[EL] more news and commentary 10/19/20

[Rick Hasen]

“We’re Living in the Shadows of a Bush v. Gore 2.0; The same people spending money to put Amy Coney Barrett on the Supreme Court are also trying to suppress the vote.”<https://electionlawblog.org/?p=117081>
Posted on October 19, 2020 12:30 pm<https://electionlawblog.org/?p=117081> by Rick Hasen<https://electionlawblog.org/?author=3>

Dahlia Lithwick and I have written this piece<https://slate.com/news-and-politics/2020/10/bush-v-gore-but-worse-barrett-scotus.html> for Slate. It begins:

Nobody, aside perhaps from Judge Amy Coney Barrett, could have missed the implication of Sen. Amy Klobuchar’s line of questions Wednesday about Barrett’s service<https://www.nbcnews.com/politics/supreme-court/live-blog/amy-coney-barrett-supreme-court-confirmation-hearing-live-updates-day-n1243266/ncrd1243379#liveBlogHeader> in the army of GOP lawyers who flew down to Florida to make certain that ballots were counted for George W. Bush in the 2000 election dispute that culminated in Bush v. Gore. If Barrett is confirmed, the Supreme Court will have three justices who worked on behalf of the GOP on the 2000 litigation that resulted in George W. Bush winning that year’s presidential election. Barrett, who testified that she couldn’t recall anymore what work she did for the campaign<https://www.esquire.com/news-politics/politics/a34374103/amy-coney-barrett-bush-v-gore/>, joins Chief Justice John Roberts and Justice Brett Kavanaugh as three of the luckiest election lawyers in history<https://www.cnn.com/2020/10/17/politics/bush-v-gore-barrett-kavanaugh-roberts-supreme-court/index.html>, a fact Barrett dismissed in her testimony as an unremarkable coincidence.

It’s not just that court will now feature three former Bush v. Gore lawyers—it’s that it will feature three former *Bush* lawyers<https://twitter.com/RonaldKlain/status/1317562853407248385?s=20>. But this isn’t just a story about how the Federalist Society rewards its own loyalists. It’s also an urgent story about a side project of Federalist Society leaders and allies working to assist an effort at voter suppression, while simultaneously working both to manipulate voting rules and stack the judiciary to push a Trump victory and solidify Republican control of government….

This is where it all ties together: the lawyers who are popping up around the country demanding, under the false flag of “vote fraud,” that voter rolls be purged and voting in a pandemic become more deadly, are coordinated by the same people, and with the same unknown funding that has put more than 200 conservatives judges into lifetime positions on the federal courts. As we concluded in May, all this is a far cry from the “debate club” the Federalist Society has long claimed to be (and still claimed to be at the Barrett hearings)…

There’s one more way in which the ghost of Bush v Gore<https://supreme.justia.com/cases/federal/us/531/98/>, the long shadow of the Brooks Brothers revolt, and the specter of outright vote suppression loom large over the upcoming election and whatever litigation may follow. The unsigned 5–4 decision in Bush v. Gore was widely understood to be a “good for one ride only” holding that would have no precedential force in any future case. (The Supreme Court itself has never cited the case in the intervening decades except in a concurring opinion by Justice Clarence Thomas on a tangential point.)

But the cherry on top is that it’s now being dusted off by Trump’s legal team for a reprise in the 2020 election. As Joan Biskupic has explained<https://www.cnn.com/2020/08/24/politics/supreme-court-bush-gore-trump-lawsuits/index.html>, Trump’s legal teams have begun to cite the equal protection rationale that supported Bush v. Gore in legal challenges around the country, somehow claiming that the case, which was supposed to have no value, now invalidates state procedures for balloting by mail, because they lack in uniformity in violation of constitutional equal protection. Justice Antonin Scalia signed onto that equal protection decision holding his nose, reportedly calling it<https://electionlawblog.org/?p=103737>, “as we say in Brooklyn, a piece of shit.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


North Carolina: “Voters will get chance to fix or redo their absentee ballots”<https://electionlawblog.org/?p=117079>
Posted on October 19, 2020 12:25 pm<https://electionlawblog.org/?p=117079> by Rick Hasen<https://electionlawblog.org/?author=3>

News & Observer<https://www.newsobserver.com/news/politics-government/election/article246556923.html>:

Voters whose absentee ballots have problems with their envelopes can now expect contact from board of elections offices in order to fix their ballots by Election Day.

And less than 24 hours after North Carolina added new guidelines on handling those problems, the N.C. Court of Appeals ruled that ballots could be collected through Nov. 12 if they were postmarked by 5 p.m. Nov. 3, Election Day.

Ten thousand ballots had problems but were caught in the crossfire of three lawsuits pending in both state and federal court and voters could not be contacted until the conclusion of those lawsuits that are now before the N.C. Court of Appeals.

But on Sunday, the N.C. State Board of Elections issued the new guidance to county boards that allowed for voters to be contacted in order to fix their ballots before Election Day.

Senate Leader Phil Berger’s office provided The News & Observer a letter written by Ryan Park, solicitor general for the N.C. Attorney General’s office, to the N.C. Court of Appeals. Park wrote in the letter that Berger and House Speaker Tim Moore agreed that new guidance can be given to the county boards that they may now contact voters who need to fix their ballots.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


Pennsylvania Republicans Refuse to Give State Election Officials Authority to Process Absentee Ballots Before Election Day, Running Risk of Count Taking a Few Weeks and The Election Hanging in the Balance<https://electionlawblog.org/?p=117077>
Posted on October 19, 2020 11:08 am<https://electionlawblog.org/?p=117077> by Rick Hasen<https://electionlawblog.org/?author=3>

Unconscionable<https://twitter.com/Elaijuh/status/1318250705753432064>:
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


California Ballot Drop Box Targeted in Possible Arson<https://electionlawblog.org/?p=117075>
Posted on October 19, 2020 10:08 am<https://electionlawblog.org/?p=117075> by Rick Hasen<https://electionlawblog.org/?author=3>

This is terrible<https://losangeles.cbslocal.com/2020/10/19/ballot-drop-box-catches-fire-in-baldwin-park/> and these boxes are designed to make this difficult to do.

People interfering with ballots like this can face felony charges.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Think the Constitution protects your right to vote? That’s not really true — but it should.”<https://electionlawblog.org/?p=117072>
Posted on October 19, 2020 9:39 am<https://electionlawblog.org/?p=117072> by Rick Hasen<https://electionlawblog.org/?author=3>

New Ned Foley <https://www.washingtonpost.com/opinions/2020/10/19/does-the-constitution-protect-your-right-to-vote/> at WaPo.

I reached similar conclusions on the need for a constitutional amendment in my Three Pathologies piece<https://www.liebertpub.com/doi/full/10.1089/elj.2020.0646>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


5th Circuit Reverses District Court Order Which Would Have Made It Easier for Texas Voters to “Cure” Signature Mismatch; Case Shows Danger of Pursing These Cases with Increasingly Conservative Judiciary<https://electionlawblog.org/?p=117068>
Posted on October 19, 2020 9:29 am<https://electionlawblog.org/?p=117068> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the opinion by Judge Smith (along with a concurrence by Judge Higgenbotham at this link.<https://assets.documentcloud.org/documents/7245123/10-19-20-Richardson-v-Texas-5th-Circuit-Opinion.pdf>

This case is a nice illustration of the dangers of bringing these suits seeking federal court orders easing voting during a pandemic. Not only do such suits face a greater chance of reversal as they work their way up the increasingly conservative appellate food chain. They run the risk of getting really bad voting rights precedent on the books. In this case, the opinion by Judge Jerry Smith will have very bad implications across a host of voting rights cases (and not just on this particular issue). The discussion of voter fraud is especially troublesome.

Update: Sam Levine points out<https://twitter.com/srl/status/1318229701782097922?s=20> that the case was filed in 2019, so it doesn’t fit directly into pandemic litigation. Still, the general point stands.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

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