A Giant Test for Election Law

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S1: 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 for Rick Hasen, election law expert, he’s focused on the fact that 2020 is on track to be the most litigated election he’s ever seen. So there have been hundreds of lawsuits this election cycle, but how many are still active do you even know?

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S2: I don’t know. But, you know, active is a kind of a misleading term because there are lots of suits that are filed just in case something pops up.

S3: One of these just in case lawsuits looks to ban curbside voting. Others look to create tighter deadlines for mail in ballots. Rick says right now, the way to think about these lawsuits is as an elaborate pregame hedge on the Republican’s part. If the election’s close, you’re going to be hearing a lot more about them.

S4: But if Biden wins by six percent, some of the polls say he’s going to, then I think a lot of these lawsuits go away. It’s not it’s not as though they’re going to be revived. And suddenly in a not close election, there’s going to be the courts overturning it.

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S3: It’s funny, I hadn’t thought about it as that kind of belt and suspenders approach of like, well, I’ve got to get a lawsuit on the docket for that so that we can you know, if it’s close there, we we have something to lean on.

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S4: Yeah, well, I mean, it’s just 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.

S2: And when I’ve spoken to election experts in other countries, they just don’t get it, they don’t understand why it is that we’ve got one political party that thinks the only way they can win is if they make it harder for people to register and to vote. And that’s that’s really, really tough for now.

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S1: The practical implication of these lawsuits is that we’re one day out from Election Day and the rules are still changing. Minnesota, which had said it would offer a seven day grace period for late arriving absentee ballots. It now says maybe not. This guidance changed last week. I’m just wondering how in God’s name we are still looking at lawsuits that could change the rules around voting. Because you voted. I voted a whole bunch. People are about to vote tomorrow.

S2: Well, let me say that anybody in America can file a lawsuit.

S3: All they need is to pay the filing fee and someone deep in the legal weeds around elections. Rick knows these lawsuits mean people will be disenfranchised. But to him, that’s not the most shocking part here. He says if you read the back and forth between the lawyers and the judges and these hundreds of filings, you’ll find something even more distressing.

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S4: 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. The courts are changing. They’re becoming more conservative. And that’s what gives just a little bit of pause to these last minute Hail Mary pass to me about these lawsuits, not just say I don’t even think about them.

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S3: Today on the show, Rick examined all these lawsuits, so you don’t have to. He’s going to explain how the barrage of legal filings around the 2012 election could stick with us. Well, past November.

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S5: I’m Mary Harris. You’re listening to what next? Stick around.

S1: The legal theory that’s giving Rick the most pause as he watches election litigation spin out across the country, it involves a debate over who controls the election process in the US. In the United States, elections are hyper localized, state by state, county by county. But technically, election authorities get their power from state legislatures. And as the GOP litigates the way local officials have done their jobs during the pandemic, they have been making this argument that local actors have gone too far.

S2: So the Constitution says that state legislatures get to pick the manner for choosing presidential electors. That’s an Article two of the Constitution. The Constitution also says that state legislatures get to set the rules for conducting congressional elections subject to congressional override. And that’s been kind of the normal way the 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. They have a lot of discretion, especially in our country. On the county level, the county election officials have a lot of discretion. Also, there are the certification in state courts and state courts sometimes say that, 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. And so the new theory that’s coming up in a lot of these cases, and it’s gotten a boost from some concurring opinions by Justices Alito, Gorsuch Cavenagh over the last few weeks of the Supreme Court. The theory 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.

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S1: I want to talk about this theory because I think that when people hear it on its face, unless you interrogate it a little bit, it doesn’t sound as off the wall as I think a lot of legal experts are saying it is because the idea like, oh, the legislature decides what happens in elections, like the legislature decides, that makes sense. But tell me a little bit why scholars like you are flagging this as something to pay attention to and something that’s alarming.

S2: So 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 two hundred and forty years.

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S1: People like secretaries of state, people like county clerks.

S2: Exactly. And state supreme courts applying state constitutions. Hmm. So back to 20 years ago in Bush versus 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 versus Gore. The theory that the majority in Bush versus Gore articulated for why the county had to stop with an equal protection theory. That was the kind of the majority opinion. But there was a separate concurring opinion joined by just three justices, Chief Justice Rehnquist, joined by Thomas and Scalia. And they 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 adherents among conservative judges and scholars. And that’s the theory that the Alito, Gorsuch and Cavnar latched on to and opinions over the last few weeks.

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S1: There are a few cases where you can see this legal theory at work. We’re going to run through three of them in three different states. First, Pennsylvania, where election officials decided to accept mail in ballots until November 6th, three days after the election itself. Republicans did not like this plan.

S2: And so the Republicans went to the state Supreme Court and 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. This is not a case where you could say, well, they were just construing the statute, such as clear it does. You can’t extend the deadline under the statute. But the state Supreme Court relied upon the state constitution. The Constitution has voting rights protection, I said, in order to protect voting rights under the state constitution, this is what is allowed.

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S1: Republicans lost this argument in the state’s Supreme Court.

S2: When they lost there, they went to the US Supreme Court and argued that this particular change was violating the US Constitution and the Supreme Court a few weeks ago on a four to four vote after holding the case for a couple of weeks of the Supreme Court on a four to four vote, decided to do nothing. They did. They deadlocked four to four, issued no opinions, etc.. So what does this mean? Tie goes to the lower courts, to the lower court ruling stood.

S1: And no, no explanation, even though this tie, Pennsylvania’s original rules remain in effect and votes can continue to be counted after Election Day itself, Rick says 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 CONI buried, any future rulings are unlikely to be ties. In fact, Pennsylvania is seen as critical for both Biden and Trump this year. They’ve decided on their own to set aside mail in ballots that arrive after eight p.m. on Election Day just in case their validity is challenged again.

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S2: And that she waits to segregate the ballots was actually a very smart move on the part of the Democratic leaders of the state. Why? Because if the ballots were intermixed, you can imagine kind of a nuclear option being pulled by the state legislature saying, oh, well, this election is so fundamentally flawed, we don’t think it was a fair election. We’re going to point 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 in the Congress as the counting of Electoral College votes.

S1: The second case we’re discussing, it popped up over the last week and it comes out of Minnesota. It, too, deals with this idea of state legislatures and their power. Rick says this attempt to limit who gets to vote is particularly odious.

S2: So in Minnesota, some voting rights people sued the state and said we need 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’s moving slow because of the pandemic. And the secretary of state agreed there was a consent decree that 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, you know, 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 you may have a good theory there, two to one vote with the lone Democratic appointed judge dissenting. Let’s set aside all the ballots that come in after November 3rd and will decide what to do about it later. So we’re just going to segregate the ballots on the theory that they might be unconstitutional because the legislature didn’t authorize doing this.

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S1: What happens with a case like this now? Like, does someone decide to appeal it? Because I guess then the question is, do you really want the Supreme Court ruling on this question or do you not?

S2: Well, the state has already said it’s 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 in some race. That might not just be the presidential race, might be another race, whether it be worth litigating over this question. Hmm. But there’s so many problems with this Minnesota case. Number one, how does how do the electors have standing to to raise this? You know, it’s the legislature that’s interests, not these electors, number two. And probably, I think at the top of my list is 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 in. The Supreme Court has said time and again under something called the Purcell principle in this election season, don’t federal courts don’t make changes in elections 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 in the conservative court says, oh, well, we’re not worried about the principle here because the Constitution is no exception to the Constitution during the pandemic. I mean, just really cavalier ignoring of the Supreme Court precedent. And finally and maybe I maybe I put this in the top of the list, the state legislature gave the power, delegated the power to the to the state secretary of state to deal with these kinds of issues and negotiate these things. It wasn’t something that was done with or without the legislature’s permission. Of course, the legislature has to delegate. 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.

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S1: I mean, practically speaking, if the legislature was truly running the elections, it’s kind of all they would do and there’s a lot to do.

S2: But they can’t run. They can’t run the elections. You know, they have to delegate. And the question is, could a delegation totally cross the line and usurp the legislature’s power? I suppose there’s that potential. Please know this is this is so far out there and I consider it the very worst opinion in a season of terrible opinions, the third case using this bizarre legal theory, it comes out of Texas.

S1: Let’s talk about the Texas case, because I think it’s really interesting. It’s it’s this case where sort of a known Republican operative is weighing in and asking that more than 100000 votes be thrown out in Harris County because of this curbside voting that’s happening there.

S2: Yeah, it’s it’s this fits in the exact same pattern as the Minnesota case in 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 the state statute in Texas allows for things like curbside voting. And 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 six to one to reject the argument. They didn’t write anything, but presumably because this was totally allowed under state law. And so now, you know, 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 legislature is being violated by allowing these votes to count. And, of course, it’s coming so late. And there’s a doctrine in law called Latches LLC, H-E, 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, Lachs is really important because otherwise you give people an option. Let me see how the election is going. It’s not going my way. Let me look for a way to try to get votes thrown out.

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S1: Gee, that sounds exactly like what’s happening.

S2: Yeah, 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. And I think something that Congress is going to have to deal with if it, in fact becomes a Democratic Congress with a President Biden, because this has got to be some congressional legislation to stop some of this attempt by conservatives in the federal judiciary to fundamentally remake the power to set election rules, as we’ve understood it for hundreds of years.

S6: The United States, you’re telling me this is act one of the play and we see the gun and now we have to see that as foreshadowing that the gun could go off? Exactly. I think that’s right. More what next after the break.

S1: You know, this show and 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. And I look back at that now. We did a show in March about it. I just 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.

S2: 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 it’s they’re not hiding it anymore. And it is very, very discouraging. And, you know, it’s hard to say don’t even try, because I do think that there were a number of victories early on that helped to and there were a number of legislative steps, lots of including Republican legislatures, that took steps to make it easier for people to vote during the pandemic. Governor Abbott in Texas expanded in-person early voting and he was sued by his own political party for doing that.

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S1: Yeah, with Abbott, you then saw him begin to kind of claw things back, try to limit ballot boxes, right, successfully?

S2: Oh, yeah. I guess we shouldn’t have all those drop boxes. We’re making it too easy to vote my bet.

S1: It’s interesting because whenever I talk to you, I feel like you’re going back and forth between two polls. Like the last time I talked to you, you were pretty optimistic and stay the course. And now you sound a little more tired. Maybe, 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.

S2: Well, my optimism is just based on the the odds, the odds of the election going into overtime. If they 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.

S1: Hmm. Yeah. I mean, it was really useful when you wrote out, like, listen, you’re going to see things this Election Day that are going to upset you. You’re going to see long lines at voting places. You’re going to see voting machines that seem to flip votes from Trump to Biden or Biden to Trump. And you need to kind of stay the course and realize they’re going to be some bumps. But it’s kind of like turbulence on an airplane, like you’re probably going to reach your destination.

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S2: Yeah. Yeah. Well, I think that’s a somewhat different question of whether we’ll end up post-election in court. I do think the question of what people are going to see on Election Day and really panicking that this chaos a lot depends on what happens in the media and that the media does not blow out of proportion. Things that are relatively small scale and commonplace in elections are elections are not perfect. They’re not perfect even we’re not in a pandemic. So it’s really just a question of what can we do to try to minimize people’s panic, because panic is not a very constructive thing to feel.

S1: Yeah, I mean, just before we got on the phone, a Trump adviser went on ABC and talked about how President Trump is likely to be ahead on election night. And the Democrats are going to try to steal the election back. And it was a choice to put that person on air. And I wonder, as you try to project calm, whether you see someone making a point like that and you have thoughts about how we should think about them?

S2: Well, look, Axios is now reporting that Trump is going to declare victory if he’s ahead on election night, even with millions of ballots to be counted and even knowing that the ballots that come in later are more likely to be votes for Biden. So we have to hunker down. We have to kind of not accept the noise and recognize that not everybody is acting in good faith and just put our heads down and push through.

S7: Rick Hasen, thank you so much for joining us. It was great to be with you. Rick Hasen is an election law expert at UC Irvine. He’s also the author of Election Meltdown Dirty Tricks, Distrust and the Threat to American Democracy. And that’s the show and we have a little surprise for you. We have not one but two shows that will come down the feed for you tomorrow, both with first time voters, one of whom you may already know if you’re a basketball fan. So come check us out whether you’re waiting in line to vote or just sitting at home waiting on the returns. What next is produced by Mary Wilson, Jason de Leon, Danielle Hewitt and Alena Schwartz with a little help this week from the amazing Frannie Kelley. I’m Mary Harris. Find me tweeting all sorts of weird things at Mary’s desk and I’ll talk to you tomorrow.