Category Archives: #LookingBack

#LookingBack: Tuesday Has Come and Gone: Renewing My Plea on Behalf of the Voters (Franita Tolson)

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

On Tuesday, after weeks of early voting, north of 145 million Americans will have cast ballots in this year’s election, the highest turnout in any presidential election in history.  With the flurry of lawsuits in just the last few days, this election cycle also promises to be the most litigated in this country’s history.  Two days before the election, I voiced concerns that, once a president emerges from our flawed process, we will learn to live with our dysfunction rather than working to improve the system so that it works for everyone.  Two days after, I worried that the postmortem of the election would ignore those who were unable to cast a ballot this year because the problem of voter suppression would get lost in the narrative of historic turnout. 

Once the dust settles, it is unlikely that the lawsuits alleging irregularities in a number of states will amount to much.  These cases are a Hail Mary pass by a president desperate to keep his job.  But let us not lose sight of the fact that this process is not about one person or one office.  We go through all of this drama so that “We the People” can have had a role in selecting their leaders.  Our democracy is majoritarian; our leaders serve at the pleasure of the people.  More than seventy-four million people voted for the winner of this year’s presidential election, yet we sat transfixed for four days because of the narrow margin in a handful of states that would determine if the popular vote winner carried the Electoral College.  Four days.  Like many of you, I am tired and annoyed because this is a silly way to elect a president.  It’s dumb, folks.  I know that it will take a lot of political will to change our status quo, but in the meantime, there are other problems we can address.

Here is my plea.  Regardless of how we choose our president (and we definitely need to work on that), the baseline of our system of elections should be the voter.  Not just any voter, but:

-the people who requested an absentee ballot in the Wisconsin primary but never received one;

-the people who waited in line for 8 hours in Gwinnett County, GA to cast a ballot during early voting;

-the people who mailed in their ballots weeks in advance to give the Post Office time to deliver it (and literally had no assurances that the ballot would be delivered);

-the disabled voter who used a drive thru voting location to cast a ballot (only to worry later that the ballot might be invalidated by court order);

-the Harris County, Texas voter who thought that they could put their ballot in the drop box close to home (before the Governor limited the county, which is the size of Rhode Island, to one drop box)     

-the voter who lives more than 10 miles from the nearest state ID issuing office and does not have transportation to get the identification so they can vote

-the individual with a felony conviction who could not find out the amount of the fines and fees that needed to be paid so that they could register to vote in time for this year’s election

-the voter in Michigan who had hoped to get a ride to the polls only to find that the ban on such rides had been reinstated by court order

-the Indiana voter who was old enough to vote but not old enough to vote absentee

Let’s not focus on the more than 145 million people who successfully cast a ballot, but the countless number who tried to vote and failed during both the primaries and general election.  Sadly, the courts have rarely focused on the burdens these needless regulations impose on voters, instead prioritizing the power of the states to impose these burdens.  According to the Supreme Court, this authority is plentiful. 

Yet why should the states have a prerogative to disenfranchise that we, the voters, are bound to respect?  States should have obligations to make voting easier, not harder.  Every restriction should be justified, the rights of every voter respected.  Having a voter-centered democracy is not about making it difficult for states to run an election system.  It is about avoiding regulations that make it hard to vote for partisan gain in a system that is supposed to be about the voters, not the states. 

However, if I am wrong that our system is voter-centered—and recent events suggest that is certainly possible—then we need to call ourselves something other than a democracy.  Don’t lull people into thinking we are the greatest democracy in the world if we are failing along many of the metrics that would identify this country as such.  America should not be able to claim the mantle of democracy while prioritizing the state over its citizens, nor does high turnout insulate America from criticism.  We had record turnout in 2020 because many citizens decided that artificial barriers would not deter them from voting, not because voting is as easy and accessible as it could be.  Voting should be easier in a democracy, and certainly easier in a global pandemic. 

As we entertain the ongoing lawsuits challenging the election results—some of which are centered in questions about the scope of the state’s authority over elections—we ignore at our peril the question that may well determine the political future of this country: are we a democracy or not?  If the answer to this question is yes, then we need to focus on the voters.

Share this:

#LookingBack: The Foundations for a Sound Electoral System (Michael Morley)

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

Our experience with the 2020 presidential election confirms that a sound electoral system rests on three equally important pillars.  First, most fundamentally, all eligible voters must have a reasonable opportunity to cast a ballot safely and without substantial burden.  The point of an election is to ascertain the will of the people.  It cannot serve that basic function if some portion of the electorate is effectively excluded from participation.  More broadly, as I’ve repeatedly emphasized throughout the COVID pandemic, an electoral system must offer a range of distinct avenues for voting to be sufficiently robust to withstand a range of election emergencies, such as natural disasters, pandemics, terrorist attacks, power grid failures, and the like.  The more mechanisms for voting that a state allows, the less susceptible to any particular systemic risk the overall system becomes. 

Moreover, election officials need flexibility to modify particular rules governing the electoral process to mitigate the impact of threats to the electoral system, so they can keep avenues for voting available despite outside threats.  This flexibility can come from either the general election code itself or election emergency laws.  The modifications that election officials made to in-person voting during the 2020 election, for example, in terms of both the types of polling locations to use, social distancing requirements, and the availability of personal protective equipment, allowed robust in-person voting to occur despite the serious threat of COVID. 

Second, just as importantly, the system must be designed to minimize the potential for mistakes, accidents, irregularities, and even fraud.  Perhaps one of the most unfortunate aspects of modern political debates over elections is that concerns about systemic integrity have become politicized, with exaggerated claims of fraud often being wielded as a cudgel to reduce voting opportunities.  Historically, the desire to ensure accurate results, avoid irregularities, and prevent fraud has been bipartisan.  One of the main reasons we have a single, nationwide Election Day for federal elections, for example, was due to widespread congressional recognition of “pipelaying” and “colonizing”: political parties brought people from one state to another to vote in multiple states’ presidential or congressional elections, because they occurred on different days.   Many Reconstruction Era laws enacted with the unquestioned purpose of protecting the right to vote for African Americans in southern states contained strict prohibitions on voter and election fraud.  Indeed, ballot-box stuffing was among the tools white supremacists used to disenfranchise black voters.  Even the Voting Rights Act itself—perhaps the single most important statute protecting the right to vote—bolstered its critical antidiscrimination provisions with strong election integrity safeguards.  Adequate protections for the electoral process can undermine attempts to impeach the results of an election afterwards through baseless, vague, generalized claims about potential misconduct that might have occurred. 

Third, finally, the system must appear legitimate to the general public.  In Buckley v. Valeo, the U.S. Supreme Court famously recognized that the Government has a compelling interest in preventing not only actual corruption, but the appearance of corruption, as well.  Having a fair, accurate, and inclusive electoral process is crucial.  In many ways, however, it is just as important that the public recognize the process to be fair, accurate, and inclusive.  This is where transparency is key.  To borrow another concept from campaign finance law, Justice Brandeis famously said, “Sunlight is the best disinfectant.”  In a bitterly contested election, election officials must assure that as much of the process as possible is subject to meaningful public scrutiny and observation.  Several post-election lawsuits were filed in this election cycle, for example, over whether campaign observers were seated closely enough to be able to monitor the processing of absentee ballots.  Election officials should not regard observers from campaigns and the press as unwelcome interlopers to be tolerated, but rather as essential partners in the process who can give the public assurance that nothing untoward occurred.  Just as importantly, such observers can provide outside, independent sets of eyes to identify potential mistakes or oversights. 

There will be some situations where these three goals—expanding voting opportunities, ensuring accurate results, and bolstering public legitimacy—may be in tension with each other.  And reasonable people may disagree over which of these goals should take priority in such cases.  As we continue to reform the electoral process for future elections, we should focus primarily on win-win changes that bolster all of these goals simultaneously to the greatest degree possible. 

Share this:

#LookingBack: Redistricting and the 2020 Election (Nick Stephanopoulos

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

The following are a number of tentative thoughts about what the 2020 election means for redistricting—for both the plans currently in effect and the ones soon to be enacted.

1. At the moment, it appears that Democrats will win the House popular vote by 2-3 percentage points along with 225 or so seats. If that’s right, the 2020 House election will exhibit an impressive level of partisan fairness—an efficiency gap of less than 1 percent, to pick one common metric. This would be a substantial improvement over recent elections, when the House was significantly biased in a Republican direction. Even in 2018, the House as a whole had a pro-Republican efficiency gap of around 4 percent, since Democrats didn’t win as many seats as one would expect given their overwhelming popular vote margin (around 8 points). Before Tuesday, many observers would have thought that a Democratic popular vote advantage of only 2-3 points would lead to Republican control of the House.

2. The House’s diminished partisan bias probably has three explanations. One is the redrawing of certain plans (North Carolina and Pennsylvania) that had been exceptionally skewed in a Republican direction. These gerrymanders’ replacement with fairer maps helped make the House as a whole more balanced. Second, even under today’s polarized conditions, House incumbents enjoy a modest edge (around 2-3 points). This power of incumbency (while far from what it used to be) may have saved some Democrats swept into office in 2018, enabling them to eke out narrow wins in a much less favorable environment. Third, and most interestingly, the non-uniform vote shifts between 2016 and 2020 may have improved Democrats’ geographic position. Some of the most heavily Democratic areas (urban cores and black and Latino neighborhoods) swung in a Republican direction, thereby unpacking Democrats to some degree. At the same time, exurban and rural areas remained as red as in 2016 (or even redder), thereby packing many Republicans. And suburbs, home to a plurality of American voters, moved substantially toward the Democrats, benefiting them in the country’s biggest political battleground. This shows how simplistic the narrative is of a “natural” Republican redistricting advantage. Even modest vote shifts can negate much of this supposed edge.

3. Democrats are gnashing their teeth over their failure to flip legislative chambers in Arizona, Michigan, North Carolina, Pennsylvania, and Texas (among others). This failure, though, is unlikely to have severe redistricting consequences. Arizona and Michigan have independent redistricting commissions, so control of the political branches is irrelevant to the plans that are eventually enacted. North Carolina and Pennsylvania have state courts that have recently demonstrated their ability to police gerrymandering under state constitutional provisions. And as for Texas (and other states where political actors draw district lines without serious judicial limits), it’s important to be realistic about how effective a flipped chamber would have been. Odds are, it would have led to a court designing the map after the political branches deadlocked. But this court would likely have been a conservative state court or a federal court stacked with Trump appointees. Such a court may well have produced a plan almost as pro-Republican as the ones we’re now going to get from elected (and unchecked) Republicans.

4. Relatedly, the 2020 election largely confirms the redistricting picture that was already coming into focus before Tuesday. Thanks to Rucho, when a single party controls the line-drawing process, we’re likely to see unprecedented abuses: extreme and durable gerrymanders, frequent re-redistricting, non-contiguous districts, and so on. But thanks to developments over the last few years, there will be significantly fewer states where a single party enjoys unfettered control compared to the 2010 cycle. In previously gerrymandered states like Michigan, Ohio, and Virginia, a commission will draw the lines. In North Carolina and Pennsylvania, state courts will police the output of the political branches. In Wisconsin, divided government will probably yield a court-drawn map. Surveying the entire country, the only major states where Republicans will be able to freely gerrymander seem to be Georgia, Missouri, and Texas. For Democrats, the only such states are Illinois, Maryland, and Massachusetts. So the redistricting story of the 2020s may well be fewer—but more egregious—gerrymanders.

Share this:

#LookingBack: Whither Republican Party of Pennsylvania v. Boockvar? (Derek Muller)

The following is a symposium contribution from Derek Muller (Iowa):

President-Elect Joe Biden’s margin of victory in the Electoral College and in decisive “swing states” is increasingly impermeable to potential recounts or “faithless electors.” It’s reminiscent of the margins of the 2016 election—recounts don’t change tens of thousands of votes, and electors are rarely faithless even under the most ideal conditions.

So what happens to Republican Party of Pennsylvania v. Boockvar, the biggest pre-Election Day case still sitting before the Supreme Court? The dispute concerns the Pennsylvania Supreme Court’s decision to require counties to accept ballots received up to three days after Election Day, as long as they were postmarked by Election Day or lack a postmark.

The Republican Party argued that this judicial order—construing the commonwealth’s constitution—breached the legislature’s clear statutory directive that all ballots must be received by Election Day. It’s an argument from Article II of the Constitution, that the “legislature” directs the manner of appointing electors, and, as Chief Justice Rehnquist put it in a concurring opinion in Bush v. Gore, “the clearly expressed intent of the legislature must prevail.”

Philadelphia County reported 500 or so in this three-day period; Allegheny County, which includes Pittsburgh, tabulated 947 ballots; Luzerne County reported 255 ballots, or about 0.2% of the county’s vote total. (Pennsylvania has been tabulating all votes but keeping these disputed ballots separate from others.) It appears a push by the post office and public awareness of the importance of mailing ballots early have minimized such disputed ballots.

It seems unlikely the statewide total of such ballots exceeds even 10,000. The margin separating the candidates now sits around 40,000, and pulling these ballots—even if every single one were cast for one candidate—wouldn’t change the result.

So what happens to this case?

Mootness: One argument might be that the claim is moot. The election is over, and a judicial decision wouldn’t change the outcome. Doesn’t that mean there’s no live case left?

Election law cases like one this are often treated as an exception to mootness, “capable of repetition yet evading review.” Anderson v. Celebrezze (1983), Storer v. Brown (1974), Rosario v. Rockefeller (1973), Dunn v. Blumstein (1972), and Moore v. Ogilvie (1969) are just a few expressly addressing the mootness point. Anderson, for instance, involved John B. Anderson’s independent presidential campaign in 1980—in a decision the Court issued in 1983.

It seems strange to say it “evades review” when, well, the case was in front of the Supreme Court before Election Day. But no one says the Court’s mootness precedents are the most coherent.

Cert-worthiness: Another question is whether the case is still worthy of granting certiorari. If it doesn’t affect the outcome of the election, why hear it?

Four justices have already written or signed onto pre-Election Day opinions showing interest in revisiting this Article II issue about the power of legislatures: Justice Alito, joined by Justices Thomas and Gorsuch, in the Pennsylvania litigation; and Justice Kavanaugh in litigation from Wisconsin. (Justice Kagan, joined by Justices Sotomayor and Breyer, pushed back against Justice Kavanaugh’s position.)

Justice Barrett did not participate in these disputes. It’s not clear why Justice Kavanaugh didn’t join Justice Alito’s opinion. And Chief Justice Roberts concluded that his reluctance to weigh in on the Pennsylvania was attributable to “the authority of state courts to apply their own constitutions to election regulations,” along with “different precedents.” Precedent, perhaps, as Justice Kagan cited, like Arizona State Legislature v. Arizona Independent Redistricting Commission, a dispute arising out of the context of congressional elections (not presidential election), and one that Chief Justice Roberts dissented from but may now feel bound by.

In short, it’s unclear whether there are four votes to grant certiorari, or how it might shake out if certiorari is granted. But the interest, and the intrigue, remains high, in my view.

Reliance interests: One cut against the plaintiffs’ claims would be the reliance interests of the voters in a pre-Election Day posture rather than a post-Election Day one. That is, voters dropped ballots in the mail by Election Day with the assumption that Pennsylvania would count those votes if received by November 6.

But I wonder if an emphasis on “it doesn’t matter if these votes are counted because the result is the same” makes reliance interests less salient. That is, the Court might feel more comfortable in the post-Election Day posture knowing that these ballots feel more like an abstract proposition than outcome determinative.


There would be significant complications in the ensuing briefing if certiorari is granted. Does the Court revisit precedents like Arizona State Legislature? Does it treat presidential elections differently from congressional elections? Does it treat judicial construction of statutes differently from construction of state constitutions?

I don’t know what happens if the Court grants cert. But I think it remains a distinct possibility that it chooses to do so, when it has ample time for briefing and when it knows its answer will not alter the outcome of a pending election. And that decision could be transformative for future election cases.

Share this:

#LookingBack: Litigate On (Sam Issacharoff)

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

I was born in Argentina under Juan Perón.  History has unfortunately given us too many charismatic demagogues, elected to office and quick to turn on every institution that brought them there.  Some are talented public figures, including Perón himself, and some merely symptoms of a society running aground.  The 20th century versions of these demagogues adored Mussolini, Franco and played with all the elements of fascism.  The 21st century ones are less transformative but now find Putin irresistible. 

Perón was never defeated electorally.  He was overthrown in his second term by the military, and then died in office when he returned from exile two decades later.  Peronism still casts a shadow over Argentine governance that has withstood military coups, scandals, hyperinflation, and dismaying economic dislocations.

Will Trumpism become the American Peronism?  Trump is now on his way out.  The departure is and will be noisy, full of recriminations, full of claimed victimhood, all the trappings of a destructive four years.  To be sure, Trump is no Perón.  Perón genuinely raised the aspirations of working-class Argentines and the social commitments of Evita left a legacy that included raising wages and providing guaranteed national health care.  Trump will leave office with a tax cut for the wealthiest Americans and little to show ordinary working people. 

But Peronism tapped a politics of resentment that roils the country to this day.  Perón never had to face the consequences of his irresponsible economic policies and became a martyr for an ill-defined political legacy.  By contrast, Trump lost the election and both before and after tried to torch the system by claiming fraud. 

Much to Trump’s chagrin, something extraordinary happened this November.  In the face of a pandemic, more Americans voted than ever before, the highest percentage in a century.  Because of the number of close states and the laborious process of counting millions of absentee ballots, the process of tabulating the results took place over an amazing five days.  There in front of tv cameras were the unsung heroes of democracy.  In state after state, people could watch their fellow citizens, at table after table with one Republican and one Democrat, counting the ballots.  Hour after hour they labored, almost all volunteers, shoring up democracy at a most difficult time. 

Trump could take to television early on to claim victory, shout about the fraud occurring, and his sons could even call on the faithful to take to the streets.  But on television, citizens saw something else.  An orderly process that was transfixing because it seemed so routine, so ordinary.  By the time the election was called on Saturday, the Trump calls to resist fell somewhere between shrill and silly. 

But now Trump wants to go to court to claim fraud in multiple states.  Please do so.  Challenge military personnel on deployment as fraudulent voters in Nevada.  Pursue a rumor that someone saw 50 illegal ballots dumped into the mix in Georgia.  Claim that 150,000 votes in Pennsylvania somehow were slipped in with no vigilance.  Go ahead.  And, of course, go raise money for putative appeals, but with 50-60 % skimmed off for the Trump coterie.  A grifter once, a grifter always.

The final election margins were narrow but these kinds of election challenges never go anywhere when there are tens of thousands of votes at issue.  Recall that in 2000, Bush was ahead in Florida and was trying to protect a lead against after the fact changes in counting procedures.  The Trump group was so eager to claim fraud, that they could not wait for the election.  All the practices they now complain about were already vetted through the courts before the elections. 

Trump will have to show fraud in state after state, and he will have to provide evidence more substantial than Rudy Giuliani peacocking it for a microphone.  He will be rejected by court after court, as he has been already.  He will not be able to blaspheme about “Mexican judges” and all the nonsense of the past four years.  He will appear a whiner, unmoored and, most of all, a loser. 

For Trumpism not to become the American Peronism, there needs to be a moment of repudiation so that political life may move on.  The election may not have been enough.  Let the lies be tested in courts to ground the lessons in our political psyche.  Our citizens and our democratic institutions deserve respect.  They saved us last week and maybe we need some unfounded lawsuits to reinforce that lesson.  By subjecting his irresponsible rhetoric to legal scrutiny, Trump may finally be performing a genuine public service.

Share this: