It’s Bush v. Gore all over again.
On Monday, Nevada Gov. Steve Sisolak (D) signed legislation intended to ensure that voters in his state can still cast a ballot during the Covid-19 pandemic.
Among other things, the new law (known as AB4) provides that registered Nevada voters will automatically receive a ballot in the mail, a common practice in Western states. It also requires the state to provide a minimum number of polling places for in-person voters, both on Election Day and for early voting.
President Trump’s response to this new law was apoplectic.
On Tuesday, one day after AB4 became law, Trump’s lawyers filed a lawsuit on behalf of Trump’s campaign and the Republican Party, seeking to block it.
Their legal complaint in Donald J. Trump for President v. Cegavske is not a model of careful legal argumentation. It claims, for example, that AB4 changed Nevada law to allow mailed-in ballots without postmarks to be counted so long as they arrive within three days of Election Day. In fact, Nevada law already allowed such ballots to be counted. An entire section of the complaint focuses on the fact that AB4 was enacted “on a weekend vote” — the state House approved the bill on a Friday, but the Senate passed it on a Sunday — without explaining how the day of the bill’s passage was relevant to its legality.
Though Trump for President v. Cegavske (the named defendant is Barbara Cegavske, Nevada’s secretary of state) targets several provisions of Nevada’s election law, its most significant attacks focus on two provisions: the provision allowing some late-arriving ballots to be counted and a provision requiring the state’s two most populous counties to have a higher minimum number of polling places than less populous counties.
It’s not hard to guess why Trump wants late-arriving mail-in ballots to be tossed out. Multiple polls have shown that Biden voters prefer to vote by mail, while Trump voters are much more likely to vote in person.
Trump has spent the past several months attacking states that try to make it easier to vote by mail — though he recently claimed that mail-in ballots in Florida are fine because “Florida’s got a great Republican governor.”
In any event, Trump’s lawsuit suffers from several fundamental flaws. Some of its arguments rely on federal statutes that most likely cannot be enforced through a lawsuit brought by a private party. Others rest on speculation about how certain provisions of AB4 will be implemented. Important prongs of Trump’s legal arguments rest on the Supreme Court’s decision in Bush v. Gore (2000), an opinion that explicitly states its decision is “limited to the present circumstances” and therefore should not be relied on by future courts.
And beyond that, at least some of Trump’s arguments would lead to sweeping progressive results that he probably would not like if they were embraced by federal courts.
Trump would not like the implications of his own legal arguments
AB4 requires all Nevada counties to have at least one in-person early voting site in every county and at least one in-person polling place on Election Day. Only two Nevada counties have more than 60,000 residents, and those two counties are required to have additional polling sites. Washoe County (Reno), with nearly 500,000 residents, must have at least 15 early voting sites and 25 sites on the day of the election. Clark County (Las Vegas), with more than 2.2 million residents, must have at least 35 early sites and at least 100 on Election Day.
The Trump team claims this arrangement is unconstitutional and relies heavily on Bush v. Gore to make its case.
One of the ironies of Bush v. Gore is that if the Supreme Court actually took its own holding in that case seriously, Bush would have been one of the most progressive election law decisions in American history.
The specific issue in Bush, which effectively handed the presidency to George W. Bush, concerned a recount of the ballots cast in Florida’s extraordinarily close 2000 presidential contest between Bush and Democrat Al Gore. The majority in Bush faulted Florida election officials for failing to apply “uniform rules” to this recount — an unclearly marked ballot might be counted in one Florida county while a ballot with the same unclear marking might be rejected in another. This lack of one statewide standard, according to a majority of the justices, injected too much arbitrariness into the recount.
But Bush also contains sweeping language suggesting that any disparate treatment of voters within a state may be constitutionally suspect. “Having once granted the right to vote on equal terms,” the majority concluded in Bush, “the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”
One reason Bush was widely criticized by legal scholars is because this expansive approach to voter equality was hard to square with prior, more parsimonious voting rights decisions handed down by conservative justices who joined the Bush majority. As Laurence Tribe, a Harvard law professor and a member of Gore’s legal team in Bush, wrote in 2003, “the ‘right’ ostensibly protected by the majority in Bush v. Gore seems characteristic of a class of entitlements that has received only reluctant federal protection from the Rehnquist Court.”
The conservative justices’ departure from their ordinary practices, their decision to restrict their holding to a single election, and the fact that Bush placed a Republican in the White House all gave a fairly clear impression that Bush v. Gore was an exercise of partisanship and not of legal reasoning.
Moreover, the Supreme Court has since been fairly clear that it doesn’t take Bush’s approach to voter equality seriously. In the nearly two decades since Bush was decided, only one Supreme Court opinion has so much as cited Bush v. Gore, according to the legal database Lexis Advance. And that single citation appears in a footnote to a dissenting opinion by Justice Clarence Thomas that was joined by no other justice.
Nevertheless, Trump’s lawyers ask the courts to take Bush’s expansive approach to voter equality very seriously.
Relying on the strong language in Bush calling for all voters to be treated on “equal terms,” Trump’s lawyers argue that Nevada’s formula for setting the minimum number of polling places in each county is unconstitutional. “Several rural counties — where AB4 authorizes only 1 polling place each — have substantially higher numbers of registered voters per polling place” than the two most populous counties, they claim.
As a threshold matter, this claim is premature. As the Supreme Court held in Texas v. United States (1998), “a claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” AB4 does not require Nevada’s smaller counties to have only one polling place — it provides that those counties must have at least one polling place. It’s possible that once AB4 is actually implemented, rural counties will have roughly the same number of registered voters per polling place as urban counties.
But if Trump is truly serious about implementing a voting rights standard that requires all voters to have equal access to polling sites, Democrats should agree to that deal with enthusiasm. After the Supreme Court struck down much of the Voting Rights Act in 2013, many states started closing polling places — and these closures disproportionately impact voters of color who tend to prefer Democrats over Republicans. As a result, voters in large Democratic cities within red states sometimes have to wait hours to cast a ballot.
It’s unlikely, however, that Trump really wants Democrats of color in urban centers to be able to vote with ease on Election Day. It’s more likely that he is looking for another decision like Bush v. Gore — a one-off opinion that lifts up a Republican presidential candidate without providing any benefits to future voters.
Trump wants to force Nevada to toss out many ballots
AB4 provides that mall-in ballots will be counted so long as they are postmarked by the day of the election and received by the seventh day following the election. But not all mail is postmarked, and sometimes the date on a postmark is illegible. Thus, there is a risk that voters will be disenfranchised for completely arbitrary reasons — such as the postmark on their ballot getting smudged while the ballot was being delivered.
Nevada addresses this problem by creating a safe harbor for some ballots that arrive without postmarks. Under a provision of Nevada law that took effect last January, mailed ballots will be counted if they are “received not more than 3 days after the day of the election and the date of the postmark cannot be determined.” (AB4 actually makes this provision marginally stricter, by requiring such ballots to arrive by 5 pm on the third day after the election.)
Trump’s lawyers argue that this provision is illegal because it conflicts with a federal law providing that “the electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November.” At least in theory, a ballot mailed after Election Day might arrive within three days of the election, and it might bear an illegible postmark. Thus, Trump’s lawyers claim, by accepting some late ballots, Nevada could wind up counting ballots mailed after the federally mandated Election Day has passed.
It’s a clever argument. And it is true that, at least before the Covid-19 pandemic, few states explicitly allowed ballots that arrived late and without postmarks to be counted. But there are a number of reasons to suspect that courts will reject this argument.
One problem with Trump’s argument is that it is difficult to square with the expansive theory of voter equality that Trump uses to challenge the state’s allocation of polling places. If it is unconstitutionally arbitrary for some counties to have more polling places per voter than others — or, for that matter, if it is unconstitutionally arbitrary for some Florida counties to use different standards to evaluate unclearly marked ballots than others — then surely it is also unconstitutional to toss out some ballots and accept others based on whether the post office smudged a postmark while the ballot was being delivered.
It’s also far from clear that Trump’s campaign — or, for that matter, any other private party — is allowed to sue because a state decides to count ballots that are cast after Election Day. Not all federal laws create a “private right of action,” meaning that private plaintiffs are allowed to bring a lawsuit challenging alleged violations of those laws.
As the Supreme Court explained in Gonzaga University v. Doe (2002), “for a statute to create such private rights, its text must be ‘phrased in terms of the persons benefited.’” Thus, for example, a statute that reads “eligible voters shall receive a ballot by mail” would create a private right of action because the text of this hypothetical statute centers “eligible voters” — the people who would benefit from that statute. A different statute that provides that “the state shall provide for a system of voting by mail” most likely could not be enforced in court because that statute does not even mention the people who would benefit from it.
In any event, the federal statute setting the date of presidential elections (“the electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November”) is not phrased in terms of the persons benefited — it conveys no rights that apply to individual voters, political candidates, or their campaigns. So it most likely cannot be enforced by private plaintiffs in federal court.
There’s also a third reason to doubt that Trump will prevail in his effort to toss out late-arriving Nevada ballots. Though Chief Justice John Roberts, frequently the median vote on the Supreme Court, is often hostile to voting rights claims, he’s also signaled that state officials struggling to control the pandemic should be given an unusual amount of deference by courts.
In South Bay United Pentecostal Church v. Newsom (2020), for example, Roberts sided against a church that challenged a state public health order that only allowed places of worship to reopen at limited capacity.
“The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement,” Roberts wrote in his South Bay opinion. He added that “our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’”
The same logic that led Roberts to defer to state officials who want to prevent Covid-19 from spreading at churches in South Bay may also lead him to defer to Nevada officials who want to prevent Covid-19 from spreading at polling places.
That said, there is never any certainty in this kind of highly political litigation — especially when a Republican president seeks relief from courts dominated by Republicans. In the short term, the case is assigned to Judge James Mahan, a George W. Bush appointee. However Mahan rules, the losing party will likely appeal to the US Court of Appeals for the Ninth Circuit, which is closely divided between Democrats and Republicans. And the case may very well be heard by a very conservative Supreme Court.
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