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Elections have been rife with litigation since the Bush v. Gore fiasco in 2000, but the coronavirus pandemic has led to an explosion of lawsuits across the country. Stakeholders are clashing over how to make sure voters can safely get to the polls while ensuring election integrity through an unprecedented public health crisis that makes the mundane act of queuing up to the polls a potentially deadly risk.

Some legal scholars have raised the possibility that, like in the 2000 presidential election, the winner of this contest won't be immediately clear due to the time it will take to process and count the historic number of mail-in ballots.

But Loyola Law School, Los Angeles professor Justin Levitt,who has been tracking pandemic-related litigation over the election, said it's unlikely that there will be a repeat of the 2000 election battle between George W. Bush and Al Gore, which he called a "black swan event" that came down to 537 votes in the Sunshine State.

"We had an incredibly rare probability event," he said of the 2000 election. "The chance that it happens twice is that much more rare and the fact that we've had so much litigation so far makes it rarer still."

In recent weeks, The New York Times and other media outlets have disclosed that Biden's campaign has tapped a number of powerful Democratic attorneys to form a kind of legal phalanx to battle through what the litigation trackers call "perhaps the most litigated election season in the last two decades."

With President Donald Trump counting onhis own star legal teamheading into Election Day andbeyond, Law360 looks at some of the key attorneys, firms and groups working for the 2020 Biden campaign.

Dana Remus

Despite rising in the Democratic firmament, Remus also has worked closely with conservative jurists. The Yale Law School graduate clerked for U.S. Supreme Court Justice Samuel Alito Jr. and co-taught with Sen. Mike Lee, R-Utah, a class in Duke University School of Law's 2019 D.C. Summer Institute on Law and Policy, a program for undergraduates and working professionals considering law school.

She also clerked for Judge Anthony J. Scirica of the U.S. Court of Appeals for the Third Circuit and was an associate at Cravath Swaine & Moore LLP.

A major concern for Remus will be fending off Republican challenges to alternative voting methods, such as mail-in ballots or curbside voting, as a response to the risks that the coronavirus poses to in-person voting. Trump has called such methods a "scam" designed to help Biden.

The issue has already reached the U.S. Supreme Court. This past week, the justices blocked a deadline extension for mail-in ballots in Wisconsin, while upholding extensions in Pennsylvania and North Carolina. But the litigation is far from over, and Republicans are likely to ask the court to throw out ballots received after Election Day in certain battleground states.

Robert Bauer

Bauer has been a fierce critic of the Trump administration, attacking current White House Counsel Pat Cipollone for his "remarkably partisan performance" during Trump's impeachment trial, as well as the "counterfeit product" of Trump's now-shuttered voter fraud task force. At the start of state lockdowns in March, Bauer called for increased mail-in ballots and $2 billion in congressional funding for state election preparation.

Biden has lined up a top-flight team to wage the likely state-by-state legal fights of local voting and counting rules led by Marc Elias of Perkins Coie LLP, the top lawyer on Hillary Clinton's 2016 campaign, and Obama's former attorney general, Eric Holder, The Associated Press has said. In assembling a robust legal team ahead of the election, Biden is likely trying to avoid the last-minute rush to the courthouse that followed the 2000 election, when litigation broke out in Florida over a recount.

Marc EliasPerkins Coie LLP

Marc Elias

Eric Holder

The special unit overseeing the litigation at the state level may already have the heavy lifting behind it. The hundreds of lawsuits filed around the country since the pandemic started will actually make it less likely that the U.S. Supreme Court, or any other court, will be forced to declare a winner like it did in 2000.

"Those cases got resolved in June, July, August and September, and so that means there's less to fight about in October and November," said Loyola's Levitt. "The big questions about how most Americans are going to cast or count ballots those are already decided."

So even if the winner isn't clear on election night, that doesn't mean there's reason to panic, Levitt said. It will simply be up to the "far more democratic, far more boring" exercise of officials counting ballots, rather than explosive litigation. "I have no doubt that there will be litigation after the election, but I have real doubts about how much of that will be meaningful."

Nevertheless, if the election winds up in the Supreme Court, Democrats fear a repeat of the 2000 Bush v. Gore decision in which a conservative majority ended the Florida recount and effectively sealed the presidency for Bush.

To prepare, Biden's campaign has organized a "national litigation team" consisting of former U.S. Solicitors General Walter Dellinger, now a professor emeritus at Duke University School of Law, and Donald Verrilli of Munger Tolles & Olson LLP, according to the AP. Dellinger and Verrilli served as the government's top Supreme Court lawyers for the Clinton and Obama administrations, respectively.

"In 2000, we were not in the habit of having litigation over national elections," said Barry Richard of Greenberg Traurig LLP, who led the Florida legal efforts for President George W. Bush's campaign. "We didn't have a history of that."

As Bush's top lawyer in Florida in 2000, Richard oversaw 47 lawsuits across the state in the frantic litigation over the recount. "Everything was operating at light speed," Richard said. "You could be in the trial court and the appellate court a few hours later."

Campaigns have learned the lessons of Bush v. Gore and now "everybody has lawyers on call all the time," Richard said.

"I'm sure what they're doing right now is having teams of lawyers studying the issues that are currently arising and likely to arise," he said. "There are probably people even preparing rough drafts of briefing right now, and that's what they should be doing."

Walter Dellinger

Since then, Dellinger has appeared before the Supreme Court numerous times in his private practice. He clerked for Justice Hugo Black during the 1968 term.

Before becoming Clinton's acting solicitor general, he was an assistant attorney general and head of the Office of Legal Counsel in his administration, where he advised on "loan guarantees for Mexico, on national debt ceiling issues, and on issues arising out of the shutdown of the federal government," according to his law school profile.

Donald Verrilli

Since joining his current firm after his government service, his appearances before the Supreme Court include the successful defense of the constitutionality of Puerto Rico's Financial Oversight and Management Board.

Verrilli is the lead attorney for the Democratic Party in a blockbuster case pending before the Supreme Court about whether Pennsylvania can count mail-in ballots received up to three days after the election. Republicans asked the court to strike down the extension and have the battleground state throw out ballots received after Election Day.

Should election disputes move from state to federal courts, Dellinger and Verrilli will likely lead the Biden team as appeals wind their way to the Supreme Court.

Levitt, however, said earlier rounds of litigation this summer may have dampened the chances that the Supreme Court will ultimately decide who won the election.

Chief Justice John Roberts and Justice Brett Kavanaugh were part of the Republican legal team supporting Bush in the fight, as was Justice Amy Coney Barrett, who was confirmed Oct. 26.

During her confirmation hearings, Justice Barrett refused to say whether she would recuse in an election case, saying that would be "short-circuiting" the normal recusal process.

Levitt said Biden's and Trump's legal teams are likely preparing for such a scenario, however unlikely.

"I think the legal teams are preparing for exceedingly unlikely contingencies, much like the Department of Defense has all kinds of playbooks, all kinds of military plans, for all types of contingencies, even those that never happen."

The Biden campaign did not return a request for comment from Law360 on its legal defense operations.

--Editing by Orlando Lorenzo.

--Update: This story has been updated to adjust Walter Dellinger's affiliation.

For a reprint of this article, please contact reprints@law360.com.

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The Legal Heavyweights In The Ring For Joe Biden - Law360

Though the Voting Rights Act of 1965 helped ensure the voting rights of citizens, many of the following tactics remain in play in attempts to influence elections at the local, state and national levels:

Voter ID laws: Indiana is among states that require voters to prove who they are. Critics of this practice say it discourages many people from voting. Thats because they may not have money to obtain identification or transportation to a Bureau of Motor Vehicles site.

Polling site consolidation: This tactic disproportionately prevents people of color from voting because it can require them to travel farther, a problem when voters dont have transportation. In some instances, this is overcome when organizations are able to provide group transportation to the polls.

The NAACP filed an unsuccessful suit in Indiana in 2017 because of a consolidation law that applied only to Lake County, which has the states second-largest Black population and largest Hispanic population.

Poll taxes: Begun in the 1890s, poll taxes were specifically designed to prevent African Americans from voting in southern states. Poor white people who could prove that their ancestors voted prior to the Civil War were exempt.

Though poll taxes have been enacted historically in many nations, they were outlawed at the federal level in 1964 when Congress passed the 24th Amendment. Five states continued to enforce poll taxes until the U.S. Supreme Court ruled them unconstitutional in 1966.

Critics have accused government officials in Florida of levying unlawful poll taxes as recently as this year by requiring ex-felons to pay back fees before they are allowed to vote.

Literacy tests: Starting in the 1890s, many southern states administered literacy tests, one of the specific types of voter suppression the Voting Rights Act of 1965 was designed to eliminate.

The U.S. had been one of several nations, including Australia with its White Australia policy and South Africa with Apartheid during that same period, that required voters to pass reading and writing tests. Such exams were a way of excluding voters because of race or nation of origin.

As with poll taxes, white people often could be exempted from the requirement through the voting records of their ancestors or a finding of good moral character.

Gerrymandering: This is a manipulation of electoral districts to unfairly favor a particular party or class of people.

Gerrymandering is still considered a problem for minority voters today and is still practiced by the Indiana General Assembly, where the party in power draws congressional and legislative districts every 10 years.

Former President Barack Obama and his former U.S. attorney general, Eric Holder, are dedicated to promoting the 28th Amendment, which would reform the redistricting process.

We are making critical coverage of the coronavirus available for free. Please consider subscribing so we can continue to bring you the latest news and information on this developing story.

Follow Rebecca R. Bibbs on Twitter at @RebeccaB_THB, or call 765-640-4883.

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Types of voter suppression | State News | heraldbulletin.com - The Herald Bulletin

Share This Article:By Joe Nalven

Throughout history we find deceptions that have lulled us into thinking they were true. All that is required is a Pied Piper with a fanciful narrative and gullible listeners.

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Here are several deceptions over the past century.

The Soviet Potemkin Villages were constructed in the early 1930s to put a false face on the famine of Ukrainians. The New York Times reporter, Walter Duranty, won a Pulitzer Prize for buying into the Soviet deception. The New York Times offered an apology in 2003.

The Nazis misled the International Red Cross in beautifying the Terezin concentration camp (Theresienstadt Ghetto) in 1944. Once the Red Cross observers left this mirage, the Germans returned to deportations to Auschwitz, Majdanek, and Treblinka.

Rigoberta Mench, a Quiche Guatemalan, won the Nobel Peace Prize in 1992 for advocating for the rights of the indigenous. When her facts about the conflicts she described proved to be significantly inaccurate, the Nobel Prize committee, nevertheless, declined to void the prize. After all, she was a human rights activist waging the war for social justice. Those in her defense argued that the narrative of oppression was more important than the facts of oppression.

And perhaps the most pernicious of all, The Protocols of the Elders of Zion. This fabrication by Russian state police in the 1890s served as a catalyst for antisemitism. The London Times exposed The Protocols in 1921 as plagiarizing a French political satire, Dialogue in Hell between Machiavelli and Montesquieu. The original 1864 satire never mentioned Jews, but the Russian deception persuaded the gullible for many decades, joining a series of long-lived anti-semitic tropes.

And now, the movie What Killed Michael Brown? explores a deception hypnotizing many who protest. This deception takes race relations in America in the wrong direction. That deception is hands up, dont shoot. The Washington Post gave it four Pinocchios in its fact-checking.

We know that it is a deception because President Obamas Attorney General Eric Holder investigated the shooting of Michael Brown and declined to bring any civil rights charges against Darren Wilson, the police officer who shot Michael Brown: Michael Browns death, though a tragedy, did not involve prosecutable conduct on the part of Officer Wilson.

Credible witnesses and forensic analysis led to the conclusion that Brown was not shot in the back; that Brown charged at the officer; that Browns DNA was on the officers collar. Holder concurred with his offices decision as representing the sound, considered and independent judgment of the expert career prosecutors.

The movie, What Killed Michael Brown, recounts the facts and the myths that surround Browns death in Ferguson, Missouri, in August 2014. Shelby Steele, steeped in the history of social change for blacks in America, wrote and narrated the film. His son, Eli Steele, directed the movie.

Shelby Steele explains how those who advocate for social justice with hands up, dont shoot seek a poetic truth one that is not grounded in evidence, but a deception that demands us to conflate the present with past persecution. Those who wave the flag of poetic truth appear to be interested more in power rather than actually working on the communitys social issues.

Still, the fact is that many believe this deception. Poetic truth offers an attractive delusion. But instead of taking us into palpable change for blacks in America, it has, instead, deepened the divide on race relations and made it difficult to find a path to reforming current and past injustices.

Thats where Eli and Shelby Steeles powerful movie enters the discussion.

Anyone who pretends to want to repair race relations in America, anyone who pretends to repair the world, anyone who wants justice needs to see this movie.

Why this movie? The killing of a black man is not a new event. Shelby Steele himself filmed an earlier movie, Seven Days in Bensonhurst about the murder of Yusuf Hawkins. Yusuf was ambushed and killed in 1989 by white youths. They were tried and went to jail.

But is the killing of Michael Brown a repeat of Yusuf Hawkins? Or are we seeing something different? Do we rely on a persistent narrative of whites killing blacks or do we need to look at the facts of each event? Do we need to explore the history and context of Michael Brown to find out what else is responsible for killing him?

The Steeles present a multi-layered examination of blacks in America from the decade before the War on Poverty. The movie steers the viewer away from power and exploitation of Browns killing to the underlying factors driving the gullibility of those who feel required to believe the deception.

The movie takes us to East Saint Louis about 12 miles from Ferguson. Shelby Steele had worked there in a War on Poverty program. Wasnt this the justice work that needed to be done to repair poverty? But looking around, one area of the black community was demolished to make way for an imagined penthouse for the poor the Pruitt-Igoe projects. Built in the 1950s as a liberal promise to poverty, but then demolished in the 1970s as having failed that promise.

This imagined solution to poverty, arising from liberal aspirations, destroyed a community where blacks owned a majority of the housing. This was what outsiders saw a snapshot of poverty. They had good intentions.

Mayor Joseph Darst said in 1951, We must rebuild, open up and clean up the hearts of our cities. The fact that slums were created with all the intrinsic evils was everybodys fault. Now it is everybodys responsibility to repair the damage.

The reality was otherwise to the community that had been destroyed.

We return to Ferguson. The whites who lived there resisted white flight; they stayed and embraced social change away from racism. But they were caught off-guard by the explosion of violence that followed Michael Browns killing. So, too, were the Pakistani owners of the Ferguson Market where Michael Brown was caught on video and alerted the police. The owners offered to comply with the demands of protesters to help but were then asked to turn over their market. They were told they didnt belong.

They were Pakistanis they were immigrants. The movie tracks the craziness they emerged from Browns killing. Yes, the grief was notable, but the solutions were misguided.

The puzzle seems overwhelming. How does one move forward from this kaleidoscope of racial, immigrant, class, residents and outside agitators? The Steeles turn to individual transformation both by way of local clergy and individual responsibility. The individuals need to own their own future and not rely on liberals, especially guilt-ridden whites, to do the heavy lifting. The social entitlement programs such as Pruitt-Igoe projects, affirmative action and diversity programs give whites the illusion of moral legitimacy, a feeling of racial innocence, but fail to help the black underclass.

Why? Shelby Steele zeros in on that part of the solution often lacking among the media, elected officials and social commentators. Black individuals are robbed of agency, of being able to find solutions tailored to their situation, and instead forever dependent on whites to solve whatever problem for them. Shelby Steele sees liberals reliant on an ideology of white innocence (read: Im not a racist, let me help), and requiring blacks to be blacks and not just human beings.

From Steeles perspective, racism is not Americas original sin; it is used as a means to power. The original civil rights movement was one of good-faith, of wanting to become part of America; some of the current protests are a bad faith movement, wanting to destroy America, wanting to destroy the nuclear family, wanting to destroy capitalism.

The move is available on https://whatkilledmichaelbrown.com/. Go see it. Test yourself with the Steeles adventure into American history, the deceptions and the facts, and a possible path forward.

But I wonder how many of us are among the gullible. I wondered if Eli Steele had a different audience in mind than the readers of this movie review. I asked Eli, and I was surprised, though I shouldnt have been: Great question. We made this movie with black teens in mind. They need to know their history in its full complexity. That allows for a solid foundation to move forward.

Joe Nalven is a former associate director of theInstitute for Regional Studies of the Californiasat San Diego State University.

Opinion: What Killed Michael Brown? A Controversial Movie About Truth and Lies was last modified: October 24th, 2020 by Editor

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Opinion: What Killed Michael Brown? A Controversial Movie About Truth and Lies - Times of San Diego

Shelby Steeles new documentary, What Killed Michael Brown?, ostensibly focuses on the tragic case of a black teenager killed by a white officer in Ferguson, Mo., in 2014. But what it tells us about cultural mythshow they develop and whygoes far beyond a single flashpoint.

A widespread inaccuracy about the Brown shooting is that he had his hands up and said Dont shoot just before he died. Its one of several myths that Steele, a Hoover Institution fellow at Stanford University and long-respected race scholar, calls poetic truth. People believe cultural myths, he says, not because they have examined evidence and found it credible but because they align with narratives theyve already bought into. They feel true. In Steeles illustration, the poetic truth is that systemic racism in the Ferguson Police Department created the environment that led to Browns death.

While President Barack Obamas attorney general, Eric Holder, found no evidence Officer Darren Wilson was motivated by race, he argued that because black people made up only 67 percent of Fergusons population but represented 85 percent of traffic stops, it was clear the police department was guilty of widespread bias. Fergusons mayor had another explanation: While the city may be two-thirds black, the racial makeup of the surrounding -communities is 90 to 95 percent black. People from all over this area come to Sams because there are no grocery stores, no Walmarts, nothing in North St. Louis City, and every one of those people come to Ferguson to shop, the mayor says. Statistically, who do you think is driving down those roads?

Steele says the danger in favoring poetic truth over objective truth (or, broad theories over specific details) is that it traps us into solving the wrong problems. For Christian viewers, its especially valuable how he lays out his thesis through two different churches.

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Truth and myth in Ferguson | WORLD News Group - WORLD News Group

Gorrell is an advocate for the deaf, a former Republican Party election statistician, and a longtime congressional aide. He has been advocating against partisan gerrymandering for four decades.

I got a jolt of optimism in late September when someone alerted me to a four-minute video posted by the progressive news organization NowThis News.

There was former President Barack Obama, urging his fans to vote for state legislative candidates committed to doing the right thing when redrawing the nation's congressional and legislative lines next year. "Those maps will stand for 10 years," he reminded viewers. "That could mean a decade of fairly drawn districts where folks have an equal voice in their government, or it could mean a decade of unfair partisan gerrymandering."

Could this mean that, after all these years, that Obama had become a genuine anti-gerrymanderer? It was thrilling to think about, but soon enough I was reminded of all the other ways he's been more of an invisible gerrymanderer.

His personal relationship to the practice dates back two decades, to his days as an ambitious young Illinois legislator.

Having recently won his first re-election to the state Senate, Obama was in position to get what he wanted when the General Assembly redrew its own districts in 2001. And so he did. With the assistance of Democratic consultant John Corrigan, the contours of Obama's 13th District were shifted northward to assure that some of Chicago's wealthiest citizens would become part of his financial and political base.

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The Democratic coalition Obama wanted to build wealthier, whiter, less blue-collar and better-educated allowed him to sharpen the campaign message that helped him move from the Senate in Springfield to the Senate in Washington, and then onto the presidency.

At the same time, however, the forces of partisan gerrymandering were being used against him. Obama had been trounced in 2000 when he challenged Rep. Bobby Rush in the Democratic primary, but the congressman wanted to make sure his young rival did not set his eyes on a rematch. And so, with the help of venerable political mapmaker Kimball Brace, Rush persuaded his friends in Springfield to tinker ever so slightly with the boundaries of the 1st Congressional District so the lines ran one block to the north, two blocks to the west and one block to the south of Obama's residence.

"There is a conflict of interest built into the process," he told the weekly newspaper in his Hyde Park neighborhood that summer. "Incumbents drawing their own maps will inevitably try to advantage themselves."

It was a message he resurrected 15 years later, in his final State of the Union address. "We have to end the practice of drawing our congressional districts so that politicians can pick their voters, and not the other way around," Obama told Congress in January 2016. "Let a bipartisan group do it."

And yet, he spent none of his presidential political capital trying to advance the cause of bipartisan, let alone nonpartisan, mapmaking. He did not act when it mattered most in his first two years, when fellow Democrats controlled the House and Senate. At the time, it seemed their party would do well enough in the 2010 midterms to dominate redistricting for the decade now coming to an end.

It turned out the opposite way. A Republican wave that year (fueled in part by fundraising for something called the Redistricting Majority Project) resulted in all-GOP state governments getting to draw almost half the 435 congressional districts the next year while all-Democratic governments drew about 50.

Freed from his presidential duties, and the NowThis video notwithstanding, Obama has returned to his gerrymandering ways. With his former attorney general, Eric Holder, he's captaining the National Democratic Redistricting Committee.

While working to portray itself as out to combat partisan gerrymandering, the opposite is plainly true. Its website describes the NDRC as "the centralized hub for executing a comprehensive redistricting strategy that shifts the redistricting power, creating fair districts where Democrats can compete." Its IRS filings say the organization's purpose is to "build a comprehensive plan to favorably position Democrats for the redistricting process through 2022."

Obama's video does not mention his past support for redistricting commissions. He has not spoken out in favor of the one measure on the ballot next month, in Virginia, that would make nonpartisan citizens central players in the remapping for the next decade. He has not offered a kind word about the ad hoc citizen panel convened by Gov. Tony Evers, a fellow Democrat, to pressure the GOP majority in the Wisconsin Legislature.

Most recently notable, he did not mention redistricting reform as one of the cures for democracy's problems he rattled off Wednesday during a stemwinder at a drive-in pep rally Philadelphia, his debut as a Joe Biden campaign surrogate.

So don't be fooled by the video. Obama has evolved in the past 20 years, from the target of a partisan gerrymander into the invisible gerrymanderer.

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Deeds, not words, show Obama is not the reformer he's sounding like - The Fulcrum