Ian MacDougall

McKinsey never told the FDA it was working for opioid makers while also working for the agency

by Ian MacDougall for ProPublica

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Series: McKinsey's Rules

When Consultants Work For Governments

Since 2008, McKinsey & Company has regularly advised the Food and Drug Administration's drug-regulation division, according to agency records. The consulting giant has had its hand in a range of important FDA projects, from revamping drug-approval processes to implementing new tools for monitoring the pharmaceutical industry.

During that same decade-plus span, as emerged in 2019, McKinsey counted among its clients many of the country's biggest drug companies — not least those responsible for making, distributing and selling the opioids that have ravaged communities across the United States, such as Purdue Pharma and Johnson & Johnson. At times, McKinsey consultants helped those drugmaker clients fend off costly FDA oversight — even as McKinsey colleagues assigned to the FDA were working to bolster the agency's regulation of the pharmaceutical market. In one instance, for example, McKinsey consultants helped Purdue and other opioid producers push the FDA to water down a proposed opioid-safety program. The opioid producer ultimately succeeded in weakening the program, even as overdose deaths mounted nationwide.

Yet McKinsey, which is famously secretive about its clientele, never disclosed its pharmaceutical company clients to the FDA, according to the agency. This year ProPublica submitted a Freedom of Information Act request to the FDA seeking records showing that McKensey had disclosed possible conflicts of interest to the agency's drug-regulation division as part of contracts spanning more than a decade and worth tens of millions of dollars. The agency responded recently that “after a diligent search of our files, we were unable to locate any records responsive to your request."

Federal procurement rules require U.S. government agencies to determine whether a contractor has any conflicts of interest. If serious enough, a conflict can disqualify the contractor from working on a given project. McKinsey's contracts with the FDA, which ProPublica obtained after filing a FOIA lawsuit, contained a standard provision obligating the firm to disclose to agency officials any possible organizational conflicts. One passage reads: “the Contractor agrees it shall make an immediate and full disclosure, in writing, to the Contracting Officer of any potential or actual organizational conflict of interest or the existence of any facts that may cause a reasonably prudent person to question the contractor's impartiality because of the appearance or existence of bias."

Agency officials rely on disclosure to ensure that they have the information they need to consider whether a contractor's other business relationships risk slanting its judgment. “Contractors have the obligation to disclose potential conflicts, and then the government has an obligation to figure out how to deal with it," said Jessica Tillipman, an assistant dean and government procurement law expert at George Washington University Law School.

Asked for comment, McKinsey did not assert that it disclosed potential conflicts to the FDA. But a spokesperson for the firm, Neil Grace, nonetheless maintained that “across more than a decade of service to the FDA, we have been fully transparent that we serve pharmaceutical and medical device companies. McKinsey's work with the FDA helped improve the agency's effectiveness through organizational, resourcing, business process, operational, digital, and technology improvements. To achieve its mission, the government regularly seeks support from additional experts who understand both the government's mission and the industries' practices. We take seriously our commitment to avoid conflicts and to serve the best interests of the FDA." (McKinsey is a sponsor of ProPublica's local virtual events programming.)

McKinsey's failure to disclose its industry engagements deprived the FDA of the opportunity to consider whether, for example, the overlap between McKinsey's government and pharmaceutical industry projects and the potential financial incentives at play constituted a conflict, experts said.

“For a contractor like McKinsey not to disclose the companies it is working for has all the appeal of the Addams Family on Halloween hiding Uncle Fester in the basement so as not to scare the neighborhood," said Charles Tiefer, a professor of government contracting at the University of Baltimore Law School.

A spokesperson for the FDA did not respond to requests for comment.

McKinsey's extensive opioid company consulting eventually began coming to light, starting with a 2019 ProPublica report. The firm's opioid work has provoked widespread criticism, spawned a welter of lawsuits and led the firm to pay nearly $600 million this year to settle legal claims made by all 50 states, as well as five U.S. territories and the District of Columbia. It also prompted McKinsey to issue a statement in which the firm acknowledged that it “fell short" of its standards in advising opioid makers while also denying that it “sought to increase overdoses or misuse and worsen a public health crisis." The firm pledged not to work on opioid-related projects going forward.

The lawsuits and public outrage have focused on the consulting firm's efforts to help increase (or “turbocharge," in McKinsey's parlance) sales of Purdue Pharma's highly addictive flagship opioid, OxyContin. But lately, concerns have begun to emerge about McKinsey's parallel assignments, which were worth upward of $50 million over about 12 years, for the nation's primary drug regulator. In a letter to the FDA in August, a bipartisan group of senators led by Sen. Maggie Hassan, D-N.H., asked the regulator to address “potential conflicts of interest that may have arisen" from McKinsey's work for both the agency and “a wide range of actors in the opioid industry, including many of the companies that played a pivotal role in fueling the opioid epidemic that our country now faces."

McKinsey, which has focused on counseling the CEOs of leading corporations for much of its nearly 100-year history, began expanding its public-sector practice in the United States around the time of its earliest FDA projects. McKinsey prides itself on its ability to act quickly and with discretion, and in its largely unregulated engagements for corporate clients, there are few impediments to the firm doing so.

In government consulting, however, the rules are far more stringent, and on several recent occasions, the firm has been caught refusing to abide by such strictures, including disclosure rules. Over the past couple of years, for example, McKinsey's bankruptcy-advisory practice has paid more than $30 million to the Justice Department and one client's creditors to settle allegations that it failed to disclose potential conflicts, as required by the federal bankruptcy rules. Those allegations also prompted a federal criminal investigation of the firm. McKinsey has denied wrongdoing, and the investigation, which came to light in 2019, has not led to charges.

There are signs of overlap between McKinsey's government and industry engagements, though publicly available information about the firm's work for drug companies is limited. In one instance in 2008, which surfaced in a lawsuit against Purdue, the FDA told Purdue that it planned to require the company to submit a drug-safety plan for its bestselling drug, OxyContin. The company recognized that regulation of this sort threatened to cut into its sales margins, and according to McKinsey documents filed in federal court, top Purdue executives tasked the consultancy with devising a response to the FDA.

According to McKinsey PowerPoint slides, the firm proposed four options, among them suing the FDA to “delay" the imposition of a safety plan and to “band together" with other opioid producers to “formulate arguments to defend against strict treatment by the FDA." Purdue selected the latter, with McKinsey helping to implement the strategy. In 2009, McKinsey emails and slides show, its consultants prepared Purdue executives for at least two meetings with FDA officials. (One suggested answer to questions about who at Purdue would take personal responsibility for OxyContin overdoses: “We all feel responsible.")

In the meantime, according to a 2011 FDA contract, the agency's drug-regulation division hired McKinsey to develop a “new operating model" for the office responsible for developing drug-safety plans of the sort Purdue and its allies were fighting against, with the consultancy's help. Among McKinsey's tasks were defining the office's “strategic goals and objectives," including its “role in monitoring drug safety."

In 2012, the FDA issued a substantially watered-down version of the opioid-safety plan.

There's no evidence to suggest McKinsey's consultants at the FDA influenced the opioid-safety plan. But this apparent overlap between a government contract and an assignment for a commercial client reflects the type of issue an agency would want to consider when assessing whether a potential conflict of interest exists. Agencies are likeliest to identify a conflict “where an outside business venture is related directly to the subject matter of the procurement and structured such that there is a real economic incentive for biased performance," Keith Szeliga, a partner at the law firm Sheppard Mullin, wrote in a 2006 article in the Public Contract Law Journal.

A number of other McKinsey projects at the FDA, contracting records show, were also likely to have a financial impact on its pharmaceutical industry clients. In 2010, for example, the FDA hired the firm to help it develop a system to track and trace the distribution of potentially harmful prescription drugs. The contract required the firm to consult with “supply chain stakeholders," a category that potentially included a number of long-standing McKinsey clients. Hassan and her fellow senators, in their recent letter to the FDA, called this “an obvious conflict of interest."

Another contract, from 2014, tasked McKinsey with assessing the “strengths, limitations and appropriate use" of Sentinel, a system meant to monitor the safety of drugs once they're on the market. That project likewise called for McKinsey to interview “external stakeholders," including “industry organizations" and “drug and device industry leaders."

The news of McKinsey's opioid work apparently did little to dampen the FDA's enthusiasm for the consultancy. In March 2019, just after the news broke, the agency signed a new contract with McKinsey — extending the firm's multiyear effort to help the FDA “modernize" the process by which it regulates new drugs.

These are the long odds facing Trump's attempts to get state legislatures to override election results

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On Friday afternoon, President Donald Trump is set to hold a meeting at the White House with the Republican leaders of Michigan's Senate and House of Representatives. It's unclear what the president plans to discuss, but multiplepressreports suggest Trump, in a desperate bid to cling to power, has pinned his hopes on persuading GOP-controlled legislatures in battleground states that voted for Joe Biden to intervene and throw the election to him. That aspiration cropped up in the Trump campaign's courtroom maneuverings this week. Legal papers filed with a federal court in central Pennsylvania (the campaign filed a draft version, apparently in error), showed that the campaign had contemplated — but ultimately decided against — asking the judge to order “the Pennsylvania General Assembly to choose Pennsylvania's electors."

Five states fit the description of battleground states with GOP-run legislatures that voted for Biden: Michigan, Wisconsin, Pennsylvania, Arizona and Georgia. It would be difficult to convince lawmakers to overturn the will of voters in even one state. For Trump to snatch victory from the jaws of defeat, he would need to pull that trick off in three states.

That's a very tall order. There are steep political hurdles, starting with the fact that the two Michigan lawmakers visiting the White House on Friday have previously made statements rejecting legislative intervention. But even if those lawmakers waver or succumb to Trump's arguments, as many Republicans have, there are legal impediments, and they're almost certainly insurmountable.

Unlike the fevered cries of election fraud — which many lawyers in the Trump camp have undercut by acknowledging in court that they have no evidence of fraud — the Trump side's legislature theory has some basis in fact. Article II of the U.S. Constitution holds that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors" to vote for president as a member of the Electoral College. In the early days of the republic, some legislatures chose electors directly or vested that power in other state officials. Today, every state allocates presidential electors by popular vote (and all but Maine and Nebraska apportion them in winner-take-all fashion).

As far as the Constitution is concerned, there's nothing to stop a state legislature from reclaiming that power for itself, at least prospectively. Separately, a federal law, the Electoral Count Act of 1887, provides that whenever a state “has failed to make a choice" in a presidential election, electors can be chosen “in such a manner as the legislature of such State may direct."

But even so, there's a more immediate obstacle: state law. In the five states where Trump's team hopes GOP-run statehouses will hand him a second term, the popular vote is enshrined in the state constitution, the state's election code or both.

Consider Michigan, which Biden carried by nearly 158,000 votes. The state's election code specifies that the presidential electors “who shall be considered elected are those whose names have been certified to the secretary of state by that political party receiving the greatest number of votes" for president — the winner, that is, of the popular vote. The Michigan Constitution grants qualified citizens “the right, once registered, to vote a secret ballot in all elections," including “in the election for president and vice-president of the United States."

The two Michigan Republicans expected to meet with Trump on Friday, Senate Majority Leader Mike Shirkey and House Speaker Lee Chatfield, have expressed concerns about irregularities and potential fraud in the Michigan election, a pet subject of the president and his allies. The Trump campaign and its supporters, however, have failed to substantiate their claims, despite papering state and federal courts with affidavits from GOP election observers and others who purport to have witnessed suspicious behavior or wrongdoing by election workers in Detroit, a Democratic stronghold with a sizable Black population. Last Friday, one Michigan judge called affidavits submitted by Republican observers “rife with speculation and guess-work about sinister motives" of poll workers. On Thursday, the Trump campaign withdrew a federal lawsuit it had filed in the state, claiming — falsely, according to Michigan election officials — that the county election board for the Detroit area had declined to certify the county's election result.

Yet — up till now, at least — both Shirkey and Chatfield have rejected the proposition that state legislators might intervene to supplant the will of Michigan voters. “That's not going to happen," Shirkey told Bridge Michigan on Tuesday. He noted that state law left up to the electorate who would receive the state's 16 electoral votes. Chatfield made a similar point in a statement on Nov. 6, a few days after the election, though he gave it a Trump-y spin, calling for every “legal vote" to be counted, a phrase Trump and his allies have adopted to imply that there exist large numbers of illegal votes. “The candidate who wins the most of those votes will win Michigan's electoral votes, just like it always has been," Chatfield said. “Nothing about that process will change in 2020." Their counterparts in Pennsylvania, Wisconsin and Arizona have made similar statements.

Even if Trump were to change the Michigan lawmakers' minds on Friday, the Legislature can't amend state law by fiat. A constitutional amendment has to be itself ratified by popular vote, and if it's introduced in the Legislature, it first has to pass both houses by supermajority margins. The GOP possesses only a bare legislative majority in either house. Amendments to the election code, meanwhile, are subject to veto by the governor. In Michigan, that's Democrat Gretchen Whitmer, a committed Trump antagonist who would inevitably veto any legislative attempt at the wholesale disenfranchisement of her constituents. Without supermajorities, Republican legislators alone are impotent to override her veto.

Trump faces a similar dynamic in Wisconsin and Pennsylvania, both of which have Democratic governors and legislatures controlled by the GOP (but not by enough to overcome a veto by the governor). Only Arizona and Georgia have Republican-dominated statehouses and Republican governors. Legislatures there have shown no particular inclination to intervene on Trump's behalf. Even if they went along with Trump's plan, the president would still be 11 electoral votes shy of the 270 he needs to prevail over Biden.

In concurring and dissenting opinions during the run-up to Election Day, three Supreme Court justices appeared to hint at one way around the intervention of a Democratic governor. Trump and his supporters have apparently taken the hint; they've brought up the argument repeatedly in postelection litigation. The justices, Brett Kavanaugh, Neil Gorsuch and Samuel Alito, seemed to argue that the Constitution assigned to each state legislature the exclusive power to decide how to choose presidential electors, a power free from the constraints of state courts, election officials or even a governor's veto power. A version of this argument was rejected by the U.S. Supreme Court in 2015, but two of the five justices in the majority, Ruth Bader Ginsburg and Anthony Kennedy, are no longer on the court. (Other lawyers don't go quite as far and argue that legislatures still have to follow their state's constitutional lawmaking process, which preserves gubernatorial vetoes.)

Whether a legislature could step in after the fact, however, to take the choice away from its citizens is an open question, and in any event, legal scholars say it's unlikely the high court would agree to change the rules after an election in a way that would flip its outcome. Some are skeptical that Kavanaugh, Gorsuch and Alito intended to go as far as they seemed to in their concurrences and dissents. Their approach “calls for federal courts to intervene quite assertively and resolve state law disputes between state courts or state elections officials on the one hand and state legislatures on the other," said Robert Yablon, a law professor at the University of Wisconsin. “That's not a role federal courts normally play."

One reason for Trump and his allies to seek to delay certification of state election results is that it could strengthen their hand as key deadlines set by federal law approach in early and mid-December. The Electoral Count Act expressly authorizes the legislature to step in and pick electors even after its state has held a popular vote for president if the state “has failed to make a choice." But according to a new law review article by Justin Levitt, an election law scholar at Loyola Law School, the Electoral Count Act, more clearly than the Constitution, means for the legislature to pick electors through its ordinary lawmaking processes — passing a bill that would require the governor's signature before becoming law. (The article will be published in the New York University Law Review next year but has been posted to the Social Science Research Network, an online repository of scholarship.)

One result of the Trump campaign's arguments is to leave state legislatures squeezed from both sides. Reuters on Thursday reported that the Trump campaign believes state lawmakers will fear that a failure to act could set off a backlash among voters in their districts loyal to the president. A Monmouth University poll released this week found that three-quarters of Trump supporters attribute Biden's victory to fraud, despite the absence of any evidence to support this claim.

Even so, state lawmakers enter uncharted territory if they openly subvert the will of their constituents to prop up a candidate who was outvoted in their state. The backlash against a naked power grab could well be far more profound than any backlash against a refusal to grab the election for an outgoing president. Nobody knows. That uncertainty is compounded by the fact that three state legislatures would have to intercede for Trump's new stratagem to pay off. The first to do so would put a lot at risk — potentially to achieve nothing.

Here’s what happens if Trump tries to sue his way to victory

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A hearing on Wednesday in an election case captured in miniature the challenge for the Trump campaign as it gears up for what could become an all-out legal assault on presidential election results in key swing states: It's easy enough to file a lawsuit claiming improprieties — in this case, that Pennsylvania had violated the law by allowing voters whose mail-in ballots were defective to correct them — but a lot harder to provide evidence of wrongdoing or a convincing legal argument. “I don't understand how the integrity of the election was affected," said U.S. District Judge Timothy Savage, something he repeated several times during the hearing. (However the judge rules, the case is unlikely to have a significant effect; only 93 ballots are at issue, a county election official said.)

“A lawsuit without provable facts showing a statutory or constitutional violation is just a tweet with a filing fee," said Justin Levitt, a professor at Loyola Law School in Los Angeles.

Levitt said judges by and large have ignored the noise of the race and the bluster of President Donald Trump's Twitter feed. “They've actually demanded facts and haven't been ruling on all-caps claims of fraud or suppression," Levitt said. “They haven't confused public relations with the predicate for litigation, and I would expect that to continue."

If Levitt is right, that may augur poorly for the legal challenges to the presidential election. Either way, the number of cases is starting to rapidly increase. But lawsuits will do little good unless, as in the 2000 presidential election, the race winds up being so close that it comes down to a very thin margin of votes in one or more must-win states.

One of the few certainties is that we will not see the instant Bush v. Gore replay that Trump seems to have in mind. A few hours after voting ended, in a 2 a.m. speech that drew bipartisan condemnation for the president's premature declaration that he had won the election, Trump baselessly described the ongoing ballot count as “a fraud on the American public." “We'll be going to the U.S. Supreme Court," he told his supporters. “We want all voting to stop." Trump is famously litigious, but he's not a lawyer, and he seemed not to understand that apart from a small class of cases (largely territorial disputes between states), lawsuits don't originate at the Supreme Court. The Trump campaign would have to file suit in a state or federal court and eventually appeal an adverse decision to the high court. Along the way, as the Pennsylvania court anecdote suggests, the Trump campaign would need to show evidence to back up his claim, and so far there's no evidence of fraud in the ongoing ballot counts, which often run beyond election night. Tallying legitimate votes is not, despite the president's tweeted claims, a form of fraud.

Once there's a clearer picture of the outcome of the presidential election in key states like Pennsylvania, one party or the other may file lawsuits in state court challenging the legality of certain ballots or asking for a recount, a process described in ProPublica's guide to election laws and lawsuits. Trump campaign officials told supporters on a conference call Wednesday that they believed they're “in recount territory" in Wisconsin and Michigan, according to a report in The Washington Post. In a statement to The New York Times on Wednesday, Trump's campaign manager, Bill Stepien, said the campaign planned to request a recount in Wisconsin “immediately."

On Wednesday afternoon, the Trump campaign filed a lawsuit in Michigan state court asking that elections officials be ordered to stop opening mail-in ballots and tabulating votes until campaign officials are granted “meaningful access" to observe the process. The campaign's statement about the suit did not explain in what way election officials had limited their access or why the campaign believes those limitations violate state law. The campaign also demanded “to review those ballots which were opened and counted while we did not have meaningful access" — a possible prelude to a hunt for technicalities that might allow the Trump team to challenge ballots cast for Democrats. The campaign made a similar request Wednesday in Pennsylvania state court.

Similar lawsuits filed by Republicans in Nevada and elsewhere have met with little success. In those lawsuits, the campaign has asked for essentially unfettered access to ballot canvassing locations. A judge who dismissed a similar lawsuit in Nevada observed that Trump campaign officials “seem to request unlimited access to all areas of the ballot counting area and observation of all information involved in the ballot counting process." That was more than state law required, he wrote, and granting the request would slow the ballot count and impede social-distancing protocols. State election codes generally permit campaign officials to observe ballot canvassing, but not without reasonable limitations.

Trump campaign officials also said their legal team had or would challenge ballots in North Carolina and Georgia, traditional red states that remain too close to call.

It's not likely the recount requests or ballot challenges, which are common in the wake of close elections, will make a difference in the outcome. “Recounts rarely change the vote totals very much," said University of Kentucky law professor Joshua Douglas, and the same is true of challenges to the validity of ballots. That fact certainly won't impede the filing of suits.

As of this moment, keeping in mind that the situation is developing by the hour, here are the other active lawsuits that could affect the election. Most of them are left over from among the more than 300 lawsuits filed before the election in 45 states, Puerto Rico and the District of Columbia, according to a database maintained by the Healthy Elections Project, a joint project of researchers at Stanford University and the Massachusetts Institute of Technology.

The election could come down to Pennsylvania, a crucial swing state where the outcome may not be known until the end of this week, and five lawsuits challenging the state's election administration are currently pending in state and federal court.

In September, the Supreme Court of Pennsylvania ordered state election officials to accept mail-in ballots that arrive up to three days late, so long as they were either postmarked by Election Day or lacked a legible postmark. As in other states, the goal was to prevent mail delays from disenfranchising the historic number of Americans who, on account of the coronavirus pandemic, planned to vote by mail. Republicans appealed the ruling to the U.S. Supreme Court, which last week declined to rush a decision before the election.

Before the election, Trump derided the high court's refusal to intervene as a “terrible decision." “We're going to go in the night of — as soon as that election's over — we're going in with our lawyers," he told reporters gathered on a tarmac on Sunday ahead of a campaign rally in Hickory, North Carolina.

The president's prediction was off by a day or so, but on Wednesday afternoon, his campaign asked to be allowed to intervene in the litigation (which was filed by Pennsylvania's Republican party). The next move is up to the justices, who are still mulling whether to hear the case at all. Three justices — Samuel Alito, Neil Gorsuch and Clarence Thomas — indicated last week that the court might still take the case and void late ballots after the election, and Pennsylvania election officials have agreed to store late-arriving ballots separately, in case the high court orders them thrown out. The case's fate may hinge on the views of the newest justice, Amy Coney Barrett, who didn't participate in last week's decision.

As noted, Republicans have sued Pennsylvania (there are actually two cases, one each in state and federal court), targeting efforts by state election officials to alert voters who submitted defective mail-in ballots — like failing to include a “secrecy envelope," a requirement voting-rights advocates have worried could invalidate an unusually high volume of ballots — so they could either fix their error or submit a provisional ballot. Election officials have defended their practices as in line with state law. In the federal case, as noted, the judge expressed skepticism about the claim. An initial conference will be held Wednesday afternoon in the other case, which targets this practice statewide. Also Wednesday, the Trump campaign said it was filing a lawsuit in federal court in Pennsylvania over a decision it said election officials had made to extend the deadline for first-time voters to provide proof of identification.

In Nevada, late on Tuesday, the state's Supreme Court rebuffed a last-minute effort by Republicans to temporarily block certain aspects of mail-in ballot processing in Clark County, a bastion of Democratic voters that is home to Las Vegas. That included the use of machines to speed the process of checking voter signatures against state records.

The court agreed to hear the case on an expedited basis, with a decision possible as early as next week. But its ruling expressed doubts about the lawsuit's core claims. The plaintiffs “have not demonstrated a sufficient likelihood of success," the state's highest court wrote. The lower court had found their “allegations lacked evidentiary support, and their request for relief to this court is not supported by affidavit or record materials supporting many of the factual statements made therein." The order went on to observe that the plaintiffs had also failed to identify “any mandatory statutory duty" that election officials “appear to have ignored," and that they had failed to counter certain key conclusions of the district court.

In Minnesota, former Vice President Joe Biden has a sizable lead, but should that lead narrow, a ruling last week from a federal appeals court could have implications for the outcome in that state's presidential vote. The court, in a 2-1 ruling along ideological lines, ordered state election officials to separate late-arriving ballots and indicated that it was likely to invalidate them when it ruled on the legality of a post-Election Day buffer period agreed to by state officials in light of the large number of mail-in ballots expected amid the coronavirus pandemic.

Texas, comfortably in Trump's column, is the inverse of Minnesota. But a late effort by Republicans to throw out ballots cast via drive-thru voting in Harris County — home to Houston and a large chunk of the state's Democratic electorate — remains live. A district court judge ruled against the plaintiffs, and on Monday a federal appeals court declined to block drive-thru voting on Election Day. The Republicans, however, have not ruled out seeking review by the full appeals court or taking their case to the U.S. Supreme Court. (The Texas Supreme Court, in a separate case, declined to block drive-thru voting.) Nevertheless, Harris County officials closed nine of 10 drive-thru polling locations on Tuesday to minimize the risk that large numbers of votes would get tossed if the plaintiffs ultimately prevailed.

Finally, North Carolina is not viewed as likely to decide the presidential election, but a tight Senate race there has major implications for control of the chamber come January. Last week, the Supreme Court declined to temporarily block a buffer period for late-arriving ballots, but the case is still working its way through the lower federal courts and could return to the high court. The three justices who expressed skepticism about Pennsylvania's buffer period raised similar questions about the legality of North Carolina's.

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Election laws and lawsuits: Here's a field guide to the states that may determine the 2020 outcome

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The run-up to Election Day this year has seen records for early voting (nearly 100 million people as of Monday) — and for the volume of election-related litigation. It's unclear how long it will take for a victor to emerge in the presidential contest, particularly given the pandemic-driven surge in Americans casting ballots by mail, which will continue to be counted for several days after Election Day in some states. But one thing is certain: Unless there's a near-landslide in either direction, we're likely in for some intense legal combat.

That's not to say the lawsuits will have merit or that they'll decide the election. They most likely won't, according to legal experts. But the pandemic spawned a series of efforts to make voting safer, and that in turn triggered a partisan backlash in courtrooms in multiple states.

After Election Day, the courtroom battles will shift into a new phase. Some preelection cases will continue on. These cases center chiefly on constitutional challenges to the status of mail-in ballots that arrive after Tuesday, including some fringe legal theories derived from 2000's infamous Bush v. Gore Supreme Court decision.

But for all the gnashing of teeth about the potential role of the Supreme Court, most litigation will take place in state courts, where there are well-worn processes in place for challenging election results. Challenges to election results very rarely succeed in changing the outcome of an election, legal scholars say, but that doesn't mean the campaigns won't take every shot they've got if the election is close.

The legal processes for challenging an election result vary state by state, but they generally take two forms. Election “contests" or “protests" target alleged errors or wrongdoing in the administration of an election — a way for a campaign to argue, for example, that tabulated ballots should be rejected or that rejected ballots should be tabulated. The other is a recount, a process Americans got to know well in the wake of the 2000 presidential election. States permit recounts only when a victory margin is whisper thin.

To help readers navigate the courtroom quagmire the nation may soon find itself in, we've assembled a guide to some of the existing lawsuits that could shape the election results after the fact, as well as the state law tools the campaigns could use to challenge the results if the vote margins are close. For the sake of brevity, we've limited ourselves to the half-dozen swing states projected by the election forecaster FiveThirtyEight to be the likeliest to decide the election: Pennsylvania, Florida, Arizona, North Carolina, Michigan and Wisconsin. We don't know which, if any, of these states will see significant new litigation, and the main locus of legal combat could turn out to be another state entirely. Few people, after all, would have predicted in early November 2000 that a mess of recount litigation in Florida state courts would hold the nation in its sway for weeks and culminate in a climactic Supreme Court decision that ended the presidential election.


1. Republican Party of Pennsylvania v. Boockvar. Last month, the U.S. Supreme Court twice declined to weigh in on the central issue in this lawsuit: whether it was unconstitutional for the Pennsylvania Supreme Court to order state election officials to accept mail-in ballots that arrive up to three days after Election Day. The Pennsylvania Constitution includes a provision that mandates all elections be “free and equal" with no interference from any “power, civil or military," permitted “to prevent the free exercise of the right of suffrage." This year, the Pennsylvania Supreme Court held that this provision justified extending the mail-in ballot deadline to avoid disenfranchising Pennsylvanians affected by the coronavirus pandemic.

The state Republican Party, among others, appealed the ruling to the U.S. Supreme Court, which hasn't agreed to hear the case — yet. Pennsylvania has agreed to separate mail-in ballots that arrived on time from those that arrived after Election Day, and Justice Samuel Alito warned, in a statement last Wednesday, that the high court might still take the case and throw out the late ballots. His reasoning is based on what legal scholars call the “independent state legislature doctrine." It's a legal theory that has long lived on the fringes of conservative legal thought but now seems as if it may take a place in the legal spotlight. If the vote is close, expect to hear a lot about it.

The Constitution assigns to state legislatures the task of establishing voting rules for federal elections. The independent state legislature doctrine takes this allocation of duties to an extreme. In essence, the theory holds that state legislatures alone can set election rules, and no other actors — not state courts, governors, or election officials — can alter them in the slightest, even where they violate the state constitution. Because many of the measures meant to keep voters safe during the pandemic were instituted by state election officials or courts, it's a convenient theory for their opponents, and conservative lawyers and jurists — including, as of last week, four justices of the U.S. Supreme Court — have begun to advocate strenuously that it justifies striking down those measures.

The push has had an effect. A federal appeals court last week issued an opinion stating that a buffer period for late-arriving mail-in ballots in Minnesota likely ran afoul of the independent state legislature doctrine and ordered state officials to store late ballots separately, in case the court later decides to void them. Still, legal scholars are less than convinced that a majority of the Supreme Court will adopt a novel theory that would upend election administration in the middle of a politically fraught election. “It would be wildly destabilizing," said Justin Levitt, an election law scholar at Loyola Law School in Los Angeles. “I don't think the court is going to have an appetite for that in these circumstances."

2. Contesting election results in Pennsylvania. To contest an election is a more arduous process in Pennsylvania than in many other states. In the case of a presidential or senate election, 100 or more voters have to file a petition in state court within 20 days of the election, with at least five of them submitting affidavits that allege, in good faith, that they have reason to believe the election was “illegal and the return thereof not correct." (Other congressional elections require a petition backed by 20 voters.)

The affidavit requirement aims to avoid frivolous election contests, because it requires voters to swear that they have a good faith basis for contesting an outcome. After the 2016 election, for example, Green Party presidential candidate Jill Stein managed to organize enough voters to contest the election — alleging “grave concerns about the integrity of electronic voting machines" and claiming, without evidence, that they had been hacked — but, tellingly, no voter was willing to swear out an affidavit to that effect.

3. Recounts. In Pennsylvania, the secretary of state will order an automatic recount if the presidential race is within a margin of half a percentage point. Otherwise, there are two ways for voters to secure a recount in Pennsylvania. First, they can petition election officials, with three of them filing affidavits attesting to an error that would affect the vote count. The resulting decision can be appealed to a state court. The second route is to go directly to state court. That requires three voters from a given precinct to file petitions alleging, based on “reliable information," that fraud or an error affected the vote tabulations. Unless they have evidence to support their claims, they have to file affidavits, and pay associated fees, in each precinct they want recounted.


1. Contesting election results. Any unsuccessful candidate, voter or taxpayer can challenge an election outcome in Florida state court. An election can be contested where enough votes were wrongfully counted or wrongfully rejected “to change or place in doubt the result of the election." If a challenge is successful, a state court can go so far as to order the winner, if he or she has taken office, replaced by the challenger. A high-profile example of a rare successful election contest arose in the wake of the 1997 race for the mayoralty of Miami. An election marred by a widespread fraud scheme — one candidate's campaign forged a large volume of absentee ballots — prompted a state court to throw out all absentee ballots, effectively handing victory to the candidate's opponent.

2. Recounts. After the 2000 election, “Florida" and “recount" are forever linked in the national consciousness. In Florida, an automatic recount is triggered if the margin between two candidates is half a percentage point or less. The recount is overseen by the secretary of state, a position presently held by an appointee of Trump ally Gov. Ron DeSantis. If the recount shows that a quarter of a percentage point or less separates the two candidates, the secretary of state generally has to order a manual recount. The 2000 recount was never completed — the Supreme Court ordered it halted — but there's evidence to suggest it wouldn't have changed the outcome. That's not unusual. “Recounts rarely change the vote totals much," University of Kentucky election law scholar Joshua Douglas said.


1. State Constitution's Free and Equal Elections Clause. Like Pennsylvania, Arizona is one of 15 states that includes a Free and Equal Elections Clause in its constitution. Should any issues arise with voting machines in the state, this provision could come into play. One state appeals court has held that voting machine defects could run afoul of the clause if they cause a “significant number of votes" not to be properly recorded or counted.

2. Contesting election results. Any voter in Arizona can contest an election result in state court. Among the grounds for challenging an election result are that “illegal votes" were cast or that tabulation errors led to the wrong candidate being declared the winner. On its face, the state law authorizing those challenges doesn't refer to federal elections. But state courts have found ways to apply the law to congressional and presidential elections. After a challenge is filed, the state attorney general, the Republican Mark Brnovich, can intervene in the case. Brnovich is presently defending two Arizona election laws, which an appeals court this year found tended to disproportionately disenfranchise minority voters, before the Supreme Court.

3. Recounts. Arizona requires an automatic recount for close elections. The margin has to be very narrow to trigger a recount: 0.1% of the votes cast. Heading into the final weekend before Election Day, about 2.3 million Arizonans had already cast their ballot. Were that the final turnout figure (putting aside third-party candidates), a recount would come into play only if 2,300 votes or fewer votes separated the Democratic and Republican candidate in the presidential race or any of Arizona's 10 congressional races. All ballots are recounted electronically, with a sample of precincts hand counted to verify the electronic tally. The secretary of state, Democrat Katie Hobbs, would oversee the recount.


1. Contesting election results. Michigan is one of only two states without a codified process for contesting an election result. Instead, according to researchconducted by Douglas, the election law scholar, the losing candidate has to ask the state attorney general, Democrat Dana Nessel, to examine the election results. If “the facts clearly warrant" it, the attorney general can then file in court a writ of quo warranto, a rarely used legal tool inherited from the English common law that challenges the authority of a person to hold government office. (It's perhaps best known for playing key roles in various monarchic power struggles in England centuries ago.) If, on the other hand, the attorney general declines to act, the losing candidate can file the writ.

2. Recounts. Recounts in Michigan are more straightforward. Victory by a margin of 2,000 votes or fewer automatically triggers a recount. Separately, a candidate can petition for a recount if the candidate can allege in good faith that, but for fraud or an error, he or she would have had “a reasonable chance" of winning. The candidate has to specify the precincts or municipalities to be recounted and what kind of fraud or error the candidate believes undermined the vote in those places.

Stein, the 2016 Green Party presidential candidate, initially secured a recount in Michigan, despite having won only about 1% of the vote. A federal judge ordered state officials to start their count early, so it could be completed ahead of a looming deadline for the state to certify the electors it would send to the electoral college. But a state court subsequently put a halt to that effort, finding that because Stein lacked a “reasonable chance of winning" after a recount, she wasn't entitled to one.

North Carolina

1. Wise v. Circosta. North Carolina has extended the deadline for mail-in ballots to arrive from three days after Election Day to nine days. A challenge by Republican officials remains pending in federal court. Two of the arguments, which have arisen in other preelection litigation, are tied to unusual readings of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. The first relates to the requirement that each person's vote count equally. Official conduct that “dilutes" the value of a vote runs afoul of this principle. Ordinarily, vote dilution is defined as an instance in which fraudulent ballots canceled out those legally cast. But three federal appellate judges wrote last month, dissenting from a decision not to block the extended deadline, that legitimate but late-arriving mail-in ballots would “dilute" the votes of those who had gotten their votes in earlier. It's a peculiar take on the idea of “dilution" — that the legitimate vote of one North Carolinian waters down in some illegitimate fashion the vote of another — but it's one that has gained some currency in preelection litigation and could emerge if this case or cases like it proceed after Election Day.

The second argument arises from the Supreme Court's interpretation of the Equal Protection Clause in the Bush v. Gore case, which ProPublica explored recently and which can be expected to crop up in post-election lawsuits. In essence, the issue in Bush v. Gore was that different counties in Florida were using different methods to decide which ballots were valid and which weren't, and the Supreme Court held that this kind of inconsistency arbitrarily treated votes differently; a type of ballot that passed muster in one county might not in another. This doctrine has its limits — after all, election administration is bound to result in some variation across precincts and counties — but lawyers for the Trump campaign and the GOP have begun to deploy it whenever they can discern some difference in election practices. In the Wise case in North Carolina, the dissenting federal appeals court judges wrote that accepting late-arriving ballots “arbitrarily and disparately treats" the plaintiffs, who cast their ballots before Election Day, “differently from other voters." Legal scholars see this reading as a stretch, but it may yet reemerge in post-election litigation.

2. Contesting election results. Any voter or candidate can challenge an election by filing a “protest" with a county board of elections, or in some circumstances, with the state elections board. The protest can concern how votes were counted or “some other irregularity." If the county board thinks there may be merit to the objection, it holds a hearing and can collect evidence. Its decision can be appealed to the state board and, ultimately, to a state court. There are three possible outcomes for a successful protest: a corrected vote tabulation if the protest results in an order that previously accepted ballots be rejected or vice versa; a recount; or an order to hold a new election altogether. Last year, the state board ordered a congressional election rerun, after evidence emerged that the Republican candidate's campaign had financed an illegal voter-turnout effort.

3. Recounts. In North Carolina, a presidential candidate or a candidate for Senate can insist on a recount if he or she lost by a margin of either half a percentage point or 10,000 votes, whichever is less. For other congressional candidates, the threshold is a margin of 1% or fewer of the votes cast. Whichever candidate is behind after an electronic recount can request a manual recount of a sample of precincts, which can be expanded if it suggests an error in the electronic count that might reverse the outcome of the election.


1. Recounts. In Wisconsin, a recount is the only recourse for a losing candidate in a federal election. The limited options reflect a policy, as state appeals courts have reiterated over the years, that elections generally should stand absent evidence of actual wrongdoing. A candidate can petition election officials for a recount if he or she is behind the leading candidate by one percentage point or less and believes that an error or fraud has infected the vote count. The candidate has to pay for the recount if the margin is greater than a quarter of a percentage point. The decision of election officials can be appealed to a state court.

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Here's why Bush v. Gore still matters in 2020

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Twenty years after the Supreme Court decision known as Bush v. Gore effectively decided a presidential election, it's back on the country's mind. President Donald Trump, who is lagging in polls amid a surge in COVID-19 cases and refuses to commit to leaving office quietly should his bid for reelection fail, has said he believes the Supreme Court will intervene in the upcoming election to hand him a second term. He cited that role to justify rushing the confirmation of Amy Coney Barrett, who was sworn in as a justice on Monday and could potentially break a 4-4 tie. Lawyers representing the president's campaign and the Republican Party have taken to citing Bush v. Gore frequently in preelection court filings. And the case's echoes are only underscored by the presence of three current justices — Chief Justice John Roberts, Barrett and Brett Kavanaugh — each of whom worked for the Republicans in the 2000 ballot recount battles in Florida that culminated in the historic Supreme Court decision.

Democrats got agitated this week when Kavanaugh, appointed by Trump in 2018, included a nearly page-long disquisition on Bush v. Gore in an opinion explaining his vote not to reinstate a six-day buffer after Election Day for mail-in ballots, which are expected to lean heavily Democratic, to arrive at election offices in Wisconsin. Then, only two days later, Democrats were cheered by the news that the court had let stand, at least for now, post-Election Day buffer periods in two other key swing states, Pennsylvania and North Carolina. The notion of a conservative court handing the presidency to Trump seemed that much more distant a prospect.

However, opinions by Justices Samuel Alito and Neil Gorsuch appended to Wednesday's decisions, when read together with Kavanaugh's opinion, suggest more is afoot. Bush v. Gore is poised for a revival at the high court. That will probably occur in a different scenario than what happened in 2000. The election forecaster FiveThirtyEight projects only a 4% chance of the election being decided by a recount.

But Bush v. Gore has never been the dead letter it's popularly perceived to be, and it could be a factor in a number of election battles this year. Before 2020, the Supreme Court had mentioned the case only once in two decades. But in the state courts and lower federal courts, it's quietly but repeatedly taken on new roles over the years, serving to resolve everything from how ballot signatures are reviewed to the deadline for mail-in ballots to reach election officials. This election cycle, with the help of Kavanaugh, Alito and Gorsuch, as well as a welter of GOP lawyers pushing to take Bush v. Gore in a new direction, the case is undergoing a radical transformation. If completed, legal scholars believe, that transformation will have far-reaching and deleterious consequences for efforts to expand voting rights.

What Was Bush v. Gore?

By the early morning hours after Election Day 2000, it was clear that the election contest between the Republican candidate, George W. Bush, and the Democrat, Al Gore, would come down to Florida's 25 electoral votes. With Bush up in the state by a very thin margin, Gore moved to have machine-tabulated ballots manually recounted. Weeks of legal wrangling ensued, with litigation pingponging around various Florida state courts, twice reaching the U.S. Supreme Court. Eventually, the Florida Supreme Court ordered a statewide manual recount but offered little guidance to ballot counters other than that they had to discern the “clear intent of the voter." Many Florida counties used punch card ballots at the time, and some Floridians failed to fully punch out the paper tab, called a “chad," leaving their votes unclear. New phrases entered the American lexicon: “hanging chads" (partially detached), “dimpled chads" (indented but not detached) and so on.

With an important mid-December deadline approaching, Bush's lawyers asked the Supreme Court to intervene. Late on a Tuesday, just hours ahead of the deadline, the court, by a 5-4 vote, put a stop to the Florida recount, all but declaring Bush the next president. In an unsigned opinion, five of the court's more conservative justices found that the Florida Supreme Court's recount rules were vague and inconsistent, resulting in “arbitrary and disparate treatment" of ballots. So, for example, counters in Miami-Dade County might deem a particular hanging chad a vote for president while counters in Palm Beach County might not.

The Constitution gives broad discretion to state legislatures to decide how to appoint the electors it sends to the electoral college. The Bush v. Gore majority held that the Florida recount procedures violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, which requires that the state not “value one person's vote over that of another." On this point there was broad agreement; two justices from the court's liberal wing, Stephen Breyer and David Souter, largely agreed with the five conservatives.

The question remained: what to do about it? Souter and Breyer thought the U.S. Supreme Court should do what it would usually do and send the case back to the Florida Supreme Court with instructions for how to cure the problem. The five conservatives, however, decided that there wasn't enough time left to fix the recount process and complete it. Two decades later, their reasoning remains the subject of widespread criticism. (The late Justice Antonin Scalia joined the majority opinion but privately called the equal protection rationale, “as we say in Brooklyn, a piece of shit," according to “First," a well regarded 2019 biography of retired Justice Sandra Day O'Connor.) In essence, the majority read into an earlier Florida Supreme Court ruling the suggestion that the Florida Legislature wanted the vote count finalized before the mid-December deadline.

Is Bush v. Gore Precedent?

The prevailing view has been no. In that interpretation, Bush v. Gore is a one-off that judges and lawyers are free to ignore. A binding precedent, by contrast, requires that lower courts (and the high court itself) abide by it.

Despite that view, the ruling's influence appears to be very much alive: It has been cited in hundreds of federal and state cases, dating from the years just after the 2000 election to this week. How can these dueling interpretations coexist? Consider the most often quoted sentence in Bush v. Gore: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." The not-precedent camp points to the first clause as dispositive. But others insist the second clause is every bit as important as the first, and if read in that way, the sentence sounds not so much like a disavowal of future relevance as a word of caution for other judges: Don't apply the court's analyses in rote fashion; be sensitive to the facts of the case.

Disagreements over whether Bush v. Gore should be considered a precedent are widespread, including in federal courts. For example, judges on the federal appellate court in Cincinnati decided in 2003 that Bush v. Gore was precedent “we are bound to adhere to." Thirteen years later, another set of judges on that same court dismissed the opinion as “non-precedential." Still other judges split the difference, like one on the appeals court in Richmond this year, who called Bush v. Gore “of limited precedential value."

Bush v. Gore Since Bush v. Gore

For a case that's widely regarded as an aberration, Bush v. Gore has done all right for itself outside the U.S. Supreme Court. Not only has it been cited well over a hundred times by state supreme courts and federal courts of appeals, that tally grows to about 500 when lower courts are included — from litigation over the 2003 vote to recall California Gov. Gray Davis to this year's court battle over felon reenfranchisement in Florida. That means there's a chance Bush v. Gore could reprise its role this year at the center of the resolution of the presidential race, should, say, Pennsylvania become to 2020 what Florida was for 2000. (Indeed, the case has already been raised as part of the ongoing litigation about how to handle mail-in ballots in the state.)

It could also help decide the outcome of other key races, a particularly consequential possibility given that control of the Senate is at stake this year. In 2008, for example, Norm Coleman, an incumbent Republican senator from Minnesota, tried to use Bush v. Gore to challenge the process by which election officials decided whether absentee ballots were valid. He was unsuccessful, and his Democratic opponent, the comedian Al Franken, ultimately won the seat.

Over the past two decades, Bush v. Gore has evolved beyond the partisan identity it maintains in the public imagination. An examination of judicial decisions and court filings in more than 150 cases suggests its invocation won't necessarily benefit one party or the other.

The ruling has continued to be invoked in its original context, guiding judicial oversight of ballot recounts. That makes it an inviting tool for a president who has repeatedly mused publicly about halting vote tabulations after Election Day. But the case could just as soon help speed along a recount, as the president has seen firsthand in November 2016, when Green Party presidential candidate Jill Stein petitioned for a recount of votes cast in Michigan, a state Trump then appeared to have won by only a few thousand votes. Stein's recount didn't change the outcome, but federal judges in that case relied in part on Bush v. Gore to ensure the recount got done on time, ruling in favor of Stein's request to waive a waiting period mandated by state law before beginning a recount. The delay, they reasoned, might prevent the state from completing the recount ahead of a key federal deadline. Once a state grants a right to a recount, a federal appeals judge wrote, “the State could not use arbitrary or unreasonable procedural rules to make that right a nullity."

Bush v. Gore has been applied in contradictory ways in different cases, both to disqualify large numbers of ballots or to ensure that ballots aren't arbitrarily rejected. Just after the 2018 election, for example, Florida Democratic Sen. Bill Nelson's reelection campaign and a state Democratic Party committee filed a federal lawsuit challenging the way Florida election officials verified signatures on vote-by-mail and provisional ballots. When a state lets residents vote by mail, the campaign's legal team argued in a filing that relied on Bush v. Gore, the Equal Protection Clause forbids the state from luring “its voters into a procedurally arbitrary vote-by-mail trap that results in their disenfranchisement." In response to Nelson's suit, the courts bemoaned “Florida's lack of any standards or formal training requirements" for those who assess ballot signatures, as well as the state's failure to notify some Floridians in time to fix improperly rejected ballots. A judge ordered the state to give those voters until 11 days after the election to submit affidavits and proof of identity so their votes would count. (Despite that interim victory, Nelson came up short and lost his seat.)

On the other side of the partisan divide, GOP lawyers this year are deploying Bush v. Gore aggressively. Attorneys for Republican legislators in North Carolina, for instance, recently argued that a state elections board plan to extend the period of time that officials could accept ballots postmarked by Election Day violated Bush v. Gore. In essence, they claimed that the case permitted their clients to use the Equal Protection Clause as a tool to reduce the number of eligible voters who got to cast a ballot. The full appeals court rejected the argument, with one of the judges in the majority calling the plaintiffs' argument “deeply troubling." The plaintiffs had suffered no harm, she wrote, and their sole aim was to reduce the number of eligible voters allowed to legally cast their ballot. (Three of the court's more conservative judges wrote a dissent agreeing with the plaintiffs. On Wednesday, the U.S. Supreme Court rejected a request to temporarily block the extension.)

There's more of this to come. On Oct. 23, a lawsuit filed in Nevada by the Trump campaign and the state Republican Party argues that the state runs afoul of Bush v. Gore because it offers a way to challenge in-person voters but fails to offer a mechanism for challenging voters who send their ballot through the mail, a potential opening salvo in an attack on mail-in voting in an important swing state.

Bush v. Gore and the Ghost of William Rehnquist

Until recently, Bush v. Gore's ongoing influence on federal elections has been fairly quiet, adapting to new issues of election administration in an incremental, case-by-case manner. It now seems on the verge of a metamorphosis. In recent years, Bush v. Gore — or, more precisely, a side note in it, a line of reasoning that indisputably is without precedential effect — has begun to gain currency among conservative jurists and election lawyers. In the past week, four members of the Supreme Court's conservative wing became advocates for the cause, seeking to transform a long-marginal idea into the law of the land. Should a majority of the high court embrace the thinking, the court's new right-leaning supermajority will have near-total power over courtroom efforts to shape federal elections — a set of circumstances that election law scholars and voting rights lawyers fear could seriously hinder efforts to expand the franchise in the United States.

Separate from the unsigned majority opinion in Bush v. Gore, the late Chief Justice William Rehnquist, joined by Scalia and Thomas, authored a concurring opinion offering “additional grounds" for putting an end to the Florida ballot recount. Ordinarily, when a state supreme court rules on an issue of state law, that state court decision can't be appealed to the U.S. Supreme Court, an outgrowth of the federal system in the United States. In his concurrence, however, Rehnquist claimed to have identified an exception to this rule in the context of state laws governing presidential elections. In that context, Rehnquist wrote, the U.S. Supreme Court, in fact, could second-guess a state supreme court's interpretation of its own state's election law.

Rehnquist's argument hinged on a narrow reading of the U.S. Constitution's Presidential Electors Clause, which says, “Each State shall appoint, in such Manner as the Legislature thereof may direct," the electors that vote for the president and vice president. In the chief justice's view, the Constitution gave state legislatures exclusive authority to run presidential elections, and when, as in Florida in 2000, a state court (or governor) interfered in the election laws passed by the legislature, that runs afoul of the U.S. Constitution, which means that the federal Supreme Court can intervene to help preserve the state legislature's power over how the state runs its presidential elections.

The dissenting justices expressed puzzlement and incredulity at Rehnquist's unusual reading of the Presidential Electors Clause. By his logic, they observed, a state legislature was unconstrained by its state constitution when prescribing laws related to presidential elections. The Supreme Court's own precedents, the late Justice John Paul Stevens wrote, rejected Rehnquist's interpretation. “Legislature" in the Presidential Electors Clause, he wrote, meant the state legislature acting in its ordinary lawmaking capacity, subject to a gubernatorial veto and the state constitution as interpreted by the courts, not as an all-powerful synod.

This week, Rehnquist's theory not only received the imprimatur of four sitting justices; it saw its scope expand. First, on Monday, came Kavanaugh's riff on Bush v. Gore in his concurrence in the Wisconsin vote-by-mail extension case. It excavated Rehnquist's theory and held it out as the correct reading of the Constitution. It was an odd place for Kavanaugh to articulate his pro-Rehnquist thesis, because, as Kavanaugh acknowledged, it was entirely irrelevant to the Wisconsin case. The Wisconsin case was appealed from a federal court, not a state court, and there's no question the U.S. Supreme Court has the power to review the decisions of lower federal courts. Kavanaugh's footnote suggested he was eager to convey his point of view out into the world, possibly to encourage future litigants to present the court with opportunities to elevate Rehnquist's concurrence to the level of precedent. That signal may not be necessary. Throughout the country, Republican election lawyers are already doing just that.

No other justice joined Kavanaugh's concurrence, but just two days later, three of them would join him in extolling the virtues of Rehnquist's theory. On Wednesday, the Supreme Court declined to roll back similar vote-by-mail buffer periods in two other swing states, North Carolina and Pennsylvania. Unlike in Wisconsin, the extensions of time were authorized by state courts relying on state law, the kind of decision over which the federal Supreme Court ordinarily has no authority. Given the partisan polarization around voting by mail this year, Democrats celebrated the outcome. The festivities, however, were muted. Accompanying each order was a lengthy statement signed by some or all of justices unhappy about the outcome — Alito, Gorsuch and Thomas — and warning that the cases might not be over yet.

Both statements declared their support for adopting Rehnquist's Bush v. Gore concurrence and went further still, indicating that, within state government, the legislature also has exclusive control over congressional elections. (The Constitution authorizes Congress to override the legislature.) The statement written by Alito, which was appended to the Pennsylvania order, suggested that the Supreme Court might yet intervene after the election, potentially rejecting some large number of ballots that were mailed by Election Day but that arrived at election offices within the three day buffer period.

The more realistic reason for Bush v. Gore to alarm Democrats is that the Supreme Court's four most conservative justices — Alito, Gorsuch, Kavanaugh and Thomas — seem to be champing at the bit to cut state courts out of federal elections altogether. “Conservative judges have increasingly shown hostility to expanded voting rights, even during a pandemic," said Rick Hasen, an election law expert at the University of California, Irvine School of Law. The approach embodied in the Rehnquist concurrence, known to lawyers as the independent state legislature doctrine, is one of many tools “that is making it harder for other actors to protect voting rights."

Can they get a fifth justice on their side? Barrett's views aren't yet known, but Roberts doesn't seem eager to embrace the Rehnquist theory. This Monday, in a brief opinion, the chief justice distinguished the situation in Wisconsin, where a federal court had modified election rules, and in Pennsylvania, where the state supreme court had done so, relying on “the authority of state courts to apply their own constitutions to election regulations."

Still, other courts are running with the interpretation favored by the four conservative justices. On Thursday, a federal appeals court voted 2-1 to order Minnesota to separate late-arriving mail-in ballots, finding that a state court-ordered buffer period was likely illegal. Their reasoning? Plucked more or less straight from Kavanaugh's Wisconsin concurrence.

Rehnquist's theory poses greater risks to Democrats than Republicans, at least in the near term. Over the past decade or so, Republicans have done an impressive job of taking over state legislatures. In the key swing states of North Carolina and Pennsylvania, there is a Democratic governor, a liberal majority on the state supreme court, and a Republican-controlled legislature. Biden's lawyers surely would prefer their odds in the supreme courts of those states than in a U.S. Supreme Court that's more conservative than it's been in decades.

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