2020 Election Shaping Up To Be Most Litigated In US History; Over 150 Cases Already Filed

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by Tyler Durden
Monday, Jul 20, 2020 - 12:00 PM

The 2020 US election is on course to become the most litigated in history as the COVID-19 pandemic has resulted in unprecedented changes to the way Americans will vote.

Concerns ranging from voter fraud to disenfranchising voters who don't want to cast absentee ballots have already resulted in at least 154 lawsuits already filed across 41 states and the District of Columbia, according to Loyola Marymount University law professor Justin Levitt. And as LiveMint notes, more litigation is anticipated.

"Everybody is suing about everything," said Levitt.

Most of the lawsuits filed so far have to do with the use of mail-in ballots, which are expected to play a large role in this year's election due to the pandemic. President Trump has repeatedly claimed that mail-in ballots are rife with fraud, and that Democrats will rig the 2020 election. According to the report, some Republicans are working to prevent voting by mail.

Meanwhile, other lawsuits have been filed concerning other pandemic-related changes, such as consolidating polling places, easing signature requirements for adding third-party candidates or initiatives on the ballots, and allow more poll-watchers.

Philadelphia drop box for voters to hand-deliver ballots during the June primary (via Inquirer)

According to Levitt, the outcomes in these trials could end up affecting thousands of voters, perhaps enough to swing close contests.

And as Goldman's chief equity strategist David Kostin noted, the options market is pricing in volatility surrounding election day - as the results of the election, including control over the Senate, may not be known on Election Day.

Implied volatility for the period around the November 3rd election is extremely high compared with prior cycles, primarily because of the coronavirus, but the particularly high level of implied volatility in the periods before and after the election imply an extended period of election-related uncertainty. Although the 20-Nov option expiration offers two additional weeks of cushion beyond 3-Nov, the potential for delayed results, a precedent for extended vote-counting, and a slightly inverted term structure lead us to prefer extending hedges to the 18-Dec quarterly expiration.

More on the legal front (via liveMint):

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Consolidating polling places

What’s at stake: Elections officials say they need to reduce in-person voting, but voting-rights groups argue that could disenfranchise voters who don’t want to cast absentee ballots or can’t make it to early voting centers, the operation of which various from state to state.

The coronavirus forced many states to dramatically limit polling places during recent primaries. In Wisconsin there were just five polling places in Milwaukee, a city of about 600,000 people, down from 182 in 2016. Louisville’s residents, who also number about 600,000, had just a single polling place in Kentucky’s primary. Lawsuits have already been filed in six states and in Washington D.C. that sought to limit precinct closures, and legal experts say more are likely to be filed.

Requirements to vote by mail

What’s at stake: Some states still require an excuse to vote by mail, and a handful aren’t accepting concern about infection as a legitimate one. Voting rights groups argue that fear of coronavirus should count.

By law, 34 states plus Washington don’t require an excuse to vote by mail. Many others have temporarily relaxed their rules in response to the pandemic. Lawsuits have been filed in nine states seeking to permanently overturn those requirements or acknowledge that the coronavirus is a valid excuse. In Texas, the state Supreme Court upheld a law that allows people over 65 to vote absentee, but requires excuses from younger voters. A federal lawsuit is ongoing.

Requiring a witness

What’s at stake: Some states want absentee ballots signed in front of a witness, but voting rights groups say that would be too risky for some voters if the virus is still spreading in the fall.

A dozen states have laws requiring a mail-in ballot be either signed by a witness or notarized. Those requirements are being challenged in multiple lawsuits that argue the restriction is too high a barrier when voters are being told to stay at home or reduce social contact because of the coronavirus.

Limits on turning in ballots

What’s at stake: Some states limit so-called “ballot harvesting," but Democratic-aligned lawyers are seeking to expand the practice in case of problems with the mail.

In 10 states, voters can let a family member drop off their ballot, while in 26 states they can give it to someone else, such as a representative of a political party. Trump has argued without evidence that this practice, sometimes called “ballot harvesting," allows widespread fraud. Republicans have sued in California and Pennsylvania to restrict ballot collection, while Democrats have sued in multiple states to expand it. Elections experts say more lawsuits may be coming.

Ballot drop-off sites

What’s at stake: Pennsylvania allowed voters to drop off ballots at public libraries, but the Trump campaign argued that could lead to voter fraud.

Mail-in voting surged in Pennsylvania’s recent primary, overwhelming local elections officials charged with collecting ballots. In response, some areas of the state set up drop boxes where voters could securely leave ballots in schools, libraries and community centers. The Trump campaign and the Republican National Committee sued, noting that state law required ballots be dropped off at elections offices and arguing that expanding drop box sites “exponentially enhanced" the risk of fraud.

Deadlines for mail-in ballots

What’s at stake: Most states require mail-in ballots be received by Election Day, which this year is Nov. 3, but Democratic-aligned lawyers say ballots postmarked by Election Day should count so voters aren’t disenfranchised by slow mail service.

Most states require mail-in ballots be received by Election Day, although a few count them if they’re postmarked by Election Day but received as many as 14 days later. Voting rights groups and Democratic-aligned lawyers are suing states to switch to postmark deadlines, with lawsuits in more than a dozen states, including Florida, Michigan, North Carolina, Pennsylvania and Wisconsin. Experts say lawsuits could multiply after the election, especially if problems crop up with slow mail service.

Fixing rejected mail-in ballots

What’s at stake: States don’t always make it easy to fix problems that lead to a mail-in ballot being rejected. Voting rights groups argue that disenfranchises voters.

Many of the lawsuits filed by Democrats have demanded that election officials give voters a chance to fix any problems with mail-in ballots, particularly issues around their signatures on absentee-ballot envelopes. Research has shown that young, Black and Hispanic voters face a much greater risk of having their ballot rejected, and voting-rights groups have long sought to reform the practice of “curing" a rejected ballot.