Subscribe to What Next on Apple Podcasts for the full episode.
There are a lot of superlatives you could throw at the 2020 election. You could call it the most expensive campaign so far. Some are predicting the highest turnout in generations. But Rick Hasen, an election law expert, is focused on the fact that 2020 is on track to be the most litigated election he’s ever witnessed. There are lawsuits looking to ban curbside voting. Others look to create tighter deadlines for mail-in ballots. Hasen says that the way to think about these lawsuits is as an elaborate hedge on the Republicans’ part. If the election’s close, you’re going to be hearing a lot more about them—but if not, “then I think a lot of these lawsuits go away,” Hasen says. “It’s not a rational way to run an election, but there are so many things that are irrational about how we run our elections.”
For now, the practical implication of these lawsuits is that we are one day out from Election Day and the rules are still changing. As someone deep in the legal weeds around elections, Hasen knows: These lawsuits mean people will be disenfranchised. But to him, that’s not the most shocking part. He says if you read the back-and-forth between the lawyers and judges in these hundreds of filings, you’ll find something even more distressing: “The reason I’m worried is not because people are filing lawsuits. The reason I’m worried is that we’ve got some kind of off-the-wall theories that are now being taken more seriously by the courts.”
On Monday’s episode of What Next, Rick Hasen examined all these lawsuits so you don’t have to—and explained how the barrage of legal filings around the 2020 election could stick with us well past November. Our conversation has been edited and condensed for clarity.
Mary Harris: What’s giving you the most pause right now, as you watch election litigation spin out across the country?
Rick Hasen: So, the Constitution says that state legislatures get to pick the manner for choosing presidential electors. And that’s been kind of the normal way things go. But the state legislatures are far from the only actors in various states. So, for example, state legislatures delegate power to election officials, who have a lot of discretion. Also, there is litigation in state courts, and state courts sometimes say, Well, the legislature passed this law, but we’re going to construe it in this particular way, or The legislature passed this law, and it violates the state’s own constitutional right to vote, so we’re going to make some changes. The new theory that’s coming up in a lot of these cases—and has gotten a boost from some concurring opinions by Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh over the last few weeks—is that when these other actors take steps to implement running an election during a pandemic, they might be stepping on the toes of the state legislature, unconstitutionally.
Tell me a little bit why scholars like you are flagging this as something to pay attention to and something that’s alarming.
If you take the theory at its most extreme, it cuts all of these other actors out of the process of running elections, which is what they’ve been doing for the last 240 years. So, back to 20 years ago, in Bush v. Gore, one of the issues was that the state Supreme Court ordered some recounts to be conducted of what were called overvotes, people who had voted for more than one candidate for president. This is the order that the Supreme Court stopped, and it led to Bush v. Gore. The theory that the majority in Bush v. Gore articulated for why the county had to stop was an equal protection theory. But there was a separate concurring opinion joined by just three justices, Chief Justice William Rehnquist, joined by Clarence Thomas and Antonin Scalia, that said the state Supreme Court has no authority to set any recount rules if they deviate at all from what the state legislature said the rules should be. Even if it’s done to protect the right to vote under the state constitution. It’s a theory that did not command a majority of votes on the Supreme Court, but one that has been gaining adherence among conservative judges and scholars. And that’s the theory that Alito, Gorsuch, and Kavanaugh latched on to in opinions over the last few weeks.
Let’s talk about a few of those cases. First, we have Pennsylvania, where election officials decided to accept mail-in ballots until Nov. 6, three days after the election itself. Republicans did not like this plan.
And so the Republicans went to the state Supreme Court, and the claim that was brought by Republicans in the state legislature and by the Republican Party was you’re taking away the power of the state legislature to set the rules because the statute was clear: You can’t extend the deadline under the statute. But the state Supreme Court relied upon the state constitution, which has voting rights protections. It said, in order to protect voting rights under the state constitution, this is what is allowed.
Republicans lost this argument in the state’s Supreme Court.
When they lost there, they went to the U.S. Supreme Court and argued that this particular change was violating the U.S. Constitution, and the Supreme Court a few weeks ago on a 4–4 vote decided to do nothing. A tie goes to the lower court, so the lower court ruling stood.
Even though this tie meant Pennsylvania’s original rules remain in effect, and votes can continue to be counted after Election Day itself, this case is still alarming. Because it seems that the conservative wing of the Supreme Court has accepted the legal theory Republicans put forward, about state legislatures controlling the election. And with newly minted Justice Amy Coney Barrett, any future rulings are unlikely to be ties. In fact, Pennsylvania—seen as critical for both Biden and Trump this year—has decided on its own to set aside mail-in ballots that arrive after 8 p.m. on Election Day, just in case their validity is challenged again.
And that choice to segregate the ballots was actually a very smart move on the part of the Democratic leaders of the state.
Because if the ballots were intermixed, you can imagine, a nuclear option being pulled by the state legislature: Oh, this election is so fundamentally flawed, we don’t think it was a fair election. We’re going to appoint our own slate of electors, and we’re going to choose the electors for the state of Pennsylvania. Then that could provoke a kind of crisis.
A second case comes out of Minnesota. It too deals with this idea of the state Legislature’s power. You say this attempt to limit whose vote gets counted is particularly odious, right?
So in Minnesota, some voting rights people sued the state and said we needed to make some changes to make it easier for people to vote during a pandemic, including extending the deadline for the receipt of absentee ballots because the mail is moving slow. And the secretary of state agreed. There was a consent decree. It was well before the election that this happened. The Trump campaign agreed they weren’t going to litigate over this. And then this other group comes in and runs into federal court at the very last minute and says, Hey, the secretary of state had no authority to enter into this consent decree. We are electors who are going to be Trump electors if Trump gets more votes. And we’re suing because we think this is usurping the power of the state Legislature to set the rules for the election. And so the appeals court said, Hmmm, you may have a good theory there—2–1 vote with the lone Democratic-appointed judge dissenting. Let’s set aside all the ballots that come in after Nov. 3 and we’ll decide what to do about it later.
What happens with a case like this now?
The state is not going to appeal the issue of sequestering the ballots at this point. But there may be further litigation after the election. And again, it would only be relevant if the election is so close.
But there’s so many problems with this Minnesota case. No. 1: How do the electors have standing to raise this? It’s the legislators that are injured, not these electors. No. 2: Why did you wait till almost the date of the election to bring this lawsuit when you know what’s going to happen is that you’re going to end up disenfranchising people who’ve already put ballots in the mail that, because of the pandemic, will not arrive on time? They don’t have an alternative in order to be able to vote. So you’re disenfranchising people, and you’re creating confusion. The Supreme Court has said time and again under something called the Purcell principle in this election season: Federal courts, don’t make changes in election rules at the very last minute because it creates voter confusion and administrative problems. And that’s the theory that has come to bite those trying to expand voting rights. Here you have a conservative theory and the conservative court says, Oh, well, we’re not worried about the Purcell principle here. I mean, just really cavalier ignoring of the Supreme Court precedent. And finally: The state Legislature delegated the power to the state secretary of state to deal with these kinds of issues and negotiate these things. It wasn’t something that was done without the Legislature’s permission. Of course the Legislature has delegated! It can’t actually run the election. So it’s just a preposterous theory. And yet it got two out of three votes at the 8th Circuit level.
Let’s talk about the Texas case, because I think it’s really interesting. It’s this case where a known Republican operative is weighing in and asking that more than 100,000 votes be thrown out in Harris County because of this curbside voting that’s happening there.
This fits in the exact same pattern as the Minnesota case. Harris County, which is where Houston is—
So a blue county.
Very blue, lots of Democratic votes there. They were trying to make it easier for people to vote during the pandemic. The state statute in Texas allows for things like curbside voting. People didn’t like it. They went to the state Supreme Court and asked for the state Supreme Court to stop it, saying it violated statutes passed by the state Legislature and the Texas Supreme Court, which is made up of all Republicans, voted 6–1 to reject the argument, presumably because this was totally allowed under state law.
And so now, again, a couple of days before the election, here’s a Republican operative running to a federal court trying to argue the rights of the state legislators are being violated by allowing these votes to count. And, of course, it’s coming so late. And there’s a doctrine in law called laches, which says you can’t bring your suit if there’s unreasonable delay and prejudice to the people that you’re suing. And in the context of an election, laches is really important because otherwise you give people an option. Let me see how the election is going. If it’s not going my way, let me look for a way to try to get votes thrown out.
Jeez. And that sounds exactly like what’s happening.
This is all kind of laying the groundwork for the future for a much different view of the power of different entities to control elections.
On this show and in other places, we were very early to talk about what the pandemic meant for voting and how important mail-in voting would be in the pandemic. I wonder: Did we make a mistake by encouraging that? Because it seems like it opened the door to all of this fighting we see now.
I think trying to make voting safe during the pandemic is the smart thing to do. I was a little hopeful at the beginning that people would come together as they have in other countries to do that. But it’s all-out litigation warfare, well-funded efforts to try to suppress the vote. And they’re not hiding it anymore. And it is very, very discouraging. It’s hard to say don’t even try, because I do think that there were a number of victories early on. And there were a number of legislatures, including Republican legislatures, that took steps to make it easier for people to vote during the pandemic.
Whenever I talk to you, I feel like you’re going back and forth between two poles. Last time you were pretty optimistic, and now you sound a little more tired. But I have seen you writing about your optimism and thinking about that as strategic. I’m wondering if you can explain that a little bit.
My optimism is just based on the odds—the odds of the election going into overtime. If we go into overtime, then we’re in deep trouble, especially if it comes down to Pennsylvania. I noticed I gave quotes to two different news organizations that said essentially, God help us if it comes down to Pennsylvania. I still believe that. But the reason I’m not totally panicking is because I’m looking at the polls. And, of course, the polls can be wrong. But based on the odds, I think we’re not likely to go there. If we go there, it’s going to be awful.
Subscribe to What Next on Apple Podcasts
Get more news from Mary Harris every weekday.