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Trump’s radical lawsuit against Nevada’s vote-by-mail law, explained
President Donald Trump speaks during a news conference in the James Brady Press Briefing Room of the White House on August 4, 2020, in Washington, DC. | Drew Angerer/Getty Images It’s Bush v. Gore all over again. On Monday, Nevada Gov. Steve Sisolak (D) signed legislation intended to ensure that voters in his state can still cast a ballot during the Covid-19 pandemic. Among other things, the new law (known as AB4) provides that registered Nevada voters will automatically receive a ballot in the mail, a common practice in Western states. It also requires the state to provide a minimum number of polling places for in-person voters, both on Election Day and for early voting. President Trump’s response to this new law was apoplectic. On Tuesday, one day after AB4 became law, Trump’s lawyers filed a lawsuit on behalf of Trump’s campaign and the Republican Party, seeking to block it. Their legal complaint in Donald J. Trump for President v. Cegavske is not a model of careful legal argumentation. It claims, for example, that AB4 changed Nevada law to allow mailed-in ballots without postmarks to be counted so long as they arrive within three days of Election Day. In fact, Nevada law already allowed such ballots to be counted. An entire section of the complaint focuses on the fact that AB4 was enacted “on a weekend vote” — the state House approved the bill on a Friday, but the Senate passed it on a Sunday — without explaining how the day of the bill’s passage was relevant to its legality. Though Trump for President v. Cegavske (the named defendant is Barbara Cegavske, Nevada’s secretary of state) targets several provisions of Nevada’s election law, its most significant attacks focus on two provisions — the provision allowing some late-arriving ballots to be counted, and a provision requiring the state’s two most populous counties to have a higher minimum number of polling places than less populous counties. It’s not hard to guess why Trump wants late-arriving mail-in ballots to be tossed out. Multiple polls have shown that Biden voters prefer to vote by mail, while Trump voters are much more likely to vote in person. Trump has spent the past several months attacking states that try to make it easier to vote by mail — though he recently claimed that mail-in ballots in Florida are fine because “Florida’s got a great Republican governor.” In any event, Trump’s lawsuit suffers from several fundamental flaws. Some of its arguments rely on federal statutes that most likely cannot be enforced through a lawsuit brought by a private party. Others rest on speculation about how certain provisions of AB4 will be implemented. Important prongs of Trump’s legal arguments rest on the Supreme Court’s decision in Bush v. Gore (2000), an opinion that explicitly states its decision is “limited to the present circumstances” and therefore should not be relied on by future courts. And beyond that, at least some of Trump’s arguments would lead to sweeping progressive results that he probably would not like, if they were embraced by federal courts. Trump would not like the implications of his own legal arguments AB4 requires all Nevada counties to have at least one in-person early voting site in every county and at least one in-person polling place on Election Day. Only two Nevada counties have more than 60,000 residents, and those two counties are required to have additional polling sites. Washoe County (Reno), with nearly 500,000 residents, must have at least 15 early voting sites and 25 sites on the day of the election. Clark County (Las Vegas), with more than 2.2 million residents, must have at least 35 early sites and at least 100 on Election Day. The Trump team claims this arrangement is unconstitutional and relies heavily on Bush v. Gore to make its case. One of the ironies of Bush v. Gore is that if the Supreme Court actually took its own holding in that case seriously, Bush would have been one of the most progressive election law decisions in American history. The specific issue in Bush, which effectively handed the presidency to George W. Bush, concerned a recount of the ballots cast in Florida’s extraordinarily close 2000 presidential contest between Bush and Democrat Al Gore. The majority in Bush faulted Florida election officials for failing to apply “uniform rules” to this recount — an unclearly marked ballot might be counted in one Florida county while a ballot with the same unclear marking might be rejected in another. This lack of one statewide standard, according to a majority of the justices, injected too much arbitrariness into the recount. But Bush also contains sweeping language suggesting that any disparate treatment of voters within a state may be constitutionally suspect. “Having once granted the right to vote on equal terms,” the majority concluded in Bush, “the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” One reason Bush was widely criticized by legal scholars is because this expansive approach to voter equality was hard to square with prior, more parsimonious voting rights decisions handed down by conservative justices who joined the Bush majority. As Laurence Tribe, a Harvard law professor and a member of Gore’s legal team in Bush, wrote in 2003, “the ‘right’ ostensibly protected by the majority in Bush v. Gore seems characteristic of a class of entitlements that has received only reluctant federal protection from the Rehnquist Court.” The conservative justices’ departure from their ordinary practices, their decision to restrict their holding to a single election, and the fact that Bush placed a Republican in the White House all gave a fairly clear impression that Bush v. Gore was an exercise of partisanship and not of legal reasoning. Moreover, the Supreme Court has since been fairly clear that it doesn’t take Bush’s approach to voter equality seriously. In the nearly two decades since Bush was decided, only one Supreme Court opinion has so much as cited Bush v. Gore, according to the legal database Lexis Advance. And that single citation appears in a footnote to a dissenting opinion by Justice Clarence Thomas that was joined by no other justice. Nevertheless, Trump’s lawyers ask the courts to take Bush’s expansive approach to voter equality very seriously. Relying on the strong language in Bush calling for all voters to be treated on “equal terms,” Trump’s lawyers argue that Nevada’s formula for setting the minimum number of polling places in each county is unconstitutional. “Several rural counties — where AB4 authorizes only 1 polling place each — have substantially higher numbers of registered voters per polling place” than the two most populous counties, they claim. As a threshold matter, this claim is premature. As the Supreme Court held in Texas v. United States (1998), “a claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” AB4 does not require Nevada’s smaller counties to have only one polling place — it provides that those counties must have at least one polling place. It’s possible that once AB4 is actually implemented, rural counties will have roughly the same number of registered voters per polling place as urban counties. But if Trump is truly serious about implementing a voting rights standard that requires all voters to have equal access to polling sites, Democrats should agree to that deal with enthusiasm. After the Supreme Court struck down much of the Voting Rights Act in 2013, many states started closing polling places — and these closures disproportionately impact voters of color who tend to prefer Democrats over Republicans. As a result, voters in large Democratic cities within red states sometimes have to wait hours to cast a ballot. It’s unlikely, however, that Trump really wants Democrats of colorin urban centersto be able to vote with ease on Election Day. It’s more likely that he is looking for another decision like Bush v. Gore — a one-off opinion that lifts up a Republican presidential candidate without providing any benefits to future voters. Trump wants to force Nevada to toss out many ballots AB 4 provides that mall-in ballots will be counted so long as they are postmarked by the day of the election and received by the seventh day following the election. But not all mail is postmarked, and sometimes the date on a postmark is illegible. Thus, there is a risk that voters will be disenfranchised for completely arbitrary reasons — such as the postmark on their ballot getting smudged while the ballot was being delivered. Nevada addresses this problem by creating a safe harbor for some ballots that arrive without postmarks. Under a provision ofNevada law that took effect last January, mailed ballots will be counted if they are “received not more than 3 days after the day of the election and the date of the postmark cannot be determined.” (AB4 actually makes this provision marginally stricter, by requiring such ballots to arrive by 5 pm on the third day after the election.) Trump’s lawyers argue that this provision is illegal because it conflicts with a federal law providing that “the electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November.” At least in theory, a ballot mailed after Election Day might arrive within three days of the election, and it might bear an illegible postmark. Thus, Trump’s lawyers claim, by accepting some late ballots, Nevada could wind up counting ballots mailed after the federally mandated Election Day has passed. It’s a clever argument. And it is true that, at least before the Covid-19 pandemic, few states explicitly allowed ballots that arrived late and without postmarks to be counted. But there are a number of reasons to suspect that courts will reject this argument. One problem with Trump’sargument is that it is difficult to square with the expansive theory of voter equality that Trump uses to challenge the state’s allocation of polling places. If it is unconstitutionally arbitrary for some counties to have more polling places per voter than others — or, for that matter, if it is unconstitutionally arbitrary for some Florida counties to use different standards to evaluate unclearly marked ballots than others — then surely it is also unconstitutional to toss out some ballots and accept others based on whether the post office smudged a postmark while the ballot was being delivered. It’s also far from clear that Trump’s campaign — or, for that matter, any other private party — is allowed to sue because a state decides to count ballots that are cast after Election Day. Not all federal laws create a “private right of action,” meaning that private plaintiffs are allowed to bring a lawsuit challenging alleged violations of those laws. As the Supreme Court explained in Gonzaga University v. Doe (2002), “for a statute to create such private rights, its text must be ‘phrased in terms of the persons benefited.’” Thus, for example, a statute that reads “eligible voters shall receive a ballot by mail” would create a private right of action because the text of this hypothetical statute centers “eligible voters” — the people who would benefit from that statute. A different statute that provides that “the state shall provide for a system of voting by mail” most likely could not be enforced in court because that statute does not even mention the people who would benefit from it. In any event, the federal statute setting the date of presidential elections (“the electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November”) is not phrased in terms of the persons benefited — it conveys no rights that apply to individual voters, political candidates, or their campaigns. So it most likely cannot be enforced by private plaintiffs in federal court. There’s also a third reason to doubt that Trump will prevail in his effort to toss out late-arriving Nevada ballots. Though Chief Justice John Roberts, frequently the median vote on the Supreme Court, is often hostile to voting rights claims, he’s also signaled that state officials struggling to control the pandemic should be given an unusual amount of deference by courts. In South Bay United Pentecostal Church v. Newsom (2020), for example, Roberts sided against a church that challenged a state public health order that only allowed places of worship to reopen at limited capacity. “The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement,” Roberts wrote in his South Bay opinion. He added that “our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’” The same logic that led Roberts to defer to state officials who want to prevent Covid-19 from spreading at churches in South Bay may also lead him to defer to Nevada officials who want to prevent Covid-19 from spreading at polling places. That said, there is never any certainty in this kind of highly political litigation — especially when a Republican president seeks relief from courts dominated by Republicans. In the short term, the case is assigned to Judge James Mahan, a George W. Bush appointee. However Mahan rules, the losing party will likely appeal to the US Court of Appeals for the Ninth Circuit, which is closely divided between Democrats and Republicans. And the case may very well be heard by a very conservative Supreme Court. Support Vox’s explanatory journalism Every day at Vox, we aim to answer your most important questions and provide you, and our audience around the world, with information that has the power to save lives. Our mission has never been more vital than it is in this moment: to empower you through understanding. Vox’s work is reaching more people than ever, but our distinctive brand of explanatory journalism takes resources — particularly during a pandemic and an economic downturn. Your financial contribution will not constitute a donation, but it will enable our staff to continue to offer free articles, videos, and podcasts at the quality and volume that this moment requires. Please consider making a contribution to Vox today.
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Children take deworming tablets as part of India’s National Deworming Program. | Noah Seelam/AFP via Getty Images Kids who were treated for intestinal worms in 1999 earn far more now than kids who weren’t. In 1998 and 1999, public health workers in Kenya set out to treat children in Kenyan schools for common intestinal parasites, including hookworm, roundworm, whipworm, and schistosomiasis. The parasites, prevalent in poor areas, were affecting kids’ nutrition and health. The hope was thatmass treatment programs might mean a generation of kids could grow up without negative effects from worm infestations. In the years since, deworming campaigns have become a favorite initiative of national governments as well as donors looking to give effectively. Some research suggests that such campaigns may be some of the most important public health interventions in the world. But there has hardly been unanimity on the subject of their efficacy.Studies like the original 2003 paper by development economists Edward Miguel and Michael Kremer of that group of students in Kenya found astounding results from mass deworming campaigns. Students were healthier, stayed in school longer, and earned more money as adults. But otherscriticized that study, and other studies of mass deworming haven’t found results nearly as large. As is the case with lots of other public health interventions, the case for mass deworming has some real evidence behind it, but there are still unanswered questions, and questions where our existing research is frustratingly contradictory. This year, Miguel and Kremer, along with co-authors Joan Hamory, Michael Walker, and Sarah Baird, returned to the original Kenyan sample where they’d first discovered the potentially life-changing impacts of mass deworming campaigns. Following up with the original participants 20 years later, they wanted to answer the question: Are the benefits they initially discovered from childhood deworming treatment — which included more time in school and higher adult incomes — still showing up? In a new paper published in NBER’s working paper series on August 3, they found that they are. “Individuals who received deworming as children experience substantial increases in adult consumption, hourly earnings, nonagricultural employment, and urban residence,” the study concludes. The effects on income and spending are slightly smaller than those observed in a follow-up at the10-year mark, but they’re very notable nonetheless. An extra two or three years of deworming treatments in school translates to 13 percent higher hourly earnings, 14 percent higher consumer spending, and significantly increased odds of working outside of agriculture (in jobs that largely pay better and offer more opportunity for growth). The researchers calculate that the investment in deworming Kenya’s children has so far had a 37 percent annualized rate of return. “What this shows is, even in the very long run, these child health investments have a durable impact on people’s living standards,” author Edward Miguel told me. The results are certainlyeye-popping. Most global poverty interventions, even if they work, don’t produce a 37 percent annualized rate of return that lasts decades (which is perhaps one reason for skepticism about the findings). It’s very rare to do anything in public policy that still has significant effects 20 years later — let alone effects this large. But on the other hand, when interventions do have long-term effects, they tend to be health interventions. Healthier children grow taller, stay in school longer, learn more while they’re in school, and are less likely to be sick as adults. If anything can have a lifelong impact, such interventions in healthcan. The debate over what the Kenya study teaches us about worms This study is the latest contribution in a long-runningdebate in the global public health worldover the effects of deworming campaigns. In 2015, British epidemiologists Alexander Aiken and Calum Davey published a reanalysis of the data from the original Kenya schools and argued that when the data was properly analyzed, “we found little evidence for some previously-reported indirect effects of a deworming intervention. Effects on worm infections, nutritional status, examination performance and school attendance on children in intervention schools were largely unchanged.” Other researchers pushed back. Sure, the first worm study wasn’t perfect — its school assignments werenot quite perfectly random, there were no placebos (meaning students could have behaved differently because they knew they were in the treatment group), and there were some genuine errors in the paper. But its core result was very robust. The children exposed to deworming have since had life outcomes that are measurably a lot better. The reanalysis leaned on statistical techniques that wouldn’t find significant results on this data set even if there were significant results to be found. Kremer and Miguel alsodefended their findings. Deworming “is a highly cost-effective policy with evidence from multiple studies on educational and economic outcomes,” Kremer told my colleague Julia Belluz in 2015. “There is evidence on the long-term educational and economic impact of deworming from a number of other studies: for example, Kevin Croke’s work on Uganda, Owen Ozier’s work on Kenya, and our own long-term follow-up in Kenya.” (Kremer went on to win the Nobel Prize in Economics in 2019.) The new paper adds to that body of evidence. But critics likely stillwon’t be fully satisfied. For instance, they might ask: Ifdeworming had such enormous and profound effects in Kenya, why haven’t similar effects been found elsewhere? “There’ve been some reviews that found modest or no effect,” Miguel agreed. But he argued they were mostly from settings with lower worm prevalence, which would make the effects much harder to detect. “If you just look at the settings where earlier short-run studies were done, and you only look at the studies with at least a prevalence of 20 percent, in the short run there are gains in nutrition,” he told me. “But no one’s taken experimental data with a large sample and seen what happens over time.” And it’s the long-term effects of deworming programs that are most notable and most important. That opens up another question: How does treating intestinal parasites increase income two decades later? Especially when the short-term medical impacts are quite minimal? “The surer we are that the short-term impacts are small, the harder it is to believe that the long-term impacts are big,” David Roodman, writing for GiveWell, summarized this concern in 2016. Some of the effects of deworming come through causing students to stay in school longer, but other research on keeping students in school does not find effects on income of this magnitude 20 years down the line. So if deworming is really creating such large benefits, they likelycan’t just be a consequence of keeping students in school. What might account for the rest of the benefits? One possibility, Miguel told me, was effects on a community from all of its students having stayed in school longer. Students whose school did deworming programs are likely to work in a job they heard about from a school friend, for example. But this, too, can’t account for the full effect size. And students who got worm treatment are now likelier to have left the rural communities they grew up in to live in a big city — perhaps being healthier makes the big risks of moving to a city seem more worthwhile. It would be really valuable to understand how deworming has the effects it does on income, but we may not be able to determine that just from data from trials like this one. “The analysis does not resolve the issue of exactly why and through what channels deworming affected adult outcomes,” the paper acknowledges. It’s hard to tease apart each of the different possible avenues by which deworming might affect people because many of them are related — early boosts in income might lead to longer-lasting boosts in income, for example, as well as lead people to be more likely to migrate, as well as lead them to seek other medical care when needed and be healthier. Then there’s the question of how well the results generalize. Most of the world does not have worm prevalence as high as Kenya did in the late 1990s. So mass deworming will show smaller effects in other communities — and indeed, that’s what studies have found. And even setting aside specific concerns like those, researchers often find that interventions work less well when scaled up and offered in other regions, even when there’s no clear reason why that’d be the case. Questions over deworming remain — but it’s still a good public health bet But even with some questions still unanswered, what evidence we do have suggests that the potential long-term benefits are big enough to make mass deworming programs one of the best bets we know of to improve outcomes for children in poor countries. They’re consistently among the top charities recommended by GiveWell as cost-effective interventions. (GiveWell considers it likely that deworming does much less good in the typical case than the measured results from Kenya, but still considers it a top global health intervention.) No single study will likely ever clear away all of our doubts, but studies can be put together to formulate a best guess. My best guess is that, at least in areas with high worm prevalence, school-wide deworming programs are a very good idea. And policymakers have been taking that very seriously for the last two decades, rolling out large-scale deworming programs that have treated many of the most vulnerable students. “We’ve reached over 78 percent of all vulnerable children at an average cost of 45 cents per child per year,” spokesperson Gabriel Plata of Evidence Action, which runs top deworming nonprofit Deworm the World, said. But the problem is far from solved. “There’s an estimated prevalence of over 800 million people still at risk,” Plata said. And things are getting worse. Schools are canceled throughout much of the world due to the coronavirus, and that means public health interventions that typically happen at schools aren’t happening at all. The new study from Kenya is just our latest reminder that that is an enormous loss, and the children affected may still be disadvantaged from it 20 years later. “Our study suggests that we have to find some way to deliver those services to kids,” Miguel told me, “or else the long-run costs could be really large.” One key takeaway: We don’t have to have settled all the questions about deworming in order to pursue cost-effective deworming programs based on the evidence we do have. There’s still more to learn about deworming. Formulating global public health policy is confusing, difficult, frustrating, and always much easier in hindsight. But it’s also really important. All we can do is keep trying, keep learning, stay curious, and move ahead with our current best guess. Sign up for the Future Perfect newsletter and we’ll send you a roundup of ideas and solutions for tackling the world’s biggest challenges — and how to get better at doing good. Support Vox’s explanatory journalism Every day at Vox, we aim to answer your most important questions and provide you, and our audience around the world, with information that has the power to save lives. Our mission has never been more vital than it is in this moment: to empower you through understanding. Vox’s work is reaching more people than ever, but our distinctive brand of explanatory journalism takes resources — particularly during a pandemic and an economic downturn. Your financial contribution will not constitute a donation, but it will enable our staff to continue to offer free articles, videos, and podcasts at the quality and volume that this moment requires. Please consider making a contribution to Vox today.
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