Wednesday Writs: Pennsylvania, Wisconsin, SCOTUS, and Election Law

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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135 Responses

  1. CJColucci says:

    Three current members of the Supreme Court were on the Bush legal team in 2000.Report

    • George Turner in reply to CJColucci says:

      Well, if George W Bush or Al Gore end up involved in an election lawsuit this time, that’s something to consider.Report

      • Philip H in reply to George Turner says:

        Or its worth considering as both background and a pertinent guide to their judicial philosophy in dealing with contested Presidential elections.

        Honestly dude, how do you find your socks every morning?Report

        • George Turner in reply to Philip H says:

          It doesn’t matter. Should RGB have recused herself from any cases involving women’s rights? Should Thurgood Marshall have recused himself from any cases involving Civil Rights? Should justices who remained loyal to the United States during the Civil War have recused themselves from any case involving the 14th or 15th Amendments?Report

          • Philip H in reply to George Turner says:

            I didn’t suggest recusal. I suggested philosophy and approach. Big difference. And very plainly written.Report

            • George Turner in reply to Philip H says:

              Do you have some philosophical objection to the idea of new justices whose legal position was supported by 7 of the 9 justices back in 2000? Sure, perhaps making a valid argument before the Supreme Court twenty years ago, instead of presenting a losing argument, is part of the reason they got so far in their legal careers.Report

        • In 2000 Kavanaugh was arguing for late ballots, since they helped Bush. In 2020 he’s finding against them, because they help Biden. What else do you need to know?Report

          • Slade the Leveller in reply to Mike Schilling says:

            This is a really good point. Good memory!Report

          • George Turner in reply to Mike Schilling says:

            How were late ballots a question in 2000? The question was overcounts, undercounts, and using different standards in different counties, because Florida, like other states, didn’t allow late ballots. That’s why the press wasn’t sitting around on election night saying “Well, Bush is up by 6000, but there’s hundreds of thousands of ballots yet to arrive!”

            Kavanaugh’s argument was that Article II give the power over elections to state legislatures, and that the Florida Supreme Court was usurping that power by ruling contrary to existing Florida election laws. The court agreed with Kavanaugh.

            This late ballot argument wasn’t even offered up during Kavanaugh’s confirmation hearing, when the left was throwing the kitchen sink at him to try and block his nomination.Report

            • Philip H in reply to George Turner says:

              Keep picking those cherries dude as you whistle into intellectual oblivion around here.Report

              • George Turner in reply to Philip H says:

                This just in: There was no late ballot issue in Florida 2000. The argument was whether different counties could use different recount standards for what is and isn’t a valid vote, as there were cases where the voter had either marked no candidates or multiple candidates, or even mistakenly voted for Buchanan instead of who they “intended” to vote for.

                The Florida Supreme Court issued a rather bizarre ruling that was immediately appealed. The US Supreme Court ruled that Florida has to abide by Florida election law, and that the Florida Supreme Court can’t arbitrarily make changes to the standards laid out in that law, and that the Florida court’s ruling violated the Equal Protection clause by treating some counties differently than others. It also ruled that Florida must meet the election deadlines required by Federal law.

                After the case was decided, the recount was completed and Bush was ruled the winner. Out of curiosity as to who really did win in Florida, many of the nation’s top newspapers spent six months digging through everything, and found that Gore still lost under every possible vote-counting standard sought by Gore’s legal team.Report

              • Dark Matter in reply to George Turner says:

                If I recall correctly, The Florida Supreme Court was 7 Dems and no GOP and there was some echo-chamber aspects to it.

                Big picture Bush won the original (presumably fairest) count. He also won the mechanical recount.

                However within the margin of error it was a tie. Ergo in theory (and in practice), Gore could win if he found a way to count the votes just right.Report

  2. L2: Barrett was rushed onto the Court specifically to rule “the right way” on election issues. We’ll see how that goes.Report

  3. Oscar Gordon says:

    L6 – Dude, plant shrubs that don’t care about dog piss.

    L1 – Perhaps it’s because I now live in a Vote by Mail state, but I agree with Gorsuch – the state was actively sending out ballots a long time ago. The whole thing has been more than reasonable. I’m not sure what disenfranchised demographic is going to be served by pushing the deadlines out even further, other than perpetual procrastinators.Report

    • The USPS has been sabotaged: see my post below. That affect both ballots being mailed out and ballots being returned. People who assumed that a week was enough lead time for mailing in their ballots are going to be disappointed.Report

    • Michael Cain in reply to Oscar Gordon says:

      Note that the cases are not in vote by mail states. They are in states trying to push old absentee ballot systems way past the number of ballots they were ever intended to handle. Some combination of: voters have to request a mail ballot, voters are allowed to make the request until quite close to the election, the election officials simply can’t deal with the volume so requests are not serviced in a timely fashion, plus multiple mail legs in the process. An embarrassing number of ballots will be discarded unless the deadlines are changed, which the state legislatures have declined to do.

      As a contrast consider Nevada. The state legislature held a special session, passed a contemporary vote by mail system, and provided funding for it. The Republican Sec of State whined about the legislature moving too quickly, before he could present his really cool ideas for handling the election without going vote by mail, but no one is seriously challenging the change. Their current law says the mail ballots must be postmarked by Nov 3 and delivered by Nov 10. National Republicans challenged the law not based on the Nov 10 date but on the theory that vote by mail is inherently unconstitutional. They were basically laughed out of court.Report

      • Chip Daniels in reply to Michael Cain says:

        “They were basically laughed out of court.”

        For now.Report

      • Oscar Gordon in reply to Michael Cain says:

        Agreed, that’s all very much a problem.

        But SCOTUS hasn’t ruled on any of that. They’ve basically said (if I am reading this all correctly) that it’s “Not my monkey, not my circus”. Voting is clearly and squarely in the hands of the states, so the buck stops with the state governments. The fact that a given state has failed to plan and act to deal with these issues is not a problem the SCOTUS needs to step in and fix at the 11th hour.

        Gorsuch’s statement simply said that WI had seemingly made a decent effort to get ballots out in a timely fashion, and allow for everyone to get the ballots back in a timely fashion (6 months is timely).

        I mean, if WI hadn’t started trying to implement a VBM system until mid-October*, or said that they would not accept mailed in ballots that were post marked before, say October 20th (so people would have to try and time the postal system), then Gorsuch would be talking out his a$$.

        *Granted, implementing a robust VBM system like much of the West enjoys is not something that should be done during an election year. That’s the kind of thing folks should have sorted out years ahead of time.Report

  4. In other legal news, a federal judge has ordered the USPS to deliver the mail. This continues the theme from L1 and L2 of the GOP election strategy of not allowing, not delivering, and not counting mail-in ballots.

    Here’s another one: a federal judge rules that masks should be required for in-person voting in Texas. The polling-place exemption from Texas’s general mask mandate was another GOP strategy: prevent people smart enough to be concerned about their health from voting.Report

  5. Aaron David says:

    L6 – Dog urine is about 95% water, with the rest being things you actively want in your garden. Urea, that other 5%, is the basis of one of the most common fertilizers on the planet, Nitrogen Fertilizer.

    I mean, seriously, its chemistry. We (humanity) have been doing this for millennia.Report

    • Slade the Leveller in reply to Aaron David says:

      I really want it to be true that you knew this off the top of your head. 😉Report

    • Oscar Gordon in reply to Aaron David says:

      To be honest, Urea on the leaves is bad for a lot of plants (in the soil, it’s fine, but it’s acidic to the leaves).

      That said, a lot of shrubs just shrug it off and don’t get burned by it. It’s one thing if you plant a shrub next to the house that can’t stand Urea burn, but if it’s on the sidewalk, where dogs will be walking, you need to plant a variety that can tolerate it. I’d be surprised if a judge would seriously hear the guys case if those shrubs are along the sidewalk.Report

      • Aaron David in reply to Oscar Gordon says:

        At the percentage of urea in natural urine, I would not worry about that in the slightest no matter where said plant is. As an artificial concentrate, it is a worry, which is one of the reasons it is used in solid form.Report

    • George Turner in reply to Aaron David says:

      There’s an interesting Ted Talk about attempts to conserve dwindling African grasslands. It argued that by limiting grazing, the very people trying to protect the grasslands from desertification were causing desertification. Experiments seem to bear that out. The grasses have co-evolved with grazing animals, and to thrive they need the frequent trimming, plus poop and pee.Report

    • Burt Likko in reply to Aaron David says:

      This explains why, in my dogs’ favorite places to pee, the grass is dead.Report

  6. Kazzy says:

    How late are absentee ballots usually accepted? Are they required to arrive by election day in the normal times? If not, why are the rules changing now?Report

    • Philip H in reply to Kazzy says:

      Most states require actual absentee ballots to arrive by election day. Some do have rules about postmarked by election date. Generally its in state election statutes somewhere.

      Rules have been changed both in response to the additional volume due to COVID, and to the mounting delays in USPS delivery thanks to Trump Administration “Streamlining.”Report

      • Kazzy in reply to Philip H says:

        It seems to me that 2020 absentee ballots should have AT LEAST as much grace period as 2016 and 2012 and 2008 and 2004 absentee ballots. I’d argue they should have more for the reasons stated, but Kavanaugh’s argument that ballots arriving/counted after election day casting doubt on the election seems immediately countered by the many (but not all) states that already engage in such a practice.Report

        • Mike Schilling in reply to Kazzy says:

          Kavanaugh seems to think that every ballot is counted on election day. This is nonsense.Report

        • George Turner in reply to Kazzy says:

          I think the dispute is about ballots arriving after election day that aren’t clearly postmarked on election day or earlier. The idea is that the ballot had to have been at least put in the mail before election day is over. Some states want to have the ballot received by election day, because at the close of polling hours it is truly over and the final votes are tallied up. Some other states just make sure that all the votes are in the mail by the close of polling on election day, where they might be in transit for a day or two.

          The fraud risk is this: Say my candidate is only 500 down. So my friends and I fill out 600 more ballots, hand them to Cliff Claven, our local postman/political operative, and he postmarks them for us, because it’s mail. But the postmark is of course too late. Then we have him smear the postmarks (and make the ballots look like they got a bit wet somewhere in transit), and turn them in. Should those fraudulent votes be accepted?

          But what if some postal worker from the other side, who is working at a post office deep in enemy territory, decides to smear lots of postmarks just to invalidate the ballots?

          What do you do with a ballot that can’t be definitively dated, toss it or count it?

          Kavanaugh’s position is likely this: Very few, if any, ballots would have smeared postmarks. We’ve all seen mail before, and those are always pretty darn legible. But if we allow smeared postmarks, an organized fraud operation will spend a day or two churning out however many fake ballots with smeared postmarks are required to tip the race to the losing candidate.

          The proper goal, of course, is that our elections should not have a single fraudulent ballot, nor any invalid ballot cast by a valid voter. Not one, of either type. Republicans think Democrats are churning out millions of fraudulent ballots, while Democrats think Republicans are trying to throw out millions of valid ballots. But the cold truth is that nobody should be voting Democrat in the first place, because it’s just wrong. ^_^

          But if some people are going to do it, we should make sure that they are real eligible voters who voted on election day or earlier, and not dead people, cartoon characters, pets, or political stooges who run fake ballot factories. Likewise, we need to be assured that there aren’t corrupt election officials who are tossing piles of valid ballots in the trash, heeding Stalin’s dictum that what matters is not who votes, but who counts the votes.

          For our system to work, and to avoid civil war (which is voting by other means, the flip side to voting being a non-violent form of civil war or revolution), both sides need to trust that an election was free and fair, and that the winning side will be given certain, but limited, powers.

          One of the serious worries Republicans have this cycle is that their opponents, based on their many statements about things like banning fossil fuels, ending the filibuster, and packing the Supreme Court, don’t seem to recognize any limits to power. The winner-take-all attitude on the left is becoming winner-take-ALL.Report

          • The proper goal, of course, is that our elections should not have a single fraudulent ballot, nor any invalid ballot cast by a valid voter.

            And if we have to throw out a thousand valid ballots to eliminate one invalid one, it’s a small price to pay.Report

            • George Turner in reply to Mike Schilling says:

              Indeed. If even one ballot might be tainted by Russian election interference, which is apparently rampant, they entire election becomes null and void.Report

              • If even one president is a stooge for foreign interests …Report

              • George Turner in reply to Mike Schilling says:

                Yep. And Biden is definitely deeply in bed with the Chinese and other hostile actors, as the massive avalanche of e-mails is making quite plain.

                Everybody on the right is reading those. In the ones that came out today, the Bidens were discussing a $10 million deal with a Chinese spy chief, Chi Ping Patrick Ho, who was also a target of a FISA warrant.

                Ho was charged under the Foreign Corrupt Practices Act, and charged with money laundering, and convicted of bribery in US federal court in 2018.

                As an aside, the Foreign Corrupt Practices Act was discussed on the news today as one of the many potential charges Joe Biden might face, along with money laundering and tax evasion, given the evidence that’s pouring out.Report

              • Aaron David in reply to Mike Schilling says:

                He’d probably call you a dog-faced pony solder!Report

          • Em Carpenter in reply to George Turner says:

            The illegible postmark concern is only an issue in the Pennsylvania case, where they would count ballots that were “not clearly postmarked after election day.” In Wisconsin the plan was for “ballots postmarked by election”, day to be counted if received by the 9th. There is no mention of illegibility involved.

            Also, where are you and your friends getting these 600 extra ballots?Report

            • Philip H in reply to Em Carpenter says:

              Its a fiction they use to comfort themselves that they really aren’t engaged in voter suppression because 600 votes can’t possibly sway a presidential election.Report

            • George Turner in reply to Em Carpenter says:

              In some states like New Jersey the ballots are trivially easy to fake. You can just photocopy them. All the security is in the envelope. One major fraudster there, who has rigged elections up and down the ticket all over the state, gave a detailed explanation of his operations.

              They raid mailboxes for ballots, and will send in extra ballot requests just to get extra ballots mailed out, which they intercept. The unmarked ballots they intercept on the way to the voter can just be filled out. The ones they steal heading the other way have to be steamed open, and then the contents are simply replaced.

              One of the potentially huge flaws in the system could occur where the state election officials, or the company that prints the envelopes, could print countless extras to have on hand “just in case”.

              The problem is that the more corrupt your politicians and operatives are, the more fraud they can pull off, which elects even more corrupt politicians, until you have essentially a one-party state where everything is under the direct control of the people who are rigging the elections. This is very common in other countries, and its hard to weed out because the opposition can’t ever get into office because the elections are rigged. It usually takes a civil war or violent rebellion to break the cycle.Report

            • Jaybird in reply to Em Carpenter says:

              Also, where are you and your friends getting these 600 extra ballots?

              1960 had a handful of… issues.

              For example, Fannin County had only 4,895 registered voters, yet 6,138 votes were cast in that county, three-quarters for Kennedy. In an Angelina County precinct, Kennedy received 187 votes to Nixon’s 24, though there were only 86 registered voters in the precinct.


              • George Turner in reply to Jaybird says:

                Plus you have voter roll problems. Colorado has 10 counties with more registered voters than adults of voting age. One county has more registered voters than people.Report

              • Michael Cain in reply to George Turner says:

                It will be interesting if it gets to trial.

                (1) It’s a classic setup for dueling experts as the number of adults is an estimate, and Judicial Watch hasn’t revealed their methodology. The Census Bureau’s estimates for Colorado’s county-level population are notoriously inaccurate. By any likely trial date, though, there should be official census numbers.

                (2) Roll maintenance is largely devolved to the counties in Colorado. The counties with the bad numbers named in the filing are almost exclusively small counties by population, with Republican election officials (and often inadequate resources).Report

            • Aaron David in reply to Em Carpenter says:

              “Also, where are you and your friends getting these 600 extra ballots?”

              From the trunk of Al Franken’s car. Why, isn’t that normal?


  7. Chip Daniels says:

    What’s really amazing is that no one, anywhere, expects Trump to win more votes.
    Everyone just accepts that the President can be elected despite a majority of the voters not consenting.

    Its also amazing that everyone just accepts that the Republican Party and their judicial appointees are endlessly searching for ways to make it more difficult to vote.

    This is not the sign of a healthy republic.Report

    • North in reply to Chip Daniels says:

      It is striking. I very much hope that the Dems make formally encoding voting rights and access and making voting day a holiday their top priority if *knocks on wood* they win the trifecta.Report

    • InMD in reply to Chip Daniels says:

      I don’t think the first part is strange at all. There are all kinds of counter-majoritarian aspects to our system. People only seem to get mad about them when they don’t like an outcome.

      The voting thing I do think is a problem. The franchise is a fundamental right. There’s an infrastructure of democracy aspect that we’ve let slide and I find it hard to believe there isn’t a better way. God forbid we pay for something we need.Report

    • LeeEsq in reply to Chip Daniels says:

      There do seem to be a lot of really out there Trump supporters that believe this will be a 1972 or 1980 election for Trump but they are a distinct minority.Report

      • Jaybird in reply to LeeEsq says:

        You need to understand. When Chip said “no one, anywhere”, he didn’t mean “no one, anywhere”.

        It was like “defund the police” or “abolish ICE”.Report

        • Chip Daniels in reply to Jaybird says:

          I should have specified:
          “No one [who can tie their own shoes] expects Trump to get more votes.”Report

          • Jaybird in reply to Chip Daniels says:

            “Well, I didn’t mean ‘can tie their own shoes’ literally. I was trying to make a statement about how dumb I considered them.”Report

            • Chip Daniels in reply to Jaybird says:

              You don’t also think they are stupid with that malarky?

              C’mon, man!Report

              • Jaybird in reply to Chip Daniels says:

                We seem to be on track to have the highest turnout since before WWII.

                This means that people who have never voted before will be voting.

                I thought I was smart enough to guess how people who had never voted before would be voting in 2016.

                I am not smart enough to guess how they’d be voting in 2020.

                If I had to guess, I’d say that Trump has a 10% shot at getting the popular vote.

                I’ve rolled 20-siders and gotten 1s and 2s a whole lotta times.

                (Or, I suppose, 19s and 20s. Depending on how you look at it.)Report

              • Marchmaine in reply to Jaybird says:

                Yeah… if last cycle we had ~130M votes and this cycle we get ~150M votes… I’m having a hard time guessing if those 20M votes skew significantly in either direction… or just represent 20M more votes.

                I can see either story playing out:
                *Man the ‘burbs were fired up and voted in droves for Joe. That’s why he won 345 EC votes.

                *Man those forgotten voters came down from the hills for Trump like we never thought would happen. That’s why he won 274 EC votes.Report

              • George Turner in reply to Marchmaine says:

                Actually, the 20M votes will be coming from Novgorod, Rostov on Don, Novosibirsk, Chelyabinsk, Omsk, etc. That’s probably why the pollsters are missing them.Report

    • Aaron David in reply to Chip Daniels says:

      So, are these, like, legal ballot type ballots?

      Or those California “harvested” artisanal, curated type ballots?Report

  8. Marchmaine says:

    Honestly think a lot of you are coding this according to certain expectations and am bookmarking for the side-switching when Biden’s narrow PA lead is threatened by ancient rural machinery in PA that is turning out illegible postmarks… and we have to uphold rules over counting all the votes.

    After all, how can we be sure that Trump voters hearing about the narrow Trump loss after the polls close didn’t just submit their ballots? It’s akin to why we don’t announce the exit polling until the polls close. Nothing quite so motivating as hearing an outcome you don’t like.

    The problem is that no matter what we do, there are going to be (a lot) of spoiled/rejected ballots… and the inconsistency is the problem. I can tell you with 100% certainty today, October 28 that we will *not* count all the votes… not agreeing in advance on fair-is-fair (even though each state is different)… that’s the potential disaster. And all of you will switch arguments depending on whether you need the counting to stop or go.

    I hope the outcome is beyond doubt because there’s no consistent method out of doubt here.Report

    • Jaybird in reply to Marchmaine says:

      And, lemme tell ya, Philly having riots is one of those things that would be likely to get people on the fence to choose a side.

      Assuming that there are people on the fence still.

      Anybody still on the fence is just looking for an excuse to vote Trump.

      I hope that there aren’t still people on the fence.Report

  9. In yet more legal news, the GOP is asking for 100,000 already cast votes to be invalidated.


    • Oscar Gordon in reply to InMD says:

      I wonder, after the election is over, if anyone will look at the stats and figure out how much value was added by extending deadlines? How many ballots were sent or came in after the nominal Nov 3 deadline? Who benefitted the most from extending deadlines?Report

      • InMD in reply to Oscar Gordon says:

        I’m sure they will. Hopefully the outcome will be so clear cut that it will be totally in the domain of statisticians and obscure social science studies.Report

      • Dark Matter in reply to Oscar Gordon says:

        RE: Who benefitted the most from extending deadlines?

        I assume they already know and/or are already doing that. Presumably this is why both sides are fighting over this sort of thing.Report

      • Chip Daniels in reply to Oscar Gordon says:

        Who benefits from gathering more ballots, allowing more citizens to participate in the process of selecting our government?

        The fact that there isn’t a unanimous answer exactly illustrates the threat to our democracy.Report

        • InMD in reply to Chip Daniels says:

          Votes by their nature have to be considered complete at some point. Then we live with the result for awhile until we vote again. We won’t still be counting ballots January 19 and it’s ridiculous to imply we should be.Report

        • Oscar Gordon in reply to Chip Daniels says:

          If we are thinking along that route, why don’t we just allowing open voting after the ballot is finalized? If we know all the candidates and issues to be on the ballot on, say, July 1st, and we need a month to print the ballots, then voting opens August 1st and closes on Election Day (which is when the counting starts)?

          I mean, are we trying to maximize participation, or just pandering to people who can’t figure out how to vote until the last minute? Or is this all very much a one-off because Covid has made a capital mess of things?Report

          • InMD in reply to Oscar Gordon says:

            Exactly. But whatever the consideration is at a certain point there has to be a line drawn. Some person not having their vote counted because they couldn’t get it together before Christmas is not a threat to the franchise.Report

            • Chip Daniels in reply to InMD says:

              How about we agree on this:

              “The new deadline for mail-in ballots to be received is Nov. 12, though ballots must still be postmarked on or before Nov. 3, Election Day.”

              Because that’s what is being discussed here.

              What possible argument is there against counting ballots which are postmarked by Election Day?Report

              • InMD in reply to Chip Daniels says:

                Scotus appears to concur, as long as it is decided at the state level.Report

              • Chip Daniels in reply to InMD says:

                That isn’t the big news here.

                The fact that 3 Justices dissented, and that the entire Republican Party argued vociferously that they wanted to throw all ballots received after Nov 6 into the dumpster, is the big news.

                They aren’t standing on some big principle, they believe that mail in ballots are mostly from Democrats, and they are looking for any way they can to destroy those ballots.

                These are not the actions of a party that believes it can win fair and free elections.Report

              • Oscar Gordon in reply to Chip Daniels says:

                I’m less concerned that three conservative justices wanted to hear the case than I am if they are being inconsistent in how they are applying the law.Report

              • InMD in reply to Chip Daniels says:

                Which case are you talking about? The NC holding I linked to was 5-3 and included Roberts and Kavanaugh in the majority.

                I don’t have time to read the decisions but the legal question driving the split appears to be whether these the issue is in the jurisdiction of the federal courts as opposed to state agencies/state courts.Report

              • Chip Daniels in reply to InMD says:

                Don’t bother with the legal argument because it is a fig leaf.

                The only consistent principle across all of these legal fights is the desire of the Republican Party to reduce the ability of the citizens to vote.Report

              • InMD in reply to Chip Daniels says:

                Don’t bother with the legal argument? There are a number of retorts I can think of when the subject is the law but wow. Better just to let that speak for itself.Report

              • Chip Daniels in reply to InMD says:

                If we were both lawyers it would be a fruitful discussion but we aren’t and it wouldn’t. Feel free to browse LGM or Lawfare for a bunch of lawyers talking about it.

                The takeaway for laypeople is the amazing consistency of outcomes favored by Republicans.

                Never wider and easier access for citizens to determine their government, but always narrower and more difficult.

                This is not a healthy political party, but one which refuses to accept the consent of the governed.Report

              • Oscar Gordon in reply to Chip Daniels says:

                That’s true for the party operatives, but we are talking about SCOTUS judges here. The legal argument, at least the logic of it, needs to be shown as inconsistent.

                What I’ve seen is that the SCOTUS is declining to get into matters of election law as such laws are the domain of the states. And when they have made noises about getting involved, it was because they saw what might be an actual question of law at play (i.e. a state bureaucratic office potentially making a call that should be made by the state legislature).

                So what logic are you seeing be applied in an inconsistent manner? Otherwise you are just b!tching because the court isn’t doing the things you’d prefer it did to satisfy your priors.

                PS You are making the claim, you go do the work to provide evidence to defend that claim. I’m not seeing a problem, so I am not going to bother scrolling through legal blogs to defend your argument.Report

              • Chip Daniels in reply to Oscar Gordon says:

                Where do we see Republicans fighting to expand access to voting?

                Where are they arguing to increase early voting, or make voting simpler and easier?

                The “logic” changes from case to case, but the preferred outcome is always the same.

                Republicans want to have as few Americans vote as possible because as voting participation increases, they lose.Report

              • Oscar Gordon in reply to Chip Daniels says:

                I admitted to you that the GOP is fighting to limit access. They see it as a way to win. That is what political parties try to do, and other parties try to stop them.

                That is not what I care about.

                What I care about is you claiming that right leaning SCTOUS judges are making decisions to aid and abet the GOP for partisan, rather than legal, reasons. Are you walking that position back, or are you going to defend it?Report

              • Chip Daniels in reply to Oscar Gordon says:

                Because as a layperson I notice that whenever the Republican justices are faced with two legal arguments, in almost every case they choose the one which gives the Republicans their preferred outcome.

                Are you saying this is a coincidence?Report

              • Oscar Gordon in reply to Chip Daniels says:

                As a layperson, you are familiar with the reasoning behind every such decision, or just the ones where said justices made a call you strongly disagreed with?

                Take a look at the reasoning given by said justices in the election related cases that the court has been asked to take up, and look for inconsistencies in reasoning.

                If you find such, make your case.

                I mean, if I made a claim that all CA Democrats are SJWs trying to usher in Jaybirds dystopia, you would expect me to defend that claim with public statements and voting records, would you not?Report

              • Chip Daniels in reply to Oscar Gordon says:

                Again, in any court case there are always two very logical cases being made.
                So by definition, the Republican justices always have a logical legal reason for their ruling.

                But that doesn’t mean anything, since they just as easily could have chosen the other line of logic.
                But somehow, they always choose the reasoning presented by Republicans.

                With such a stark disparity, there can be only two explanations;
                1. Astounding coincidence or:
                2. Partisan bias.Report

              • Oscar Gordon in reply to Chip Daniels says:

                Claim made once again without evidence.

                You say this is true, PROVE IT. Because I don’t see it.

                I see a consistent reasoning that elections are the bailiwick of state legislatures, and the one time Gorsuch said otherwise, it’s because he felt that a state agency had overstepped it bounds wrt the state legislature and the election.

                Thus I see you pulling a George, and whining about the other team doing things you don’t like, and making claims without evidence.

                If the reasoning is there, you should be able to pull up the statements of any particular justice, point to page and paragraph where they used one reasoning, and a page and paragraph in another decision where they contradicted themselves.

                Them’s the goal posts.Report

              • George Turner in reply to Chip Daniels says:

                Why would Republicans be striving to expand access to voting, when everybody except felons and aliens are already allowed and encouraged to vote? It would be like faulting them for not constantly pushing to expand the ability of people to get a telephone, driver’s license, or flush toilet.

                And so when they look at what Democrats are doing, they see Democrats pushing to allow aliens, felons, and cartoon characters to vote three or four times.Report

              • Dark Matter in reply to Chip Daniels says:

                These are not the actions of a party that believes it can win fair and free elections.

                If you want to talk about serious voter suppression then this is small beans. The biggest, most serious level of voter suppression is accomplished by holding votes off the federal cycle; I.e. Team Blue’s mostly successful efforts to make darn sure local and state elections are packed with their own supporters.

                (from link) Why do Democrats and Democratic-aligned groups prefer off-cycle elections? When school boards and other municipal offices are up for election at odd times, few run-of-the-mill voters show up at the polls, but voters with a particular interest in these elections — like city workers themselves — show up in full force. The low-turnout election allows their policy goals to dominate. (/link)

                Notice we’re talking about SERIOUS numbers. Turn out in the big elections is 60% but in a local election (which may just be a few weeks or month different) it can be half that or less.


              • Chip Daniels in reply to Dark Matter says:

                His article doesn’t say what you think it says.

                He is talking about school board elections, and off-year elections, not national elections in midterms.

                The former favors special interests, the latter favors Republicans.Report

              • Dark Matter in reply to Chip Daniels says:

                He is talking about school board elections, and off-year elections, not national elections in midterms.

                True. That doesn’t change that if we slap down a ruler and measure the results, the obvious conclusion is Team Blue is really good at suppressing the vote in those elections.Report

  10. Chip Daniels says:

    In yet another example of Repubican judges contorting themselves to find ways to throw out ballots:

    Here, the states have jurisdiction over their elections. There, they don’t.
    Because reasons.

    The only consistency?

    Republicans win, and ballots are thrown in a dumpster.Report

    • George Turner in reply to Chip Daniels says:

      This decision is INSANE. By a 2–1 vote, the 8th Circuit rules the Minnesota Secretary of State and the Minnesota state courts unconstitutionally usurped power from the state legislature by extending the ballot deadline. That theory was too extreme for the Bush v. Gore majority!

      How is that inconsistent with Bush v. Gore, which held that state legislature has authority over election laws, and that the Florida supreme court was usurping those powers? It’s pretty much the exact same ruling.

      Gratuitous picture of 2000 Florida Secretary of State Katherine Harris on a horseReport

    • Oscar Gordon in reply to Chip Daniels says:

      Let’s see what the US Constitution has to say about this:

      Article I, Section 4, Clause 1:

      The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

      Not the SOS, not the courts, the Legislature. So unless the legislature has delegated something to the SOS or the courts, then the power remains with the legislature.Report

      • Chip Daniels in reply to Oscar Gordon says:

        So, another coincidence then.

        Or is this the part where we play Internet Lawyer and pretend to understand legal jargon neither one of us understands?Report

        • Dark Matter in reply to Chip Daniels says:

          So, another coincidence then.

          Or cherry picking.
          Or asserting what you should be proving.

          If memory serves, the courts’ cases with gerrymandering fell on both sides and Roberts refused to touch either.Report

          • Chip Daniels in reply to Dark Matter says:

            Isn’t it a fact that whenever the Republican courts are offered a chance to either narrow or expand access to voting, they choose to narrow it in about 90% of the cases?Report

            • Oscar Gordon in reply to Chip Daniels says:

              No, for the love of intellectual consistency, fecking NO!

              What the FEDERAL courts have done, AFAICT, is say that they have no jurisdiction over state election laws.

              Do you REALLY want a conservative court to actively step in and start deciding state election cases. Seriously, you want that? Are you fecking daft? You think the VRA is dead letter now, HO-HO!

              THINK about what you are bitching about.Report

              • Chip Daniels in reply to Oscar Gordon says:

                We’re talking about court cases where the court rules on actions already taken by state electoral agencies or legislatures. These cases concern actions which either expand or restrict voting access.

                This is where you disprove my assertion by giving examples of Republican courts choosing to expand voter access.

                Do they do this 10% of the time? More often? Less often?Report

              • Oscar Gordon in reply to Chip Daniels says:

                Let me get this straight, you want the courts to go against what the constitution says in order to satisfy your desire for greater voter access?

                Do I have that right? Federal courts should just totally ignore the CLEAR text of the constitution, and hundred of years of precedent, because you want a specific result. You can’t see that biting your side in the ass down the line in any way now, can you?

                No guarantee, BTW, that said courts will actually rule the way you want…

                Of course, that’s really what’s at play here, isn’t it. It isn’t about the courts expanding access, it’s about Chip having a decisive example of conservatives clearly ruling against expanding access, to satisfy his priors, regardless of the fact that establishing the precedent would toss what little is left of the constitution into the dustbin.

                You have become George. Congrats, I think…Report

              • Chip Daniels in reply to Oscar Gordon says:

                You’re evading the question and my assertion.

                The courts could easily rule the other way, in full compliance with precedent and Constitutional principle, but they don’t.

                When faced with two arguments, they consistently choose the one which narrows access.Report

              • Oscar Gordon in reply to Chip Daniels says:

                No, they can’t, because to do so is to violate the constitution. Federal courts are not allowed to rule on state election law. There is no reasoning that lets the courts do that, because it violates the clear text of the constitution. AFAICT, the only paths they have are:

                A) Whether or not the state legislature granted a specific power to a state agency.

                B) Whether or not the actions of the state legislature violate some other part of the constitution.

                C) I’d need one of legal scholars to chime in if there is a third path forward.

                So, it’s back to you. What cases that the conservatives declined had clear questions that fell into A or B.

                You’ve spoken in generalities, but have yet to even put forth a singular example to make your case. PS Slate is not a reliable source for anything. You might as well quote the NY Post or WorldNetDaily.Report

              • Chip Daniels in reply to Oscar Gordon says:

                You very badly want to dive into the weeds of a legal argument, but refuse to touch the obvious point.

                There are plenty of real lawyers who will explain how outrageous the 8th Circuit ruling was, but I will let you argue with them.

                The larger point for us laypeople is that the Republican Party and their sympathetic justices are determined to make voting as difficult as possible.Report

              • Oscar Gordon in reply to Chip Daniels says:

                A) You are moving goal posts. First it was scotus, now it’s conservative federal judges and the GOP.

                B) What would you consider acceptable voting access? How is what the states are doing severely crippling said access such that the courts should get involved. Deadlines are appropriate for elections, and having those deadlines constantly shift around gives more openings for post election lawsuits to challenge results. Even for the 8th circuit, 6 weeks of early voting is a lot.

                ETA Let me be clear. My ballot was mailed to me on 10/16. I got it 10/17. The state acknowledged receipt of it on 10/19. I have until 11/3 to get my ballot post-marked or into a drop box. That means the state of WA spends all of 3 weeks managing it’s mail in voting.

                6 weeks is double that.Report

              • George Turner in reply to Oscar Gordon says:

                Hey, all I said was that our current court system should be reformed to… *goes back and checks the 2012 petition to*

                “dissolve the current legal system and replace it with a single Hall of Justice, run by Judges; motorcycle-riding law officers who act as police, judge, jury, and executioner.”

                As for Republicans expanding voting access, I guess the 15th and 19th amendments, and the Voting Rights Act don’t count?Report

            • Dark Matter in reply to Chip Daniels says:

              Isn’t it a fact that whenever the Republican courts are offered a chance to either narrow or expand access to voting, they choose to narrow it in about 90% of the cases?

              What (10?) data points are you putting on the table? Bush v Gore? And you seem to be in the process of changing “the Supremes” to “Republican courts”.

              When I look over the history of expanding the right to vote, the big item to examine is the Voting Rights Act, and the Supremes have held pretty consistently that it’s legal. The only exception was Shelby, and that’s only in the context of pre-clearance of places where the information we’re using to judge “them” dates back to their grandfathers.

              Now the Supremes have taken a dim eye towards voting and/or changing the rules after the election is over (i.e. Bush v Gore), but I don’t view that as “expanding access” issue.Report

              • Chip Daniels in reply to Dark Matter says:

                My assertion is that the Republican Party and sympathetic courts have consistently supported making voting harder and less accessible.

                Its a simple assertion, one that could easily be defeated with examples of Republican legislatures seeking to make voting easier- things like motor/voter, same-day registration, no-excuse mail ballots, early voting, later acceptance of ballots postmarked by Election day, that sort of thing.

                Or it could be easily defeated by examples of Republican judges ruling in favor of these things.

                But I can’t think of any, and it doesn’t look like anyone else can either.Report

              • Oscar Gordon in reply to Chip Daniels says:

                It’s your assertion, you provide the evidence. Stop asking other people to do your work for you.Report

              • Dark Matter in reply to Chip Daniels says:

                Its a simple assertion, one that could easily be defeated with examples of Republican legislatures seeking to make voting easier

                That link I put up earlier talked about a Michigan law which would have MASSIVELY expanded voter participation by forcing all elections to be done concurrent with the federal ones. This would stop Team Blue from suppressing voter turnout for the lesser elections.

                What Team Blue is doing is massive, to the tune of half of the votes or more, and is being done for the purpose of letting elections be taken over by special interests. This doesn’t even have the fig-leaf of increasing the security of the ballot box by copying what other countries do to secure their elections in uncontested situations.Report

              • Chip Daniels in reply to Dark Matter says:

                That’s your 10%:

                The 90% is:
                Same-day registration;
                No-excuse mail ballots;
                Early voting;
                Making Election Day a holiday;
                Later acceptance of ballots postmarked by Election day;

                These are all things favored by Democrats, and generally opposed by Republicans.

                Removing polling places and removing drop off boxes; Voter ID requirements while limiting the number of places to get them;
                Deliberately sabotaging the USPS to delay mail in ballots;
                Are things that are favored by Republicans and opposed by Democrats.Report

              • Dark Matter in reply to Chip Daniels says:

                Everything you suggested, combined, is going to add up to single digit percentages of voters if we’re lucky.

                That ignores issues like whether it’s a good idea to encourage voters to vote with no information at all (it took me an hour or so to vote this cycle) and election security.

                What the Dems oppose is getting half(ish) of the electorate to vote in the lesser elections.

                That “10%” is MUCH more impactful than everything else put together. It’s also cheaper to run since we’re not deliberately holding multiple elections.Report

        • Oscar Gordon in reply to Chip Daniels says:

          There’s no legal jargon to understand.

          There is you, making a claim, and refusing to provide evidence to support that claim.Report