The final countdown: Election litigation breakdown with Edward Foley

Are we headed for another Bush v. Gore? What would that case even look like in 2020? What is happening with all of the coronavirus-related litigation coming up to the Supreme Court right now?

With less than a week to go before the 2020 election, SCOTUStalk host Amy Howe talks to election law expert and Ohio State University constitutional law professor Edward Foley about these questions and more. To follow all the latest developments on important election disputes that may reach (or have already reached) the Supreme Court, visit our Election Litigation Tracker, a joint project of SCOTUSblog and Election Law at Ohio State.

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Full transcript below the jump.

Intro: [00:00:00] Oyez! Oyez! Oyez! This is SCOTUStalk, a non-partisan podcast about the Supreme Court for lawyers and non-lawyers alike, brought to you by SCOTUSblog.

Amy Howe: [00:00:13] Welcome to SCOTUStalk. I’m Amy Howe. Thanks for joining us.

We are less than a week out from Election Day, and although the calendar says twenty twenty, many people believe that this fall in winter could look a lot like 2000, when the outcome of the presidential race hinged on litigation over the counting of ballots in Florida in an effort to get ready for possible election-related litigation. We are lucky enough to have one of the country’s top election law experts with us today. Ned Foley is a law professor at Ohio State University. He’s also a contributing columnist for The Washington Post and an analyst for NBC News. Ned, welcome.

Ned Foley: [00:00:34] It’s great to be with you.

Amy Howe: [00:00:36] So let’s go ahead and get started. During Amy Coney Barrett’s confirmation hearings, we heard a lot about a term that might arise in health care litigation, severability. In the election law context, we hear a lot about something called the Purcell principle. Can you just give us a quick explanation of what the Purcell principle is and why it comes into play so often?

Ned Foley: [00:01:01] Sure. Basically, the idea is that election rules should not change too close to Election Day itself because that can destabilize the system. It can confuse voters, it can confuse poll workers. It can confuse local election officials. So, if there’s litigation to be had in advance of the election, that should occur as far early as possible so you don’t get too close to Election Day. So, there’s no hard and fast deadline under the Purcell doctrine. This was a Supreme Court decision that basically put a gloss on the normal balancing of the equities that occurs any time there’s emergency litigation. And added as part of the overall balancing of factors, just keep in mind the harm that can occur to the electoral process by last minute changes.

Amy Howe: [00:02:02] What have we seen from the court so far in terms of pre-election litigation, you know, what kinds of cases, what have been some of the issues that have come to the court?

Ned Foley: [00:02:15] Well, absentee ballots or vote by mail is so prominent this year. We’re seeing that at the U.S. Supreme Court. You know, one of the important dynamics this year is just the explosion of litigation that has occurred all around the country in the lower courts, mostly lower federal courts, but also some state courts. Every presidential election cycle, you see some of this litigation, a considerable amount, and especially in the battleground states.

[00:02:46] But it’s off the charts this year in volume. And, you know, the U.S. Supreme Court, as the apex of the judiciary, is trying to supervise the entire litigation process, not just the few cases that make it to the Supreme Court itself, but what do those cases as a sample tell us about the overall litigation environment? And I think what we’ve seen, and this is painting with a bit of a broad brush, is that the court has tried in each case it’s gotten to kind of put an emphasis on this Purcell principle by saying lower courts don’t rock the boat too much. We’re very worried about federal judges interfering and changing the rules in the midst of a pandemic. You’ve got to let local officials figure this out for themselves, whereas the plaintiffs have thought that the pandemic gave them greater justification to sue and to change the rules, the Supreme Court’s response has been almost the opposite. It’s like now you’ve got to give more deference and more latitude to state and local officials to try to figure it out because it’s putting more the pandemic is putting more stress on the system. So you have to cut them more slack. So the court’s response has been almost the opposite of what the plaintiffs wanted or maybe even anticipated, and also what lower, particularly district judges were doing. I think in the Wisconsin opinions that came out just recently, you could detect a tone of frustration, I think, among some of the justices that at least the level of the federal district courts, that they’re not getting the message, they’re not picking up the signal that came from April in the earlier Wisconsin case and some of the other cases from Alabama and South Carolina and so forth that basically said, please lower court judges don’t interfere too much.

Amy Howe: [00:04:49] Like they keep writing it, I think they feel — at first, we’re going to read it briefly and then we’re going to write it a little more length. And you’re still not quite getting the message.

Ned Foley: [00:04:57] Yeah, and again, I think judges are human and even on the printed page, so to speak, you can detect the tone of frustration. And so, one has to think that the hammer may come down harder as a result of the message not being received the first time. I mean, there’s an inner dynamic between the Supreme Court and the lower court judges. And the justices might have given lower judges more leeway if they got the message quicker. But if they’re not getting the message, the second round is likely to be even sterner, I think.

Amy Howe: [00:05:35] So I want to ask whether there are any lessons that we’re learning in the pre-election litigation that might shed light on how the justices might deal with post-election litigation. But before we get to that, I guess what I want to ask is like, is there going to be a bright line? Like, are we going to like is Election Day going to be this sort of Rubicon? And like, you know, our firewall, that election litigation is not going to cross it? Or could there be litigation that sort of spans the two either sort of litigation that crosses the divide sort of post litigation, post-election litigation that’s based on something that happened before Election Day?

Ned Foley: [00:06:16] Yeah, it’s a really good and important question. In some ways. We’re already seeing that the cases that are pending out of Pennsylvania and North Carolina, even though they’re here at the court before Election Day itself, they concern in part the counting of ballots. And there’s some procedural issues about what will happen to those ballots after they’re cast. Will they be sequestered or segregated, for example, so that so that if they’re invalidated, they can be invalidated without being pulled into the overall count? So I think we are seeing pre-election litigation bleed into post-election litigation, if you will. I think from the voter’s perspective, the polls will close on Election Day and so voting will stop.

[00:07:04] And some of the skirmishing right now is about when the casting of absentee ballots will end. And the Wisconsin case involved that and some of these other cases, too. So I don’t I think there is still something of a dividing line between pre-election and post-election day. But you’re correct to talk about that line blurring a little bit also.

Amy Howe: [00:07:32] And so are there lessons, if you will, the Purcell principle, I mean, are we are going to be able to stop talking about the Purcell principle on Election Day at least?

Ned Foley: [00:07:41] Yes. Yes, I think the Purcell principle is at least about the pre-election part of it.

Amy Howe: [00:07:47] Ok, so we can retire Purcell for at least two more years?

Ned Foley: [00:07:51] Correct. I think that’s right. But you asked about are there lessons to be learned for the vote counting process? I think there are three lessons maybe to think about. One is the basic idea of judicial restraint versus sometimes called judicial activism. In other words, that the Supreme Court has to decide for itself how interventionist it wants to be in any political dispute. This is an issue and a theme that has been at the court for decades and decades. And, you know, I wrote earlier about Justice Felix Frankfurter as being a big apostle of judicial restraint. And I think Chief Justice Roberts has tried to emphasize that in some of his more recent writings and signals that he’s been sending, including his vote and in one iteration of the Pennsylvania case, but, you know, judicial restraint does mean the court backing off from deciding constitutional questions that are its bread and butter. Right. I mean, if Marbury v. Madison basically says that it’s the role of the Supreme Court in our system of government to answer constitutional questions, then the doctrine of judicial restraint is in tension with that, in the sense that it’s asking the court to refrain from answering those questions or being, you know, particularly interventionist and aggressive in answering those questions. So that’s why we’ve seen the court over decades getting involved in answering constitutional questions that involved the voting process. And maybe the high watermark of this was the Warren Court here in the 1960s in a case that people may have heard of, called Baker v. Carr, which is where the court signaled in in opposition to Justice Frankfurter.

[00:09:50] In fact, he dissented vigorously in that case. This is 1962. But Earl Warren and Justice Brennan and the and the whole Warren Court said, no, we are going to take it upon ourselves as the Supreme Court to answer constitutional questions involving the voting process. And then there followed another case, famous one, at least to law professors called Reynolds v. Sims, which articulated this doctrine of one person, one vote interpreting the equal protection clause of the 14th Amendment to robustly guarantee equal voting rights for all U.S. citizens in elections. And again, there were dissents to that. But that philosophy prevailed, and it prevailed for a half century. But the Warren Court was not motivated by what we now call originalism or textualism as a methodology of interpretation. Yes, they pointed to the equal protection clause of the 14th Amendment as text within the Constitution. But a textualist oriented judge would have answered that case very differently because they would have noticed that the 14th Amendment also had Section two, which specifically authorized states to violate voting rights and deny one person one vote if states were willing to suffer a specific penalty. And the penalty was a loss of representation in the U.S. House of Representatives in terms of the share of seats that a state gets of the overall House based on the census that occurs every 10 years. It’s a complicated mathematical idea.

[00:11:31] But basically, when the Congress was enacting the 14th Amendment, they told the southern states in particular during Reconstruction, but applies to all states. It said if you deny the right to vote to any of your male citizens over the age of 21, let’s say you disenfranchise 20 percent of those male citizens over 21 years old. You’ll lose 20 percent of your seats in Congress. You can do it. But that’s the consequence that’s right there in the text of the Constitution. And in fact, two years later, Congress, when it wrote the 15th Amendment, said, hey, on second thought, we really don’t want you to discriminate in voting on the issue of race. Right. We’re doing reconstruction. We’re trying to build a country back together after the civil war. And although we tolerated the denial of voting rights based on race discrimination when we wrote the 14th Amendment, we’re not tolerating it on the 15th Amendment. But you needed the 15th Amendment to protect voting from racial discrimination and you needed the 19th Amendment to guarantee women’s suffrage. In fact, Section two of the 14th Amendment says states don’t suffer any penalty at all from denying the right to vote for women. Not a single iota of loss of representation in the House. So if you’re a originalist justice and a textualist justice who thinks your job is not to do policy or not to do philosophy, but just to interpret the Constitution as it’s written, you think these Warren Court decisions are completely improper as a matter of methodology and the Warren Court didn’t mind because it wasn’t originalist.

[00:13:11] It wasn’t textualist. It justified what it did not on fidelity to original intent, but said the Constitution can’t be a good Constitution unless it adequately protects voting rights. We can’t have a fair society unless we adequately protect voting rights. So we as the justice, in order to make the Constitution better, have to use the equal protection clause, not to interpret it as originally intended or how it fits next to the rest of the constitution, but we’re going to give it new meaning to make the Constitution a better job document. You know, I may share that philosophy, but it is not the philosophy of Justice Scalia, for example, or any of his proteges. And so we are seeing a sea change in attitude. And, you know, the story hasn’t played out completely. The role of precedent may protect some of you in stare decisis, may protect some of these old decisions from the 1960s and in an accumulation of decisions that happened in the 70s, in the 80s and 90s. I mean, there’s a whole body of constitutional law that’s developed, but it all rests on a foundation that is antithetical to the new prevailing philosophy. And so there’s just a clash of, you know, I think of it as like plate tectonics. They’re just these two there’s a huge clash that’s occurring that’s producing an earthquake in American voting rights law right now.

Amy Howe: [00:14:44] Wow, that is a lot to think about. So a lot of people sort of will talk about the possibility, you know, you’ll hear sort of a shorthand to what could be coming after the election‑the possibility of another Bush v. Gore. People sort of throw that around. But for our listeners who were perhaps in elementary school at the time or may just need a refresher, can you just give us a brief synopsis of what the issues were in Bush v. Gore and sort of how it played out?

Ned Foley: [00:15:17] Sure. And doing that will also cause me to pick up on another aspect of your earlier question that I still left on the table, which is there’s a third theme to be on the lookout for, which is this concept that sometimes goes by the name of the independent state legislature doctrine. This came up in Bush v. Gore because the concurrence that happened in the U.S. Supreme Court eventually and written by Chief Justice Rehnquist at the time, embraced this idea. And we can get into the details of it. Now, the majority opinion in Bush v. Gore was decided on equal protection grounds. Interestingly, more conventional. I mean, what what… And it goes back to the points that we were making about the Warren Court precedents and Reynolds v. Sims and one person, one vote, because what was striking is that the majority opinion in Bush v. Gore by using equal protection doctrine is built on these Warren Court foundations, which are not original intent and were not particularly conservative principles. And that’s why, you know, some people, observers were struck. Why was it that you had conservative justices like Justice Scalia or Justice Rehnquist relying on equal protection concepts that were sort of antithetical to their basic jurisprudence? And so I think the answer is that philosophically, the more conservative justices like Scalia and Rehnquist and were more enamored by this other idea. They went along with equal protection.

[00:17:01] That was where Justice O’Connor and Justice Kennedy wanted to go. But, of course, Justice Kennedy and O’Connor were moderate conservatives.

[00:17:10] They were not, you know, full throated originalists like a Justice Scalia was. So as the idea of Bush v. Gore comes back to us today, 20 years later, we may be better situated if we want to try to understand it by looking actually at the concurrence rather than the majority. That’s not usually how you look at old Supreme Court cases. Do you think the majority opinion is where you find the law? Not the concurrence, but in this instance, it may be savvier to spend a lot more time with the concurring opinion. When we talk about Bush v. Gore, we could just talk about that. Those were the names of the two candidates, right? George W. Bush and Al Gore. The U.S. Supreme Court ends up deciding, you know, two different cases after granting certiorari.

[00:17:59] The first one is called Bush v. Palm Beach Canvassing Board. And the second one is what we know by Bush v. Gore. That itself had two stages. There was a grant of an emergency stay over the decisive weekend that produced some writing. And then finally, the major merit’s opinion a few days later. I think it is valuable to break it in part, though, because what happened in Florida was two different stages of Florida’s own vote counting procedures that caused it to go up to the U.S. Supreme Court twice. So the first stage was an administrative process for the most part, that Florida law calls it a protest phase. In other words, a candidate who thought that the vote tallies were incorrect could protest the count at the level of local government. Palm Beach County, Broward County, Miami Dade, and Al Gore filed protests in four counties complaining of improprieties or irregularities. And I think what’s fair to say, at least my view on the basis of hindsight, I didn’t quite see it this way, watching it in real time as a you know, somebody interested but teaching the case and studying it, it did look like the Florida Supreme Court was really manipulating state law.

[00:19:31] In the deadlines and the rules for handling the protest, you know, we could talk into the details and the Florida Supreme Court was unanimous, but they were all justices in the Florida Supreme Court appointed by Democrats. So Republicans thought the fix was in against them. It might have been good faith, whatever. You know, that day there were clear deadlines in Florida law, statutory law, and the Florida Supreme Court kind of completely rewrote those deadlines, even more so than Al Gore asked for. Al Gore ask for a modest extension and he got a huge extension, which ended up causing problems because the clock was running out and the time got compressed on the back end. But the point is that when the Bush campaign went to the U.S. Supreme Court, the first time they based they brought this independent state legislature doctrine to the forefront and they said the Florida Supreme Court is manipulating state statutory law so much, the distortion is so great that they’re really violating the authority of the state legislature under the US Constitution to determine the method of appointing electors in the Electoral College or the Article II of the Constitution says states shall have electors appointed in a manner determined by the state legislatures. And if you have a state judiciary rewriting the rules so aggressively, it looks like it’s intruding on the authority of the state legislature and the way the U.S. Supreme Court handled it the first time was to basically deflect the issue and send it back in.

[00:21:14] In an opinion that was unanimous, at least superficially. There may have been some dissents behind the scenes, but in the public posture, all nine justices said, we’re a little bit concerned, I’m paraphrasing, but we’re a little bit concerned about the basis of the Florida Supreme Court’s decision and how it could essentially rewrite Florida statutory laws so much. Florida Supreme Court, please explain yourself. It went back down to Florida. But by that time, through complicated reasons, the protest phase was over. The recounts hadn’t been completed the way Al Gore wanted them to. Bush was certified the winner by a narrow margin of 537 votes. And so Gore has to file a new lawsuit, which under Florida law is called a contest phase. You know, in other words, the protest is trying to challenge the counting prior to certification from an administrative perspective. And Gore really didn’t want a certification against him because, remember, he conceded on election night and then had to retract his concession. So from a public relations point of view, he was trying to fight the certification of the result against him, but that didn’t work. So once it was certified against him, he goes back into court under a separate procedure called a judicial contest. And here’s where the hanging chads come to the fore. And the turns out the hanging chads are getting different treatment in different localities, depending on different standards that each local government is using for similar ballots.

[00:22:49] And so that comes back up to the U.S. Supreme Court after the Florida Supreme Court now four to three kind of divides over what’s the appropriate rules for a contest phase of the process and how this can get really, really complicated and many moving parts. But basically what happens in my judgment is by the time it comes back to the U.S. Supreme Court. In the second round, many of the justices are really suspicious at the Florida Supreme Court’s not getting the signal. That goes a little bit back to our earlier conversation about the Purcell doctrine. A Florida Supreme Court was told, hey, get your ducks in a row, explain yourself. Don’t really distort your own law. And it looked like they were distorting their law a second time, causing the Bush campaign to reassert this doctrine under Article II that the legislature must be in control. And again, three of the justices signed on to a concurrence embracing that view. But for whatever complicated reasons, Justices O’Connor and Kennedy are nervous about that. And they latch on to this equal protection idea that maybe the differential treatment of the hanging chads, whether it’s in Miami or Palm Beach or Broward County, is a violation of one person, one vote, equal voting rights. And so that’s how it how it goes down, so to speak.

Amy Howe: [00:24:16] That was really helpful. You know, it’s been 20 years, which in some ways seems like a really long time, and in other ways it all comes back so quickly. You know, looking back at the justices on the court, it’s sort of striking that there are actually only two justices left on the court who were on the court during Bush v. Gore, now Justice Thomas and Justice Breyer. But there are now three justices who were involved as lawyers in Bush v. Gore. So they’re very familiar with the issues as well. When you think about when you think ahead to the 20 20 election, which is just around the corner, and you think about the issues that could arise and could be fodder for litigation after the election, I mean, do most of them arise out of the counting of ballots? And what are you watching for, I guess, is what I’m trying to ask?

Ned Foley: [00:25:12] Yes, so in some ways, our prior conversation hopefully sets the stage for focusing on this, because putting aside the independent legislature doctrine for a second, if the role of the U.S. Supreme Court in any case like this is dependent upon all the Warren Court precedents, and that’s what Bush v. Gore used, the conservative majority of the Supreme Court is going to have to kind of think through its own posture in that regard. Right, because, you know, for the U.S. Supreme Court to essentially do the same kind of thing that it did in Bush versus Gore, it will have to interpret the 14th Amendment in a more aggressive, interventionist way, which is consistent with Warren Court philosophy, but not so consistent with original intent or textualism, so I could see some justices being torn. And ironically, it goes into this question of what sort of precedent was Bush v. Gore supposed to set. There’s this very famous sentence in Bush v. Gore that says, you know, we’re just deciding this case. And people, I think, have taken that out of context, that they sort of believe that it was a statement on the court that they were confessing to the world that we’re being completely unprincipled. I think that doesn’t make any sense. I think it was Justice O’Connor apparently adding that her biographer says she added that sentence because it was consistent with her overall jurisprudential philosophy of one step at a time. Very context, dependent, if you know her Fourth Amendment jurisprudence or Establishment Clause jurisprudence. I mean, she was just very fact specific. I think she was just saying, hey, equal protection is going to be analyzed in a very fact dependent way.

[00:27:09] And so we’re just deciding this case, you know, come back later for your other equal protection claims and we’ll look at them again. It wasn’t claiming that the court was being unprincipled, I don’t think. But anyway. But that’s a Justice O’Connor who’s willing to entertain the Warren Court precedents theory seriously. How is an originalist judge, you know, like a Justice Gorsuch or Justice Barrett supposed to handle the Bush versus Gore precedent on equal protection grounds? And all of the Warren Court precedents on which it’s based, plus stare decisis, I mean, I think there’s a lot of really interesting, important, complicated questions that would come back in a very fast moving environment, you know, in a potential Trump v. Biden kind of lawsuit potentially that could arise, you know, in the days or weeks after Election Day. So, you know, we could see we could see the justices taking a rather judicial restraint philosophy, perhaps with respect to 14th Amendment claims. And yet, you know, depending upon how they want to look at the world, be very interventionist or aggressive on this so-called independent state legislature doctrine argument, right. In other words, if the motivating force of their thinking will be election rules for presidential elections must be decided by state legislatures because Article II gives state legislatures that power, then if they see anything happening in the vote counting process in a state that deviates from that Article II proposition, you know, that may be their motivation as justices for stepping in and saying we have to correct this error because it’s inconsistent with the Article II power of state legislatures.

[00:29:09] And that’s why the concurrence could come to the fore, superseding the majority opinion of Bush v. Gore in terms of its significance. Now, all of that is at the level of doctrine and theory and so forth. You know, for any of that to matter, I think there have to be enough ballots in play and the margin of victory has to be close. I mean, the recount lawyers always talk about two numbers. You know, what’s the reported margin of victory for one candidate in the tally? You know, who’s ahead and by how much versus how many ballots are being disputed? And you know, I saw this up close in Ohio in 2004, which was the first presidential election after Bush v. Gore, where the Kerry campaign was very predisposed to litigate over what are called provisional ballots, which were a new phenomenon because of the Help America Vote Act of 2002. There was a response to some of the problems in Florida. But in any event, so the Kerry campaign said, well, if there are enough provisional ballots to fight over, we’re going to fight. But it turned out that, you know, Bush’s lead in Ohio was just too large. There just were not enough provisional ballots to fight over. So something like that could happen this year. People may be predisposed to fight over absentee ballots that may be missing signatures or may be late according to deadlines or what have you. But if the number of those ballots is 10,000, but the margin of victory is 100,000, you just can’t litigate.

Amy Howe: [00:30:50] That actually sets up and I think probably at least partly answers my next question, which is whether there are particular states we should pay attention to, you know, obviously has to be a state where it matters, you know, both in terms of the the number of electoral votes, college votes in question. And then, as you say, that that there are enough votes in dispute to make that margin matter, correct?

Ned Foley: [00:31:19] Right. Especially if we’re you know, we’re focused on the presidential election. I mean, I wouldn’t rule out. You know, post-election day lawsuits involving U.S. Senate seats, for example, that’s at some point, right? I mean, Coleman versus Franken for anybody remembers the Minnesota U.S. Senate race of 2008 didn’t get up to the U.S. Supreme Court, but might have under different twists and turns. There was an equal protection claim in that litigation. So so yes. But if if the point is the presidential election, it would have the state would have to matter to getting to that magic number of 270 electoral votes and there would have to be something to fight about in the particular state.

Amy Howe: [00:32:09] Is there anything else you think that our listeners need to know going into election season?

Ned Foley: [00:32:17] Well, I guess so. So picking up on what we were saying before about Bush v. Gore and the jurisprudential sea change, if that’s the right term that we’re undergoing right now, I guess I would ask myself and everybody else to think about to what extent are the justices acting consistent with principle philosophies versus acting on the basis of partisanship? I think there is going to be a lot of fear. There already is that the Supreme Court might look like a partisan institution and succumbing to partisan pressures. There was a fear of that about Bush v. Gore itself. And, you know, some of the scholarly commentary was that if it had been Gore versus Bush instead of Bush versus Gore with the exact same claims made, but just the identity of the litigants in terms of petitioner, respondent being the opposite, you know, all nine justices would have done back flips to be on the other side of the case, suggesting that the justices, despite their best efforts, might have been affected by their own preference for the candidates as opposed to jurisprudence. And that’s what you would least like to have happen. And we know we live in a world now where, you know, there is all of this partisan fighting over the future of the Supreme Court. I mean, it came up in the recent confirmation hearings. And now we see this alignment between, you know, Republican justice or justices nominated by Republican presidents tend to be more conservative, justices nominated by Democratic presidents tend to be more liberal in their philosophy. So it’s easy for sort of the appearance of partisan alignment to be congruent with jurisprudential alignment, if you will. But that requires us to, I think, be charitable in our evaluation of the justices, because what may be genuinely motivating their decisions is the jurisprudence, is the philosophy. And we should not be too quick to accuse them of partisanship if their reasoning and their decisions can be explained based on principle, good faith, ideological jurisprudential differences, it doesn’t mean that they’re being partisan. And I think that’s something to watch for as this election season unfolds.

Amy Howe: [00:34:57] I’m now actually have this mental image of the justices in their black robes doing back flips. But I think those are excellent words to end on Ned Foley, thanks so much.

Ned Foley: Thanks for having me. I really appreciate it.

Outro: 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.