AP:
A Minnesota Republican candidate’s bid to delay voting in his congressional race to February after the death of a third-party candidate was rejected Tuesday at the Supreme Court.
Justice Neil Gorsuch, who handles emergency requests from the federal appeals court that oversees Minnesota, denied the request from Tyler Kistner. As is typical when the court acts on an emergency basis, Gorsuch did not say anything in denying the request. But he also didn’t ask Kistner’s opponent to respond in writing or refer the question to the full court, suggesting it wasn’t a close question.
Also at the Star Tribune:
Four months before Legal Marijuana Now Party candidate Adam Weeks died in September, sending the pivotal Second Congressional District race into a legal tailspin, he told a close friend that he had been recruited by Republicans to draw votes away from Democrats.
In a May 20 voice-mail message provided to the Star Tribune, Weeks told a childhood friend that Republicans in the Second District approached him two weeks before the filing deadline to run for Congress in the hopes he’d “pull votes away” from incumbent DFL Rep. Angie Craig and deliver them to the “other guy,” Tyler Kistner, the Republican-endorsed candidate.
Brennan Center resource about what happens when a voter requests a mail ballot and then decides to vote in person, maybe because the mail ballot never arrived, maybe for other reasons. The piece covers the precautions election officials should take to help ensure these voters can cast ballots in-person, like having enough provisional ballots at polling locations.
South Carolina election officials must count absentee ballots that election officials had been planning on rejecting due to an alleged mismatched signature, ensuring voters will not be disenfranchised for this reason in the upcoming November election, a South Carolina district court ruled today.
United States District Court Judge Richard Mark Gergel issued an order finding a portion of South Carolina’s absentee ballot statutes to be unconstitutional. His order prohibits election officials from rejecting absentee ballots due to an alleged signature mismatch. This order will prevent legitimate absentee ballots from being thrown out in the November election due to a perceived signature mismatch based on the judgment of election officials who have no background or training in signature matching.
Helpful new report from the Stanford-MIT Healthy Elections project.
I have written this new piece for WaPo’s PostEverything. It begins:
Should we panic about Justice Brett M. Kavanaugh’s concurring opinion in the Wisconsin voting case that the Supreme Court decided Monday night? Does it mean that the Supreme Court is going to do something crazy that will hand the election to President Trump even if Joe Biden is ahead in the count?
The short answer is that an intervention by the Supreme Court to decide the presidential election is still extremely unlikely — but if the extremely unlikely happens, there’s great reason to be worried about the court’s protection of voting rights and the integrity of the vote….
Kavanaugh’s opinion advanced a controversial theory about near-absolute power of state legislatures to set rules in federal elections. It also was sloppy in talking about facts and the law, and it echoed Trump’s false talking points about the perils of voting by mail.
Let’s start with the point about legislative power, which could be key to any potential post-election dispute. Under Kavanaugh’s reading of the Constitution, which was echoed by Justice Neil M. Gorsuch in his separate opinion, state legislatures have almost absolute power to set the manner for conducting presidential and congressional elections (subject to congressional override for congressional elections).AD
Kavanaugh cited a case that came to the Supreme Court during the disputed 2000 presidential election before Bush v. Gore — Bush v. Palm Beach County Canvassing Board — as standing for the proposition that state legislatures have this power — negating the power of state courts to expand voting rights under state constitutional provisions that protect the right to vote. As law professor Justin Levitt pointed out, though, Kavanaugh was wrong: The Supreme Court in the Palm Beach case unanimously raised but did not resolve that question. Kavanaugh further embraced this theory as advanced again by then-Chief Justice William Rehnquist in Bush v. Gore itself, but that was an opinion joined only by Justices Antonin Scalia and Clarence Thomas.
This theory would matter if, say, Pennsylvania or North Carolina were having a dispute about a recount in which Biden was behind and the state was running out of time to resolve disputes over the ballots. Both states have Democratic-majority state supreme courts, which could order rules for resolving these disputes consistent with their state constitutions but against the wishes of the states’ Republican-dominated legislatures. The conservatives on the court could embrace Kavanaugh’s version of Rehnquist’s Bush v. Gore theory and say that the state court’s changes to allow a full vote count were impermissible, stopping the count.
And although the Supreme Court deadlocked 4-4 on a similar issue last week out of Pennsylvania, with Justice Amy Coney Barrett seated the court could now be 5-4 on this issue, even if Chief Justice John G. Roberts Jr. does not buy into the theory of broad legislative power endorsed by Kavanaugh and Gorsuch. There’s even a small chance the court will reconsider last week’s ruling in the Pennsylvania case now that Barrett has been confirmed.
Even putting aside the question about the power of state legislatures, there are further reasons to worry about Kavanaugh, a veteran of the Bush side in Bush v. Gore, in any future election law dispute. He is usually a careful analyst of legal issues, but this election law opinion was sloppy, much like the unsigned opinion (that I suspect he also wrote) in the RNC v. DNC case about deadlines in Wisconsin’s April primary. Aside from misstating the holding in the Palm Beach case, Kavanaugh mischaracterized an article by professor Richard Pildes about whether deadlines should be extended for receipt of ballots in light of the pandemic. And he mischaracterized how absentee ballot counting works.
Kavanaugh suggested without evidence that there would be a problem if voting results were not final on election night and results of the election could “flip” to another candidate, even though vote totals are never final on election night and require weeks to count. As a veteran of Bush v. Gore, Kavanaugh surely knows this; he may have even been involved in efforts in the weeks after the vote took place in Florida in 2000 to make sure that late-arriving military and overseas absentee ballots would be included in the state’s vote totals. The statement about vote totals this fall was unnecessary to his legal argument, and it served only to echo Trump’s false talking points about mail-in ballots.
The overall tenor of Kavanaugh’s opinion was not only dismissive of voting rights, but it also appeared to suggest that decisions to limit counting and enfranchisement are constitutionally mandated. If Barrett does not recuse from election disputes next month, there’s every reason to worry that a 5-4 court could interfere in the election to help Trump if a case that might swing the outcome gets before the court.
As ballots began pouring in by mail after Wisconsin’s April 7 primary, local election officials became increasingly perplexed over which ones to count.
A federal judge had ordered that ballots arriving as many as six days after the election should be accepted, but the U.S. Supreme Court narrowed that window, ruling that ballots should be counted only if they were postmarked by Election Day.
The trouble was that many ballots were arriving without postmarks, or the marks were unreadable. Other mail ballots were lost or delayed, threatening to disenfranchise thousands of voters. Desperate for guidance, the 1,850 municipal clerks who run Wisconsin’s elections turned to the state agency tasked with helping them: the Wisconsin Elections Commission.
Three days after the primary, the commission’s three Democrats and three Republicans wrangled over the issue for two and a half hours in a virtual meeting. The Democrats wanted all ballots received in the mail by April 8 — postmarked or not — to be accepted; the Republicans pushed to reject all ballots with missing or illegible postmarks.
“We’re going to sit here all night, 3-3, if we can’t even agree the mail takes more than a day,” said Commissioner Ann Jacobs, a Democratic appointee and lawyer, pursing her lips and shaking her head as she peered into her computer screen. “We’re not going to ever agree on whether these marks count or not — we’re wasting our time.”
Dean Knudson, a former Republican lawmaker who was chairman at the time, retorted, “Can you envision supporting any motion that would exclude any ballot?”
In the end, the commission deadlocked 3-3 not once but twice over motions to deal with the disputed ballots, leaving each of Wisconsin’s municipal clerks to decide on their own what to do. For the state’s top agency overseeing elections, such standoffs have become the norm. With the national spotlight on Wisconsin as a swing state that could sway the presidential election, the commission has become increasingly stalemated and ineffective, according to an investigation by Wisconsin Watch and ProPublica.
Although the commission has reached consensus on a handful of important issues, such as the mailing of ballot applications to voters, it increasingly stalemates along party lines. Commission members have strayed far from the apolitical approach of the panel’s predecessor board, which was considered a national model for effective election administration. Both Democratic and Republican members often take their cues from their party leaders.
NYT:
They’re well-organized, they’re well-funded, and they have a message: Return your absentee ballot, but don’t use the mail.
The Wisconsin Democratic Party and its supporters had been on a mail-voting education crusade since the coronavirus pandemic hit in March, advising people how to request, fill out and return absentee ballots.
Now, in the wake of a Supreme Court decision Monday disqualifying absentee ballots that are received by election officials after Election Day, the party has changed course, alerting voters not to put ballots in the mail but to return them to their election clerk’s office or use drop boxes.
Ariane de Vogue for CNN.
Can’t wait to dig into this new draft from Josh Douglas:
This Essay provides the first comprehensive analysis of the numerous election law cases that federal appeals courts decided in 2020. The picture is bleak. Instead of protecting the constitutional right to vote, the Supreme Court and lower federal courts unduly deferred to state legislatures in how to run the election, with little concern for the difficulties voters faced during a pandemic. In at least twenty-seven cases the Supreme Court and federal appellate courts espoused this undue deference standard. The courts did not explicitly overrule the familiar Anderson-Burdick test for the right to vote, but it applied it unfaithfully and without any rigor, failing to require states to identify the “precise interests” that their laws promote or why it was “necessary” to burden voters’ rights. This mode of analysis devalues the right to vote, the most fundamental right in our democracy. If the courts do not alter their jurisprudence, then the only solution may be robust federal legislation or a constitutional amendment that enshrines the right to vote in the U.S. Constitution and requires states to justify, with specificity, any infringements on that right.
Jeremy Herb reports for CNN.
You can find the opinion at this link.
Greg Sargent for WaPo:
President Trump is now raging at the media for the sin of covering the pandemic and urging people to change their votes to him, demonstrating fury over an unalterable reality: This election is all about his catastrophic botching of a public health crisis that is rampaging furiously at the very moment when people are already voting in record numbers.
But, now that the Senate has confirmed Amy Coney Barrett to the Supreme Court — and now that the court just issued a controversial ruling in Wisconsin that could help Trump — is it possible the court might save Trump if he’s on track to lose, as he has openly declared he wants?
It’s unlikely. A lot of things would have to line up perfectly for that to happen.
Against this backdrop, and in the aftermath of Justice Barrett’s nomination, a public poll reflected significant concern with her presiding over matters related to the presidential election. The poll, conducted by research firm SSRS on behalf of CNN, asked whether Justice Barrett “should or should not promise to recuse herself from any cases which could affect the outcome of this year’s presidential election.”
Of the respondents, 56% said that Justice Barrett should recuse herself from such matters, while 34% said she should not (10% had no opinion).
https://cdn.cnn.com/cnn/2020/images/10/07/rel12c.-.scotus,.aca.pdf (last visited October 27, 2020). While constitutional matters certainly cannot be governed by public polling, this example does offer a glimpse into a concern about the “appearance” which Justice Barrett’s presiding in the present matter entails. So do a variety of editorial and op-ed pieces published in the weeks since her nomination. See, e.g., Mario Nicolais, Barrett must recuse from 2020 election cases, shield Supreme Court from Trump corruption, USA Today, Oct. 12, 2020, https://www.usatoday.com/story/opinion/2020/10/12/barrett-protect-supreme-courtrecuse-2020-election-cases-column/5915556002/ (last visited October 27, 2020); Editorial Board, Judge Barrett must recuse herself in any election case, Newark Star-Ledger, Oct. 18, 2020, https://www.nj.com/opinion/2020/10/judge-barrett-mustrecuse-herself-in-any-election-case-editorial.html (last visited October 27, 2020);
Editorial Board, Booker is right: Barrett should recuse herself on election cases, Newark Star-Ledger, Sept. 29, 2020, https://www.nj.com/opinion/2020/09/booker-isright-barrett-should-recuse-herself-on-election-cases-editorial.html (last visited October 27, 2020); Renee Knake Jefferson,Why Amy Coney Barrett must recuse herself from election-related cases, NY Daily News, Oct. 26, 2020, https://www.nydailynews.com/opinion/ny-oped-why-amy-coney-barrett-must-recuseherself-from-election-relate-20201027-7ey4bf6b2ngd7e2sjm52pwsswestory.html#nt=pf-double%20chain~unnamed-chain-1~feeddriven%20flex%20feature~automated~sub-topic-feed0~7EY4BF6B2NGD7E2SJM52PWSSWE~1~1~2~7~art%20yes (last visited October 27, 2020).Professor Jonathan Adler of Case Western Reserve University School of Law, who does not believe Justice Barrett’s recusal is necessary, recognizes it may nonetheless be prudent, especially in light of the President’s unfortunate
comments….
Twitter blocked a post by President Donald Trump on Monday that claimed, without evidence, there were “problems and discrepancies” with mail-in ballots “all over the USA.”
“Must have final total on November 3rd,” Trump wrote at the end of his post.
Jonathan Lai for the Philadelphia Inquirer.
You can listen here.
Adam Liptak for the NYT:
The Supreme Court refused on Monday to revive a trial court ruling that would have extended Wisconsin’s deadline for receiving absentee ballots to six days after the election.
The vote was 5 to 3, with the court’s more conservative justices in the majority. As is typical, the court’s brief, unsigned order gave no reasons. But several justices filed concurring and dissenting opinions that spanned 35 pages and revealed a stark divide in their understanding of the role of the courts in protecting the right to vote during a pandemic.
The ruling was considered a victory for Republicans in a crucial swing state, which polls have shown Mr. Trump trailing in after winning by about 23,000 votes in 2016.
The Democratic Party of Wisconsin immediately announced a voter education project to alert voters that absentee ballots have to be received by 8 p.m. on Election Day, Nov. 3. “We’re dialing up a huge voter education campaign,” Ben Wikler, the state party chairman, said on Twitter. The U.S. Postal Service has recommended that voters mail their ballots by Oct. 27 to ensure that they are counted.
In August, The New York Post published an article that relied on one anonymous source, identified as a Democratic operative, who claimed that he had engaged in voter fraud for decades. The Blaze, Breitbart, Daily Caller, FoxNews.com and The Washington Examiner posted their own versions of the article. It was also promoted by Donald Trump Jr. and his brother Eric, the Trump campaign’s communications team, the “Fox & Friends” television program and Tucker Carlson’s Fox News show, according to a recent Harvard University study.
The Harvard researchers described a “propaganda feedback loop” in right-wing media. The authors of the study, published this month through the school’s Berkman Klein Center for Internet and Society, reported that popular news outlets, rather than social media platforms, were the main drivers of a disinformation campaign meant to sow doubts about the integrity of the election.
So far in October, Breitbart has published nearly 30 articles with the tag “voter fraud.” President Trump has posted links to several Breitbart articles on Twitter, including one in August in which a Republican-appointed poll challenger estimated that up to 20,000 absentee primary ballots had been improperly counted in Detroit, a city “known for voting heavily Democrat,” the article said. The Detroit News later reported that election officials in Michigan said the problems “weren’t examples of fraud and don’t call into question the integrity of the results.”
Philip Bump for WaPo.
New helpful Brennan Center resource.
Ned Foley for WaPo.
This is also worth highlighting from today’s dueling opinions.
Justice Kavanaugh:
For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day. Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.
Justice Kagan:
JUSTICE KAVANAUGH alleges that “suspicions of impropriety” will result if “absentee ballots flow in after election day and potentially flip the
results of an election.” Ante, at 7. But there are no results to “flip” until
all valid votes are counted. And nothing could be more “suspicio[us]” or
“improp[er]” than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is
to disserve the electoral process.
On a 5-3 party line vote, the Supreme Court rejected Democrats’ and voting rights groups attempts to reverse the 7th Circuit putting the brakes on a district court order that would have extended the deadline for receipt of absentee ballots postmarked by election day and received for up to six days after election day. All of the Republican-appointed Justices voted against extending the deadline; all of the Democratic-appointed Justices voted to allow the extension.
There was no majority opinion. The principal concurrence came from Justice Kavanaugh, who not only advanced a very strong notion of the Purcell principle but also argued extensively that federal courts should not be second guessing state decisions about how to balance health and voting during the pandemic. (Justice Gorsuch in a separate brief dissent made similar points about federal court authority.) But Justice Kavanaugh went even further and found that there would be no disenfranchisement, engaging in a kind of reweighing of the evidence to show that Wisconsin voters would have ample opportunity to vote by mail without the extension.
Justice Kagan wrote the sole dissent. In some ways, she echoed Justice Ginsburg’s earlier dissent in the RNC v. DNC case, which saw the risk of disenfranchisement with the failure to extend voting rules during Wisconsin’s primary. But Justice Kagan’s analysis went further, attacking the strong reading of the Purcell Principle and echoing the main point I made in my “Reining in the Purcell Principle” law review article:
At its core, Purcell tells courts to apply, not depart from, the usual rules of equity. See, e.g., Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 24 (2008) (“In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief” (internal quotation marks omitted)). And that means courts must consider all relevant factors, not just the calendar. Yes, there is a danger that an autumn injunction may confuse voters and suppress voting. But no, there is not a moratorium on the Constitution as the cold weather approaches. Remediable incursions on the right to vote can occur in September or October as well as in April or May.
The result in this case is not a surprise; in every case that Court has considered this election cycle where a federal court has extended a voting rule over state objection, the state has won (often, but not always, along a party line vote). Indeed, I was surprised that Wisconsin plaintiffs decided to take this case up. Doing so risked making more bad law, which is what this case just did.
Perhaps of greatest importance in this case, however, is not the (unsurprising) holding or party-line split but instead the fight over the issue in the Pennsylvania case: what happens when it is a state court, not a federal court, extending voting rights during the pandemic. Three of the Justices weighed in on this. Justice Kavanaugh dropped an extensive footnote, citing Bush v. Gore (!), arguing that state courts too are limited in extending voting rights even during a pandemic and even in reliance on a state constitution if a state legislature objects:
A federal court’s alteration of state election laws such as Wisconsin’s differs in some respects from a state court’s (or state agency’s) alteration of state election laws. That said, under the U. S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal
elections. Article II expressly provides that the rules for Presidential
elections are established by the States “in such Manner as the Legislature thereof may direct.” §1, cl. 2 (emphasis added). The text of Article
II means that “the clearly expressed intent of the legislature must prevail” and that a state court may not depart from the state election code enacted by the legislature. Bush v. Gore, 531 U. S. 98, 120 (2000)
(Rehnquist, C. J., concurring); see Bush v. Palm Beach County Canvassing Bd., 531 U. S. 70, 76–78 (2000) (per curiam); McPherson v. Blacker,
146 U. S. 1, 25 (1892). In a Presidential election, in other words, a state
court’s “significant departure from the legislative scheme for appointing
Presidential electors presents a federal constitutional question.” Bush v.
Gore, 531 U. S., at 113 (Rehnquist, C. J., concurring). As Chief Justice
Rehnquist explained in Bush v. Gore, the important federal judicial role
in reviewing state-court decisions about state law in a federal Presidential election “does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II.” Id., at 115.
The dissent here questions why the federal courts would have a role in
that kind of case. Post, at 11, n. 6 (opinion of KAGAN, J.). The answer to that question, as the unanimous Court stated in Bush v. Palm Beach County Canvassing Bd., and as Chief Justice Rehnquist persuasively explained in Bush v. Gore, is that the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.
Justice Kagan briefly objected to this analysis, believing this issue controlled by the recent Arizona redistricting ruling (where the Chief Justice dissented, before he had a more conservative majority for the Court):
At the same time that JUSTICE KAVANAUGH defends this stance by
decrying a “federal-judges-know-best vision of election administration,”
ante, at 10, he calls for more federal court involvement in “reviewing
state-court decisions about state [election] law,” ante, at 9, n. 1. It is hard
to know how to reconcile those two views about the federal judiciary’s
role in voting-rights cases. Contrary to JUSTICE KAVANAUGH’s attempted
explanation, neither the text of the Elections Clause nor our precedent
interpreting it leads to his inconstant approach. See Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. 787,
817–818 (2015); Smiley v. Holm, 285 U. S. 355, 372 (1932).
Chief Justice Roberts, who sided with the liberal Justices the first time this issue came up in the Pennsylvania context, just broadly stated that cases coming from federal and state courts present different issues:
In this case, as in several this Court has recently addressed, a District Court intervened in the thick of election season to enjoin enforcement of a State’s laws. Because I believe this intervention was improper, I agree with the decision of the Seventh Circuit to stay the injunction pending
appeal. I write separately to note that this case presents different issues than the applications this Court recently denied in Scarnati v. Boockvar, ante, at , and Republican Party of Pennsylvania v. Boockvar, ante, at . While the Pennsylvania applications implicated the authority of state
courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes. Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of
election rules in Pennsylvania but not Wisconsin.
What does all this mean for the pending request to expedite the cert. petition in the Pennsylvania case? It is hard to say, because in that case there are serious reliance interests based upon the earlier state ruling and there’s a serious standing question for the PA GOP requesting intervention.
[This post has been updated.]
Further update:
This is also worth highlighting from today’s dueling opinions.
Justice Kavanaugh:
For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day. Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.
Justice Kagan:
JUSTICE KAVANAUGH alleges that “suspicions of impropriety” will result if “absentee ballots flow in after election day and potentially flip the
results of an election.” Ante, at 7. But there are no results to “flip” until
all valid votes are counted. And nothing could be more “suspicio[us]” or
“improp[er]” than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is
to disserve the electoral process.
One more update:
I also think it is interesting that J. Gorsuch (and the other conservatives) did not join Kavanaugh’s concurrence. Though J. Gorsuch did say this on the independent state legislature doctrine:
The Constitution dictates a different approach to these how-much-is-enough questions. The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules. Art. I, §4, cl. 1. And the Constitution provides a second layer of protection too. If state rules need revision, Congress is free to alter them. Ibid. (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . ”). Nothing in our founding document contemplates the kind of judicial intervention that took place here, nor is there precedent for it in 230 years of this Court’s decisions.
Karl Sandstrom at Law360.
I had not been keeping an eye on this issue flagged by Brian Beutler:
This concern about challenged ballots commingling with unchallenged ballots isn’t limited to Pennsylvania, and even raises the specter of Republicans engineering situations that allow them to circumvent vote counting: by kettling absentee voters into submitting ballots in ways and at times that leaves them vulnerable to legal challenges, waiting until those ballots have been commingled with the rest, and then declaring it impossible to determine the “legitimate” winner.
Last week, the general counsel to the Florida department of state issued guidance to election officials asserting that secure ballot drop boxes must be staffed by humans at all times. Scores of thousands of ballots have already passed through drop boxes that do not meet this criterion.
Slate legal writer Mark Joseph Stern noted that though this guidance lacks support in state law, it may nevertheless form the basis of a GOP legal challenge. “Presuming supervisors ignore McVay’s guidance, Florida’s largest counties will collect a huge number of absentee ballots in a manner deemed unlawful by the Department of State,” he writes. “If Joe Biden narrowly wins the state in November, Florida’s Republican-controlled government could argue that these ballots should be thrown out because they were cast through an illegal process. That claim could give rise to litigation that might allow the federal judiciary to call election results into question and invalidate ballots.”
As in Pennsylvania, though, the biggest risk may not be that Trump and the GOP will successfully challenge some ballots. It’s that those invalid ballots will have been irretrievably commingled with unchallenged ones. Republicans wouldn’t succeed in helping Trump throw out Democratic votes; they’d succeed in making a full count impossible.
New Sidebar NYT column from Adam Liptak:
At least nine times since April, the Supreme Court has issued rulings in election disputes. Or perhaps “rulings” is too generous a word for those unsigned orders, which addressed matters as consequential as absentee voting during the pandemic in Alabama, South Carolina and Texas, and the potential disenfranchisement of hundreds of thousands of people with felony convictions in Florida.
Most of the orders, issued on what scholars call the court’s “shadow docket,” did not bother to supply even a whisper of reasoning.
“This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” said Nicholas Stephanopoulos, a law professor at Harvard. “If courts don’t have to defend their decisions, then they’re just acts of will, of power. They’re not even pretending to be legal decisions.”…
If the court is going to treat emergency applications with something like equal care, it might consider explaining what it is doing. Explaining, Judge Frank H. Easterbrook wrote in 2000, is what distinguishes judges from politicians.
“The political branches of government claim legitimacy by election, judges by reason,” he wrote. “Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat, which requires compelling justification.” Terse rulings on emergency applications are not new. But “the shadow docket has truly exploded in the last few years,” Stephen I. Vladeck, a law professor at the University of Texas, wrote on Scotusblog last week.
The Trump administration has been a major contributor to the trend, Professor Vladeck wrote, having filed 36 emergency applications in its first three and a half years. By contrast, the administrations of Presidents George W. Bush and Barack Obama filed just eight such applications over 16 years.
More recently, emergency applications in voting cases have spiked. Lower courts have struggled to make sense of the court’s orders, which are something less than precedents but nonetheless cannot be ignored by responsible judges….
The passage in the Purcell ruling that has been boiled down to the shadow doctrine of a near-categorical bar on late-breaking adjustments to state election procedures by federal courts was three sentences long. It was not at all clear, but it suggested that judges should balance competing interests and use judgment.
“Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or non-issuance of an injunction, considerations specific to election cases and its own institutional procedures,” the unsigned opinion said. “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”
In an influential 2016 law review article, Richard L. Hasen, a law professor at the University of California, Irvine, coined a phrase for the way the passage has been caricatured, calling it “the Purcell principle.”…
Professor Stephanopoulos said the Purcell order did not support the Purcell principle. “It’s weird and indefensible to make Purcell a categorical rule against late-breaking judicial intervention,” he said. “No one can read Purcell itself and think it created the doctrine that it now has been transformed into by the Supreme Court.”
In his article, Professor Hasen proposed a partial solution: The court should give reasons for its election rulings. If time is very short, he wrote, the justices can rule first and supply their reasoning later. (Last year, in a death penalty case, five justices explained their thinking six weeks after the court granted a stay of execution.)
Professor Hasen gave three reasons for giving reasons.
“Reasons will help lower courts use the right standards in election cases, rather than having to try to read tea leaves from unexplained court orders,” he wrote. They will “bolster the legitimacy of the court in the eyes of the public, something especially important in controversial cases, such as election cases.” And they “may also discipline justices into deciding similar cases alike, regardless of the identity of the parties.”
NYT Mag on the record-setting absentee ballot printing required for our pandemic election.
WaPo:
We will probably get earlier results in states with two key traits: voters who have widely embraced early in-person or mail voting, and rules that let officials process and count mail ballots before Election Day. Arizona, Florida and North Carolina could provide information quickly, experts say, while states including Pennsylvania and Michigan could lag behind.
Coronavirus cases are rising again in Texas, but most voters fearful of infection are not allowed to cast ballots by mail. For the limited number who qualify with a separate excuse, Republican Gov. Greg Abbott restricted drop-off locations to one per county. And when the Democratic stronghold of Harris County took steps to make voting easier, GOP leaders sued local officials.
Texas is one of five red states that emerged as conspicuous holdouts this year as the rest of the country rushed to loosen voting rules because of the coronavirus pandemic. Most of the roughly 30 million registered voters who live there, and in Indiana, Louisiana, Mississippi and Tennessee have no choice but to cast ballots in person this fall, even as the rate of coronavirus in the United States approaches its third peak.
The situation underscores how the nation’s decentralized election systems and Republican opposition to mail voting this year are translating into vastly different voting experiences for Americans, depending on where they live. Legal challenges to the voting limits have foundered in some courts, rejected by a federal judiciary that has shifted rightward under President Trump.
Over the weekend, I posted Understanding the Pennsylvania GOP Hail Mary Fighting the Extended Deadline for Receipt of Mailed Ballots, and the Awful Pressure that the GOP’s Petition Could Put on Soon-to-Be Justice Barrett. which begins:
The Pennsylvania GOP has gone back to the U.S. Supreme Court and the state supreme court in an effort to renew its objection to the counting of mail-in ballots that arrive after 8 pm on Election night (as set forth in the state statute) to include all ballots arriving within three days of election day postmarked by election day or without a legible postmark. This comes just a few days after the Supreme Court deadlocked on the question thereby leaving the deadline in place. The GOP’s play is unlikely to work, first, because the chances are still small that the election would come down not only to Pennsylvania but to these later arriving ballots; and second, because of the reliance interests created by the Supreme Court’s earlier failure to reverse the extension. If it does come down to all that, the request to expedite the cert. petition would put Judge Amy Coney Barrett, soon to be the ninth Justice, in an awful position, perhaps increasing the chances she will recuse in the litigation.
An ELB reader writes in to note that it appears so far that only the PA Republican Party has filed a cert petition and request to expedite, and not the state legislature or Republican state legislative leaders (who had filed a request for a stay earlier that was denied on a 4-4 vote). Hard to see how the Republican Party has standing to raise the question related to the Legislature’s Article II powers. (They’d have a better shot at standing on their election day timing argument, but that one is very weak on the merits.)
This is a must-read.
Voters interviewed by POLITICO said anger over perceived voter suppression tactics is fueling their eagerness to cast early ballots. And indeed, Georgians are voting in numbers never seen before in the state’s history. Since Oct. 12, the first day of early voting, a staggering 2.7 million voters have cast a ballot — a nearly 110 percent increase from 2016. Beyond that, Democrats are organizing caravans, volunteering as election workers and serving as poll watchers. This level of enthusiasm is also a reflection of apprehension about the election: Voters here are turning out in waves.
A lawyer for Republican congressional candidates Sean Parnell and Luke Negron said an agreement has been reached over nearly 29,000 incorrect mail-in ballots sent to Allegheny County voters.
The Republican candidates and the Allegheny County Board of Elections agreed on a process for handling the wrong ballots, including a detailed plan to ensure every vote is properly counted.
California’s mass-mail voting experience is tilting decidedly Democratic.
Three weeks after every registered, active voter in America’s most populous state was mailed a ballot, liberal Californians are proving far more eager to return ballots than conservatives. That trend inverts voting patterns of years past — and could create opportunity for liberal campaigns while increasing turnout burdens for Republican-reliant ones.
Veteran strategists suggest that President Donald Trump’s frequent attempts to cast aspersions on California’s mail-balloting system may have backfired on his own party’s candidates by deterring Republicans from participating early. That could force GOP voters to wait in longer lines if they insist on voting at California’s fewer in-person precincts this year.
Republicans have installed their own ballot boxes in some congressional battleground districts, potentially as a way to encourage their skeptical voters to participate early. The move, which has drawn legal action from Democratic state officials, is the latest sign that Republicans have their turnout work cut out for them.
“When your campaign is reaching out to voters who have voted early in five of the last five campaigns but now won’t because they think it’s rigged, that’s a problem,” said Paul Mitchell, vice president of Political Data Inc., a leading firm that tracks voter information. “It’s a resource suck.”
From the WSJ, which is closely tracking this issue:
That puts critical votes at risk in an election that, more than any before, will hang on mail-in ballots. To find choke points for those ballots, the Journal is tracking millions of letters traveling across the U.S. in near real time….
Of the 29 states that require mail-in ballots to arrive on or before election day, 28 have since late July seen periods of average delivery times exceeding six days, the Journal analysis found. Among them are battleground states like Florida, Arizona, Wisconsin and Georgia….
“It’s really hectic right now, crazy busy—there’s just a lot of ballots,” said Michael Moriconi, president of the Tucson, Ariz. branch of the American Postal Workers Union. “We don’t have enough people.” The APWU’s national executive board endorsed Joe Biden in June.
The fact that the New Hampshire Union Leader is endorsing Biden has made big news, understandably enough given that it’s the first time in more than 100 years the Union Leader has endorsed a Democrat for President. Here’s what the asterisk in its header says:
While Joe Biden is the clear choice for president, it would be a disservice to the country to send him to the White House without a backstop. We suggest splitting the ballot and electing a healthy dose of GOP senators and representatives. The best governance often comes through compromise. The civility of the Biden administration will help foster such compromise, but a blue wave would be nearly as disastrous for this country as four more years of Trump. It would result in a quagmire of big government programs that will take decades to overcome.
This made me wonder how much split ticketing voting we’ll see this year. Polling data suggests only about 4% of voters say they plan to split their vote for President and Senate or House between the major parties — in line with the decline in split ticketing voting as politics has become more polarized.