//  11/2/20  //  Commentary

Now that both the very-conservative Texas Supreme Court and a very-conservative federal court judge have rejected a last-ditch effort to toss 127,000 ballots in Harris County, Texas, we know the full legal landscape headed we're working with on election day. I draw three conclusions from the remarkable year we've had of litigation and political changes to the way we vote:

  1. Most states, including red states, took at least some steps to accommodate safe voting in a pandemic.
  2. The Republican party as a whole has engaged in a remarkable rhetorical and legal campaign to undermine confidence in the result, and they have succeeded in blocking some important changes to election administration. But they have been unable to fundamentally alter the rules of the election.
  3. No major political institution, including the U.S. Supreme Court, took any steps what would indicate they are prepared to engage in an extraordinary and unprecedented campaign to enable Trump to steal the election. 

First, though often overlooked in the midst of justifiable criticism of officials who have not gone far enough, election officials in many states, even red states, have mostly made voting easier this year. States that have temporarily permitted all citizens to vote by mail without excuse include not just New York and Massachusetts but also Missouri, Arkansas, and West Virginia. Only a few states dug in their heels on this issue and have said that fear of COVID is not an excuse sufficient to be able to vote by mail, but even Texas, the largest and most important of those six outlier states, extended the in-person early voting window by a week. Overall, voters have more options to vote safely this year than in any prior year, and it’s not particularly close.

Second, at the same time, the anti-democratic rhetoric from the President and other highly-partisan Republican officials has been successfully used as a part of a campaign to prevent the federal judiciary and some state legislatures from implementing many additional accommodations for voting in the middle of a pandemic. The Supreme Court and conservative appellate courts have overturned federal courts’ extensions to ballot receipt deadlines, waivers of witness signature requirements, orders allowing more people to vote by mail, and more. Governors and secretaries of state have inexplicably fought tooth and nail to limit the availability of secure ballot drop boxes. And Republican legislatures in Pennsylvania, Wisconsin, and Michigan have failed to step up to the plate and give their election administrators the ability to quickly count the deluge of mail ballots they have received. These are embarassing failures in the midst of a once-a-century pandemic.

Third and finally, though, the dangerous rhetoric has not spilled over into any court or political decisions that signal a willingness to engage in mass disenfranchisement or plainly illegitimate electoral fraud. State legislatures had several tools at their disposal this spring and summer to pass laws that would make voting more difficult, and nothing significant was adopted. Encouragingly, in the last few months, even the most conservative federal courts have at least signaled that they place great weight on what are called reliance interests. In particular, in rulings from Pennsylvania, North Carolina, South Carolina, Minnesota, Texas, and more, courts have been unwilling to change rules in a way that would invalidate votes already cast. It's important to recognize the difference between approving changes in the rules that will make voting easier and actively undoing rules that are already shaping how people are casting votes. The Supreme Court and conservative appellate and district courts have shamefully stood in the way of many sensible changes required to uphold the constitutional right to vote. But they have so far been unwilling to rule that any votes already cast should be invalidated.

The courts may not be finished, of course. There are ominous hints that a few judges, including Justices Alito, Gorsuch, and Thomas in a disturbing opinion from a Pennsylvania case, might be willing to retroactively toss out ballots that were cast under rules valid at the time. But these views have not carried the day so far, including in very conservative venues, like the Texas Supreme Court. Plus, at this point, it’s very unlikely that the election will come down to this small number of particularly controversial votes, so we can keep our fingers crossed that judges do not get a second bite at the apple on some of these questions.

This is not to say we should all relax about what will happen tomorrow and beyond. As I and several of my colleagues explained in a detailed, 10-part podcast miniseries, our system of electing a president is old, creaky, and vulnerable. I won’t sleep too well tonight. But there’s also no reason to think that the rule of law has been entirely eroded in America in 2020. So far, the center has held. 


Versus Trump: The Law Headed Into The Election

11/2/20  //  Commentary

Will this be the last Versus Trump before Trump loses reelection? Who knows, but, on this week’s episode, Jason and Charlie discuss key theories that will shape which votes count. Listen now!

Charlie Gerstein

Civil Rights Corps

Kavanaugh's Wisconsin Opinion Flunks Originalist Test of Constitution's Text and History

10/30/20  //  In-Depth Analysis

Brianne Gorod & Charlie Miller: Contrary to Justice Kavanaugh’s suggestion, there is nothing sacrosanct about November 3, and no requirement that the country must know the victor of the presidential election that night.

Brianne J. Gorod

Constitutional Accountability Center

How To Decide A Very Close Election For Presidential Electors: Part 3

10/28/20  //  In-Depth Analysis

We conclude our examination of close presidential elections by taking a deep dive into Florida in 2000. Was the December 12, 2000 deadline really as firm as it seemed to the courts and some of the parties, or could the count have proceeded?