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Midterm Elections

Midterm election drives bevy of lawsuits over ballots, voting in battleground states

Lawsuits tied to federal elections are nothing new. But experts say this year many are based on laws passed in response to false claims of widespread voter fraud in the 2020 election.

John Fritze
USA TODAY
  • Republicans in Pennsylvania are challenging a requirement for dating absentee ballot envelopes.
  • Unresolved: May Georgia ban volunteers from distributing water, food to voters in line?

WASHINGTON – Before voters head to the polls, parties head to court.

bevy of lawsuits are pending in state and federal courts in the run-up to the November midterm election, in which voters will decide control of Congress and choose who gets to occupy three dozen governor's mansions. Many of those suits have origins in laws approved in response to false claims of widespread fraud in 2020.

"It's pretty common to see both sides of the aisle throw down lawsuits in the weeks leading up to an election," said Sylvia Albert, director of voting and elections for Common Cause. "What's different about litigation this year is it's directly tied to the 2020 election and the 'big lie,' meant to discourage voters from coming out to cast a ballot, and to lower their confidence in the outcome of our elections."

Here's a look at some of the litigation in play. 

What's happening in court ahead of the midterm election? 

  • Dozens of lawsuits are cropping up in battleground states across the country, many challenging laws approved after the 2020 election. The Brennan Center for Justice was monitoring nearly 100 cases in early October.
  • Many of the lawsuits deal with the way absentee ballots are handled. Conservatives say changes are needed to ensure faith in elections but progressives see an effort to disenfranchise voters who are more likely to vote for Democratic candidates. 
  • It's not clear how many of the cases will be resolved before voters head to the polls on Nov. 8. Additional litigation after the voting is over is virtually guaranteed.    

Prep for the polls: See who is running for president and compare where they stand on key issues in our Voter Guide

Where are the election lawsuits? 

Virtually everywhere, including in states like Pennsylvania, Georgia, Nevada and Arizona that will likely determine which party controls the Senate next year. Some of the cases, including one in Pennsylvania dealing with absentee ballots, may still change the rules for how certain types of ballots are cast. Other cases, such as a consolidated lawsuit in federal court in Georgia, are unlikely to have an impact before Nov. 8.     

Voters cast their ballots on Sept. 23, 2022, in Minneapolis

Will the Supreme Court weigh in? 

In many ways, it already has. The Supreme Court jumped into redistricting disputes this year in North Carolina, Alabama and Wisconsin. In February, a 5-4 majority allowed Alabama to rely on a congressional map that a lower court said likely denied Black voters in that state an additional opportunity to elect their preferred candidate for the U.S. House of Representatives. A month later, it tossed out a map of Wisconsin's state legislative districts that included an additional majority-Black district

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More:Do you have questions about the 2022 midterm election? USA TODAY is here to help

More:Supreme Court delves into Alabama brawl over race, redistricting and Voting Rights Act

But it's also the case that the Supreme Court has been hesitant to jump into voting cases as Election Day approaches. In 2006, the high court signaled that courts shouldn't tinker with an election at the last minute, an idea known as the Purcell principle

"My sense is that, this close to the election, unless it is people being overtly denied access to a polling location or absentee ballots, we're not going to see any big decisions" from the Supreme Court, said Caren Short, director of legal and research for the League of Women Voters. 

Pennsylvania: Litigating the date

Pennsylvania Republicans have been fighting for years over a provision in state law that requires voters to sign and date absentee ballot envelopes. The question is whether voters who fail to date the envelope – or who mark down the wrong date – will have their votes counted. State election officials have provided guidance to counties that those ballots should be counted as long as they are received on time.

The Republican National Committee and a group of voters are asking the Pennsylvania Supreme Court to intervene and invalidate the state guidance before the Nov. 8 election and to segregate any ballots already received that have a missing or incorrect date.

On Friday, the court agreed to decide the case and ordered the parties to submit briefs in coming days.

"The time for the court to act is now," the suit asserts. Without intervention, Republicans argue, counties may provide "unequal treatment of otherwise identical ballots." The fight has already made its way to the U.S. Supreme Court twice this year. The high court sided with Republicans on Oct.11, vacating a ruling from the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit that the ballots must be counted.

The Keystone State is home to one of the nation's highest profile Senate contests between Democratic Lt. Gov. John Fetterman and Republican Dr. Mehmet Oz.

A Michigan voter inserts her absentee voter ballot into a drop box in Troy, Mich on Oct. 15, 2020.

Wisconsin: Bearing witness 

Several groups in Wisconsin are duking it over the details of a requirement that absentee voters attest to their eligibility in the presence of a witness. State law requires the witness to provide their address on a certificate on the envelope of the ballot.

The problem? Nobody agrees on the definition of "address."

For years, election clerks in the Badger State would fix an incomplete address provided by a witness – adding a zip code if it was missing, for instance. But a state court in September blocked counties from using previous guidance the state provided on how to handle incomplete addresses. That court order has thrown the process into disarray with some counties uncertain about whether or not to count the ballots at issue.

Purcell:Time is running out to block voting restrictions ahead of 2022 midterms

Explainer:How the Supreme Court is already influencing the midterm elections

Guide:A look at the key cases pending before the Supreme Court

The League of Women Voters of Wisconsin is one of at least two groups now asking a state court to clarify what the law means by a "missing" address. The answer to that question, the group asserts, "holds the fate of numerous Wisconsin voters." The Biden administration has filed a brief in the case.  

Wisconsin voters will decide a tossup governors race between incumbent Democratic Gov. Tony Evers and Republican nominee Tim Michels. Incumbent Sen. Ron Johnson, a Republican, faces Democratic Lt. Gov. Mandela Barnes in another tight contest. 

The cases "point to the likelihood of contentious recount/certification processes and further litigation if there are indeed close races," said Robert Yablon, a professor at the University of Wisconsin Law School.

Poll workers Ron Jezowski (R) and Peggy Langdale adjust a table with a voting machine during midterm primary elections on June 14, 2022 in West Columbia, South Carolina.

Georgia: Warming the line

It won't be decided before the November midterm, but an ongoing federal lawsuit in Georgia over a law signed by Gov. Brian Kemp last year is nevertheless one of the most closely watched election cases anywhere in the nation.

Among other provisions, the law prohibits the distribution of food and water to voters near polling places, a practice known as line warming. Supporters say they hand out food and water to fatigued voters to ensure they stick out the long lines that can develop at some polling places. Opponents say some groups are doing more than providing sustenance: They're indirectly advocating for candidates.

U.S. Sen. Raphael Warnock, D-Ga., left, casts his ballot on the first day of early voting in Atlanta on Monday, Oct. 17, 2022. (AP Photo/Ben Gray) ORG XMIT: PNA309

Several lawsuits were consolidated into one case before U.S. District Judge J.P. Boulee, who ruled in August that the plaintiffs had a strong argument that at least part of the ban violated the First Amendment's protection of free speech. But, Boulee ruled, the request to temporarily block the state law came too close to the election and so he denied it. 

That means the law will remain in place for the midterms as the litigation continues. 

Peach State voters will decide a Senate race between Sen. Raphael Warnock, a Democrat, and Republican Herschel Walker and a governor's race between Kemp and Democrat Stacey Abrams, running to become Georgia's first Black female governor. 

Contributing: Molly Beck, Milwaukee Journal Sentinel; Rio Lacanlale, Reno Gazette Journal 

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