The doomsday scenario of lawyers and judges setting surprise terms for voting or even deciding the election this year has loomed large. Yet that likelihood is diminishing by the day, several elections law experts say, with the terms for voting already essentially set in many states and a calm coming over the courts in pre-Election Day litigation.
The focus on courts has been extreme at times this year, especially with President Donald Trump pushing for the confirmation of Judge Amy Coney Barrett to the Supreme Court in case the election must be decided there.
But that outsized attention on courts may be misplaced. The discourse “feels like lawyers and courts are deciding the election and not voters. I don’t think that’s true,” said Justin Levitt, an elections law specialist at Loyola Law School. “There’s a feeling of anxiety in 2020 that has translated to an anxiety about the degree to which lawyers and courts will be controlling the election … Welcome to 2020. Anxiety level is high, period.”
A handful of lingering court cases could still test how mail-in ballots get counted or are thrown out in some states, especially if the ballots have issues, such as illegible postmarks or signatures or were mailed on or near Election Day.
But even with Barrett’s confirmation likely next week, which would shift the balance of the high court further to the right, the actual impact that ongoing voting litigation may have on the presidential election before Election Day is little. [Continue reading…]