Nicholas Stephanopoulos

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 At latest count, at least several dozen cases have been rejected in court or withdrawn.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.”

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."

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.”

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.

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.

An article by Nicholas Stephanopoulos: Until recently, litigation about voting during the COVID-19 crisis followed a predictable pattern. Voters would complain about states’ restrictive regulations, conservatives would rush to the laws’ defense, and courts would referee the disputes. Powerhouse right-wing lawyers, however, have now opened a troubling new front in the voting wars. They now claim that it’s unconstitutional for states to make it easier to vote while the pandemic rages. Relaxations of voting rules supposedly give rise to fraudulent votes that impermissibly dilute the ballots cast by law-abiding citizens. This novel argument should—but probably won’t—be laughed out of court. As it spreads across the country, it threatens to put states in an impossible position: exposed to liability not just if they ignore, but also if they try to alleviate, the pandemic’s effects on the electoral process. Before this new breed of cases began appearing, most suits about voting during the pandemic had the same setup. Some existing electoral regulation—an eligibility limit for voting absentee, say, or a requirement that mail-in ballots be notarized—would prevent certain people from voting. So they would go to court alleging an excessive burden on their constitutionally protected right to vote. In response, some state official would argue that the policy served an important interest, most often the prevention of fraud. In April, the Supreme Court decided one of the many such cases, involving the rules for absentee voting in Wisconsin’s primary election.

Despite being members of the modern world’s oldest continuous democracy, Americans aren’t great at turning up to vote. The U.S. has among the lowest voter turnout of developed democratic nations. The reasons are complex and ingrained — from institutionalized voter suppression to individual apathy and distrust in the government. And now, with the 2020 presidential election only five months away, the coronavirus pandemic has added an extraordinary new hurdle on the path to participatory citizenship. While here in the U.S. we have come to see disengagement as a birthright and disenfranchisement a feature of the system, in a number of other countries, voting is more than a right: It’s required. Some experts believe that making voting mandatory — penalizing those who don’t, or rewarding those who do — could get more U.S. voters casting ballots. And that could bring our democracy closer to being truly representative...Punitive measures for noncompliance are the most common ways of enforcing compulsory voting, but some advocates think an incentive approach has a much better chance of succeeding in the United States. Some suggest small payments or tax credits to encourage citizens, especially young and first-time voters, to register and vote. The goal of such payments would be to inculcate people into a lifelong habit of voting. “You could give somebody a $50 tax credit if they do vote, but don’t fine them for not voting,” suggested Harvard Law School professor and elections expert Nicholas Stephanopoulos. “You might not get quite as high compliance that way, but I think it’d be a lot more palatable and it would also basically negate any potential legal challenge.”

It’s hard to know what the world will look like in six months, but many states are already gearing up for the U.S. presidential election in November. In California, for instance, Governor Gavin Newsom just signed an executive order making California a mail-in state...Every state has some sort of absentee voting. Whether you’ll qualify will depend on where you’re registered. You can vote absentee in every state if you are in the military, traveling overseas or have an illness or disability you know will prevent you from getting to the polling place...Other states let you vote absentee no matter what, no excuse necessary. Five states hold mail-in elections, meaning everyone is mailed a ballot. In most states, though, you’ll need to request a ballot ahead of time to vote absentee — it won’t automatically be mailed to you...It’s possible things could change in the next few months. “We might see states revising their own laws before November,” said Nicholas Stephanopoulos, a professor of law at Harvard Law School. “There’s been some movement in that way already about making absentee voting easier in states.” ... "Vote by mail has a number of safeguards built in. The ballots are sent to registered voters. There’s then signature matching when the ballots are returned,” Stephanopoulos said. “At the same time, fraud is so darn inefficient, if you commit it at a reasonable scale, you’re going to be caught.” He points to a Republican political operative in North Carolina who was charged last year with tampering with absentee ballots. At the same time, Stephanopoulos said, the five states with regular voting by mail show no signs of substantial fraud.

President Trump’s campaign has denied he’d want to move the November election, but even if he wanted to, the president has no power over when America holds federal elections. If not the president, then who does? Congress. Unlike some constitutional language that can be widely interpreted, the founders were unambiguous about how Election Day would be chosen: Congress is charged with choosing the date, and that date must be the same for the entire country. Congress chose a date, the first Tuesday following the first Monday in November, in 1845, and it has never been changed...But haven’t lots of states changed primary election dates? This is different from primary election dates, which are set by states governed by different rules. For general elections for federal offices, states are bound by federal law. Any effort by a state to unilaterally move or cancel the November election would be unlawful, and any results of a future election would be invalid, said Nicholas Stephanopoulos, professor at Harvard Law School.

Joe Biden warned his supporters Thursday night that President Trump will try to delay the November election. “Mark my words,” the former vice president said, “I think he is gonna try to kick back the election somehow, come up with some rationale why it can’t be held.” Even if Biden is right and Trump wanted to postpone the election — Trump’s campaign flatly denied the president has any desire to do so — the president has no power over when America votes. If not the president, then who does? Congress. Unlike some constitutional language that can be widely interpreted, the founders were unambiguous about how Election Day would be chosen: Congress is charged with choosing the date, and that date must be the same for the entire country...But haven’t lots of states changed primary election dates? This is different from primary election dates, which are set by states governed by different rules. For general elections for federal offices, states are bound by federal law. Any effort by a state to unilaterally move or cancel the November election would be unlawful, and any results of a future election would be invalid, said Nicholas Stephanopoulos, professor at Harvard Law School.