As usual, well well-argued and well-written. But the quote "Let’s hope the Supreme Court does the right thing and gives Trump the heave-ho from 2024 ballots." was passed over with no comment or explanation. I would REALLY like to hear your thoughts on why that is "the right thing." It seems there is a huge due process hole in there. If there is a statute reading "Murderers go to jail" can the Colorado Supreme Court now say "he is obviously a murderer, so send him to jail" without a murder conviction?
That’s going to be the question. Colorado at least held hearings and took evidence. So there was some due process. But due process comes from the constitution and so does the insurrection clause, so it’s not a stretch to say if the drafters required a conviction with criminal processes attached, they would have included it in the insurrection clause. The key is what the remedy is. If it’s a due process issue, the remedy is remand back to Colorado for more hearings. My guess is Roberts will push hard for that. As a lawyer my worry is that this court will use Bush v Gore as precedent (or at least as guidance) to say there’s not enough time for due process so he must stay on the ballot, which is a political decision, not a legal one.
There is a valuable lesson from Florida 2000: prompt, accurate vote counting builds trust in the results. The longer it goes on, the more it appears questionable. It may not be questionable, but that is how it appears.
Ohio, where I live has voter ID laws; Indiana (where I used to live) had them. I chuckle, my father-in-law was the precinct worker checking IDs. He's a good ol' boy, everyone knows him. He checked everyone, even his close friends (and his son in law). His reasoning was if he checked everyone, people would trust the election outcomes more. He had friends grumble, but they came around to appreciate it.
When I went to vote in November 2023 (Virginia has odd year elections for state/county offices), one of my kayaking buddies was checking IDs. He asked for mine, I laughed. Nope, he said, he needed to see it. So I pulled out my driver's license. Frankly I'm glad he did it. I live in the Democratic stronghold of Northern Virginia. The last two times I voted for candidates who won was in 2009 and 2021. Even though voting for a winner is a long shot, it's still important to vote. (And yes, I wrote in candidates for the top office on the ballots in 2016, 2020, and likely 2024)!
The Supreme Court very much “handed” the presidency to Bush in the sense that they did not let the recounts continue. They might not have altered the eventual result, we will never know, but they plucked the decision making power from Florida and conferred it upon itself. The equal protection standard they created came from whole cloth. The majority didn’t sign it, they issued it per curium. They also put in a nifty little provision that made the opinion non-precedential. So a holding tailor made for a specific litigant that can’t ever be used again or tied to a specific justice is pretty much “handing” a decision to that party. That being said, my recollection is that even under the Florida supreme court’s decisions, the final certification would come from the (Republican) Florida legislature. What the Supreme’s did was take the Florida legislature off the hook. It’s unlikely Gore would have acted any other way had they voted for Bush, so the “chaos averted” theory holds no water. On an ideological basis, this should have been 9-0 for Gore. The liberals wanting to “count every vote” (no basis in law there either but it would have been a minority concurrence), the conservatives saying it’s a Florida problem for Florida to solve.
No mention of the Brooks Brothers riot? There was chicanery aplenty from all involved on that November day. Violence too.
2000 was a mess the likes of which I had hoped we learned from as a nation.
Love that you started with a MacBeth reference. My oldest kid just went through that play a few weeks ago. As a long reformed English major seeing her deal with Shakespeare warms the long cold cockles of my heart.
I disagree with the semi-mainstream reference of popular vote being superior to electoral college for a couple reasons.
Hundreds of years ago, the smaller states were worried over their concerns being steamrolled by larger states and that was the compromise to get them to sign on.
The sneering comments that Wyoming has 3 out of 538 electoral votes being too much representation relative to California's 54 are proof of the original concerns.
Additionally, California's switch to a jungle primary system in 2012 has led to many statewide races being between two Democrats leaving Republicans with limited interest in turning out, likely resulting in millions of Republicans voters appearing to disappear from national popular vote that would reappear if the rules were changed from EC to popular vote.
Both of those rulings are problematic. I agree that deciding there is not enough time just kicks the can down the road. But could we conceivably have 50 state courts each deciding independently whether or not an insurrection took place? That will make American History classes interesting in 2080. And does Article 5 preclude the states taking action rather than the Congress?
I’m not a lawyer so trying to make logical sense of this may be futile.
Kicking the can is an actually well recognized legal doctrine just called something else: the political question doctrine. Having 50 different decisions is also consistent with the constitutional requirement that the states run their own elections. We’ve been living with that regime for 200 years and it’s been ok. And probably will be.
I wonder: what did happen since to avoid this kind of embarrassment? Did states or the federal government made any effort to make the ballots unambiguous? Have they changed anything to make manual ballot counting viable?
every state different. I live in MD where you check boxes on a computer, which produces a printout that goes through an optical reader. the printout is saved as a paper backup
At the last general election I was an election counting official about 200 kilometers from home. It was a general election combined with a referendum, so there were 3 ballot papers (one for the local MP, one for a party and one for the questions on the referendum - some constituencies had a forth one for the minority MPs). I worked in one of the smaller polling stations, we had about 80 voters. We've comfortably finished the manual counting in about one and half hour (I heard that in larger polling stations it took a couple of hours) and the country-wide 90+% results were in well before midnight (at least for the general election). I volunteered for this because in the previous general election the opposition parties did not have any election counting officials in 10-15% of the polling stations and there were conspiracy theories of voting fraud in these districts. Even though the results were similar (or even worse) this time, these conspiracy theories were refuted, the election was not actually rigged.
I know that the American elections are different, there are a lot more votes counted, but this task is well suited to parallelism. Was there a push to have more voting posts (and fewer votes in each post)? Or to move the state and county-level elections to a different date than the federal elections, so again fewer votes to count? I'd assume that if there are members of all involved parties at every level of vote counting, these allegations about miscounting votes should die out.
I would note that Gregg's comments are directly on point with respect to what the Trump allies tried to do in Pennsylvania-they tried to change the voting rules after the fact. As I recall, Pennsylvania had put in place certain rules regarding absentee ballots. After the PA voters chose Biden, the Trump allies argued those rules violated the PA constitution and thus the PA vote needed to be redone.
Whether the rules were constitutional or not, they were the rules under which the election was held and it would have been wrong to give the loser a second bite at the apple.
I heartily approve of your view that the Supreme Court needs to uphold the 14th Amendment and keep Trump off the ballot. This needs to be shouted from all rooftops. I also thank you for clarifying the facts of 2000 that tend to get swept away in the furor and hand-wringing over so-called 'stolen elections'.
Many ironies. A later independent recount of "undervotes" by the Miami Herald and USA Today found that Bush would still have won under most recount scenarios (which I believe were limited to just the disputed counties), but that Gore would have won by the most generous standards for undervotes. A later study of _statewide_ ballots found that applying any of five recount standards would have reversed the outcome to a hairsbreadth victory for Gore--only 60-171 votes!
"Let’s hope the Supreme Court does the right thing and gives Trump the heave-ho from 2024 ballots."
I think Gregg got this one flat-out wrong. There have been no "insurrection" charges, let alone convictions, against J6 protesters or Trump. Removing Trump from the ballot is a cop out.
Instead of hoping Trump is removed from ballots, which is what dictators do, let's hope Dems and the GOP remove their collective heads from the third point of contact and have better candidates.
As usual, well well-argued and well-written. But the quote "Let’s hope the Supreme Court does the right thing and gives Trump the heave-ho from 2024 ballots." was passed over with no comment or explanation. I would REALLY like to hear your thoughts on why that is "the right thing." It seems there is a huge due process hole in there. If there is a statute reading "Murderers go to jail" can the Colorado Supreme Court now say "he is obviously a murderer, so send him to jail" without a murder conviction?
That’s going to be the question. Colorado at least held hearings and took evidence. So there was some due process. But due process comes from the constitution and so does the insurrection clause, so it’s not a stretch to say if the drafters required a conviction with criminal processes attached, they would have included it in the insurrection clause. The key is what the remedy is. If it’s a due process issue, the remedy is remand back to Colorado for more hearings. My guess is Roberts will push hard for that. As a lawyer my worry is that this court will use Bush v Gore as precedent (or at least as guidance) to say there’s not enough time for due process so he must stay on the ballot, which is a political decision, not a legal one.
There is a valuable lesson from Florida 2000: prompt, accurate vote counting builds trust in the results. The longer it goes on, the more it appears questionable. It may not be questionable, but that is how it appears.
Ohio, where I live has voter ID laws; Indiana (where I used to live) had them. I chuckle, my father-in-law was the precinct worker checking IDs. He's a good ol' boy, everyone knows him. He checked everyone, even his close friends (and his son in law). His reasoning was if he checked everyone, people would trust the election outcomes more. He had friends grumble, but they came around to appreciate it.
Your father in law has it right
When I went to vote in November 2023 (Virginia has odd year elections for state/county offices), one of my kayaking buddies was checking IDs. He asked for mine, I laughed. Nope, he said, he needed to see it. So I pulled out my driver's license. Frankly I'm glad he did it. I live in the Democratic stronghold of Northern Virginia. The last two times I voted for candidates who won was in 2009 and 2021. Even though voting for a winner is a long shot, it's still important to vote. (And yes, I wrote in candidates for the top office on the ballots in 2016, 2020, and likely 2024)!
The Supreme Court very much “handed” the presidency to Bush in the sense that they did not let the recounts continue. They might not have altered the eventual result, we will never know, but they plucked the decision making power from Florida and conferred it upon itself. The equal protection standard they created came from whole cloth. The majority didn’t sign it, they issued it per curium. They also put in a nifty little provision that made the opinion non-precedential. So a holding tailor made for a specific litigant that can’t ever be used again or tied to a specific justice is pretty much “handing” a decision to that party. That being said, my recollection is that even under the Florida supreme court’s decisions, the final certification would come from the (Republican) Florida legislature. What the Supreme’s did was take the Florida legislature off the hook. It’s unlikely Gore would have acted any other way had they voted for Bush, so the “chaos averted” theory holds no water. On an ideological basis, this should have been 9-0 for Gore. The liberals wanting to “count every vote” (no basis in law there either but it would have been a minority concurrence), the conservatives saying it’s a Florida problem for Florida to solve.
Make sure you read all the article, as it these decisions by the SCOTUS are explained.
I have read the whole article and the actual opinions as well.
No mention of the Brooks Brothers riot? There was chicanery aplenty from all involved on that November day. Violence too.
2000 was a mess the likes of which I had hoped we learned from as a nation.
Love that you started with a MacBeth reference. My oldest kid just went through that play a few weeks ago. As a long reformed English major seeing her deal with Shakespeare warms the long cold cockles of my heart.
I disagree with the semi-mainstream reference of popular vote being superior to electoral college for a couple reasons.
Hundreds of years ago, the smaller states were worried over their concerns being steamrolled by larger states and that was the compromise to get them to sign on.
The sneering comments that Wyoming has 3 out of 538 electoral votes being too much representation relative to California's 54 are proof of the original concerns.
Additionally, California's switch to a jungle primary system in 2012 has led to many statewide races being between two Democrats leaving Republicans with limited interest in turning out, likely resulting in millions of Republicans voters appearing to disappear from national popular vote that would reappear if the rules were changed from EC to popular vote.
good points. I'd counter that the Senate suffrage clause ensures representation for the small states and that clause probably cannot change
Both of those rulings are problematic. I agree that deciding there is not enough time just kicks the can down the road. But could we conceivably have 50 state courts each deciding independently whether or not an insurrection took place? That will make American History classes interesting in 2080. And does Article 5 preclude the states taking action rather than the Congress?
I’m not a lawyer so trying to make logical sense of this may be futile.
Kicking the can is an actually well recognized legal doctrine just called something else: the political question doctrine. Having 50 different decisions is also consistent with the constitutional requirement that the states run their own elections. We’ve been living with that regime for 200 years and it’s been ok. And probably will be.
I wonder: what did happen since to avoid this kind of embarrassment? Did states or the federal government made any effort to make the ballots unambiguous? Have they changed anything to make manual ballot counting viable?
every state different. I live in MD where you check boxes on a computer, which produces a printout that goes through an optical reader. the printout is saved as a paper backup
At the last general election I was an election counting official about 200 kilometers from home. It was a general election combined with a referendum, so there were 3 ballot papers (one for the local MP, one for a party and one for the questions on the referendum - some constituencies had a forth one for the minority MPs). I worked in one of the smaller polling stations, we had about 80 voters. We've comfortably finished the manual counting in about one and half hour (I heard that in larger polling stations it took a couple of hours) and the country-wide 90+% results were in well before midnight (at least for the general election). I volunteered for this because in the previous general election the opposition parties did not have any election counting officials in 10-15% of the polling stations and there were conspiracy theories of voting fraud in these districts. Even though the results were similar (or even worse) this time, these conspiracy theories were refuted, the election was not actually rigged.
I know that the American elections are different, there are a lot more votes counted, but this task is well suited to parallelism. Was there a push to have more voting posts (and fewer votes in each post)? Or to move the state and county-level elections to a different date than the federal elections, so again fewer votes to count? I'd assume that if there are members of all involved parties at every level of vote counting, these allegations about miscounting votes should die out.
I would note that Gregg's comments are directly on point with respect to what the Trump allies tried to do in Pennsylvania-they tried to change the voting rules after the fact. As I recall, Pennsylvania had put in place certain rules regarding absentee ballots. After the PA voters chose Biden, the Trump allies argued those rules violated the PA constitution and thus the PA vote needed to be redone.
Whether the rules were constitutional or not, they were the rules under which the election was held and it would have been wrong to give the loser a second bite at the apple.
Great piece, Gregg.
I heartily approve of your view that the Supreme Court needs to uphold the 14th Amendment and keep Trump off the ballot. This needs to be shouted from all rooftops. I also thank you for clarifying the facts of 2000 that tend to get swept away in the furor and hand-wringing over so-called 'stolen elections'.
Many ironies. A later independent recount of "undervotes" by the Miami Herald and USA Today found that Bush would still have won under most recount scenarios (which I believe were limited to just the disputed counties), but that Gore would have won by the most generous standards for undervotes. A later study of _statewide_ ballots found that applying any of five recount standards would have reversed the outcome to a hairsbreadth victory for Gore--only 60-171 votes!
Wikipedia has a decent article on this. https://en.wikipedia.org/wiki/2000_United_States_presidential_election#Post-recount
Many what-if scenarios to contemplate, too, with the pending events of 9/11 and the resulting war. Would they have happened at all?
My worry about Gore was that he is grandiose and would take the national into war. I thought Bush was humble. Holy smokes was I wrong.
Thank you for writing this explanation. I forgot about the first decision, too much mainstream media brainwashing.
"Let’s hope the Supreme Court does the right thing and gives Trump the heave-ho from 2024 ballots."
I think Gregg got this one flat-out wrong. There have been no "insurrection" charges, let alone convictions, against J6 protesters or Trump. Removing Trump from the ballot is a cop out.
Instead of hoping Trump is removed from ballots, which is what dictators do, let's hope Dems and the GOP remove their collective heads from the third point of contact and have better candidates.
Amen to that!
Agree on PA and thanks for the kind words