Category Archives: Bush v. Gore reflections

Justice Riggs in 4th Circuit Cites Justice Scalia in Bush v. Gore to Support Her Request for Stay of “Cure” Order in North Carolina Supreme Court Election Dispute

Bush v. Gore reflections

From the 4th Circuit motion:

Proceeding with the proposed cure process also poses a serious risk of irreparable harm directly to Justice Riggs by undermining the legitimacy of her election victory. The U.S. Supreme Court issued a stay in Bush v. Gore, forestalling various state-court remedies pending federal court review of the equal protection issues, because proceeding with a state process “of questionable legality” threatens irreparable harm to a candidate, as well as to the public, “by casting a cloud upon what [she] claims to be the legitimacy of [her] election.” 531 U.S. 1046, 1047 (2000) (mem.) (Scalia, J., concurring)….

Consistent with the Supreme Court’s issuance of a stay in Bush, federal courts across the country allow candidates for office to assert per se irreparable harm based on constitutional violations resulting from improper election challenges. See, e.g., Moore v. Circosta, 494 F. Supp. 3d 289, 321 (M.D.N.C. 2020); Jones v. United States Postal Serv., 488 F. Supp. 3d 103, 109, 139–40 (S.D.N.Y. 2020); Gallagher, 477 F. Supp. 3d at 26, 41–42. One can barely imagine the chaos that would ensue if an arbitrary, non-uniform, and constitutionally improper state-law “cure” process suggested a change to the election outcome, only for this Court later to decide that Justice Riggs’ constitutional arguments were meritorious and the “cure” process should never have proceeded. The proverbial toothpaste can never be put back in the tube, and that is exactly why the U.S. Supreme Court intervened in Bush v. Gore….

The challenged North Carolina voters were eligible to vote in November 2024, they followed every rule, and they acted in reliance on longstanding, unchallenged election laws. “Surely, upholding constitutional rights serves the public interest,” Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003), especially when, as here, the threatened constitutional violation would erode the “fundamental” right to vote, Raleigh Wake Citizens Ass’n v. Wake Cnty. Bd. of Elections, 827 F.3d 333, 337 (4th Cir. 2016) (quoting Bush, 531 U.S. at 104–05). “Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.” Bush, 531 U.S. at 1047 (Scalia, J., concurring).

I had fleshed out such an argument earlier this week in my Slate piece.

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“The Judge Ruling on the North Carolina Election Fight Should Heed Bush v. Gore”

Bush v. Gore reflections, election subversion risk

I have written this piece for Slate. It begins:

In a preliminary order issued over the weekend likely designed to split the baby, a federal district court in North Carolina has told North Carolina election officials that they should follow a state court’s ruling to figure out which of thousands of military and overseas ballots cast by North Carolina voters should be thrown out in a dispute over the winner of a November state Supreme Court election. But the federal court also told election officials not to certify the winner of that election until it can decide if the state court–ordered remedy is unconstitutional.

This is a recipe for disaster. The federal court should have heeded the advice of Justice Antonin Scalia in the 2000 Bush v. Gore case about not allowing a questionable redo of vote totals to be announced before there’s been a ruling on the legality of the redo. The judge’s order in North Carolina could well lead people to believe the state Supreme Court election was stolen no matter what happens….

And Justice Richard Dietz, a Republican dissenting justice, was equally scathing, stating that he was wrong to believe “our state courts surely would embrace the universally accepted principle that courts cannot change election outcomes by retroactively rewriting the law.”

The constitutional problems with the court-ordered redo are deadly serious and risk election subversion. To begin with, changing the rules for ballot eligibility after the fact violates the due process clause of the U.S. Constitution’s 14th Amendment. Election law scholar Rick Pildes points to leading cases including a 1995 case, Roe v. Alabama, where federal courts stopped the Alabama Supreme Court from retroactively changing the results of an election to turn an election loser into an election winner. He points out how voters relied on state officials to tell them what they had to do to vote, and they all followed the state’s orders. It violates due process to disenfranchise them, as noted Republican election lawyer Ben Ginsberg argues. “By changing the rules of the game after it’s been played to potentially disenfranchise as many as 60,000 voters, this court has gone where no court has gone before,” Ginsberg told the New York Times. “Until this decision, courts facing challenges to ballots cast in compliance with past practice and election administrators’ instructions had uniformly sided with the voters.”

And the problem is even worse, as election law scholar Justin Levitt argues, because it looks like voters actually were complying with state law as it existed at the time….

With all of these constitutional problems, there is a good chance that a federal court is going to find that this attempt at election subversion by North Carolina courts violates the federal Constitution. If that’s the case, the best course of action is to decide the constitutional issues first before going through the process of trying to track down identification of voters overseas in combat or elsewhere around the world.

Indeed, a similar issue arose in Bush v. Gore. A Florida court had ordered a statewide recount of certain ballots. George W. Bush, who was ahead in the count, went to the U.S. Supreme Court arguing that the method of doing the recount was unconstitutional. But Bush asked the counting to stop as the Supreme Court considered the constitutional question, and the court agreed.

Scalia issued a concurring opinion arguing that stopping the counting until the constitutional issues could be addressed made sense in this context:

The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.

Scalia’s statement was controversial, because the presidential election was up against a strict deadline to finalize results for the presidency, and stopping the counting essentially allowed Bush to run out the clock. But that’s not at issue in the North Carolina case. This can be decided a few weeks or even months from now.

Even more importantly, Griffin’s arguments about the need to check voter ID comes at a time when bogus claims of voter fraud are rampant. If election officials cannot find enough overseas and military voters to send in copies of their photo identification in time and the result looks like it should flip, but then the federal court says afterwards that the redo is unconstitutional, people on Griffin’s side will wrongly believe fraud stole the election.

And of course if the federal court countenances this blatant due process violation and lets Griffin take office, the rest of us will see this rightly as a stolen election. And a bad sign for the rule of law in the United States and future fair elections….

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Ben Ginsberg: “Echoes of Gore’s Florida recount in Griffin’s attempt to toss ballots”

Bush v. Gore reflections, chicanery, judicial elections, The Voting Wars

Ben Ginsberg in the Carolina Journal:

Jefferson Griffin’s attempts to invalidate 60,000 North Carolina voters bear haunting parallels to what Al Gore supporters tried to do late in the 2000 Florida recount to take away George W. Bush’s victory. I was the Bush-Cheney campaign’s national counsel, and as Republicans, we were outraged by the unprincipled attempts to disenfranchise voters to steal a win.

Imitating the Gore playbook, Griffin is trying to overturn a historically close election by changing the election’s rules after it was conducted and disenfranchising thousands of otherwise legal voters, not because they did anything wrong, but because of election officials’ instructions.

Griffin’s efforts should fail for the same reasons Al Gore’s did. In 2000, the US Supreme Court recognized that changing the rules fundamentally violates the rule of law. And not even the highly partisan Florida Supreme Court could swallow disqualifying otherwise legal voters to swing an election. 

As a Republican election lawyer for 40 years, I’m for Republicans winning judicial elections. But not like this. Not when Griffin has not identified any fraudulent voters or ballots not cast in compliance with official election guidance. And not when Griffin has to ask his fellow judges to abandon principle to achieve his own electoral success. He lost a heartbreakingly close race. It happens. But it is wrong to disqualify voters who may have voted against you because of administrators’ perceived errors. 

As in Florida 2000, it is fair game to adjudicate State Board of Elections’ procedures or overseas voters’ eligibility before the election. But Griffin did not succeed in his preelection attempts. So his lack of electoral success makes his post-election challenges nothing more than distasteful sour grapes aimed at disenfranchising voters in areas won by his opponent…,

It should be embarrassing for Judge Jefferson Griffin to make — and ask his fellow judges to buy — his arguments to disenfranchise legal voters, especially members of our military. Ambitious candidates may not always stick to principles, but judges must. As in Florida 2000, such an attack on the rule of law must be rejected.

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Election Litigation Hits Record, Increasing More than 14 Percent in the 2024 Election Cycle Compared to the 2020 Election Cycle, Despite End of Covid Pandemic

Bush v. Gore reflections, legislation and legislatures, political polarization, The Voting Wars

As described in my forthcoming Essay, the results of updating my data on the rates of election litigation to include 2023 and 2024:

The voting wars also brought a significant increase in litigation. The rate of election administration has tripled since Bush v. Gore compared to before it and remains consistently high, including through the 2023-2024 election season.

Figure 1. Sample of Election Litigation Cases Per Year, Before and After Bush v. Gore

The 2020 election, conducted in the midst of the Covid pandemic and with Donald Trump (unsuccessfully) challenging his presidential loss to Joe Biden in multiple lawsuits, led to a record amount of election litigation in a single year (2020), but the 2023-2024 election season overall saw a 14.3 percent increase over the 2019-2020 election season overall: There were 661 cases in the 2019 and 2020 election years in my sample (which does not cover all election litigation brought in those years), compared to 756 cases in the 2023 and 2024 election years. See Figure 2. It is remarkable that election litigation is even higher in the election after the pandemic than in the period before. My suspicion is that ongoing conflict surrounding the 2020 election created political incentives for Trump and his allies to file suits alleging the potential for fraud an irregularities in connection to the 2024 elections. 

Figure 2. Sample of Election Litigation Cases Per Two-Year Presidential Election Cycle, 2000 Election Season-2024 Election Season


Source: Hasen Election Litigation Database, 1996-2024, https://electionlawblog.org/wp-content/uploads/Hasen-Election-Litigation-1996-2024.xlsx

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My New Draft: “Bush v. Gore’s Ironic Legacy”

Bush v. Gore reflections, legislation and legislatures, Real Right to Vote, Supreme Court

I have written this draft for a symposium issue of the Florida State University Law Review on 25 Years after Bush v. Gore. Here is the abstract:

The Supreme Court framed its holding in its 2000 case, Bush v. Gore, as fulfilling its “unsought responsibility” to protect voters’ equal protection rights by stopping a potentially outcome-determinative recounting of Florida ballots in the disputed 2000 presidential election. Yet the Court to this day has not relied upon the case’s equal protection holding as precedent, leading some to call it a “one way ticket” to help Bush’s election.  In 2023, a Supreme Court majority finally cited Bush as a worthy precedent to apply in future cases. It turned out the ticket was good for a different train: the conservative Supreme Court majority in Moore v. Harper embraced not Bush’s equal protection holding as contained in its per curiam majority opinion, but instead an Article II-based claim in Chief Justice William Rehnquist’s concurrence. Rehnquist advanced what has come to be known as the “independent state legislature theory” contending that the problem with the recount was judicial usurpation of the power of the Florida legislature to set recount rules for the presidential election. Bush v. Gore’s ironic legacy is that a decision dressed up as one protecting voters’ equal protection rights instead has advanced a bogus legal theory for federal courts to use to subvert popular will. ISLT reserves for the Supreme Court a license to overturn democratically-conducted presidential and congressional elections by second-guessing state court interpretations of state constitutional provisions protecting the right to vote and state statutes governing the electoral process. It empowers legislatures over voters in choosing the President. Unless the Supreme Court overturns or limits Moore, ISLT will hang like a Sword of Damocles over the heads of state courts as they contemplate whether to read their state constitutions in voter-protective ways and to apply voter protective methods of statutory interpretation.

Part I briefly describes how—despite advances in voting technology and increased voting opportunities since 2000—Bush v. Gore’s equal protection holding has mostly been a dead end, and federal courts more generally have retreated from protecting voting rights in the last quarter century. It includes an empirical analysis showing election litigation continuing to grow, triple the rate since before Bush v. Gore and with a 14.3 percent increase in 2024 election season litigation compared to the 2020 season. Part II shows how the resurrection of Rehnquist’s Bush ISLT concurrence in Moore is anti-voter and anti-democratic. It is already deterring state court protection of voting rights, turning the supposed voter-protective holding of Bush on its head. Part III argues that Bush demonstrates that an advanced democracy should not rely upon the whims of the United States Supreme Court or optimistic readings of snippets of constitutional text to protect voters’ rights. What is needed is an affirmative right to vote in the U.S. Constitution, which would be a more fitting legacy to a case that exposed fundamental flaws with American election administration and purported to find in the Constitution protection for voters’ equal rights.

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“Bill Cotterell: Florida 2000 — Now that was an election”

Bush v. Gore reflections

Bill Cotterell column in the Tallahassee Democrat:

Cops, politicians and journalists sometimes use a cliche — “You can’t make this stuff up” — when they run into some novel or startling plot twists or game-changing surprises in events they’re describing.

It’s usually a bit of an exaggeration. But once, not long ago, Tallahassee was the center of a high-stakes legal drama, political struggle and media circus that defied description. And the weird thing was that everybody knew how it would end but couldn’t say so with any confidence.

A few blocks downhill from the towering state Capitol, where it all happened, Florida State University’s law school recently held a two-day conference about Bush vs. Gore. That was the case that captivated the nation for 36 days after the 2000 presidential election.

Of course, Republican George W. Bush defeated Democrat Al Gore by 537 votes out of more than 6 million cast statewide — and won the presidency by locking up Florida’s 25 electoral votes.

Faculty Director of the Election Law Center, Professor Michael Morley, introduces the Panel Discussion Bush v. Gore, the Right to Vote, and Election Administration on Saturday morning during the Election Law Conference.

FSU’s 25th anniversary conference brought together many of the lawyers who argued for Gore and Bush from circuit courts to the nation’s highest tribunal. Also, it included state and county elections officers who labored with Florida’s haphazard voting systems, campaign consultants on both sides and many of the political junkies infesting Tallahassee. There was also a sprinkling of fresh-faced students who weren’t born when the presidency was decided by the men and women presenting orderly, scholarly panel discussions.

The dignified academic event focused on stuff like deadlines for legal filings, the official distinction between an election “challenge” and election “contest,” the criteria for determining voter intent when a ballot was not clearly marked and the certification of results. But such arcane details couldn’t capture the rollicking adventure of the time itself. 

Laws are made with the expectation that things work well. This election didn’t. …

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25th Anniversary of Bush v. Gore Two-Day Conference at Florida State

Bush v. Gore reflections, Supreme Court

I went to the first conference on Bush v. Gore at Florida State back right when the case was decided, and I’m very excited to be going back for this event with an amazing group on Feb. 28 and March 1:

FSU Election Law Center

Bush v. Gore 25th Anniversary Conference

All events are in the FSU College of Law Main Classroom Building, Auditorium 101, unless otherwise noted.

Friday, February 28, 2025

9:00-9:30 A.M. – Optional Breakfast in Rotunda

9:45-10:00 A.M. – Welcome

  • Dean Erin O’Hara O’Connor, Donald J. Weidner Chair, Florida State University College of Law
  • Professor Michael T. Morley, Sheila M. McDevitt Professor of Law, Faculty Director, FSU Election Law Center, Florida State University College of Law

10:00-11:30 A.M. – State and County Officials Panel

Presenters and their respective roles in 2000:

  • Ms. Sally Bradshaw, Chief of Staff to Governor Jeb Bush
  • Paul Hancock, Esq., Florida Deputy Attorney General
  • Deborah K. Kearney, Esq., General Counsel, Florida Department of State
  • The Honorable Theresa LePore, Palm Beach County Supervisor of Elections
  • The Honorable John Thrasher, Speaker of the Florida House of Representatives
  • Moderator: Professor Michael T. Morley                       

11:30 A.M. – 12:30 P.M. – Lunchand Remarks by Florida Secretary of State Cord Byrd

12:30-2:00 P.M – State Litigation Panel*

  • The Honorable Harry Lee Anstead, Former Justice, Florida Supreme Court
  • Mitchell W. Berger, Esq., Senior Advisor and Counsel, Gore-Lieberman Presidential Campaign
  • The Honorable Major Harding, Former Justice, Florida Supreme Court
  • The Honorable Judge Terry Lewis, Former Leon County Circuit Court
  • Barry Richard, Esq., Lead Litigation Counsel, Bush-Cheney Presidential Campaign
  • Moderator: Joseph Van de Bogart, General Counsel, Florida Department of State

2:00-2:15 P.M. – Break

2:15-3:45 P.M. – Parallel Federal Litigation Panel*

  • Professor Richard Briffault, Joseph P. Chamberlain, Professor of Legislation, Columbia Law School
  • The Honorable John Antoon, Senior Judge, U.S. District Court for the Middle District of Florida
  • The Honorable Joel F. Dubina, Senior Judge, U.S. Court of Appeals for the Eleventh Circuit
  • The Honorable Gerald Bard Tjoflat, Senior Judge, U.S. Court of Appeals for the Eleventh Circuit
  • Moderator: Professor Michael T. Morley

3:45-4:00 P.M. – Break

4:00-5:30 P.M. – Keynote Address

  • Mr. David Boies, Esq., Chairman Emeritus and Founding Partner, Boies, Schiller & Flexner LLP, National Counsel, Gore-Lieberman Presidential Campaign
  • Mr. Ben Ginsberg, Esq., Volker Distinguished Visiting Fellow, Hoover Institution, National Counsel, Bush-Cheney Presidential Campaign

Saturday, March 1, 2025

8:30-9:00 A.M. – Optional Breakfast in Rotunda

9:00-10:30 A.M. – Bush v. Gore, the Right to Vote, and Election Administration*

  • Professor Joshua Douglas, Acting Associate Dean for Research, Ashland, Inc. – Spears Distinguished Research Professor of Law, University of Kentucky J. David Rosenberg College of Law
  • Professor Richard L. Hasen, Gary T. Schwartz Endowed Chair in Law, Director, Safeguarding Democracy Project, University of California, Los Angeles School of Law
  • Professor Richard H. Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law
  • Professor Charles Stewart III, Kenan Sahin, Distinguished Professor of Political Science, Massachusetts Institute of Technology
  • Moderator: Professor Lonna Atkeson, Ph.D., Leroy Collins Eminent Scholar in Civic Education and Political Science, Director, LeRoy Collins Institute, FSU College of Social Sciences and Public Policy

10:30-10:45 A.M. – Break

10:45-12:15 P.M. – Congressional v. Judicial Power Over Elections and the Political Question Doctrine*

  • Professor Nelson Lund, Distinguished University Professor, Antonin Scalia Law School, George Mason University
  • Professor Robert Pushaw, James Wilson Endowed Professor of Law, Pepperdine University Rick J. Caruso School of Law
  • Dean Daniel Tokaji, Fred W. & Vi Miller Dean, Professor of Law, University of Wisconsin Law School
  • Moderator: Professor Charquia Fegins, Assistant Professor, Florida State University College of Law

12:15-1:15 P.M. – Lunch

1:15-2:45 P.M. – Remedies in Election Cases/ Constitutional Questions Concerning the Electoral College*

  • Professor Sam Isaacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, New York University School of Law
  • Professor Justin Levitt, Professor of Law, Gerald T. McLaughlin Fellow, Loyola Law School, Loyola Marymount University
  • Professor Derek T. Muller, Professor of Law, Notre Dame Law School
  • Moderator: Professor Michael T. Morley

2:45-3:00 P.M. – Break

3:00-4:30 P.M. – Bush v. Gore and the Future of the Voting Wars*

  • Professor Guy-Uriel Charles, Charles Ogletree, Jr., Professor of Law, Faculty Director, Charles Hamilton Houston Institute for Race and Justice, Harvard Law School
  • Professor Christopher Seaman, Robert E.R. Huntley Professor of Law, Washington and Lee University School of Law
  • Dean Franita Tolson, Carl Mason Franklin Chair in Law, University of Southern California Gould School of Law
  • Moderator: Ryan Owens, Professor of Political Science, Director of the Florida Institute on Governance and Civics, FSU College of Social Sciences and Public Policy

*Denotes those events eligible for two general CLE credits by the Florida Bar.

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Please Stop Wishcasting the Supreme Court into a Decisive Election Role

Bush v. Gore reflections, election administration, election law and constitutional law, Election Meltdown, Supreme Court, The Voting Wars, voting

Justin here.  There’s a tsunami of election litigation cascading through the legal system right now.  It’s producing a lot of public anxiety, in part because it’s designed to produce a lot of public anxiety. 

But none of the current litigation mess is actually seriously destabilizing the 2024 election process.  And absolutely none of it is realistic meaningful fodder for the Supreme Court.

It’s natural to be freaking out.  These elections are incredibly important.  The outcome is likely to be very close.  And the Supreme Court has indulged in some questionable jurisprudence of late, including historic cases involving one of the contenders. (I’m looking at you, Trump v. US).   In a last-minute decision, they’ve even (maybe) deployed a made-up equitable judicial doctrine meant to stop unwarranted last-minute election changes to block implementation of a very real federal law meant to stop unwarranted last-minute election changes.  Sometimes, it’s true, up is down.

So it’s understandable to combine all of these thoughts: to think that the current electoral litigation morass is just prelude for the Supreme Court to go full Godzilla in the aftermath. 

But wishcasting or doomcasting the Supreme Court into a decisive role in the 2024 election is at this point just indulgent dystopian fiction.  That’s not how any of this actually works.

There are three types of election lawsuits out there right now.  First, an increasingly vanishing handful of cases in a few states over limited election procedures might still yield a result in the next few days.  But as Derek has highlighted, these cases hold relatively few ballots in the balance.  As important as they are to the individual voters involved, they’re not going to change a result before the election.  And that means they’re not going to change a result after the election either.

Second, there are a handful of cases with real arguments over significant issues that have yielded an answer effectively locked in for this election.  But they’re now out of time.  The fighting will continue — some will eventually be upheld, some overturned — but without further impact on the 2024 cycle.

The third category is by far the largest: the slew of cases that. Were. Never. Going. To. Win.

Ever. 

They’re press releases and fundraising emails and vigilante manifestos, with a fancy cover page and a few footnotes, usually brought by the wrong person at the wrong time seeking relief that isn’t available.  Reformat them in Comic Sans and you’ll see them for what they are.  A lawsuit without provable facts showing a violation of actual laws is just a Tweet with a filing fee.  You can tart up numbered paragraphs with all the legalese you want, and it’s still not going to 1) magic you up a unicorn or 2) disappear 200,000 legitimate votes.

It’s alarming to think that even one Justice might want even one of any of these cases.  But it takes five Justices to act.  And there aren’t five Justices who would find any of this remotely tempting.

Take, for example, the Pennsylvania Supreme Court’s decision last week about a voter who submits an (invalid) mail ballot without a “secrecy envelope,” and then votes a (valid) provisional ballot.  The RNC asked the Supreme Court to step in, under the mysterious “independent state legislature” theory.  Could this be the one?

Nope.

The same Justices currently sitting on the Supreme Court effectively killed this notion just 16 months ago.  The pitch then was that the federal Constitution gives state legislatures a special exemption from normal state law (but only for federal elections).  And the Court firmly rejected it, 6-3.  True, the Court said that in addressing a state’s election structure, “state courts may not transgress the ordinary bounds of judicial review.”  But in Pennsylvania, the state courts just interpreted a state statute, using its normal tools of statutory interpretation.  That’s as ordinary as it gets.  The 2023 case was far tastier bait than this, and only three Justices were biting.

And yes, those three Justices noted the argument again yesterday, even as they agreed with the majority in a unanimous statement to send this case where it belonged.  6-3 is still 6-3 is still 6-3.  There’s no reason to think anyone on the Court has changed their minds.

Or, if you prefer, take the Fifth Circuit’s decision last week that Mississippi mail ballots have to be received by election day in order to count.  Is that just a setup for the Supreme Court to step in after the election?

Nope.

The decision is a little nuts.  But even this reactionary appellate panel balked at applying its own logic in the middle of an election with ballots already being cast.  It handed down a decision on what the law means, but deferred a remedy.  This is the Circuit repeatedly chastised of late for decisions too outlandish even for an exceedingly conservative Supreme Court.  Five Justices aren’t going to leapfrog them on the road to Crazytown.

I mean, Cap probably said it best.

There’s a notion that these cases are galaxy-brain traps, “zombie lawsuits” waiting to ravage the post-election landscape.  But there’s a pretty big missing step between here and there: a plausible legal argument sufficient to grant election-swinging relief.  Just as in 2020, courts this cycle in election cases have not simply been indulging what some might presume to be partisan priors: if you look only at the ostensible partisan composition of the bench, you’d get the outcome wrong much of the time.  Instead, courts have largely been acting like … courts, discarding most nonsense as it comes.  There’s more than enough horror going around already this Halloween — we don’t need to indulge the litigious supernatural. 

Speaking of seasonal Gore, I’ll concede that all bets are off if the election comes down to 537 ballots.  At that margin, anything and everything matters: a butterfly ballot flaps its wings in one part of a state and the winds change in another.  But with a margin even slightly bigger than that — a very close election, or even a very very close election — this election isn’t coming down to the lawyers, or the courts, nor even the Supreme Court.  It will, once again, be up to the voters.

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My Forthcoming Yale Law Journal Feature: “The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law”

authoritarian threats in US, ballot access, Bush v. Gore reflections, campaign finance, cheap speech, chicanery, Constitutional Right to Vote, election administration, election law and constitutional law, Election Meltdown, election subversion risk, First Amendment theory, legislation and legislatures, political equality, political parties, political polarization, primaries, Real Right to Vote, social media and social protests, Supreme Court, The Voting Wars, voting, Voting Rights Act

I have written this draft, forthcoming this spring in Volume 134 of the Yale Law Journal. I consider it my most important law review article (or at least the most important that I’ve written in some time). It offers a 30,000-foot view of the state of election law doctrine, politics, and theory. The piece is still in progress, so comments are welcome. Here is the abstract:

American election law is in something of a funk. This Feature explains why, what it means, and how to move forward.

Part I of this Feature describes election law’s stagnation. After a few decades of protecting voting rights, courts (and especially the Supreme Court), acting along ideological—and now partisan—lines, have pulled back on voter protections in most areas of election law and deprived other actors including Congress, election administrators, and state courts of the ability to more fully protect voters rights. Politically, pro-voter election reform has stalled out in a polarized and gridlocked Congress, and the voting wars in the states mean that ease of access to the ballot depends in part on where in the United States one lives. Election law scholarship too has stagnated, failing to generate meaningful theoretical advances about the key purposes of election law.

Part II considers the retrogression of election law doctrine, politics, and theory to a focus on the very basics of democracy: the requirement of fair vote counts, peaceful transitions of power, and voter access to reliable information. Courts on a bipartisan basis in the aftermath of the 2020 election rejected illegitimate attempts to overturn Joe Biden’s presidential election victory. Yet the courts’ ability to thwart attempted election subversion remains a question mark in light of the Supreme Court’s recent decisions in Trump v. Anderson and Trump v. United States. Politically, Congress came together at the end of 2022 to pass the Electoral Count Reform Act to deter future attempts to manipulate electoral college rules in order to subvert election results, but future bipartisan action to prevent retrogression seems less likely. Further, because of the collapse of local journalism and the rise of cheap speech, voters face a decreased ability to obtain reliable information to make voting decisions consistent with their interests and preferences. Meanwhile, parties have become potential paths for subversion. Party-centered election law theory and the First Amendment “marketplace of ideas” theory have not yet incorporated these emerging challenges.

Part III considers the potential to transform election law doctrine, politics, and theory in a pro-voter direction despite high current levels of polarization, the misperceived partisan consequences of pro-voter election reforms, and new, serious technological and political challenges to democratic governance. Election law alone is not up to the task of saving American democracy. But it can help counter stagnation and thwart retrogression. The first order of business must be to assure continued free and fair elections and peaceful transitions of power. But the new election law must be more ambitiously and unambiguously pro-voter. The pro-voter approach to election law is one grounded in political equality and based on four principles: all eligible voters should have the ability to easily register and vote in a fair election with the capacity for reasoned decisionmaking; each voter’s vote is entitled to equal weight; the winners of fair elections are recognized and able to take office peacefully; and political power is fairly distributed across groups in society, with particular protection for those groups who have faced historical discrimination in voting and representation.

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A few more quick thoughts on Moore

Bush v. Gore reflections, election law and constitutional law, Elections Clause, legislation and legislatures, redistricting, Uncategorized

Moore v. Harper, much like Allen v. Milligan, was a shocker for me. Given how the posture of the case had changed, I didn’t expect the justices to reach the merits. I’m glad they did. A few thoughts:

1) In some ways, Moore v. Harper reads as a reaffirmation of the concept of judicial review, closing the loop on this idea that the Elections Clause is an exception to this principle that insulates state legislative action over federal elections from review in federal court and, until this case, possibly state court. While state courts are differently positioned than their federal counterparts, I had underestimated how much the Supreme Court might view this case as a threat to the concept of judicial review, more generally.

In Rucho v. Common Cause, the Supreme Court held that partisan gerrymandering claims were nonjusticiable political questions that would not be heard in federal court. But the Court also explicitly rejected the idea that claims brought under the Elections Clause, unlike those brought pursuant to the Guarantee Clause, were judicially unreviewable. These two principles are not necessarily in tension because it could be the case that partisan gerrymandering claims are just not the type of Election Clause claims that the Court feels capable of resolving even though other types of claims under this provision might be more manageable. Despite the Court’s assertions to the contrary, however, Rucho might have opened the door for the Elections Clause to function as a provision that has limited judicial enforcement, a sentiment that the Court sought to shut down in Moore v. Harper.

2) Second, what does Moore mean in light of Milligan, the Alabama Section 2 case from a couple of weeks ago that shocked every election scholar I know? One might say that the Court is affirming that it is still very much a player in the democracy space, again pushing back against the (rightful) perception that, after Rucho and Bronovich, the Court is less committed to policing our system of democracy. In addition, both Milligan and Moore offer an opportunity for the Court to push back against these negative perceptions by simply reaffirming the status quo. Milligan reaffirmed that Section 2 vote dilution claims are still actionable under the Gingles framework, and Moore rejects a theory that would have caused a sea change in how state courts oversee the actions of state legislatures with respect to federal elections. The Court gets a huge pay off, in terms of maintaining its legitimacy, but by structurally changing very little.

3) There are a couple things at play in Moore that run contrary to our assumptions about the Court’s more general anti-Democratic posture that are worth pointing out. First, there may just be some arguments that go too far, and would be too disruptive should they become law, that they turn off some of the more conservative members of the Court. That says a lot about where we are as a democracy, and where this Court is as an institution.

To this point, Chief Justice Roberts (writing for the majority) discusses Arizona State Legislature v. Arizona Independent Redistricting Commission as proof that legislatures are not the sole source of lawmaking authority over federal elections within a state, even though he wrote a lengthy dissent in that case arguing that the term “legislature” as used in the Elections Clause means the institutional legislature and not the broader lawmaking processes. He reliance on this case, despite his very heated dissent, is further proof (along with Justice Thomas’ reliance on the case as well) that the goal posts have moved from basic questions of whether “legislature” means “legislature” to more nuanced concerns about whether legislatures should be given broad authority, subject only to very little oversight from a massively dysfunctional Congress, to blow up any notion of democracy within their borders. Roberts is known for using subsequent cases to minimize or subvert holdings that he doesn’t necessarily agree with, but he doesn’t do that here (at least not as much as he normally does, see point 4 below).

Second, John Roberts, in rejecting the independent state legislature theory, might be defending his legacy. He wrote Rucho, which asserted that state law and state courts could be a more than adequate response to the ills of partisan gerrymandering than any remedy the federal courts could provide. Would he be willing to sign on to any theory that could call into question a decision (and a controversial one, at that) that Roberts authored less than five years ago? Probably not. Again, it is not that the author of Shelby County has become a huge democracy advocate but he might feel the need to defend his turf a bit.

I am sure that, given these stakes, 100 years of precedent rejecting the idea that state legislatures have exclusive authority to regulate federal elections is much more persuasive than the Federalist 78, which the dissenters rely on to argue that state legislatures are empowered in this manner. Moore is also a very common-sense decision – state legislatures cannot be free of the constraints of the documents (state constitutions) that created them nor has it been true that state legislatures exercise power in this domain independent of the other branches of state government. The fact that we had to contemplate otherwise is an insane bit of nonsense that I hope died a sure death today.

4) To be clear, I am not asserting that the Roberts Court has all of a sudden become the Warren Court. Towards the end of the opinion, in typical Roberts form, he offers some vague constraints on state courts that apply when they are policing state legislative action on the Elections Clause, a standard that (as Derek points out here) very much resembles the standard offered by Chief Justice Rehnquist over two decades ago in Bush v. Gore. In some ways, this standard is Roberts’ attempt to make sure that “legislature” means “legislature” as much as he possibly can without explicitly running afoul of Arizona Independent Redistricting Commission while staying true to the text of the Elections Clause, which empowers the legislature to set the manner of federal elections. What this vague test – that “state courts may not transgress the ordinary bounds of judicial review” – actually means will almost certainly be a point of controversy in years to come. Policing whether state courts have crossed this line will keep federal courts in the business of overseeing federal elections for the foreseeable future, contrary to what Roberts had hoped to achieve in Rucho.

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Justice Stevens (or Someone Else) Drafted a Proposed Remand Order in Bush v. Gore That Would Have Kept the Chances for a Recount Alive

Bush v. Gore reflections, Supreme Court

Joan Biskupic and Derek Muller have covered the most important news I saw in Justice Stevens’ Bush v. Gore files: that the Article II (independent state legislature theory) emanated from Justice O’Connor, not Chief Justice Rehnquist, and that Justice O’Connor inexplicably abandoned the argument. As I saw in Justice Stevens’ notes, the Article II argument was originally in the per curiam opinion, but the Chief Justice stripped it out when Justice Kennedy said he would not join.

But I did also come across this draft per curiam order in Justice Stevens’ file, which indicates that someone (I think Justice Stevens, because of the handwritten correction) wrote up a proposed order that would have at least kept open the possibility of a recount of Bush and Gore ballots under a uniform standard set by the Florida Supreme Court to be done within six days of the order.

Note the reference at the end of the proposed order to uncertainty as to “whether there is time” to resolve claims about uniform standards “before December 18, 2000,” and with instructions to the Florida Supreme Court “either to terminate the recount or to enter an appropriate order providing assurance that like ballots will be given like treatment.”

I don’t know from my quick review of the file if this was circulated to any other Justices, but I did not see any such indication in the file.

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The Curious Failure to Cite to Rehnquist’s Bush v. Gore Concurrence and the Independent State Legislature Theory in 2004 Salazar Case; The Issue Was Clear to Justice Stevens’ Then-Clerk (and Now-CA Supreme Court Justice) Leondra Kruger

Bush v. Gore reflections, legislation and legislatures, Supreme Court

As the independent state legislature theory remains in limbo in Moore v. Harper, I’ve thought back on Chief Justice Rehnquist’s dissent from denial of cert in  Colorado General Assembly v. Salazar (2004) (a case that few other than Derek Muller and I have paid much attention to). As Derek recently explained:

The Colorado Supreme Court in 2003 found that the state constitution precluded the legislature from mid-decade redistricting. That was despite the fact that the 2002 congressional map was implemented by a state court because the Assembly had failed to pass a congressional redistricting plan in time. The legislature wanted a shot at drawing a map in 2003. No dice, said the Colorado Supreme Court. The assembly appealed, citing its power to as the “legislature” to determine the manner of elections under the Elections Clause.

The Court denied cert in 2004. Chief Justice Rehnquist, joined by Justices Scalia and Thomas, dissented, relying on a version of his concurring opinion in Bush v. Gore (without citing it, opting, instead, to cite McPherson v. Blacker (1892) with a “cf.” signal): “Legislature” must mean something under Article I of the Constitution, and here the institutional legislature has been cut out of the process.

I have always been curious about the failure of the Chief Justice to cite his own Bush v. Gore concurrence which was directly on point. Surely it must have occurred to him to do so and he decided not to do so because the case was so controversial at the time.

I took a look this week at the (very thin) Salazar file in the newly released papers of Justice Stevens. Nothing there directly sheds light on Rehnquist’s citation decision, but the issue was flagged by then-clerk and now California Supreme Court Justice Leondra Kruger in her memo to Justice Stevens recommending a cert denial in the case:

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Why did Justice O’Connor abandon her own Article II argument in Bush v. Gore?

Bush v. Gore reflections, electoral college

Yesterday, I looked at the draft memorandum Justice Sandra Day O’Connor circulated on December 10, 2000, ahead of the December 11 oral argument in Bush v. Gore. Her memorandum focused on Article II. By December 12, however, the per curiam opinion was released with an Equal Protection Clause argument as its basis, and her argument on Article II was left to Chief Justice William Rehnquist to make in a concurring opinion.

Why did she abandon it? We have some details from a 2004 Vanity Fair story, which essentially parrots the timeline we see from the documents released this week, but we still do not have a great answer.

Continue reading Why did Justice O’Connor abandon her own Article II argument in Bush v. Gore? →
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