Consider This from NPR - This Election Season Is Shaping Up To Be The Most Litigated Ever

Episode Date: September 17, 2020

During the 2000 Presidential election season, it took 36 days and a Supreme Court decision before George W. Bush became the 43rd president of the United States.Before that final Supreme Court decision, there was a five-week battle over the ballots, the rules, the laws and the courts. The amount of litigation and lawyers involved has been called "unprecedented." But what was unprecedented two decades ago looks quaint in 2020.This year campaigns and political parties have staffed up their legal war rooms, making this election season one of the most litigated ever. A lot of the on-going lawsuits are due to coronavirus-related election issues, with at least 248 nationwide.Three of the lawyers preparing for this election season take us from where they were on election night in 2000 to the work they're doing now. In participating regions, you'll also hear a local news segment that will help you make sense of what's going on in your community.Email us at [e-mail] thanks to Sam Gringlas and Courtney Dorning for reporting featured in this episode.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

It took 36 days and a Supreme Court decision before George W. Bush became the 43rd president of the United States, a saga that started election night in November 2000. Oh boy. Yes, I remember it quite vividly. Justin Reamer was a junior in college in Florida. In my fraternity house with one Republican roommate and one very Democrat roommate and just watching it play out, you know, being pretty enthralled by it. I remember getting out of a play on election night in Manhattan. Dale Ho was a little bit older, not yet in law school.

Hearing friends shouting results from various states over their cell phones. And I remember going home that night and watching until the networks called it for Bush and then staying up another half hour and being perplexed by what happened next. And Mark Elias was a young associate attorney dashing through the airport to another recount, one that would get a lot less attention. It was for a Senate race in Washington state. So I may be the only recount lawyer in America. On the Democratic side, you can say they won their recount in 2000. Fast forward 20 years and each one of these people are part of a swirling army of lawyers working towards election night 2020.

Consider this. The lesson from 2000's contested election wasn't never again. It was lawyer up. And thanks to the pandemic, this election season is already one of the most litigated ever. From NPR, I'm Adi Cornish. It's Thursday, September 17th. This message comes from NPR sponsor, Unfinished Short Creek, the latest investigative true crime podcast from Witness Docs and Critical Frequency, a battle over family, home, and the limits of religious freedom. Find it in Stitcher, Apple Podcasts, or wherever it is you listen.

This message comes from NPR sponsor, Twilio, a customer engagement platform trusted by millions of developers, enabling you to reinvent how you connect with your customers. Whatever your use case, Twilio has your back. It's time to build. Visit Twilio.com.

Comedian Larry Wilmore has had quite the career, but maybe his most infamous moment came from a single joke he made to President Obama back in 2016. There was a rallying cry from people who said, yes, Larry Wilmore, thank you. His most infamous moment came from a single joke he made to President Obama back in 2016. There was a rallying cry from people who said, yes, Larry Bulbor, thank you. That was the blackest thing I've ever seen in my life, you know.

Listen to the It's Been a Minute podcast from NPR. It's Consider This from NPR. I'm Adi Cornish. The night of November 7th, 2000 was cold and wet in Austin, Texas. Nobody cared. We had just won the presidency of the United States. Doris, Doris, Doris, Doris, Doris. Uh-oh, something's happened. George Bush is the president-elect of the United States. Republican lawyer Ben Ginsberg was at then-Governor Bush's campaign headquarters nearby.

There was great joy. Until the mood changed among the crowds in front of those giant screens. One of the reasons for Al Gore's delay, this is according to some of his low-level staffers, is that he has actually called George W. Bush and taken back his concession phone call. And so that's when we had a clue there was a problem, and phones started going off in rapid succession. All right, we're officially saying that Florida is too close to call because... And we rushed back to the headquarters, watched the results in Florida tighten and tighten. They're still counting. They're still counting. And about 3.30 in the morning, the campaign chair came by my desk and said,

there's going to be a recount. You better saddle everybody up. And so that's when the private planes got put into service. Lawyers got recruited. Phone calls went out. Those lawyers on planes ended up in Florida, where Democratic presidential candidate Al Gore sued to force a recount in a few too-close-to-call counties. It was a five-week battle over the ballots, the rules, the law, and the courts. A 5-4 decision at the Supreme Court effectively stopped the recount, paving the way for George W. Bush's win. The level of litigation that took place in 2000 was unprecedented. That word, unprecedented, gets used a lot when describing

the 2000 election. But what was unprecedented two decades ago looks quaint in 2020, because this year the campaigns and political parties have staffed up legal war rooms. We've heard this is going to be the most litigated election ever. Does that sound right to you? Yes, it does. I think it probably already has achieved that status. I spoke with Justin Reamer about this. He was the fraternity brother you heard earlier.

That night sparked his interest in the law. And today he's the chief counsel for the Republican National Committee. Dozens and dozens of lawyers. We have in-house counsel and then we have retained dozens of lawyers around the country to help us with these cases. Mark Elias is also in planning mode. He was the one working on a Senate-level recount back in 2000. Now he's the go-to election litigator for Democrats. Donald Trump tweeted about me in 2018 in Florida saying I was the Democrats' best election-stealing lawyer.

Elias doesn't see himself that way, of course. For 2020, Joe Biden has hired Elias' team to defend Democrats in state-level fights over vote counts and ballot rules. Just like the Republicans, they're already busy in court. We're litigating 30-plus lawsuits in 17 or 18 states. Dale Ho, our Manhattan theater goer, he ended up going to law school and became the top elections litigator for the ACLU. He says to make sense of the legal ramp up, you have to understand that in some ways the U.S. took away the wrong lessons from the 2000 presidential election fight. The lesson from Bush versus Gore should have gone well beyond voting machines to the notion that maybe, you know, we should have professionalized and nonpartisan election

administration with all of the rules are agreed upon in advance to deal with whatever contingency might arise. Maybe it's not a good idea for the chair of the state campaign for one of the candidates to be overseeing the election. Maybe that's not a best practice, right? But we haven't learned from that. Dale Ho looks back at that 2000 election and recount as traumatic for the country, trauma that's been papered over. Every election since, there have been more and more lawsuits. The pandemic has accelerated the trend. Dale Ho and the ACLU have some 20 suits going in 16 states over coronavirus-related election issues. But nationwide, the number of pandemic-era election cases is 248 and counting.

I spoke with Justin Levitt from Loyola Law School. He's been tracking it all. I think there are four places that people are focusing, and they all have to do with the disruption that the pandemic caused. One place is in getting onto the ballot. So the number of signatures or the deadline for submitting signatures for candidates or for parties or for independent ballot measures. Another focus is the mail system. More Americans will be voting by mail this year than ever before, in part because of the pandemic. There's another category of litigation that's about in-person voting, how long the polls will be open, how many sites will be open, about the safety measures that are being taken at the polls. And then the fourth

category of litigation is pushback against all of that. We had a pandemic deliver a disruption. That meant that sometimes legislatures or executive actors either wouldn't or couldn't act, and so people are turning to the courts. But sometimes the legislatures or the executives did act, and people are turning to the courts to say they acted, they went too far. The backdrop to this is also the Supreme Court ruling on the Voting Rights Act. Can you talk about how that has opened the door to more legal action? That's opened the door in general, in part because in 2013, the Supreme Court decided that an extremely powerful part of the Voting Rights Act, the part that prohibits states or jurisdictions from changing their practices if they had a really troublesome history of race relations before those practices could be signed off on by a federal

court or by the Department of Justice just to make sure that they weren't acting in discriminatory fashion. The court decided that that pre-clearance provision, checking in beforehand, wasn't sufficiently up to date. And so it struck down where that applied. And as a result, it applies nowhere right now. Congress could fix it, but hasn't. And that has meant the need for a lot more affirmative litigation, people going into court to stop election practices. What's your response to people who hear about this army of lawyers, essentially coming from every direction, descending on states and picking apart their laws like ants. Yeah, well, at least you didn't say locusts. That's fair.

I think that the lawyers and litigation, they're there to help resolve disputes. It's actually much better that they're trying to resolve the disputes before they happen. That is, we'd much rather have the lawyers engaged making sure the process is as fair as it can be before the election than trying to fight over rules of the game when the outcome is even more certainly in question after the election. And that's the thing I guess I'm asking about. Is it about running out the clock? Is it about scrutinizing the rules? It's that kind of after the election day scenario that feels like legal apocalypse. Yeah, and I don't actually think even that's legal apocalypse. I might, it's certainly not comfortable. We'd all rather that lawyers had other things to do, myself included. As an election lawyer, I'd rather have many other

things to do. The election administrator's prayer is, dear Lord, let this election not be close. And I fully subscribe to that. Justin Levitt, legal professor at Loyola Law School. Beyond the pandemic, there's another factor that few people are paying attention to. The Republican Party is no longer bound by certain rules when it comes to poll watchers or so-called ballot security programs. The RNC had been under a consent decree going back to the 1980s. When Democrats accused the RNC of violating the rights of Black and Latino voters. Here's Democrat Mark Elias. It involved putting off-duty police officers in uniform with Black armbands

in largely Black and brown precincts in order to harass voters. We're not sitting here hatching out plans for suppressing the vote, regardless of what folks like Mark Elias may say, we're in this for the right reasons. Justin Reamer, legal counsel for the RNC, says that consent decree hurt the party. The Democrats were able to have poll watchers there to document what happens if a precinct runs out of ballots, for example, or if there is a voting equipment breakdown, or if they weren't using provisional ballots when they were supposed to. Documenting that evidence is extremely important if there are questions after the election that lead to litigation or lead to a recount. And I compare it to, you know, a court

case where one side is able to have all the evidence and the other side has none. How is that fair? Reamer says that this development means the RNC is off the sidelines for the 2020 election. Mark Elias hears that and says that's chilling. Under a president who is as hostile to voting and whose record on race is so poor, does anyone really believe that they are going to go out and go to the trouble to recruit 50,000 people to stand there like Boy Scouts and Girl Scouts just observing the election? There's nothing in the history of the Republican Party since the consent decree that suggests that they are there to play a constructive role.

Which brings us to the wild card, the incumbent president. A president who has a history of making false claims about mail-in voting. A president who hasn't given a clear answer on whether he would accept the outcome of an election that doesn't go his way. A president who can move headlines with a tweet. It means an election fight might not just be waged in the courts, it could also be waged in the courts. It could also be waged in the court of public opinion. It's Consider This from NPR. I'm Audie Cornish.