Nicholas Stephanopoulos

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.

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.”

An op-ed by Nicholas Stephanopoulos: Georgia 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.

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.”

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.”

An op-ed by Jowei Chen and Nicholas Stephanopoulos: The 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 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.

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.”

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.

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.”

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.

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.

An op-ed by Nicholas Stephanopoulos: Over 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.

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.

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.”