Saturday, October 31, 2020

Supreme Court issues flurry of last-minute election orders

North Carolina, yes. Pennsylvania, yes. Wisconsin, no. That’s how the Supreme Court has answered questions in recent days about an extended timeline for receiving and counting ballots in those states. In each case, Democrats backed the extensions and Republicans opposed them. All three states have Democratic governors and legislatures controlled by the GOP. At first blush, the difference in the outcomes at the Supreme Court seems odd because the high court typically takes up issues to harmonize the rules across the country. But elections are largely governed by states, and the rules differ from one state to the next. A big asterisk: These cases are being dealt with on an emergency basis in which the court issues orders that either block or keep in place a lower-court ruling. But there is almost never an explanation of the majority’s rationale, though individual justices sometimes write opinions that partially explain the matter There also is a difference in how the justices act based on whether they are ruling on a lawsuit that began in state or federal court. Conservative justices who hold a majority on the Supreme Court object to what they see as intrusions by federal judges who order last-minute changes to state election rules, even in the middle of the coronavirus pandemic. The power to alter absentee ballot deadlines and other voting issues rests with state legislatures, not federal courts, according to the conservative justices. The court also is divided, but so far has been willing to allow state courts interpreting their own state constitutions to play more of a role than their federal counterparts. Last week, four conservative justices would have put on hold a Pennsylvania Supreme Court ruling allowing three additional days to receive and count mailed ballots. Three justices in Wednesday’s order about North Carolina’s absentee ballots would have blocked a six-day extension. The justices did not finally resolve the legal issues involved, but they could do so after the election. A more thorough examination could come either in a post-election challenge that could determine the presidential winner if, for example, Pennsylvania proves critical to the national outcome, or in a less tense setting that might not affect the 2020 vote, but would apply in the future.

Saturday, October 24, 2020

Trump, Biden lawyer up, brace for White House legal battle

President Donald Trump’s and Democratic rival Joe Biden’s campaigns are assembling armies of powerful lawyers for the possibility that the race for the White House is decided not at the ballot box but in court. They have been engaging in a lawyer’s version of tabletop war games, churning out draft pleadings, briefs and memos to cover scenarios that read like the stuff of a law school hypothetical more than a real-life case in a democracy. Attorneys for the Republicans and the Democrats are already clashing in courts across the U.S. over mailed-in ballot deadlines and other issues brought on by the coronavirus pandemic. And as Trump tries to sow doubt in the legitimacy of the Nov. 3 election, both sides have built massive legal operations readying for a bitterly disputed race that lands at the Supreme Court. “We’ve been preparing for this for well over a year,” Republican National Committee Chief Counsel Justin Riemer told The Associated Press. “We’ve been working with the campaign on our strategy for recount preparation, for Election Day operations and our litigation strategy.” On the Democratic side, the Biden campaign’s election protection program includes a special national litigation team involving hundreds of lawyers led by Walter Dellinger, acting solicitor general in the Clinton administration, and Donald Verrilli, a solicitor general under President Barack Obama, among others. Bob Bauer, a former White House counsel to Obama, and Biden campaign general counsel Dana Remus are focused on protecting the rights of voters, who have been enduring long lines at polling places around the country on the belief that the presidential election will be decided by their ballots. Both sides are informed by the experience of the 2000 election, which was ultimately decided by the Supreme Court in Bush v. Gore. But this year, because Trump has pushed unsubstantiated claims about the potential for voter fraud with increased voting by mail, sowing doubt about the integrity of the result, lawyers are preparing for a return trip before the high court.

Monday, October 5, 2020

Supreme Court to review Arizona ‘ballot harvesting’ law

The Supreme Court said Friday it will review a 2016 Arizona law that bars anyone but a family member or caregiver from returning another person’s early ballot. The law itself, however, remains in effect through the presidential election and until the justices rule. The court will begin hearing arguments again next week after a summer break. The Arizona case was one of four cases the court, now eight justices because of the death of Justice Ruth Bader Ginsburg, agreed to hear in its new term that begins Monday. As is usual, the justices did not comment in taking the cases. Because of the coronavirus pandemic, the justices will not be returning to the courtroom to hear arguments but instead will continue hearing arguments by telephone. The court has been closed to the public since March. In the Arizona case, a federal appeals court ruled in January that Arizona’s law banning so-called “ballot harvesting” violates the Voting Rights Act and the Constitution, but the court put its ruling on hold while the Supreme Court was asked to take the case. The appeals court also found that Arizona’s policy of discarding ballots if a voter went to the wrong precinct violates the law. The court said both have a discriminatory impact on minority voters in violation of the Voting Rights Act. The high court in recent years has weakened the Voting Rights Act, throwing out the most powerful part of the landmark law in 2013. It could use the current case to go even further. The case began after Republicans in Arizona passed the law making it a felony to return someone else’s ballot to election officials in most cases and Democrats sued. Both parties had used ballot collection in Arizona to boost turnout during elections by going door to door and asking voters if they have completed their mail-in ballot. Democrats used the method aggressively in minority communities and argued their success prompted the new GOP-sponsored law. Republicans argued the law was aimed at preventing election fraud. Arizona Attorney General Mark Brnovich, a Republican, said in a statement he is pleased the court will hear the case. The justices also said Friday they will review a longstanding effort by the Federal Communications Commission to relax restrictions in individual media markets on ownership of different forms of media — TV stations and newspapers — over fears that it would leave fewer outlets controlled by minorities. The court also will take up cases involving how immigration officials evaluate the claims of asylum seekers and a lawsuit by the city of Baltimore against BP Inc. and other energy companies seeking money for their contribution to climate change, although the issue before the justices is a technical one involving where the case should be heard. The Supreme Court has already filled its argument calendar through December, so none of the cases will be argued before January 2021.