Skip to content

People

Nicholas Stephanopoulos

  • The Partisan Implications of the ISL Theory

    August 30, 2022

    An article by Nicholas Stephanopoulos: Observers of the debate over the independent state legislature (ISL) theory would be forgiven for assuming that its adoption would…

  • U.S. Supreme Court building, looking up towards the sky from the bottom of the stairs.

    Harvard Law faculty weigh in: The 2021-2022 Supreme Court Term

    June 25, 2022

    Harvard Law School experts weigh in on the Supreme Court’s final decisions.

  • New York Democrats Make Last-Ditch Bid to Save New Congressional Maps

    April 27, 2022

    New York Democrats made a last-ditch appeal to the state’s highest court on Tuesday to overturn a pair of lower-court rulings and salvage newly drawn congressional districts that overwhelmingly favor their party. In oral arguments before the New York State Court of Appeals, lawyers for the governor and top legislative leaders said that Republicans challenging the lines had fallen short of proving that the state’s new congressional map violated a state ban on gerrymandering. ... Nicholas Stephanopoulos, a Harvard law professor who studies redistricting, said New York’s map was not “remotely” as skewed as maps adopted by Republicans in Florida or Democrats in Illinois. And he cautioned that striking down New York’s maps while allowing other Republican-drawn gerrymanders to stand across the country would only further bias the national map toward one party. Still, Mr. Stephanopoulos said the litigation in New York and other states this year offered some reason for optimism in a decades-long fight by public interest groups to curb the influence of gerrymandering. “The fact that both sides are now willing to bring partisan gerrymandering claims, and state courts have struck down both Republican and Democratic maps, I think that is encouraging in terms of sweeping national reform in the future,” he said.

  • Federal Judge Blocks Parts of Florida GOP’s Election Law, Citing Racism

    April 4, 2022

    Civil rights defenders on Thursday welcomed a ruling by a federal judge who struck down parts of a Florida voter suppression law, calling racism “a motivating factor” in the GOP-backed legislation’s passage. In a 288-page ruling, U.S. District Judge Mark Walker blocked provisions of Florida’s Senate Bill 90, a massive attack on voting rights signed by Republican Gov. Ron DeSantis in 2020. The law empowers partisan poll watchers, imposes strict voter ID requirements, criminalizes so-called “ballot harvesting,” limits ballot drop boxes, and bans advocacy groups from handing out food or water to voters waiting in long lines. ... “We’ve seen other district courts do aggressive things in election law cases, and we’ve seen a lot of those decisions get reversed by appellate courts or the Supreme Court,” Nicholas Stephanopoulos, a Harvard Law School professor and election law expert, told The New York Times.” I wouldn’t be shocked if this litigation falls into that pattern.”

  • Judge Rules Parts of Florida Voting Law Are Unconstitutional

    April 1, 2022

    A federal judge in Florida ruled on Thursday that sections of the state’s year-old election law were unconstitutional and racially motivated, and barred the state from making similar changes to its laws in the next decade without the approval of the federal government. The sharply worded 288-page order, issued by Judge Mark E. Walker of the Federal District Court in Tallahassee, was the first time a federal court had struck down major elements of the wave of voting laws enacted by Republicans since the 2020 election. Finding a pattern of racial bias, Walker in his ruling relied on a little-used legal provision to impose unusual federal restrictions on how a state legislates. ... “From a realistic perspective, it’s unlikely that the 11th Circuit or the Supreme Court would agree with the district court that there was racially discriminatory intent in Florida,” said Nicholas Stephanopoulos, a Harvard Law School professor and an expert on election law. “There’s a lurking fear that the same court that decided Shelby County might decide that bail-in is unconstitutional.”

  • Biden’s power to act on his own to safeguard voting rights is limited

    February 14, 2022

    As Republicans impose new restrictions on ballot access in multiple states, President Biden has no easy options for safeguarding voting rights despite rising pressure from frustrated activists. Unlike on other issues such as immigration or environmental protection, the White House has little leverage without congressional action as the November elections creep up. “If there were some sort of easily available presidential power on this, others would have done it,” said Nicholas Stephanopoulos, a Harvard Law School professor who researches election law. “There is no significant unilateral authority here.”

  • What the Supreme Court’s decision on Alabama’s maps could mean for the Voting Rights Act

    February 14, 2022

    A contentious decision from the US Supreme Court in a Voting Rights Act case from Alabama this week previewed what could be a momentous legal battle over the 1965 law, which over the past several years has been repeatedly whittled down by the conservative justices. ... "Alabama's proposal would turn the VRA into a race-blind statute that only looks into what this hypothetical race-blind process would produce," said Nicholas Stephanopoulos, a Harvard Law professor who specializes in election law. "And so the consequence would be just substantially less minority representation in America."

  • Alabama ruling signals new threat to voting rights law

    February 11, 2022

    When three federal judges last month blocked Alabama’s new Republican-backed map of US congressional districts as likely discriminatory against Black voters, they said they were applying “settled law” and that the outcome was not even close. An increasingly assertive conservative-majority US Supreme Court disagreed. The justices froze the lower court’s ruling and allowed Alabama to use the contested map of the state’s seven US House of Representatives districts for the November 8 midterm elections in which Republicans are seeking to regain control of Congress from President Joe Biden’s fellow Democrats. ... “If the court accepted Alabama’s argument, that would be the end of Section 2 as we know it,” said Harvard Law School Professor Nicholas Stephanopoulos, an expert in redistricting. “It would become far harder for plaintiffs to win Section 2 cases, and states could eliminate many existing minority opportunity districts without violating the statute,” Stephanopoulos said, referring to districts in which minorities have a better chance of electing lawmakers of their choice.

  • What the Supreme Court decision in Alabama means for racial gerrymandering

    February 9, 2022

    One reliable strategy for Democrats in gerrymandering battles over the past decade has been to sue Republicans for racial gerrymandering — arguing that Republicans illegally packed minority voters into districts so these voters had less power to elect additional representatives. ... But “race-blind” policies would probably still benefit Republicans by diluting minority voters. The University of Michigan’s Jowei Chen and Harvard Law’s Nicholas Stephanopoulos did an analysis of “race-blind” redistricting in all of the nation’s state House districts. They found that there would be “substantially fewer” minority-majority districts, and those that remained would have smaller minority populations in them. In the South in particular, Republicans would benefit from this by picking up more districts.

  • Opinion: The grim fate of the Voting Rights Act in the hands of the Supreme Court

    February 9, 2022

    An op-ed by Nicholas Stephanopoulos: Will anything be left of the Voting Rights Act after the Supreme Court finishes with it? It’s looking pretty grim. In 2013, the Supreme Court dismantled the part of the law that required states with a history of discrimination to get approval for changes to election rules. Last year, the court all but eliminated minority voters’ ability to use another part of the law to challenge discriminatory voting restrictions. Now, the court has signaled its interest in frustrating the law’s aim of ensuring that minority voters are adequately represented.

  • Why it’s wrong to call the voting rights bill a federal takeover

    January 25, 2022

    In Arizona, citizens can vote early for nearly a month before Election Day. In New Hampshire, early voting doesn't exist. In Florida, any voter can request a mail ballot. In Texas, only some voters can vote absentee, such as those who are old, sick, in jail or out of town. Democrats say this patchwork of state rules makes no sense when citizens vote in federal elections, and have pushed legislation to create uniform rules. Republicans have blocked that effort, arguing that the powers belong in the hands of state lawmakers. Many Republican lawmakers have derided voting rights legislation as a "federal takeover" of elections. ... "No one is proposing that federal officials take over these responsibilities," said Harvard law professor Nicholas O. Stephanopoulos, who has advised some nonprofit groups involved in drafting the bill.

  • How Manchin and Sinema Completed a Conservative Vision

    January 18, 2022

    The decision by Senators Kyrsten Sinema and Joe Manchin to block their fellow Democrats from passing new federal voting-rights legislation clears the path for years of tightening ballot restrictions in Republican-controlled states. It also marks a resounding triumph for Chief Justice John Roberts in his four-decade quest to roll back the federal government’s role in protecting voter rights. ...  “There’s no consistent explanation that can account for Roberts’s rulings in election-law cases other than just a partisan motive,” [Nicholas] Stephanopoulos, echoing the view of many critics, told me. “Intervene when it’s restrictions on money in politics; don’t intervene when it’s partisan gerrymandering or voting restrictions. Intervene again when it’s Congress trying to do something about racial vote suppression or racial vote dilution. Sometimes mention the Framers, sometimes don’t mention the Framers. It’s anything goes as long as the final outcome is the preferred partisan outcome.”

  • You Can’t Judge a District Just by Looking at It

    January 11, 2022

    Over the past two centuries, the quickest way to spot a gerrymandered map of congressional districts has been to look at their shapes. Distended, jagged, almost laughably contorted boundaries were usually a sign that mapmakers were trying to tip the scales toward one political party or the other. ... One way to stymie partisan gerrymandering is by putting redistricting in the hands of commissions that include Democrats and Republicans. “You can pick half a dozen different parameters, and on every single one of them, you're seeing progress in states that have independent commissions,” said Nicholas Stephanopoulos, a law professor at Harvard University. Independent commissions aren’t a panacea. In some states, legislators have all but ignored the decisions of poorly structured panels. But when designed carefully, the commissions are a significant improvement over the status quo. Democrats in the House have proposed mandating independent commissions in their voting rights bill, the For the People Act. But Republicans have blocked the legislation in the Senate. “With the politicians, once they’re pursuing their self-interests, everything else goes out the window,” Mr. Stephanopoulos said.

  • Why Democrats Keep Bringing Up Voting Rights

    January 10, 2022

    ...Last week, Democrats announced they would bring voting rights to the fore once again. Seemingly energized by the first anniversary of the Jan. 6 insurrection on the U.S. Capitol, when supporters of then-President Donald Trump tried to prevent the certification of the results of the 2020 presidential election, Senate Majority Leader Chuck Schumer said his chamber would soon vote on easing filibuster rules so that voting rights legislation could possibly — finally — make it across the finish line. ... But even if Democrats aren’t able to pass voting rights legislation, they can at least establish themselves as the party in favor of democracy and voting rights. The question is, will this be enough for their base? At least one expert told me that the party risks looking feckless, if not useless, if they cannot deliver. “You don’t get points for trying; you get points for succeeding,” said Nicholas Stephanopoulos, a professor of law at Harvard Law School. “So the party base who cares about voting rights as an issue are not going to care that Democrats tried and failed. If anything, they’ll be irritated and disappointed if the bill has a lot of salience and still doesn’t pass.”

  • Crowd of protesters waving flags at the U.S. Capitol

    January 6, 2021: Harvard Law experts reflect a year later

    January 4, 2022

    Harvard Law Today asked experts from across Harvard Law School to share their perspectives on January 6, 2021, the events that have unfolded since, and the implications for American democracy going forward.

  • Michigan civil rights department sounds alarm on redistricting commission’s maps

    December 17, 2021

    With just over a week left until Michigan's redistricting commission votes to adopt new voting districts for the next decade, the state’s civil rights department says the commission's maps violate federal voting rights requirements. ... An analysis by the department argues the commission's proposed congressional maps don't comply with the Voting Rights Act — the federal law that prohibits voting districts that deny minority voters an opportunity to elect their preferred candidates — because they eliminate majority-minority districts, where nonwhite voters make up more than 50% of the district. It found that the commission must draw majority-minority districts in Detroit, Flint, Hamtramck, Inkster, Pontiac, Redford, Saginaw, Southfield and Taylor. Nicholas Stephanopoulos, a Harvard Law School professor who specializes in election law, called the department's work "laughably bad analysis," in an email to the Free Press. The Voting Rights Act doesn't require majority-minority districts, Stephanopoulos said. "Rather, it sometimes requires minority opportunity districts to be drawn — that is, districts where minority voters are able to elect their candidates of choice. In a state like Michigan, with a reasonable volume of white Democrats willing to support minority-preferred candidates, the threshold for an opportunity district is certainly below 50%."

  • Critics of Maryland’s congressional redistricting are promising lawsuits. Legal experts say they face an uphill battle

    December 13, 2021

    Critics of Maryland’s newly redrawn congressional maps promised to once again file lawsuits to block the reconfigured electoral districts, which Republicans blasted as a blatant partisan power grab by Democrats. But fighting partisan gerrymandering in the courts now appears even more difficult than a decade ago, when opponents fought a losing battle against Maryland’s last redistricting plan. ... “With a Democratic legislature that has a veto-proof majority, they could easily fix any (Voting Rights Act) problem or any racial gerrymandering problem without drawing additional Republican districts,” said Nicholas Stephanopoulos, a Harvard Law School professor who’s been involved in lawsuits over partisan gerrymandering. “If Republicans sue, all you can really manage is to potentially reshuffle the districts racially but without affecting their partisan breakdown.”

  • Michigan redistricting commission to weigh input from Black voters

    October 27, 2021

    Michigan’s redistricting commission will soon decide whether it wants to heed the calls it heard during its statewide tour to make wholesale changes to how it drew Black voters in its draft congressional and legislative districts. Some of the loudest criticism the commission received targeted the draft districts it drew in Detroit that would pair predominantly Black neighborhoods in the city with whiter suburban communities. ... Voting rights experts say there is no target share of minority voters that should be assigned to a district to comply with the Voting Rights Act, and creating a racial target would expose the commission to legal challenges. ... And the commission is not beholden to how the current lines divvy up minority voters, said Nicholas Stephanopoulos, a Harvard Law School professor who specializes in election law. The Voting Rights Act "doesn't require 50% districts, it doesn't require freezing the status quo. It requires performing districts for minority voters," he said.

  • After Senate Republicans Block Voting Rights Legislation, the Filibuster Is Back in the Crosshairs

    October 22, 2021

    President Joe Biden said on Thursday he would be open to doing away with the filibuster in pursuit of protecting Americans’ voting rights, bolstering voting rights’ advocates calls to abolish the controversial rule after Republicans blocked federal voting legislation from advancing for the third time this year. Wednesday’s 49-51 Senate vote barred any debate from occurring on the Freedom to Vote Act, a bill that would have enacted automatic voter registration, guaranteed at least 15 consecutive days of early in-person voting and allowed for no-excuse mail voting in federal elections among other measures. ... “This is further confirmation that paring down the bill isn’t going to make a difference,” says Nicholas Stephanopoulos, a professor at Harvard Law School who specializes in election law. “[Democrats] haven’t come close to getting the vote of a single Republican Senator—let alone 10 Republican senators—so we’re nowhere near anything like a 60-vote supermajority.”

  • Math Quants Could Disrupt Process That Sways Power in Washington

    October 18, 2021

    State judges bedeviled by weirdly shaped and obviously partisan congressional district maps can now get expert help from an unusual source: math nerds. Using sophisticated techniques drawn from statistics and geometry, mathematicians have developed tools that could play a huge role in a gerrymandering lawsuit filed in Ohio and during court fights expected in Georgia, Texas and Oregon. The algorithms can determine whether a map benefits one party or another, with the aim of providing courts and citizens with an objective gauge rather than relying on partisan arguments. While both mapmakers and their critics have long used software to draw the lines, this year will be the first redistricting cycle in which opponents will have the mathematical measures to objectively show that a map is gerrymandered as the maps are being approved for the next decade. That could potentially alter a process that may determine control of the U.S. House in next year’s midterms..In 2014, Harvard law professor Nicholas Stephanopoulos and political scientist Eric McGhee developed the efficiency gap, which measures how many votes each party wasted, either by losing a race or winning by an unnecessarily high margin.

  • Crowd of people in front of the U.S. Capitol

    Is democracy in peril?

    September 23, 2021

    The state of American democracy will be examined in a lecture series, "Democracy," which had its first session this week and will continue through the fall and spring.

  • Pay People to Vote

    August 10, 2021

    An op-ed by Jonathan S. Gould and Nicholas Stephanopoulos: Democracy in America is under attack. Red states are churning out laws that make it harder to vote and easier for partisans to subvert elections. A round of ruthless gerrymandering is set to begin later this year. The influence of money in politics is greater than ever. A pair of congressional bills—the For the People Act and the John Lewis Voting Rights Advancement Act—would tackle these challenges head-on, but they are stuck as long as the filibuster remains in place. And the filibuster doesn’t seem to be going anywhere.

  • Red sign that reads Early Voting Today in English and in Spanish

    ‘In many parts of the country, the Voting Rights Act’ is ‘close to a dead letter’

    July 8, 2021

    Harvard Law Professor Nicholas Stephanopoulos recently spoke with Harvard Law Today about the Supreme Court's recent decision in Brnovich v. Democratic National Committee, options for advocates moving forward, and the future of the Voting Rights Act.

  • Analysis: How the Supreme Court has tilted election law to favor the Republican Party

    June 4, 2021

    This year’s wave of new voting restrictions across the South may seem a response to the 2020 election, but its origins stem in no small part from the Supreme Court, which over the last decade has reshaped election law to elevate the power of state lawmakers over the rights of their voters. ... Harvard Law Professor Nicholas Stephanopoulos, who teaches election law, said he wouldn’t speculate about the intent of the justices. “But across the right to vote, redistricting, the Voting Rights Act and campaign finance, the court’s decisions have benefited Republicans,” he said. “And partisan advantage explains these decisions better than rival hypotheses like originalism, precedent, or judicial nonintervention.”

  • The For the People Act’s Missing Piece

    May 10, 2021

    An op-ed by Nicholas StephanopoulosGeorgia has been on the country’s mind lately. And not for a good reason. In March, the state passed one of the most sweeping sets of voting restrictions in recent memory. Among other things, SB 202 bars absentee ballot applications from being sent to all voters. It imposes an ID requirement for absentee voting. It slashes the number of ballot drop-off boxes in Georgia’s biggest counties. It forbids mobile voting centers. It stops ballots cast in the wrong precinct from being counted. It criminalizes offering food or water to voters waiting in line. It gives the legislature control over the State Elections Board. It authorizes that Board to suspend county election officials. And so on. For many voting rights advocates, the solution to laws like Georgia’s is clear: Congress should pass the For the People Act, the omnibus electoral reform bill recently approved by the House. And it’s true, the Act would override several of Georgia’s new limits. For example, the Act would mandate that absentee ballot applications be sent to all eligible voters. The Act would also prohibit ID requirements for absentee voting. And the Act would compel about five times more drop-off boxes than are allowed under Georgia’s law.

  • Constitutional Challenges Loom Over Proposed Voting Bill

    May 5, 2021

    If the sweeping voting rights bill that the House passed in March overcomes substantial hurdles in the Senate to become law, it would reshape American elections and represent a triumph for Democrats eager to combat the wave of election restrictions moving through Republican-controlled state legislatures. But passage of the bill, known as H.R. 1, would end a legislative fight and start a legal war that could dwarf the court challenges aimed at the Affordable Care Act over the past decade. “I have no doubt that if H.R. 1 passes, we’re going to have a dozen major Supreme Court cases on different pieces of it,” said Nicholas Stephanopoulos, a law professor at Harvard...Even if every one of the objections to the bill discussed in this article were to prevail in court, most of the law would survive. “Part of why the attack on H.R. 1 is unlikely to be successful in the end is that the law is not a single coherent structure the way Obamacare was,” Professor Stephanopoulos said. “It’s a hundred different proposals, all packaged together.” “The Roberts court would dislike on policy grounds almost the entire law,” he added. “But I think even this court would end up upholding most — big, big swaths — of the law. It would still leave the most important election bill in American history intact even after the court took its pound of flesh.”

  • Empty voting booths at a polling place

    Election Law Clinic launches at Harvard Law School

    April 7, 2021

    Harvard Law School has announced the launch the new Election Law Clinic, which will give students the opportunity to work on a broad range of cutting-edge issues in areas such as redistricting, voting rights, campaign finance, and party regulation.

  • The Fate of Biden’s Agenda Hangs in the Balance

    March 31, 2021

    Every 10 years, after the collection of census data, states are required to redraw the boundaries of their congressional districts to ensure that they remain equal in population. The process — as readers of this newspaper know — is vulnerable to gerrymandering, in which districts are redrawn to give favored parties, office holders or constituencies an advantage in elections...As states await census data to guide redistricting, there is one wild card in the mix: the possible enactment of voting rights reform, HR 1 or the For the People Act of 2021 — the measure that passed the House on March 3 on a 220-210 vote, but faces the threat of a filibuster in the Senate. I asked Nicholas Stephanopoulos, a law professor at Harvard whose specialties include election law, about the bill. He emailed me to say that: “The voting legislation currently before Congress would revolutionize the redistricting process if it passed. It would require all states to use truly independent commissions, effective immediately. Separate from this structural reform, the bill would also include quantitative partisan bias thresholds that maps wouldn’t be allowed to exceed. These thresholds would have real teeth.” At the same time, Stephanopoulos continued, the legislation would put the brakes on voter suppression laws: “The bill affirmatively requires a series of participation-enhancing policies for congressional elections: automatic voter registration, same-day voter registration, at least 15 days of early voting, expanded mail-in voting, restrictions on voter purges, restrictions on photo ID requirements, etc.”

  • Next front in gerrymandering wars will be whom to count

    February 24, 2021

    An op-ed by Jowei Chen and Nicholas StephanopoulosThe gerrymandering wars are about to resume. Over the next year, every state in the country will have to redraw its congressional and legislative districts. In anticipation of redistricting, Republicans are eyeing a new tactic: For decades, states have equalized the numbers of people their districts contain. But the GOP is now pushing to equalize districts’ citizen voting-age populations instead. Under this approach, noncitizens and children would be invisible for remapping purposes. Only adult citizens would count. Republicans think that by omitting non-adult citizens from districts’ populations, they would slash the representation of minorities and Democrats. Their logic goes like this: At present, many districts with non-White or Democratic legislators have relatively low proportions of adult citizens. So these districts would have to grow in size — and shrink in number — to acquire enough adult citizens to hit their new population targets. Conversely, many districts with White or Republican legislators have higher shares of adult citizens. These districts would shed some of their residents into adjacent districts in a world where adult citizens, not people, had to be equalized. These dispersed voters would tilt their new districts in a conservative direction.

  • Republican Efforts to Restrict Voting Risk Backfiring on Party

    February 16, 2021

    Republican lawmakers in battleground states are rushing to enact stricter voting laws that Democrats worry could dampen Black and Hispanic turnout, but the moves could end up backfiring because of the changing face of the GOP coalition. The flurry of legislation includes attempts to impose voter ID requirements and roll back pandemic-related expansion to mail-in access, steps that may inadvertently limit the participation of many of the older, rural and blue-collar voters that Republicans now depend on. State legislatures across the country are considering more than a hundred bills that would increase voter ID requirements, tighten no-excuse vote-by-mail, and ban ballot drop boxes, among other changes...This flood of legislation comes despite research showing that voter ID laws passed over the last decade not only don’t hamper minority turnout, but may even boost it by motivating angry Democrats and spurring stronger get-out-the-vote efforts. Nick Stephanopoulos, a Harvard professor who studies voting laws, said that the suburban, college-educated voters moving toward the Democratic Party are the least likely to be affected by new restrictions, since they have the resources to overcome them and tend to be regular voters already.

  • Independent Clinical students

    Laying the groundwork for real-life lawyering

    January 7, 2021

    Students in independent clinicals are making the most of a digital world.

  • Molly Brady wearing a bright red jacket sits in front of a computer and teaches her class in Zoom

    2020 in pictures

    January 5, 2021

    A look back at the year at HLS.

  • Federal Judge Rejects Georgia GOP’s Attempt to Prevent Newly Registered Voters from Participating in Senate Runoff Elections

    January 4, 2021

    A federal judge on Friday rejected the Georgia Republican Party’s request to prevent newly registered voters from casting a ballot in the state’s upcoming Senate runoff elections, reasoning that the party lacked standing. The judge denied a request for temporary restraining order prohibiting new residents who voted for a Senate candidate in another state from voting in the Jan. 5 elections, according to Georgia Public Broadcasting...The GOP’s lawsuit, which claimed that it was “illegal for an individual to vote in the Georgia run-off if he or she already voted in 2020 for U.S. Senator in a different state,” was also based on a misreading of the Voting Rights Act. The complaint selectively quoted from the statute, stating: “The prohibition . . . applies with respect to any general, special, or primary election held solely or in part for the purpose of selecting or electing any candidate for […] Member of the United States Senate […].” ... Harvard Law School professor Nick Stephanopoulos, who specializes in election law, similarly told Law and Crime that the complaint appeared to misstate the relevant law. “The statute makes clear that it’s not double voting ‘to the extent two ballots are not cast for an election to the same candidacy or office.’ That would be precisely the situation of someone who moved to Georgia and registered after the general election,” he said. “That person would not have cast two ballots in ‘an election to the same candidacy or office’ — namely the Georgia Senate election.”

  • Donald Trump has lost dozens of election lawsuits. Here’s why

    December 11, 2020

    You wouldn’t know it from reading President Donald Trump’s Twitter feed, but judges across the nation have repeatedly rejected lawsuits filed on his behalf in an unsuccessful effort to overturn Joe Biden’s victory in the presidential race. At latest count, at least several dozen cases have been rejected in court or withdrawn. At one point, Trump lost cases in six states in a single day, NPR tallied. Marc Elias, the Democratic attorney who has been involved in many cases, tweeted that as of the afternoon of Dec. 9, Democrats have notched 53 victories. Some longshot cases are still pending, including a challenge by Texas Attorney General Ken Paxton that asks the U.S. Supreme Court to invalidate the electoral college votes for Biden from Georgia, Michigan, Wisconsin, and Pennsylvania...The fact that the cases have been tossed swiftly, including by Republican judges, shows that the cases are weak, said Harvard law professor Nicholas Stephanopoulos. "Given the rulings of the federal courts in other election law cases, I think they would be receptive to claims of fraud that could actually be substantiated," he said. But that wasn’t the case with the pro-Trump lawsuits, he added.

  • Fixing the cracks in America’s foundation

    November 18, 2020

    In the face of enormous obstacles, democracy looks likely to survive 2020. A record number of Americans went to the polls this year, despite spiking COVID-19 rates, rampant misinformation, and an ongoing campaign by the Trump administration to weaken America’s faith in the electoral process. In the end, the result was clear: Joe Biden won about 80 million votes nationally, more than any other candidate in history, defeating Trump by more than five million votes... “There was a real risk in this election of the country degenerating into a soft totalitarianism,” says Nicholas Stephanopoulos, a professor at Harvard Law School. “So getting rid of this president is very important. But we still have a long way to go towards perfecting our democracy.” ... Stephanopoulos argues that since there is no evidence of voter fraud, it is far more useful to focus attention on real, documented problems with our democracy. “I don’t worry about voter fraud because it isn’t true,” Stephanopoulos says. “Voter suppression and gerrymandering are not a figment of imagination: We can trace them.” ... Stephanopoulos notes that the main obstacle to any electoral reform is that it requires new legislation, which Republicans will likely block. “The American system is not designed to work well under conditions of polarization,” he says. “When you combine polarization with our checks and balances, it is almost impossible to get things done. Democrats will have to wait for landslide victories to enact sweeping changes that will make the political playing field fair.”

  • “Dozens of defeats” for Trump and GOP lawsuits so far, law professor says

    November 17, 2020

    Harvard Law School professor Nicholas Stephanopoulos joins CBSN to discuss the Trump campaign and Republican Party lawsuits over the 2020 election and whether their allegations are likely to stand up in court.

  • Zoom meeting with five HLS faculty

    Election 2020 debrief: What happened and what’s next?

    November 5, 2020

    In an “Election 2020 Debrief” event, a panel of Harvard Law School professors agree that the essential divisions of the American electorate remain unresolved, but find cause for some highly cautious optimism.

  • Legal experts shake their heads at GOP election suits

    November 5, 2020

    President Trump has made no secret of his intention to file legal challenges in key states where election results were close, citing the possibility of voting fraud. For months, he has criticized the nationwide expansion of mail-in balloting, a longstanding practice that gained ground rapidly because of social-distancing concerns during the pandemic. Trump filed lawsuits Wednesday to stop vote counts in Pennsylvania and Georgia, along with Michigan, shortly before the Associated Press said his opponent, former Vice President Joe Biden, had won the state. Officials are still counting votes in Nevada, Arizona, and Pennsylvania, which only started tallying more than 3 million mail-in ballots on election night...But scholars are not convinced there’s a plausible argument that the president’s legal team could make in these new actions that would prove successful in court. “There’s no claim I can think of that would shut down the counting of lawful, valid mail-in ballots in Pennsylvania,” said Harvard Law School Professor Nicholas Stephanopoulos, who studies election law...Though the president nominated hundreds of judges to the federal bench during his tenure, the courts aren’t likely to simply go along with the president’s demands, analysts said. “I think the very fact that the president has advertised that they are ‘his’ judges that he’s relying on to stop the counting both dares them to assert their independence in a way that is going to make it less likely that they will depart from what is a normal legal way of thinking about this and, ironically, undermines the effort he’s likely to make, [which is] to claim that Biden is somehow an illegitimate president because it will be Trump’s own judges who will be rebuffing his attempts,” said Laurence Tribe, Carl M. Loeb University Professor emeritus at Harvard Law School.

  • The Supreme Court shouldn’t decide voting cases. It keeps getting them wrong.

    November 2, 2020

    An op-ed by Nicholas StephanopoulosOver the past few months, election lawyers who litigate in the Supreme Court have hit the jackpot. The court has decided one election-related case after another — more than a dozen, in total, since the pandemic began. Among other things, the court barred Wisconsin from counting mail-in ballots postmarked after April’s primary Election Day, required Alabamians and South Carolinians to find witnesses for their mail-in ballots, and stopped Idaho from accepting digital signatures for ballot initiatives. Just this past week, the court also held that Wisconsin can’t tally mail-in ballots returned after the general election on Tuesday, while North Carolina and Pennsylvania can (for now). But the court didn’t have to resolve any of these voting disputes. And it shouldn’t have resolved them. By intervening so often, the Supreme Court has become a body that corrects perceived lower-court errors, not one that decides major legal issues. By stepping in without explaining its actions, it has tarnished its institutional legitimacy. And by proceeding in haste, the court has made factual and legal mistakes — bad, not just unnecessary, law. All the recent electoral cases have deviated from the court’s normal procedure, the one used for its regular “merits” docket. Ordinarily, after a lower court (generally a federal appeals court or a state supreme court) has reached a final judgment, the losing party may file a certiorari petition asking the Supreme Court to hear the case. The court grants only about 1 percent of these requests. When it does, written briefing unfolds over several months, followed by an oral argument. After the argument, the court usually takes several more months to announce its decision, which is signed and reasoned, often at great length. In contrast, the cases about the 2020 election have been part of the court’s “shadow” docket. They haven’t arrived at the Supreme Court through cert petitions. Instead, their vehicles have been emergency applications filed with the court before lower-court proceedings have even finished.

  • Missing From Supreme Court’s Election Cases: Reasons for Its Rulings

    October 26, 2020

    At least nine times since April, the Supreme Court has issued rulings in election disputes. Or perhaps “rulings” is too generous a word for those unsigned orders, which addressed matters as consequential as absentee voting during the pandemic in Alabama, South Carolina and Texas, and the potential disenfranchisement of hundreds of thousands of people with felony convictions in Florida. Most of the orders, issued on what scholars call the court’s “shadow docket,” did not bother to supply even a whisper of reasoning. “This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” said Nicholas Stephanopoulos, a law professor at Harvard. “If courts don’t have to defend their decisions, then they’re just acts of will, of power. They’re not even pretending to be legal decisions.” The orders were responses to emergency applications, and they were issued quickly, without full briefing or oral arguments (hence the “shadow docket”)...More recently, emergency applications in voting cases have spiked. Lower courts have struggled to make sense of the court’s orders, which are something less than precedents but nonetheless cannot be ignored by responsible judges. Is it possible to trace some themes in the court’s election orders? Sure. One is that Republicans tend to win. Another, as Justice Brett M. Kavanaugh wrote in a concurring opinion this month, speaking only for himself, is that “federal courts ordinarily should not alter state election rules in the period close to an election.” He cited the 2006 ruling that has come to stand for that proposition, Purcell v. Gonzalez. Or perhaps “ruling” is too generous a word, as Purcell itself was an unsigned, cryptic, tentative and equivocal product of the court’s shadow docket. It has given rise to a “shadow doctrine,” Professor Stephanopoulos wrote last month in an essayon Take Care, a legal blog.

  • Trump’s ballot fraud allegations embellished and not widespread: Experts

    October 21, 2020

    President Donald Trump has made the possibility of widespread voter fraud -- an unsubstantiated assertion that even members of law enforcement in his administration have not supported -- a centerpiece of his reelection campaign. Out on the campaign trail, Trump has repeatedly described ballot irregularities to illustrate what he said is a grave risk of election fraud during the COVID pandemic, when record numbers are turning to mail-in ballots. He even suggested that if he does not win the election, the contest is "rigged." But records and interviews with parties involved in the episodes Trump has cited show he has taken small, often innocuous events and exaggerated or embellished them to fit his narrative. Trump made similar unsubstantiated claims about widespread fraud in 2016, claiming millions had voted illegally, but his election integrity commission shut down without finding evidence of that...Election officials in Democrat and Republican states alike have been clear that they have confidence in their election process, and experts agree that the risk of fraud is very low. Nicholas Stephanopoulos, an expert on election law and constitutional law and a professor at Harvard Law School, said “all available evidence indicates that mail-in voting in the United States is safe and secure. In states that use mail-in voting, there are infinitesimal rates of problems. More importantly, in these states, there are more people who vote; turnout is higher and so democracy is more robust.”

  • illustration of a ballot box on fire

    An Election for the History Books?

    October 15, 2020

    Harvard professors place the 2020 presidential race in historical context and consider its impact on our future.

  • At least 33 states will ask voters to wear masks at polling stations

    October 2, 2020

    For Frances Smylie Brown, the upcoming presidential election will mark the fifth time she has worked the polls as an election judge in Denver. But with the novel coronavirus still lurking, she knows that this experience will be like no other. Preparations include a raft of increased safety protocols at polling sites, such as separating voters and judges with plexiglass separators, spacing outlines and disinfecting surfaces...Like Brown, election officials around the country are gearing up for the unique challenges of opening polling places during a global pandemic. Out of the 12 states ABC News did not receive information from, seven have a state-wide mask mandate in place. And 33 -- plus Washington, D.C. -- of the 39 states reached out to by ABC News confirmed that they plan to require or strongly recommend voters to wear face coverings. For them, one of the thorniest challenges has been figuring out what to do with voters who refuse...Some don't agree that election officials are out of line when asking voters to mask up. Nicholas Stephanopoulos, an expert on election law and constitutional law and a professor at Harvard Law School, told ABC News he did not think it would be unconstitutional to turn away a voter who refused. "For challenges like these, the law asks how heavy is the policy's burden on voting?" he said. "Here, the burden on voting is trivial; it's perfectly easy to cast a ballot while wearing a mask."

  • Trump will almost certainly challenge the results if he loses — here’s how that could play out

    August 17, 2020

    As he did in 2016, Donald Trump is constantly claiming that if he loses in November it will be proof that the vote was rigged against him. He tweets regularly, contrary to the available evidence, that mail-in voting will lead to massive amounts of voter fraud when such fraud hasn’t been a significant problem in any presidential election in modern history. Because Trump seems unlikely to accept the results of the vote if he loses, there is widespread speculation that Trump’s will litigate every ballot it can. But Jessica Levinson, a law professor at Loyola Marymount University, tells AlterNet that the Trump campaign might not have to file a challenge itself, as his supporters might claim that they had been disenfranchised by some sort of fictitious scheme to “rig” the vote...And Nicholas Stephanopoulos, a law professor at Harvard University, tells AlterNet that he can imagine a scenario where the Democrats are the ones suing over election results. “One bad scenario is that a swing state’s election is close and that many mail-in ballots — enough to maybe change the result of the election — arrive too late to be counted because of deliberate delays by the post office,” Stephanopoulos says. “The disadvantaged side (probably Democrats) would then sue, arguing that the mail-in voters’ right to vote was burdened by the post office delays and by the state’s policy of not counting late-arrived ballots.” Stephanopoulos says he expects that the current Supreme Court would be “hostile to this claim despite its normative appeal.” He says the Court has never ruled in favor of a voting rights plaintiff, and it “would be unlikely to start when its decision might benefit a Democrat and when it could plausibly deny the claim.”

  • The Politics We Don’t See Matter as Much as Those We Do

    August 12, 2020

    Some of the most important developments in politics do not happen every election cycle, but every ten years, when politicians scrap the old battleground map and struggle to replace it with a new one more favorable to their interests. Steven Hill, a former fellow at New America, described how this works in his still pertinent 2003 book “Fixing Elections: The Failure of America’s Winner Take All Politics.” ...Hill was referring to “the process of redistricting” that he argued was legalized “theft” engaged in by “the two major political parties, their incumbents, and their consultants,” which Hill said was “part of the everyday give-and-take (mostly take) of America’s winner-take-all politics.” Hill first made his argument at a time when both parties were still colluding in developing new districts designed to protect incumbents, Republicans and Democrats alike. Since then, the parties have abandoned any semblance of bipartisanship and are now fully engaged in an all-out battle for control of state legislatures...In addition to creating wasted votes — thus undermining a key principle of democracy — an additional consequence of gerrymandering is what Nicholas Stephanopoulos of Harvard Law School calls “representational distortion”: the adoption of policies that do not have majority support in the electorate. Stephanopoulos, the author of the 2018 paper “The Causes and Consequences of Gerrymandering,” described “one glaring example,” in an email: "Democrats got more votes than Republicans in the 2012 and 2018 Wisconsin state legislative elections. So in a world without gerrymandering, Democrats would have been able to block all kinds of conservative policies between 2012 and 2014, including environmental deregulation, tax cuts, abortion restrictions, gun deregulation, etc." Instead, Republican majorities in both branches of the Wisconsin legislature enacted all of those policies, as well as a package of anti-union measures.

  • Iluustration of people six feet apart mailing in a vote

    When Voting Is a Risky Choice

    August 4, 2020

    The November 2020 general election was shaping up to be one of the most highly anticipated, nerve-wracking and deeply contested elections in American history, with most onlookers expecting record-breaking voter turnout. Then a pandemic hit.

  • A big election amid pandemic in a riven land

    July 20, 2020

    State election officials are bracing for two trains on a possible collision course this fall: potential record turnout for the Nov. 3 general election, and an expected surge of the highly contagious and sometimes deadly COVID-19...Though the federal government can provide money and offer assistance, states control every aspect of voting except the date of Election Day, such as how elections are run, how and when voter registration takes place, the methods used to cast votes, what ballots look like, and how close races are handled. That local control comes with a price. “The core problem with the U.S. is you don’t have a single expert federal authority that runs elections that could have lots of resources, lots of expertise. You have 50 political secretaries of state; you have thousands of counties, all of which administer their own elections, and so, you’re never going to have uniform improvement or uniform competence when you have such a decentralized electoral system,” said Professor Nicholas Stephanopoulos, an election law expert at Harvard Law School...The case Stephanopoulos said he’s most closely watching is one filed by the Republican National Committee and several affiliated organizations that seeks to bar the state of California from sending ballots to every eligible voter. State officials, including Gov. Gavin Newsom, a Democrat, say they want to avoid forcing citizens to choose between exercising their right to vote and risking their health. But Republicans, including President Trump and Attorney General William Barr, claim without evidence that mail-in voting invites fraud and makes it easier for foreign actors to interfere in elections. In June, the president said the “biggest risk” to his reelection is losing these legal fights to stop the expansion of mail-in voting.