Legal Docket: Election integrity and close races

JENNY ROUGH, HOST: It’s Monday the 23rd of September.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Jenny Rough.

NICK EICHER, HOST:And I’m Nick Eicher.

Today on Legal Docket: election law.

JENNY ROUGH: Yes, we’ll go back to last March for a Supreme Court decision that not only touched on the presidential election, it brought a lot of attention to Justice Barrett because of her concurrence.

NICK EICHER: I do remember: Trump versus Anderson. Six plaintiffs suing over then-President Trump’s actions, or inaction, on January 6th, 2020. The claim is that he disrupted the peaceful transfer of power, and in doing so claiming he violated the Fourteenth Amendment. Specifically, the insurrection clause.

JENNY ROUGH: But the Supreme Court held the Constitution doesn’t give states the power to enforce that provision when it comes to federal elections.

It resulted in a 9 to 0 judgment, but a fractured opinion. Judgment meaning who wins the case. Opinion meaning the rationale for it. In other words:

MULLER: They all agreed that the Colorado Supreme Court got it wrong. They all agreed that Trump should appear on the ballot. … But the reasoning is what caused a lot of hang-ups.

JENNY ROUGH: That’s Derek Muller. He’s a professor at Justice Barrett’s alma mater Notre Dame. And his scholarship focuses on election law.

MULLER: —especially how states administer federal elections.

NICK EICHER: But a majority of justices went further to say only Congress has the power to enforce the insurrection clause, meaning Congress needs to pass a statute before a candidate can be disqualified.

You mentioned, Jenny, the fractured opinion. Justice Barrett offered her view in a one-page concurring opinion. She expressed disappointment with her conservative colleagues who made up the majority. She said they decided more than they needed to resolve the case. But it was equal opportunity disappointment: Justice Barrett disagreed with liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson saying their rhetoric was overly hostile.

JENNY ROUGH: Yeah. Dissents can often be fiery, but this dissent was unusual. It actually said, “we protest!” They were saying: “We protest” the majority’s refusal to practice judicial restraint.

Justice Barrett said this is “not the time to amplify disagreement with stridency.” In a politically charged issue like a presidential election “writings on the Court should turn the national temperature down, not up.”

So it’s interesting, Justice Barrett has not written volumes since coming on the court in 2020 … but Muller says her concurrences like this have carried great weight in public discourse.

I asked Professor Muller whether he thought the decision would play a role in the November presidential election. He said he didn’t expect it to boost former President Trump.

MULLER: He's on the ballot in all 50 states. I don't think there's going to be any challenge to his candidacy on that basis. Because again, the states can't really do anything about it.

NICK EICHER: So what potential disputes does Muller foresee this November? Of course, it’ll depend.

MULLER: I think the larger the margin is in the electoral college, the lower the likelihood of disputes or any important disputes. And the larger the margin in any given state, the lower the likelihood of disputes.

NICK EICHER: Thinking back to Florida 24 years ago in the 2000 election, that was the perfect storm in terms of narrow margins. The candidate who won that state won the presidency. And it all came down to 537 votes.

And a lawsuit that made it to the Supreme Court, George W. Bush versus Al Gore.

JENNY ROUGH: Exactly. And in 2004, Republican George W. Bush again, this time running against Democratic Senator John Kerry. It also came down to one state: Ohio. But there, the margin was much larger, 120-thousand votes. So, no Supreme Court case.

Looking to 2024, though, Muller has his eye on Pennsylvania as decisive.

MULLER: And I pick a state like Pennsylvania because it's a deeply decentralized election process in that state. It's a lot of decisions made by the counties. A lot of disparities in how the counties administer elections and a lot of contests over absentee ballots.

NICK EICHER: Such as absentee ballots missing dates with signatures.

MULLER: So, you have already some grumbling about some of these ballots in dispute where the legislature has known for years and has been unable to reach a conclusion about. And it's a state that's been very close, very much a swing state, and very much could be the tipping point in the electoral college. So I look at places like that to say, well, that, that's a potential trouble spot.

NICK EICHER: But again, any call for a recount will probably come down to margins.

MULLER: A decision of a thousand votes as opposed to 50,000 votes in the state of Pennsylvania. Because if it's a thousand votes, you know, all bets are off. There's going to be intense litigation.

NICK EICHER: Unless either one of the candidates runs the table.

MULLER: Pennsylvania's not a big deal if you also need to win Georgia and Michigan in order to win the electoral college. Because now you have to win legal challenges in three states. So, as I look ahead to 2024, trying to make those sort of risk tolerance assessments about where we might see that difficulty.

JENNY ROUGH: I asked Professor Muller what he thinks about the prospect of election fraud:

MULLER: It's easier to vote than ever, I would say in the United States. And it's probably harder to cheat than ever in the United States. We have a lot of robust checks of bipartisan oversight and backend verification of citizenship and exchanges of information to find people who are ineligible because they've died or moved or whatever it might be in the voter rolls.

JENNY ROUGH: Harder to cheat, not impossible.

MULLER: I mean, fraud happens.

JENNY ROUGH: But—

MULLER: It's very rare to see it happen at scale. That is at a level that would really affect the outcome of an election of thousands of votes.

NICK EICHER: Again, it all comes down to margins. Reminds me of a book written a decade or so ago, of the title, “If it’s not close, they can’t cheat.”

But so often it is close and often comes down to absentee ballots which a generation ago were thought to favor Republicans.

MULLER: It was the military. It was elderly voters. And Democrats said, we want to vote in person. Racial minorities are skeptical of the postal service. They prefer to vote in person.

JENNY ROUGH: Then it flipped.

MULLER: During the height of the COVID pandemic, lots of changes were made to election rules, which created a lot of consternation and distrust in 2020. But in addition, a significant influx of absentee voting.

JENNY ROUGH: Which are complicated.

MULLER: They have multiple envelopes. There's secrecy sleeves, there's dating, there's signing, there's things that voters might not do correctly. And then you have a lot of more technical provisions unlike voting in person.

NICK EICHER: And then even if done correctly, there are additional risks.

MULLER: Somebody picking up somebody else's, pressuring someone at home, taking an elderly, person's vote from a caregiver.

NICK EICHER: Muller says this creates a lot of pressure in the system.

JENNY ROUGH: And another consideration: It’s important to distinguish intentional fraud from unintentional fraud.

MULLER: A husband and wife who accidentally sign each other's absentee ballot.

JENNY ROUGH: Innocent mistake.

MULLER: And in theory, when you would run that through the signature tabulator, they would look and that would look like two invalid votes, but probably you would want to count those ballots. Nobody would say that those were somehow fraudulently cast. They were maybe not in accordance with law.

NICK EICHER: Some states say only family members can carry your absentee ballot. So if you’re visiting a friend who drops it off for you, illegal.

MULLER: So there's a difficulty in the United States because we have so many technical rules, and they're important rules, and they're rules designed to prevent fraud, to prevent intimidation. But at the same time, at the end of the day, sometimes there are technical violations, but in a very close election, you start looking at those technical violations and say, boy, what happens if things went the other way?

NICK EICHER: The Illegal Immigration Reform and Immigrant Responsibility Act makes it a crime for aliens to vote in federal elections. But checks come not on the front-end but on the back-end. So some states now want to require proof of citizenship for federal presidential elections before allowing someone to vote.

JENNY ROUGH: There are a handful of cases now percolating in lower courts. So perhaps we’ll see one at the Supreme Court.

And that’s this week’s Legal Docket.

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