If you fear you may not succeed, then sue and then sue again. That’s the strategy Republicans are embracing in battleground states such as Pennsylvania, Michigan and Wisconsin, where they have launched an assault on mail-in voting as they have simultaneously encouraged their voters to cast ballots in person.
Republicans have launched an assault on mail-in voting as they have simultaneously encouraged their voters to cast ballots in person.
In Pennsylvania, Republican officials successfully sued to ensure election officials won’t count mail-in ballots in envelopes that aren’t dated. The purpose behind the date requirement is, of course, to ensure that people do not vote after Election Day. But these ballots were received well before Election Day, which means they were obviously completed before Election Day.
On Monday, Democrats, including U.S. Senate candidate John Fetterman’s campaign, took the battle to federal court, where they argued that discarding such ballots is a violation of the 1964 Civil Rights Act. They argued in the lawsuit that a date on the envelope “has no bearing on a voter’s qualifications and serves no purpose other than to erect barriers to qualified voters exercising their fundamental constitutional right to vote.”
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Just in case you are inclined to give Republicans a benefit of the doubt and believe their claims that their goal is election security and not voter suppression, allow me to share another detail with you. Republicans in Pennsylvania also sued to prohibit counties from contacting voters who failed to put a date on their envelopes and letting them know that they still had time to cure the problem. That suit didn’t succeed, but the fact that Republicans filed it reveals their motivations.
The apparent theory behind this strategy is to attack mail-in ballots to depress Democratic turnout and to silo voters by methods of voting. Republicans want their voters to vote in person and to ensure that the majority of mail-in ballots are cast by Democrats, so that when they attack the mechanisms of mail-in ballots, it won’t hurt their vote counts.
For example, in Michigan, as the Detroit Free Press has reported, Kristina Karamo, the Republican running for secretary of state, sued to have the city of Detroit trash mail-in ballots that were not requested in person with identification. The problem with Karamo’s argument is that state law doesn’t require mail-in ballots to be requested that way. According to The Washington Post, at a hearing last week, Karamo’s attorney didn’t explain why, if his candidate believed there was a problem under state law, her suit only targeted Detroit, a city that is dominated by Democrats.
In rejecting Karamo’s lawsuit Monday, Wayne County Circuit Court Judge Timothy Kenny wrote, “Such harm to the citizens of the city of Detroit, and by extension the citizens of the state of Michigan, is not only unprecedented, it is intolerable.” He also wrote, “The idea that the Court would single out one community in the state to be treated adversely when Plaintiffs have provided no evidence in support of their allegation simply cannot be allowed to occur.”
The way to win elections should be by convincing voters that your views and policies are better than your opponents’. Karamo’s suit failed. But again, the filing of the suit shows us exactly how some Republicans are trying to win. Elsewhere, Wisconsin law provides that voters who vote by mail must have a witness who can certify that the voter legally filled out their ballot. Witnesses must provide their name and address, but some witnesses failed to completely list their address. Thanks to a suit by Republicans, local officials are barred from completing those incomplete witness addresses or counting the ballots to which they’re attached. The way to win elections should be by convincing voters that your views and policies are better than your opponents’, but Republicans are trying to win not just by making their case to the voters but also by taking their cases to the courts. They’re trying to win by convincing judges that some real or imagined lack of compliance with a highly technical law is grounds for trashing votes they think might be for Democrats. These suits aren’t merely abstract legal arguments. The balance of power in the Senate, the House of Representatives and statehouses throughout the country could boil down to a few votes. Republicans know this. And that’s why they’re fighting so hard not just in the political arena, but in the courtrooms as well.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
