Category Archives: #2DaysOut

#LookingBack: Two Truths at Once—How to Achieve Electoral Finality (Ned Foley)

The following is a symposium contribution from Ned Foley (Ohio State):

 The nation has a new president-elect, Joe Biden.  Yet at the same time, there is no official president-elect, because the electoral process itself hasn’t yet reached that point.

How can both these assertions be true?  And if they are, how are Americans supposed to understand that?  Most importantly, how can Americans of opposite parties get on the same page, so that we can move forward together as one country, as our new president-elect in his impressive victory speech is urging us to do?

The key is to understand that when it comes to ending elections, there are actually two different processes at work, and they operate on different timelines.

The more familiar process is cultural. It’s the pageantry of democracy, developed over decades of traditional rituals, which usually occur on Election Night.  First, there come the projections of an Election College winner, from the networks and other media outlets once a candidate has apparently achieved popular-vote victories in enough states for an Electoral College majority.

Soon after those media projections, the losing candidate acknowledges the reality of those numbers and gives a public concession speech.  The winning candidate, in turn, gives a victory speech and, as a practical matter, is president-elect.

All of that, however, is far ahead of the official process for bringing the election to a close. Election Night tallies need to be converted into officially certified outcomes.  This requires the canvassing of returns, when the preliminary tallies are verified and provisional ballots are included in the totals, along with military and overseas ballots and any others that cannot be counted immediately.

Recounts may be necessary, not because of problems, but just as an extra step of verifying accuracy.  The various verification measures, so salutary for the election’s integrity, inevitably take time—days or even weeks, depending on the laws of different states, and how much verification is needed in any particular election.

But until the final certification of the popular vote occurs in enough states for an Electoral College majority, there is not yet an official president-elect in any sense.  Indeed, to be technical, under the Constitution there can’t be an official president-elect until the Electoral College actually casts its votes for president, which will occur this year on Monday, December 14.

As Americans, we never want to wait that long to say we have a president-elect.

This year it was hard enough to wait just four days for the media’s unofficial projections of a winner.

This wait has been blamed mostly on Pennsylvania’s failure to change its laws to permit early “pre-canvassing” of mailed ballots, in the way that Florida and other states allow. That change would have been good, but it would not have permitted an Election Night winner, even unofficially.  It was necessary to count enough provisional ballots for the media to “call” the state, and provisional ballots by definition cannot be pre-canvassed.

In 2008, Missouri could not be “called” for two weeks because of provisional ballots, although most Americans ignored this fact because Missouri that year did not matter to reaching an Electoral College majority. This year, Arizona still hasn’t been called by some outlets (and perhaps was called prematurely by others), even though it made the change to early pre-canvassing of mailed ballots advocated for Pennsylvania. 

As difficult as it is, Americans need to get used to the fact that sometimes presidential elections will be “too close to call” for several days or even longer.

And what is the significance of these unofficial media “calls”?

Networks and newspapers immediately labeled Joe Biden “president-elect” as soon as they made their projections Saturday. That is their First Amendment right, although it has no governmental status.  But it was the basis on which Biden gave his victory speech—a victory that Trump defiantly will not acknowledge. Other elected Republicans are struggling with what to say.

GOP Senators, like Roy Blunt, are not wrong when they observe that there is still a legal process to play out.  But they should do more to recognize, as Blunt himself signaled, that this legal process will end with the same conclusion as the media’s unofficial projections.

Former president George W. Bush struck the right note when he congratulated Joe Biden as “president elect” while simultaneously acknowledging Trump’s “right to request recounts and pursue legal challenges.”

The problem is Trump’s assertion of this right, based on all known facts. It is honorable to challenge an opponent’s victory when there’s a good-faith basis for doing so, but it is dishonorable when there’s not.

Everyone knows that Trump will never be able to admit that Biden won fair-and-square.  Because of this, it is essential that other Republicans do so.

While they can wait for the certification of results to say that Biden’s victory is official, they cannot wait to repudiate efforts to discredit that victory.

The message now must be Bush’s: the legal process, once complete, will confirm an outcome already “clear” and “fundamentally fair.”

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#LookingBack: The Future of American Liberal Democracy (Jim Gardner)

The following symposium contribution is from Jim Gardner (Buffalo):

One week after the election, it now seems safe to say that Americans narrowly dodged the worst threat to liberal democracy since the outbreak of world war in 1939: a continuation of the illiberal authoritarian rule of Donald Trump. Despite threats of violence – some emanating from the president himself – the voting was peaceful, the counting routine, and the margin seemingly sufficient to secure the outcome from official obstruction, judicial or otherwise.

            While the result was encouraging, the future of American liberal democracy remains uncertain and precarious. I have three main worries.

Continuing authoritarian stimuli. When strongman leaders suffer clear and public setbacks to their hold on power, they can fall precipitously. Former supporters, their fear suddenly dispelled, sometimes line up to help kick the declining leader to the curb as he exits the political stage. If the strongman regime is then followed by a liberal democratic one, the political arena may be largely cleansed of authoritarian stimuli, and its prior adherents, the authoritarian signal lost, may thus drift back into the liberal democratic fold – subject, however, to the critically important proviso that the successor regime display some degree of performative success.

Might events in the U.S. unfold in this way? On one hand, Trump’s support seems to draw upon a coalition of illiberal populists, who deny longstanding American commitments to principles of citizen equality, popular sovereignty, the rule of law, and basic human rights; and regular Republicans, who retain those commitments but have supported Trump reluctantly out of habitual partisan loyalty. The latter group, possibly the larger of the two, might be inclined to return to the fold if sources of authoritarian stimuli in the political environment now go quiet.

On the other hand, it is far from clear how quiet those sources will become. As long as he has strength to move his thumbs, Trump is likely to continue constantly to tweet out dog-whistle stimuli to his loyal supporters. He has already threatened to run again in 2024, ensuring he remains salient to Republican party politics. And the pro-authoritarian media, including the authoritarian propagandists at Fox News, who did much to prepare the ground for Trumpian populism, can hardly be counted on to mute themselves over the next four years.

Authoritarianism in the states. Federalism provides opportunities for a political party or movement out of power at the national level to retain a significant base, and to exercise meaningful authority, at the subnational level. Many American states have over the last few years taken multiple steps down a globally well-trod path to authoritarianism. As a result, electoral rejection of authoritarianism at the national level may simply relegate it to pockets of dominance in various states. There it will remain protected, regionally popular, and politically salient, ready to re-emerge in national politics should an opportunity arise.

Authoritarianism in the federal courts. Ever since the final days of the John Adams administration, when Federalists frantically appointed supporters to federal judgeships, politicians have understood that partisan capture of the federal judiciary can offer a stronghold at the national level to a party temporarily turned out of national elective office. For forty years, Republican administrations have pursued this strategy diligently, and the federal courts, including the Supreme Court, now carry a majority of judges who have been vetted carefully for adherence to the party’s commitments.  During the run-up to last week’s election, these courts showed a marked tendency to uphold profoundly illiberal vote suppression measures enacted by Republican-controlled state legislatures or Republican election regulators. The Supreme Court itself has taken up a position of federal judicial non-interference in state regulation of electoral processes, a position that enables authoritarian-inclined state officials to continue to insulate themselves from meaningful political competition.

In light of these considerations, it seems to me that any return in the United States to the kind of stable, reliable, consensual liberal democracy that prevailed during the last half of the twentieth century is uncertain and, at best, a long way off.

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#2DaysOut: Full List of Symposium Contributions

#2DaysOut: “Reflections from Philadelphia” (Tabatha Abu el-Haj)

#2DaysOut: “Three Things on My Mind” (Guy-Uriel Charles)

#2DaysOut: “How to Draw the Line on a State Legislature’s Electoral Power?” (Ned Foley)

#2DaysOut: “Democracy or Authoritarianism?” (Jim Gardner)

#2Days Out: My New One at Slate: “Trump Can’t Just ‘Declare’ Victory” (Rick Hasen)

#2DaysOut: “So Far” (Sam Issacharoff)

#2DaysOut: “This Election Illustrates a Deeper Problem” (Pam Karlan)

#2DaysOut: “Voters Give Reason to Celebrate an Election That’s Not” (Justin Levitt)

#2DaysOut: “The Vulnerabilities and Indeterminacy of the Presidential Election Process” (Michael Morley)

#2DaysOut: “A Ballot Dispute in the Making?” (Derek Muller)

#2DaysOut My Closing Perspective, in the WSJ, on Voting and the Election (Rick Pildes)

#2DaysOut: “The Textual Problem with the Presidential Version of the Independent State Legislature Argument” (Nick Stephanopoulos)

#2DaysOut: “Ten Things to Watch for on (and after) Election Day” (Dan Tokaji)

#2DaysOut: “Worried About Tuesday’s Election? Not Me.” (Franita Tolson)

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#2Days Out: My New One at Slate: “Trump Can’t Just ‘Declare’ Victory”

I have written this piece for Slate (and part of the #2DaysOut symposium). It begins:

Just count the damn votes.

We are nearing the end of a ridiculous pandemic-laden election season, where we may hit  record turnout despite the most blatant attempt to suppress the vote in a generation. More than 90 million people have already voted, and we may reach a record turnout of over 150 million on election day. I am sure we would have exceeded that number by millions more votes if President Donald Trump and Republicans had not fought efforts around the country to make voting during the pandemic a little less onerous.

And with Joe Biden ahead in the polls, the Trump end playbook has become increasingly clear: attack the counting of ballots after election night—even if they’ve arrived by election day—and prematurely declare victory if Trump is ahead—or possibly even close—in the early count. Indeed, Axios reported on Sunday that “President Trump has told confidants he’ll declare victory on Tuesday night if it looks like he’s ‘ahead,’ according to three sources familiar with his private comments.” This is largely in line with Republican lawsuits this election season, including a request over the weekend by Texas Republicans for a federal judge to throw out more than 100,000 ballots, which is likely to fail. Any such effort to continue this ploy after election night would be a disgusting attempted coup to try to stop the counting and manipulate public opinion, but the good news is it is also very unlikely to work.

Let’s start with the counting of ballots. While there has been some dispute about whether state courts such as Pennsylvania and Minnesota had authority to extend the deadline for receipt of mail ballots that arrive after election day (a practice allowed in a fair number of states), there has never been any basis to claim that a ballot arriving on time cannot be counted if officials cannot finish their count on election night.

Indeed, such a claim is preposterous because no state fully counts their ballots on election night. Returns are unofficial and always contain errors. Many states allow military ballots to arrive for days after election day. Counting generally continues for days and weeks after election day and results are not certified until weeks after. When it comes to the president, the presidential electors do not cast their official ballots until December 14 and Congress does not count their votes until January 6. This calendar leaves plenty of time to get the counting done.

That’s what makes the Trump campaign efforts to cast doubts on even the counting of ballots after election day, even of military ballots, so unprecedented. As Slate’s Will Saletan noted, Trump adviser Jason Miller, speaking on ABC News’ This Week, signaled a legal battle against ballots not yet counted by Tuesday. “If you speak with many smart Democrats, they believe that President Trump will be ahead on election night,” Miller said. “And then they’re going to try to steal it back after the election.”

Counting legitimate ballots is not stealing of flipping the election, and no amount of spin can make it otherwise. But this is part of a broader strategy of Trump, also signaled to Axios, to prematurely declare victory based upon partial vote totals. The New York Times reported that “Trump advisers said their best hope was if the president wins Ohio and Florida is too close to call early in the night, depriving Mr. Biden a swift victory and giving Mr. Trump the room to undermine the validity of uncounted mail-in ballots in the days after.”…

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#2DaysOut: “Worried About Tuesday’s Election? Not Me.” (Franita Tolson)

The following is a symposium submission from Franita Tolson (USC):

For many people, this particular election cycle feels very different than any in our lifetimes.  Individuals are voting by mail in large numbers due to the COVID-19 pandemic.  Nevertheless, courts have been receptive to arguments that would limit the ability of state and federal courts to make it easier for voters to cast ballots in these unprecedented circumstances.  For example, election officials in Pennsylvania and Minnesota are preparing for inevitable litigation with plans to segregate ballots received after Election Day.  A federal district court in Texas will have a Monday hearing on whether to toss out over 127,000 ballots from voters who used the curbside voting mechanism authorized by Texas law.  The endless litigation and high emotion surrounding the election are a perfect recipe for disaster.  Towards this end, if we are able to elect a President successfully in these circumstances, many will declare that American democracy has prevailed again. 

However, the potential for an election meltdown will always be present so long as we continue to elect presidents within our structurally flawed election system without addressing the core problems that make such meltdowns likely.  Because a winner has been able to eventually emerge under this flawed system for over two centuries, we forget that many of our elections are marred by disenfranchisement, violence, unrest, uncertainty, incompetence, maladministration, or some combination thereof.  Once the choice is made, we turn the page to focus on the next election cycle, ignoring the structural pathologies that threaten the preferences of the majority in the selection of the President.  Our democracy exists in a continuous state of chaos, and we live with it only because we somehow manage to elect a President despite the chaos.  Yet it is possible that one day our hubris will get the best of us, and we will be faced with an existential crisis that no amount of counting, recounting, or litigation will get us out of. 

While this does not mean that 2020 will be the year in which the chickens come home to roost, kicking the can down the road and inviting disaster is still profoundly irresponsible.  In reality, the problem is not Tuesday’s election—the stage has already been set and there is little to do but hope for the best— but what happens beyond Tuesday.  Once a President is elected, we will still have to grapple with the fact that state authorities have actively tried to make voting harder in a global pandemic.  It should not matter whether they will be successful in depressing turnout on Tuesday.  In other words, we cannot declare the election a success simply because voters overcome the barriers put before them.  What matters is punishing this behavior, independent of success.  We should revisit the system that permits these actions as well as the judicial precedents that have facilitated it. 

Many of the decisions coming out of the U.S. Supreme Court and lower courts in recent months have been hostile to the right to vote and overly solicitous to the authority of state legislatures.  Some of these cases have elevated the prominence of the independent state legislature doctrine, which advances the view that state legislatures set the rules governing federal elections and their authority cannot be constrained by state courts or state constitutions.  This doctrine will not disappear when a President is elected or when COVID ends, and scholars will have to grapple with its implications well beyond Tuesday’s election.  Moreover, any attempt to limit these state centric precedents to the current COVID pandemic is a pie-in-the-sky pipe dream that will not serve us or this democracy well.  Bush v. Gore was also a precedent good for one day only, yet here we are two decades later facing the prospect that the independent state legislature doctrine—a minority view from three justices in that case—may dictate whether the state legislature has largely unconstrained authority to set the rules for congressional and presidential elections moving forward. 

Nevertheless, I am not worried about Tuesday. There will be litigation, divisive rhetoric, and legitimacy concerns surrounding this election, but it is still highly likely that, like the last 230 years, a President will emerge from the ashes of this dumpster fire.  I am worried about the after.  I am worried that in four years, our conversation will be little changed because we have missed yet another opportunity to fix the problems plaguing our system.  I am afraid that we will learn to live with unfavorable Supreme Court precedents rather than challenging the very structures that have displaced the voters as the central character in our democracy.  I am afraid of Wednesday.

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#2DaysOut: “Voters Give Reason to Celebrate an Election That’s Not” (Justin Levitt)

The following is a symposium contribution from Justin Levitt (Loyola L.A.):

With three days left to cast ballots at the end (?) of a white-knuckle electoral process, there’s a remarkable amount to celebrate.

As Michael McDonald chronicles, more than 91 million early votes have already been cast.  The most eye-popping stats are in states like North Carolina (now showing 91% of 2016 turnout, with only 4% vote by mail in 2016); Georgia (93% of 2016 turnout, with 5% vote by mail in 2016), Tennessee (89% of 2016 turnout, with 3% vote by mail in 2016, and requiring an excuse to vote by mail).  And Texas.  My lord, Texas.  Texas reports more than 107% of 2016 turnout already.  Texas requires an excuse to vote by mail (just 7% voted by mail in 2016).  This year’s turnout is staggering.  Voters are demanding to be heard. There’s (much) more to come.

Much of this is made possible by the extraordinary resilience and creativity of voters, advocates, and election officials.  We’ve seen naked celebrities doing PSAs about naked ballots, and 700,000 new pollworker recruitsDancing on line at the polls, and NBA arenas converted to voting locations.  102, 103, 104, 105, and 106-year-old Americans, in hazmat gear, voting despite the pandemic.  A 109-year-old voter just turned 110 last week.  Happy birthday, Earline!

Most Americans have had — or will have — a comparatively smooth experience, even given the disruptions of COVID-19.  Most states have expanded the reliable opportunity to vote by mail, which 58 million voters have already used.  Many local officials scrambled to provide opportunities to vote early.  Voters appreciate these avenues, and will demand that they persist beyond the pandemic.

And yet.

This is a success only when measured by artificially depressed standards.  Voters and local officials are managing despite the surrounding system, not because of it.  We should celebrate the perseverance, with white-hot outrage at the conditions that make that perseverance necessary.  And when new legislative sessions begin, the only way we fix the lapses of today is to remember those lapses tomorrow.  Whatever the electoral results.

Even when turnout estimates amount to 65% of eligible voters, 80 million eligible citizens are shut out from or turned off of participation in representative democracy.  Too many of those who do participate will have done so via a fight far harder than any republic with a care for customer service should offer.

We get what we pay for.  We poured trillions into pandemic recovery, and a teaspoonful into the democracy that makes it work.  Election officials begged for basic-needs cash in May; 28 federal judges later, they’re still waiting, requiring private philanthropy to duct-tape a small fraction of the holes.

Jurisdictions without capital for ballot-sorting machines turn to temp labor, and depend on kindness for polling-place staff and space.  Budget limitations mean meager voter education in a year of substantial procedural change. The outpouring of volunteerism is heartwarming; heroes abound.  But this is the electoral equivalent of underpaid teachers purchasing classroom supplies with personal funds.

The shortages do not fall equally on the electorate.  In a story depressingly familiar, those who are already underrepresented end up disproportionately disadvantaged.  Mail ballot rejections and delivery times, access to polling places, length of lines — the fact that you know the story doesn’t make the story OK.

This year, the masks also came off even more rules purporting to be about electoral process.  Local jurisdictions accommodating voters discovered state officials with new and pretextual “integrity” concerns where voters represented a political threat to the incumbents.  Lower courts grappling with nuances of administrability and enfranchisement found narrow orders blocked on appeal by gestures to the calendar without meaningful rationale — except, that is, when appellate courts wanted to issue last-minute injunctions of their own.  The courts ratified a legislative effort to overrule its own citizens, disenfranchising voters for their inability to repay a fee whose amount is a mystery even to the state.  The Senate majority’s purported desire to listen to the people before embarking on high-stakes judicial entrenchment simply . . . vanished.

And, of course, the President continues to insist, using the largest megaphone in the land, that the coming election is rigged, when those who spend countless hours securing it know otherwise.  Social media platforms monetizing quick-fire emotive response have acted too slowly to deprive the fire of oxygen, when they have not actively been feeding it fuel.  The claims arrive without evidence, spread without reflection, and land without protest from the party leaders who know better.

These are problems beyond one bad actor. They are systemic problems of norms and laws and incentives and institutions.  Despite it all, American voters (not trolls, lawyers, or lawyer trolls) will end up deciding this election.  But once they do, we owe it to that intrepid electorate to ensure that it takes less heroism to decide the next one.

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#2DaysOut: “Three Things on My Mind” (Guy-Uriel Charles)

The following is a symposium contribution from Guy-Uriel Charles (Duke):

First, if the election is close and it comes down to one or a few states, what are the legal issues that will come up that are not currently on our radar screen. I am reminded of the famous Rumsfeldian quip, uttered by Donald Rumsfeld who was the Secretary of Defense and responding to a question about the Iraq War. Rumsfeld stated, “there are known knowns . . . there are known unknows . . . and there are unknown unknowns.”  Rumsfeld could have been talking about election litigation.  There are some issues that we know we know.  For example, we know that if the election comes down to North Carolina or Pennsylvania the counting of absentee ballots received after election day will certainly be one of the issues litigated.  There are also some things we know we do not know.  For example, we do not know what role the Supreme Court will play in election litigation disputes or how seriously it will take the argument that only state legislatures have the power to change laws dealing with presidential electors.   However, I fear that it is the unknown unknowns, as Rumsfeld went on to say in probably one of the most understated utterances in history “that tends to be the difficult ones.”  We can prepare for the known knowns and the known unknows.  I am thinking about the unknown unknowns; the first issues that will surprise us and that we wish we had known.

Second, if you make it easy for people to turnout and vote, they will. We are two days away from one of the most, if not the most, consequential elections in my lifetime, taking place within one of the most polarized political context that we have seen in a long time, in the midst of a once-in-a century (if we’re lucky) pandemic, shadowed by the pestilence of systemic racial subordination and yet a significant percentage of the electorate has already voted.  According to Michael McDonald’s elect project, more than 90 million people have already registered their preferences. More than 34 million have done so in person in states that permit early voting and almost 60 million have mailed-in their ballots. Approximately 138 million people voted in the 2016 presidential election.  The second thing on my mind is that notwithstanding the significant potential obstacles, many people have worked really hard to make is possible for people to exercise their right to vote.

Third, I worry whether the losing side, Republicans or Democrats, will accept the results.  President Trump has stated that he can only lose if the Democrats steal the election.  This is of course not true.   What will the country look like once we have a declared winner?  That’s the third thing on my mind.  

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#2DaysOut: “The Vulnerabilities and Indeterminacy of the Presidential Election Process” (Michael Morley)

The following is a symposium contribution from Michael Morley (FSU):

The 2020 general election has demonstrated several vulnerabilities of our presidential election process, as well as our electoral system more broadly.  First, many states are ill-equipped to deal with a major crisis that impacts an election, such as a hurricane, earthquake, power grid failure, pandemic, or other such tragedy.  A robust election system allows for voting through a wide variety of mechanisms, such as in-person voting, absentee voting, curbside voting, and even bipartisan teams of election officials bringing ballots to assisted-living and other similar facilities.  If an election emergency causes a particular method of voting to become unavailable, impracticable, or too dangerous, having well-established alternate avenues for voting helps to ameliorate the burden on voting rights. 

Different types of disasters can impact the electoral process in different ways.  Being prepared to vigorously implement a diverse array of voting options is one way of mitigating systemic risk to our electoral system.  For COVID, shifting the focus to absentee voting was an effective response to prevent opportunities for in-person transmission of the virus.  Some states restrict absentee voting, however, and many others have election systems designed to deal with very limited numbers of absentee ballots.  

 More broadly, because it is difficult to anticipate the full range of emergencies that may impact an election, or the precise manner in which such emergencies will hit, state law must grant officials flexibility and discretion to modify certain rules, procedures, or other aspects of the electoral process as necessary to respond effectively and preserve voting rights.  As the COVID pandemic painfully demonstrated, many states lack such election emergency statutes.  An election emergency law allows legislators to reduce or eliminate questions about the scope of election officials’ authority; specify in advance the types of modifications that officials may, and may not, adopt; and alleviate the need for emergency ad hoc litigation.  Effective election emergency laws would have afforded election officials greater guidance and authority in responding to the virus.  In the absence of such laws, even anodyne and seemingly nonpartisan reforms such as allowing election officials to begin pre-processing and pre-canvassing absentee ballots substantially before Election Day could not make it through the legislative process in some key swing states.

 Second, the wide range of litigation pending in federal and state courts across the nation, as well as the numerous questions that have been raised concerning possible election-contest scenarios, demonstrate how many critical constitutional and legal questions concerning the basic rules governing our elections remain unanswered.  The Electoral College, of course, elects the President, and it is ultimately Congress that has sole constitutional responsibility for counting and determining the validity of electoral votes.  That process is governed by the Electoral Count Act of 1887.  However, the Act fails to clearly address several important issues, leaves important terms undefined, and is written in unnecessarily confusing language that creates ambiguities and leaves room for political disputation.  Again, establishing clear, generally accepted procedures for the counting of electoral votes in Congress seems to be the type of nonpartisan reform—particularly if adopted in advance of a presidential election—that can reduce the likelihood of a political crisis. 

The constitutional principles governing the underlying process of voting are not much more settled.  Most notably, the Court has never addressed how broadly, if at all, Bush v. Gore’s Uniformity Principle applies to voting procedures.  Bush held that states may not apply “arbitrary and disparate treatment” to different voters participating in the same election.  Bush applied that principle in the narrow, technical context of holding that states must apply consistent, specific rules when recounting ballots cast in an election. Notwithstanding the limiting language in Bush v. Gore, however, several lower courts have applied Bush’s Uniformity Principle across a much broader range of circumstances.  Some courts have barred different localities within a state from adopting voting machines with materially different error rates, or applying different sets of electoral rules that would provide various counties’ residents with materially different opportunities to vote.  

 On its face, the Uniformity Principle appears appealing: Equal Protection requires voters participating in the same election have substantially equivalent opportunities to vote.  On the other hand, American elections have historically been conducted in a highly decentralized manner, with local election officials often having broad discretion to tailor the details of electoral rules to the particular needs of each jurisdiction’s citizens.  And, in another line of authority dating back to the Civil Rights Era, the Court has held that the Equal Protection Clause generally does not bar states from removing barriers to voting, or providing additional opportunities to vote, even if those opportunities are limited only to certain groups of voters.  Thus, courts have generally held that states may limit absentee voting to only certain groups of voters, or allow some jurisdictions within a state to offer longer early voting periods or more numerous early voting locations than others.  Rigorous application of the Uniformity Principle would make it difficult for individual counties or localities to materially expand access to voting; reforms substantially expanding opportunities to vote in statewide elections would have to occur on a statewide basis, or not at all.  Whatever the proper balance between these competing imperatives, the uncertainty has contributed to many of the disputes concerning absentee voting in the wake of COVID. 

Likewise, the core standard the Court uses to assess the constitutionality of election-related laws exacerbates this uncertainty.   In Anderson v. Celebrezze and Burdick v. Takushi, the Court held that the constitutionality of most election-related rules, requirements, and procedures depends upon a highly subjective, ad hoc balancing test in which a court weighs the importance of the state’s interests at stake, the extent to which the challenged provision furthers those interests, and the magnitude of the burden on voters.  It can be difficult, in many cases, for states to correctly anticipate how judges will weigh these competing factors, especially under materially changed circumstances like COVID, further underscoring the uncertainty permeating the electoral process. 

Finally, at least some of the challenges facing our electoral process could be ameliorated by much greater funding.  Voting is at the very foundation of democratic government.  It is essential to the legitimacy of our government that every eligible voter be given a meaningful opportunity to safely cast a ballot and have it be counted without significant burdens.  Greater funding for our electoral system could lead to better technology, more reliable and updated databases, more personnel, more polling places, fewer delays, and shorter lines at polling places.  It is especially intolerable when the burdens of voting fall disproportionately on indigent or racial minority groups.  (Indeed, it is in this context—preventing tremendous disparities in waiting times among different jurisdictions’ polling places—that Bush’s Uniformity Principle seems especially appealing).  The controversy over the 2000 presidential election led to the enactment of the Help America Vote Act, which took the first steps toward helping states modernize their election systems.  Perhaps the widespread controversies concerning the 2020 election will induce Members of Congress and state legislators—hopefully, of both parties—to finish the job. 

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#2DaysOut: “This Election Illustrates a Deeper Problem” (Pam Karlan)

The following is a symposium contribution from Pam Karlan (Stanford):

There will be plenty of time later to write about the Elections Clause, the Electors Clause, the Purcell Unprinciple, and the mess that is the Electoral Count Act of 1887. But for now, I’ll just mention two people who crystalize for me why I remain a voting rights lawyer, as well as a voting rights scholar, after three decades: Howard Porter, Jr., and Desmond Meade.

Mr. Porter, an elderly Black man, is one of the individual plaintiffs People First of Alabama v. Merrill, 2020 WL 5814455 (N.D. Ala. Sept. 30, 2020). At higher risk for complications or death from COVID-19 because of his asthma and Parkinson’s disease, and having lost both a sister and uncle to the coronavirus, he sought to vote in person curbside, rather than in a polling place. He testified: “I don’t want any vote that I cast to be my last vote. And in Alabama, a person can vote even if they don’t have on a face mask. And that’s just too much for me. . . . [A]s important as the right to vote is, I just can’t endure that. . . . [S]o many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we’re past that – we’re past that time. And that should not be a requirement . . . .Because voting is the only day that rich, the poor, sick, the healthy, all should be counted as one and just as easy. And any obstacle placed in the way of the opportunity to vote places an effect on the process itself.” Id. at *11.  Turns out, we’re not past that time. Judge Abdul Kallon granted an injunction ordering the state to allow curbside voting.  The Eleventh Circuit upheld that injunction. People First v. Sec’y of State for Alabama, 2020 WL 6074333 (11th Cir. Oct. 13, 2020). But the U.S. Supreme Court stayed that injunction, 5-3, with no explanation. Merrill v. People First of Alabama, 2020 WL 6156545 (Oct. 21, 2020).

Mr. Meade, with whom I once had the honor of joining on a panel at a circuit conference, spearheaded the passage of Amendment 4 in Florida—an amendment designed to restore voting rights to citizens convicted of a felony. He got to vote in this fall’s general election.  But a Republican-dominated state supreme court then defined “completion” of the terms of a sentence to include, among other things, payment of a variety of court costs that actually go to fund general government operations. Not only are many returning citizens too poor to pay these fees, but a federal court found, after a lengthy trial, that Florida’s system for determining the amounts they owe is plagued by intractable administrative problems.  A political scientist “with a team of doctoral candidates from a major research university” unsuccessfully spent weeks trying to obtain this information for a randomly selected group of roughly 150 aspiring voters. Jones v. DeSantis, 2020 WL 2618062, at *17 (N.D. Fla. May 24, 2020). At the state’s rate of checking financial obligations (“just 57 registrations per day”), figuring out these obligations for the 1.4 million citizens now potentially eligible to register will take decades: “The projected completion date” for the 85,000 citizens who had begun the process “is early in 2026” and “[w]ith a flood of additional registrations expected in this presidential election year, the anticipated completion date might well be pushed into the 2030s. Id. at*24.  The district court declared Florida’s “pay-to-vote system” unconstitutional with respect to court fees and costs under the Twenty-Fourth Amendment, as well as declaring the other parts of pay-to-vote unconstitutional as applied to individuals who are otherwise eligible to vote but are genuinely unable to pay the required amount or whose financial obligations cannot be determined. But the Eleventh Circuit reversed that judgment. Jones v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020), after the Supreme Court refused to lift the court of appeals’ stay of the district court’s injunction. Raysor v. DeSantis, 140 S. Ct. 2600 (2020) (per curiam).

Whatever happens on Tuesday, our election system is sick when it makes it so difficult for so many people to vote.  More than a few defective ballots need to be “cured” if we are to promote the general Welfare, and secure the Blessings of Liberty.

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#2DaysOut: “The Textual Problem with the Presidential Version of the Independent State Legislature Argument” (Nick Stephanopoulos)

The following is a symposium contribution from Nick Stephanapoulos (Harvard):

As the independent state legislature (ISL) argument has risen to prominence this past week, courts and commentators alike have assumed that it has the same force under both Article I and Article II. If the argument holds, that is, state legislatures should enjoy the same vast power under both provisions—only with respect to congressional elections under Article I and with respect to presidential elections under Article II. But examining the provisions’ text more carefully, I’m not sure that’s right. Rather, as a textual matter, state legislatures’ Article II authority appears to be significantly more confined than their Article I power over congressional elections. (Again, assuming an ISL doctrine exists in the first place.)

Starting with Article I’s Elections Clause, it authorizes state legislatures to prescribe “[t]he Times, Places and Manner of holding Elections for Senators and Representatives.” The italicized language plainly refers to congressional elections themselves. So if there is such a thing as an ISL doctrine, the Elections Clause empowers state legislatures to regulate all aspects of congressional elections.

Article II’s Electors Clause, however, does not include language like that italicized above. It does not authorize state legislatures to regulate the manner of holding presidential elections. Instead, it empowers state legislatures to “direct” the “Manner” in which “[e]ach State shall appoint . . . a Number of Electors.” Facially, the manner in which electors are appointed is different from the manner in which elections are held. The former phrase refers to the method by which electors are chosen: a winner-take-all election, election by congressional district, selection by the state legislature, and so on. The former phrase—unlike the language of the Elections Clause—does not encompass every aspect of presidential elections.

Thanks to this textual distinction, state legislatures’ Article II authority over presidential elections may be more circumscribed than their Article I power over congressional elections. Under Article I, state legislatures may be able to regulate all facets of congressional elections without interference from other state actors (once more if an ISL doctrine exists). But under Article II, state legislatures may only be able to direct the manner in which electors are appointed without interference from other actors. They may not have the same exclusive authority over any other elements of presidential elections.

The Supreme Court’s limited precedent on the Electors Clause supports this reading. In the 1892 case of McPherson v. Blacker, the Court described state legislatures’ power under the Clause as “plenary authority to direct the manner of appointment.” There was no suggestion that state legislatures possess plenary authority over aspects of presidential elections beyond the “mode of appointment of electors.” Similarly, in his 2015 dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission, Chief Justice Roberts wrote that the Electors Clause “vests the power to determine the manner of appointment in ‘the Legislature’ of the State.” He, too, didn’t claim that the Clause vests any other power over presidential elections in state legislatures. And still more recently, in this year’s Chiafalo v. Washington case, the Court held that “Article II, § 1’s appointments power gives the States far-reaching authority over presidential electors.” Again, there was no hint of such far-reaching authority over presidential elections’ other attributes.

The important implication of this reading is that several judges may have erred this week when they argued that there were ISL problems when state courts or state agencies (as opposed to state legislatures) regulated aspects of presidential elections. In none of the cases where this issue arose did a non-legislative actor try to change the manner of presidential electors’ appointment. In all of the cases, to the contrary, non-legislative actors addressed facets of presidential elections unrelated to electors’ mode of appointment: specifically, Minnesota’s, North Carolina’s, and Pennsylvania’s deadlines for the receipt of mail-in ballots. Plainly, whether these deadlines shifted or stayed the same, the states’ methods of choosing their electors—winner-take-all popular elections—would not have changed. Arguably, that should have been the end of the Electors Clause analysis (even if there is an ISL doctrine). Based on the constitutional text, there can’t be an ISL violation when a non-legislative actor doesn’t try to alter the state legislature’s chosen manner of appointment.

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#2DaysOut: “So Far” (Sam Issacharoff)

The following symposium contribution is from Sam Issacharoff (NYU):

It would be easy to despair.  A devastating pandemic, a bitterly polarized electorate, foreign interference, a president leading an assault on the foundations of electoral democracy, election-inspired violence, and vicious partisan battles over the ability to vote, even how to vote—these would shake any democracy to its foundations.  Instead, however, let me offer two sources of genuine hope before turning to the crises that loom.

First, and foremost, is the commitment of the citizenry to the democratic process.  As lawyers and scholars, we focus on court battles over how many days after Election Day an absentee ballot might be received, or how many drop sites might be available in a Texas county.  Recent court decisions, particularly by the Supreme Court, have curtailed efforts to expand voting opportunity in response to the pandemic.  This is more than worrisome, but too much attention to doctrine might obscure the popular will to vote.  Texas may have only one drop site in Harris County, but polling access has actually expanded and more people have already voted in Texas before Election Day than voted in 2016.  Here at least, the people have spoken.

Second, despite the shenanigans, the creaky electoral machinery has performed surprisingly well.  The lines are long, but voting is occurring, new volunteers are stepping in to replace vulnerable poll workers, ballots are being processed more or less capably across the country, with the Pennsylvania and Wisconsin outliers not being the norm.  Even Wisconsin, the first Supreme Court battleground of 2020, managed to process almost a million more absentee ballots than expected in its spring election, and ran a reasonably smooth election under terrible stress.

If, as in most elections, the margin of victory is beyond the margin of contestation, then citizen determination and responsible election administrators will have saved the day.  Either way, there is work to do.

  1. Partisan polarization has gotten to the point that how one votes, where one votes, whether one wears a mask are all signs of political identity.  The machinery of elections is at risk, particularly the delicate assignment to the states of the administration of federal elections under both the Elections Clause of Article I and the Electors Clause of Article II.  Assuming congressional capability, the first of these should be addressed through federal election legislation mandating, inter alia, that except to the extent specified by federal law, the normal channels of state elections, including judicial oversight will operate during all federal elections.  This is necessary emergency voting through a blinkered reading of the independent role of the state legislature under both of these clauses.  It is shocking to see a response like that of New Jersey in 2012 following Hurricane Sandy now be a matter of constitutional challenge.
  2. Much attention will be given to the restoration of minority voting rights protections if there is a Democratic Congress and President.  In addition, it is time to address untapped powers under the Elections Clause.  Reforms, with appropriate funding, could include: congressional elections from districts drawn by independent redistricting authorities; federal elections run under the auspices of independent election authorities that do not include elected officials or partisan designees; federal elections subject to post-election review to produce standard measures of ease of voter access, availability of equipment, average time in line, accessibility of early voting, and other metrics of administrative performance; and post-election audits of reports of voter intimidation, harassment of voters or election officials, and state response to redress those complaints.  This would compel an accounting for the most critical failure of the election system in a hyperpolarized era, the use of voting administration as a partisan tool.  All could be enacted statutorily under the authority of Congress to regulate the manner of holding federal elections.  In turn, this would induce salutary reform for state elections as well.
  3. Elections today also expose the contrast between the high democratic ethos of the time and the formal structures of the constitution, adopted in a time of ambivalence toward democracy.  The nomination of Justice Barrett by a president elected by a minority of voters, and confirmed by a narrow majority of senators representing a minority of the population, highlights the tension between our constitutional commitments and simple notions of majority-control.  I leave to the side sugarplum visions of constitutional reform; the nature of the Article V process takes off the table both meaningful reform of the Electoral College (except perhaps for eliminating the vote dilution effects of winner-take-all elections, a matter not of constitutional mandate) and reform of the Senate.  But it does not eliminate statehood for Washington DC, perhaps the single most obvious democratizing reform available legislatively. 
  4. We will also have to address the bizarre threat that a state legislature might simply override the will of the voters by declaring a presidential election to have “failed” and substituting an alternative slate of electors chosen by the legislature. That is the Dr. Strangelove nuclear option of the end of democracy.  The response here lies ultimately in Congress, but immediately in the mobilized voters who stand in long lines across the country. 

Nearly 70 years ago, Justice Clark spoke of the limits of public sentiment to sear the conscience of self-interested state legislators.  The Supreme Court’s one-person-one-vote rulings helped to allow the electoral will of the majority to overcome such barriers.  On many of the points of dysfunction today, we must hope that this time the commitment of Americans to vote will sear the conscience of forces aiming at the heart of our political system.  If we survive, the task of reinforcing democracy cannot be forgotten in a moment of collective relief.

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#2DaysOut: “How to Draw the Line on a State Legislature’s Electoral Power?” (Ned Foley)

The following is a symposium contribution from Ned Foley (Ohio State):

Here’s the hypo that’s bothering me: a state’s constitution vests the power to determine the “manner” of appointing the state’s presidential electors in the office of the state’s governor, or the state’s supreme court, and not in the state’s legislature.

If a state constitution did that, it seems to me that it would squarely contravene Article II of the federal Constitution, which explicitly vests the power of determining the “manner” of appointing a state’s presidential electors in the state’s “Legislature” and not in the state’s governor or supreme court, or whatever other institution of state government the state’s constitution might choose.

If you accept this point, then it also seems to me that you’ve accepted the basic proposition that is animating the position of the conservative justices on the U.S. Supreme Court, as they contemplate the possibility that the Article II authority of state legislatures to determine the “manner” of appointing the state’s presidential electors may have been contravened by other institutions of state government.

 In a much-noted footnote in the Wisconsin case last week, Justice Kavanaugh observed that “under the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal [including presidential] elections.”  To support this observation, Justice Kavanaugh cited the explicit text of Article II and Chief Justice Rehnquist’s concurrence in Bush v. Gore that invoked this express language in Article II as the basis for condemning the Florida Supreme Court’s decision in that infamous case.

 Justice Kavanaugh’s footnote caused something of a panic among various scholars and others. But rather than rail against the possibility of the Court going down this road at all, it seems more constructive to me to deliberate about what might be a plausible stopping point. Justice Kavanaugh did not go so far as to say that every conceivable deviation from a state’s election law, as enacted by the state’s legislature, necessarily violates the federal Constitution.

 Nor did Chief Justice Roberts take that kind of absolutist position on this topic when he considered it in the context of the Arizona Independent Redistricting Commission case. There the Chief Justice objected to a state constitutional provision that “totally displaces” the state’s legislature from congressional redistricting.  (Article I of the federal Constitution empowers a state’s legislature to enact laws to determine the “manner” of congressional elections, comparable to the Article II power of state legislature regarding the appointment of presidential electors.) Roberts pointedly noted that other ways in which a state’s constitution might constrain a state legislature in its regulation of congressional (or presidential) elections might not present the same problem under the federal Constitution.

Thus, it seems sensible to acknowledge—as Chief Justice Roberts did, and presumably Justice Kavanaugh would—that there is a line-drawing challenge here. A state constitutional provision that “totally displaces” the authority of a state’s legislature to determine the “manner” of appointing the state’s presidential electors would violate Article II, as my opening hypothetical would.  On the other hand, it seems easy to envision hypotheticals that should pose no Article II problem. For example, suppose a state constitution provides that for any election in the state there must be a secret ballot. But suppose that a state statute attempts to provide for the appointment of presidential election by means of a popular vote, yet without the protection of a secret ballot.  In that situation, the state constitution would not “cut out” the legislature altogether, to invoke some more of the Chief Justice’s opinion in the Arizona case. Presumably, a state court’s enforcement of the secret-ballot requirement in the context of a popular vote for the appointment of presidential electors would be constitutionally permissible under Article II, at least as Chief Justice Roberts (and perhaps also Justice Kavanaugh) see it.

I don’t profess to know now exactly where to draw the line, or how it would apply to cases that might arise in the future. But I think it is necessary to acknowledge that some cases would be difficult, as long as one takes the text of Article II seriously. The Pennsylvania case, the merits of which the U.S. Supreme Court has managed to avoid so far, is one such case in my view.  The problem there, as I see it, is that it is not like my secret-ballot hypo, where the state constitution itself is specific and clear.  Instead, the Pennsylvania Supreme Court used a general and vague constitutional clause to override an unambiguous state statute.  That, in my mind, is uncomfortably close to a state constitutional clause giving the power to determine the manner of appointing the state electors, not to the state’s legislature, but to the state’s judiciary instead.

I can’t say I’m happy with this conclusion as a policy matter. But is it an incorrect interpretation of the federal Constitution?

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#2DaysOut: “Reflections from Philadelphia” (Tabatha Abu el-Haj)

The following is a symposium contribution from Tabatha Abu el-Haj (Drexel):

Let us hope that the likelihood that the election will turn on Pennsylvania is indeed low. Reputable state polling has consistently favored Joe Biden by small but significant margins for weeks, and analysts predict votes for him will fall well-outside the so-called margin of litigation. But is Biden’s lead in the polls comfortable enough to forgo the uncertain number of mail-in ballots that are going to be thrown out for errors?

The surge in mail-in voting in Pennsylvania has led to the casting of approximately 2.3 million mail-in ballots as of October 30, with as many as one million more outstanding. This creates a variety of opportunities for voter frustration, Election Day confusion, and inadvertent spoilage.

The U.S. Election Project currently suggests the number rejected mail-in ballots is insignificant. But we know that, in a normal election, 1-2% of mail-in ballots are rejected and that the percentage is often higher in states, like Pennsylvania, with less experience with mail-in voting. Moreover, there is good reason to believe that the official numbers being tracked by the U.S. Election Project underrepresent the problem. Pennsylvania counties are approaching both record-keeping and outreach over defective ballots differently, with some refusing to officially reject defective mail-in ballots before Election Day.  Second, and relatedly, many Pennsylvania voters who requested mail-in ballots are now planning to vote in person. This process is cumbersome. It is a safe bet many will forget to bring their mail-in ballot and its envelope and be forced to wait in long lines to cast provisional ballots with all the additional requirements.

If Pennsylvania is tight and it matters, there will be litigation over the count. And commentators should not concede to Justice Kavanaugh’s characterization of the Pennsylvania Supreme Court’s decision as one which overrides “a clearly expressed intent of the legislature.”

The Pennsylvania Supreme Court’s interpretation of Act 77 is neither antithetical to the text nor unreasonable. The Pennsylvania Supreme Court did not hold that an 8:00 pm deadline on Election Day for the receipt of ballots is per se constitutionally infirm, thereby rewriting the Commonwealth’s election code. Its decision takes up a narrower question: how to address the fact that Act 77 is silent about how to accommodate the deadline in the context of a natural disaster or emergency? The Court turned to its precedents based in the Commonwealth’s Free and Equal Elections Clause to answer that question. To be sure, a textualist might argue Act 77’s silence was a hard-fought compromise, but there is no evidence of that, and it is equally reasonable to argue that the statutory deadline was passed in full knowledge of these equitable decisions.

No doubt the real issue is that Justice Kavanaugh and the others disagree with the Pennsylvania Supreme Court’s lack of “hesitation in concluding that the on-going Covid-19 pandemic equates to a natural disaster.” But that factual judgment is surely neither unreasonable nor a federal question.

I will spare readers a more detailed analysis unless the matter gets back to the Court. In the meanwhile, I will say that I am increasingly of the view that the Supreme Court has actively intervening ex ante to maintain stringent ballot counting rules because, at some level, it recognizes that the political climate has significantly shifted since 2000, and any ex-post decisions that hand President Trump a second term by stopping the count are likely to result in massive civil unrest—unrest fueled by frustrations with the pandemic, massive unemployment, a summer of racial reckoning, and far-right, White Supremacist groups keen to unleash violence.

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