Forum panelists dissect the legal complexities of the 2020 election

Two weeks after Election Day, panelists for the November 20 installment of the NYU Law Forum, sponsored by Latham & Watkins, considered the complex constitutional questions arising in an especially contentious election year. The experts included Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law; Richard Pildes, Sudler Family Professor of Constitutional Law; Professor Franita Tolson, vice dean for faculty and academic affairs at Southern California Gould School of Law; and Benjamin Ginsberg, former national counsel to the Bush-Cheney presidential campaign. Among the topics they discussed were renewed interest in the independent state legislature doctrine within the electors clause of Article II of the Constitution; the complicated and potentially problematic interplay of state and federal courts in election-related litigation; and potential parallels to the 2000 presidential election, which came down to hundreds of disputed votes in Florida.

Selected remarks from the discussion:

Richard Pildes: “Because [the electoral college] is in the Constitution and because we have one of the hardest constitutions in the world to amend, it’s certainly not something the courts are going to change…. I think one of the best examples of the [Supreme] Court [adapting to democratizing pressures], though, is the recent case last year about this whole faithless electors debate, in which the issue is: are our electors constitutionally meant to be free to vote for whomever they think in their conscience they ought to vote for, despite the popular vote in a state?… I think the argument from the original history that they were meant to have this freedom of choice was pretty strong, actually. But the Supreme Court unanimously held, despite that, that states could bind the electors to vote for the popular vote winner…. That’s a great example, I think, of the Court adapting the original Constitution to more modern understandings of what a presidential election is and has been for 100 or more years in the United States.” (video 49:39)

Franita Tolson: “So it is true that Florida, actually for like the last three election cycles, has been able to report their results and it’s fine, but part of that is because they have really disenfranchised segments of their population that could potentially make the vote closer.… One of the reasons why they avoided a huge fallout this cycle is because the state legislature made it very difficult for Amendment 4 to live up to its purpose. Imagine the conversation we would be having if the individuals with felony convictions were able to vote in Florida. If the Florida vote was closer than it was, would we have the same optimism about the Florida system?… I do worry that we are defining success in a way where we’re just focused on outcome, and we’re ignoring people who are getting lost in the process.” (video 1:06:04)

Benjamin Ginsberg: “The real poster children examples of an election system that has not gotten its act together to get the results timely are California, New York, and we’ll throw in the District of Columbia, which is not necessarily as significant. And by the way, the problem that’s caused there is not old machines breaking down, although that’s part of it. The public policy reason for the delays is the belief that you enfranchise more voters by extending deadlines, and so that is considered a virtue by many to count more votes…but that causes the election potential crisis dysfunction of not getting results in a timely fashion and letting conspiracy theories fly. So to really reform what I think the issue is, this time you’re going to have to deal with a much more difficult issue of extending deadlines to enfranchise people or get results quickly for election administration purposes, and that’s a lot tougher nut to crack.” (video 1:08:20)

Samuel Issacharoff: “Republicans believe that the late counting was a tremendous source of potential fraud…. Democrats believe that some of the administrative mechanisms were used to disenfranchise people. It seems to me that a legislative deal could at least be structured that would give on both sides of this, and one of the skills of a Biden presidency may be that he is the most knowledgeable president we’ve had about legislative pathways since Lyndon Johnson. Maybe there is capacity to use the reserve federal power, which is basically untapped under the elections clause, to start pushing through reforms that are systematic, including voter registration—making sure the lists are good, right? That’s a Republican issue. It’s also a Democratic issue.” (video 1:15:02)

Watch the full discussion on video:

Posted January 11, 2021