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Friday, November 6, 2020

What would it take to send the election to the Supreme Court? - Poynter

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Covering COVID-19 is a daily Poynter briefing of story ideas about the coronavirus and other timely topics for journalists, written by senior faculty Al Tompkins. Sign up here to have it delivered to your inbox every weekday morning.

Lawsuits and allegations of fraud, predictably, have made a contentious election even more so. So far, allegations of fraud are long on allegations and short on evidence for claims such as dead people voting or non-Nevadans voting in Nevada.

In Nevada, the multi-step process of accepting, confirming and tabulating votes will take the count into the weekend. It will not be completed until Nov. 12 but there may not be enough leftover ballots to change the outcome after this weekend.

Republicans are pushing for a full-blown recount in Wisconsin. Judges in Georgia and Michigan tossed out two GOP lawsuits already.

States have various thresholds for recounts and for contesting results. You can see the state-by-state rules here.

President Donald Trump said on election night that he would sue to stop vote counting and go to the Supreme Court. What would it take to get a case in front of the newly conservative-tilting Court?

Let’s go back to 2000, when the Florida recount was in play. The case ended up in the lap of the U.S. Supreme Court when a question arose about whether a recount in just four counties was unfair to Republicans and that Florida did not have adequate laws to govern a hand recount. The Court made its ruling based on the “Equal Protection Clause” of the U.S. Constitution under the idea that a recount would harm George Bush, saying different Florida counties had different counting standards and there was no single judicial officer to oversee the recounts.

Here are the takeaways:

Courts don’t stop or start recounts because a candidate does not like the outcome. There has to be a compelling reason and some reasonable proof that something illegal happened. The Trump campaign would have to show there is something illegal about the way votes are being counted.

In Nevada, for example, the Trump campaign claimed in a federal lawsuit that ballots were being cast by dead people and by people who do not live where they claim to live. If they could prove the allegations, it is the sort of thing that could rise to a court intervention, especially if it appeared that there were enough ballots in question to make a difference to the outcome.

Trump filed lawsuits in Nevada and Pennsylvania saying the GOP needed better access for its observers to watch the vote count. But The Associated Press says its journalists have seen observers for both parties watching the count. In Pennsylvania, observers were being allowed to get within 25 feet of people counting ballots (in some cases, they were so far away they used binoculars, according to Fox News). On Thursday, the rule changed to six feet — considered to be a safe distance during the pandemic — but then Republicans said election officials moved some of the voting machines further away.

The Supreme Court would not be interested in a case unless an outcome was in question. The AP explained:

A case would have to come to the court from a state in which the outcome would determine the election’s winner, Richard Hasen, a University of California, Irvine, law professor, wrote on the Election Law blog. The difference between the candidates’ vote totals would have to be smaller than the ballots at stake in the lawsuit. …

Ohio State University election law professor Edward Foley wrote on Twitter Wednesday: “The valid votes will be counted. (The Supreme Court) would be involved only if there were votes of questionable validity that would make a difference, which might not be the case.

The quote of the day goes to Loyola (Los Angeles) Law School professor Justin Levitt, who told ProPublica, “A lawsuit without provable facts showing a statutory or constitutional violation is just a tweet with a filing fee.”

States go out of their way to try to help voters who made mistakes on their ballot get it right. That is one thing elections officials in Clark County, Nevada, tried to explain Thursday. This process is called ballot “curing.” Election coordinators try to help an eligible voter who fails to sign a ballot before mailing it, for example, to get it right and be counted.

In Nevada, the clerk’s office is supposed to contact, or try to at least, such voters and tell them how to fix the problem. Nevada is one of 18 states that require some attempt to cure ballots. In Florida, for another example, thousands of ballots would have been lost without the curing process. In 2016, something like 318,000 ballots nationwide were rejected because they were not properly signed.

You should look into how many votes your local officials were able to rescue this year. In some places, volunteer groups — including Common Cause — helped to contact voters who needed to “cure” their ballot to make it count.

Gap took a marketing shot at sending a unifying message but it is apparently too early to get along.

(Screenshot, Twitter)

Chrissy Teigen and others fired back with some sarcastic tweets:


Gap pulled the tweet an hour after posting it. Gap explained:

From the start we have been a brand that bridges the gap between individuals, cultures and generations. The intention of our social media post, that featured a red and blue hoodie, was to show the power of unity. It was just too soon for this message. We remain optimistic that our country will come together to drive positive change for all.

The blowback is symbolic of how difficult the next four years will be and how tempting it might be for those who won to poke the other side in the eye for a while. And the party out of power will have gotten enough support to claim a legitimate constituency.

Earlier this year, Psychology Today explored what it would take to unify America, or any group for that matter. The key is a feeling of “interdependence.” That is when two or more people feel their mutual fate depends on the other.

David W. Johnson, co-director of the Cooperative Learning Center at the University of Minnesota, explains the two kinds of interdependence:

Positive interdependence is the perception that a person depends on others in a way so that he or she cannot succeed unless the other persons do and vice versa. Negative interdependence is the opposite; if a person succeeds, all others fail. In order for a democracy to function, citizens must perceive positive interdependence among all citizens. Societal members have to know that they “sink or swim together.”

Today, many Americans seem to have lost the sense of positive interdependence among citizens. Many of our politicians are more concerned about dividing citizens and creating animosity among them than uniting them. In order to unify our country, widespread positive interdependence must be reestablished and reemphasized.

Interdependence can come in at least six ways. It does not take much imagination to think how these principles are vital to a business or a newsroom, too:

  1. Set goals that all Americans can agree that we need to achieve. In the past, winning a World War or fighting a Great Depression might have qualified. But even then, discrimination kept everyone from even being invited to be a full partner in the effort. Could battling the coronavirus somehow become a unified goal? It is hard to see how when government leaders cannot unite behind a central message of prevention.
  2. The country might be able to unite behind a central view of what it means to be American. Reciting the Pledge of Allegiance and singing the national anthem are ways of unifying people who, a second after the singing ends, may disagree on practically everything. But go to a sporting event and see how opposing fans still unite behind that one moment.
  3. Johnson also points to something he calls resource interdependence, in which he says “citizens realize that in order to achieve their goals they must depend on the resources of others.
  4. Reward interdependence is a fourth way of achieving unity. It means nobody gets the reward they all desire unless they all get those rewards. Some time back, I taught at a TV station where the general manager mentioned that the people in the sales department were at each other’s throats. She mentioned that the station had a competition for sales that would give the highest performer a paid vacation. What happened, predictably, is that the salespeople were undercutting each other.
  5. Task interdependence is sort of like when you had a college project that required your partner to do their part of the class project so you could do yours.
  6. Participation interdependence is sixth, but by no means the least important. It is the idea that unless we all participate in the process of making America a more just, productive and humane place, it won’t work. Without everybody’s equal participation, we won’t have the strengths and a diversity of awareness and insights that we need to achieve a goal of truly unifying, not just getting by without killing each other.

Johnson summarizes what the newly elected president and Congress and we all must do in the days ahead if — and it is a big IF — we want to work together as a country:

If leaders and citizens wish to unite the citizens of our country, they must establish competing joint goals, a mutual identity, awareness of dependence on each other’s resources, awareness that one is rewarded only when all are rewarded, divisions of labor involving all citizens, giving citizens complementary roles, and encouraging all citizens to participate in the processes of democracy. It is through ensuring such positive interdependence exists that citizens can become aware of their unity.

The Gap commercial blowback may also say something significant about how Americans see the concept of unity. Getting along with each other is not a major goal for Americans who have legitimate petitions for justice and equality that must be addressed.

As I think through what will be required of any attempt to achieve any semblance of national unity, I think of that quote often attributed to Ruth Bader Ginsburg: “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”

That will be the first step. We must realize that we have a common interdependence, and that begins with us getting our feet off each other’s neck.

I went back to read some of the stories that second-guessed polls after the 2016 election and they read quite similarly to what I am hearing and seeing now. The major themes explaining how polls failed to detect support for Donald Trump in the 2016 election included:

  • Trump supporters are less likely to answer pollsters’ questions.  There are demographics of voters who predictably do not answer polling questions and Trump’s supporters, in some ways, mirror those demographics.
  • People tell pollsters they will vote one way but actually vote another way if they think the pollster will judge them badly for telling the truth. This is called the “social desirability index.” Because of this, women and racial/ethnic minority candidates tend to poll better than they perform on Election Day. Trump usually underperforms on polls. Maybe it is because his supporters don’t want the hassle that comes with saying they support the president. But researchers have not been able to document the “shy Trump supporter” phenomenon.
  • Polls do a poor job of measuring enthusiasm, so pollsters have to find different ways of identifying likely voters other than asking them if they are likely to vote. Gallup, for example, uses a multi-part filter, including the person’s voting past and whether they know who is running.

In retrospect, the 2016 national polling was not nearly as inaccurate as is popularly believed. Hillary Clinton won the national popular vote by about 2% while an examination of 145 national polls predicted she would win by 3%. The margin of error average was 3.4%, meaning the polling fell well within the margin of error.

Nate Silver’s final presidential polling analysis released on Election Day this week said, “Our model forecasts Biden to win the popular vote by 8 percentage points, more than twice Clinton’s projected margin at the end of 2016.” But he said the results would be a “fine line between a landslide and a nail-biter” and added that Donald Trump’s 10% chance of winning should be taken seriously. Both proved to be true. And it is worth noting that Joe Biden will finish this election with a lot more votes than Trump. That figure stands at about 3 million right now, and it is growing, but it is a 2% lead — not near 8%.

State polls this year have much bigger problems. Trump, for example, way overperformed polls in Ohio and Wisconsin but underdelivered on polling numbers in Arizona and Minnesota. Predictions that Democrats would flip the Senate and increase power in the House were way more off than presidential predictions.

But maybe we are asking for too much precision from pollsters. When, for example, you look back over the text of FiveThirtyEight’s final Congressional polling, you will find this line, which, by the way, turned out to be exactly right: “However, a ton of seats are still competitive; in 80 percent of our model’s simulations, Democrats wind up with anywhere between 48 and 55 seats. That’s a big range!”

In the dozens of seminars that I taught before the 2016 and 2020 elections, I stressed that polls are best used when they’re used to help us understand what people say they believe and feel at the moment, not what they predict they will do in the future. Polls are snapshots more than they are crystal balls.

College journalists have become a vital source of news about the COVID-19 epicenters on campuses.

The New York Times says:

The Michigan Daily exposed a cluster tied to fraternities and sororities just days before the county imposed a stay-at-home order on University of Michigan undergraduates. The State Press broke news that Arizona State students who were supposed to be in isolation had left their dorms. And at Indiana University, The Indiana Daily Student spoke to Uber drivers who picked up students from Greek houses under quarantine orders.

In some cases, student papers are now better staffed than the commercial papers in the same towns. The Independent Florida Alligator at the University of Florida, for example, has 60 reporters and has taken on beats normally covered by local professional media, including local schools. Morgan State University, a historically black university, has student journalists covering Baltimore’s health care system with a special focus on disparities in health care for Black Americans.

And in many cases, the student paper is the only newspaper in town these days.

A yard sign calling for support for the “In God We Trust” flag, decorates this north Jackson, Miss., neighborhood yard, Tuesday, Oct. 27, 2020. The the magnolia centered banner was chosen by the Mississippi State Flag Commission, and is on the Nov. 3 ballot. (AP Photo/Rogelio V. Solis)

You may have missed the vote in Mississippi where voters chose a new state flag design to replace the flag that included a Confederate symbol. The new flag, which must still be enacted into law by the state legislature, includes a magnolia bloom. About 70% of voters approved the new design.


And finally, let’s hear from the great Stewart Pittman, a TV photojournalists’ photojournalist, sharing his blessings:


We’ll be back tomorrow with a new edition of Covering COVID-19. Sign up here to get it delivered right to your inbox.

The Link Lonk


November 06, 2020 at 06:03PM
https://www.poynter.org/reporting-editing/2020/what-would-it-take-to-send-the-election-to-the-supreme-court/

What would it take to send the election to the Supreme Court? - Poynter

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