This month's flurry of courthouse wins is continuing for advocates of a comprehensive and safe election. The most important decision out of six since Friday could prevent the presidential election winner from being declared until the middle of November.
Michigan absentee ballots must be counted so long as they arrive within two weeks of the election, a judge ruled Friday. If not reversed on appeal, the ruling means the tallying of potentially hundreds of thousands of votes won't be done until Nov. 17 in a state Donald Trump carried by a scant 11,000 votes last time — and with 16 electoral votes that remain a tossup again this time.
Judges also allowed easier absentee voting in the biggest county in Texas, relaxed a vote-by-mail restriction in South Carolina and tossed a lawsuit seeking to limit mail voting in Illinois. And the Postal Service agreed to destroy millions of its misleading voter mailings. The only bad news for voting rights groups came from the Supreme Court of Mississippi, which ruled people at high risk of severe Covid-19 complications don't have an automatic right to vote absentee.
These are the latest developments:
Michigan
Judge Cynthia Diane Stephens of the Court of Claims cited mail delays and past problems with misrouted ballot envelopes in ordering the extension. But she said it will apply only to ballots postmarked by Nov. 2. Normally, the state is one of 33 where ballots may be postmarked as late as Election Day (Nov. 3 this year) but still have to arrive by the time the polls close, and that resulted in thousands of ballots getting rejected in the August primary.
"This is a HUGE win for all Michigan voters who plan to vote by mail in November," exulted Marc Elias, the attorney who helped push the suit. It's one of the most prominent of nearly 20 he's filed on behalf of the Democratic Party this year, starting before the coronavirus pandemic, in hopes of winning easements to the rules likely to boost turnout by Democrats.
The judge also ruled in favor of the Democrats on another issue, saying party operatives and other third parties may collect and return completed absentee ballots on behalf of Michiganders — the practice pejoratively labeled "ballot harvesting" by Republicans who maintain, with only scattered evidence, that it allows for easy fraud.
Stephens rejected, however, the Democrats' bid to make the state pay for return postage on mail ballots.
Texas
A state appeals court endorsed a plan to mail absentee ballot applications to all 2.4 million registered voters in Harris County, which is centered on Houston and where elections are run by a Democrat.
But it put that decision on hold pending a ruling expected in the next few weeks from the state Supreme Court, where every justice is a Republican. GOP Attorney General Ken Paxton opposes the mass mailing on the grounds it could promote cheating, an argument the appeals panel rejected as "based on mere conjecture."
Getting an application would not necessarily lead to another vote cast by mail, however. The second-most-populous state is one of just five, and the only one where the presidential contest is competitive, that is maintaining its usual excuse requirements despite the Covid-19 outbreak.
While being older than 65 is an acceptable excuse, and Harris County has already sent those people application forms, younger people must claim travel or health as preventing them from voting in person — and earlier court rulings this year said fear of the pandemic is not, by itself, an acceptable reason.
The deadline for asking for a mail-in ballot is in four weeks, setting an effective timetable for a meaningful decision from the state's high court.
South Carolina
The pandemic and the need for social distancing means voters should not have to comply this fall with the usual state law making them find a witness to countersign their absentee ballot envelopes, federal Judge Michelle Childs ruled Friday.
The judge's order, in another lawsuit brought by Elias and the Democrats, said the rule would illegally suppress the vote of the disabled and Black people, who have proved more likely to be affected by the virus. As written, the law would even make people symptomatically ill with Covid-19 find a witness — and then exposing those additional people to the virus.
The state may appeal the decision. Just last week, Republicans in charge in Columbia insisted on leaving the signature requirement in place on the grounds that it guards against fraud, even as they agreed to suspend the state's usual excuse rules so that anyone in the reliably red state (albeit one with an increasingly close Senate contest) may vote by mail this year.
The leaders of the GOP majority in the General Assembly had asked Childs to leave the decision to legislators, but she said "substantive issues under the Constitution and federal law" prompted her to intervene.
Illinois
Federal Judge Robert Dow dismissed last month's lawsuit from Republicans seeking to block the state's new law making voting easier.
The judge said there was no evidence to support the central claim: that the new rules were pushed through by the Democrats in charge in Springfield this spring in an effort to disenfranchise GOP voters by making it easier for their opponents to cheat, especially in Chicago.
"Plaintiff's allegations rest primarily on unsupported speculation and secondarily on isolated instances of voter fraud in other states and historical examples from Illinois during the prior century," the judge wrote.
The law, passed by the General Assembly and signed by Gov. J.B. Pritzker this spring, allows election officials to send absentee ballot applications to anyone who voted in the 2018 midterm, last year's municipal elections or the primary in March. More than 1.3 million forms have been returned and maybe a million more are expected from people deciding to avoid in-person voting because of Covid-19.
Postal Service
The Postal Service settled a lawsuit filed just 10 days ago by Colorado, agreeing to destroy whatever copies haven't already been distributed of a postcard that was destined for every household in the nation. While its aim was to educate Americans about the need to plan ahead if voting by mail, some of it's advice seemed confusing or contradictory in light of the rules and requirements in many states — mainly in places, like Colorado, that are planning for almost entirely vote-by-mail elections this fall.
The USPS also agreed to allow Colorado's attorney general and secretary of state to preview any other national mailings related to the election — and the right to block any they believe would confuse the state's voters.
Last week the post office worked to stop distributing the mailing, which had already landed in about three-quarters of the state's mailboxes, after Colorado sued. But tens of million continued to arrive across the rest of the country, the latest problem for an agency — and in particular its boss, Postmaster General Louis DJoy — beset by suspicion of working with the Trump administration to undermine the mail as a vehicle for democracy this fall.
Mississippi
The state's reputation as one of the hardest places to vote, which has only been reinforced during the pandemic, was furthered by the latest decision from its Supreme Court.
"Having a pre-existing condition that puts a voter at a higher risk does not automatically create a temporary disability for absentee-voting purpose," the majority held in a decision that does not expand access to absentee ballots to anyone worried about the risk of contracting Covid-19.
Deeply red Mississippi is one of just five states that have held onto their strict excuse rules for voting by mail this year; 11 others have relaxed them because of the pandemic.
In July, the Legislature in fact made the rules somewhat more exacting. The law used to make an absentee ballot available to those with a "temporary or permanent physical disability" who cannot vote in person without substantial hardship or risk. But, rather than allow that to be broadly interpreted during the coronavirus, legislators added language to specifically allow absentee voting by those caring for someone in, or themselves under, "a physician-imposed quarantine" because of Covid-19
Voting rights groups sued. One of their main arguments was that the state health director's guidance to avoid large indoor gatherings amounts to a doctor's statewide quarantine order. A trial court rejected that argument and the high court underscored her decision.
