Battleground: Ballot Box | How The Courts Shape Our Elections

Election law is a complicated topic — and something that has been in the headlines a lot with various challenges for how we vote. 

I talked with Bryan Tyson, an election lawyer and partner at Taylor English Duma. He got his start in this specialty in the 2000 election cycle drawing redistricting maps, and after the 2018 election he saw there was a need for someone to understand how the election system works as well as the law.

Tyson said the core of election law is understanding the rules and procedures of how we vote, and ensuring voters follow those rules if they want their vote to count. 

"If I show up on Wednesday at my precinct to vote the day after the election, I don't get to vote," he said. "And I haven't been disenfranchised, I just didn't comply with the processes we had in place to get my vote counted."

He’s argued several cases for Democrats and Republicans and says in the last few years the voting lawsuit landscape has drastically changed. It used to be that most election law cases dealt with redistricting and other specific pieces of the voting puzzle. But recently, courts have been hearing more and more challenges to the decisions made by state and local elections officials.

"It's a significant shift away from having the policymaking branches of government setting the rules, which is historically how we've done it," he said. "So it's kind of a new world in a lot of ways. But ultimately, we have to have rules around elections, and that's kind of where we are."

The laws that govern elections are made by the state legislature and the state election board, which county elections officials then implement in the day-to-day operations.

But what happens if someone thinks those rules and laws aren’t right?

That’s where the legal system comes in. Many challenges to Georgia’s election laws this year have come in the federal courts.

"The U.S. Constitution reserves elections primarily for the states and for the states to run their own elections," Tyson said. "For the issues that have been brought into federal court, the idea is whatever the election practice is has to violate the U.S. Constitution. And historically, courts have not involved themselves in the administrative details of an election. They’re focused on broad, systemic problems."

That’s remained true in Georgia. 

There have been several high-profile election lawsuits here, ranging from when absentee ballots must be received to the electronic voting machines the state just purchased for more than $100 million.

But like Tyson said, the courts do not typically make changes to how elections are run. Of all the lawsuits filed in 2020, only one was ultimately successful — a ballot access challenge filed that lowered the number of signatures needed for third-party candidates to get on the ballot because of the COVID-19 pandemic. Something like that is a more broad, systemic problem like the election law cases of old.

"If you think of redistricting that dilutes minority voting strength or that favors rural areas over urban areas of a state, or very particular election practices that are related to free speech issues where there's a ban on write-in voting or there is a particular petition requirement for signatures to get on the ballot... That historically has been what we've litigated," he said.

But the increasing complexity of voting systems and contested partisan nature of elections has changed the game. 

"The Supreme Court said in the Burdick case years ago in the early '90s that a voter doesn't have a right to vote in any particular way they choose," Tyson said. "And so what a plaintiff has to do if they want to get that issue in front of a federal court is convince the judge that this is an issue of constitutional import, not just an issue with how we run an election."

Tyson said federal judges have been more open to exploring these kinds of issues.

But if it seems like judges tend to favor state and local election officials in these cases — it's because they do. Tyson said that judges give deference to the government's rules they put in place, using something called the Anderson-Burdick framework.

"The judge has to look at whatever the challenged practice is and say, 'What is the burden on the right to vote as a result of this?" because the Supreme Court has said everything involves some burden," he said. "But the Supreme Court has distinguished between the burdens that kind of arise from life's vagaries versus burdens that really are severe on the right to vote."

Once the court determines how severe that burden is, the state or other government entity has to show what their interest is in placing that burden on voters. Tyson said that means things like having to check someone's an eligible voter or that there must be a deadline for registration.

"The state's interests are pretty much always assumed to be right; the state is just running the election," he said. "For very severe burdens on the right to vote, then the state's interests are not really given that much import, because the burden on the right to vote is so severe. So they call it a sliding scale, and that's how a judge evaluates the people who are running the election and what they're trying to do versus the burden on the right to vote."

In Georgia in particular, the COVID-19 pandemic has wreaked havoc on election administration, with polling places dropping out, a shift towards mail-in voting and last-minute changes to many rules and procedures. Tyson said that adds an extra layer of caution in evaluating these lawsuits, as judges want to make sure that both voters and officials alike know the rules of the game before the game starts, so to speak.

Indeed, in the ongoing lawsuit challenging electronic voting machines in Georgia, the judge has denied requests to change the way Georgia votes several times because of how close the ruling came to the start of the voting process.

"All the training that poll workers would receive is all on the set of rules that will apply to that election ... where it gets dicey is when we have situations where the rules change close to an election," Tyson said. "And in those situations, I would urge people to contact their local election officials, their county boards of election ... they're going to be the people with the best information and the best source of information to help what needs to happen in that particular time. 

In another example, a federal judge extended Georgia’s absentee ballot deadline to be three days after Election Day so long as it is postmarked by Election Day. An appeals court overturned that ruling and we’re back to the 7 p.m. Tuesday deadline.

Though Georgia is currently under a Republican administration, Tyson said changes and challenges to election law has been a bipartisan pastime, such as when Democrats changed the majority vote rule after Sen. Wyche Fowler lost in a runoff, and when Republicans changed it back years later.  

Still, we live in a polarized climate, so Tyson also said you should expect more lawsuits around the country and in Georgia for elections to come. We could find out on Election Day if 2020 has any more election suits in store.

Battleground: Ballot Box is a production of Georgia Public Broadcasting. You can subscribe to our show at gpb.org/battleground, or anywhere you get podcasts. 

Please leave us a rating and review on Apple Podcasts. Our editor is Wayne Drash. Our intern is Eva Rothenberg, the show is mixed by Jesse Nighswonger and the director of podcasting is Sean Powers.