October 23, 2020

Federal judge denies injunction, so 7 states won’t be forced to accept internet ballot return

In the case of Harley v. Kosinski, Matthew Harley (and 9 other individuals) sued the election officials of 7 states (New York, Pennsylvania, Ohio, Texas, Kentucky, Wisconsin, and Georgia). The Plaintiffs, U.S. citizens living abroad, said that voting by mail (from abroad) has become so slow and unreliable that these states should be forced to let them vote by internet.

The lawsuit was filed September 30, 2020, requesting a preliminary injunction requiring online ballot return. The state defendants responded in writing by (the Court’s deadline of) October 9. On October 13, Federal district judge Brian Cogan denied the plaintiffs’ motion for a preliminary injunction.

Each of the seven states filed a reply brief arguing (as usual for preliminary injunctions) that the plaintiffs lack standing, they’re suing the wrong parties, they have not established a clear likelihood of success on the merits, and they have not demonstrated irreparable harm.

I will summarize New York State’s reply brief; the other states made similar arguments.

Lack of standing: the New-York-resident plaintiff “cannot establish an injury in fact that is traceable to any challenged conduct of the New York State Defendants”. Mr. Harley is “concerned” that his completed ballot will not be received on time. It was mailed to him on September 18, but he does not say when he received it or when he mailed it back. His “concern” is not an “actual” or “imminent” injury.

Sued the wrong parties: Election officials are just following state law, which does not provide them the discretion to permit internet ballot return. Go sue the post office.

No likelihood of success on the merits: it serves a compelling state interest to avoid internet voting:

  1. The secret ballot is a compelling state interest, to protect voters from intimidation and (vote-buying) fraud. Internet voting cannot protect the secrecy of the ballot.
  2. The security of the voting process is a compelling state interest. “As set forth in the Declarations of Professor Appel, Susan Greenhalgh, Barbara Simons, and David Jefferson . . . there is a broad consensus within the scientific community that the return of ballots via the internet or by fax is not secure and creates a high-risk threat to the integrity of the election process and should not be used in voting now or in the foreseeable future.”

No demonstration of irreparable harm: “the speculative harms identified by … Mr. Harley [and the other N.Y. plaintiff] are partially self-imposed. Their ballots were emailed to each of them in September, but they have yet to mail them back … because of their subjective “concerns”.

Well, indeed, I would be concerned too. Mail service is slower this year, and it may be true (as plaintiffs allege) that international mail is even slower and less reliable. But allowing internet voting–which can be hacked from anywhere and everywhere–cannot be the solution. To reason that “we really want this, so there must be some way to make it secure” is magical thinking.

My own declaration played a (very small) role in this; it was filed by New York in support of their reply brief that I have summarized above.

Judge Cogan explained his ruling as follows (paraphrase):

  • Second Circuit case law imposes a very high hurdle for a preliminary injunction that imposes a mandate on state government. There must be a strong showing of irreparable harm and a clear showing of likely success on the merits.
  • Plaintiffs could not show jurisdiction over the six states other than New York. That mail might pass through the JFK International Processing Center was not a sufficient basis for jurisdiction.
  • Plaintiffs could not show standing because none showed an injury in fact, only a speculative chain of possibility.
  • Judge Cogan referred to the Purcell principle, that courts must be extremely cautious before granting injunctive relief on the eve of an election.
  • The US Constitution does not guarantee overseas voters the right to vote and overseas voters do not have a constitutional right to a particular method for returning a ballot beyond what Congress authorized in UOCAVA. Voters do not take their right to vote with them when they move abroad.
  • A change this close to the election would undermine voter confidence in the system. States need time to set up systems. He acknowledged potential security risks, which have a significant effect on voters’ confidence in the system. Recent problems that New York experienced implementing expansion of absentee voting underscore the concern that any court-ordered changes could be difficult to implement.

A few hours after the Court denied the preliminary injunction, the Plaintiffs moved to dismiss the case, without prejudice. So I guess that’s that.

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