The midterm elections might not be until Tuesday, but already nearly one hundred lawsuits have been filed in states across the country questioning the validity of certain ballots or, conversely, attempting to widen access for potential voters. 

Over half of the lawsuits filed by Republican-affiliated groups as of mid-September sought to limit the practice of mail-in ballots, according to Democracy Docket, and at the time already reflected a marked increase from similar lawsuits filed ahead of the 2020 elections. 


What You Need To Know

  • The midterm elections might not be until Tuesday, but already nearly one hundred lawsuits have been filed in states across the country questioning the validity of certain ballots or, conversely, attempting to widen access for potential voters 

  • Pennsylvania, Michigan and Wisconsin are crucial swing states that allow no-excuse mail-in ballots, but give local election offices no time before Election Day to process them; some officials are worried about a repeat of 2020

  • In early September, a judge in Wisconsin's Waukesha County circuit court sided with Republicans and said election clerks are barred from filling in missing information on the form that serves as an envelope for absentee ballots

  • A Michigan judge threw out a lawsuit Monday that challenged voting by absentee ballot in Detroit, saying a Republican candidate for secretary of state failed to produce any evidence of violations

Many of the lawsuits relate to mail-in ballots, the efficacy of which were called into question by former President Donald Trump in 2020. Though his claims of widespread fraud were disproven by dozens of lawsuits, Trump’s message has permeated this year’s election as well. 

Pennsylvania, Michigan and Wisconsin are crucial swing states that allow no-excuse mail-in ballots, but give local election offices no time before Election Day to process them. 

Election workers’ inability to do that work ahead of time means many of the mailed ballots may not get counted on Election Day, delaying results in tight races and leaving a gaping hole for misinformation and lies to flood the public space.

Now, election officials worry that a replay from 2020 could be on the horizon in November’s crucial Senate and governor’s races. 

Here’s a look at some lawsuits in highly contested battleground states:

Pennsylvania

There have been a number of lawsuits filed in the Keystone State – from groups representing both Republicans and Democrats – in the leadup to this year’s midterms. 

Pennsylvania is, perhaps more so than most other states, a bellwether of political feelings across the country, split between rural counties that tend to lean more Republican and major metropolitan areas that vote with Democrats. 

In 2016, Donald Trump carried the Keystone State's presidential election by a little over 44,000 votes; Joe Biden flipped the state back to blue in 2020, nearly doubling Trump’s margin of victory and carrying Pennsylvania with over 80,000 votes.

It was also the site of nearly a dozen lawsuits in the wake of the 2020 elections, some of which attempted to stop election officials from counting mail-in or absentee ballots, the majority of which failed. 

More than 1.4 million Pennsylvanians requested mail-in ballots this year, but the state does not allow pre-canvassing of ballots to begin until the morning of Election Day. 

One case filed by the Republican National Committee has already been partially successful in suppressing some mail-in ballots. The state Supreme Court on Nov. 1 ruled that elections officials were not allowed to count mail-in ballots or absentee ballots that were “contained in undated or incorrectly dated outer envelopes.”

The court was split on whether not counting those ballots violated federal voting rights laws, and ordered the Pennsylvania county boards of elections to “segregate and preserve any ballots contained in undated or incorrectly dated outer envelopes.”

The American Civil Liberties Union of Pennsylvania and the Pennsylvania State Conference of the NAACP on Friday filed a countersuit decrying the decision as adhering to “hyper-technical rules that disenfranchise thousands of Pennsylvania voters based on an inconsequential paperwork error.”

“Defendants’ failure to count timely-submitted mail-in ballots based solely on a missing or incorrect date on the return envelope will disenfranchise potentially thousands of voters, directly affecting the State Conference’s members and interfering with its ability to carry out its mission of increasing voter turnout and participation,” the suit reads in part. 

A separate suit concerns pre-canvassing of mail-in ballots in Pennsylvania’s Monroe County, where approximately 150 - 175 individuals had received emailed notification that their ballots were canceled and offered a chance to revote.

Republicans alleged election workers in the county had violated state law by pre-canvassing ballots before Election Day, a process defined as examining ballots to “determine if the declaration envelope is properly completed and to compare the information with the information contained in the ‘Registered Absentee and Mail-in Voters File.’”

A judge on Monday denied the motion, writing that “refusing the injunction would return the parties most closely to the status quo; it has always been the policy of the Monroe County Election Board to allow a voter to come into the office to correct a defective absentee or mail-in ballot.”

Georgia

Georgia is a battleground state that features a fiercely contested governor’s race, as well as a Senate contest between Democratic Sen. Raphael Warnock and Republican Herschel Walker that could determine which party controls the narrowly divided chamber. For decades a conservative stronghold, Cobb County in recent years has leaned Democratic as Atlanta’s suburbs have diversified and as the GOP has lost support from college-educated white voters.

Last Friday, election officials in Cobb County acknowledged that the county failed to mail out more than 1,000 absentee ballots to voters who had requested them.

The mistake led voters who never received absentee ballots to file a lawsuit this week seeking an emergency solution so they can still vote. County elections director Janine Eveler wrote in an email to the county election board that because of staff error, ballots were never created nor sent on two days last month, the lawsuit says.

As a result, 1,036 voters never received the ballots they requested. State election data shows that about 250 of them had voted in person during early voting. But many of those whose ballots weren’t sent may not be able to vote if a court doesn’t step in, the lawsuit says.

During the three weeks of early voting that precede Election Day, election officials are supposed to send out ballots within three days of receiving a request. Voters then have until 7 p.m. on Election Day to return their ballots.

The lawsuit seeks to have ballots sent overnight to hundreds of voters who still need them and to extend the deadline for them to return them to Nov. 14.

The lawsuit, which seeks class action status, was filed on behalf of the voters by the American Civil Liberties Union and the Southern Poverty Law Center.

“Hundreds of eligible Cobb County voters did everything right and yet find themselves on the brink of total disenfranchisement because they were never mailed their absentee ballots, as is required under Georgia law,” Jonathan Topaz, staff attorney with the ACLU’s Voting Rights Project, said in a news release. “Only this court can right the wrong done to these hundreds of voters and ensure that they are able to exercise their fundamental right to vote in this November election.”

Wisconsin

There have been a number of lawsuits filed in Wisconsin ahead of this year’s midterm elections, many of which concern different kinds of absentee ballots. 

In early September, a judge in Waukesha County circuit court sided with Republicans and said election clerks are barred from filling in missing information on the form that serves as an envelope for absentee ballots.

The judge struck down guidance issued by the bipartisan Wisconsin Elections Commission, in place for six years, saying that clerks could fill in missing information. The judge agreed with Republicans that there is nothing in law allowing clerks to do that.

The practice, known as ballot curing, was unchallenged until after Donald Trump’s narrow loss in 2020 when nearly 1.4 million voters cast absentee ballots and COVID-19 vaccines weren’t available yet.

In early November, a Wisconsin appeals court and a circuit judge shot down attempts backed by liberals challenging the earlier ruling. 

In a separate case, the Republican chair of the Wisconsin Assembly’s elections committee along with a veterans group and other voters have filed a lawsuit seeking a court order requiring the sequestering of military absentee ballots in the battleground state.

The lawsuit from state Rep. Janel Brandtjen, filed Friday in Waukesha County Circuit Court, comes after a top Milwaukee County elections official was charged with fraudulently requesting three military ballots using fake names and having them sent to Brandtjen as a way to expose vulnerabilities in Wisconsin elections. Kimberly Zapata, deputy director of the Milwaukee Election Commission, was fired last week and now faces charges of felony misconduct in office and three misdemeanor counts of election fraud.

The lawsuit seeks a temporary injunction requiring elections officials in Wisconsin to set aside military ballots so their authenticity can be verified. A judge scheduled a Monday afternoon motion hearing in the case.

Michigan

A judge threw out a lawsuit Monday that challenged voting by absentee ballot in Detroit, saying a Republican candidate for secretary of state failed to produce any evidence of violations.

“Plaintiffs have raised a red flag of election law violations and corruption concerning Detroit’s procedures for the November 8th election. This court’s ruling takes down that flag,” Wayne County Judge Tim Kenny wrote.

Kristina Karamo and others sued to try to force Detroit residents to vote in person or go to the city clerk’s office to get an absentee ballot.

They filed a lawsuit 13 days before Tuesday’s election, making a variety of allegations about how Detroit reviews signatures on absentee ballots and monitors drop-off boxes. The lawsuit, among other things, also claimed the city was using “uncertified high-speed tabulators” to count votes.

“Despite plaintiffs’ arguments to ‘shed light in a dark place,’ they have failed dramatically,” the judge said. “Over an eight-hour evidentiary hearing, no evidence of election law violations” was revealed.

Kenny noted that Detroit elections administrator Daniel Baxter and former Michigan elections director Chris Thomas testified about how the city performs its job.

Approximately 60,000 Detroit voters had submitted an absentee ballot by last Thursday, Kenny said.

“While it is easy to hurl accusations of violations of law and corruption, it is another matter to come forward and produce the evidence our Constitution and laws require,” the judge said.