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Florida recount haunts Supreme Court as it tackles mail ballots

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The Supreme Court this week considered cases from a trio of battleground states involving an issue that is central to this pandemic election: the treatment of mail ballots.

As the court decided cases in Pennsylvania, North Carolina and Wisconsin, many observers could not help but be reminded of a fraught US election from 20 years ago: the 2000 Florida recount, in which the Supreme Court’s extraordinary intervention delivered the White House to George W Bush.

“What happened in Bush vs Gore, we’re hearing an echo of it now in Pennsylvania,” said Matthew Seligman, a Supreme Court litigator and lecturer at Harvard Law School.

Mr Seligman was referring, specifically, to the fact that those cases have rekindled the same knotty constitutional question that was at issue in Florida in 2000: whether a state’s legislature should have the ultimate authority over its election rules.

In Pennsylvania, in particular, that determination could have enormous consequences this year. It would mean the difference between counting only ballots that arrive by the election day deadline, as decreed by the state’s Republican-controlled legislature, or including ballots that arrive up to three days later, as ordered by the Pennsylvania Supreme Court.

It is one of the many ways that the watershed 2000 election — which caused many Americans to question the Supreme Court’s cherished reputation for impartiality — is rippling through this contest 20 years later.

Earlier this week, speaking about her fear of voter intimidation and election day violence, Sherrilyn Ifill, president of the NAACP Legal Defense Fund, invoked the “Brooks Brothers riot,” in which well-attired Republican protesters rushed the office of the Miami-Dade election supervisor in November 2000 to force the shutdown of the recount.

“My fear is that this time there might be another Brooks Brothers riot without suits, with people carrying AR-15s,” Ms Ifill said. 

A striking reminder of that contest is the composition of the Supreme Court itself. Three of its conservative justices, John Roberts, Brett Kavanaugh and Amy Coney Barrett, worked on the Bush legal team during the Florida recount.

Brett Kavanaugh © Getty Images

Amy Coney Barrett © REUTERS

Another phenomenon that election lawyers and political scientists attribute to Florida 2000 is a growing litigiousness surrounding US presidential elections, what Mr Seligman calls “the legalisation of presidential elections”.

Twenty years ago, Democrats and Republicans scrambled to assemble legal teams after election day as Florida fell into dispute. This year, battalions of lawyers for both sides are already fighting hundreds of cases across the country that deal with voting issues. What was once a peripheral struggle, say legal experts, has now moved to the foreground.

“I definitely think the increased litigiousness of political parties [and] candidates today — and the widespread perception that elections can be won or lost in court — is a direct result of Florida 2000,” said Nicolas Riley of the Georgetown University Legal Center. “You can see that perception reflected in the sheer number of lawyers that the campaigns hire now, which has increased every election cycle since 2000.”

The most lasting legacy of Florida may be how Americans regard the Supreme Court, and whether it will again play a decisive role in a presidential election — something it had not previously done.

“The Supreme Court’s power and its role in American society depends on the fact that people think that it’s legitimate. And Bush vs Gore was a turning point for that,” Mr Seligman said, tracing a line from the Florida recount to a brewing debate today about packing a court that many believe has become overly partisan.

For that reason, David Boies, the eminent litigator who represented the Gore campaign 20 years ago, is convinced that justices are mindful of the damage done by Bush vs Gore and will do their utmost to avoid the fray.

“One of the legacies is the undesirability — to use as neutral a word as I can — for the Supreme Court to get involved . . . in trying to influence in a partisan way the outcome of elections, particularly presidential elections,” Mr Boies said.

He added: “Bush vs Gore was the first time that the United States Supreme Court — or the federal courts, generally — had ever intervened to decide a presidential election. And I think the almost uniform reaction among constitutional scholars, both conservative and liberal, was that that had been a mistake.”

Still, several cases have already risen to the court. If the election is close, then additional challenges over mail ballots will almost certainly come its way after election day.

In Pennsylvania, one of the most hotly contested swing states, election officials have already issued orders to segregate late-arriving mail ballots in preparation for future litigation. The state’s divided government — with a Democratic governor and Republican-controlled assembly — have added to the tension. 

Pennsylvania Republicans had petitioned the US high court to hear their appeal to overturn the state Supreme Court’s mail ballot extension before election day. Their request was denied, the second defeat in the case for Republicans after Mr Roberts joined with the court’s three liberal justices last week to deny a stay of the extension.

Yet in Wisconsin, the court effectively blocked a similar mail ballot extension favoured by Democrats. Those two decisions revealed a crucial faultline among the Supreme Court’s dominant conservative wing.

Mr Roberts took a dim view of the Wisconsin extension because a federal judge had ordered it, and so, he reasoned, was interfering in state affairs. The Pennsylvania extension could stand, by contrast, because Mr Roberts was deferring to the right of state courts to interpret their own laws.

The same deference appeared to prevail in the North Carolina case, where a state elections board had extended ballot deadlines with the approval of a state court.

But Mr Roberts’ conservative colleagues wished to go further: They believe that state legislatures — not state courts — should have the final say over election procedures in any circumstance.

Mr Kavanaugh even cited an argument to that effect by William Rehnquist, then chief justice, in Bush vs Gore, writing in the Wisconsin case that the constitution “requires” federal courts such as the Supreme Court “to ensure that state courts do not rewrite state election laws”.

Mr Rehnquist failed to muster a majority in 2000 — although conservative justices found a separate rationale to halt a recount ordered by Florida’s Supreme Court with Mr Bush still ahead of vice-president Al Gore by 537 votes.

All this has stirred speculation about what will happen if such issues return in the coming days now that a fifth conservative justice, the recent Trump-appointee Amy Coney Barrett, is on the court. Whether she aligns with Mr Roberts or with the other conservatives could determine how willing the Supreme Court is to rerun Florida 2000 in present-day Pennsylvania. 

Ms Barrett is something of an enigma on election law issues. Though a staunch conservative, she has not previously written about or ruled on such questions.

“It would be foolhardy at this stage, before she has addressed any of these issues, to predict” where Ms Barrett would come down, said Richard Pildes, a professor at the New York University School of Law.

Mr Boies, who experienced the heat of Florida first hand, remained hopeful that the Roberts court would keep its distance from the election. Justices would inevitably divide on ideological grounds, he acknowledged, but he believed they were mindful of the stakes and would be loath to tip the scales. 

“If the Republicans on the court wanted to try to use their position to help Republican candidates there are considerable opportunities for them to do that,” Mr Boies said, noting their 6-3 majority. But, he added: “I don’t think they will. I think both Republicans and Democrats on the court recognise that the court’s integrity, respect for the court, depends on the court not being seen as partisan.”



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'It’s more than sport – every day we are fighting for our rights to be equal’

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French pro basketball player and podcaster Diandra Tchatchouang on her role beyond the court



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Emily Dean on how allyship amplifies the female experience on film

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When I was six years old, I decided to be an artist. When I was 12, I decided to be a filmmaker. And instead of saying no, you can’t do that, or it’s not possible, my mum bought me a video camera.

After several years of working in the industry, I’m working with a female director for the first time. And it’s been such a gratifying experience. Women express leadership in different ways. Maybe you don’t have to be the loudest person in the room. But you can have great ideas.

And the best thing about being mentored by women and being a mentor to women is that make friends with women.

There’s something so powerful the women coming alongside other women, especially in a group setting. Because it means that you can and back each other up. You can support each other’s decisions, and you can amplify each other’s voices.

It’s about seeing yourself in your work. Seeing some part of yourself reflected is really gratifying. It’s also important that we speak up for female characters. I want to see girls and women on screen who have the whole cacophony of experience of what it’s like to be female.

I want to see their flaws. I want to feel their struggles. I want to see their joy. That is so important to making a character feel real. And it took me a little while to settle into myself and realise, if the characters I like to come up with are not your everyday run of the mill characters you see in animation, that’s fine. Because this is who I am.

When you walk into a story room, when you’re working on a film, you have to leave your ego at the door. I think that can be interpreted like keep your ego out of the work. But I’d also say for women who are maybe more shy that leaving your ego at the door means you walk in. And your job is to focus on what’s best for the story and for the film.

The story needs you. The film needs you, and it needs your best ideas. It won’t thrive unless you speak up.



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Crimea ‘water war’ opens new front in Russia-Ukraine conflict

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When a cyclone drenched Crimea in rainfall last month, rivers burst their banks and thousands of people in the Russia-annexed peninsula had to be evacuated from the floods.

The silver lining to the deluge was that the rains also filled Crimea’s depleted reservoirs, temporarily alleviating a crisis brought on by an extended drought and a Ukrainian blockade of the Soviet-built canal that previously provided up to 85 per cent of the peninsula’s water supplies.

Moscow’s struggle to supply Crimea’s 2.4m residents with fresh water has become a flashpoint in an undeclared war, seven years after Russian troops seized Crimea from Ukraine. An even longer conflict between Kyiv and Russian-backed separatists in eastern Ukraine has claimed more than 14,000 lives.

Russia has accused Ukraine of “genocide” over the building of a concrete dam across the North Crimean Canal, in addition to the existing sandbag and earth dam that was built in 2014. Kyiv fears that Moscow is plotting a military incursion to secure water flows from the nearby Dnipro river.

Coupled with surging food prices and international isolation because of western sanctions, the water shortages threaten to undermine President Vladimir Putin’s promise of a better life for Crimeans under Russian rule.

Though state-run pollsters claim Putin remains more popular in Crimea than on average across Russia, the patriotic fervour that sent his approval ratings to record levels after the 2014 annexation has long since subsided.

Map showing Ukraine and the North Crimean Canal, Crimea

“The water reserves and fields have dried up,” said Viktor, 47, a Crimean who regularly travels to Ukraine for work. “Each year it’s getting worse and worse. We didn’t have this problem before annexation,” he said, adding that most Crimeans blamed Ukraine for the crisis.

A $3.7bn bridge across the Kerch Strait linking Crimea with mainland Russia has become a conduit for trucks ferrying water for locals to take away in plastic containers. Popular Black Sea tourist resorts can turn on their taps for just a few hours a day during peak droughts, while the canal has filled with grass and weeds.

Crimea’s agricultural output has fallen owing to a lack of irrigation, making it all but impossible to grow water-intensive crops such as rice.

Construction of the canal began in 1957 after the Soviet Union transferred the arid peninsula to the Ukrainian Soviet Socialist Republic to manage rebuilding after the second world war. The waterway allowed for the cultivation of arable land and helped transform Crimea into a haven for tourists.

“The canal symbolises the stupidity of the Kremlin in occupying Crimea. They didn’t weigh the consequences at a moment of electoral euphoria that was fed by their own propaganda,” said Oleksiy Reznikov, Ukraine’s deputy prime minister in charge of reintegration policies for the occupied territories.

“Why didn’t you think about water?” he asked.

The North Crimean Canal is seen with a low level of water
The severely depleted North Crimean Canal previously provided up to 85% of the peninsula’s water supplies © Pierre Crom/Getty

Workers collect potatoes on the North Crimean Canal
Workers collect potatoes on the North Crimean Canal. Ukraine blocked the irrigation channel after Russia’s 2014 annexation of Crimea © Pierre Crom/Getty

Russia, while pressing Ukraine to reopen the waterway, has launched a Rbs50bn ($680m) programme to bolster Crimea’s supplies, repairing crumbling infrastructure, drilling wells, adding storage and desalination capacity.

Russian prosecutors last week filed a lawsuit in the European Court of Human Rights accusing Ukraine of “flagrant violations” over the issue. Crimea’s governor plans to file a separate complaint demanding up to Rbs1.5tn in compensation.

“Kyiv has essentially used Crimea’s infrastructure dependence on Ukraine, which came about in the Soviet era, as a weapon of mass destruction against all Crimeans. The water blockade is an act of state terrorism and ecocide, but the international community is failing to notice the Kyiv regime’s crimes,” Sergei Aksyonov, the peninsula’s governor, said in written comments to the Financial Times.

Reznikov said Russia, as the occupation force, was responsible under the Geneva Conventions for securing water and other basic needs for local the population. Ukraine has filed its own multi-billion-dollar claims against Russia, citing losses caused by what it describes as an illegal land grab.

With tensions rising, Russia deployed tens of thousands of troops and advanced weapons to Crimea this spring, as well as to the border of the two breakaway eastern regions where Moscow-backed separatists have battled government troops into an eighth year.

Col Kyrylo Budanov, chief of Ukraine’s army intelligence unit, said Russia was looking to seize the canal as well as adjacent territory to connect Crimea with the breakaway regions. Russian troops could advance on Nova Kakhovka, the Dnipro river town where the canal begins.

Some Crimean Tatars, an indigenous ethnic group whose members largely opposed Russia’s annexation, have set up a makeshift camp near the dams to make sure the water flow does not resume.

A Crimean Tatar activist on the North Crimean Canal
A Crimean Tatar activist enters his base on the North Crimean Canal. Tatars have set up camp to make sure the water flow does not resume © Pierre Crom/Getty

A Ukraine military vehicle drives past a Soviet monument marking the entrance to Brylivka
A Ukraine military vehicle drives past a Soviet monument marking the entrance to Brylivka, a village on the North Crimean Canal © Pierre Crom/Getty

“It will be a full-scale war,” said a 55-year-old activist who gave his name as Alibaba. He said he and his fellow activists were willing to take up arms to defend the blockaded canal. “There will be nowhere to hide in these fields. Let them try,” he added.

At the Kalanchak border crossing near the new dam, Russian and Ukrainian troops have dug trench positions a few hundred meters apart.

Tensions have also flared in the Black Sea, not just with Ukraine but also with western navies. Russia fired warning shots in the path of a British destroyer sailing through contested waters off Crimea last month. Sevastopol, Crimea’s largest city, is home to Russia’s Black Sea fleet.

Moscow has insisted it would not go to war over Crimea’s water supplies, even as it conceded that Ukraine was unlikely to restore them. “All these hysterical statements from Ukrainian politicians are completely baseless — they’re just stupid, aggressive propaganda aimed at inciting hatred between the Russian and Ukrainian people. There won’t be any ‘water war’,” Crimea governor Aksyonov said.

Reznikov, the Ukrainian minister, said Kyiv was ready to provide Crimea with humanitarian assistance, including drinking water, which it already does for the separatist-run eastern territories, but no request had been made.

“For Russia to admit they’re weak is very difficult . . . it would amount to an admission that they made the wrong decision,” he said.



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