Courts Cautious, Not Paralyzed, With Election Imminent

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By Kimberly Strawbridge Robinson

Nov. 2 — Eleventh-hour voting challenges are hitting federal courts at every level.

The U.S. Supreme Court refused to halt restrictive Ohio voting laws Oct. 31. Elsewhere, a federal district court in New Jersey will hold a hearing Nov. 4 on alleged voter intimidation by the Republican National Committee.

Avoiding actions close to an election to avoid influencing an election’s outcome is an informal judicial policy, Richard Briffault, who teaches law and politics at Columbia Law School, New York, told Bloomberg BNA Nov. 1. It’s similar to the FBI policy that has received so much attention in the wake of the re-opening of the investigation into presidential candidate Hillary Clinton’s private e-mail server, he said.

“Courts are hesitant about stepping in late in the election cycle for the same kinds of reasons, but they also recognize that their job is to protect the fundamental right to vote,” Heather Gerken, a professor of election law at Yale Law School, New Haven, Conn., told Bloomberg BNA in a Nov. 1 e-mail.

Whether federal courts will in fact step in depends on what’s at issue in the case, Briffault said. They are more likely to act when the issue is about enforcement of election law, rather than a challenge to the law itself, he said.

Rare but Increasing

“It is rare to see suits this late,” Gerken said.

We’re “seeing increased eleventh-hour litigation,” however, Derek Muller, who teaches election law at Pepperdine University School of Law, Malibu, Calif., told Bloomberg BNA in a Nov. 1 e-mail.

“Often, very late-filed litigation concerns truly breaking events, such as the impact of Hurricane Matthew,” he said, referring to a court’s extension of Florida’s voter-registration deadline due to the storm.

But the voter intimidation suits that the Democratic National Committee has filed against the RNC in several states are “the type of late-breaking suits you would expect to see,” Gerken said.

That’s because they are “reactions to activities that are coming late in the cycle,” she said.

Hard but Feasible

The DNC v. RNC disputes trace back to a 1981 lawsuit that resulted in an agreement that “prevents the RNC from engaging in ‘ballot integrity, ballot security or other efforts to prevent or remedy vote fraud’ without a court order,” Muller said.

The RNC is violating that agreement by attempting to intimidate minority voters through “poll watching,” the DNC alleges.

With the election entering its final week, “it’s not clear how much can be accomplished in such a short time frame,” Muller said.

“The closer it is to election day, the harder it is for the courts to act,” Gerken said. But here, “there is lots of room to enjoin the GOP from engaging in these tactics,” she said.

Courts “could pretty easily define the contours of acceptable and unacceptable behavior that would occur on Election Day,” Muller said.

Two Kinds of Election Cases

Earlier this week, however, the Supreme Court didn’t intervene in election litigation in Ohio.

The high court refused to stay a lower court ruling that upheld changes to Ohio’s provisional and absentee voting.

At issue was whether the state’s 2014 changes to those laws illegally targeted minority voters.

It’s not really surprising that the Supreme Court stayed out of Ohio politics, Briffault suggested. The presidential candidates Clinton and Donald Trump are running an extremely tight race in that state.

The DNC v. RNC and Ohio disputes illustrate that there are two kinds of election law cases, Briffault said.

Some cases, like the Ohio one, involve challenges to the voting laws themselves, he said. Others, like the DNC v. RNC cases, involve the enforcement of voting laws.

Courts are more likely to jump into the election fray in the latter case, where the issue is enforcement, Briffault said.

Preserving Status Quo

The Supreme Court recently gave guidance about avoiding action in eleventh-hour election law challenges in a series of 2014 cases, which echo a principle from Purcell v. Gonzalez, 549 U.S. 1 (2006), Muller said.

Purcell emphasized that ‘the imminence of the election and the inadequate time to resolve the factual disputes’ weighed in favor of preserving the status quo,” he said.

In 2014, the Supreme Court sent a strong signal that it doesn’t like last minute challenges to election laws because it makes it difficult for election officials and voters, Briffault said.

But when the challenge is to the way those laws are being enforced, it’s the courts’ job to step in and protect the fundamental right to vote, Gerken said.

In those cases, courts are “likely to be cautious but not paralyzed,” she said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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