surge in mail-in ballots – and there is every expectation that the battles will continue and intensify after Nov. 3. 

Mail-in voting in the national election is expected to almost double this year compared to 2016, spurred by fears of COVID-19 and also encouraged by progressive special interest groups who have long argued it encourages voter participation. 

There are currently more than a dozen cases in federal and state courts dealing with mail balloting, according to the 2020 Election Litigation Tracker. 

In response, there are currently more than a dozen cases in federal and state courts dealing with mail balloting, according to the 2020 Election Litigation Tracker. Most of the cases are being heard in state courts and involve efforts to modify existing laws in order to make it easier to vote. Questions include the legality of extending deadlines for when people can register to vote and when they can return absentee ballots; whether ballots must be signed in the presence of witnesses; and whether a third party can deliver ballots.

Even the drop boxes for mail ballots have been part of legal squabbles. In Texas, the state’s decision to place one collection box per county was unsuccessfully challenged in court by a group including the National League of United Latin American Citizens and the Texas Legislative Black Caucus. 

In many instances, the courts are rewriting election laws. On Monday, for example, the U.S. Supreme Court let stand a Pennsylvania court’s decision to increase the number of days during which ballots can be accepted. The U.S.
Court of Appeals for the Fifth Circuit on Monday restored the Texas procedure for rejecting ballots with mismatched signatures without giving the voters a chance to fix the flaw. A lower court previously had ruled in favor of a change to allow voters to address the problem.

The lawsuits follow a similar pattern. Almost everywhere, Democrats, who expect many of their supporters to vote by mail, are pushing to ease restrictions on mail-in ballots. In the name of ballot access, they are seeking to relax requirements in some states that require a witness also signs an absentee ballot while also trying to extend the time a mail ballot can be received. 

Cuyahoga County, Ohio, with 1.2 million people, expects to receive 250,000 mail-in ballots, more than double the usual number. The votes can’t be counted until Election Day, but mail ballots are being opened and processed as shown here.

“The thinking is that previously, voting by mail is mostly an option, but the reason we’re seeing more lawsuits to allow voters to ‘cure’ their ballot is because it seems a public health necessity to vote by mail,” said Mara Suttmann-Lea, a professor at Connecticut College, who studies voting reforms. “It’s not so much an option at this time.” 

Republicans, for the most part, are opposing such measures, arguing that judges should not be rewriting elections laws passed by legislatures.

“There is a state-by-state battle over this, with lawsuits in almost every state, where the progressive left is trying to change the rules in place for absentee ballots,” said Hans von Spakovsky, a former elections official in Fairfax County, Va., and a lawyer at the conservative Heritage Foundation. 

The late changes in the process, he said, are almost certainly creating a scenario for widely contested elections and prolonged vote counts, from tight congressional races to the presidential election.

“You should not be changing the rules in the middle of the election,” von Spakovsky said. Fixing flawed ballots, he added, may sound good in theory. “But from a practical standpoint, where in the past you might have a couple hundred ballots where people screwed up, now you have tens of thousands. Imagine having to contact that many voters; it will take weeks.” 

The court cases have produced a mixed result of victories and losses for both sides. What is clear is that mail-in ballots are often problematic -– around 1% of the 33.2 million ballots cast by mail nationwide in 2016 were rejected. The issues have intensified this year, in part because mail-in votes are being scrutinized more closely. 

President Trump and many Republicans insist that loosening the mail ballot rules and extending the receipt time increases the chances of mail ballot fraud or error, including the potential theft of ballots by agents of a particular party, and poor or hurried oversight during the counting process. 

Reported voter fraud cases are relatively rare. Nevertheless, the illegal collection of mail ballots on behalf of a Republican congressional candidate in North Carolina in 2018 caused the election results to be thrown out and the election had to be held again.

Fraud From Arizona to West Virginia

The Heritage Foundation’s election fraud database lists 14 convictions of individuals in 2020. There have been probes and convictions this year in many states including Arizona, Indiana, New Hampshire and West Virginia. In August, a judge invalidated the City Council election in Paterson, N.J., because of widespread voter fraud.

Law enforcement in Texas has prosecuted numerous cases of ballot fraud, although authorities there insist they are barely scratching the surface of the practice due to limited resources. 

Election experts say partisans on both sides will scour ballots for signs of fraud they can litigate.

The larger battle involves ballots that are rejected for a variety of reasons.

In New Jersey’s May primary, thousands of blank mail ballots were dumped in bulk at apartment complexes. Around one in 10 mail ballots were rejected, most commonly because of unmatched signatures. In New York City’s Democratic primary in June, one in five ballots was rejected, and it took six weeks to determine the winners in two congressional contests. The city’s Board of Elections found the ballots were tossed for arriving late, failing to include a voter’s signature or lacking a required postmark.

Many Mail Ballots Rejected

The Washington Post reported in August that “more than 534,000 mail ballots were rejected during the primaries across 23 states this year.” It said the ballots were disallowed for a variety of reasons – including late arrival and lack of proper signatures – and that a similar rejection rate during the general election has the potential to tip a close race.

To handle the increase in mail ballots, most elections offices, with the help of $400 million in CARES Act funding dedicated to states for election costs, have beefed up their temporary staffing. Some states are opening and tallying votes each day and week in order to avoid a prolonged counting period starting Nov. 3.

Cuyahoga County, Ohio, with 1.2 million people, expects to receive 250,000 mail-in ballots, more than double the usual number. The votes can’t be counted until Election Day, but mail ballots are being opened and processed. Voters whose ballots are not properly filled out are contacted and have until seven days after the election to correct their errors.

“They are running a full-scale post office, and have a desk with two people, one Democrat and one Republican, verifying the information on those ballots, through a database on their laptop,” said Aaron Ockerman, executive director of the Ohio Association of Election Officials.

“It used to be that if a ballot had incorrect information, the only option we had was for the board of elections to send a form to that voter,” Ockerman said.

The secretary of state’s office, he said, is now encouraging counties to call the voter to advise them of a problem with their ballot. The voter is then asked to provide the correct information in written form. They prefer the voter hand-deliver the information to a collection box or to a main office.

“Ballots have to be postmarked the day before Election Day,” Ockerman said. “But with mailing back and forth, who knows how long that can take.”

Court cases in Georgia and North Carolina and legislation in New Jersey have allowed more time to cure a mail ballot that would have previously been rejected, giving a voter an opportunity to fix a mismatched signature or otherwise errant ballot.

In Florida, voters who return mail-in ballots with a signature that doesn’t match their voter registration on file are given a “cure affidavit,” which allows them to provide a copy of their identification or other required information to allow their vote to be reconsidered. 

A ballot lacking the proper information or a mismatched signature is set aside and the voter is contacted. “The day we get a ballot, the process starts,” said Steve Vancore, spokesman for the Broward County elections office in Florida. The fix, he added, can come via fax, email or in person. “We call, email and send a postcard, all at once.”

The Broward office has hired 150 extra people to handle the mail ballots, he said.

If the voter is motivated enough, he or she will fix the ballot, but many voters won’t respond. “Up to now, the people who vote by mail are people who are interested in the whole process,” said Enrijeta Shino, an assistant professor of political science at the University of North Florida who studies elections and voting behavior. “We have known that people who vote by mail are more engaged.”

With this new group of mail voters, “I would expect they are not as invested to follow through, mostly because they don’t know how,” she said. 

Democrats and some academics insist that voting by mail is necessary during a pandemic, and the resulting errors from those unaccustomed to the practice merit some leeway.

“If this is a close election, and states aren’t prepared to process and count the ballots as happened in New York, it will take quite a while to determine winners,” von Spakovsky said. “And if the number of rejected ballots is larger than the margin of victory, we will get extended litigation over that.”

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