Ever since Bush v. Gore, the case that effectively decided the 2000 presidential race, the Supreme Court increasingly has been asked to intervene in fraught disputes over election procedures. Add in a pandemic, and the 2020 election season promises to be unprecedented. This week on SCOTUStalk, SCOTUSblog’s social media editor, Katie Barlow, joins Amy Howe to break down the court’s influence on the election. They survey major election-related rulings the justices have already handed down this summer and preview what role the court might play in the run-up to Election Day – and, potentially, the weeks afterward. Katie and Amy also discuss the launch of an exciting new project between SCOTUSblog and Election Law at Ohio State: the 2020 Election Litigation Tracker.
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Full transcript below the jump.
(00:00:00) Oyez! Oyez! Oyez!
Amy Howe: (00:00:03) This is SCOTUStalk, a nonpartisan podcast about the Supreme Court for lawyers and non-lawyers alike, brought to you by SCOTUSblog.
AH: (00:00:13) Welcome to SCOTUStalk. I’m Amy Howe. Thanks for joining us. Today, we’re delighted to have with us Katie Barlow, SCOTUSblog’s media editor, who is going to turn the tables and ask me some questions as we get ready for the 2020 presidential election about the Supreme Court, election law, and what SCOTUSblog is doing to get ready for the 2020 election. Katie, thanks so much for joining us.
Katie Barlow: (00:00:37) Thanks for having me, Amy, and I’m delighted to join you. And thank you for letting us turn the mic around on you and pick your brain and wealth of knowledge.
(00:00:46) So let me just dive right in. This is our first episode of SCOTUStalk since Labor Day, which kind of traditionally marks election campaign season, although this year, it kind of feels like the home stretch. But as we head towards November 3rd Election Day, one of the important questions for court watchers, and really everyone, is what role the court may play in shaping out the outcome of the 2020 election. We all know it’s been 20 years since Bush v. Gore, where the Supreme Court had to issue a ruling that decisively resolved the contested 2000 presidential election. Do you think we’re poised for something similar this year?
AH: (00:01:26) We don’t know, obviously, whether or not there’s going to be another Bush v. Gore in the sense of post-election litigation that winds up at the Supreme Court and ultimately, you know, on which the outcome of the presidential election hinges. But it does seem like there is a greater chance of that than in years past. The stakes are really high this year. I mean, obviously, the stakes are high every year, but both sides seem to regard this election as kind of existential battle of right versus wrong. Both sides are lawyered up already fighting in legal battles around the country. And if key states are close, especially with the large numbers of mail in ballots expected, I do think there’s a strong possibility that we’re going to see post-election litigation along the lines of what we saw in Florida in 2000 arguing voter fraud. The president has been talking about voter fraud for four years now or perhaps from the Biden camp that ballots that should have been counted weren’t counted.
KB: (00:02:31) So those are those are the factual issues. What might the legal issue be based on, you know, mail in ballots and the things we’re already starting to see? What might that look like?
AH: (00:02:41) So I think there’s a wide range, but equal protection was the issue in Bush versus Gore. The idea that the Florida recount violated the equal protection clause because it was standard list, because certain ballots were being recounted while other ballots weren’t due process. The Trump campaign has lawsuits going right now in Nevada and in New Jersey, challenging those states decisions to send mail in ballots to everyone and the provisions in those states’ laws that would allow ballots to be counted after Election Day, arguing that that violates federal election law and the Constitution because Congress gets to set up Election Day. So you could see arguments along those lines as well after Election Day. So there’s a whole host of issues, but you can certainly imagine that due process and in particular equal protection would be among them. The 26th Amendment is one that is the topic of litigation right now in Texas. Yesterday, the US Court of Appeals for the 5th Circuit issued a decision on mail in voting in Texas. Normally under Texas law, only of voters who are age 65 or older can vote by mail without an excuse. And there was this argument by the Texas Democratic Party and some individual voters that that violates the 26th Amendment, which prohibits discrimination based on age. The 5th Circuit yesterday said no, but they did say, you know this, that if we were talking about equal protection, there might be a different argument.
KB: (00:04:22) So back in 2000, Bush v. Gore was a per curiam decision, but it was there were four dissenters, right? It was 5-4 kind of with the more conservative justices in the majority, what are the chances the current court, if one of those issues bubbles up either before the election or after kind of mirroring Bush v. Gore, what are the chances the current court could avoid the appearance, at least of a partisan ruling like the one in Bush v. Gore?
AH: (00:04:51) So, you know, I will say yes, exactly. The Chief Justice John Roberts, was not on the Supreme Court then. Yeah, this is I think probably something that is already worrying him, the appearance of partisanship and anything that is going to erode the perception of the court as a you know, as an institution is something that worries him a lot. So, you know, if you remember back in I think it was 2017 in the oral arguments about partisan gerrymandering, one of the chief concerns he had about partisan gerrymandering was the idea that people wouldn’t understand sort of the analysis and the formulas that went into deciding whether or not a map was the product of partisan gerrymandering. All they would understand, he said, was that the Supreme Court is ruling for the Democrats or ruling for the Republicans. And this is kind of would be kind of that on steroids. But having said that, this is certainly, you know, it’s going to be something that may well be very hard to avoid. The chief justice only gets one vote. And so you have five conservative justices, four liberal justices. And either you’re going to have a narrative that says the five conservative justices appointed by Republicans all voted for the Trump campaign or, you know, the four liberal justices and that squishy John Roberts voted with the Biden campaign. You know, it could well be very hard, as much as he might like to try to avoid it to get to something besides a 5-4 ruling.
KB: (00:06:32) You’ve mentioned a few cases that obviously you’ve been keeping an eye on and that have been in the press and that SCOTUSblog also has covered over the past few weeks. This summer, it’s been it’s been a busy summer. Talk about how these cases usually get up to the Supreme Court both before Election Day and in a Bush v. Gore situation post-Election Day, kind of dealing with the aftermath, like procedurally, factually, how do these make their way up to the court?
AH: (00:07:01) So they usually come to the Supreme Court. This is part of what’s known as the “shadow docket” on the Supreme Court. This is a term — it sounds sort of nefarious — a term coined by Will Bode, who’s a professor at the University of Chicago Law School that refers to the orders and, you know, usually relatively short opinions issued by the Supreme Court in emergency appeals.
(00:07:27) And so they usually come to the Supreme Court on a request for the court to intervene on what is normally supposed to be a temporary basis. Either you’re asking the Supreme Court to block a lower court order from going into effect or you’re asking it to allow you to reinstate something. And it all happens relatively quickly. Usually, Bush v. Gore is the notable exception, obviously, without the benefit of briefs on the merits or oral arguments. And then the justices issue an order. Sometimes there is someone who dissents, but you often don’t know what the vote is or how people voted. We know that to issue a stay of a lower court’s opinion, there need to be five justices who vote for that stay. But frequently you don’t know who those five justices necessarily are, unless you have four justices who say publicly that they are dissenting. So it usually happens relatively quickly and frequently because of the context, because the elections are often looming large, although it’s supposed to be temporary, that the Supreme Court’s ruling actually can have sort of permanent or quasi-permanent effect, that something happens or something doesn’t happen.
KB: (00:08:56) Some of the cases that SCOTUSblog and you have covered this summer where exactly as you described, there were issues related to the pandemic and in voting or absentee voting, and there were five votes in favor of staying a lower court order or not. But we didn’t know exactly who the votes were. But there was one case where the court was a little bit clearer, both on who the voters were and why they ruled the way they did. And that was in Rhode Island. Can you tell us a little bit about that case?
AH: (00:09:26) Sure. That was a really interesting case. The Republicans in that case had asked the Supreme Court to step in and block a lower court order that had approved a consent agreement between state officials and civic groups to waive a requirement that absentee ballots be either signed in front of two witnesses or signed in front of a notary because of covid. And the Republicans’ argument was, this is just like a case out of Alabama where you blocked an order that would have required state officials to waive the witness or the notary requirements, and they said it, it comes too close to the election and violates what’s known as the Purcell principle, which is something you hear a lot in election law, the election law context. It’s an admonition that from the Supreme Court that that courts should not change the rules of the election at the last minute.
(00:10:25) And they also said, interestingly, in their brief, asking the Supreme Court to step in there, the Republicans did something that I noted at the time was kind of unusual. They said until you address sort of what’s going on here with covid in a written opinion, you’re going to keep getting these requests. And so the Supreme Court actually declined to put the order on hold. They ruled against the Republicans and they did provide a little bit of explanation of what was going on. And they said this order is different from Alabama and some of the other cases involving covid in which because the state had defended its law in those cases. And basically the sort of a subtext here, kind of an unwritten rule that we seem to be seeing a lot of these cases that come to the Supreme Court involving covid in elections and in some other areas, that courts don’t get to be public health officials, basically. But in this case, state officials, the Supreme Court said in Rhode Island, through this consent agreement, had supported the change. And so and the other thing they addressed the Purcell principle, because with the Purcell principle, the idea is that courts shouldn’t change the rules to close to the election. But there’s always kind of the question, well, what exactly is the status quo that courts are changing? And so the Supreme Court said because the state, when it had an election in June, had waived the witness requirement, that’s the status quo for purposes of the requirement. Whether or not that’s actually going to cut down on the number of covid related cases that comes to the Supreme Court, you know, is another matter. But it does it does provide at least a tiny little bit of guidance for the lower courts.
KB: (00:12:12) So, Amy, you explain the Purcell principle in my understanding, is that the courts can’t do too much to kind of sway the elections the closer we get to it. But we talked about a Bush v. Gore scenario, which is kind of throwing down the gauntlet. It’s one case that really decides everything. But another way that the court could play an important role in the election is all of these smaller cases that that will come up to the court in the weeks leading up to the election, particularly about absentee ballots and mail in voting and how states are coping with the pandemic. What would that look like? And how can the court’s role in the election play out in those smaller cases? I say smaller, but in those incremental cases?
AH: (00:12:58) Sure, sure, I mean, this is this is just a little bit more subtle, you know, we talked about the swing states and if you think about how, you know, in states like Wisconsin and in Michigan, in 2016, those states hinged on a relatively small number of votes in each state. And it was the Electoral College differences in those states that then made a difference in the outcome of the election. And so, you know, if the Supreme Court’s rulings in litigation about any of these issues, whether you’re talking about if you’re talking about mail in voting in Nevada or the Florida case involving voting for people who’ve been convicted of felons (sic) or you’re talking about mail-in voting in Texas or something else along the lines of what happened in Wisconsin in April. Yeah, those could be much more subtle than something along the lines of Bush v. Gore. But still could make a difference in the voting in a particular state that could affect the outcome of the election overall.
KB: (00:14:18) Amy, let me ask you, relying on your extreme expertise here, since you’ve been kind of covering the court, the blogs been around since 2002, eighteen years. You’ve seen what a typical election year looks like. You were covering the court in 2016 where there were some challenges. Is 2020 a typical election year?
AH: (00:14:40) 2020 election year wise, like so many other things, sort of, you know, the previous years on steroids, I looked back at 2016 and 2016 for our listeners who may not recall was the year that Lyle Denniston, and if you could see me right now, I’m putting this in air quotes, retired because Lyle has not retired in any actual sense of the term. And it was the year that I took over sort of full-time reporting duties from him. And I was just kind of gob smacked at the time. I thought by the election litigation in particular, you know, just trying to figure out where are these cases coming from? How do you get your hands on the stay applications? And felt a little bit overwhelmed. And now that I look back at 2016, there were not that many cases. I think, you know, we’ve all gotten used to the shadow docket being so busy. I counted three election law cases that came to the Supreme Court in 2016 from North Carolina, Ohio and Michigan. And so I think that the election law season has started earlier, both because of the intensity of the feelings about the 2020 election, but then also certainly because of covid.
KB: (00:16:00) You answered my question before I could ask it. It’s both.
AH: It’s both. Exactly.
KB: So we mentioned a lot of cases. There’s a lot of potential for the Supreme Court to continue to be involved leading up to and right after the election. So how is SCOTUSblog going to cover this in the coming weeks?
AH: (00:16:19) Yes, so even before covid, we were thinking about how best to do this, because, as I mentioned, this is really all about me (laughter)I was trying to figure out a better way to be ready for the cases when they came in 2020, and so much like the blog where it was work that we had already been doing and we figured we could try to make it useful for everyone else. We are delighted to be partnering with real election law experts, election law at Ohio State on an election law tracker. And we will be trying to identify major election law cases and track them as they are filed all the way through the district courts to the Court of Appeals and the Supreme Court if necessary. So we’ll have lawyers and reporters and law professors tracking these cases and providing analysis and commentary.
KB: (00:17:23) Yeah, it’s going to be great. We’re going to have a link to it on our homepage. You’ll be able to access it and we’ll be tweeting and talking about it and keeping everything in the news and keeping everyone up to date leading up to the election.
(00:17:38) And if Amy’s guess is right after the election, if something bubbles up, then too.
(00:17:43) Well, Amy, thank you for letting us turn the mic around on you. You were insightful and taught us something, as always, and we’re grateful.
AH: (00:17:54) Well, thank you very much. Just as long as we don’t have to do it again too soon…
KB: We’ll see about that.
AH: (00:18:02) That’s another episode of SCOTUStalk. Thanks for joining us. Thanks to Casetext, our sponsor, and to our production team, Katie Barlow, Katie Bart, Kal Golde and James Romoser.
SCOTUStalk heads to the ballot box: The Supreme Court and the 2020 election,
SCOTUSblog (Sep. 14, 2020, 5:00 PM),