Election Changes
• Minnesota: The League of Women Voters, with the support of the Campaign Legal Center, has filed a lawsuit asking a federal court to bar enforcement of Minnesota's requirement that absentee voters have their ballots witnessed.
• Missouri: A Missouri state court has rejected a lawsuit brought by the NAACP seeking to allow any voter to cast an absentee ballot, saying that the plaintiffs' request was "not limited to Covid-19 and goes far beyond the health concerns they raise." Plaintiffs had asked that any voters who "reasonably fear that they may contract or spread COVID-19 if they vote in person" be permitted to vote absentee, but the court concluded that granting such relief would entitle every voter "who feared catching any illness at the polls, in any future election" to an absentee ballot.
Following the ruling, the plaintiffs appealed to the Missouri Supreme Court.
• Texas: The 5th Circuit Court of Appeals has temporarily stayed a lower court ruling issued a day earlier that had allowed all voters to cast absentee ballots in any elections that take place "during the pendency of pandemic circumstances." Republican Attorney General Ken Paxton immediately appealed the ruling issued by District Judge Fred Biery, but the appeals court's stay is only short-term in nature, known as an "administrative stay." Such a stay is designed to give the 5th Circuit time to rule on Paxton's request that Biery's decision be paused for the duration of Paxton's appeal.
In his ruling, Biery concluded, among other things, that state law violated the 26th Amendment, which guarantees that the right to vote "shall not be denied or abridged ... on account of age." Texas allows all voters 65 or older to cast absentee ballots without an excuse while requiring an excuse for anyone younger. Biery noted that this practice would grant easier voting access to "those 65 years of age and older but not those 64 years, 364 days and younger," saying such a distinction lacked any "rational basis."
Biery also criticized Paxton for sparking "confusion" due to the "contradictory opinions" he's offered regarding absentee voting, which Biery called "at best duplicitous and at worst hypocritical." He further clamped down on Paxton's repeated efforts at voter intimidation by forbidding him from issuing "any further threats of criminal prosecution" directed against those promoting absentee voting, as he's now done at least twice.
Biery specifically noted that a Republican candidate for the U.S. House that Paxton has endorsed, Kathaleen Wall, has sent out mailers encouraging voters to request absentee ballots but observed that there is "no evidence" that Wall is "being criminally investigated or prosecuted" for doing so. That disparate treatment, ruled Biery, "leave[s] the Democratic Party and its candidates unsure whether only Democrats will be prosecuted."
(Note that this case is separate from proceedings in the Texas state courts, which last week saw the state Supreme Court block a lower court's order that had also allowed all voters to vote absentee.)
While Biery's ruling is on hold for the moment, the appeals court could rule soon and in fact ordered the plaintiffs to respond to Paxton by Thursday afternoon. However, the already conservative 5th Circuit has grown more so under Donald Trump's presidency, and all three judges on the appellate panel were appointed by Republicans. But even if plaintiffs prevail, Republican Gov. Greg Abbott has indicated that the state is prepared to take the matter all the way to the U.S. Supreme Court, whose conservative majority has long been hostile to the expansion of voting access.
• Wisconsin: Officials in Wisconsin are considering a plan to send absentee ballot applications to all active registered voters who have not yet requested an absentee ballot themselves, about 2.7 million in total. Applications would not be sent to the approximately 129,000 voters who are "believed to have moved."