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Challenges To State Voting Rules Could End Up Before The Supreme Court

NOEL KING, HOST:

Around 5 million people have already voted. They stood on lines. They've mailed in ballots. But there are still legal challenges to mail-in voting that are happening all over this country. Some of what's unclear - do voters in some states need to have a witness when they vote? How late can ballots arrive and still be counted? NPR's Pam Fessler, who covers voting, is here with an update. Good morning, Pam.

PAM FESSLER, BYLINE: Good morning, Noel.

KING: There is so much happening in the courts over voting this year. Why?

FESSLER: Well, we've had hundreds of cases - more than 300 by some estimates - over how we vote. So it's been very overwhelming. But a lot of these cases have been resolved, and we're really down to a few key issues - just over who gets to send in a mail-in ballot and also how and when those ballots are going to be counted.

Earlier this week, for example, the U.S. Supreme Court weighed in on whether absentee voters in South Carolina have to get a witness to sign their ballots. The court said they do, unless they're one of thousands of South Carolina voters who've already sent in their ballots believing that a witness signature wasn't needed because that's what a lower court had ruled. So this is a really good example, I think, of some of the legal whiplash that voters are experiencing as these cases work their way through the courts. At least now in South Carolina, they know the final rules.

KING: What are some of the other big cases that you've been watching this season?

FESSLER: Well, Pennsylvania has seen a lot of - a number of lawsuits challenging their vote-by-mail rules. And right now Republicans are asking the U.S. Supreme Court to block a recent decision by the Pennsylvania Supreme Court that allows absentee ballots to be counted if they're received up to three days after Election Day, as long as they're mailed by Election Day. Democrats and state election officials say this extension is needed because of possible mail delays, but Republicans say the state Supreme Court overstepped its authority.

Other cases that could also still wind up before the high court - there's one in Wisconsin, where Republicans are fighting a federal court ruling that allows ballots there to be counted up to six days after Election Day, and in Alabama, the state's fighting a lower court decision that would waive ID and witness requirements for absentee voters who are at a high risk of contracting COVID-19. So there are a lot of things still up in the air.

KING: This, as your previous answer illustrates, has become very partisan. With the cases that have been decided so far, do we have a sense of whether Democrats or Republicans are doing better in the courts?

FESSLER: Well, I think it's really a mixed bag right now. Democrats and voting rights advocates, they've been trying to expand voter access because of the pandemic. And they've been successful in some cases. For example, in Nevada, they were able to fend off a Republican effort to stop the state from sending out ballots to all its registered voters. And there were court decisions in Pennsylvania and Ohio that will allow expanded use of drop boxes.

But for their part, Republicans have been able to reverse some of the Democrats' earlier victories, such as in that South Carolina case we were just talking about. They've also won victories preventing people from collecting and handing in large numbers of ballots, something called ballot harvesting. And also they've been able to require felons in Florida to pay off all their fines and penalties before they can vote.

KING: What do all of these challenges mean for after Election Day, when people will want to know who won?

FESSLER: Well, I spoke with Justin Levitt, a Loyola Law School professor who's been tracking these cases. And he thinks, as confusing as all this is, there's a silver lining to having this litigation now over questions such as exactly when a ballot has to be received. Here he is.

JUSTIN LEVITT: The fact that the courts have weighed in on that issue now means that they're far less likely to want to weigh in on that issue after Election Day. And that's true for a lot of the different claims that have been pressed so far about which ballots are legitimate and which aren't.

FESSLER: So he thinks that might reduce the chances that the election results will end up before the Supreme Court, something that President Trump has said he expects to happen.

KING: NPR's Pam Fessler. Thanks, Pam.

FESSLER: Thanks a lot. Transcript provided by NPR, Copyright NPR.