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Chief Justice praises courts’ reactions to pandemic

WASHINGTON – National courts have responded with agility to the coronavirus pandemic, wrote Chief Justice John G. Roberts Jr. in his year-end report on the state of federal justice.

“Over the past 10 months,” he wrote, “everything has been put on deck for the courts, as our branch of government grappled with the Covid-19 pandemic.”

“The last national crisis came with the virulent epidemic of Spanish influenza in 1918, which led to the cancellation of the sessions of the Supreme Court,” he writes. “But for over a century, the courts have not had to respond to such a widespread public health emergency.”

It has been an eventful year for Chief Justice Roberts, which included presiding over President Trump’s impeachment trial, the death of Justice Ruth Bader Ginsburg, and the arrival of Justice Amy Coney Barrett. The reconfigured court is a work in progress, but the addition of Judge Barrett will almost certainly diminish the power of the Chief Justice, as his vote is no longer crucial when judges are divided along ideological lines.

In response to the pandemic, the Supreme Court postponed arguments scheduled for March and April and embarked on a daring experiment in May, hearing arguments over the phone and letting the public listen, the first two. The court has now heard some 40 arguments in the new format. Despite the occasional glitch, including what certainly looked like a toilet with flushing, the procedure was orderly and dignified, even if at times stilted and inert.

Judges ask questions one at a time, in order of seniority, a stark contrast to the free-for-all that greeted the arguing lawyers in the courtroom. “We look like ‘Family Feud’,” Judge Thomas told a bar group, explaining why he very rarely asked questions from the bench. On the phone, however, Judge Thomas is an active participant.

Chief Justice Roberts wrote that the new format made the court function. “While we look forward to returning to normal sessions in our courtroom,” the Chief Justice wrote, “we were able to stay on top of our work.”

By some measures, however, the court’s workload is decreasing. An appendix to the chief justice’s report says the court issued just 53 signed opinions in cases debated during the period ending in July. This is the smallest number since the 1860s. The current term seems poised to convey an equally small number of opinions.

During the Spanish flu epidemic, which ended in 1918, the court ruled on 163 cases, more than three times as many as the current court.

Chief Justice Roberts wrote that the adjustments made by the Supreme Court and appellate courts were relatively minor. “The biggest challenge was faced by the ‘first to fight’ in the family of judges – the trial courts and their staff,” he wrote.

“In April, judges across the country were guiding the core functions of the courts from their headquarters – or kitchen tables,” he wrote. “Hearings of all kinds have become virtual. Judges quickly (or at least eventually) learned to use a wide variety of audio and video conferencing tools available. “

Jury trials have posed particular challenges, he wrote, calling them “the foundation of fairness in our justice system.” The jury boxes have been reconfigured, Plexiglas and air filters added and contact tracing plans deployed.

“Judges across the country are reporting that where jury trials have resumed, responses to jury summons have met or exceeded their high hopes for the public’s willingness to participate in the justice system in these very difficult times,” wrote the chief justice.

The courts have also been creative in other ways, he wrote.

“District judges have the privilege of performing naturalization ceremonies and welcoming new citizens,” he wrote. “But the coronavirus has made it difficult to conduct traditional ceremonies at the courthouse safely. The judges in Michigan and Florida therefore carried out naturalizations while driving. Others, in Iowa and Minnesota, have moved the ceremonies outside. They were borrowing a practice from a century ago, when San Francisco courts held proceedings outside during the Spanish flu pandemic.

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Video: New York attorney general asks courts to take action against Facebook

new video loaded: New York attorney general asks courts to take action against Facebook

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New York attorney general asks courts to take action against Facebook

New York Attorney General Letitia James, who led the multi-state Facebook investigation, on Wednesday called on courts to prevent the company from behaving in an “anti-competitive” manner to protect small businesses.

Facebook has spent its time monitoring and profiting from users’ personal information. No business – no business should have so much unchecked power over our personal information and social interactions. And that is why we are taking action today and standing up for the millions of consumers and many small businesses who have been harmed by Facebook’s illegal behavior. We therefore ask the court to put an end to Facebook’s anti-competitive behavior and prevent the company from continuing this behavior in the future, as well as to provide any further relief it deems appropriate. By restoring competition, our legal action will help consumers have alternatives to Facebook and vote with their feet. Today, we send a clear and strong message to Facebook and all other businesses that all efforts to stifle competition and hurt small businesses, reduce innovation and creativity, or cut costly protections – privacy protections – will be satisfied with all the strength of our offices. .

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Where the electoral struggle takes place in the courts

As Joseph R. Biden Jr. draws closer to victory in the presidential race, President Trump and the Republican Party have stepped up their efforts to stop the counting of the ballots and challenge the ballots of Democratic voters in the framework of legal proceedings across the country.

Nearly a dozen lawsuits were already pending in courts in Nevada, Pennsylvania, Michigan and Georgia, four key states where Mr. Biden leads or has won the vote count.

But none of them seem – at least not yet – to provide Mr. Trump with what he would need to win: the rejection of a sufficient number of Democratic ballots in enough states to nullify any Biden victory. .

If Mr. Trump and the Republicans fail to find those rejections in court, they could – and will try – to do so through recounts, but the bar is raised there, too.

Here are the cases currently underway or subject to a potential appeal. All were initiated by Mr. Trump, his party or his allies.

Status: at the Supreme Court of the United States

In September, the Pennsylvania Supreme Court ruled that election officials could accept ballots that were postmarked on election day but arrived up to three days later. The Republicans then sued and the case went to the United States Supreme Court.

But in late October, the Supreme Court refused to intercede, saying it was too close to election day to make such a decision, but left open the possibility of a decision at a later date.

On Wednesday, the Trump campaign filed a motion to intervene in the case, and on Friday the Pennsylvania Republican Party sought to join the effort.

But that fight could turn out to be fruitless, as Mr Biden’s advance in the state is based on ballots issued on Election Day and is expected to increase. Pennsylvania Secretary of State Kathy Boockvar said Thursday that there were not a large number of late ballots. Friday evening, no follow-up had been given to this case.

Status: pending in state court and resolved in federal court

On Thursday morning, a Pennsylvania state court awarded Mr. Trump a small victory. A judge ruled that election observers from the Trump campaign, who were allowed to stand 10 feet from the vote count at the Philadelphia Convention Center, could move closer, six feet away.

By the end of the day, however, advocates for the Trump campaign had filed an emergency petition in federal court claiming city election officials were not respecting the state court ruling and asking that the tally be taken. in Philadelphia be delayed.

In a hastily scheduled hearing Thursday night, however, Mr. Trump’s campaign admitted that a “non-zero number” of Republican observers had in fact turned up.

“So what’s the problem?” Asked Judge Paul S. Diamond.

The Trump campaign finally agreed to drop its demand to stop the vote count after Judge Diamond, who was appointed by President George W. Bush, allowed a total of 120 observers at the convention center – 60 for Democrats and 60 for Republicans. The Pennsylvania Supreme Court has yet to rule on the issue of observers.

Status: pending in state and federal courts

Republicans have taken legal action in federal and state courts alleging Ms Boockvar provided inappropriate advice to counties by allowing them to contact voters whose ballots were rejected due to errors so those voters could correct or “cure” their ballots or vote. provisional ballots.

Both cases focus on the votes in Montgomery County, where officials say only 98 ballots could be affected.

A federal case judge, also appointed by George W. Bush, expressed skepticism at a hearing Wednesday on the validity of the Republicans’ challenge. A decision is pending.

Status: pending in state court

The Trump campaign has also sued Ms Boockvar over her decision to extend by three days, until November 12, the deadline by which mail-in voters must submit documents confirming their identity if they vote for the first time in certain districts. It is not known how many votes this case could affect.

Status: call waiting at state level

Mr. Trump’s campaign filed a lawsuit ahead of election day to try to stop the processing of mail-in ballots in Clark County, which includes Las Vegas. The campaign alleged that county officials were not giving Republican observers adequate access to monitor the processing of mail-in ballots and that the county’s signature-matching system violated electoral equality protection laws because it was not used elsewhere in the state.

A judge rejected the Trump campaign’s request earlier this week, citing a lack of evidence. An appeals court dismissed the Republicans’ request to order an immediate end to the count, but agreed to hear arguments next week.

Republicans said on Thursday they would drop their case in exchange for a county deal to expand their observers’ access to polling counters, but Democrats refused to agree to a dismissal, so the case remains. pending. Republicans have since filed a similar lawsuit in federal court.

Status: resolved in federal court

In an effective extension of the state’s trial, two Nevada Republican House candidates filed a lawsuit on Thursday, alleging that there were “lax procedures for authenticating ballots” in Clark County and that more than 3,000 ballots had been cast by ineligible voters, including some “On behalf of deceased voters.”

The case was assigned to Judge Andrew P. Gordon, appointed by President Barack Obama, who dismissed it on Friday. The two Republican candidates who brought the case can however appeal the decision.

Status: pending in state court

It was one of the strangest election claims. Hours after the Arizona polls closed, a story ricocheted the internet saying that dozens, if not hundreds, of ballots across the state had not been counted because voters filled them with Sharpies with felt tip and not with ball point pens.

Even though cybersecurity officials from the Department of Homeland Security urged people to ignore the story, crowds came outside a polling station in Maricopa County, shouting about “SharpieGate”.

Maricopa County voter Laurie Aguilera on Wednesday filed a lawsuit with help from a conservative Indiana legal group, the Public Interest Legal Foundation, claiming that her ballot – and those of countless other people – hadn’t been read correctly by voting scanners. because she had used a Sharpie and the “ink was bleeding”. Ms Aguilera asked a judge to allow all voters who filled out their ballots with Sharpies to “cure” them.

Thursday, the Maricopa County Elections Department issued a statement saying the Sharpies were in fact “manufacturer recommended” of the vote tabulation machines the county uses. Later in the day, the state attorney general’s office issued a letter noting that the use of Sharpies in Maricopa County “did not result in deprivation of the right to vote”.

Status: Thrown by the county court

The Trump campaign filed a lawsuit in Georgia on Wednesday, claiming that a witness observed that 53 late ballots in Chatham County were not properly stored, potentially allowing them to mingle with ballots in in due course, and demanded that the counting of ballots in the county be stopped. .

But Chatham County Superior Court Judge James Bass dismissed the lawsuit Thursday, saying there was no evidence that those 53 ballots were received after the 7 p.m. deadline and that there was no evidence that county officials had broken the law.

The Trump campaign or its Republican allies did not say on Friday whether an appeal was pending.

The Trump campaign filed a lawsuit on Wednesday asking a state judge to stop the counting of the votes, alleging that his observers had been blocked from meaningful access to the counting rooms. The campaign also demanded access to surveillance footage of state ballot boxes.

A judge dismissed the lawsuit Thursday, noting that the tally was over. Mr. Biden won the state and maintains a lead of nearly 150,000 votes. But it’s not clear whether the Trump campaign will please.

Georgia: Brad Raffensperger, Secretary of State, announced on Friday that the state would conduct a recount in the presidential race, saying the results would fall within the margin of a recount. “We’re literally looking for a lower margin than a large high school,” said Gabriel Sterling, director of voting implementation in Georgia.

Wisconsin: Mr. Trump would be entitled to a recount in Wisconsin as long as the margin between him and Mr. Biden remains below 1% of the vote. Preliminary state results show Mr. Trump lags by about six-tenths of 1%.

A request for a recount cannot be made until all 72 counties in the state have submitted their results to the Wisconsin Election Commission, which is expected by November 17. The Trump campaign should pay for a statewide recount unless the margin narrows to less than one. quarter of 1 percent.

Pennsylvania: State law requires an automatic recount if the result is half a percent or less. If the margin is larger than that, Mr. Trump could still ask for a statewide recount, but he would have to pay for it.

Arizona: State law requires a recount if the margin is one-tenth of one percent or less – otherwise, it cannot be requested.

Nevada: Any candidate or campaign can request a recount within three days of the final statewide results poll, regardless of the margin. There is no automatic recount of states.

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As his reelection path narrows, Trump turns to the courts

As his political trajectory narrowed, President Trump turned Wednesday to courts and procedural maneuvers in a last ditch effort to avoid defeat in the handful of states that will decide the outcome of the hotly contested election.

The president’s campaign intervened in the Supreme Court in a case challenging Pennsylvania’s plan to count ballots received up to three days after election day. The campaign said it would also take action in Michigan to end it while continuing its demands for better access for the observers it sent to monitor election committees for signs of wrongdoing in the country. ballot counting, modeled on a similar lawsuit she was pursuing in Nevada.

On Wednesday evening, Mr Trump’s team added Georgia to its list of legal targets, asking for a court order imposing strict deadlines in Chatham County following allegations by a Republican poll observer that a small number of ineligible ballots could be counted in one place. .

In Wisconsin, which along with Michigan was called up on Wednesday for its Democratic opponent, Joseph R. Biden Jr., the president’s campaign announced it would call for a recount.

These steps marked Mr. Trump’s determination to follow through on his long-standing threats to campaign aggressively after Election Day to overturn any results not in his favor and continue his baseless claims that the result was rigged.

But it was not clear what effect any of his efforts would have. In Georgia, the trial is about 53 ballots, and another case in Pennsylvania is about less than 100.

The lawsuits appeared intended at least in part to give legal weight to a fight Mr. Trump waged widely on Twitter and amplified during an overnight appearance at the White House, where he falsely claimed to have won and claimed without evidence that his opponents were trying to steal the elections.

As the legal team began to stake their ground, campaign surrogates, aides and the president himself sought to create a public relations drumbeat to promote this theme. Mr Trump had long indicated he would make this argument in the widely anticipated event that the first leads for him on Election Day faded as a record number of mail-in ballots – disproportionately used by Democrats this year – tipped the scales in favor of Mr. Biden.

With Mr. Biden in a strong position and the tally trend in his favor, the odds of the outcome being determined in court diminished on Wednesday. But the day nonetheless had some echoes of the 2000 recount in Florida in which Al Gore unsuccessfully challenged a result that gave George W. Bush the presidency.

In a scene reminiscent of the so-called Brooks Brothers Riot protest on behalf of Mr. Bush that temporarily halted counting in Miami-Dade that year, a crush of Trump supporters stormed a counting office on Wednesday. in Detroit with cries of “Stop the count.”

But this year’s legal clashes were breaking out in multiple states and, in most cases, it was Republicans who appeared to be fighting from behind, a disadvantageous opening stance, though Trump’s aides hoped it would change. again as the counts continued. to evolve.

Throughout the day, Republicans have claimed they are only looking to make sure the recorded tally does not include votes that shouldn’t have counted, rather than repeating the president’s claims that any counting Should have stopped on election day when early and incomplete results showed him a head start.

“If we count all the legal ballots, the president wins,” Trump campaign manager Bill Stepien said on a morning conference call with reporters.

Mr Stepien took a more aggressive stance later in the day, making an unreasonable attempt to declare Mr Trump’s victory in Pennsylvania even as the count continued.

The Trump campaign sent Rudolph W. Giuliani, the president’s personal lawyer, and Eric Trump, one of his sons, to Philadelphia to make sure, as Mr. Stepien sought to present without any evidence, that ” magic pallets’ of mail ballots for Mr.. Biden did not appear suddenly and that “this margin of victory that we are certain is not stolen by Democrats and stolen by Joe Biden.”

Early Wednesday morning, Mr. Trump appeared before supporters and reporters at the White House to say, “We’re going to go to the US Supreme Court, we want all votes to stop,” a statement that drew criticism bipartite.

His campaign team went to the Supreme Court on Wednesday to file a petition to take over perhaps the most high-profile of electoral cases. In that dispute, the Pennsylvania Republicans had sought to prevent state officials from moving forward with their plan to count all postal postmarked ballots on or before November 3 for three days after the polling day. The state’s legal deadline for receiving ballots is typically 8 p.m. on polling day.

Republicans tried unsuccessfully to appeal their case against the time limit extension to the Supreme Court on two occasions, but on the second occasion, three justices – Samuel A. Alito Jr., Bret M. Kavanaugh and Clarence Thomas – did indicated that they would be willing to reconsider their arguments in the post-election day period when their most recent colleague, Justice Amy Coney Barrett, was installed in her role in court.

The court could, in theory, decide to take up the case, although this is a rare decision. And Republicans would need to gather more evidence to show they were wronged by the time limit extension before filing a new petition to initiate court.

Democrats described the Republican efforts as part of a desperate attempt to reverse a trajectory that threatened their grip on the White House.

“We are winning the election,” Biden’s senior campaign adviser Bob Bauer said on a call to reporters Wednesday, “and we will protect the election.”

He said for the Biden campaign and the Democratic Party, that meant responding to legal challenges from Mr. Trump and Republicans, wherever they occur. The national party did so on Wednesday night in another case the presidential campaign brought to Pennsylvania seeking to reject votes from citizens who had been given an opportunity to resolve issues that resulted in their mail-in ballots being rejected.

A federal judge appeared to respond to Republican claims in a related lawsuit – affecting about 93 provisional ballots in Montgomery County outside of Philadelphia – with skepticism.

“Wasn’t the legislative intention of the law we are talking about to emancipate, and not to deprive the voters?” Judge Timothy J. Savage, appointed by former President George W. Bush, called on Republican Council, Thomas Breth. The judge later reprimanded Mr. Breth for referring to “this game of denial of the right to vote”.

A state court dismissed a lawsuit asking for more access to observe the counting of the ballots.

The prosecution of the Trump campaign in Pennsylvania drew a harsh rebuke from Democrat Gov. Tom Wolf, who called the legal machinations “just plain bogus.”

“These attempts to overthrow the democratic process are simply outrageous,” Wolf said at a press conference Wednesday evening. “We will fight against every attempt to deprive voters of their voting rights.”

Across the legal effort, the Trump campaign seemed to be trying to climb an escalator at times.

He found himself in the awkward position of seeking to stop counting in some states – where he wanted to limit Mr. Biden’s ability to create more comfortable margins – even as he sought recounts in others, where he hoped to reduce Mr. Biden’s margins.

And in many cases, he was unsure whether his measures would win enough votes to fill the loopholes Mr. Biden seemed to be digging, which numbered in the thousands as opposed to the hundreds that separated Mr. Bush and Mr. Gore in Florida for 20 years. since.

“If the margin is over 1,000 votes, it’s really tough,” said Benjamin L. Ginsberg, a longtime Republican election lawyer. “If it’s less than 10,000 votes, it’s an almost unsanitary mountain.”

The Trump campaign has identified Nevada, where Mr. Biden’s margin seemed relatively slim on Wednesday night, as another battleground for the vote count. The state allows any losing candidate to request a recount.

While there is no automatic trigger in Wisconsin for a recount, any losing candidate can force one if the run stays within a percentage point. With roughly 3.2 million ballots in the state, that means any margin of around 32,000 could force a recount. On Wednesday, Mr. Biden was declared the winner in Wisconsin by a margin of about 21,000 votes.

But a prominent Republican in the state, former Gov. Scott Walker, seemed skeptical that the recount would lead to a different outcome for Mr. Trump.

“After the 2011 recount of the WI Supreme Court race, there was a swing of 300 votes,” Walker written on twitter. A 2016 recount triggered by a request from Jill Stein of the Green Party found only 131 votes. “Like I said, 20,000 is a big hurdle,” he wrote.

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Time is running out, the mail is slow and the courts keep changing the rules. What should voters do?

Just over a week into the election campaign, the Supreme Court ruled on Monday that Wisconsin election officials could not accept any ballots arriving after the polls closed on November 3.

While the decision was widely expected, it only added to confusion among voters in an electoral process made particularly difficult by the pandemic. Michigan voters faced a similar problem when an appeals court ruled that the state could not accept ballots after election day. And Pennsylvania voters remain concerned as a new challenge to extending their voting deadline has been filed in federal court.

Then there are the uncertainties as to whether the Postal Service can be counted to deliver the ballots by next Tuesday in many other states. Here are the options for those who want to make sure their vote counts.

The Postal Service sent a letter to states in August, recommending that they tell voters to send their ballots out by Tuesday, a week before election day, if they wanted to make sure they arrived at time.

The Postal Service reported that on-time delivery rates for first-class mail are well below its target in October.

According to a press release on Friday, during the week of October 10, the most recent for which data is available, the Postal Service saw on-time first-class mail delivery drop to 85.6%, or nearly from a low of 83%. during the summer peak of the pandemic in July.

Normally, the agency reports on-time delivery, defined as within two days, at rates above 95%.

Data compiled by the New York Times that tracks on-time delivery rates reveals stubbornly persistent multi-day delays throughout October, with major battlefield states including Wisconsin, Michigan, Ohio, Pennsylvania, and North Carolina face continuing problems.

Anticipating the pressure to send ballots to election commissions as quickly and efficiently as possible, the Postal Service has implemented measures to sort and expedite election-specific mail, which is often labeled and barcoded, making it easier monitoring and prioritization.

According to court filing data the agency provided during a lawsuit over operational changes that led to delays in September, the Postal Service said on-time delivery of election mail reached 97.2% to the era, even though the overall on-time delivery for first-class mail was only 84.2% then.

“It’s treated differently,” said Michael Plunkett, president of the Postal Trade Association. “They are doing things to identify it and isolate it in the network and devote resources to making sure factories are cleared of election mail on a daily basis.”

To be on the safe side, some experts recommend voters who have the option of delivering ballots directly to election officials or to collection points themselves.

“I would not be mailing a ballot under this circumstance, and I think for anyone who can, vote in person or drop it in a box,” said Paul F. Steidler, a senior researcher who studies the operations and policies of the postal service at the Lexington Institute, a research group.

If a voter has already received a ballot and can’t send it in time to make sure it arrives on polling day, a drop box is the best bet. Pennsylvania, Michigan, and Wisconsin, among others, have set up drop boxes in counties or municipalities where a voter can cast a ballot. These secure drop boxes will receive ballots until polling day and will not be subject to any mail delay. County electoral offices also accept postal ballots.

If a voter does not feel comfortable voting by mail ballot now, there are still other options.

In Wisconsin, people who have already requested a ballot but have not yet returned it can show up and vote early until November 1, or vote in person on election day. They can also vote in person if they have received their ballot but have not yet returned it by mail and do not need to present it themselves at the polls.

In Pennsylvania, voters must bring their package of mail-in ballots, including the two envelopes, to a polling station on election day and return it to be voided by election officials. After signing an affidavit guaranteeing that they have not voted by mail, voters can vote in person on the machines. Without an absent ballot, a voter will have to vote provisionally on polling day.

Voters in Michigan have a similar option to Pennsylvania, where they can take a postal ballot on election day to overturn it and then vote in person. Voters who do not have their ballot can sign an affidavit at their polling station and then vote normally.

Experts also warned voters on Monday not to turn to private carriers like UPS or FedEx to handle ballots after a photo circulated on social media showing singer Lady Gaga holding her ballot and a FedEx envelope. Some states do not accept ballots if they are delivered by a private carrier. And states generally require that voting envelopes bear a postmark, which only the Postal Service can apply.