President Donald Trump, in social media posts and remarks, is demanding that all ballots be counted by election night, even though federal law permits states to count ballots from troops stationed outside the United States, diplomats and other Americans abroad to have their ballots counted days later, as long as they were sent no later than Election Day.
In Trump’s new home state of Florida, the deadline for this election is Nov. 13. So, for example, his attempt to skew the counting in his favor could prevent service members deployed overseas from the Naval Air Station in Jacksonville or from Southern Command headquarters in Doral from having their votes matter.
There’s been much talk about what kinds of claims might be brought post-election if the election is close that could allow Trump to try to stop or delay counting, or otherwise seek to mess with the election. In this post, I want to talk about a key issue about timing that could mean many such gambits come too late under the doctrine of “laches.” Laches is a remedial defense that says that when there is unreasonable delay and it prejudices the other party, then the claim comes too late. (Unlike the Purcell principle, which is aimed at when courts make election changes close to the election, laches is about when plaintiffs in court wait too long to sue.)
The bottom line is that if you think there is a problem with how an election is being run, you need to go to court at that point to sue about it; you can’t wait to see how the election turns out and then do it. Here’s how I explained the point in a 2005 law review article, Beyond the Margin of Litigation:
Allowing more pre-election review is not a recipe for more overall election
litigation. Courts should make clear that a willingness to reach issues before
the election will be accompanied by a strict application of laches after the
election. “[L]aches is unreasonable delay by the plaintiff in prosecuting a claim or protecting a right of which the plaintiff knew or should have known, and under circumstances causing prejudice to the defendant.” But it is subject to some exceptions, including an exception that prevents its application ‘to defeat the public interest. This exception threatens to swallow the rule in election law litigation, because the public has an interest that election law disputes get their day in court.Courts should see it as in the public interest in election law cases to aggressively apply laches so as to prevent litigants from securing options over election administration problems. This rule will promote the public interest by insuring public confidence in the election process.
We saw this today in the Minnesota Supreme Court’s response to a late GOP attempt in Minnesota to try to get a reopening of a consent decree, potentially trying to take advantage of an independent state legislature argument should the election go into overtime:
To be clear, a laches argument would not help in Pennsylvania as to the late counted ballots; Republicans there tried early on to get a stay from the Supreme Court. And it does not and should not apply to problems that crop up at the last minute (such as seeking a court order for a problem that unexpectedly materializes on election day).
But an attempt to try to complain about ballot deadlines or other longstanding problems for the first time now or after the election should be seen as coming too late.
Jonathan Lai for the Philly Inquirer:
Officials across Pennsylvania are trying to help voters fix mail ballots that would otherwise be disqualified because of technical mistakes in completing them, creating a patchwork of policies around how — or even whether — people are notified and given a chance to make their votes count.
Some counties are marking those ballots as received, the same as any other ballot, which gives voters no indication there’s a problem. Some are marking them as canceled, as the state says to do, which sends voters warning emails and updates the online ballot status tool, but doesn’t notify voters without email addresses on file.
Still others try to reach voters directly, including by mail, phone, or email — and at least one county mails the actual flawed ballots back to voters.
The Pennsylvania Department of State, which oversees elections, provided some direction Sunday, telling counties to mark ballots as canceled if they have clear flaws, such as missing voters’ signatures, or are “naked ballots” without the required inner secrecy envelopes. Those ballots have to be rejected when votes are counted beginning on Election Day.
But the state left it to counties to decide how aggressive to be in trying to contact voters to help them fix their ballots — or “cure” them, in election jargon. And some counties aren’t planning to follow the state’s instructions. Officials in Montgomery and Centre Counties, for example, won’t cancel flawed ballots because they want voters to be able to fix them. Allegheny County mails flawed ballots right back to voters, never canceling them nor marking them in the system at all.
The state also fumbled how canceled ballots are handled in the system, which initially led to voters receiving emails with inaccurate information.
Potentially thousands of mail ballots requested by Butler County voters appear to be lost, a county official said Wednesday, and the U.S. Postal Service has been asked to immediately investigate what happened to them.
A USPS spokesperson, meanwhile, said the agency is “unaware of any significant delays or issues and is in regular contact with the Board of Election as we work to locate and deliver ballots as they are presented to us.”
As of Tuesday, Pennsylvania voters are no longer able to apply for an absentee or mail-in ballot.
Nearly 40,000 registered voters in the county requested mail ballots. So far, only 24% of them have been returned to the county, by far the lowest rate among the state’s 67 counties. The county with the next-lowest return rate, Fayette, has received 50% of requested ballots.
“At first we thought that maybe it just was a delay in the postal system” due to high volume, Leslie Osche, chair of the Butler County commissioners, told Post-Gazette news partner KDKA-TV. “And that could still be the case. But nonetheless, when we realized that, we changed our strategy and now have begun to tell folks that if they haven’t received a ballot, they still have multiple options.”
But this week, county call centers and email addresses set up to handle elections issues were flooded with messages. By Tuesday morning, officials abandoned any hope that the ballots would arrive and launched plans to get new ballots out to voters, Osche said.
NYT:
Election officials across the country are already stretched thin this year, dealing with a record number of mail-in ballots and other effects of the coronavirus pandemic. On top of that, many are battling another scourge: misinformation.
Fueled by inaccurate comments from Mr. Trump and others, election lies have spread across social media. They include claims that Black Lives Matter protesters incited violence at polling places, that mail-in ballots were dumped, that ballot boxes and voting machines were compromised, and that ballots were “harvested,” or collected and dropped off in bulk by unauthorized people.
Election officials in places such as Philadelphia, El Paso and Santa Rosa, Calif., are bearing the brunt of the fallout, according to interviews with a dozen of them in seven states. Some have had to contain misinformation-induced voter panic. Others are fighting back by posting accurate information on social media or giving newspaper and television interviews to spread their messages. Many are working longer shifts to debunk the distortions.
But their efforts have largely been fruitless, they said. When one rumor is smacked down, another pops up. And the reach of the rumors online is often so vast that the officials said they could not hope to compete.
NYT, with the subhed: “The Biden campaign, according to advisers, is concerned over possible perception of foreign meddling in the election — or any comparison to Russian interference on President Trump’s behalf in 2016.”
None of these attacks amounted to much. But from the sprawling war room at United States Cyber Command to those monitoring the election at Facebook, Twitter, Google and Microsoft, experts are watching closely for more “perception hacks.” Those are smaller attacks that can be easily exaggerated into something bigger and potentially seized upon as evidence that the whole voting process is “rigged,” as President Trump has claimed it will be.
The phrase comes up every time Christopher Krebs, the Department of Homeland Security official responsible for making sure voting systems are secure, talks about the biggest vulnerabilities in this election. His worry is not a vast attack but a series of smaller ones, perhaps concentrated in swing states, whose effect is more psychological than real.
Perception hacks are just one of a range of issues occupying election officials and cybersecurity experts in the final days of voting — and their concerns will not end on Election Day.
One theory gaining ground inside American intelligence agencies is that the Russians, having made the point that they remain inside key American systems despite bolstered defenses and new offensive operations by Cyber Command, may sit out the next week — until it is clear whether the vote is close.
The Russian play, under this theory, would be to fan the flames of state-by-state election battles, generating or amplifying claims of fraud that would further undermine American confidence in the integrity of the election process.
The Iranians would continue their playbook, which American intelligence officials see as more akin to vandalism than serious hacking, filled with threats in mangled English.
But American experts have warned local officials that come Nov. 3 the Iranians may seek to paralyze or deface the websites of secretaries of state, affecting the reporting of results, and create the impression of being inside the voting infrastructure even if they never were and the election results have not been compromised.
Here is a look at some of the potential threats and what has been learned so far in a year of behind-the-scenes cyberbattles.
Greg Sargent interview:
Pennsylvania officials tried to preempt this by announcing that they will segregate all late-arriving ballots. The idea is to prevent Republicans from challenging those ballots and then using that to challenge all mail ballots, by claiming they’ve all been commingled and can’t be separated from one another, requiring a halt to the count until the legal dispute over the late ballots is resolved.
“A careful decision was made to try to stave off the anticipated legal challenges by Donald Trump and his enablers,” Shapiro told me, though he declined to comment on how their strategy might unfold.
There are many reasons to doubt such a scheme could succeed. But the Supreme Court hasn’t given us grounds for assuming there’s nothing to worry about.
Here’s why.
The playbook that Republicans could put to use in Pennsylvania this year was partially developed in 2000, in the aftermath of the Presidential race between George W. Bush and Al Gore. That year, the election was close, and the contest came down to Florida, where the candidates were separated by only a few hundred votes. After the initial count, a swarm of attorneys and poll watchers descended on the state to catalogue small mishaps that might serve as grounds to challenge the results. Most notably, they found that some voters had failed to fully perforate their punch-card ballots, creating what came to be known as “hanging chads.” Legal disputes about whether to continue tallying ballots, and which to count, wound their way to the Supreme Court, which eventually halted further recounts, leaving Bush in the lead. Gore conceded on December 13, 2000. But, even if the Supreme Court hadn’t intervened, Gore still might have lost the state. In Tallahassee, the Republican legislature had already begun the process of choosing a set of Republican electors who were going to vote for Bush regardless. This year, Wisconsin, North Carolina, and Michigan all have conditions that would allow for such an eventuality. (G.O.P. lawmakers around the country have denied any such plans. Andrew Hitt, the G.O.P. chair in Wisconsin, recently said that he’d heard of “no such discussion.”) But Pennsylvania seems most vulnerable. “Harrisburg in 2020 could be Tallahassee in 2000,” Ari Mittleman, a political analyst with Keep Our Republic, told me.
WaPo:
Election officials said many of the outstanding mail ballots may belong to voters who requested them early in the process, then changed their minds and decided to vote in person — although it’s impossible to determine how many.
A computer hacker who took over networks maintained by Hall County, Ga., escalated demands this week by publicly releasing election-related files after a ransom wasn’t paid, heightening concerns about the security of voting from cyberattacks.
A website maintained by the hacker lists Hall County along with other hacked entities as those whose “time to pay is over,” according to a Wall Street Journal review of the hacker’s website.
The Hall County files are labeled as “example files,” which typically are nonsensitive and used to encourage payment before a possible bigger rollout of often more-compromising information.
The release of some of Hall County files came Tuesday, one week before the 2020 presidential election, in which election security has been a major focus. Recent polls show the race has tightened in Georgia, which was last won by a Democrat in 1992, and former Vice President Joe Biden, the Democratic nominee, made a campaign appearance there Tuesday.
The Journal’s review of the hacked county files, which include administrative documents and election information, found named individuals with provisional ballots that were flagged for their signatures not matching; voter names and registration numbers; and an election-equipment inventory. Some information was public; some, such as a voter’s Social Security number, are private.
President Trump’s campaign in the crucial battleground of Pennsylvania is pursuing a three-pronged strategy that would effectively suppress mail-in votes in the state, moving to stop the processing of absentee votes before Election Day, pushing to limit how late mail-in ballots can be accepted and intimidating Pennsylvanians trying to vote early.
Election officials and Democrats in Pennsylvania say that the Trump effort is now in full swing after a monthslong push by the president’s campaign and Republican allies to undermine faith in the electoral process in a state seen as one of the election’s most pivotal, where Mr. Trump trails Joseph R. Biden Jr. by about six percentage points, according to The Upshot’s polling average.
Mail-in votes in Pennsylvania and other swing states are expected to skew heavily toward Democrats. The state is one of a handful in which, by law, mail-in votes cannot be counted until Election Day, and the Trump campaign has leaned on Republican allies who control the Legislature to prevent state election officials from bending those rules to accommodate a pandemic-driven avalanche of absentee ballots, as many other states have already done.
At the same time, the campaign has pushed litigation to curtail how late mail-in votes can be accepted, as part of a flurry of lawsuits in local, state and federal courts challenging myriad voting rules and procedures. On Wednesday evening, the Supreme Court refused to hear a fast-tracked plea from Pennsylvania Republicans to block a three-day extension of the deadline for receiving absentee ballots. But Kathy Boockvar, a Democrat who is Pennsylvania’s secretary of state, advised counties to segregate ballots received after 8 p.m. on Election Day, as the issue remains before the court….
The intensity of the Trump campaign’s efforts in Philadelphia stems in part from the man running its Election Day operations nationwide: Michael Roman, a native Philadelphian who cut his teeth in city politics before running a domestic intelligence-gathering operation for the conservative Koch brothers. Like his boss, Mr. Roman has persistently made public statements undermining confidence in the electoral process.
A Florida judge who heads Duval County’s vote-counting board has donated repeatedly to President Trump’s re-election campaign and other Republican efforts, and his home is covered in signs supporting Trump, despite rules requiring judges like him refrain from donations or public support.
Duval County senior Judge Brent Shore has served as chairman of the canvassing board because of his role as a county judge.
Yet Florida judicial rules bar judges from political donations of any kind.
And canvassing board rules bar members from “displaying a candidate’s campaign signs.”
Senior county Judge Brent Shore, who has refused to change rules barring the public from photographing or videotaping vote-counting meetings, first donated $20 in 2016 to Donald Trump’s initial campaign for president. He has donated 11 more times since then to Trump for a total of $170, as well as donating $178 in the last two years to the Republican National Committee, the National Republican Congressional Committee and the National Republican Senatorial Committee….
Shore also may have violated the rules for canvassing board members. Canvassing boards, which right now have been counting mail ballots prior to Election Day, are three-person boards with a county commissioner, an elections supervisor and led by a county judge. They are banned from “actively participating” in campaigns or supporting candidacies.
The Division of Elections has said while campaign donations don’t count as active participation, “displaying a candidate’s campaign signs” would disqualify someone from serving on a canvassing board.
If Shore doesn’t resign, another Division of Elections opinion said, removing him from the board “might ultimately require judicial resolution” through a lawsuit.
Adam Liptak with a cogent recap of yesterday’s action.
You can find my analyses from yesterday of the PA and NC rulings.
Donald Trump won the presidency with 46 percent of the popular vote. His approval rating, according to Gallup, has never hit 50 percent. He remains under 50 percent in national polling averages.
The president’s inability to capture a majority of support sheds light on his extraordinary attempts to limit the number of votes cast across the battleground state map — a massive campaign-within-a-campaign to maximize Trump’s chances of winning a contest in which he’s all but certain to earn less than 50 percent of the vote.
In Philadelphia, his campaign is videotaping voters as they return ballots. In Nevada, it’s suing to force elections officials in Nevada’s Democratic-heavy Clark County to more rigorously examine ballot signatures for discrepancies that could disqualify them. The Trump campaign has sued to prevent the expanded use of ballot drop boxes in Ohio, sought to shoot down an attempt to expand absentee ballot access in New Hampshire and tried to intervene against a lawsuit brought by members of the Navajo Nation in Arizona which sought to allow ballots received from reservations after Election Day because of mail delays. And that’s just a few of its efforts.
Never before in modern presidential politics has a candidate been so reliant on wide-scale efforts to depress the vote as Trump.
“What we have seen this year which is completely unprecedented … is a concerted national Republican effort across the country in every one of the states that has had a legal battle to make it harder for citizens to vote,” said Trevor Potter, a former chair of the Federal Election Commission who served as general counsel to Republican John McCain’s two presidential campaigns. “There just has been this unrelenting Republican attack on making it easier to vote.”…
Courts have been resistant to Republicans’ claims about voter fraud in cases to restrict voting, if not outright rejecting them. But Republicans have found victories in rolling back Democratic-initiated changes on two principles: That federal courts should not change election laws close to the election — also known as the Purcell Principle — and, increasingly, that the judiciary should defer to state legislatures.
Most recently, the U.S. Supreme Court declined to reinstate a lower court’s order that extended the ballot return deadline in the battleground state of Wisconsin, meaning ballots would be due by Election Day.
Rick Hasen, an election law expert at University of California Irvine School of Law, said “trying to make voting harder during a pandemic is pretty tough to justify,” suggesting instead that “the Trump wing of the party thinks keeping the electorate smaller helps Trump.”
New NBER working paper from Michael Geruso and Dean Spears:
Extremely narrow election outcomes—such as could be reversed by rejecting a few thousand ballots—are likely to trigger dispute over the results. Narrow vote tallies may generate recounts and litigation; they may be resolved by courts or elections administrators (e.g., Secretaries of State disqualifying ballots) rather than by voters; and they may reduce the peacefulness, perceived legitimacy, or predictability of the transfer of political power. In this paper we evaluate the probability of such disputable US presidential elections under a hypothetical National Popular Vote versus the current Electoral College system. Starting from probabilistic simulations of likely presidential election outcomes that are similar to the output from election forecasting models, we calculate the likelihood of disputable, narrow outcomes under the Electoral College. The probability that the Electoral College is decided by 20,000 ballots or fewer in a single, pivotal state is greater than 1-in-10. Although it is possible in principle for either system to generate more risk of a disputable election outcome, in practice the Electoral College today is about 40 times as likely as a National Popular Vote to generate scenarios in which a small number of ballots in a pivotal voting unit determines the Presidency. This disputed-election risk is asymmetric across political parties. It is about twice as likely that a Democrat’s (rather than Republican’s) Electoral College victory in a close election could be overturned by a judicial decision affecting less than 1,000, 5,000, or 10,000 ballots in a single, pivotal state.
The Minneapolis police union put out a call this week for retired officers to help serve as “eyes and ears” at polling sites in “problem” areas across the city on Election Day, at the request of an attorney for President Donald Trump’s re-election campaign.
The request was made by William Willingham, whose e-mail signature identifies him as a senior legal adviser and director of Election Day operations for the Trump campaign.
In an e-mail Wednesday morning to Minneapolis Police Federation President Lt. Bob Kroll, Willingham asked the union president about recruiting 20 to 30 former officers to serve as “poll challengers” to work either a four- or eight-hour shift in a “problem area.”
“Poll Challengers do not ‘stop’ people, per se, but act as our eyes and ears in the field and call our hotline to document fraud,” the e-mail read. “We don’t necessarily want our Poll Challengers to look intimidating, they cannot carry a weapon in the polls due to state law. … We just want people who won’t be afraid in rough neighborhoods or intimidating situations.”
Via email:
Over at the State of Elections blog, on which William & Mary Law students cover state election law topics, Catrina Curtis ’22 writes about Mississippi mask requirements at polling places. It opens, “Mississippi finds itself in an odd position going into this important Election Day amidst the COVID-19 pandemic: it is the only state to have allowed its statewide mask mandate to expire and the only state that is not offering early or mail-in voting for all of its citizens.” The full post (and many others) available here.
SF Chronicle: “The U.S. Postal Service said Wednesday that the Yes on 22 campaign can continue to use nonprofit postal rates, which are cheaper.” My earlier coverage (including my dispute with the Chronicle about updating my quote) is here. The new piece notes my updated quote.
You can find the Court’s order, along with Justice Gorsuch’s dissent, at this link. Justice Alito joined Gorsuch’s dissent; Justice Thomas noted his disagreement with the majority but did not sign the dissent. Justice Barrett again did not participate.
The Gorsuch dissent primarily argues that a North Carolina election board settlement approved by a state court usurped the power of the state legislature, although he also analogizes the holding to the one in the Wisconsin case, which involved a federal court and totally different issues (i.e., the power of a federal court, close to the election, to alter election rules to protect constitutional rights). Justice Gorsuch seems to be trying to move the Purcell principle to apply to state agency actions, and that would be an even bigger problem than applying it to federal court decisions.
There are a few reasons to explain why this position did not attract the votes of CJ Roberts or J. Kavanaugh. First, the issue is messier; to some extent the legislature delegated the power to the state agency to enter into settlements. There’s also the timing and reliance issue; many, many voters have already made their voting plans dependent on the deadlines announced in the settlement, and now we are just days away from the election and there would be no other recourse for some of those voters to vote.
Unlike Justice Alito’s statement in today’s Pennsylvania ruling, Justice Gorsuch’s statement does not talk about any post-election action or any segregation of ballots. But segregation of those late arriving ballots might still make sense, for reasons I explained here in the context of Pennsylvania: it would make it harder for the NC General Assembly to declare the election somehow void and try to get around with the appointment of separate presidential electors.
UPDATE: A few people have pointed out to me that it is possible that this was a 4-4 vote, as it would take 5 to grant the injunction, and J. Kavanaugh (or another Justice) did not note his (or her) dissent. Possible.
[This post has been updated.]
President Trump on Wednesday announced his intent to nominate Sean Cooksey and Shana Broussard to serve as members of the Federal Election Commission (FEC).
The potential nominations come four months after Republican FEC Commissioner Caroline Hunter resigned, leaving the agency without a necessary quorum of at least four commissioners, thereby barring the FEC from voting on enforcement actions in the months leading up to the presidential election.
Cooksey currently serves as general counsel to Sen. Josh Hawley (R-Mo.), previously having served as Hawley’s lead staffer on the Senate Judiciary Committee. Cooksey also previously served as deputy chief counsel for Sen. Ted Cruz (R-Texas), has worked as a litigation associate at Washington, D.C., law firm Gibson, Dunn and Crutcher, and served as a law clerk for Judge Jerry Smith of the U.S. Court of Appeals for the 5th Circuit.
Broussard currently serves as counsel to FEC Vice Chair Steven Walter, an independent. Broussard previously served as an attorney-adviser at the Internal Revenue Service and as deputy disciplinary counsel at the Louisiana Attorney Disciplinary Board, along with previously serving as a New Orleans assistant district attorney.
Broussard, if confirmed, would be the first Black FEC commissioner.
Director of National Intelligence John Ratcliffe went off script when he alleged during a press conference last week that Iran was sending intimidating emails to Americans in order to “damage President Trump,” according to two senior administration officials with knowledge of the episode.
The reference to Trump was not in Ratcliffe’s prepared remarks about the foreign election interference, as shown to and signed off by FBI Director Chris Wray and senior DHS official Chris Krebs, the director of the department’s Cybersecurity and Infrastructure Agency.
Wray and Krebs stood behind Ratcliffe as he addressed the public, supportive of the general intention to alert voters to a malicious influence operation. But they were surprised by Ractliffe’s political aside, which had not appeared in the prepared text, the officials said.
The press conference centered around menacing emails that had been sent to Democratic voters warning them to vote for Trump “or we will come after you.”
Ratcliffe attributed the emails to Iran but said they were “designed to intimidate voters, incite social unrest, and damage President Trump,” raising immediate questions about how threatening Democrats to vote for Trump could be aimed at damaging the president’s re-election bid — and how the intelligence community had made that determination within 24 hours of the messages.
Ractliffe also contrasted Iran’s actions with those of Russia, adding, “although we have not seen the same actions from Russia, we are aware that they have obtained some voter information just as they did in 2016.”
This Politico piece answered some important questions (such as whether there was evidence Iran was helping Trump (no) and why this press conference was done so quickly (so as not to overlap with a Trump rally!).) But it doesn’t answer a key question I still have: why did the press conference not mention the Russian probing of state voter registration databases which was described by election officials the next day in the NY Times?
No time for a full analysis, but this one is very strange.
The Supreme Court (with Justice Barrett not participating) has refused to expedite consideration of the cert. petition in the Pennsylvania voting case. Justices Alito, Gorsuch, and Thomas issued a separate statement saying that time was too late to review things now, but strongly stating a belief that counting the later ballots would be unconstitutional and that there could well be review after the election of the consideration of these ballots.
The result is not surprising, nor is the lineup. Indeed I predicted that Chief Justice Roberts and Justice Kavanaugh would not go along with an attempt to relitigate this issue given the very strong reliance arguments (coming from the Court’s earlier refusal to grant a stay) and the likely lack of standing of the PA GOP which brought this latest request (without the GOP legislature).
The big headline out of this decision is the very strong version of the “independent state legislature” doctrine that appears in the separate Alito statement: “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”
To translate this a bit: there are now at least four Justices (if you count Justice Kavanaugh’s views on the merits of this expressed in this week’s Wisconsin case) who believe that when a state Supreme Court applies a state constitution’s protection for voting rights and does so in a way that alters a statute done by the legislature, that act is presumptively illegitimate. That is going to have some very bad ramifications for voting rights going forward and also raises questions about whether states will be able to pass redistricting and other reforms by voter initiative going forward. (Reaching initiatives would require overturning the 2015 Arizona case, but that seems to be well within the realm of future possibilities.)
But what does this mean for a future challenge in the Pennsylvania case and other potential 2020-election related litigation? First, I continue to believe, as I’ve been saying, that given the reliance interests whereby PA voters knew from a few weeks ago that the Supreme Court was not changing the deadline, it’s too late to give a different remedy now. PA voters simply cannot return their ballots in time under the old deadlines and even TODAY the PA website is telling voters to mail their ballots by election day.
Without Roberts and Kavanaugh going along, even if Justice Barrett participated in future cases there would not be 5 Justices to throw out those ballots. It is still a theoretical possibility however, especially with ballots now being segregated between those arriving by the original statutory deadline and later ballots. Hopefully the election will not be close enough in either PA or the electoral college and the issue becomes moot in this election.
But if the issue of the power of state legislatures against state courts comes up again in the 2020 election cycle, and if Justice Barrett participates, then there could well be a different result. As I explained yesterday in the Washington Post:
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 new 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.
And what to make of Justice Barrett sitting this one out? Did she simply decide there was not enough time to get up to speed on this (a perfectly reasonable conclusion given when she joined the Court!) or is she going to recuse in all 2020-election related litigation? There is no way to know yet.
[This post has been updated.]
Further update. From the Public Information Office statement: “Justice Barrett did not participate in the consideration of this motion because of the need for a prompt resolution of it and because she has not had time to fully review the parties’ filings.”
Eric Bjornlund for Foreign Policy:
As the co-founder and president of Democracy International, I now see the United States exhibiting many of the same kinds of problems with elections that we in the international election monitoring community have long criticized in countries where democracy is less established. In genuine, established democracies, political competitors generally do not attack the rules or the fairness of the process, accuse the opposing candidate or the election authorities of cheating, intimidate voters, or threaten them with violence. In less than fully democratic countries, on the other hand, complaints about fraud and fairness are routine, and violence—or the threat of it—is often involved. This tends to undermine public confidence in the elections and in democracy itself.
In the struggling democracies and autocracies where I have observed elections, much of the argument is about the integrity of the rules and process. Losing candidates routinely attack the fairness of the electoral process, whether or not they have a basis for their attacks. In fact, you can tell that a country is not (or not yet) a successful democracy when the losers of its elections blame fraud for their loss and attack the legitimacy of the process.
Kevin Johnson for The Fulcrum.
Stephen Griffin at Balkinization.
As ELB readers well know, the Pennsylvania GOP has gone back to the Supreme Court seeking to reverse a state supreme court order which extended the deadline for receipt of absentee ballots from 8 pm on Election day until 5 pm on Nov 6 (3 days later). The first attempt to get this order failed with the Supreme Court deadlocked 4-4 on the question. This new second bite at the apple via a request to expedite a cert. petition and consideration of the case is currently pending before the Supreme Court. No doubt the petition was filed because the Court now has a new ninth Justice.
In the PA GOP’s most recent filing, the party indicated they’d be moving separately for an order to segregate ballots received after election day so that if a court later holds that the PA Supreme Court order was wrong, they should not be counted. But the GOP no longer needs to move for that. This letter indicates that the state is ordering those ballots separated.
Why would Democratic state officials do this? The most logical answer I can think of is that they want to prevent a situation where the later ballots are commingled with the earlier ballots, and in response the Republican state legislature says that the election was fundamentally unfair and the legislature tries to appoint its own state of electors by claiming that the state “failed to make a choice” for president under the Electoral Count Act. the logic is that it is far better to take that potential argument away than to allow those additional ballots to be counted in the event they are found to be illegally accepted.
I continue to think that the Court is unlikely to grant expedited consideration of the case on this question on both reliance and standing grounds, even if new Justice Barrett would agree on the merits in the abstract of the Article II challenge. Here’s what I wrote about the reliance question, with the point even clearer as we are six days from the election:
We are now just 9 days away from the election. The GOP’s motion to expedite in the Supreme Court suggests that briefing in the case be put on a lightning docket and end on October 28. That suggests a Supreme Court order no earlier than October 29, which is 5 days before election day. By then, millions of voters in Pennsylvania would have heard about the new deadline of a postmark by election day rather than receipt by that day.
The reliance interests of voters at that point would be tremendous; think of the Purcell Principle on steroids if the U.S. Supreme Court announces a rule change just a few days before the election about the deadline for the election, and doing so after the Supreme Court had a full opportunity to block the late receipt of ballots and failing to do so. How would word get out to Pa. voters who heard about the extension with enough time to mail the ballots to arrive by election day, especially with a postal service that says you need to give at least a week for mailing right now?
We’ve had a similar reliance situation to this in the recent South Carolina case. The Supreme Court held that the district court was wrong to eliminate the witness signature requirement for absentee ballots in the state, BUT it held that any ballots already returned without the signature and arriving within two days of the courts order without the witness signature should still be accepted. The reason for such a grandfathering in of the ballots is the reliance interest of voters on valid court orders. In that South Carolina case, only three Justices—Alito, Gorsuch, and Thomas—would have thrown out those ballots and made voters vote again. Kavanaugh and Roberts did not go along with that.
In this case, the reliance interests are much stronger because there would be no way for voters to vote again in time. It seems that the equities are clearly on the side of the Pennsylvania voters in this context.
And here’s what I wrote on the standing question:
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.)
Adam Liptak in the NYT.
Short answer: around 80%.
As we discuss the numbers that are emerging each day of absentee ballots that have been returned already in various states, I went back to look at the final tallies on this issue from 2016. From the US Election Assistance Commission:
Nationally, by-mail voting constituted 23.7 percent of all votes cast in the 2016 election. Approximately 80.1 percent of absentee ballots that were transmitted to voters were returned and processed, with 1.4 percent of transmitted ballots returned as undeliverable and 2 percent reported as spoiled (e.g., the voter returned the ballot and asked for a replacement).
New filing (via John Kruzel).
NYT:
The Supreme Court decision on Monday barring the counting of mail-in ballots in Wisconsin that arrive after Election Day was not a surprise for many Democrats, who had pressed for it but expected to lose.
But a concurring opinion by Justice Brett M. Kavanaugh set off alarms among civil rights and Democratic Party lawyers, who viewed it as giving public support to President Trump’s arguments that any results counted after Nov. 3 could be riddled with fraudulent votes — an assertion unsupported by the history of elections in the United States.
The decision also unnerved Democrats and local election officials in Pennsylvania, where Republicans are asking the Supreme Court to weigh in again on whether the state can accept ballots received up to three days after Election Day. While Democrats in Wisconsin had been appealing for an extension, the current rules in Pennsylvania allow for ballots to arrive three days after the election. Any change could threaten the more than 1.4 million absentee ballots not yet returned.
In his opinion, attached to the 5-to-3 ruling against the deadline extension in Wisconsin, Justice Kavanaugh wrote that Election Day mail-in deadlines were devised “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.”
He added, “Those states also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”
Justice Kavanaugh’s statement mirrored in some ways Mr. Trump’s efforts to suggest that only ballots counted by Election Day should decide the result, and more generally to push unfounded claims about widespread voter fraud.
Earlier on Monday, the president had posted on Twitter that election officials “must have final total on November 3rd,” alleging without evidence that there are “big problems” with mail-in ballots. Twitter labeled the tweet “misleading.”…
Mr. Kavanaugh’s concurrence was met by a dissent from Justice Elena Kagan, who wrote that “there are no results to ‘flip’ until all valid votes are counted.”
Justice Kagan wrote that nothing could be more suspicious or improper “than refusing to tally votes once the clock strikes 12 on election night.”
“To suggest otherwise,” she added, “especially in these fractious times, is to disserve the electoral process.”
Justice Kagan chastised the majority for disregarding the overriding effects of the pandemic, adding, “What will undermine the ‘integrity’ of that process is not the counting but instead the discarding of timely cast ballots that, because of pandemic conditions, arrive a bit after Election Day.”
WaPo:
A video sent to voters falsely claimed that Joe Biden wants to give “sex changes to second-graders.”
A menacing directive advised Democrats to vote for Trump “or else.”
And a years-old photograph newly circulated with erroneous instructions for how to blow past a purported poll watcher on Election Day.
These deceptive, 11th-hour messages are not finding their way to Americans via the now well-trodden paths of Facebook and Twitter. Instead, they’re arriving in waves of text messages and emails, making use of a more intimate and less heavily scrutinized vector of disinformation than the social networking services manipulated four years ago as part of the Kremlin’s sweeping interference in the 2016 election.
Texts and emails “have the potential to be more believable than social media,” said Darren Linvill, a specialist in social media at Clemson University who has studied millions of tweets sent by the Kremlin-linked Internet Research Agency. “I think people are more ready to accept information that comes through their phone than social media, where we’re trained in many ways to be more on guard.”
Tom Edsall for the NYT takes a deep dive into nightmare election scenarios. It includes this quote from me: “If it turns out to be really close and it comes down to Pennsylvania, God help the United States of America.”
Texas voters are nowrequired to wear face masks when casting ballots during the pandemic, a federal district judge ruled Tuesday, invalidating an exemption for polling places that Gov. Greg Abbott had included in his statewide mask mandate.
The governor’s mandate for Texans to cover their mouths and noses in public does not apply to polling places, an exclusion that has been challenged as discriminatory against Black and Latino voters who are more likely to be harmed by the coronavirus. Abbott has previously said he encourages voters to wear a face mask, but said he excluded polling places from his mandate to prevent people from being turned away from voting just because they don’t have a mask. Under Abbott’s order, poll workers are also not required to wear masks.
In his temporary ruling, U.S. District Judge Jason Pulliam said the exemption “creates a discriminatory burden on Black and Latino voters.”
Abbott and Texas Secretary of State Ruth Hughs immediately sought an appeal at the U.S. 5th Circuit Court of Appeals.
Akhil Amar, Vik Amar, and Neal Katyal NYT oped:
Just as they did in the infamous Bush v. Gore litigation in 2000, Republican lawyers are trying to get the Supreme Court to undermine state court rulings protecting voting rights under state law. Their theory? That state courts, by relying in part on state constitutions, are wrongly exercising power that belongs to state legislatures.
This idea that state constitutions are irrelevant, and that all that matters is what state legislatures say, is preposterous. Yet recent events suggest this wrongheaded theory may have some traction among the justices.
And this theory has huge consequences. It would mean that many of the decisions you are reading about, where state judges are applying state constitutions to protect the right to vote (say, by finding that ballots postmarked by Election Day will be counted, or that onerous witness requirements will be relaxed because of Covid-19) would now be fair game for the Supreme Court to reverse — even though these decisions are interpretations of state law by state courts.
So far, partisan attempts to involve the federal judiciary have failed, and rightly so. Early last week, the Supreme Court rejected an effort by Pennsylvania Republicans to overturn a Pennsylvania Supreme Court decision that votes postmarked by Election Day but received a few days later must be counted. The court deadlocked 4-4, letting the state court decision stand, with Chief Justice John Roberts joining the court’s three Democratic appointees in voting to leave undisturbed what the state court had done.
Now the Republican challengers are trying to bring the case back before the court, hoping to win support from its newest member, Amy Coney Barrett. We may see a similar push to overturn a second Pennsylvania Supreme Court ruling issued last Friday, also protecting state voters’ rights — this time to have their votes counted notwithstanding technical signature glitches in mail-in or absentee ballots.
Federal courts have no business interfering in state-law matters. As the three of us wrote back in 2000, the effort of several justices to hijack state law in Bush v. Gore was a disgrace. These justices asserted that the “Florida Supreme Court’s interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required.” Of course, “fair reading” meant how these justices read state law, not how Florida’s expert judges saw the matter…
Quite a story in ProPublica today:
Debbie Chacona oversees the division of the Federal Election Commission that serves as the first line of defense against illegal flows of cash in political campaigns. Its dozens of analysts sift through billions of dollars of reported contributions and expenditures, searching for any that violate the law. The work of Chacona, a civil servant, is guided by a strict ethics code and long-standing norms that employees avoid any public actions that might suggest partisan leanings.
But Chacona’s open support of President Donald Trump and her close ties to a former Republican FEC commissioner, Donald McGahn, who went on to become the 2016 Trump campaign’s top lawyer, have raised questions among agency employees and prompted at least one formal complaint. Chacona, a veteran agency staffer who has run the FEC’s Reports Analysis Division, or RAD, since 2010, has made her partisan allegiance clear in a series of public Facebook posts that include a photo of her family gathered around a “Make America Great Again” sign while attending Trump’s January 2017 inauguration.
The public display of partisanship bewildered some FEC staffers, according to a former agency employee. For decades, the agency expressly banned employees from engaging in such partisanship, a cultural ethos that has stuck even after those rules were relaxed in 2011. Chacona’s duties included discerning whether the inaugural committee’s disclosures of donor information appeared to contain any “serious violations” of the law, an FEC procedures manual states.
Great new reporting from Andy Kroll:
The disinformation operation was christened “Project Clintonson.” It brought together two notorious figures in Republican political circles, Blackwater founder Erik Prince and Trump adviser Roger Stone. Their objective couldn’t have been more explicit.
“We do not need to make major gains among African American voters,” said a 13-page proposal for Project Clintonson that Prince sent to unnamed donors a week before Election Day 2016. “We merely need to dampen turn out [sic] and make it difficult for the Black Democratic elected officials in Hillary’s pocket to turn out Black voters at Obama-like levels. A shift of a few points in the right places can swing this election.”
The aim of Project Clintonson was to spotlight a young black man named Danney Williams, who claims that he is Bill Clinton’s son, and to cast Hillary Clinton as the “villain of this drama.” The pitch for Project Clintonson says that Williams was “definitively the abandoned son” of Bill Clinton and that “African American voters would be incensed to learn that it was Hillary who demanded that Bill abandon his only son.”
There is no evidence to back up the claims about Danney Williams and the Clintons, but proving that wasn’t the point. The goal of this project was to weaponize a conspiracy theory about a supposed illegitimate son of Bill Clinton as a way to disgust black Americans and dissuade them from voting in the 2016 election, documents obtained by Rolling Stone indicate.
A key piece of Trump’s strategy four years ago — and again this November — is a constant barrage of lies, disinformation, and hyperbolic rhetoric to drown out the news and overwhelm the average voter, to “flood the zone with shit,” as former Trump White House adviser Steve Bannon put it.
The new documents obtained by Rolling Stone include an emailed fundraising plea from Prince to prospective donors and the 13-page proposal laying out the objectives and multimillion-dollar budget for Project Clintonson, which would be routed through a shadowy nonprofit group tied to Roger Stone called the Committee for American Sovereignty Education Fund.
Internal documents, tax records, and interviews about Stone and Prince’s efforts with Project Clintonson illustrate how a lax campaign-finance system and an overtly racist voter-suppression effort created the perfect opportunity to do just what Bannon said. They show the Trump operation’s real aims when it came to black voters, the lengths they would go to dissuade black voters, and the very real possibility that similar operations are underway in 2020.
After a second vote, Luzerne County Council voted 7-4 to withdraw the motion to request Justice Barrett’s recusal in the U.S. Supreme Court decision regarding the mail-in ballot extension….
Councilmen Walter Griffith and Haas spoke up saying the county needed to discuss the motion before it was filed. Moran said the recusal request was his idea, and notified county manager David Pedri about it. Hass proposed a motion encouraging the county manager to tell outside counsel to withdraw the motion immediately but the motion failed.
Councilmembers questioned whether Moran’s filing was politically motivated, bringing up his numerous donations to the Biden campaign. Moran says his only motive is to fight for Luzerne County in court.
No notation of withdrawal appears yet on the Supreme Court docket.
A federal judge on Tuesday night ordered the U.S. Postal Service to reverse limitations on mail collection imposed by Trump-backed Postmaster General Louis DeJoy, giving the agency until Wednesday morning to inform workers of the court’s changes as more mail-in ballots continue to flood in.
In a highly detailed order, Judge Emmet Sullivan of the District Court for the District of Columbia granted an emergency motion by plaintiffs against President Donald Trump to enforce and monitor compliance with Sullivan’s previous injunction tied to USPS services.
President Donald Trump’s campaign website appeared to fall victim to hackers Tuesday night.
“This site was seized,” read a message that was briefly posted on a page at donaldjtrump.com. The “world has had enough of the fake news spreaded daily” by the president, it continued.
The message said it had information that “discredits” the president and his family, and it demanded cryptocurrency to either release or withhold the information.
The site soon appeared to go offline, and it was restored without the hacked message a short time later.
Nina Totenberg for NPR:
But as Case Western Reserve law professor Jonathan Adler observes, “as odd as it may seem, federal judges are under no obligation to recuse in cases involving a prior benefactor, and there is no precedent for judges or justices recusing because the case implicates the interests of the president who nominated them.”
Technically, Supreme Court justices are not bound by the code of conduct in federal law, but they do try to abide by those rules. And as Adler, a conservative scholar, wrote this week, based on these criteria, Barrett may not be required to recuse. And yet, as he observed, there is another ground for recusal, namely, when a justice’s “impartiality might reasonably be questioned.” That, he suggests, may be why it would be “prudent” for Barrett to recuse. As he put it in a piece written for the Volokh Conspiracy blog:
“Trump’s own norm-breaking behavior may justify a departure from the traditional norms of recusal. His repeated comments about the role of courts in the election—and the Supreme Court and his nominee in particular—are [so] high-profile that they might create the sort of appearance problem that the recusal rules are designed to address. Simple prudence may counsel recusal in a special case like this. After all, we’ve never had a justice confirmed in the midst of an election before.”
Deep dive into the data by zip code, courtesy of the NYT.
Bob Barnes for WaPo.
Michigan Court of Claims Judge Christopher Murray issued a preliminary injunction Tuesday that effectively halts Secretary of State Jocelyn Benson’s directive banning the open carry of guns near polling locations on Election Day
Attorney General Dana Nessel announced almost immediately after the decision was issued that her office would appeal to the Court of Appeals “as this issue is of significant public interest and importance to our election process.”
The edict by Benson “smacks of an attempt at legislation” and lacks public input instead of following the regular rule-making process, Murray said during a Tuesday emergency hearing. Further, the state already has a law prohibiting voter intimidation, said Murray, an appointee of Republican former Gov. John Engler.
“The Legislature has said: Here are the places you cannot carry a weapon,” Murray said during the hearing. “The secretary has expanded that. And so how is that in accordance with state law?”