[EL] ELB News and Commentary 12/12/20 (Twentieth Anniversary of Bush v. Gore)
Rick Hasen
rhasen at law.uci.edu
Sat Dec 12 16:46:32 PST 2020
Twenty Years After Bush v. Gore, America Has Learned the Key Wrong Lesson<https://electionlawblog.org/?p=119586>
Posted on December 12, 2020 4:43 pm<https://electionlawblog.org/?p=119586> by Rick Hasen<https://electionlawblog.org/?author=3>
Today marks the 20th anniversary of Bush v. Gore. On the case’s 10th anniversary, I remarked<https://electionlawblog.org/?p=17014> that perhaps the anniversary would go more unnoticed on the 20th anniversary than the 10th, as many students I teach now about the case would have been in diapers back on Dec. 12, 2020. Unfortunately, I think the shadow of Bush v. Gore now looms larger than it did 20 years ago. It’s lesson to fight in every possible court over election rules hangs over our election system, and that events in recent days could have been at least somewhat averted had we learned the right lessons from 20 years ago.
Twenty years ago, we suffered from a hyperdecentralized, partisan election system, filled with pockets of election administrator incompetence and faulty voting machinery. The good news is that the country is much better at running elections and many fewer voters have their votes lost because of poor voting systems. I don’t mean to minimize those accomplishments in this post.
But it also became clear in Bush v. Gore that in very close elections, the rules of the game matter and that in close enough elections litigating over election results is possible. What’s happened since then, according to statistics I’ve compiled for my book Election Meltdown<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr>, is a near tripling of litigation in the post-2000 period compared to the pre-2000 period. 2018 set a record for election litigation, that surely will be be broken when I compile 2020 statistics.
The difference this time around is that we didn’t even need a close election for there to be extensive litigation. All it took is someone who is unwilling to concede a lost election and a willingness to raise (and reraise) frivolous claims. While the courts and decisionmakers from both parties courageously held the line (and deserve all the commendations for it), many Republicans were willing to endorse an anti-American antidemocratic gambit to steal the election through a frivolous legal theory. It is great that the courts held, but there will be no consequences (and perhaps even rewards like a pardon for Ken Paxton) to come out of the latest debacle. And Trump’s false claims of fraud will no doubt be the predicate for a new round of voter suppression measures to come in some Republican states.
Maybe this is just Trump, and he’s sui generis and things will revert to more normalcy in running elections and considering whether to bring election litigation in future elections. But I’m skeptical.
We could have done much more to fix our broken election system after Bush v. Gore, like having national nonpartisan election administration insulated from presidential control with greater uniformity of rules. This is the model of other advanced democracies around the world. If we couldn’t go that far, Congress could have established more uniform rules for elections, which could have helped during covid. Other countries are able to run elections during a pandemic without precipitating a 5-week-and-counting national crisis.
Bush v. Gore taught political operatives the key lesson to fight over every vote, and some that it is okay to try to make it harder from some people to vote to gain political advantage. Rather than create systems that make such litigation less likely to succeed, protect voting rights, and that bolster public support for our election process, we now have quadrennial angst over whether we can avoid an election meltdown after some states pass new voting restrictions in the name of preventing phantom fraud.
Trump or no Trump, Bush v. Gore has taught every presidential campaign the necessity of having election lawyers ready to go in battles across the country in a system where the rules of engagement remain uncertain. This is not normal for an election system, and it is putting our democracy under great stress. The problems won’t go away until we fundamentally rework how we conduct American elections.
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Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>, Election Meltdown<https://electionlawblog.org/?cat=127>
From the ELB Archives: Six Reflections on Bush v. Gore (10th Anniversary)<https://electionlawblog.org/?p=119584>
Posted on December 12, 2020 4:17 pm<https://electionlawblog.org/?p=119584> by Rick Hasen<https://electionlawblog.org/?author=3>
Six Reflections on Bush v. Gore<https://electionlawblog.org/?p=17014>
Posted on December 12, 2010 7:20 pm<https://electionlawblog.org/?p=17014> by Rick Hasen<https://electionlawblog.org/?author=3>
Today is the tenth anniversary of the Supreme Court’s decision in Bush v. Gore, ending the Florida recount and handing the 2000 presidential to George W. Bush. Here is a link to the reflections in this series:
Lyle Denniston, That Night at the Courthouse<http://electionlawblog.org/archives/018258.html>
Ned Foley, Bush v. Gore in Historical Perspective<http://moritzlaw.osu.edu/electionlaw/comments/index.php?ID=7991> (Moritz)
Heather Gerken, Rethinking the 2000 Fiasco<http://electionlawblog.org/archives/018259.html>
Rick Hasen, Election Hangover: The Real Legacy of Bush v. Gore<http://www.slate.com/id/2276710/> (Slate)
Nate Persily, Bush v. Gore in the American Mind<http://electionlawblog.org/archives/018266.html>
Rick Pildes, That Night Ten Years Ago<http://electionlawblog.org/archives/018265.html>
After reading Nate’s contribution, I wonder if the 20th anniversary will go even more unnoticed. In my Remedies class, I always teach about the most controversial stay order in history, the Supreme Court’s Dec. 10, 2000 order stopping the statewide recount of undervotes ordered by the Florida Supreme Court. I used to say to my students, with a great laugh: “There was a disputed election in Florida, you may have heard about it.” Now, ten years later, when I teach the same stay order, I say with a completely straight face: “There was a disputed election in Florida, you may have heard about it.” Many of those students were in middle school when Bush v. Gore was decided. In 2020, I’m guessing most students would have been in diapers when the case was decided. Time marches on.
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Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>
Ned Foley: “Is Texas v. Pennsylvania an obituary for Bush v. Gore?”<https://electionlawblog.org/?p=119581>
Posted on December 12, 2020 4:12 pm<https://electionlawblog.org/?p=119581> by Rick Hasen<https://electionlawblog.org/?author=3>
The following is a guest post by Ned Foley, on the 20th anniversary of the Supreme Court’s decision in Bush v. Gore:
On the evening before the twentieth anniversary of Bush v. Gore, one of the most infamous Supreme Court cases in U.S. history (if hardly one of the most precedent-generating), the Court summarily disposed of the case that in some ways is the closest comparison to it.
In Texas v Pennsylvania, this year’s case that most directly attempted to have the Court control the outcome of the presidential election—because it was a simultaneous challenge, joined by Donald Trump himself, to the electoral votes of four states, enough to make the difference in the outcome—the Court dismissed the case with a single substantive sentence: “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”
Just imagine if twenty years ago, the Court had been equally dismissive of then-Governor George W. Bush’s efforts to overturn the recount ordered by the Florida Supreme Court, a single sentence something along the lines of “Petitioners have not demonstrated a sufficient basis for federal judicial interference with the State’s conduct of a recount in an election conduct pursuant to state laws and procedures.” Who knows how history might have turned out differently?
Perhaps nothing much would have changed; Bush still would have prevailed in the recount and thus become president, with all the implications that followed from his presidency, most especially the ill-fated Iraq war. But maybe Gore would have won the recount—although that only would have set the stage for more contestation over the result, with Florida’s legislature appointing a rival slate of electors as it was already considering—with the dispute reaching all the way to Congress, and Gore having to decide whether he as Vice President would have to recognize Governor Jeb Bush’s authority to decisively certify the electors appointed by the legislature rather than the ones appointed pursuant to the court-ordered recount. That scenario, still resulting in George Bush becoming the 43rd president, would have set a different sort of precedent for how to handle these electoral disputes than the Court’s decision in Bush v. Gore.
But Bush v. Gore appeared to judicialize the resolution of a presidential election. Insofar as Texas v. Pennsylvania emphatically refused to judicialize this year’s election, does yesterday decision effectively signal the death of Bush v. Gore? If so, it’s a lethal present for its twentieth birthday.
My guess, and it can only be a guess given the brevity of yesterday’s decision, is that the two cases will sit side-by-side in uneasy tension until the next time the result of a presidential election gets litigated. Until overruled, Bush v. Gore will continue to show that there is at least a range of issues, depending on when and how presented, that are susceptible to judicial resolution and could (at least conceivably) affect the counting of ballots in a way that would change the outcome of the popular vote in a pivotal state to determining an Electoral College majority. At the same time, Texas v. Pennsylvania will now show that not every effort to undo the count of the popular vote in states that will determine the Electoral College outcome can be put in a form palatable to Supreme Court resolution. Next time, commentators will speculate whether a particular case is more like Bush v. Gore or more like Texas v. Pennsylvania—until the Court itself answers that question.
The Court soon may add to the evidence that will affect this analysis. Still left over from all litigation about the 2020 election is the question whether Pennsylvania’s supreme court violated the federal Constitution by improperly deviating from the state’s statutory law concerning the delivery of absentee ballots. The Court may grant cert on this issue, although not in a way that would affect this year’s election, but instead to provide guidance for the future. If the Court does say that the Pennsylvania Supreme Court violated the federal constitutional prerogative of the state’s legislature, the Court will be opening the door to a lot more litigation of this nature—as evidenced most clearly by the Texas case itself, where multiple versions of this claim were rolled into one omnibus lawsuit. The prospect of opening that Pandora’s Box might be enough for the Court to keep it firmly shut, at least for as long as possible.
But even if the Court decides to venture down this road, it would not necessarily want to do so in the procedural posture of deciding who wins the White House. There would be a way to confine these claims to lawsuits brought before ballots are cast, analogous to the Purcell principle regarding the timing of election-related litigation. The only thing that remains true about Bush v. Gore twenty years on is that the Court is not especially comfortable picking presidential winners.
Most assuredly, the justices feel better about themselves—and will have no regrets—having stayed out of Texas v. Pennsylvania, despite all of Trump’s jawboning about their need to get involved, compared to all the heartburn and regrets that Bush v. Gore caused as later admitted even by members of that Court’s majority.
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Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>, Supreme Court<https://electionlawblog.org/?cat=29>, The Voting Wars<https://electionlawblog.org/?cat=60>
“Wisconsin Supreme Court shows divisions as it hears Trump lawsuit seeking to overturn state’s election”<https://electionlawblog.org/?p=119579>
Posted on December 12, 2020 3:59 pm<https://electionlawblog.org/?p=119579> by Rick Hasen<https://electionlawblog.org/?author=3>
Patrick Marley:<https://www.jsonline.com/story/news/politics/elections/2020/12/12/wisconsin-supreme-court-hears-trump-lawsuit/6521387002/>
he state Supreme Court showed deep divisions Saturday as it contemplated a final push by President Donald Trump to throw out Democrat Joe Biden’s narrow win in Wisconsin.
The arguments<https://www.wicourts.gov/courts/livestream.htm> — a rarity on a weekend — came amid a string of legal setbacks for the president. During the arguments, a federal judge in Milwaukee ruled against Trump<https://www.jsonline.com/story/news/politics/2020/12/12/trump-wisconsin-lawsuit-dismissed-federal-judge/3894689001/>, dealing the seventh defeat to Trump and his allies in 10 days over Wisconsin’s results.
The three liberals on the state’s high court showed extreme skepticism toward Trump’s arguments. Three conservatives showed some support for at least parts of his claims.
Unclear were the views of Justice Brian Hagedorn, who was elected last year with the support of Republicans but has sided at times with the liberals. He joined the liberals last week in turning down three other challenges to Wisconsin’s election results.
In the latest case, the justices are expected to rule before the Electoral College meets at noon Monday. …
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>
Wisconsin: “GOP election official tells legislators no ‘credible evidence of large-scale voter fraud’ during November election”<https://electionlawblog.org/?p=119577>
Posted on December 12, 2020 3:56 pm<https://electionlawblog.org/?p=119577> by Rick Hasen<https://electionlawblog.org/?author=3>
Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/elections/2020/12/11/wisconsin-lawmakers-hold-election-hearing-trump/3884147001/>
A Republican member of the Wisconsin Elections Commission told legislative committees Friday that he has “not seen credible evidence of large-scale voter fraud in Wisconsin during the November election.”
“There were no dumps of ballots during the night, none,” Dean Knudson told lawmakers looking into the conduct of the Nov. 3 election that Democrat Joe Biden won by about 21,000 votes over President Donald Trump.
“There is no evidence of any fraud related to Dominion voting machines in Wisconsin,” Knudson said. “Counting in Wisconsin did not stop and restart. Election observers were allowed to be present throughout Election Day and election night proceedings. The number of voters on our poll books match the number of ballots cast.
“There has been no criminal evidence presented to the Elections Commission that any of these problems occurred in Wisconsin,” he said.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Sidney Powell’s secret ‘military intelligence expert,’ key to fraud claims in election lawsuits, never worked in military intelligence”<https://electionlawblog.org/?p=119575>
Posted on December 12, 2020 3:53 pm<https://electionlawblog.org/?p=119575> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/investigations/sidney-powell-spider-spyder-witness/2020/12/11/0cd567e6-3b2a-11eb-98c4-25dc9f4987e8_story.html>
The witness is code-named “Spyder<https://www.courtlistener.com/recap/gov.uscourts.gand.284055/gov.uscourts.gand.284055.60.0_2.pdf>.” Or sometimes “Spider<https://www.courtlistener.com/recap/gov.uscourts.azd.1255923/gov.uscourts.azd.1255923.1.0.pdf>.” His identity is so closely guarded that lawyer Sidney Powell has sought <https://www.courtlistener.com/recap/gov.uscourts.wied.92717/gov.uscourts.wied.92717.76.0_3.pdf> to keep it even from opposing counsel. And his account of vulnerability to international sabotage is a key part of Powell’s failing multistate effort to invalidate President-elect Joe Biden’s victory.
Powell describes Spyder in court filings as a former “Military Intelligence expert,” and his testimony is offered to support one of her central claims. In a declaration <https://www.courtlistener.com/recap/gov.uscourts.mied.350905/gov.uscourts.mied.350905.1.15.pdf> filed in four states, Spyder alleges that publicly available data about server traffic shows that voting systems in the United States were “certainly compromised by rogue actors, such as Iran and China.”
Spyder, it turns out, is Joshua Merritt, a 43-year-old information technology consultant in the Dallas area. Merritt confirmed his role as Powell’s secret witness in phone interviews this week with The Washington Post.
Records show that Merritt is an Army veteran and that he enrolled in a training program at the 305th Military Intelligence Battalion, the unit he cites in his declaration. But he never completed the entry-level training course, according to Meredith Mingledorff, a spokeswoman for the U.S. Army Intelligence Center of Excellence, which includes the battalion.
“He kept washing out of courses,” said Mingledorff, citing his education records. “He’s not an intelligence analyst.”
In an interview, Merritt maintained that he graduated from the intelligence training program. But even by his own account, he was only a trainee with the 305th, at Fort Huachuca in Arizona, and for just seven months more than 15 years ago.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>
“Trump supporters want Supreme Court to review another Michigan election case”<https://electionlawblog.org/?p=119573>
Posted on December 12, 2020 3:51 pm<https://electionlawblog.org/?p=119573> by Rick Hasen<https://electionlawblog.org/?author=3>
Detroit News:<https://www.detroitnews.com/story/news/politics/2020/12/12/trump-backers-want-supreme-court-review-michigan-election-case/6523384002/>
Six of President Donald Trump’s supporters in Michigan want the U.S. Supreme Court to consider their case to overturn the state’s election results based on conspiracy theories and unsubstantiated claims of fraud.
It’s an attempt that’s unlikely to succeed, according to other lawyers involved the matter.
On Friday night, the nation’s high court denied a lawsuit championed<https://www.detroitnews.com/story/news/politics/2020/12/11/us-supreme-court-rejects-texas-challenge-election-michigan-other-states/3887467001/> by Texas Attorney General Ken Paxton, who hoped to challenge the results in four battleground states, including Michigan, that voted for President-elect Joe Biden. The Supreme Court said Paxton lacked standing to bring his case, which focused on the states’ election laws.
Also on Friday night, attorneys representing six Michigan residents informed the defendants in a separate case that they intended to seek an emergency appeal to the U.S. Supreme Court to consider their claims against the state’s election.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Republican officials have followed Trump along his dangerous and destructive path”<https://electionlawblog.org/?p=119571>
Posted on December 12, 2020 3:46 pm<https://electionlawblog.org/?p=119571> by Rick Hasen<https://electionlawblog.org/?author=3>
Dan Balz:<https://www.washingtonpost.com/politics/republican-officials-have-followed-trump-along-his-dangerous-and-destructive-path/2020/12/12/99d5c802-3bde-11eb-bc68-96af0daae728_story.html>
Such acquiescence has been ruinous for elected officials who have sworn an oath to the Constitution. These lawmakers have been complicit in perpetuating falsehoods about the election by failing to refute or rebuke the president.
The theory, seemingly, is that eventually this would all work out. As Senate Majority Leader Mitch McConnell (R-Ky.) said, “The future will take care of itself.” That’s a rosy view that assumes all this toothpaste can be put back in the tube, that Trump will suddenly go silent, that his followers will accept Biden as president and that no one will remember this fraught period between the election and the inauguration.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Trump and his GOP allies vow to ‘fight on’ after Supreme Court rejects legal challenge to overturn election results”<https://electionlawblog.org/?p=119569>
Posted on December 12, 2020 3:43 pm<https://electionlawblog.org/?p=119569> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/politics/trump-and-his-gop-allies-vow-to-fight-on-after-supreme-court-rejects-legal-challenge-to-overturn-election-results/2020/12/12/904c719c-3c82-11eb-bc68-96af0daae728_story.html>
President Trump on Saturday amplified his unfounded claims and falsehoods about President-elect Joe Biden’s victory, lashed out at his attorney general and GOP governors he deemed unfaithful to him, and vowed to continue challenging the election results, despite the Supreme Court dealing a final blow to his brazen legal efforts to overturn the vote.
“I WON THE ELECTION IN A LANDSLIDE, but remember, I only think in terms of legal votes, not all of the fake voters and fraud that miraculously floated in from everywhere! What a disgrace!” Trump tweeted shortly after 8 a.m., one in a series of morning posts that Twitter labeled has disputed.
Many of Trump’s Republican allies in Congress were unswayed by the Supreme Court’s refusal to hear the challenge brought by the Texas attorney general that asked the justices to invalidate millions of ballots cast in four battleground states — Michigan, Pennsylvania, Wisconsin and Georgia — and toss out Biden’s win. The Congress members accused the Supreme Court of dodging or lacking courage.
Meanwhile Trump’s most ardent supporters took to online messaging boards with ominous vows to fight on and suggestions that Trump states secede.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“‘The last wall’: How dozens of judges across the political spectrum rejected Trump’s efforts to overturn the election”<https://electionlawblog.org/?p=119567>
Posted on December 12, 2020 3:41 pm<https://electionlawblog.org/?p=119567> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/politics/judges-trump-election-lawsuits/2020/12/12/e3a57224-3a72-11eb-98c4-25dc9f4987e8_story.html>
They are both elected and appointed, selected by Democrats and Republicans alike.
Some have served for decades — while others took the bench only months ago.
One is a former high school teacher, another the first Native American woman appointed to a federal judgeship. A third worked for years for a Republican governor who has been a vocal supporter of President Trump.
Since the November election, they have all ruled in court against Trump or one of his allies seeking to challenge or overturn the presidential vote.
In a remarkable show of near-unanimity across the nation’s judiciary, at least 86 judges — ranging from jurists serving at the lowest levels of state court systems to members of the United States Supreme Court — rejected at least one post-election lawsuit filed by Trump or his supporters, a Washington Post review of court filings found….
The Post found that 38 judges appointed by Republicans dealt blows to such suits, with some writing searing opinions.
The latest example came Saturday, when federal District Judge Brett H. Ludwig, a Trump nominee who took the bench in September, dismissed a lawsuit filed by the president that sought to throw out the election results in Wisconsin, calling the request “extraordinary.”
“A sitting president who did not prevail in his bid for reelection has asked for federal court help in setting aside the popular vote based on disputed issues of election administration, issues he plainly could have raised before the vote occurred,” he wrote. “This Court has allowed plaintiff the chance to make his case and he has lost on the merits.”
Trump asked for the rule of law to be followed, Ludwig noted, adding: “It has been.”
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>
“10 Months Later, Iowa Democrats Blame National Party for Caucus Meltdown”<https://electionlawblog.org/?p=119565>
Posted on December 12, 2020 3:39 pm<https://electionlawblog.org/?p=119565> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT reports.<https://www.nytimes.com/2020/12/12/us/politics/iowa-caucus-report.html>
With Iowa’s closely watched presidential caucuses more endangered than ever after a disastrous showing in February that delayed results for days, the Iowa Democratic Party on Saturday sought to shift blame for the meltdown<https://www.nytimes.com/2020/02/09/us/politics/iowa-democratic-caucuses.html> onto the Democratic National Committee.
More than 10 months after the fiasco marred Iowa’s first-in-the-nation nominating contest, the state party circulated a blistering internal report asserting that the national party had meddled in and delayed the development of an app for reporting results, implemented coding errors in its back-end result reporting system and required new data that further complicated the process.
The renewed sniping between Iowa Democrats and the national party comes at a critical time for the future of Iowa’s standing at the beginning of the presidential nominating calendar. The caucuses are a cherished tradition for Iowans, but an increasing number of national Democrats say they are outdated and undemocratic.
The heart of the 26-page Iowa report<https://assets.documentcloud.org/documents/20423516/2020-11-10-internal-review-report-for-the-iowa-democratic-party-2020-iowa-caucuses.pdf> blames the D.N.C. for the delay in results on caucus night<https://www.nytimes.com/2020/02/03/us/politics/iowa-caucuses.html>. It states that the national party, weeks before the Feb. 3 caucuses, demanded a new tool to give it real-time results. This new tool, the report states, included coding errors that delivered inaccurate results, leading to a days-long delay before former Mayor Pete Buttigieg of South Bend, Ind<https://www.nytimes.com/2020/02/07/us/politics/pete-buttigieg-iowa-caucus.html>., and Senator Bernie Sanders of Vermont finished in a virtual tie<https://www.nytimes.com/2020/02/07/us/politics/who-won-iowa-caucuses.html> for first place.
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Posted in political parties<https://electionlawblog.org/?cat=25>
“Democrats, and Even Some Republicans, Cheer as Justices Spurn Trump; While a top legal expert exhaled that ‘Our institutions held,’ the Texas Republican Party chairman suggested secession.”<https://electionlawblog.org/?p=119563>
Posted on December 12, 2020 3:35 pm<https://electionlawblog.org/?p=119563> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2020/12/11/us/politics/trump-supreme-court-texas.html>
The rejection came swiftly. The celebrations came just as fast.
The Supreme Court’s unsigned order on Friday rejecting Texas’ bid<https://www.nytimes.com/2020/12/11/us/politics/supreme-court-election-texas.html> to toss the results of the presidential election in four states won by Joseph R. Biden Jr. unceremoniously ended a case that President Trump had teased only hours earlier as “perhaps the most important case in history.”
Democrats cheered the ruling as a symbolic final blow to more than a month of failed legal challenges by Mr. Trump and his allies and a victory for the will of voters who delivered Mr. Biden 306 Electoral College votes<https://www.nytimes.com/interactive/2020/11/03/us/elections/results-president.html?action=click&pgtype=Article&state=default&module=styln-elections-2020®ion=TOP_BANNER&context=storyline_menu_recirc> and a margin of more than seven million in the popular vote.
“The will of the people will be heard,” New York’s attorney general, Letitia James, a Democrat, said on Twitter. Josh Shapiro, the attorney general of Pennsylvania and a Democrat, said<https://twitter.com/JoshShapiroPA/status/1337543498715848707> that the Supreme Court had recognized the lawsuit as a “seditious abuse of the judicial process.”
Though legal experts never gave the case much of a chance, it drew support from more than 120 Republican members of Congress and 17 Republican attorneys general. On Friday night, Senator Ben Sasse of Nebraska was the highest-level Republican to break with Mr. Trump and much of his own party in applauding the ruling….
Rick Hasen, a professor of law at the University of California, Irvine, said the ruling, while unsurprising, was significant for the country.
“The good news is that our institutions held,” Mr. Hasen said. “While many Republican legislators and attorneys general signed onto Texas’s antidemocratic effort, Republican election officials who count the votes and Republican judges did not.”
Yet even among those who celebrated the outcome of the case, many feared the longer term impact of Mr. Trump’s rhetoric on public trust in democracy and the mechanics of elections.
“Pleased with the SCOTUS ruling, but also immediately slightly terrified of where this crazy train goes next,” Brendan Buck, an adviser to the last two Republican speakers, Paul Ryan and John Boehner, wrote on Twitter<https://twitter.com/BrendanBuck/status/1337544010307674112>. He later added, “We should know by now there’s a bottomless supply of crazy.”
Not long after, Allen West, a former congressman and the chairman of the Texas Republican Party, slashed at the Supreme Court and said in a statement that hinted at secession that “perhaps law-abiding states should bond together and form a union of states that will abide by the Constitution.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“‘An Indelible Stain’: How the G.O.P. Tried to Topple a Pillar of Democracy”<https://electionlawblog.org/?p=119561>
Posted on December 12, 2020 3:31 pm<https://electionlawblog.org/?p=119561> by Rick Hasen<https://electionlawblog.org/?author=3>
Must-read NYT:<https://www.nytimes.com/2020/12/12/us/politics/trump-lawsuits-electoral-college.html>
The Supreme Court repudiation of President Trump’s desperate bid for a second term not only shredded his effort to overturn the will of voters: It also was a blunt rebuke to Republican leaders in Congress and the states who were willing to damage American democracy by embracing a partisan power grab over a free and fair election.
The court’s decision on Friday night, an inflection point after weeks of legal flailing by Mr. Trump and ahead of the Electoral College vote for President-elect Joseph R. Biden Jr. on Monday, leaves the president’s party in an extraordinary position. Through their explicit endorsements or complicity of silence, much of the G.O.P. leadership now shares responsibility for the quixotic attempt to ignore the nation’s founding principles and engineer a different verdict from the one voters cast in November.
Many regular Republicans supported this effort, too — a sign that Mr. Trump has not just bent the party to his will, but pressed a mainstay of American politics for nearly two centuries into the service of overturning an election outcome and assaulting public faith in the electoral system. The G.O.P. sought to undo the vote by such spurious means that the Supreme Court quickly rejected the argument<https://www.nytimes.com/2020/12/11/us/politics/supreme-court-election-texas.html>.
Even some Republican leaders delivered a withering assessment of the 126 G.O.P. House members and 18 attorneys general who chose to side with Mr. Trump over the democratic process, by backing a lawsuit that asked the Supreme Court to throw out some 20 million votes in four key states that cemented the president’s loss.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>
“Deciphering, rewriting, and potentially retitling Justice Alito’s separate statement in Texas v. Pennsylvania”<https://electionlawblog.org/?p=119559>
Posted on December 12, 2020 3:27 pm<https://electionlawblog.org/?p=119559> by Rick Hasen<https://electionlawblog.org/?author=3>
Howard Bashman:<https://howappealing.abovethelaw.com/2020/12/12/#139721>
Thanks to everyone who has taken time to respond to my tweet from last night<https://twitter.com/howappealing/status/1337550183421399040> seeking views on whether yesterday evening’s U.S. Supreme Court order<https://www.supremecourt.gov/orders/courtorders/121120zr_p860.pdf> was unanimous in rejecting Texas’ effort to overturn the outcome of the 2020 presidential election or was instead a 7-0-2 vote<https://electionlawblog.org/?p=119542>.
Let’s begin with the relevant text from the order<https://www.supremecourt.gov/orders/courtorders/121120zr_p860.pdf>:…
Before concluding, I acknowledge that some have opined that the lack of clarity in Alito’s separate statement may have been intentional rather than accidental. To be sure, he certainly had adequate time to decide what to say, since Texas had filed its motion for leave to file a bill of complaint on Monday and the Court’s denial issued on Friday. In any event, I wrote this to explain why I have concluded that the Court unanimously rejected Texas’ request to overturn the results of the 2020 presidential election, while also demonstrating how easily Alito could have altered his statement to remove any and all uncertainty in that regard.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>
“The Texas Lawsuit and the Age of Dreampolitik”<https://electionlawblog.org/?p=119557>
Posted on December 12, 2020 1:19 pm<https://electionlawblog.org/?p=119557> by Richard Pildes<https://electionlawblog.org/?author=7>
The NYT’s Ross Douhat<https://www.nytimes.com/2020/12/12/opinion/sunday/trump-texas-election-lawsuit.html?action=click&module=Opinion&pgtype=Homepage>:
When it comes to Donald Trump’s efforts to claim victory in the 2020 presidential election, there are two Republican Parties. One G.O.P. has behaved entirely normally, certifying elections, rejecting frivolous claims and conspiratorial lawsuits, declining to indulge the conceit that state legislatures might substitute their votes for the electoral outcome.
The other G.O.P. is acting like a bunch of saboteurs: insisting that the election was stolen, implying that the normal party’s officials are potentially complicit and championing all manner of outlandish claims and strategies — culminating in the lawsuit led by the attorney general of Texas that sought to have the Supreme Court essentially nullify the election results in the major swing states….
This postelection division of the Republican Party extends and deepens an important trend in American politics: The cultivation of a kind of “dreampolitik” (to steal a word from Joan Didion), a politics of partisan fantasy that so far manages to coexist with normal politics, feeding gridlock and stalemate and sometimes protest but not yet the kind of crisis anticipated by references to Weimar Germany and our Civil War.
The cultivation is a bipartisan affair. When conservatives defend their fight to overturn the election as an answer to the way Democrats reacted to Donald Trump’s victory in 2016, they are correct in the sense that most of their arguments and proposed tactics have antecedents on the liberal side. The attempts to scrutinize swing-state data for anomalies that prove the fix was in recapitulate similar attempts by early #Resistance pioneers<https://twitter.com/danielnazer/status/1336486989130919936>. The state-legislature fantasy is an answer to the “Hamilton elector” fantasy, in which faithless electors were going to deny Trump the White House. The widespread Republican belief in voter fraud is akin to the widespread Democratic belief that Russian hacking changed vote totals….
But it’s reasonable to wonder how long this can go on — whether dreampolitik and realpolitik can continue permanently on separate tracks, brushing up against each other from time to time without a serious collision, or whether eventually the dreamworld narratives will force a crisis in the real one.
One possibility, which I explored in my recent book<https://www.simonandschuster.com/books/The-Decadent-Society/Ross-Douthat/9781476785240>, is that political fantasy can actually be a substitute for radical action in the real world. There are ways in which the internet, especially, seems to contain<https://www.nytimes.com/2020/02/07/opinion/sunday/western-society-decadence.html> and redirect the same extremism it nurtures — pushing it into memes and hashtags and social-media wars rather than actual revolutions, giving us Diamond and Silk tweeting<https://twitter.com/DiamondandSilk/status/1337544493797666818> about a military coup rather than the thing itself….
The Texas lawsuit didn’t torch any city blocks, but all those congressional signatures on the amicus brief did make it feel like something more than just another meme. The crucial question it raises is whether people can be fed on fantasies forever — or whether once enough politicians have endorsed dreampolitik, the pressure to make the dream into reality will inexorably build.
The last month of 2020 won’t resolve that question. But we can look forward, in the next decade if not sooner, to discovering whether my confidence in the separation of political fantasy and political reality was the greatest fantasy of all.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Wisconsin Supreme Court Will Hear Rare Saturday Argument After Trump Appeals Election Challenge Loss (No, I’m Not Worried)<https://electionlawblog.org/?p=119555>
Posted on December 11, 2020 5:40 pm<https://electionlawblog.org/?p=119555> by Rick Hasen<https://electionlawblog.org/?author=3>
Patrick Marley with the details.<https://www.jsonline.com/story/news/politics/elections/2020/12/11/wisconsin-judge-hears-trump-election-case/3887419001/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
I Spoke to Diane Rehm for Her Podcast: “Is This The End Of Trump’s Fight To Overturn The Election?”<https://electionlawblog.org/?p=119553>
Posted on December 11, 2020 5:36 pm<https://electionlawblog.org/?p=119553> by Rick Hasen<https://electionlawblog.org/?author=3>
You can listen here<https://dianerehm.org/shows/2020-12-11/is-this-the-end-of-trumps-fight-to-overturn-the-election>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>
Video Now Posted of My Program with Erwin Chemerinsky and Stephen Rhodes for Beverly Hills Bar Association: “The Unprecedented 2020 Election and the Future of Voting and Democracy in America”<https://electionlawblog.org/?p=119551>
Posted on December 11, 2020 5:34 pm<https://electionlawblog.org/?p=119551> by Rick Hasen<https://electionlawblog.org/?author=3>
You can watch here<https://www.youtube.com/watch?v=L9nh8nQQnAw&feature=youtu.be>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Breaking: Supreme Court, Sort of Unanimously, Rejects Texas’s Case, Ending Ridiculous, But Also Dangerous, Litigation. What’s Next?<https://electionlawblog.org/?p=119542>
Posted on December 11, 2020 3:53 pm<https://electionlawblog.org/?p=119542> by Rick Hasen<https://electionlawblog.org/?author=3>
The Supreme Court dismissed Texas’s bill of complaint<https://www.supremecourt.gov/orders/courtorders/121120zr_p860.pdf> in the latest high-profile case pushed by Trump allies in an attempt to overturn the results of the election. The Court did not issue an accompanying opinion.
[Addendum: The court did say that Texas lacked standing because a state has no “judicially cognizable interest in the manner in which another State
conducts its elections.” This may turn out to be important in shutting down other attempts like this for one state to sue another.]
As expected, Justices Alito and Thomas, who had previously stated that the Court does not have discretion to turn down the cases, would have granted the motion to file the complaint but not granted other relief and expressing no view on the merits of the case.
Whether we count this as 7-0-2 or otherwise I’m not sure. Justice Barrett did not indicate that she recused (as I thought she should have in any election cases in which Trump was a party).
The outcome was never in serious doubt given how weak the claims were both legally and factually<https://electionlawblog.org/?p=119395>. A Supreme Court decision to hand the election to Trump on the flimsiest of legal and factual foundations would have been the end of modern American democracy and sparked widespread unrest.
I find much solace in the fact that not just the Supreme Court, but courts across the nation, with both Democratic and Republican judges, held the line for the rule of law. This is something really to celebrate as I’ve said<https://slate.com/news-and-politics/2020/12/republican-officials-who-have-gone-against-trump-barr-ducey-kemp.html>.
But the fact that 18 attorneys general and 126 members of Congress, all Republicans, could line up behind this outrageous Texas case is horrible and bodes ill for the country for years to come.
Modern American history has not had a President falsely, repeatedly, and relentlessly claimed voter fraud and election irregularities like Trump has. As I wrote<https://www.nytimes.com/2020/11/23/opinion/trump-election-courts.html> in the NY Times recently,:
By the time President-elect Biden takes the oath of office, millions of people will wrongly believe he stole the election. At least 300 times<https://www.nytimes.com/2020/11/16/technology/trump-has-amplified-voting-falsehoods-in-over-300-tweets-since-election-night.html> since Election Day, Mr. Trump has gone straight to his followers on social media to declare<https://www.nytimes.com/2020/11/05/us/politics/trump-presidency.html> the election rigged or stolen and to claim, despite all evidence to the contrary, himself as the real victor. Mr. Trump’s false claims will delegitimize a Biden presidency among his supporters. It should go without saying that a democracy requires the losers of an election to accept the results as legitimate and agree to fight another day; Republican leaders echoing Mr. Trump’s failure to support a peaceful transition of power undermine the foundation of our democracy. It’s not only the fact that we have had to say this, but that we keep having to repeat it, that shows the depths that we have reached.
The Republicans who lined up with Trump in the Texas case are either cowards or worse: those who reject the foundation of a democracy that losers concede after a fair election. We had a fair election, despite what Trump and his supporters say. This will have bad consequences for democratic stability going forward.
And now what’s of the other lawsuits? Trump is appealing<https://twitter.com/sbauerAP/status/1337527059980165121> to the Wisconsin Supreme Court one of his latest losses, and there are a few more cases out there. None of these cases will amount to anything. This has been clear for a month<https://www.theatlantic.com/ideas/archive/2020/11/trump-needs-three-consecutive-hail-mary-passes/617063/> despite the president’s protestations.
The electors will meet on Monday, and then Congress will count the votes on January 6. Biden will prevail, though I fully expect drama that day as objections are made. Unless both houses of Congress sustain an objection, the objection fails. The Democratic House is not going to sustain an objection to the Biden electors.
So some litigation may continue, but it will not change election results. The delegitimization of the Biden presidency by Trump, and of elections generally, will reverberate for years to come. And that’s a real tragedy.
[This post has been updated.]
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, Supreme Court<https://electionlawblog.org/?cat=29>
Must-Read from Tom Goldstein: “Don’t just deny Texas’ original action. Decimate it.”<https://electionlawblog.org/?p=119540>
Posted on December 11, 2020 11:10 am<https://electionlawblog.org/?p=119540> by Rick Hasen<https://electionlawblog.org/?author=3>
Tom Goldstein<https://www.scotusblog.com/2020/12/opinion-dont-just-deny-texas-original-action-decimate-it/> at SCOTUSblog:
Texas’ attempt to bring an original action challenging the election results in four states<https://www.scotusblog.com/case-files/cases/texas-v-pennsylvania/> is not a serious legal claim in a legitimate procedural posture, for reasons that many people have already given and that I will not repeat here. The easy thing for the Supreme Court to do is simply deny Texas permission to file the complaint (and deny the motions to intervene as moot) and be done with it. No fuss, no muss.
But the court should do more. It is perfectly ordinary and appropriate for the justices to write an opinion explaining the various reasons why they are rejecting Texas’ request. Indeed, the minority of justices who think that the court is required to accept original actions<https://www.supremecourt.gov/opinions/19pdf/150orig_3e04.pdf> like Texas’ may well write short opinions of their own or note that they think the case was properly filed. So there is nothing overreaching if a majority of the court explains why the case is meritless.
The justices’ decision whether to do that needs to account for this extraordinary, dangerous moment for our democracy. President Donald Trump, other supportive Republicans, and aligned commentators have firmly convinced many tens of millions of people that the 2020 presidential election was stolen. If that view continues to take hold, it threatens not only our national politics for the next four years but the public’s basic faith in elections of all types that are the foundations of our society.
A simple five-page per curiam opinion genuinely could end up in the pantheon of all-time most significant rulings in American history. Every once in a long while, the court needs to invest some of its accumulated capital in issuing judgments that are not only legally right but also respond to imminent, tangible threats to the nation. That is particularly appropriate when, as here, the court finds itself being used as a tool to actively undermine faith in our democratic institutions — including by the members of the court’s bar on whom the justices depend to act much more responsibly.
In a time that is so very deeply polarized, I cannot think of a person, group or institution other than the Supreme Court that could do better for the country right now. Supporters of the president who have been gaslighted into believing that there has been a multi-state conspiracy to steal the election recognize that the court is not a liberal institution. If the court will tell the truth, the country will listen.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, Supreme Court<https://electionlawblog.org/?cat=29>
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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