Richard H. Pildes*
3 Fordham L. Voting Rts. & Democracy F. 155
Thanks very much, Jerry, for having me and for the wonderful institute you’ve helped create here on law and democracy. I know there are anxieties that people have about almost every level of the process and every step in the system. There are anxieties about what the local election officials may do and issues about certification that Jenny will talk about.1See generally Jenny Gimian, The County Certification Problem, 3 Fordham L. Voting Rts. & Democracy F. 160 (2025) There are questions or concerns about what state legislatures might attempt to do. There are concerns about what Congress might do on January 6th of 2025, which Adav will speak to.2See generally Adav Noti, The Electoral Count Reform Act in 2024, 3 Fordham L. Voting Rts. & Democracy F. 167 (2025). I’m going to talk in my opening comments just about some of the litigation that’s going on.
There’s certainly anxiety about what’s going on in the courts. Before I talk about what’s currently pending, I should say, not surprisingly to you, that if the election is close and the outcome appears to be close in some number of states, I certainly expect a flood of litigation. I expect that either side will do this depending on where they fall in an election that is close and has a very small margin. There are limits, though, to what can be done or attacked through litigation after the election, because once ballots are cast and once those votes have been mingled with all the other ballots, you can’t unwind the clock at that point. So it would have to be litigation that would immediately try to get courts to segregate certain ballots that are being put in dispute. For example, it might be absentee ballots or it might be what are called provisional ballots. But there are limits to what can be challenged in the courts post-election, which is part of what everyone learned in 2020.
In terms of what’s going through the courts right now, one of the cases that is being taken to the Supreme Court at the moment comes out of Pennsylvania. Pennsylvania has a system in which if you vote absentee, you have to put your ballot first in what’s called a secrecy sleeve.3See Pa. Democratic Party v. Boockvar, 238 A.3d 345, 374–75 (Pa. 2020); see also Table 13: States that Must Provide Secrecy Sleeves for Absentee/Mail Ballots, Nat’l. Conf. of State Legislatures (last updated Oct. 7, 2024), https://www.ncsl.org/elections-and-campaigns/table-13-states-that-must-provide-secrecy-sleeves-for-absentee-mail-ballots [https://perma.cc/5LY9-L25Z]. Then you put that inside the ballot envelope that you return.4See id. If voters fail to put their ballot in that secrecy sleeve, which is designed to protect their anonymity, the Pennsylvania Supreme Court has already held that the ballot is invalid.5See id. at 380. So the question now is when voters find out (if they do find out) that they may have failed to use the secrecy sleeve, can they show up and vote a provisional ballot so that they actually can cast a vote despite this mistake? And in a sharply divided four to three Supreme Court decision out of the Pennsylvania Supreme Court, which did not divide completely along partisan lines, the Pennsylvania Supreme Court held that the voters in Pennsylvania can go ahead and cast a provisional ballot if they’ve made this mistake with their absentee ballot.6See Genser v. Butler Cnty. Bd. of Elections, 325 A.3d 458, 467, 485 (Pa. 2024).
Now, if you think back to one of the major Supreme Court controversies in the election area in recent years, we had these contests over what was called the independent state legislature theory or doctrine, which argues that when it comes to regulating federal elections, the U.S. Constitution gives the state legislatures the dominant role and that other state actors can’t vary what the election code actually specifies.7See Michael T. Morley, The Independent State Legislature Doctrine, 90 Fordham L. Rev. 501, 502–03 (2021); Carolyn Shapiro, The Independent State Legislature Theory, Federal Courts, and State Law, 90 U. Chi. L. Rev. 137, 140 (2022). I testified to Congress about different potential versions of this doctrine and some of the complexities that would be generated by adopting various versions of it. See The Independent State Legislature Theory and its Potential to Disrupt our Democracy: Hearing Before the H. Comm. on Admin., 117 Cong. 2 (2022) (statement of Richard H. Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law), https://docs.house.gov/meetings/HA/HA08/20220727/115040/HHRG-117-HA08-Wstate-PildesR-20220727.pdf [https://perma.cc/3W6A-JMF7]. And in the Pennsylvania case, this is a dispute over how to read Pennsylvania election law and whether voters should have the right to cast these provisional ballots when their absentee ballot is void. So, it’s a state law dispute, but the effort is then to turn these kinds of disputes into federal questions by arguing that the state courts have gone too far beyond what the election code requires or specifies, and therefore, they violated the federal constitutional protections for the state legislature. This gets very technical very quickly. The Supreme Court did hold in Moore v. Harper, which tested this general argument, that there are federal constitutional constraints on the way state courts interpret their state election statutes in the context of federal elections.8See Moore v. Harper, 600 U.S. 1, 34, 36 (2023). This issue is going to the Supreme Court right now. The Republican National Committee is seeking emergency action from the U.S. Supreme Court.9On November 1st, 2024, the Supreme Court rejected the Republican National Committee’s application for stay. Republican Nat’l Comm. v. Genser, No. 24A408, 2024 WL 4647792, at *1 (U.S. Nov. 1, 2024).
I just posted something a couple of days ago on the Election Law Blog in which I tried to go through how much is at stake as a practical matter in the number of ballots involved here.10Richard Pildes, How Many Votes Are Likely at Stake in the PA Litigation Over Absentee Ballots for Which the RNC is Seeking Supreme Court Review?, Election L. Blog (Oct. 26, 2024, 6:32 AM), https://electionlawblog.org/?p=146618 [https://perma.cc/2VRH-KYMQ]. And based on certain assumptions, it seems to me that the number is quite small ultimately. So, it may be as low as 300 or 400 ballots. It may be on the most extreme assumptions, around 4,000 ballots. Those are net votes for Vice President Harris in the process. I tried to calculate based on the assumption that two-thirds of these ballots might be Harris votes rather than Trump votes. So on net, my assessment was that at the most, maybe 4,000 net votes for Vice President Harris. Based on past practice, the number might be closer to 300 or 400. But there are assumptions behind that. So I’m not saying for certain that that’s the number, but that’s my rough calculation on this right now.
A second case going through the system is whether it’s permissible for states to allow people to return their absentee ballots after election day if they’re postmarked by election day.11For discussion of absentee ballots and election day deadlines see Richard H. Pildes, Election Law in an Age of Distrust, 74 Stan. L. Rev. Online 100 (2022). So in about eighteen states, you can still cast a valid absentee ballot if you make sure your ballot is postmarked by election day, even if it arrives some number of days after election day.12See Republican Nat’l Comm. v. Wetzel, 120 F.4th 200, 211 (5th Cir. 2024). And in some states, it can be quite a long time after election day, like ten days or two weeks.13The Evolution of Absentee/Mail Voting Laws, 2020–22, Table 6, Nat’l Conf. of State Legislatures (last updated Oct. 26, 2023), https://www.ncsl.org/elections-and-campaigns/the-evolution-of-absentee-mail-voting-laws-2020-through-2022 [https://perma.cc/A8MR-4XX9]. In most states that allow this, it’s a shorter period of time.14Id. That’s been the practice for a significant number of years in these states.15See Bost v. Ill. State Bd. of Elections, 684 F. Supp. 3d 720, 736 (N.D. Ill. 2023) (“Despite these ballot receipt deadline statutes being in place for many years in many states, Congress has never stepped in and altered the rules.”). But there’s the federal law that sets up the presidential and the other national elections called the Presidential Election Day Act, which specifies that the election is on the first Tuesday after the first Monday.162 U.S.C. § 7; see also Michael T. Morley, Postponing Federal Elections Due to Election Emergencies, 77 Wash. & Lee L. Rev. 179, 185–86 (2020). And the argument is that it violates this federal election day statute for states to permit absentee ballots to come in after election day. That had been litigated in a few courts, which until recently, had rejected the claim.17See, e.g., Bost, 684 F. Supp. 3d at 736–37; Harris v. Fla. Elections Canvassing Comm’n, 122 F. Supp. 2d 1317, 1325 (N.D. Fla. 2000) (interpreting federal law dictating time of appointing electors) (“The federal government has surely been aware . . . of the eight states around the country which allow post-election-day acceptance of absentee ballots. However, no state has been sued by the federal government for such practices, which lends further support to the notion that Congress did not intend 3 U.S.C. § 1 to impose irrational scheduling rules on state and local canvassing officials . . .”). But the Fifth Circuit just recently held, in a case out of Mississippi, which is not going to be a swing state, just to make a little prediction, that this practice actually violates federal law.18Republican Nat’l Comm. v. Wetzel, 120 F.4th 200, 204 (5th Cir. 2024). Now, it’s extremely unlikely that this decision is actually going to be enforced in this election, even in Mississippi, because it’s so late in the day to change the rules under which the election is conducted. But that case will almost certainly eventually be heard by the Supreme Court, not in a way that would affect this election, but down the road. In this election, the only swing state that has this practice of allowing absentee ballots after election day is Nevada, which allows it for four days after election day if they’re postmarked by election day.19Election Frequently Asked Questions (FAQs), Voting By Mail, Nev. Sec’y of State, https://www.nvsos.gov/sos/elections/election-resources/faqs [https://perma.cc/4K2G-XZVV] (last visited Jan. 11, 2025); The Evolution of Absentee/Mail Voting Laws, 2020–22, Table 6, Nat’l Conf. of State Legislatures (last updated Oct. 26, 2023), https://www.ncsl.org/elections-and-campaigns/the-evolution-of-absentee-mail-voting-laws-2020-through-2022 [https://perma.cc/A8MR-4XX9]. So I can imagine if the margin is close in Nevada, and the number of ballots that come in after election day in that four-day window are greater than the margin of victory in Nevada, I can see this issue becoming a political issue that is used to attack the result in Nevada, even if it can’t be attacked through the courts.
There’s also one other case coming out of Virginia in which an effort is being made to get another issue to the Supreme Court right now. There’s a federal law on voter registration practices called the National Voter Registration Act that says states can’t engage in systematic purging or review of their voter registration rolls once we get within ninety days of a federal election.2052 U.S.C. § 20507(b). That’s because people need to have an opportunity to say, “you’ve made a mistake, I am actually validly registered.” There are mistakes that happen in this process. So as a matter of federal policy, there’s this “quiet period” in the last ninety days before the election. Nonetheless, in Virginia, Governor Youngkin is trying to get the state to remove certain individuals from the voter registration rolls based on crude databases that suggest certain people who are non-citizens are nonetheless on the voting rolls.21John Kruzel, US Supreme Court Revives Virginia’s Voter Roll Purge of 1,600 Purported Noncitizens, Reuters (Oct. 30, 2024, 4:33 PM), https://www.reuters.com/world/us/us-supreme-court-revives-virginias-voter-roll-purge-1600-purported-noncitizens-2024-10-30 [https://perma.cc/XYH7-M8AR]. They’ve tried to remove 1,600 registered voters in this way.22Id. It’s already been clear that there have been mistakes made in that process.23See Matthew Barakat, A Judge Orders Virginia to Restore 1,600 Voter Registrations Purged Ahead of the Election, Associated Press (Oct. 25, 2024, 3:26 PM) https://apnews.com/article/virginia-voter-registration-canceled-noncitizens-purge-judge-6b8dc9f01ef9afcbd06d4967ce68db46 [https://perma.cc/XPC2-B2AE]; see also Tyler Englander, Data Shows Eligible Voters Could Have Their Registration Canceled as Part of Virginia’s Efforts to Keep Non-Citizens off Voter Rolls, ABC 8News (Oct. 15, 2024, 5:40 PM), https://www.wric.com/news/taking-action/virginia-voter-rolls-citizenship [https://perma.cc/T46A-BBRW]. But the federal courts held that Virginia can’t do this because we’re now in this quiet period.24See Va. Coal. for Immigrant Rts. v. Beals, No. 24-2071, 2024 WL 4601052, at *1 (4th Cir. Oct. 27, 2024). Virginia is going to take this to the Supreme Court and we’ll see what they do about that.25On October 30th, 2024, the Supreme Court granted a stay against the lower court decision, allowing Virginia to continue purging that state’s voter rolls. Beals v. Va. Coal. for Immigrant Rts., No. 24A407, 2024 WL 4608863, at *1 (U.S. Oct. 30, 2024). So that’s a quick run through of the major cases that are in the system right now and a little bit of an anticipation of the litigation that might happen after the election. I’ll just say that the fact that there’s been so much litigation in advance of the election, I consider that basically a positive thing because we want these rules settled clearly in advance of the election. And if there are going to be disputes about various voting policies and various voting rules, it’s better to get this resolved in advance rather than stirring up efforts to challenge the voting practices after the election, or to delegitimate the voting process after the election by claiming that this policy or that policy was unlawful. So let me stop there and then on these broader anxieties that people have about the process, maybe we’ll talk more about that in the discussion period. Thanks.
*Sudler Family Professor of Constitutional Law at New York University School of Law. These remarks were presented as part of the symposium “The 2024 Presidential Election: Are We Ready?” at Fordham University School of Law on October 28, 2024. The remarks have been lightly edited, and footnotes have been added, but they retain the form and style of the oral remarks
