LIZ, HEATHER AND JOYCE
SCOTUS, if you're listening ...
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Picture it! America, two days after the election. Neither candidate has reached 270 electoral votes. Just one or two states have yet to be called, and the result will likely come down to a few thousand contested ballots. The candidates have filed multiple lawsuits in state and federal court, seeking any advantage as they try to grind out the last few votes and get over the finish line.
Or, if you’re over the age of about 40, remember it! Because that’s exactly what happened in 2000, when the fate of the nation hung on a few thousand ballots in Florida. Twenty-four years ago, the Supreme Court’s conservatives ordered the counting to stop, with George W. Bush just 538 votes ahead of Al Gore. Bush was inaugurated, and Al Gore went on to warn us about climate change in the private sector.
And while memories of the disastrous post-election period in 2020 are fresher, 2000 may be a better predictor of what’s to come this cycle.
This is not 2020
In 2020, we were in the midst of a global pandemic. Election officials did their best to ensure access to the ballot, making it easier to vote by mail and engaging in creative voter outreach, such as registering voters in public parks and collecting ballots in conveniently located drop boxes. Republicans, who are not in the business of expanding the franchise, sued to block these measures and, for the most part, they lost.
During the post-election period, Trump and his allies mainly talked about fraudulent ballots and voting machines haunted by gremlin algorithms. But after four years in which they failed to produce any evidence of this fraud, they’ve now shifted their rationale slightly.
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When pressed by Joe Rogan last week about his claim that the 2020 election was stolen, Trump insisted that increasing ballot access during covid lockdowns was illegal and thus invalidated the results.
“They were supposed to get legislative approval to do the things they did, and they didn’t get it in many cases,” he babbled. “Like for extensions of the voting, for voting earlier. All different things. By law, they had to get legislative approvals. You don’t have to go any further than that.”
Trump’s claim, although he almost certainly doesn’t understand it, harkens back to the Supreme Court’s holding in Bush v. Gore. (More on that in a moment.) But if he’s hanging his hat on pandemic modifications as evidence of fraud, that argument simply will not fly this year when we have returned to more or less “normal” patterns of voting.
Just as saliently, with President Biden in the White House, Trump has very little hope of running the 2020 fake electors scheme — he can hardly expect Vice President Harris, who will be president of the Senate on January 6, 2025, to reject the real electoral certificates if she emerges victorious in November. And while the Justice Department under Bill Barr was willing to hype spurious claims of election fraud, Attorney General Garland will not.
Let’s do the Time Warp againnnnnn
On the Wednesday after the election in 2000, every state but Florida had been called. George W. Bush, whose brother Jeb was governor of Florida, was ahead of Al Gore by fewer than 2,000 votes. This tiny margin triggered a mandatory recount, which was disrupted by a bunch of Republican lawyers, including Ted Cruz, who tried to shut it down in what became known as the Brooks Brothers Riot.
On December 8, 2000, with Bush down to just a 538 vote lead, the Florida Supreme Court ordered a hand count of 61,000 ballots, instructing canvassers to tabulate undervotes from “hanging chads,” the paper tabs which sometimes failed to detach from punch card ballots. With 9,000 undervotes in highly Democratic Dade County, this was pretty clearly going to put Gore over the top. But on December 9, the US Supreme Court stopped the count, and four days later it issued a garbled 5-4 opinion claiming that it was simply too late for the state to complete the canvas and meet certification deadlines
The ruling was nakedly partisan and a great blow to the Court’s legitimacy. But Bush v. Gore’s legacy continues thanks to this particular section:
The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. U. S. Const., Art. II, § 1. This is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 35 (1892), that the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.
The Court’s holding itself was rooted in an equal protection argument. But the conservative justices added this language suggesting that the Constitution grants state legislatures “plenary” authority to control elections. And that is what became known as the independent state legislature theory.
Adherents believe that legislators cannot be constrained by courts, or secretaries of state, or even ballot referenda, and may, as the Supreme Court suggested, even “take back the power to appoint electors.” That is what Trump was mumbling about to Joe Rogan, and it’s coming up in a bunch of different contexts this year.
Maryland Republican Rep. Andy Harris got caught on video saying earlier this month that he believes that North Carolina’s legislature should simply declare Trump the victor, citing the impact of Hurricane Helene on the state’s Republican voters. (Watch below.)
Harris’s comment came in the context of a speech by Ivan Raiklin, a frequent speaker at MAGA events who has described himself as Trump’s Secretary of Retribution. In 2020, Raiklen aggressively promoted the “Pence Card” plan to have the vice president toss out the ballots. This time he insists that the legislatures of Arizona, Georgia, Nebraska, New Hampshire, North Carolina, and Wisconsin should simply convene on November 5 and declare Trump the winner.
At this point, there’s no widespread support for a plan to simply steal the election in state legislatures. Indeed, the Electoral Count Reform Act of 2022 clarified that state legislatures cannot simply cancel the election after ballots have been cast. (Although ISL truthers insist that law is unconstitutional.) Also, the Supreme Court issued at least a partial repudiation of the ISL theory in 2023’s Moore v. Harper, holding that “The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections,” and so state courts can weigh in on issues of state election law.
But Trump’s allies are still making plans to replicate Bush v. Gore in hopes of ensuring another GOP victory, irrespective of the will of the voters.
It’s the provisionals, stupid
If the race is very close, Republicans will challenge tranches of untabulated ballots and hope the Supreme Court’s conservatives agree to jump in again like they did 24 years ago (and also in July with their scandalous immunity holding in Trump v. US). This strategy rests on having a pool of votes uncounted, or at least contested, at the end of the process, and the most likely source is provisional ballots.
Provisional ballots exists nationwide thanks to the Help America Vote Act, which was passed in 2002, in part because of widespread outrage that so many voters were turned away from the polls in 2000. Under HAVA, individuals who are not on the official list of registered voters are entitled to cast a provisional ballot if they sign an attestation that they are eligible and have not already voted. After all the rest of the in-person and mail-in ballots are tabulated, election officials determine the eligibility of provisional voters and tally their ballots. This makes the provisionals a prime target for Republicans hoping to repeat 2000.
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First, conservative activists are trying to force as many Democratic voters as possible to cast provisional ballots. In North Carolina, hordes of volunteers are poring over the rolls looking for voters to challenge. CBS reports that James Womack, chair of the Lee County Republican Party, told his trainees, "If you've got folks that you, that were registered, and they're missing information … and they were registered in the last 90 days before the election, and they've got Hispanic-sounding last names, that probably is, is a suspicious voter.” In Georgia, Republicans challenged the eligibility of more than 63,000 voters. And nationwide, an army of GOP “observers” is poised to challenge voters at their polling places.
Not all of these challenges will force voters to cast provisional ballots. Indeed most challenges have been disregarded in Georgia. But in a close election, a few thousand contested ballots might do the trick. And Republicans are not confining themselves to challenging individual voters.
In Pennsylvania, the state Supreme Court ruled last week in a 4-3 decision that voters who mess up their mail-in ballots may cast provisional ballots on election day and have them counted. It’s notoriously easy to mess up a mail-in ballot in Pennsylvania, which requires multiple signatures and two envelopes. Republicans have long argued that voters should not be able to “cure” defective ballots, claiming that the ballot is “cast” at the moment when it is delivered to the registrar, even if it is never counted. The majority ruled that a discarded ballot was never “cast,” and thus a provisional ballot must be counted in cases where the original mail-in ballot was defective. But in dissent, Justice Sally Mundy all but instructed the RNC to lodge an appeal to the Supreme Court on independent state legislature grounds.
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She wrote that the majority opinion “exceeded the scope of judicial review and usurped the General Assembly’s power to regulate federal elections” and accused the four liberal justices of “unconstitutional intrusion upon the role reserved to state legislatures by the Federal Constitution.” Unsurprisingly, Justice Mundy’s dissent features prominently in a petition for certiorari filed with the Supreme Court on Monday urging the justices to either reverse the Pennsylvania high court or order officials to segregate the contested ballots from the rest of the provisionals. This would conveniently leave a tidy pile of ballots that might be zeroed out in a Bush v. Gore scenario where the Supreme Court could ensure the victor by waiting for Trump to be ahead and yelling “STOP THE COUNT!”
And if that doesn’t work, Republicans are filing lawsuit after lawsuit challenging overseas and military ballots, ballots postmarked by election day but which arrive a few days late, and the supposed failure of secretaries of state to “clean” their voter rolls. Meanwhile, upwards of a million voters have been purged from the rolls in Texas alone, and tens of thousands of people may get a nasty surprise when they show up to vote next week and find themselves mysteriously ineligible. All of this is in service of reinforcing a false narrative that the polls are riddled with non-citizen voters, while sowing chaos and confusion in hopes that the Supreme Court will once again step in and “resolve” the “problem” by choosing the winner.
It’s a remarkably craven exercise, and wholly antithetical to democracy. But on Wednesday morning, the Court’s six conservatives used the shadow docket to greenlight a purge of the voter rolls in Virginia, in blatant defiance of the National Voter Registration Act’s ban on systemically disenfranchising voters in the 90 days before an election so … ¯\_(ツ)_/¯
On Friday, October 25, at a town hall held on his social media platform X, Elon Musk told the audience that if Trump wins, he expects to work in a Cabinet-level position to cut the federal government. He told people to expect “temporary hardship” but that cuts would “ensure long-term prosperity.” At the Trump rally at New York City’s Madison Square Garden on Sunday, Musk said he plans to cut $2 trillion from the government. Economists point out that current discretionary spending in the budget is $1.7 trillion, meaning his promise would eliminate virtually all discretionary spending, which includes transportation, education, housing, and environmental programs. Economists agree that Trump’s plans to place a high tariff wall around the U.S., replacing income taxes on high earners with tariffs paid for by middle-class Americans, and to deport as many as 20 million immigrants would crash the booming economy. Now Trump’s financial backer Musk is factoring in the loss of entire sectors of the government to the economy under Trump. Trump has promised to appoint Musk to be the government’s “chief efficiency officer.” “Everyone’s going to have to take a haircut.… We can’t be a wastrel.… We need to live honestly,” Musk said on Friday. Rob Wile and Lora Kolodny of CNBC point out that Musk’s SpaceX aerospace venture has received $19 billion from the U.S. government since 2008. An X user wrote: “I]f Trump succeeds in forcing through mass deportations, combined with Elon hacking away at the government, firing people and reducing the deficit—there will be an initial severe overreaction in the economy…. Markets will tumble. But when the storm passes and everyone realizes we are on sounder footing, there will be a rapid recovery to a healthier, sustainable economy. History could be made in the coming two years.” Musk commented: “Sounds about right[.]” This exchange echoes the prescription of Treasury Secretary Andrew Mellon, whose theories had done much to create the Great Crash of 1929, for restoring a healthy economy. “Liquidate labor, liquidate stocks, liquidate the farmers, liquidate real estate,” he told President Herbert Hoover. “It will purge the rottenness out of the system. High costs of living and high living will come down. People will work harder, live a more moral life. Values will be adjusted, and enterprising people will pick up the wrecks from less competent people.” Mellon, at least, was reacting to an economic crisis thrust upon an administration. Musk is seeking to create one. Today the Commerce Department reported that from July through September, the nation’s economy grew at a solid 2.8%. Consumer spending is up, as is investment in business. The country added 254,000 jobs in September, and inflation has fallen back almost to the Federal Reserve’s target of 2%. It is extraordinarily rare for a country to be able to reduce inflation without creating a recession, but the Biden administration has managed to do so, producing what economists call a “soft landing,” rather like catching an egg on a plate. As Bryan Mena of CNN wrote today: “The US economy seems to have pulled off a remarkable and historic achievement.” Both President Joe Biden and Democratic presidential nominee Vice President Kamala Harris have called for reducing the deficit not by slashing the government, as Musk proposes, but by restoring taxes on the wealthy and corporations. As part of the Republicans’ plan to take the country back to the era before the 1930s ushered in a government that regulated business and provided a basic social safety net, House speaker Mike Johnson (R-LA) expects to get rid of the Affordable Care Act. At a closed-door campaign event on Monday in Pennsylvania for a Republican House candidate, Johnson told supporters that Republicans will propose “massive reform” to the Affordable Care Act, also known as “Obamacare,” if they take control of both the House and the Senate in November. “Health-care reform’s going to be a big part of the agenda,” Johnson said. Their plan is to take a “blowtorch to the regulatory state,” which he says is “crushing the free market.” “Trump’s going to go big,” he said.” When an attendee asked, “No Obamacare?” he laughed and agreed: “No Obamacare…. The ACA is so deeply ingrained, we need massive reform to make this work, and we got a lot of ideas on how to do that.” Ending a campaign with a promise to crash a booming economy and end the Affordable Care Act, which ended insurance companies’ ability to reject people with preexisting conditions, is an unusual strategy. A post from Trump last night and another this morning suggest his internal polls are worrying him. Last night he claimed there was cheating in Pennsylvania’s York and Lancaster counties. Today he posted: “Pennsylvania is cheating, and getting caught, at large scale levels rarely seen before. REPORT CHEATING TO AUTHORITIES. Law Enforcement must act, NOW!” Trump appears to be setting up the argument he used in 2020, that he can lose only if he has been cheated. But it is increasingly apparent that the get-out-the-vote, or GOTV, efforts of the Trump campaign have been weak. When Trump’s daughter-in-law Lara Trump and loyalist Michael Whatley became the co-chairs of the Republican National Committee in March 2024, they stopped the GOTV efforts underway and used the money instead for litigation. They outsourced GOTV efforts to super PACs, including Musk’s America PAC. In Wired today, Jake Lahut reported that door-knockers for Musk’s PAC were driven around in the back of a U-Haul without seats and threatened with having to pay their own hotel bills if they didn’t meet high canvassing quotas. One of the canvassers told Lahut that they thought they were being hired to ask people who they would be voting for when they flew into Michigan, and was surprised to learn their actual role. The workers spoke to Lahut anonymously because they had signed a nondisclosure agreement (a practice the Biden administration has tried to stop). Trump’s boast that he is responsible for the Supreme Court’s overturning of the 1973 Roe v. Wade decision recognizing the constitutional right to abortion is one of the reasons his support is soft. In addition to popular dislike of the idea that the state, rather than a woman and her doctor, should make decisions about her healthcare, the Dobbs v. Jackson Women’s Health Organization decision is now over two years old, and state examinations of maternal deaths are showing that women are dying from lack of reproductive healthcare. Cassandra Jaramillo and Kavitha Surana of ProPublica reported today that at least two pregnant women have died in Texas when doctors delayed emergency care after a miscarriage until the fetal heartbeat stopped. The woman they highlighted today, Josseli Barnica, left behind a husband and a toddler. At a rally this evening near Green Bay, Wisconsin, Trump said his team had advised him to stop talking about how he was going to protect women by ending crime and making sure they don’t have to be “thinking about abortion.” But Trump, who has boasted of sexual assault and been found liable for it, did not stop there. He went on to say that he had told his advisors, “I’m going to do it whether the women like it or not. I am going to protect them.” The Trump campaign remains concerned about the damage caused by the extraordinarily racist, sexist, and violent Sunday night rally at Madison Square Garden. Today the campaign seized on a misstatement President Biden made when condemning the statement from the Madison Square Garden event that referred to Puerto Rico as a “floating island of garbage.” They tried to turn the tables to suggest that Biden was calling Trump supporters garbage, although the president has always been very careful to focus his condemnation on Trump alone. In Wisconsin today, when he disembarked from his plane, Trump put on an orange reflective vest and had someone drive him around the tarmac in a garbage truck with TRUMP painted on the side. He complained about Biden to reporters from the cab of the truck but still refused to apologize for Sunday’s slur of Puerto Rico, saying he knew nothing about the comedian who appeared at his rally. This, too, was an unusual strategy. Like his visit to McDonalds, where he wore an apron, the image of Trump in a sanitation truck was likely intended to show him as a man of the people. But his power has always rested not in his promise to be one of the people, but rather to lead them. The pictures of him in a bright orange vest and unusually dark makeup are quite different from his usual portrayal of himself. Indeed, media captured a video of Trump’s stunt, and it did not convey strength. MSNBC’s Katie Phang watched him try to get into the truck and noted: “Trump stumbles, drags his right leg, almost falls over, and tries at least three times to open the door…. Some transparency with Trump’s medical records would be nice.” The Las Vegas Sun today ran an editorial that detailed Trump’s increasingly obvious mental lapses and concluded that Trump is “crippled cognitively and showing clear signs of mental illness.” It noted that Trump now depends “on enablers who show a disturbing willingness to indulge his delusions, amplify his paranoia or steer his feeble mind toward their own goals.” It noted that if Trump cannot fulfill the duties of the presidency, they would fall to his running mate, J.D. Vance, who has suggested “he would subordinate constitutional principles for personal profit and power.” — |
Donald Trump started his morning with this rant on Truth Social: It followed a claim he’d made last night that thousands of fraudulent registrations and ballots had been received in York and Lancaster counties. That’s not the case. There is no evidence of fraudulent ballots, although both counties are investigating some potentially bad registrations. That, of course, is exactly what counties are supposed to do, screen out any registration applications from ineligible people so they do not advance to voter roles. There was absolutely nothing to suggest “large scale levels” of cheating “rarely seen before.” NBC’s senior internet reporter Brandy Zadrozny, who, news-gods willing, will be our guest for Five Questions Friday evening, wrote these incredible words Wednesday: “A viral video posted by a popular QAnon X account, purporting to show evidence of illegal harvesting in Northampton County, Pennsylvania, is in fact video of a postal worker delivering ballots to the elections office.” Zadrozny reported that a county official told NBC News that the video “showed Charles Narciso, a 25-year veteran of the U.S. Postal Service and the acting postmaster, lawfully bringing ballots into the election office,” and that NBC had verified his identity. That did not stop the story from becoming the most recent lie about election fraud to go viral. The story related that the video had been viewed at least 4.2 million times by Wednesday morning, according to X, and “was shared by conservative influencers and conspiracy theorists. Alex Jones tweeted the video with the caption, ‘They don’t even try to hide it!’” There are five more days to go before we get to election day. And that’s only Pennsylvania, which also has a mail-in ballot case pending in front of the Supreme Court, Genser v. Butler County Board of Elections, that will determine whether Pennsylvanians whose mail-in ballots are rejected for technical reasons are entitled to vote a provisional ballot in person rather than be completely disenfranchised. If the election is close, it’s possible that those ballots could decide the election. Wednesday morning, in a disgraceful departure from both federal law and the so-called Purcell principle that SCOTUS uses to reject changes too close to an election, the nation’s highest court permitted Virginia to return to removing voters from the rolls. The Fourth Circuit had made them stop earlier this week. Although there is no written opinion, just the notation below, Justices Sotomayor, Kagan, and Jackson would not have granted the stay. The facts in the Virginia case are similar to the one in Alabama involving alleged noncitizens, many of whom turned out to be eligible citizen voters. We’ve discussed both situations in recent weeks, including last night. The disenfranchised voters are people who became naturalized citizens at some point, but were not citizens at an earlier point when their status was collected. People become newly minted citizens in this country every day. The case included evidence that U.S. citizens had likely been removed from the rolls. The states could have used a surgical scalpel to remove only noncitizens from the rolls instead of a blunt force instrument that swept so broadly. The federal law, The National Voter Registration Act (NVRA), requires them to complete purging of voter roles 90 days before the election, which gives them over a year to get it done between the midterm and the general. DOJ explains how that works: The NVRA limits when States can conduct a general list maintenance program. Under Section 8(c)(2), States must complete any program that systematically removes the names of ineligible voters from the official list of eligible voters no later than 90 days before a primary election or general election for federal office. In other words, once an election for federal office is less than 90 days away, processing and removals based on systematic list maintenance must cease. And, if a State’s federal primary election occurs less than 90 days before a federal general election, the State must complete any systematic-removal program based on change of address for the federal election cycle no later than 90 days prior to the federal primary election: no further systemic activity may take place between the primary and general elections. After that, it’s pencils down. No more purging. So it should have been clear that Virginia was violating the law, and that seemed to be the case—until it got to the U.S. Supreme Court. They didn’t have to explain their decision, probably a good thing for the conservative justices because it’s hard to figure out what they could say. What’s actually happening here? In Virginia, people were removed from the rolls if they had ever checked the noncitizen box on a Department of Motor Vehicles form or left it blank. Under the NVRA, states are also required to let people register to vote on the same form they use to get or renew a drivers license or similar, as well as applications for social services. In some small number of cases, noncitizens accidentally register because they’re given bad directions or accidentally check the wrong box. But many of them become citizens at a later date, as the Alabama case, where at least 2,000 of the removed people were determined to be eligible voters, shows. The fact that they become registered this way does not suggest that they actually go ahead and vote. It is still a crime for noncitizens to vote. States “purge” their voter rules for precisely this reason, to catch any errors that slip past in the registration process. But they can’t do it within the quiet period that Congress established precisely to prevent problems like the ones in Alabama and Virginia, where eligible voters were removed along with a small number of ineligible ones. As American constitutional law scholar and Loyola Law School professor Justin Levitt told me, “You won’t find proof [of noncitizen voting]. Because this is proving that UFOs aren’t landing. What you will find is the repeated absence of any kind of evidence that they are registering or voting in any sizable numbers. Kansas, Colorado, Georgia, North Carolina, etc.—nobody has been able to identify anything other than a handful, despite the fact that there’s a rock-solid paper trail of who votes … At some point, the spectacular failure of anyone to show proof that the UFOs are landing has to kind of refute the notion that the UFOs are landing in big numbers.” Virginia removed 1600 people from the rolls before they were ordered to stop. Alabama’s Secretary of State acknowledged he removed more than 3,200. Even if every single one of these voters had been ineligible and had voted—neither of which is the case—those votes would not have been significant enough to influence the outcome in either state. But it is up to secretaries of state to do their job within time limits provided by federal law. When it comes to the Supreme Court, it’s the hypocrisy that gets to me. This Court let Alabama’s legislature get away with an unconstitutionally gerrymandered congressional district for two additional years, invoking the Purcell principle that said it was too close to the election to make any changes that time around. But now, they’ll permit Virginia to remove voters within the time period where federal law strictly prohibits it, not just an amorphous doctrine they invoke when it suits them. And, the state could have been working on these checks for the last few years. Whatever this Virginia decision is, it is not grounded in precedent or principle. That’s a lot of law for one night. Thanks for sticking with me. And thanks for relying on Civil Discourse for plain talk and explanation of how the law works and intersects with politics. I never imagined that my geekish interest in voting law would become a mainstream topic of conversation in our country. But I’m deeply grateful to those of you who trust me to help explain it and read the newsletter. We’re in this together, Joyce |