talkingpointsmemo--2020-11-01--Bush V. Gore Isn’t Precedent, But It Keeps Getting Cited

This story first appeared at ProPublica .
ProPublica is a Pulitzer Prize-winning investigative newsroom .
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Twenty years after the Supreme Court decision known as Bush v. Gore effectively decided a presidential election , it ’ s back on the country ’ s mind .
President Donald Trump , who is lagging in polls amid a surge in COVID-19 cases and refuses to commit to leaving office quietly should his bid for reelection fail , has said he believes the Supreme Court will intervene @ @ @ @ @ @ @ a second term .
He cited that role to justify rushing the confirmation of Amy Coney Barrett , who was sworn in as a justice on Monday and could potentially break a 4-4 tie .
Lawyers representing the president ’ s campaign and the Republican Party have taken to citing Bush v. Gore frequently in preelection court filings .
And the case ’ s echoes are only underscored by the presence of three current justices — Chief Justice John Roberts , Barrett and Brett Kavanaugh — each of whom worked for the Republicans @ @ @ @ @ @ @ Florida that culminated in the historic Supreme Court decision .
Democrats got agitated this week when Kavanaugh , appointed by Trump in 2018 , included a nearly page-long disquisition on Bush v. Gore in an opinion explaining his vote not to reinstate a six-day buffer after Election Day for mail-in ballots , which are expected to lean heavily Democratic , to arrive at election offices in Wisconsin .
Then , only two days later , Democrats were cheered by the news that the court had let stand , at least for now , @ @ @ @ @ @ @ key swing states , Pennsylvania and North Carolina .
The notion of a conservative court handing the presidency to Trump seemed that much more distant a prospect .
However , opinions by Justices Samuel Alito and Neil Gorsuch appended to Wednesday ’ s decisions , when read together with Kavanaugh ’ s opinion , suggest more is afoot .
Bush v. Gore is poised for a revival at the high court .
That will probably occur in a different scenario than what happened in 2000 .
The election forecaster FiveThirtyEight projects only a @ @ @ @ @ @ @ decided by a recount .
But Bush v. Gore has never been the dead letter it ’ s popularly perceived to be , and it could be a factor in a number of election battles this year .
Before 2020 , the Supreme Court had mentioned the case only once in two decades .
But in the state courts and lower federal courts , it ’ s quietly but repeatedly taken on new roles over the years , serving to resolve everything from how ballot signatures are reviewed to the deadline for mail-in @ @ @ @ @ @ @ election cycle , with the help of Kavanaugh , Alito and Gorsuch , as well as a welter of GOP lawyers pushing to take Bush v. Gore in a new direction , the case is undergoing a radical transformation .
If completed , legal scholars believe , that transformation will have far-reaching and deleterious consequences for efforts to expand voting rights .
By the early morning hours after Election Day 2000 , it was clear that the election contest between the Republican candidate , George W. Bush , and the Democrat , Al @ @ @ @ @ @ @ ’ s 25 electoral votes .
With Bush up in the state by a very thin margin , Gore moved to have machine-tabulated ballots manually recounted .
Weeks of legal wrangling ensued , with litigation pingponging around various Florida state courts , twice reaching the U.S. Supreme Court .
Eventually , the Florida Supreme Court ordered a statewide manual recount but offered little guidance to ballot counters other than that they had to discern the “ clear intent of the voter.
” Many Florida counties used punch card ballots at the time , @ @ @ @ @ @ @ out the paper tab , called a “ chad , ” leaving their votes unclear .
New phrases entered the American lexicon : “ hanging chads ” ( partially detached ) , “ dimpled chads ” ( indented but not detached ) and so on .
With an important mid-December deadline approaching , Bush ’ s lawyers asked the Supreme Court to intervene .
Late on a Tuesday , just hours ahead of the deadline , the court , by a 5-4 vote , put a stop to the Florida recount , all @ @ @ @ @ @ @ In an unsigned opinion , five of the court ’ s more conservative justices found that the Florida Supreme Court ’ s recount rules were vague and inconsistent , resulting in “ arbitrary and disparate treatment ” of ballots .
So , for example , counters in Miami-Dade County might deem a particular hanging chad a vote for president while counters in Palm Beach County might not .
The Constitution gives broad discretion to state legislatures to decide how to appoint the electors it sends to the electoral college .
The Bush v. @ @ @ @ @ @ @ procedures violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution , which requires that the state not “ value one person ’ s vote over that of another.
” On this point there was broad agreement ; two justices from the court ’ s liberal wing , Stephen Breyer and David Souter , largely agreed with the five conservatives .
The question remained : what to do about it ?
Souter and Breyer thought the U.S. Supreme Court should do what it would usually do and send the case @ @ @ @ @ @ @ instructions for how to cure the problem .
The five conservatives , however , decided that there wasn ’ t enough time left to fix the recount process and complete it .
Two decades later , their reasoning remains the subject of widespread criticism .
( The late Justice Antonin Scalia joined the majority opinion but privately called the equal protection rationale , “ as we say in Brooklyn , a piece of shit , ” according to “ First , ” a well regarded 2019 biography of retired Justice Sandra Day O @ @ @ @ @ @ @ the majority read into an earlier Florida Supreme Court ruling the suggestion that the Florida Legislature wanted the vote count finalized before the mid-December deadline .
The prevailing view has been no .
In that interpretation , Bush v. Gore is a one-off that judges and lawyers are free to ignore .
A binding precedent , by contrast , requires that lower courts ( and the high court itself ) abide by it .
Despite that view , the ruling ’ s influence appears to be very much alive : It has been @ @ @ @ @ @ @ cases , dating from the years just after the 2000 election to this week .
How can these dueling interpretations coexist ?
Consider the most often quoted sentence in Bush v. Gore : “ Our consideration is limited to the present circumstances , for the problem of equal protection in election processes generally presents many complexities.
” The not-precedent camp points to the first clause as dispositive .
But others insist the second clause is every bit as important as the first , and if read in that way , the sentence sounds @ @ @ @ @ @ @ future relevance as a word of caution for other judges : Don ’ t apply the court ’ s analyses in rote fashion ; be sensitive to the facts of the case .
Disagreements over whether Bush v. Gore should be considered a precedent are widespread , including in federal courts .
For example , judges on the federal appellate court in Cincinnati decided in 2003 that Bush v. Gore was precedent “ we are bound to adhere to.
” Thirteen years later , another set of judges on that same court dismissed @ @ @ @ @ @ @ other judges split the difference , like one on the appeals court in Richmond this year , who called Bush v. Gore “ of limited precedential value.
” For a case that ’ s widely regarded as an aberration , Bush v. Gore has done all right for itself outside the U.S. Supreme Court .
Not only has it been cited well over a hundred times by state supreme courts and federal courts of appeals , that tally grows to about 500 when lower courts are included — from litigation over the 2003 @ @ @ @ @ @ @ Davis to this year ’ s court battle over felon reenfranchisement in Florida .
That means there ’ s a chance Bush v. Gore could reprise its role this year at the center of the resolution of the presidential race , should , say , Pennsylvania become to 2020 what Florida was for 2000 .
( Indeed , the case has already been raised as part of the ongoing litigation about how to handle mail-in ballots in the state . )
It could also help decide the outcome of other key races , @ @ @ @ @ @ @ of the Senate is at stake this year .
In 2008 , for example , Norm Coleman , an incumbent Republican senator from Minnesota , tried to use Bush v. Gore to challenge the process by which election officials decided whether absentee ballots were valid .
He was unsuccessful , and his Democratic opponent , the comedian Al Franken , ultimately won the seat .
Over the past two decades , Bush v. Gore has evolved beyond the partisan identity it maintains in the public imagination .
An examination of judicial decisions and @ @ @ @ @ @ @ suggests its invocation won ’ t necessarily benefit one party or the other .
The ruling has continued to be invoked in its original context , guiding judicial oversight of ballot recounts .
That makes it an inviting tool for a president who has repeatedly mused publicly about halting vote tabulations after Election Day .
But the case could just as soon help speed along a recount , as the president has seen firsthand in November 2016 , when Green Party presidential candidate Jill Stein petitioned for a recount of votes cast in @ @ @ @ @ @ @ to have won by only a few thousand votes .
Stein ’ s recount didn ’ t change the outcome , but federal judges in that case relied in part on Bush v. Gore to ensure the recount got done on time , ruling in favor of Stein ’ s request to waive a waiting period mandated by state law before beginning a recount .
The delay , they reasoned , might prevent the state from completing the recount ahead of a key federal deadline .
Once a state grants a right to @ @ @ @ @ @ @ wrote , “ the State could not use arbitrary or unreasonable procedural rules to make that right a nullity.
” Bush v. Gore has been applied in contradictory ways in different cases , both to disqualify large numbers of ballots or to ensure that ballots aren ’ t arbitrarily rejected .
Just after the 2018 election , for example , Florida Democratic Sen. Bill Nelson ’ s reelection campaign and a state Democratic Party committee filed a federal lawsuit challenging the way Florida election officials verified signatures on vote-by-mail and provisional ballots .
@ @ @ @ @ @ @ mail , the campaign ’ s legal team argued in a filing that relied on Bush v. Gore , the Equal Protection Clause forbids the state from luring “ its voters into a procedurally arbitrary vote-by-mail trap that results in their disenfranchisement.
” In response to Nelson ’ s suit , the courts bemoaned “ Florida ’ s lack of any standards or formal training requirements ” for those who assess ballot signatures , as well as the state ’ s failure to notify some Floridians in time to fix improperly rejected ballots @ @ @ @ @ @ @ give those voters until 11 days after the election to submit affidavits and proof of identity so their votes would count .
( Despite that interim victory , Nelson came up short and lost his seat . )
On the other side of the partisan divide , GOP lawyers this year are deploying Bush v. Gore aggressively .
Attorneys for Republican legislators in North Carolina , for instance , recently argued that a state elections board plan to extend the period of time that officials could accept ballots postmarked by Election Day violated @ @ @ @ @ @ @ they claimed that the case permitted their clients to use the Equal Protection Clause as a tool to reduce the number of eligible voters who got to cast a ballot .
The full appeals court rejected the argument , with one of the judges in the majority calling the plaintiffs ’ argument “ deeply troubling.
” The plaintiffs had suffered no harm , she wrote , and their sole aim was to reduce the number of eligible voters allowed to legally cast their ballot .
( Three of the court ’ s more @ @ @ @ @ @ @ the plaintiffs .
On Wednesday , the U.S. Supreme Court rejected a request to temporarily block the extension . )
There ’ s more of this to come .
On Oct. 23 , a lawsuit filed in Nevada by the Trump campaign and the state Republican Party argues that the state runs afoul of Bush v. Gore because it offers a way to challenge in-person voters but fails to offer a mechanism for challenging voters who send their ballot through the mail , a potential opening salvo in an attack on mail-in voting @ @ @ @ @ @ @ v. Gore and the Ghost of William Rehnquist Until recently , Bush v. Gore ’ s ongoing influence on federal elections has been fairly quiet , adapting to new issues of election administration in an incremental , case-by-case manner .
It now seems on the verge of a metamorphosis .
In recent years , Bush v. Gore — or , more precisely , a side note in it , a line of reasoning that indisputably is without precedential effect — has begun to gain currency among conservative jurists and election lawyers .
In @ @ @ @ @ @ @ the Supreme Court ’ s conservative wing became advocates for the cause , seeking to transform a long-marginal idea into the law of the land .
Should a majority of the high court embrace the thinking , the court ’ s new right-leaning supermajority will have near-total power over courtroom efforts to shape federal elections — a set of circumstances that election law scholars and voting rights lawyers fear could seriously hinder efforts to expand the franchise in the United States .
Separate from the unsigned majority opinion in Bush v. Gore , @ @ @ @ @ @ @ joined by Scalia and Thomas , authored a concurring opinion offering “ additional grounds ” for putting an end to the Florida ballot recount .
Ordinarily , when a state supreme court rules on an issue of state law , that state court decision can ’ t be appealed to the U.S. Supreme Court , an outgrowth of the federal system in the United States .
In his concurrence , however , Rehnquist claimed to have identified an exception to this rule in the context of state laws governing presidential elections .
In @ @ @ @ @ @ @ U.S. Supreme Court , in fact , could second-guess a state supreme court ’ s interpretation of its own state ’ s election law .
Rehnquist ’ s argument hinged on a narrow reading of the U.S. Constitution ’ s Presidential Electors Clause , which says , “ Each State shall appoint , in such Manner as the Legislature thereof may direct , ” the electors that vote for the president and vice president .
In the chief justice ’ s view , the Constitution gave state legislatures exclusive authority to run presidential @ @ @ @ @ @ @ Florida in 2000 , a state court ( or governor ) interfered in the election laws passed by the legislature , that runs afoul of the U.S. Constitution , which means that the federal Supreme Court can intervene to help preserve the state legislature ’ s power over how the state runs its presidential elections .
The dissenting justices expressed puzzlement and incredulity at Rehnquist ’ s unusual reading of the Presidential Electors Clause .
By his logic , they observed , a state legislature was unconstrained by its state constitution when prescribing @ @ @ @ @ @ @ Supreme Court ’ s own precedents , the late Justice John Paul Stevens wrote , rejected Rehnquist ’ s interpretation .
“ Legislature ” in the Presidential Electors Clause , he wrote , meant the state legislature acting in its ordinary lawmaking capacity , subject to a gubernatorial veto and the state constitution as interpreted by the courts , not as an all-powerful synod .
This week , Rehnquist ’ s theory not only received the imprimatur of four sitting justices ; it saw its scope expand .
First , on Monday , @ @ @ @ @ @ @ v. Gore in his concurrence in the Wisconsin vote-by-mail extension case .
It excavated Rehnquist ’ s theory and held it out as the correct reading of the Constitution .
It was an odd place for Kavanaugh to articulate his pro-Rehnquist thesis , because , as Kavanaugh acknowledged , it was entirely irrelevant to the Wisconsin case .
The Wisconsin case was appealed from a federal court , not a state court , and there ’ s no question the U.S. Supreme Court has the power to review the decisions of lower federal @ @ @ @ @ @ @ he was eager to convey his point of view out into the world , possibly to encourage future litigants to present the court with opportunities to elevate Rehnquist ’ s concurrence to the level of precedent .
That signal may not be necessary .
Throughout the country , Republican election lawyers are already doing just that .
No other justice joined Kavanaugh ’ s concurrence , but just two days later , three of them would join him in extolling the virtues of Rehnquist ’ s theory .
On Wednesday , the Supreme @ @ @ @ @ @ @ buffer periods in two other swing states , North Carolina and Pennsylvania .
Unlike in Wisconsin , the extensions of time were authorized by state courts relying on state law , the kind of decision over which the federal Supreme Court ordinarily has no authority .
Given the partisan polarization around voting by mail this year , Democrats celebrated the outcome .
The festivities , however , were muted .
Accompanying each order was a lengthy statement signed by some or all of justices unhappy about the outcome — Alito , Gorsuch and @ @ @ @ @ @ @ might not be over yet .
Both statements declared their support for adopting Rehnquist ’ s Bush v. Gore concurrence and went further still , indicating that , within state government , the legislature also has exclusive control over congressional elections .
( The Constitution authorizes Congress to override the legislature . )
The statement written by Alito , which was appended to the Pennsylvania order , suggested that the Supreme Court might yet intervene after the election , potentially rejecting some large number of ballots that were mailed by Election Day but @ @ @ @ @ @ @ three day buffer period .
The more realistic reason for Bush v. Gore to alarm Democrats is that the Supreme Court ’ s four most conservative justices — Alito , Gorsuch , Kavanaugh and Thomas — seem to be champing at the bit to cut state courts out of federal elections altogether .
“ Conservative judges have increasingly shown hostility to expanded voting rights , even during a pandemic , ” said Rick Hasen , an election law expert at the University of California , Irvine School of Law .
The approach embodied @ @ @ @ @ @ @ lawyers as the independent state legislature doctrine , is one of many tools “ that is making it harder for other actors to protect voting rights.
” Can they get a fifth justice on their side ?
Barrett ’ s views aren ’ t yet known , but Roberts doesn ’ t seem eager to embrace the Rehnquist theory .
This Monday , in a brief opinion , the chief justice distinguished the situation in Wisconsin , where a federal court had modified election rules , and in Pennsylvania , where the state @ @ @ @ @ @ @ on “ the authority of state courts to apply their own constitutions to election regulations.
” Still , other courts are running with the interpretation favored by the four conservative justices .
On Thursday , a federal appeals court voted 2-1 to order Minnesota to separate late-arriving mail-in ballots , finding that a state court-ordered buffer period was likely illegal .
Their reasoning ?
Plucked more or less straight from Kavanaugh ’ s Wisconsin concurrence .
Rehnquist ’ s theory poses greater risks to Democrats than Republicans , at least in the near @ @ @ @ @ @ @ so , Republicans have done an impressive job of taking over state legislatures .
In the key swing states of North Carolina and Pennsylvania , there is a Democratic governor , a liberal majority on the state supreme court , and a Republican-controlled legislature .
Biden ’ s lawyers surely would prefer their odds in the supreme courts of those states than in a U.S. Supreme Court that ’ s more conservative than it ’ s been in decades .

This story first appeared at ProPublica. ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.
Twenty years after the Supreme Court decision known as Bush v. Gore effectively decided a presidential election, it’s back on the country’s mind. President Donald Trump, who is lagging in polls amid a surge in COVID-19 cases and refuses to commit to leaving office quietly should his bid for reelection fail, has said he believes the Supreme Court will intervene in the upcoming election to hand him a second term. He cited that role to justify rushing the confirmation of Amy Coney Barrett, who was sworn in as a justice on Monday and could potentially break a 4-4 tie. Lawyers representing the president’s campaign and the Republican Party have taken to citing Bush v. Gore frequently in preelection court filings. And the case’s echoes are only underscored by the presence of three current justices — Chief Justice John Roberts, Barrett and Brett Kavanaugh — each of whom worked for the Republicans in the 2000 ballot recount battles in Florida that culminated in the historic Supreme Court decision.
Democrats got agitated this week when Kavanaugh, appointed by Trump in 2018, included a nearly page-long disquisition on Bush v. Gore in an opinion explaining his vote not to reinstate a six-day buffer after Election Day for mail-in ballots, which are expected to lean heavily Democratic, to arrive at election offices in Wisconsin. Then, only two days later, Democrats were cheered by the news that the court had let stand, at least for now, post-Election Day buffer periods in two other key swing states, Pennsylvania and North Carolina. The notion of a conservative court handing the presidency to Trump seemed that much more distant a prospect.
However, opinions by Justices Samuel Alito and Neil Gorsuch appended to Wednesday’s decisions, when read together with Kavanaugh’s opinion, suggest more is afoot. Bush v. Gore is poised for a revival at the high court. That will probably occur in a different scenario than what happened in 2000. The election forecaster FiveThirtyEight projects only a 4% chance of the election being decided by a recount.
But Bush v. Gore has never been the dead letter it’s popularly perceived to be, and it could be a factor in a number of election battles this year. Before 2020, the Supreme Court had mentioned the case only once in two decades. But in the state courts and lower federal courts, it’s quietly but repeatedly taken on new roles over the years, serving to resolve everything from how ballot signatures are reviewed to the deadline for mail-in ballots to reach election officials. This election cycle, with the help of Kavanaugh, Alito and Gorsuch, as well as a welter of GOP lawyers pushing to take Bush v. Gore in a new direction, the case is undergoing a radical transformation. If completed, legal scholars believe, that transformation will have far-reaching and deleterious consequences for efforts to expand voting rights.
What Was Bush v. Gore?
By the early morning hours after Election Day 2000, it was clear that the election contest between the Republican candidate, George W. Bush, and the Democrat, Al Gore, would come down to Florida’s 25 electoral votes. With Bush up in the state by a very thin margin, Gore moved to have machine-tabulated ballots manually recounted. Weeks of legal wrangling ensued, with litigation pingponging around various Florida state courts, twice reaching the U.S. Supreme Court. Eventually, the Florida Supreme Court ordered a statewide manual recount but offered little guidance to ballot counters other than that they had to discern the “clear intent of the voter.” Many Florida counties used punch card ballots at the time, and some Floridians failed to fully punch out the paper tab, called a “chad,” leaving their votes unclear. New phrases entered the American lexicon: “hanging chads” (partially detached), “dimpled chads” (indented but not detached) and so on.
With an important mid-December deadline approaching, Bush’s lawyers asked the Supreme Court to intervene. Late on a Tuesday, just hours ahead of the deadline, the court, by a 5-4 vote, put a stop to the Florida recount, all but declaring Bush the next president. In an unsigned opinion, five of the court’s more conservative justices found that the Florida Supreme Court’s recount rules were vague and inconsistent, resulting in “arbitrary and disparate treatment” of ballots. So, for example, counters in Miami-Dade County might deem a particular hanging chad a vote for president while counters in Palm Beach County might not.
The Constitution gives broad discretion to state legislatures to decide how to appoint the electors it sends to the electoral college. The Bush v. Gore majority held that the Florida recount procedures violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, which requires that the state not “value one person’s vote over that of another.” On this point there was broad agreement; two justices from the court’s liberal wing, Stephen Breyer and David Souter, largely agreed with the five conservatives.
The question remained: what to do about it? Souter and Breyer thought the U.S. Supreme Court should do what it would usually do and send the case back to the Florida Supreme Court with instructions for how to cure the problem. The five conservatives, however, decided that there wasn’t enough time left to fix the recount process and complete it. Two decades later, their reasoning remains the subject of widespread criticism. (The late Justice Antonin Scalia joined the majority opinion but privately called the equal protection rationale, “as we say in Brooklyn, a piece of shit,” according to “First,” a well regarded 2019 biography of retired Justice Sandra Day O’Connor.) In essence, the majority read into an earlier Florida Supreme Court ruling the suggestion that the Florida Legislature wanted the vote count finalized before the mid-December deadline.
Is Bush v. Gore Precedent?
The prevailing view has been no. In that interpretation, Bush v. Gore is a one-off that judges and lawyers are free to ignore. A binding precedent, by contrast, requires that lower courts (and the high court itself) abide by it.
Despite that view, the ruling’s influence appears to be very much alive: It has been cited in hundreds of federal and state cases, dating from the years just after the 2000 election to this week. How can these dueling interpretations coexist? Consider the most often quoted sentence in Bush v. Gore: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” The not-precedent camp points to the first clause as dispositive. But others insist the second clause is every bit as important as the first, and if read in that way, the sentence sounds not so much like a disavowal of future relevance as a word of caution for other judges: Don’t apply the court’s analyses in rote fashion; be sensitive to the facts of the case.
Disagreements over whether Bush v. Gore should be considered a precedent are widespread, including in federal courts. For example, judges on the federal appellate court in Cincinnati decided in 2003 that Bush v. Gore was precedent “we are bound to adhere to.” Thirteen years later, another set of judges on that same court dismissed the opinion as “non-precedential.” Still other judges split the difference, like one on the appeals court in Richmond this year, who called Bush v. Gore “of limited precedential value.”
Bush v. Gore Since Bush v. Gore
For a case that’s widely regarded as an aberration, Bush v. Gore has done all right for itself outside the U.S. Supreme Court. Not only has it been cited well over a hundred times by state supreme courts and federal courts of appeals, that tally grows to about 500 when lower courts are included — from litigation over the 2003 vote to recall California Gov. Gray Davis to this year’s court battle over felon reenfranchisement in Florida. That means there’s a chance Bush v. Gore could reprise its role this year at the center of the resolution of the presidential race, should, say, Pennsylvania become to 2020 what Florida was for 2000. (Indeed, the case has already been raised as part of the ongoing litigation about how to handle mail-in ballots in the state.)
It could also help decide the outcome of other key races, a particularly consequential possibility given that control of the Senate is at stake this year. In 2008, for example, Norm Coleman, an incumbent Republican senator from Minnesota, tried to use Bush v. Gore to challenge the process by which election officials decided whether absentee ballots were valid. He was unsuccessful, and his Democratic opponent, the comedian Al Franken, ultimately won the seat.
Over the past two decades, Bush v. Gore has evolved beyond the partisan identity it maintains in the public imagination. An examination of judicial decisions and court filings in more than 150 cases suggests its invocation won’t necessarily benefit one party or the other.
The ruling has continued to be invoked in its original context, guiding judicial oversight of ballot recounts. That makes it an inviting tool for a president who has repeatedly mused publicly about halting vote tabulations after Election Day. But the case could just as soon help speed along a recount, as the president has seen firsthand in November 2016, when Green Party presidential candidate Jill Stein petitioned for a recount of votes cast in Michigan, a state Trump then appeared to have won by only a few thousand votes. Stein’s recount didn’t change the outcome, but federal judges in that case relied in part on Bush v. Gore to ensure the recount got done on time, ruling in favor of Stein’s request to waive a waiting period mandated by state law before beginning a recount. The delay, they reasoned, might prevent the state from completing the recount ahead of a key federal deadline. Once a state grants a right to a recount, a federal appeals judge wrote, “the State could not use arbitrary or unreasonable procedural rules to make that right a nullity.”
Bush v. Gore has been applied in contradictory ways in different cases, both to disqualify large numbers of ballots or to ensure that ballots aren’t arbitrarily rejected. Just after the 2018 election, for example, Florida Democratic Sen. Bill Nelson’s reelection campaign and a state Democratic Party committee filed a federal lawsuit challenging the way Florida election officials verified signatures on vote-by-mail and provisional ballots. When a state lets residents vote by mail, the campaign’s legal team argued in a filing that relied on Bush v. Gore, the Equal Protection Clause forbids the state from luring “its voters into a procedurally arbitrary vote-by-mail trap that results in their disenfranchisement.” In response to Nelson’s suit, the courts bemoaned “Florida’s lack of any standards or formal training requirements” for those who assess ballot signatures, as well as the state’s failure to notify some Floridians in time to fix improperly rejected ballots. A judge ordered the state to give those voters until 11 days after the election to submit affidavits and proof of identity so their votes would count. (Despite that interim victory, Nelson came up short and lost his seat.)
On the other side of the partisan divide, GOP lawyers this year are deploying Bush v. Gore aggressively. Attorneys for Republican legislators in North Carolina, for instance, recently argued that a state elections board plan to extend the period of time that officials could accept ballots postmarked by Election Day violated Bush v. Gore. In essence, they claimed that the case permitted their clients to use the Equal Protection Clause as a tool to reduce the number of eligible voters who got to cast a ballot. The full appeals court rejected the argument, with one of the judges in the majority calling the plaintiffs’ argument “deeply troubling.” The plaintiffs had suffered no harm, she wrote, and their sole aim was to reduce the number of eligible voters allowed to legally cast their ballot. (Three of the court’s more conservative judges wrote a dissent agreeing with the plaintiffs. On Wednesday, the U.S. Supreme Court rejected a request to temporarily block the extension.)
There’s more of this to come. On Oct. 23, a lawsuit filed in Nevada by the Trump campaign and the state Republican Party argues that the state runs afoul of Bush v. Gore because it offers a way to challenge in-person voters but fails to offer a mechanism for challenging voters who send their ballot through the mail, a potential opening salvo in an attack on mail-in voting in an important swing state.
Bush v. Gore and the Ghost of William Rehnquist
Until recently, Bush v. Gore’s ongoing influence on federal elections has been fairly quiet, adapting to new issues of election administration in an incremental, case-by-case manner. It now seems on the verge of a metamorphosis. In recent years, Bush v. Gore — or, more precisely, a side note in it, a line of reasoning that indisputably is without precedential effect — has begun to gain currency among conservative jurists and election lawyers. In the past week, four members of the Supreme Court’s conservative wing became advocates for the cause, seeking to transform a long-marginal idea into the law of the land. Should a majority of the high court embrace the thinking, the court’s new right-leaning supermajority will have near-total power over courtroom efforts to shape federal elections — a set of circumstances that election law scholars and voting rights lawyers fear could seriously hinder efforts to expand the franchise in the United States.
Separate from the unsigned majority opinion in Bush v. Gore, the late Chief Justice William Rehnquist, joined by Scalia and Thomas, authored a concurring opinion offering “additional grounds” for putting an end to the Florida ballot recount. Ordinarily, when a state supreme court rules on an issue of state law, that state court decision can’t be appealed to the U.S. Supreme Court, an outgrowth of the federal system in the United States. In his concurrence, however, Rehnquist claimed to have identified an exception to this rule in the context of state laws governing presidential elections. In that context, Rehnquist wrote, the U.S. Supreme Court, in fact, could second-guess a state supreme court’s interpretation of its own state’s election law.
Rehnquist’s argument hinged on a narrow reading of the U.S. Constitution’s Presidential Electors Clause, which says, “Each State shall appoint, in such Manner as the Legislature thereof may direct,” the electors that vote for the president and vice president. In the chief justice’s view, the Constitution gave state legislatures exclusive authority to run presidential elections, and when, as in Florida in 2000, a state court (or governor) interfered in the election laws passed by the legislature, that runs afoul of the U.S. Constitution, which means that the federal Supreme Court can intervene to help preserve the state legislature’s power over how the state runs its presidential elections.
The dissenting justices expressed puzzlement and incredulity at Rehnquist’s unusual reading of the Presidential Electors Clause. By his logic, they observed, a state legislature was unconstrained by its state constitution when prescribing laws related to presidential elections. The Supreme Court’s own precedents, the late Justice John Paul Stevens wrote, rejected Rehnquist’s interpretation. “Legislature” in the Presidential Electors Clause, he wrote, meant the state legislature acting in its ordinary lawmaking capacity, subject to a gubernatorial veto and the state constitution as interpreted by the courts, not as an all-powerful synod.
This week, Rehnquist’s theory not only received the imprimatur of four sitting justices; it saw its scope expand. First, on Monday, came Kavanaugh’s riff on Bush v. Gore in his concurrence in the Wisconsin vote-by-mail extension case. It excavated Rehnquist’s theory and held it out as the correct reading of the Constitution. It was an odd place for Kavanaugh to articulate his pro-Rehnquist thesis, because, as Kavanaugh acknowledged, it was entirely irrelevant to the Wisconsin case. The Wisconsin case was appealed from a federal court, not a state court, and there’s no question the U.S. Supreme Court has the power to review the decisions of lower federal courts. Kavanaugh’s footnote suggested he was eager to convey his point of view out into the world, possibly to encourage future litigants to present the court with opportunities to elevate Rehnquist’s concurrence to the level of precedent. That signal may not be necessary. Throughout the country, Republican election lawyers are already doing just that.
No other justice joined Kavanaugh’s concurrence, but just two days later, three of them would join him in extolling the virtues of Rehnquist’s theory. On Wednesday, the Supreme Court declined to roll back similar vote-by-mail buffer periods in two other swing states, North Carolina and Pennsylvania. Unlike in Wisconsin, the extensions of time were authorized by state courts relying on state law, the kind of decision over which the federal Supreme Court ordinarily has no authority. Given the partisan polarization around voting by mail this year, Democrats celebrated the outcome. The festivities, however, were muted. Accompanying each order was a lengthy statement signed by some or all of justices unhappy about the outcome — Alito, Gorsuch and Thomas — and warning that the cases might not be over yet.
Both statements declared their support for adopting Rehnquist’s Bush v. Gore concurrence and went further still, indicating that, within state government, the legislature also has exclusive control over congressional elections. (The Constitution authorizes Congress to override the legislature.) The statement written by Alito, which was appended to the Pennsylvania order, suggested that the Supreme Court might yet intervene after the election, potentially rejecting some large number of ballots that were mailed by Election Day but that arrived at election offices within the three day buffer period.
The more realistic reason for Bush v. Gore to alarm Democrats is that the Supreme Court’s four most conservative justices — Alito, Gorsuch, Kavanaugh and Thomas — seem to be champing at the bit to cut state courts out of federal elections altogether. “Conservative judges have increasingly shown hostility to expanded voting rights, even during a pandemic,” said Rick Hasen, an election law expert at the University of California, Irvine School of Law. The approach embodied in the Rehnquist concurrence, known to lawyers as the independent state legislature doctrine, is one of many tools “that is making it harder for other actors to protect voting rights.”
Can they get a fifth justice on their side? Barrett’s views aren’t yet known, but Roberts doesn’t seem eager to embrace the Rehnquist theory. This Monday, in a brief opinion, the chief justice distinguished the situation in Wisconsin, where a federal court had modified election rules, and in Pennsylvania, where the state supreme court had done so, relying on “the authority of state courts to apply their own constitutions to election regulations.”
Still, other courts are running with the interpretation favored by the four conservative justices. On Thursday, a federal appeals court voted 2-1 to order Minnesota to separate late-arriving mail-in ballots, finding that a state court-ordered buffer period was likely illegal. Their reasoning? Plucked more or less straight from Kavanaugh’s Wisconsin concurrence.
Rehnquist’s theory poses greater risks to Democrats than Republicans, at least in the near term. Over the past decade or so, Republicans have done an impressive job of taking over state legislatures. In the key swing states of North Carolina and Pennsylvania, there is a Democratic governor, a liberal majority on the state supreme court, and a Republican-controlled legislature. Biden’s lawyers surely would prefer their odds in the supreme courts of those states than in a U.S. Supreme Court that’s more conservative than it’s been in decades.


talkingpointsmemo--2020-11-01--GOP Scrambles To Retain Senate Majority, Even If Trump Goes Down

WASHINGTON ( AP ) — Senate Republicans are fighting to save their majority , a final election push against the onslaught of challengers in states once off limits to Democrats but now hotbeds of a potential backlash to President Donald Trump and his allies on Capitol Hill .
Fueling the campaigns are the Trump administration ’ s handling of the COVID-19 crisis , shifting regional demographics and , in some areas , simply the chance to turn the page on the divisive political climate .
Control of the Senate can make or break a presidency .
With it , a @ @ @ @ @ @ @ ensure a backstop against legislation from House Speaker Nancy Pelosi , D-Calif .
Without it , Joe Biden would face a potential wall of opposition to his agenda if the Democratic nominee won the White House .
In North Carolina , for example , the match-up between GOP Sen. Thom Tillis and Democratic challenger Cal Cunningham , among the most expensive in the nation , is close .
“ At some point , you put it in the hands of voters , ” said Dallas Woodhouse , a former executive director of the @ @ @ @ @ @ @ incumbents are straining for survival from New England to the Deep South , in the heartland and the West and even Alaska .
Overpowered in fundraising and stuck in Washington until just last week to confirm Trump ’ s Supreme Court nominee , they are fanning out some alongside Trump for last-ditch , home-state tours to shore up votes .
With the chamber now split , 53-47 , three or four seats will determine Senate control , depending on which party wins the White House .
The vice president breaks a tie in @ @ @ @ @ @ @ lopsided election cycle with Republicans defending 23 seats , compared with 12 for Democrats , quickly became a more stark referendum on the president as Democrats reached deeper into Trump country and put the GOP on defense .
Suddenly some of the nation ’ s better-known senators — Lindsey Graham in South Carolina , Susan Collins in Maine — faced strong reelection threats .
Only two Democratic seats are being seriously contested , while at least 10 GOP-held seats are at risk .
“ I don ’ t see how we hold it @ @ @ @ @ @ @ Republican strategist in South Carolina who opposes the president .
Felkel added : “ You ’ d be hard pressed to admit we don ’ t have a Trump problem.
” The political landscape is quickly changing from six years ago when most of these senators last faced voters .
It ’ s a reminder of how sharp the national mood has shifted in the Trump era .
Younger voters and more minorities are pushing some states toward Democrats , including in Colorado , where the parties have essentially stopped spending money for @ @ @ @ @ @ @ it seems he is heading toward defeat by Democrat John Hickenlooper , a former governor .
In more Republican-friendly terrain , the GOP senators must balance an appeal to Trump ’ s most ardent supporters with outreach to voters largely in suburbs who are drifting away from the president and his tone .
Tillis is struggling to gain ground in North Carolina , a presidential battleground , even after Cunningham ’ s sex-texting scandal with an aide .
Arizona could see two Democratic senators for the first time since last century if former @ @ @ @ @ @ @ GOP Sen. Martha McSally for the seat held by the late Republican John McCain .
A vivid dynamic is in Iowa , a state Trump won in 2016 but is now a toss-up as Sen. Joni Ernst struggles to fend off Democrat newcomer Theresa Greenfield .
Ernst wowed Republicans with a 2014 debut ad about castrating hogs but she faced criticism after last month ’ s debate when she stumbled over the break-even price for soybeans .
In Georgia , Trump calls David Perdue his favorite senator among the many who have jockeyed @ @ @ @ @ @ @ his private phone calls .
But the first-term senator faces a surge of new voters in the state and Democrat Jon Ossoff is playing hardball .
Ossoff called Pedue a “ crook ” over the senator ’ s stock trades during the pandemic .
Perdue shot back that the Ossoff would do anything to mislead Georgians about Democrats ’ “ radical and socialist ” agenda .
Democrats have tapped into what some are calling a “ green wave ” — a new era of fundraising — as small-dollar donations pour in from across @ @ @ @ @ @ @ activism with their pocketbooks .
Graham ’ s challenger in South Carolina , Jamie Harrison , has raised so much money — some $ 100 million — that it sent the top Trump ally scrambling to take the race seriously .
Graham swiftly raked in his own record haul as he led the Senate confirmation of Amy Coney Barrett to the Supreme Court .
Competitive races are underway in Republican strongholds of Texas , Kansas and Alaska where little known Al Gross broke state records , Democrats said , in part with viral @ @ @ @ @ @ @ once fought off a grizzly bear .
Swooping in to fill the gap for Republicans is the Senate Leadership Fund , tapping deep-pocketed donors .
Casino magnate Sheldon Adelson has funneled more than $ 60 million to help Republicans hold the Senate .
Over the weekend , the fund was pouring $ 4.6 million to one of the rare Republican bright spots — in Michigan , where John James , a Black Republican businessman is gaining on Democratic Sen. Gary Peters .
The only other state where Republicans are playing offense is Alabama @ @ @ @ @ @ @ off a rare special election win the Trump stronghold but now wages a longshot campaign against Republican Tommy Tuberville , a former Auburn football coach .
“ We are confident heading into the home stretch because we remain on offense is so many seats across the country , ” said Stewart Boss , a spokesman for the Democratic Senatorial Campaign Committee .
The COVID crisis has shadowed the Senate races as Democrats linked Trump ’ s handling of the pandemic to the GOP ’ s repeated attempts to undo the Obama-era Affordable Care @ @ @ @ @ @ @ those with preexisting medical conditions .
Republicans fired back that Democrats want to keep the economy closed , hurting jobs .
David Flaherty , a Colorado-based Republican pollster , said his surveys are showing that COVID will be “ the most likely issue many voters will make their decisions on.
” “ In more places in the country than not , the president is not getting good marks ” on that , Flaherty said , and it ’ s damaging Senate GOP candidates , “ especially those in lockstep with the president.
” @ @ @ @ @ @ @ night including if no candidate secures a majority , including in Georgia or Maine , where Collins was once considered among the most independent senators , is now confronting critics from the right and left .
Jesse Hunt , spokesman for the National Republican Senatorial Committee said the races are tightening in the final days .
“ We always knew this was going to be a competitive election cycle , ” he said .
Associated Press writer Alan Fram contributed to this report .

WASHINGTON (AP) — Senate Republicans are fighting to save their majority, a final election push against the onslaught of challengers in states once off limits to Democrats but now hotbeds of a potential backlash to President Donald Trump and his allies on Capitol Hill.
Fueling the campaigns are the Trump administration’s handling of the COVID-19 crisis, shifting regional demographics and, in some areas, simply the chance to turn the page on the divisive political climate.
Control of the Senate can make or break a presidency. With it, a reelected Trump could confirm his nominees and ensure a backstop against legislation from House Speaker Nancy Pelosi, D-Calif. Without it, Joe Biden would face a potential wall of opposition to his agenda if the Democratic nominee won the White House.
In North Carolina, for example, the match-up between GOP Sen. Thom Tillis and Democratic challenger Cal Cunningham, among the most expensive in the nation, is close.
“At some point, you put it in the hands of voters,” said Dallas Woodhouse, a former executive director of the state’s Republican Party.
Republican incumbents are straining for survival from New England to the Deep South, in the heartland and the West and even Alaska. Overpowered in fundraising and stuck in Washington until just last week to confirm Trump’s Supreme Court nominee, they are fanning out some alongside Trump for last-ditch, home-state tours to shore up votes.
With the chamber now split, 53-47, three or four seats will determine Senate control, depending on which party wins the White House. The vice president breaks a tie in Senate votes.
What started as a lopsided election cycle with Republicans defending 23 seats, compared with 12 for Democrats, quickly became a more stark referendum on the president as Democrats reached deeper into Trump country and put the GOP on defense.
Suddenly some of the nation’s better-known senators — Lindsey Graham in South Carolina, Susan Collins in Maine — faced strong reelection threats. Only two Democratic seats are being seriously contested, while at least 10 GOP-held seats are at risk.
“I don’t see how we hold it,” said Chip Felkel, a Republican strategist in South Carolina who opposes the president.
Felkel added: “You’d be hard pressed to admit we don’t have a Trump problem.”
The political landscape is quickly changing from six years ago when most of these senators last faced voters. It’s a reminder of how sharp the national mood has shifted in the Trump era.
Younger voters and more minorities are pushing some states toward Democrats, including in Colorado, where the parties have essentially stopped spending money for or against GOP Sen. Cory Gardner because it seems he is heading toward defeat by Democrat John Hickenlooper, a former governor.
In more Republican-friendly terrain, the GOP senators must balance an appeal to Trump’s most ardent supporters with outreach to voters largely in suburbs who are drifting away from the president and his tone .
Tillis is struggling to gain ground in North Carolina, a presidential battleground, even after Cunningham’s sex-texting scandal with an aide.
Arizona could see two Democratic senators for the first time since last century if former astronaut Mark Kelly maintains his advantage over GOP Sen. Martha McSally for the seat held by the late Republican John McCain.
A vivid dynamic is in Iowa, a state Trump won in 2016 but is now a toss-up as Sen. Joni Ernst struggles to fend off Democrat newcomer Theresa Greenfield. Ernst wowed Republicans with a 2014 debut ad about castrating hogs but she faced criticism after last month’s debate when she stumbled over the break-even price for soybeans.
In Georgia, Trump calls David Perdue his favorite senator among the many who have jockeyed to join his golf outings and receive his private phone calls. But the first-term senator faces a surge of new voters in the state and Democrat Jon Ossoff is playing hardball.
Ossoff called Pedue a “crook” over the senator’s stock trades during the pandemic. Perdue shot back that the Ossoff would do anything to mislead Georgians about Democrats’ “radical and socialist” agenda.
Democrats have tapped into what some are calling a “green wave” — a new era of fundraising — as small-dollar donations pour in from across the country from Americans expressing their political activism with their pocketbooks.
Graham’s challenger in South Carolina, Jamie Harrison, has raised so much money — some $100 million — that it sent the top Trump ally scrambling to take the race seriously. Graham swiftly raked in his own record haul as he led the Senate confirmation of Amy Coney Barrett to the Supreme Court.
Competitive races are underway in Republican strongholds of Texas, Kansas and Alaska where little known Al Gross broke state records, Democrats said, in part with viral ads introducing voters to the military-veteran-turned-doctor who once fought off a grizzly bear.
Swooping in to fill the gap for Republicans is the Senate Leadership Fund, tapping deep-pocketed donors. Casino magnate Sheldon Adelson has funneled more than $60 million to help Republicans hold the Senate.
Over the weekend, the fund was pouring $4.6 million to one of the rare Republican bright spots — in Michigan, where John James, a Black Republican businessman is gaining on Democratic Sen. Gary Peters.
“We see a potential opportunity,” said Senate Leadership Fund president Steven Law.
The only other state where Republicans are playing offense is Alabama, where Democratic Sen. Doug Jones pulled off a rare special election win the Trump stronghold but now wages a longshot campaign against Republican Tommy Tuberville, a former Auburn football coach.
“We are confident heading into the home stretch because we remain on offense is so many seats across the country,” said Stewart Boss, a spokesman for the Democratic Senatorial Campaign Committee.
The COVID crisis has shadowed the Senate races as Democrats linked Trump’s handling of the pandemic to the GOP’s repeated attempts to undo the Obama-era Affordable Care Act, particularly its insurance protections for those with preexisting medical conditions. Republicans fired back that Democrats want to keep the economy closed, hurting jobs.
David Flaherty, a Colorado-based Republican pollster, said his surveys are showing that COVID will be “the most likely issue many voters will make their decisions on.”
“In more places in the country than not, the president is not getting good marks” on that, Flaherty said, and it’s damaging Senate GOP candidates, “especially those in lockstep with the president.”
Several races may drag well past election night including if no candidate secures a majority, including in Georgia or Maine, where Collins was once considered among the most independent senators, is now confronting critics from the right and left.
Jesse Hunt, spokesman for the National Republican Senatorial Committee said the races are tightening in the final days.
“We always knew this was going to be a competitive election cycle,” he said.
___
Associated Press writer Alan Fram contributed to this report.


talkingpointsmemo--2020-11-01--Expect To Hear From A Bunch Of Election Lawyers On Nov. 3

NEW YORK ( AP ) — Television networks are adding experts in election law to their election night coverage teams so they ’ re prepared to explain legal challenges or irregularities that may come up during the vote .
Veteran attorney Ben Ginsberg , who represented George W. Bush when the 2000 presidential race was decided in the Supreme Court , has joined CNN for this purpose .
CBS News hired David Becker , founder of the Center for Election Innovation & Research .
ABC and NBC have made similar arrangements , although some of those experts will have more @ @ @ @ @ @ @ is going to war , you want an admiral or general to help you figure out what is going on , ” said David Bohrman , executive producer of CBS ’ coverage .
Becker , former director of the elections program at Pew Charitable Trusts who also worked in the Justice Department , said he sees the CBS role as an extension of his efforts to educate the public about voting issues .
Becker said it ’ s inevitable there will be Election Day incidents such as polling sites where technology breaks down @ @ @ @ @ @ @ , but he expects these will be isolated and it will be his job to explain that .
“ This is going to be the most secure election that we ’ ve ever had , ” he said .
A flurry of court decisions during the week before Tuesday ’ s election on challenges to rules in Wisconsin , Pennsylvania and North Carolina on how long votes can be counted , with the expectation of more to come , illustrates the need for expertise .
Besides Ginsberg , New York University constitutional law @ @ @ @ @ @ @ for CNN .
He appeared on the network last week to discuss the ruling barring Wisconsin from counting ballots that arrive after Election Day .
Pildes , who said he has been encouraging people to vote in person wherever possible , said he worried about an “ explosive situation ” if days drag on without a winner being declared in the presidential race .
“ It will be better if we can get a result sooner rather than later , ” he said .
“ I think everyone recognizes that.
” NBC News @ @ @ @ @ @ @ election law for advice and to provide lawyers who can appear on the air if they need to , said division president Noah Oppenheim .
Like many news organizations , NBC assembled a team that has been specifically covering election integrity issues , with investigative reporter Cynthia McFadden playing a big role .
“ It ’ s not an expertise that we have had to build from scratch , but we certainly are focused on it this cycle , ” Oppenheim said .
The ABC News experts will work offscreen to brief network @ @ @ @ @ @ @ Marc Burstein , the network ’ s top elections producer , said ABC believes it ’ s best for viewers to see faces they ’ re familiar with .
Fox News is relying on its in-house team of legal analysts , said Alan Komissaroff , senior vice president of news and politics .
“ We would be negligent if we didn ’ t have someone with the expertise available to us if we need it , ” Bohrman said .
To a certain extent , CBS ’ Becker see bolstering public confidence in @ @ @ @ @ @ @ part of his job .
He said he knows many elections officials across the country and that “ by and large , these are people that want as many people to vote with confidence and security as possible.
” He said he doubts Russia or any other nation has the ability to disrupt the nation ’ s voting systems to any large degree because there will be a paper trail for nearly 95 percent of the votes that are cast .
He ’ s more concerned about the spread of disinformation sowing doubt @ @ @ @ @ @ @ what happens , a portion of the public will not believe in the result , ” Becker said .
“ Part of our job is to make sure that this portion of the population is as small as possible .
”

NEW YORK (AP) — Television networks are adding experts in election law to their election night coverage teams so they’re prepared to explain legal challenges or irregularities that may come up during the vote.
Veteran attorney Ben Ginsberg, who represented George W. Bush when the 2000 presidential race was decided in the Supreme Court, has joined CNN for this purpose. CBS News hired David Becker, founder of the Center for Election Innovation & Research.
ABC and NBC have made similar arrangements, although some of those experts will have more offscreen roles.
“If the country is going to war, you want an admiral or general to help you figure out what is going on,” said David Bohrman, executive producer of CBS’ coverage.
Becker, former director of the elections program at Pew Charitable Trusts who also worked in the Justice Department, said he sees the CBS role as an extension of his efforts to educate the public about voting issues.
Becker said it’s inevitable there will be Election Day incidents such as polling sites where technology breaks down or people who try to intimidate voters, but he expects these will be isolated and it will be his job to explain that.
“This is going to be the most secure election that we’ve ever had,” he said.
A flurry of court decisions during the week before Tuesday’s election on challenges to rules in Wisconsin, Pennsylvania and North Carolina on how long votes can be counted, with the expectation of more to come, illustrates the need for expertise.
Besides Ginsberg, New York University constitutional law professor Richard Pildes is also doing work for CNN. He appeared on the network last week to discuss the ruling barring Wisconsin from counting ballots that arrive after Election Day.
Pildes, who said he has been encouraging people to vote in person wherever possible, said he worried about an “explosive situation” if days drag on without a winner being declared in the presidential race.
“It will be better if we can get a result sooner rather than later,” he said. “I think everyone recognizes that.”
NBC News has hired a firm that specializes in election law for advice and to provide lawyers who can appear on the air if they need to, said division president Noah Oppenheim. Like many news organizations, NBC assembled a team that has been specifically covering election integrity issues, with investigative reporter Cynthia McFadden playing a big role.
“It’s not an expertise that we have had to build from scratch, but we certainly are focused on it this cycle,” Oppenheim said.
The ABC News experts will work offscreen to brief network correspondents and anchors on the issue. Marc Burstein, the network’s top elections producer, said ABC believes it’s best for viewers to see faces they’re familiar with.
Fox News is relying on its in-house team of legal analysts, said Alan Komissaroff, senior vice president of news and politics.
“We would be negligent if we didn’t have someone with the expertise available to us if we need it,” Bohrman said.
To a certain extent, CBS’ Becker see bolstering public confidence in the nation’s elections system as part of his job. He said he knows many elections officials across the country and that “by and large, these are people that want as many people to vote with confidence and security as possible.”
He said he doubts Russia or any other nation has the ability to disrupt the nation’s voting systems to any large degree because there will be a paper trail for nearly 95 percent of the votes that are cast.
He’s more concerned about the spread of disinformation sowing doubt about the election.
“No matter what happens, a portion of the public will not believe in the result,” Becker said. “Part of our job is to make sure that this portion of the population is as small as possible.”


talkingpointsmemo--2020-11-02--With A Pre-Election EO, Trump Is Again Pushing For Something He Calls ‘Patriotic Education’

On Election Day Eve , President Donald Trump signed an executive order underlining a central theme of his reelection campaign : Liberals want to indoctrinate America ’ s children .
The order itself was a bit wordier , but it neatly echoed Trump ’ s closing message to voters on the campaign trail — that non-white politicians and left-wing ideologue educators wanted to create a new , unrecognizable country .
According to the document establishing “ the President ’ s Advisory 1776 Commission ” Monday , allegations that America is systematically racist “ place rising generations in jeopardy of a @ @ @ @ @ @ @ abandon faith in the common story that binds us to one another across our differences.
” Trump ’ s been on this kick for months .
In a speech at Mount Rushmore on July 4th , for example , he warned of “ a new far-left fascism ” in schools , in newsrooms and on corporate boards .
“ If you do not speak its language , perform its rituals , recite its mantras , and follow its commandments , then you will be censored , banished , blacklisted , persecuted , and @ @ @ @ @ @ @ ’ s order makes four references to “ patriotic education , ” at one point defining the phrase as “ the presentation of the history of the American founding and foundational principles , the examination of how the United States has grown closer to those principles throughout its history , and the explanation of why commitment to America ’ s aspirations is beneficial and justified.
” The order attacked the “ radicalized view of American history ” that “ has vilified our Founders ” and which threatens to “ erase the bonds that @ @ @ @ @ @ @ “ Viewing America as an irredeemably and systemically racist country can not account for the extraordinary role of the great heroes of the American movement against slavery and for civil rights — a great moral endeavor that , from Abraham Lincoln to Martin Luther King , Jr. , was marked by religious fellowship , good will , generosity of heart , an emphasis on our shared principles , and an inclusive vision for the future , ” the order said .
The “ 1776 Commission , ” per Trump ’ s order , @ @ @ @ @ @ @ “ regarding the core principles of the American founding and how these principles may be understood to further enjoyment of ‘ the blessings of liberty ’ and to promote our striving ‘ to form a more perfect Union.
’ ” But even in its name , the 1776 Commission appears to be part of Trump ’ s response to the 1619 Project , a New York Times Magazine package that examined the legacy of slavery in American history .
New York University Professor Ruth Ben-Ghiat , an expert on authoritarianism , told TPM @ @ @ @ @ @ @ the notion of teaching kids about the country ’ s racist past and how it bleeds into the present moment “ goes against everything Trump has been in office to do , which is enact white hegemony.
” “ It ’ s about shutting down certain conversations and allowing others , ” Ben-Ghiat said .
“ Trump is only interested in one truth.
” But Trump ’ s attacks against the 1619 Project being offered as school curricula seem to have backfired somewhat .
Mark Schulte , who directs the national K-12 education @ @ @ @ @ @ @ TPM that Trump ’ s tweet on September 6 threatening to pull funding over schools using 1619 Project lesson plans led to a major spike in interest among teachers .
In the 19 days following the tweet , the Pulitzer Center received 421 survey responses from teachers who decided to incorporate the project in their classes .
In contrast , only 145 surveys had been submitted 19 days before the President ’ s tweet .

On Election Day Eve, President Donald Trump signed an executive order underlining a central theme of his reelection campaign: Liberals want to indoctrinate America’s children.
The order itself was a bit wordier, but it neatly echoed Trump’s closing message to voters on the campaign trail — that non-white politicians and left-wing ideologue educators wanted to create a new, unrecognizable country.
According to the document establishing “the President’s Advisory 1776 Commission” Monday, allegations that America is systematically racist “place rising generations in jeopardy of a crippling self-doubt that could cause them to abandon faith in the common story that binds us to one another across our differences.”
Huh?
Just signed an order to establish the 1776 Commission. We will stop the radical indoctrination of our students, and restore PATRIOTIC EDUCATION to our schools! — Donald J. Trump (@realDonaldTrump) November 2, 2020
Trump’s been on this kick for months. In a speech at Mount Rushmore on July 4th, for example, he warned of “a new far-left fascism” in schools, in newsrooms and on corporate boards.
“If you do not speak its language, perform its rituals, recite its mantras, and follow its commandments, then you will be censored, banished, blacklisted, persecuted, and punished,” Trump said.
Trump’s order makes four references to “patriotic education,” at one point defining the phrase as “the presentation of the history of the American founding and foundational principles, the examination of how the United States has grown closer to those principles throughout its history, and the explanation of why commitment to America’s aspirations is beneficial and justified.”
The order attacked the “radicalized view of American history” that “has vilified our Founders” and which threatens to “erase the bonds that knit our country and culture together.”
“Viewing America as an irredeemably and systemically racist country cannot account for the extraordinary role of the great heroes of the American movement against slavery and for civil rights — a great moral endeavor that, from Abraham Lincoln to Martin Luther King, Jr., was marked by religious fellowship, good will, generosity of heart, an emphasis on our shared principles, and an inclusive vision for the future,” the order said.
The “1776 Commission,” per Trump’s order, will produce a report within a year “regarding the core principles of the American founding and how these principles may be understood to further enjoyment of ‘the blessings of liberty’ and to promote our striving ‘to form a more perfect Union.’”
But even in its name, the 1776 Commission appears to be part of Trump’s response to the 1619 Project, a New York Times Magazine package that examined the legacy of slavery in American history.
New York University Professor Ruth Ben-Ghiat, an expert on authoritarianism, told TPM during a phone interview in September that the notion of teaching kids about the country’s racist past and how it bleeds into the present moment “goes against everything Trump has been in office to do, which is enact white hegemony.”
“It’s about shutting down certain conversations and allowing others,” Ben-Ghiat said. “Trump is only interested in one truth.”
But Trump’s attacks against the 1619 Project being offered as school curricula seem to have backfired somewhat.
Mark Schulte, who directs the national K-12 education program for the Pulitzer Center, told TPM that Trump’s tweet on September 6 threatening to pull funding over schools using 1619 Project lesson plans led to a major spike in interest among teachers.
In the 19 days following the tweet, the Pulitzer Center received 421 survey responses from teachers who decided to incorporate the project in their classes. In contrast, only 145 surveys had been submitted 19 days before the President’s tweet.


talkingpointsmemo--2020-11-02--Federal Judge Rejects GOP Attack On 125,000+ Drive-Thru Ballots In Houston

Update : The Republicans challenging Harris County ’ s drive-thru voting indicated Monday evening that they ’ ll take their case to the U.S. Court of Appeal for the 5th Circuit .
A federal judge has rejected the request by Republican candidates and activists in Texas that the court toss the 125,000-plus ballots that had been cast through Harris County ’ s drive-thru voting option .
U.S. District Judge Andrew Hanen , a very conservative George W. Bush appointee , announced Monday that he was throwing out the lawsuit because the Republicans who brought it didn ’ t meet the @ @ @ @ @ @ @ ’ s intervention .
In doing so , Hanen will also let drive-thru voting continue on Election Day in Harris County , which is home to Houston .
But Hanen ’ s handling of the case was not an across-the-board win for voting rights , as he warned of the potential that an appeals court would disagree with him and thus ordered that records of which ballots were cast via drive-thru voting be maintained .
He also suggested that under different circumstances , the challengers might have been able to block drive-thru voting @ @ @ @ @ @ @ have caused massive chaos and confusion in the final stretch of the election .
Hanen announced his ruling from the bench not long after holding a hearing in the case , during which he previewed the potential that the losing party would turn to the U.S. Court of Appeals for the 5th Circuit .
According to an account of Hanen ’ s announcement from a Texas-based lawyer , the judge said that even if he had found that the challengers had met the procedural threshold to move forward with the lawsuit , he @ @ @ @ @ @ @ discarding the already-cast ballots , which according to the county , amount to 10 percent of its early vote .
Hanen knocked the challengers for waiting so long to bring their complaint , which was filed last week even though the plans for drive-thru voting has been known since since September .
Hanen did say that , had the challengers crossed the procedural bars , he would have likely blocked the use of drive-thru voting on Election Day .
He also ordered that the county keep records of which ballots are cast via @ @ @ @ @ @ @ using it since it could still be vulnerable if the case is appealed .
The Republicans ’ defeat in the federal court case came after the state Supreme Court — which is also very conservative — repeatedly denied requests that it put a stop to curbside voting .

Update: The Republicans challenging Harris County’s drive-thru voting indicated Monday evening that they’ll take their case to the U.S. Court of Appeal for the 5th Circuit.
A federal judge has rejected the request by Republican candidates and activists in Texas that the court toss the 125,000-plus ballots that had been cast through Harris County’s drive-thru voting option.
U.S. District Judge Andrew Hanen, a very conservative George W. Bush appointee, announced Monday that he was throwing out the lawsuit because the Republicans who brought it didn’t meet the procedural threshold to warrant a federal court’s intervention.
In doing so, Hanen will also let drive-thru voting continue on Election Day in Harris County, which is home to Houston.
But Hanen’s handling of the case was not an across-the-board win for voting rights, as he warned of the potential that an appeals court would disagree with him and thus ordered that records of which ballots were cast via drive-thru voting be maintained.
He also suggested that under different circumstances, the challengers might have been able to block drive-thru voting going forward — a decision that would have caused massive chaos and confusion in the final stretch of the election.
Hanen announced his ruling from the bench not long after holding a hearing in the case, during which he previewed the potential that the losing party would turn to the U.S. Court of Appeals for the 5th Circuit.
According to an account of Hanen’s announcement from a Texas-based lawyer, the judge said that even if he had found that the challengers had met the procedural threshold to move forward with the lawsuit, he would not have ruled in favor of discarding the already-cast ballots, which according to the county, amount to 10 percent of its early vote.
Hanen knocked the challengers for waiting so long to bring their complaint, which was filed last week even though the plans for drive-thru voting has been known since since September.
Hanen did say that, had the challengers crossed the procedural bars, he would have likely blocked the use of drive-thru voting on Election Day. He also ordered that the county keep records of which ballots are cast via that option, while cautioned voters against using it since it could still be vulnerable if the case is appealed.
“If I thought plaintiffs had standing, I would deny the injunction as to votes that have already taken place. “ So he’s making this bullet proof. — Raffi Melkonian (@RMFifthCircuit) November 2, 2020
“I also would not enter an injunction because I don’t find it timely. This has been happening at least since September, when the Harris County Commissioner’s Court allocated money.” — Raffi Melkonian (@RMFifthCircuit) November 2, 2020
“If I had found standing, I would *probably* enjoin tomorrow’s voting.” — Raffi Melkonian (@RMFifthCircuit) November 2, 2020
“Three other points:” (a) “If I were voting tomorrow, I would not vote through a drive-through to make sure my vote would be valid.” — Raffi Melkonian (@RMFifthCircuit) November 2, 2020
(b) “I am going to order you to maintain records of who votes drive-through tomorrow.” (c) “I am denying the motions to intervene because I am dismissing the case.” — Raffi Melkonian (@RMFifthCircuit) November 2, 2020
The Republicans’ defeat in the federal court case came after the state Supreme Court — which is also very conservative — repeatedly denied requests that it put a stop to curbside voting.