If Biden wins, here’s how he could undo Trump’s deregulation agenda

Janeen Jones for Vox

Biden could use Trump’s playbook to reverse his regulatory moves on pollution, worker safety, health care, and more.

Cutting workplace safety inspections. Allowing subpar health insurance plans to be sold to Americans. Permitting tractor-trailer drivers to blow past previous driver-fatigue limits. Waging war on birth control.

These deregulatory actions and others taken by President Donald Trump’s administration have adversely impacted the health and safety of Americans, according to System Failure, an investigative series produced by the Center for Public Integrity and Vox.

But Trump’s actions may not stick. If former Vice President Joe Biden wins the November 3 election, he’ll have a few tools at his disposal to undo some of Trump’s regulatory maneuvers.

And if Democrats take control of both houses of Congress, they’ll be able to quickly wipe out regulations pushed through in the last 60 legislative days of Trump’s term, thanks to the Congressional Review Act, part of the Contract With America that Newt Gingrich and House Republicans campaigned on in 1994.

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Democratic presidential nominee Joe Biden speaks outside during a campaign stop on September 30, 2020, in Johnstown, Pennsylvania.

It won’t be clear until mid-January when the 60-day period began — because it all depends on how many days Congress meets between now and January 3, when its current term ends — but experts predict it started sometime during the summer.

Since July 1, for example, a Public Integrity analysis shows more than 1,000 regulatory changes have been published in the Federal Register, though only about 100 of them have risen to the level of being reviewed by the Office of Information and Regulatory Affairs, which is charged with sifting out “significant” regulations. The changes that could be subject to the Congressional Review Act include one that weakens methane emissions standards and one that opened the Arctic National Wildlife Refuge to drilling.

Trump and Republicans in Congress actually set in motion a number of rollbacks themselves when they took office, said Bethany Davis Noll, litigation director for the Institute for Policy Integrity at the New York University School of Law.

The Trump administration, more than any other in the US history, aggressively pursued the rollback of federal regulations, particularly the ones put in place by President Barack Obama — including a rule meant to prevent people with mental health issues from buying guns and a regulation aimed at keeping coal companies from dumping mining waste into streams.

Republicans used the Congressional Review Act to undo at least 14 of the Obama administration’s rules. Before Trump took office, the law had only been used once.

Biden has already said that if he wins, he plans to roll back more than 100 Trump administration public health and environmental regulations, including his reversal of protections for transgender people. We asked Davis Noll to explain how Biden will execute these rollbacks if he takes the election. This interview has been edited for brevity and clarity.

Sarah Kleiner

Our reporting with Vox showed that the Trump administration made a number of regulatory maneuvers that had an adverse effect on the health and safety of Americans. If Biden is elected, what options will his administration have if he wants to undo some of what Trump has done?

Davis Noll

There’s a slew of options, starting with issuing quick rollbacks of the rollbacks. And the reason I say it’s an option to issue them quickly is because there was, often with these rules, a very robust record in place for the Obama-era rule — and then the Trump administration rolled it back with some cursory explanation.

The Biden administration can then pull that record up from the previous Obama administration rule and update it. And it should be pretty simple to say, “This record still works. You know, there hasn’t been that much time that has passed, and this rule that was vastly beneficial to the American people is still a good idea.” So that’s one thing.

Alex Wong/Getty Images

President Barack Obama (left) walks with Vice President Joe Biden after giving a statement on the Supreme Court’s decision to uphold subsidies in the Affordable Care Act on June 25, 2015.

In court, there’s a whole bunch of cases pending on Trump-era rules, and I would imagine that, in many of those cases, the Department of Justice will ask for a pause on litigation. Because the new agency isn’t going to want to defend the Trump-era rule. They’re going to want to figure things out and work on these rollbacks. And so we won’t see decisions out of court affirming Trump-era rules. And then we’ll see if the Congressional Review Act is an option too. Congress has to be aligned with the president, so both House and Senate have to have Democratic majorities.

Sarah Kleiner

In March 2019, your report “Regulation in Transition” outlined some of the aggressive tools Trump had used to roll back Obama-era regulations. You found that, through some strategies that other presidents had not used in the past, “the Trump administration was able to reach a far greater proportion of regulations finalized during Obama’s presidency than would have been possible under prior practices.” What did you find in your research, and how does it affect the average American?

Davis Noll

What Ricky Revesz and I found in this paper is that the Trump administration has used these rollback strategies just to a much greater extent than ever previously used — more than any administration had previously used them. And that means two things.

One, it means now there’s this road map that the next administration is going to be expected to at least think about following. Because usually when you’ve got this tit-for-tat strategy going on between the two parties, it continues — and it accelerates, if anything. So it means that the new administration is under a lot of pressure to issue rules as quickly as possible.

The other thing that it does is it kind of puts us in this flip-flop world. It’s this era of partisan back-and-forth that is just very volatile. It means you can’t, as an agency, issue rules that will be long-lasting without this speedy work.

So what it does to the regulated industry is it creates a volatile atmosphere, and I think most people would agree that it’s better for our industry to not have that. Because we want our business leaders to be thinking about innovation and investment instead of things like, “What’s the regulation going to look like tomorrow?”

Sarah Kleiner

To be clear, these are actions taken in the executive branch, without Congress weighing in, correct?

Davis Noll

Yeah, we’re talking about agency regulations. And another thing that has happened in the last 20 to 30 years is presidents have more and more turned to their agencies to make policy, because we can’t get much out of Congress these days. There’s just massive gridlock there. It’s been there for a while, and it seems like it’s continuing.

There was this really great article written by Supreme Court Justice Elena Kagan, when she was a law professor, called “Presidential Administration,” back in 2001. It was about the Clinton administration. And she said the Clinton administration had basically turned to its agencies to make policy because of congressional gridlock. And she predicted that presidents would do that more and more.

And we’ve definitely seen that. They said that about Obama, that he did this more than any prior president. And now with Trump, they’re saying he’s gone to his agencies even more than any prior president to make policy, because he can’t get anything out of Congress. Like with the Affordable Care Act repeal that he wanted — that didn’t happen. And so he’s just chipping away at the Affordable Care Act through rulemaking.

Sarah Kleiner

That’s a lot of power concentrated in one branch of government. So Trump found a new, more aggressive way of rolling back his predecessor’s regulations. Did he set a precedent that he’s going to regret if Biden wins?

Davis Noll

Yeah, I mean, he used the Congressional Review Act — the administration, plus Congress — used the Congressional Review Act to roll back a bunch of rules that were issued at the end of the Obama term. Even though we don’t know what’s going to happen with the election, that’s already had a huge impact on the end of the Trump administration. At the end of the first term, for example, the vehicle emissions rule that was finalized in April of this year was, by some accounts, rushed out because they were afraid of the Congressional Review Act.

“The whole country is worried about the pandemic, and these agencies are issuing rules that roll back vehicle emissions regulations”

Sarah Kleiner

Our June analysis found that, since Trump declared the coronavirus a national emergency in March, the White House signed off on or was reviewing more than 250 temporary or permanent regulatory actions. How does this compare to past administrations?

Davis Noll

It’s pretty typical that administrations issue a lot of rules in the final days. That happens a lot. I have definitely not done an empirical study on how close the Trump administration is to prior administrations, but it’s not a new thing. Maybe it’s new that it’s happening in the middle of a pandemic.

Win McNamee/Getty Images

President Donald Trump speaks during a coronavirus task force briefing at the White House on March 31, 2020, in Washington, DC.

It’s definitely something to behold when the whole country is worried about the pandemic, and these agencies are issuing rules that roll back vehicle emissions regulations. The priorities don’t seem like they’re in the right place.

Sarah Kleiner

Do you think they’re trying to take advantage of the fact that people are preoccupied by the pandemic?

Davis Noll

I guess I can’t really say what the intent is. But I also think they would have issued these rollbacks anyway. I’m sure the pandemic didn’t change that. It’s just something else, especially when it’s a respiratory illness that’s affecting the country, to have agencies issuing rules that roll back emissions cuts that would have helped, that would have cleaned up the air.

It just makes it more striking how these agencies are acting far outside the scope of what Congress envisioned.

Sarah Kleiner

You study litigation and keep track of Trump’s regulatory win-loss rate and what role courts play in the regulation landscape. What have you found so far about the Trump administration?

Davis Noll

What I’ve been tracking is court decisions on agency actions to either roll back regulations or make policy for the president. Like I was saying before, presidents use their agencies to make policy. One of the best ways to see if it’s working is: What’s the success rate in court? The overall success rate right now is 15.6 percent. And it stands in stark contrast to prior administrations.

Prior scholars have looked at prior administrations and just consistently, across the board, have found that agencies win 70 percent of the time, more or less. And so to see a win rate now of 15.6 percent, it’s very surprising. It’s very, very shocking. Also, you can sort on my tracker for deregulation, and the win rate for deregulatory cases is 13.8 percent. So it’s a little lower. So the agencies are not doing very well in court.

Sarah Kleiner

Why do you think that is?

Davis Noll

There’s two big issues that consistently have come up. One is agencies are acting outside their statutory authority. And two is they are not providing the required explanation for what they’re doing. There’s this standard that requires agencies to provide a reasoned explanation for their decision, and in many cases, the agencies are doing something that’s actually harmful.

With the vehicle emissions rollback, the baseline was a rule that was going to improve fuel economy over time and reduce greenhouse gas emissions from cars. And so if you roll that back, what you’re doing is you’re increasing greenhouse gas emissions from cars and reducing fuel economy. So that’s a harmful thing. And it’s not that easy to give an explanation for that. That case is pending.

But there are a whole bunch of other cases that have already been decided that are like that, where the agency is doing something that’s actually harmful, and they haven’t been succeeding in court, when they try to explain why they did what they did.

Sarah Kleiner

What else should we keep an eye on if Biden wins?

Davis Noll

You’ll see agencies getting back to doing their job, like looking at their statutes, which often say something like “reduce emissions,” in the case of the Environmental Protection Agency, or “regulate this thing that is harmful to the public.” And you’ll see agencies getting back to doing the business of the agencies. That’s what we’ve been missing.

I think the data shows that that’s what we haven’t been seeing these last four years. We haven’t been seeing agencies interested in implementing the statutes as Congress wrote them. They’re trying to implement President Trump’s policies, and often those policies are not what Congress intended.

If we’re asking about what we imagine we could see out of a new administration, I predict agencies will go back to doing their jobs. I don’t think that’s like a tit-for-tat thing.

I think those bounds are still there, those guardrails. Their importance has been reaffirmed in the last few years and I don’t think the Trump administration has been successful at kicking them down. So I don’t imagine that the next administration would want to act outside those bounds.

Alex Wong/Getty Images

Democratic members of US Senate Judiciary Committee walk down the east front steps of the US Capitol for a news conference on October 22, 2020, in Washington, DC.

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5 fact-checks from the Senate’s hearing on social media

Twitter CEO Jack Dorsey testifying remotely before the Senate on October 28. | Michael Reynolds/Getty Images

We took a closer look at the unproven claims lawmakers made about Facebook, Google, and Twitter.

Six days ahead of a historic presidential election whose outcome is expected to shape the future of US democracy and as Congress delays passing a new economic stimulus deal to aid millions of unemployed Americans affected by the ongoing pandemic, the Senate spent more than three hours talking about something else: how social media companies handle controversial speech on the internet.

Wednesday’s hearing was supposed to focus on nuanced reforms to a landmark internet law — Section 230 — which shields tech companies from being sued for content users post on their platforms. Both Democrats and Republicans have been calling for years to reform this law, arguing that it is outdated considering how large and powerful these tech giants have become. That’s why the Senate Committee on Commerce, Science, and Transportation subpoenaed Facebook CEO Mark Zuckerberg, Google CEO Sundar Pichai, and Twitter CEO Jack Dorsey to face questioning.

But instead of talking about reforming the actual law, most Republican Senators — with notable exceptions such as Sen. Shelley Moore Capito (R-WV) and Sen. Deb Fischer (R-NE) — used their time to press the CEOs about specific content moderation decisions that have been controversial with Republicans. Namely, Twitter blocking an unverified story in the New York Post making damning accusations about Hunter Biden earlier this month, or why the company fact-checks Trump more often than Iran’s or the Chinese Communist Party’s leaders.

Some Democrats at the hearing — and many outside observers — have written off the hearing as political theater orchestrated by conservatives days ahead of the election to intimidate these companies so they avoid fact-checking Trump or conservative disinformation campaigns.

But Republicans argued that allegations of bias are critical and valid, and that they need to be swiftly addressed.

Many Senators used assumptions and cherry-picked evidence to try to prove their points. And in response, the tech CEOs effectively skirted more serious discussions about their actual shortcomings in content moderation.

Here are the fact-checks on the five most head-scratching claims senators — and tech CEOs — made at the hearing.

1) Though Republicans say social media companies are broadly censoring conservative speech, the evidence doesn’t support the claim.

Many conservative lawmakers, encouraged by President Trump, have long alleged that tech companies are censoring Republicans on social media. And today’s hearing was no exception.

Citing social media companies’ handling of the Hunter Biden New York Post story, as well as Google’s threats to ban conservative news website the Federalist over allegedly racist content, Senate Commerce Committee Chairman Sen. Roger Wicker (R-MS) said in his opening remarks: “These recent incidents are only the latest in a long trail of censorship and suppression of conservative voices on the internet.”

While it’s true that Twitter and Facebook have made some controversial and at times questionable decisions to limit false or unverified speech by conservative politicians and news outlets (Twitter reversed its stance on blocking the Hunter Biden story, Facebook did not), these are individual examples.

On the whole, data shows that conservative content thrives on social media. Conservative pundits like Dan Bongino and Ben Shapiro consistently rank among the most shared news sources on Facebook based on the company’s data aggregation tool, CrowdTangle. And despite all the hoopla about Twitter’s alleged censoring of Trump, the president still uses the platform every day to reach tens of millions more followers than Joe Biden does.

In fact, Trump himself has repeatedly stated that, without social media, he wouldn’t be able to “get the word out” to the people.

Republican senators asked why tech companies haven’t fact-checked high-profile Democratic leaders like Biden as much as they have Trump, but they ignored the very obvious answer: that Trump, unlike Biden, has more frequently promoted false and misleading statements on social media. If Biden were to attack mail-in voting or the basic science behind Covid-19, as Trump has, he would likely face the same kind of moderation.

To Republicans’ credit, an underlying tension here is that many people who work at tech companies lean liberal (more on that later). And, back in 2016, Gizmodo reported that those political beliefs sometimes trickled into low-level employee content moderation decisions via the disastrous “Facebook Trending” section. But a lot has changed since then (for one, Facebook has done away with that its trending section entirely). If anything, the evidence now seems to suggest that Facebook has adjusted in the other direction to please Republicans and fend off claims of anti-conservative bias. According to recent reporting from BuzzFeed News, NBC News, and the Wall Street Journal, the company has at times overridden its fact-checking system and tweaked its algorithms to favor conservative publications over liberal ones like Mother Jones.

2) Ted Cruz claimed social media companies are the biggest threat to free speech in the US. That’s not at all clear.

Sen. Ted Cruz (R-TX) came in hot to the hearing, announcing his intent to grill Dorsey in a wrestling-match style flyer he (ironically) tweeted out the night before the session, all in the name of defending free speech on the internet.

TOMORROW
10am ET / 9am CT

Livestream will be available here --> https://t.co/Gl9mQQkvd8#StopTheCensorship pic.twitter.com/1Pu9OYFV5v

— Senator Ted Cruz (@SenTedCruz) October 27, 2020

“The three witnesses we have before the committee today collectively pose the single biggest threat to free speech in America and the greatest threat we have to free and fair elections,” Cruz said, speaking about Dorsey, Zuckerberg, and Pichai.

Cruz is entitled to his opinion, of course, but it’s not at all objectively clear that the biggest threat to free speech or election integrity in this country is when Facebook, Twitter, or Google fact-check politicians like Trump.

In fact, if you asked this same question of leading free speech advocates and human rights organizations, many would say a bigger concern is Trump’s sustained and increasingly vitriolic attacks on the free press since his first day in office. If social media companies do pose a threat to free speech, they say, it has less to do with how they handle conservative voices and more do with the extremist hate speech that spreads on their platforms, and which has a chilling effect on women, minorities, and other marginalized groups by shutting them out of online public discourse.

It’s true that social media companies now rival governments in the scope of their power and influence, and free speech defenders of all political persuasions demand that these companies provide more transparency and accountability about what content they do and don’t allow.

But for Cruz and some of his Republican colleagues to support free speech only when it suits their political needs (in an extreme example of this, Sen. Marsha Blackburn (R-TN) denounced Google for allegedly censoring Republicans while simultaneously calling for the company to fire a rank-and-file employee who publicly criticized her) is a hypocritical one at best.

3) Dorsey told Cruz that Twitter doesn’t impact elections. It does.

Despite Cruz’s largely theatrical political showboating, he did get into one important exchange with Dorsey that highlighted an issue originating with the tech platforms themselves: their refusal to acknowledge that they are more than just neutral platforms.

At one point, Cruz asked Dorsey whether Twitter has influence over the elections, and Dorsey said no.

Cruz retorted, “If you do not believe you have the power to influence elections, why do you block anything?”

Dorsey’s response was that Twitter blocks content to reduce harassment and make everyone feel included on its platform. Facebook and Google have similarly asserted that they aim to be neutral platforms for people to communicate, with exceptions to protect their users from harm. But that’s just part of the picture.

The reality is that Twitter, Facebook, Google, and every other social media platform make decisions every day about what kind of political speech is and isn’t allowed on their platforms. Moreover, the algorithms underpinning these platforms dictate which topics go viral and reach the masses instantly, and which ones get seen by a much smaller number of people. And because these sites are the main way tens of millions of Americans primarily consume their daily news, what is and isn’t allowed on them can of course impact how someone votes in an election.

The fact that Dorsey — as well as Zuckerberg and Pichai — wouldn’t admit this basic fact was telling of tech CEOs’ lack of candor about the political power they’ve amassed through their companies.

4) Senators suggested tech companies’ liberal employee majorities are a problem. But that’s neither illegal nor the government’s job to police.

First of all, let’s be clear that most tech employees at Google, Twitter, and Facebook lean liberal. That’s reflective of the demographics where these companies are based and the skills they hire for: largely college-educated workers in major urban areas like San Francisco, New York, and Seattle.

In Wednesday’s hearing, several Republican Senators questioned tech CEOs about the political makeup of their workforce as if there was something shameful about this.

The insinuation is that because these companies have a liberal-leaning workforce that they as a default are stifling conservative speech.

But as we mentioned earlier, there isn’t any real proof of that systematic suppression. And even if there were, the solution wouldn’t necessarily be to mandate that everyone who works for Facebook or Twitter pass some kind of political litmus test.

Congress has a dark history of blacklisting citizens from gainful employment due to their political beliefs. While it’s fair to question the unparalleled political power of tech companies and try to regulate that problem, it’s dangerous for lawmakers to misleadingly frame the issues at hand as being connected to employees’ personal politics.

5) Senators kept pronouncing Google CEO Sundar Pichai’s name incorrectly. It’s pronounced “Pitch-eye.”

Senators across the aisle repeatedly butchered the name of Google CEO Sundar Pichai. The soft-spoken Pichai, who was born and raised in India and worked his way up at the search giant from a product manager to its chief executive, refrained from correcting his questioners.

The fact that members of Congress were mispronouncing the name of one of the most important business leaders in the US was an embarrassing slip many observers immediately noted on Twitter. Especially as it was Pichai’s third time being questioned in front of Congress.

And while getting Pichai’s name right is a less important point in the scope of the broader issues at stake around social media, it’s not insignificant, either. In recent months, Trump and some Republican lawmakers have repeatedly mocked Democratic vice presidential nominee Kamala Harris over the pronunciation of her name. It seems more likely that in this case, senators were botching Pichai’s name out of ignorance rather than malice. But as BuzzFeed News pointed out, Congress hasn’t had any trouble pronouncing other hard-to-pronounce names in the past. In the year 2020, there’s really no excuse for elected officials not to at least try and correctly pronounce the name of a global tech titan.

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The radical implications of the Supreme Court’s new ruling on Wisconsin mail-in ballots

President Donald Trump greets Supreme Court Justice Neil Gorsuch as Supreme Justice Brett Kavanaugh looks on ahead of the State of the Union address in the chamber of the U.S. House of Representatives on February 04, 2020 in Washington, DC.  | Mario Tama/Getty Images

The Supreme Court’s new decision on Wisconsin mail-in ballots threatens a century of voting rights law.

The Supreme Court just handed down an order in Democratic National Committee v. Wisconsin State Legislature determining that a lower federal court should not have extended the deadline for Wisconsin voters to cast ballots by mail.

The ruling, which was decided by a 5-3 vote along party lines, is not especially surprising. The lower court determined that an extension was necessary to ensure that voters could cast their ballot during a pandemic, but the Court has repeatedly emphasized that federal courts should defer to state officials’ decisions about how to adapt to the pandemic. Monday night’s order in Democratic National Committee is consistent with those prior decisions urging deference.

What is surprising, however, is two concurring opinions by Justices Neil Gorsuch and Brett Kavanaugh, each of which takes aim at one of the most foundational principles of American constitutional law: the rule that the Supreme Court of the United States has the final word on questions of federal law but the highest court in each state has the final word on questions of state law.

This division of power is implicit in our very system of government. As the Supreme Court has explained, the states and the federal government coexist in a system of “dual sovereignty.” Both the federal government and the states have an independent power to make their own law, to enforce it, and to decide how their own law shall apply to individual cases.

If the Supreme Court of the United States had the power to overrule a state supreme court on a question of state law, this entire system of dual sovereignty would break down. It would mean that all state law would ultimately be subservient to the will of nine federal judges.

Nevertheless, in Democratic National Committee, both Gorsuch and Kavanaugh lash out at this very basic rule, that state supreme courts have the final say in how to interpret their state’s law, suggesting that this rule does not apply to most elections.

They also sent a loud signal, just eight days before a presidential election, that long-settled rules governing elections may now be unsettled. Republican election lawyers are undoubtedly salivating, and thinking of new attacks on voting rights that they can launch in the next week.

A potentially seismic reinterpretation of American election law

As Gorsuch notes in his concurring opinion, which is joined by Kavanaugh, the Constitution provides that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” A separate constitutional provision provides that “each State shall appoint” members of the Electoral College “in such Manner as the Legislature thereof may direct,”

According to Gorsuch, the key word in these constitutional provisions is “Legislature.” He claims that the word “Legislature” must be read in a hyper-literal way. “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” he writes.

The implications of this view are breathtaking. Just last week, the Supreme Court split 4-4 on whether to overturn a Pennsylvania Supreme Court decision that also would have allowed some mailed-in ballots that arrive after Election Day to be counted. Both Gorsuch and Kavanaugh were among the dissenters, though because there were no written opinions, neither explained why they would have thrown out the state supreme court’s decision.

We now know why. Based on Gorsuch’s reasoning in Democratic National Committee, it’s clear that both he and Kavanaugh believe the Supreme Court of the United States may overrule a state supreme court, at least when the federal justices disagree with the state supreme court’s approach to election law.

That is, simply put, not how the balance of power between federal and state courts works. It’s not how it has ever worked.

Nor is it correct that the word “legislature” should be read in the hyper-literal way Gorsuch suggests. For more than a century, the Supreme Court has understood the word “legislature,” as it is used in the relevant constitutional provisions, to refer to whatever the valid lawmaking process is within that state. As the Court held most recently in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the word “legislature” should be read “in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.”

But Gorsuch’s opinion suggests that this longstanding rule may soon be gone (again, as he put it, “state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules”). State supreme courts may lose their power to enforce state constitutions that protect voting rights. State governors may lose their power to veto election laws, which would be a truly astonishing development when you consider that every state needs to draw new legislative maps in 2021, and many states have Republican legislatures and Democratic governors.

The return of Bush v. Gore

Kavanaugh, for what it’s worth, takes a slightly more moderate approach in his concurring opinion. The Supreme Court of the United States, he writes in a footnote to that opinion, may overrule a state supreme court when the state court defies “the clearly expressed intent of the legislature” in a case involving state election law.

Just how “clear” must a state court’s alleged mistake be? The answer to that is unclear. But it is clear that Kavanaugh rejects the longstanding rule that he and his fellow federal justices must always defer to state supreme courts on questions of state law.

That position could also have profound implications. In 2018, for example, the Pennsylvania Supreme Court struck down gerrymandered maps drawn by the GOP-controlled state legislature. Kavanaugh’s position would allow the Republican-controlled Supreme Court of the United States to overrule such a decision.

Kavanaugh also lifts much of his reasoning from a disreputable source. Before today, the Supreme Court’s decision in Bush v. Gore (2000), which effectively handed the presidency to George W. Bush, had only been cited once in a Supreme Court opinion — and that one citation appeared in a footnote to a dissenting opinion by Justice Clarence Thomas, which was joined by no other justice.

But Kavanaugh quotes heavily from Chief Justice William Rehnquist’s concurring opinion in Bush, which also embraced an excessively literal approach to the word “legislature.” It appears that Bush v. Gore, arguably the most partisan decision in the Court’s history — and one that Kavanaugh helped litigate — is back in favor with key members of the Court.

It’s worth noting that the decision in Democratic National Committee was handed down literally as the Senate was voting to confirm incoming Justice Amy Coney Barrett, a staunch conservative who during her confirmation hearings would not commit to recusing herself from cases involving the 2020 election.

That means that last week’s decision allowing a Pennsylvania Supreme Court decision to stand could be very short-lived. That decision, after all, was 4-4, with Chief Justice John Roberts voting with the Court’s three liberals. With Barrett, the Court’s right flank may well be getting a fifth vote to toss out the state supreme court’s decision — and to order an unknown number of ballots tossed out in the process.

It’s unclear what immediate impact the decision in Democratic National Committee will have on the upcoming election. Last April, about 79,000 ballots arrived late during Wisconsin’s primary election but were counted anyway due to a lower court decision. The Supreme Court’s decision in Democratic National Committee will prevent similarly late ballots from being counted during the 2020 general election. The deadline for Wisconsin mail-in ballots to arrive is 8 pm on Election Day.

Though 79,000 ballots could easily swing an election, that’s only if it is close (in 2016, Trump won the state by a razor-thin margin of some 22,000 votes). A large enough margin could minimize the impact of the Court’s decision, and voters can ensure that their vote is counted by voting early enough.

But while this decision may not change the result of the 2020 election, its impact is still likely to be felt for years or even decades — assuming that Republicans retain their 6-3 majority on the Supreme Court. American election law has entered a chaotic new world, one where even the most basic rules are seemingly up for grabs. And the Supreme Court just sent a fairly clear signal that it may be about to light one of the most well-established rules on fire.

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This is the future of abortion in a post-Roe America

Anti-abortion and abortion rights activists during the March for Life on January 19, 2018, in Washington, DC. | Alex Wong/Getty Images

The fall of Roe v. Wade won’t end abortion. Here’s what it will do.

If Roe v. Wade falls, what happens to abortion in America?

That was the question on a lot of Americans’ minds after the death of Justice Ruth Bader Ginsburg, with the Supreme Court on the brink of a 6-3 conservative majority. And now that the Senate has confirmed President Trump’s nominee, Amy Coney Barrett, the Court will likely have the votes to overturn the landmark 1973 decision that established Americans’ right to terminate a pregnancy.

Some have predicted a Handmaid’s Tale-esque future in which women are forced to bear children. Meanwhile, anti-abortion groups have begun quietly preparing for a baby boom once all Americans are forced to carry their pregnancies to term.

But the reality is that overturning Roe won’t end abortion in America. What it will end, across much of America, is legal abortion.

That will have devastating consequences for many people, especially low-income Americans and people of color in red states where the fall of Roe would likely shut down the few remaining clinics. “This is already an abortion desert,” Laurie Bertram Roberts, the executive director of the Mississippi Reproductive Freedom Fund, told Vox. If Roe falls, “you’re just talking about an abortion wasteland.”

But that doesn’t mean people who want to end a pregnancy would be completely without options. Abortion funds around the country would continue their work, in some cases helping patients travel to blue states to get the procedure. Community-based providers, who perform abortions outside the official medical system, would likely continue to operate. And self-managed abortion, in which people perform their own abortions with pills, would take a bigger role.

Preparing for that reality will require a lot from advocates and providers, from raising money to campaigning against laws that can send people to jail for self-managing an abortion. But people have been ending their pregnancies in America since long before Roe v. Wade or even abortion clinics existed, and a court decision isn’t going to stop them. It’s just going to change what their options — and the risks involved — look like.

Abortion law in America has a complicated history

To understand the future of abortion in America, it helps to understand the past. For generations, most reproductive health care in this country, from labor and delivery to abortion, was provided by midwives. As Michele Bratcher Goodwin, a law professor at UC Irvine and the author of the book Policing The Womb: Invisible Women and the Criminalization of Motherhood, put it, “the origin story in the United States is that women controlled reproductive health care.”

Midwives were a racially diverse group — before the abolition of slavery, half were Black, Goodwin said, a quarter were Indigenous, and another quarter were white. They generally cared for people in their homes, and there were no laws prohibiting them from performing abortions before “quickening,” or the time when a pregnant person can feel the fetus move (usually around 16 to 18 weeks). That began to change in the mid-19th century, when male doctors began an effort to supplant midwives and monopolize reproductive care.

Through the American Medical Association, founded in 1847, these doctors began to lobby for restrictions on abortion in part as a way of stopping midwives from doing the procedure. It worked. By the beginning of the 20th century, the percentage of reproductive care provided by midwives had plummeted, Goodwin said. And abortion bans proliferated around the country, with most states banning the procedure by 1880.

In the decades that followed, people who wanted an abortion had to find a doctor who would do the procedure illegally — an easier task for those who had money — or try to end the pregnancy themselves, using herbs, turpentine, or, yes, coat hangers. Such procedures could be dangerous, although the exact death toll is uncertain since deaths from illegal abortions often were not recorded as such. And abortion, though it remained illegal, became much safer in the mid-20th century with the widespread use of antibiotics. Underground provider networks like the Jane collective, founded in Chicago in 1969, also sprang up to help people get abortions, working with local doctors and even performing the procedure themselves.

Meanwhile, in the 1960s, states like California were beginning to liberalize their abortion laws. The Supreme Court was also laying the groundwork for constitutionally guaranteed reproductive rights in cases like Griswold v. Connecticut, a 1965 decision that struck down state restrictions on married couples’ use of birth control. And in 1973, the Court invalidated the remaining state abortion bans in one fell swoop, finding in Roe v. Wade that states could not impose an undue burden on Americans’ right to an abortion.

Ever since then, Roe has limited what states can do to restrict abortion. But they’ve still been able to do a lot within those limits. Especially after 2010, when Republicans took control of many state legislatures, states in the South and Midwest passed a flurry of laws restricting the operations of abortion clinics, such as by requiring providers to have admitting privileges at a local hospital. As a result, dozens of clinics in those regions shut down, leaving many states with just a handful of places — or only one — where patients can legally get an abortion. And laws requiring ultrasounds and waiting periods before a patient could get an abortion drove up the cost of the procedure and made it more time-consuming for patients. The Hyde Amendment, passed in 1978, also bars Medicaid from covering most abortions, meaning low-income Americans must often pay out of pocket even though they have the least ability to do so.

Today, many Americans have to travel hundreds of miles and pay hundreds or even thousands of dollars to get an abortion — if they can access one at all. And people in poverty, people of color, LGBTQ Americans, and undocumented immigrants all face disproportionately high barriers to ending a pregnancy. As Amanda Beatriz Williams, executive director of the Lilith Fund, an abortion fund in Texas, put it, “Roe is and has never been enough to protect our communities.”

Years of restrictions have forced advocates to adapt

Because of the ongoing march of restrictions in many states, abortion rights advocates have practice helping people access the procedure under difficult conditions. In Mississippi, for example, where only one abortion clinic remains, the Mississippi Reproductive Freedom Fund helps about a dozen people a week with money for an abortion procedure or travel to a clinic. For many others, the fund provides logistical support, helping patients find the nearest clinic or figure out how many pay periods they have left to save up for an abortion before they’re too far along. “We’re like abortion concierges, and also in a way like travel agents,” Roberts said.

Roberts isn’t sure exactly how many people the fund has helped over the years, but others have assisted hundreds — the New Orleans Abortion Fund, for example, has helped more than 1,500 patients get abortions since it was started in 2012.

Meanwhile, an increasing number of patients are choosing to manage their own abortions outside of the official medical system, often by taking the drug misoprostol. The drug, along with another medication, mifepristone, can also be prescribed by a doctor, and the regimen is approved by the Food and Drug Administration for use in abortions up to 10 weeks’ gestation. However, because of the difficulty of getting to a clinic to get the medications — whether because they have experienced discrimination in medical settings, or simply want privacy in ending their pregnancies — some people obtain the medication online or through a friend or other source, and take it on their own.

It’s difficult to estimate how many people go this route, since self-managed abortions happen outside official systems for tracking patients and procedures. But experts believe between 1 and 4 percent of abortions are self-managed, Farah Diaz-Tello, senior counsel at the reproductive justice legal group If/When/How, told Vox.

Despite these low numbers, there’s evidence that abortion restrictions could drive up interest in self-managed abortion — one recent study found that requests for abortion medication through an online service were higher in states with restrictive abortion laws.

Self-managed abortion can be a safe option for many people, experts say. In general, complications from medication abortion occur in less than 1 percent of cases. And while getting the medication online or elsewhere outside the medical system means the pills haven’t been through the FDA’s system for regulating medication content, one recent study by the reproductive research organization Gynuity of abortion pills ordered online found that most contained enough of the appropriate medication to be effective.

Ultimately, one of the biggest risks of self-managed abortion is not side effects from the medication, but criminal penalties for taking it. Five states — Delaware, South Carolina, Arizona, Idaho, and Oklahoma — have laws on the books that specifically ban the practice, and many others have laws against “feticide” or other crimes that can be used to prosecute people who self-manage. But If/When/How and other groups have been advocating for years to remove criminal penalties for self-managing, and they’ve had some successes — New York’s Reproductive Health Act, for example, passed in 2019, decriminalized self-managed abortion as part of a larger reform of the state’s abortion law.

Another part of the abortion landscape, in recent years as in decades past, has been community-based abortion providers who perform the procedure outside of a medical clinic. While some help people obtain and use abortion medication, others even perform surgical techniques like vacuum aspiration, as Nina Liss-Schultz reports at Mother Jones. And while their numbers are unknown due to the legal precarity of their work, one such provider told Mother Jones she knows as many as 75 people who provide at-home abortions or train others.

Providing abortions outside the medical system is even more legally risky than receiving them, since most abortion restrictions around the country target providers, not patients. But If/When/How and other groups have been advocating for their rights, as well as those of people who seek abortions. “It’s not enough for the law to simply not penalize people who end their own pregnancies,” Diaz-Tello said. “We have to make sure that communities aren’t destroyed by criminalization and that people aren’t removed from the community-based systems of care that help keep them safe.”

For many, a post-Roe future just means more of the work they’ve already been doing

While advocates and providers have mobilized in response to abortion restrictions in the past, the fall of Roe would require a new level of work.

Twenty-one states have laws on the books that could be used to criminalize abortion if the decision is overturned, according to the Guttmacher Institute. That includes 10 states, such as Louisiana and Mississippi, with “trigger bans” that are intended to prohibit abortion automatically if Roe falls. In those states, the reversal of Roe would likely have an immediate effect on clinics.

“It would almost be like if someone just one day came and snapped their fingers and all the legal abortion access went away,” Roberts said.

But that doesn’t mean abortion would end.

If/When/How, for example, will continue doing the same work it’s always done to decriminalize self-managed abortion. The group is “worried about the future of abortion rights jurisprudence, but for us, nothing changes,” Diaz-Tello said, “because, in many ways, Roe isn’t relevant to the question of whether people should avoid jail time for ending their own pregnancies.”

And the work that abortion funds and others have done in recent years could help prepare them for the end of Roe, many say. For example, the Covid-19 pandemic forced many funds to work even harder, since officials in states like Texas tried to suspend abortions, arguing that they were nonessential medical procedures.

“When Texas’s Governor Abbott exploited the Covid-19 pandemic to shut down abortion providers in Texas, we got a glimpse of a post-Roe state,” Williams, the Lilith Fund executive director, said. The group immediately “connected with abortion funds in other states facing similar crises, and we banded together to strategize, open lines of communication, share live-updates, and coordinate logistics.”

They’d do the same in the event of an end to Roe, Williams said: “we’d continue to strengthen our regional collaborations, and we’d continue to build out our infrastructure so that we can do whatever it takes to ensure people get the care they need.”

The hurdles ahead for many grassroots groups will be high. For one thing, advocates agree that self-managed abortion cannot and should not be patients’ only option — especially not while potential legal penalties remain in so many places. “SMA is not going to replace clinics,” Roberts said.

The collapse of Roe would likely mean a surge of patients from red states trying to get to blue states for care — perhaps something like what happened during the pandemic, when clinics in Colorado, New Mexico, and Nevada saw a 706 percent increase in patients coming from Texas. In a post-Roe future, though, it wouldn’t just be Texas — while it’s not yet clear how all state legislatures would respond, the states with trigger bans alone would create large “abortion wastelands,” as Roberts puts it. For example, patients across a region spanning Arkansas, Louisiana, Mississippi, Tennessee, and Kentucky could find themselves without a clinic in their state.

They might seek to travel to Illinois, where providers and advocates have already worked to expand care in preparation for future restrictions. But even if providers there and in other liberal states can absorb the influx, patients will need money to travel — a big obstacle when abortion funds in the places with the greatest need and fewest resources also often have the least cash on hand, Roberts said.

“I don’t know of any Southern fund, honestly, or any clinic that can really say we’re totally prepared for a post-Roe existence,” Roberts said. “None of us are funded enough.”

She explained they would need money, not just to fund patients in the months after Roe is overturned, but to fight for access in the years that follow: “We’re going to need money to organize to change state laws.”

Until and unless those laws are changed, the future of abortion without Roe could be, in some ways, a return to the past in which women performed the procedure at home or in their communities — but without the laissez-faire legal environment of the 17th and 18th centuries that allowed them to practice without fear. With the rise of self-managed abortion and community-based providers, abortion care is “being returned to women but under the specter of criminal punishment,” Goodwin said.

For many, the challenge now, and in any post-Roe future, is how to remove that specter — and how to make sure the many people who still want to have abortions in clinics are able to do so. It’s a difficult battle, but one many say they’ve had a lot of practice fighting.

“Abortion funds are experts in adapting to the ever-changing landscape of abortion access,” Williams said. “We’ve been flexing those muscles for years. I believe we’re ready for whatever comes next.”

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How an anti-democratic Constitution gave us Amy Coney Barrett

Judge Amy Coney Barrett, President Donald Trump’s nominee for the US Supreme Court, meets with Senate Majority Leader Mitch McConnell (R-KY). | Susan Walsh/Getty Images

The Republican Supreme Court was brought to you by a malapportioned Senate and the Electoral College.

In 2016, President Trump lost the national popular vote to Democratic nominee Hillary Clinton. He lost it by a lot — 2,865,075 votes, to be precise.

Meanwhile, the Senate just voted to confirm Trump’s third nominee to the Supreme Court. The vote was almost entirely along party lines, with Sen. Susan Collins (R-ME) crossing over to vote with all 47 members of the Senate Democratic caucus.

Yet, while pro-Barrett senators control a majority of the Senate, they represent nowhere near a majority of the entire nation. Indeed, the senators who voted against Barrett represent 13,524,906 more people than the senators who voted for her. (I derived this figure using 2019 census estimates of each state’s population. You can check my work using this spreadsheet.)

These two numbers — 2,865,075 and 13,524,906 — should inform how we view the actions Barrett will take now that she is one of the nine most powerful judges in the country. Barrett owes her new job to two of our Constitution’s anti-democratic pathologies.

If every American’s vote counted equally in a presidential election, Hillary Clinton would be president right now and Barrett would still be a law professor at Notre Dame. And if the Senate did not give Wyoming the same number of senators as California — despite the fact that California has more than 68 times as many people as Wyoming — Barrett would not have been confirmed.

And Barrett is not unique. The first justice in American history to be nominated by a president who lost the popular vote, and confirmed by a bloc of senators who represent less than half of the country, is Neil Gorsuch, Trump’s first nominee. The second is Brett Kavanaugh, Trump’s second nominee. The third is now Barrett. That’s half of the Supreme Court seats held by Republicans.

It is likely, moreover, that the Court’s newly enlarged Republican majority will make the United States even less democratic. Republican-appointed justices severely weakened the Voting Rights Act — the primary legal safeguard against racist voter discrimination — in Shelby County v. Holder (2013) and Abbott v. Perez (2018). Just last week, the Court divided 4-4 on whether to toss out an unknown number of ballots in the pivotal state of Pennsylvania.

The Pennsylvania Republican Party, which hopes to see these ballots tossed out, has already asked the Supreme Court to take up this case again. With Barrett on the Court, the GOP may now have five votes to prevail.

And that’s just the beginning. The Supreme Court plans to hear two related cases this term, Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee, which could potentially dismantle what remains of the Voting Rights Act. At the very least, these cases are likely to weaken the nation’s protections against racist voting laws, adding to the damage done by Shelby County and Perez.

Giving states broad leeway to target Black and brown voters will also likely hamper the ability of the Democratic Party, with its multi-racial coalition, to compete for the presidency or for control of Congress.

American democracy, in other words, has slipped into a death spiral. Anti-democratic features of our Constitution enabled a party that does not enjoy majority support to gain power. That party is now entrenching its power by appointing judges who tend to be hostile to voting rights. And, as the courts hand down more and more decisions undermining the right to vote, Democrats will find it harder and harder to compete in national elections.

Democrats, however, may have a brief opportunity to pull the nation out of this death spiral. Right now, polls show Democratic presidential nominee Joe Biden favored to win his upcoming election, and Democrats are favored to gain control over both houses of Congress.

If Democrats control Congress and the White House, they can add seats to the Supreme Court or enact other judicial reform measures that can dilute the influence of judges like Barrett and even reestablish a pro-democracy majority on the nation’s highest Court.

Even in the best-case scenario for Democrats, however, there is no guarantee that they will hold onto the Senate for more than two years. Indeed, because of Senate malapportionment, Republicans stand a decent chance of regaining control of the Senate in the 2022 midterm elections — especially if a Republican Supreme Court spends the two years between now and the midterms limiting the right to vote.

Democrats, in other words, will likely need to make a very difficult decision very quickly: add seats to, or drastically reform, the Supreme Court, or risk the further entrenchment of Republican power thanks to our anti-democratic Constitution.

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Amy Coney Barrett has officially been confirmed as a Supreme Court justice

Judge Amy Coney Barrett on Capitol Hill on October 1. | Anna Moneymaker/Getty Images

Barrett’s confirmation solidifies a 6-3 conservative majority on the high court.

In a narrow 52-48 vote, the Senate has officially confirmed Amy Coney Barrett for appointment to the Supreme Court, a huge win for Republicans who worked quickly — and ignored past precedent — to advance her nomination.

Barrett, who will now take the seat of the late Justice Ruth Bader Ginsburg, is a staunch conservative whose vote could be the deciding one on upcoming cases involving the Affordable Care Act, abortion rights, and voting rights. Her confirmation solidifies a 6-3 conservative majority on the high court, and is likely to affect its skew for decades.

Ultimately, every Republican senator except Susan Collins (R-ME) voted in favor of Barrett’s confirmation, while no Democrats did. Collins voted against Barrett because she disagreed with the process used for her nomination, something Democrats had objected to as well. Democrats had also expressed concerns about the conservative slant of Barrett’s past writings and opinions.

Overall, Barrett’s nomination has been controversial for many reasons including its timing: In 2016, Senate Republicans refused for months to consider a Supreme Court nominee until after the general election, because they argued that the American people — through their votes — should have a voice in the decision-making process. This year, however, with less than two months to go until the election, Republicans moved to expedite Barrett’s confirmation.

Kevin Dietsch/Getty Images

Supreme Court nominee Amy Coney Barrett is sworn in during the Senate Judiciary Committee confirmation hearing on October 12, 2020.

To do so, Republicans made approving Barrett’s nomination their absolute priority, even as multiple lawmakers were diagnosed with coronavirus and as stimulus talks remained at an impasse. “Nothing about this is normal,” Sen. Cory Booker (D-NJ) emphasized at the start of Barrett’s confirmation hearing. “Instead of doing anything to help people who are struggling right now, we are here.”

Just eight days before the general election, Barrett now joins the high court. Her rushed confirmation further underscores how determined Republicans are to continue their work remaking the federal judiciary — and opens the door for a comparable Democratic response should they retake the Senate majority.

Amy Coney Barrett’s nomination, briefly explained

With her confirmation, Barrett, 48, becomes the Supreme Court’s youngest justice and the first justice to be a mother of school-aged children.

Previously a judge on the Seventh Circuit and a longtime Notre Dame law professor, Barrett has also clerked for former Supreme Court Justice Antonin Scalia — and emphasized that her focus on originalism is similar to his. “His judicial philosophy is mine, too,” she’s said.

Barrett is also a devout Catholic, and she has written in the past about how faith relates to judicial decisions about the death penalty. She will also be among six justices on the court who subscribe to the Catholic faith.

As Vox’s Ian Millhiser has written, Barrett has the potential to roll back the Affordable Care Act, undo Roe v. Wade, and expand the interpretation of the Second Amendment as a member of the court. While she’s only been a judge for a few years, she’s critiqued the Court’s decisions to uphold the ACA in the past, and contributed to opinions that signal an openness to limiting abortion access.

Among the first cases that Barrett will consider as a Supreme Court justice is one examining whether the Affordable Care Act should be overturned: Pending any decision to recuse herself, she’ll weigh in on whether a change to the individual mandate — the tax Americans had to pay for not getting health insurance — would affect the validity of the entire law.

Much like previous judicial nominees, Barrett did not comment on how she’d rule on particular cases like this one. She has been critical of Justice John Roberts’s past opinions preserving the ACA. After the 2012 NFIB v. Sebelius decision, which preserved the ACA, she published an argument noting that Roberts’s conclusion “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” There is reason to believe that she may view the current case differently, however.

There are outstanding questions about how Barrett would handle a slew of issues — including possible recusal in a case involving the upcoming election outcome, if that comes before the Supreme Court. Multiple Democrats had asked if Barrett would recuse herself from a case like this, since it could pose a conflict of interest given her recent appointment by Trump — who’d likely have a stake in the lawsuit. During her hearing, she declined to say whether she’d recuse herself, but noted that she’d take the steps needed to see if that would be appropriate.

Chip Somodevilla/Getty Images

Barrett with President Trump after her nomination to the Supreme Court at the White House, on September 26.

Overall, Barrett — following in the tradition of other judicial nominees — did not offer much indication on how she’d evaluate contentious subjects. But Democrats have expressed frustration at her evasiveness in general. She dodged a number of straightforward questions, included ones asking whether she believed that climate change was real and if she felt a president had the unilateral authority to delay an election.

This nomination process has fired up voters in both parties ahead of the election

Members of both parties have said that they’re fired up by the Supreme Court confirmation process, and the energy it has created could have an impact on the upcoming presidential and Senate races.

And for Democrats, the rapid-fire nature of Barrett’s confirmation, specifically, stood out as problematic — particularly since McConnell even told the White House to hold off on a badly needed stimulus agreement, in part, out of concern that it would complicate the timing of Barrett’s nomination, per the New York Times.

According to an October survey by Data for Progress, 47 percent of Democratic likely voters, 32 percent of independents and 47 percent of Republicans said that Barrett’s Supreme Court nomination was a factor they were considering as they headed to the polls. Meanwhile, 75 percent of likely Democratic voters think the entire confirmation process has been rushed, while 38 percent of independents, and 30 percent of Republicans agree.

Certain lawmakers on the Senate Judiciary Committee like Sens. Lindsey Graham (R-SC) and Kamala Harris (D-CA) have also used this opportunity to energize their respective bases as they vie for reelection and the White House, respectively.

In the long term, Democrats have signaled that Republicans’ willingness to expedite Barrett’s nomination has opened the door to similar actions on their part if they retake power. Progressive groups and lawmakers have urged Senate Democrats to consider modifying how the Court operates — or even expanding the size of the Court — if they end up winning the seats needed to do so, for example.

“Don’t think when you have established the rule of ‘because we can,’ that should the shoe be on the other foot, you will have any credibility to come to us and say: ‘Yeah, I know you can do that, but you shouldn’t,’” Sen. Sheldon Whitehouse (D-RI) said earlier this month. “Your credibility to make that argument at any time in the future will die in this room and on the Senate floor if you continue.”

Erin Schaff/Getty Images

Barrett attends a meeting with Vice President Mike Pence at the US Capitol on September 29.

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The messy politics of Nextdoor

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Want to see how polarized America is? Look no further than Nextdoor.

Ray Wang is bothered about what’s happening on Nextdoor lately. As a moderator for his neighborhood in Cupertino, California, he has been watching the conversation closely.

“It’s descending into a cesspool of bad conversation,” Wang told Recode. “A lot of folks are very emotionally charged. They’re feeling very vulnerable and anxious at the moment, and it’s only amplifying that anxiety.”

Though it’s best known for wanting to help neighbors locate missing dogs, connect with babysitters, and find fellow hobbyists, that’s not what some Nextdoor feeds look like in the days ahead of the 2020 election. Despite the company’s efforts to restrict discussions about national politics and keep things civil, some conversations on Nextdoor are becoming riddled with conspiracy theories and tense fights over local politics as well as the presidential race, according to multiple Nextdoor users and moderators.

Ultimately, the platform is facing the same challenges of polarization and misinformation as other social networks, like Facebook and Twitter.

Nextdoor, which has reportedly signed up more than 10 million users and nearly 220,000 neighborhoods in the US, is mulling a public stock listing and has long tried to set itself apart as a safe space for local discourse. For instance, a feature called a “Kindness Reminder” encourages people to be nice in their comments on the platform. Nextdoor prohibits certain forms of misinformation, such as false information that could interfere with voting and calls to incite violence. The company also doesn’t allow political ads, and to discourage tense political debates, it directs discourse about national politics to less prominent areas of the Nextdoor website and app.

But given the highly segmented nature of Nextdoor, it’s hard to tell how its communities are processing the election overall, though the company has said that use of the service has surged amid the pandemic. While it’s easier for misinformation and other content to go viral on Facebook and Twitter, Nextdoor limits who can see particular feeds based on who lives in a particular area.

“The danger in that is that smaller sub-communities could be forming around highly salient, mini echo chambers of people who strongly buy into this like-minded community,” explained Catherine Delcourt, a computer science professor at Wellesley who has studied social media and political polarization.

The restricted nature of Nextdoor communities can make it harder to manage misinformation and other contentious content, which has appeared on the platform this election season. Meanwhile, it’s not clear that all the moderators charged with managing these discussions are prepared for — or even interested in — keeping things as neighborly as the platform would like.

Nextdoor wanted to divert people from national politics, but it hasn’t succeeded

In anticipation of the upcoming election, Nextdoor announced in August that it would make changes to keep national politics out of users’ main feeds and in separate groups. Now, Nextdoor’s automated system tries to guess whether a post is about a non-local political topic, and if so, it will invite the poster to start a separate group for the topic. At the same time, the platform instructs moderators to flag posts that move toward national issues.

This was done, Nextdoor CEO Sarah Friar explained in an interview with Yahoo Finance earlier this year, because discussions of national politics could too quickly descend into discourtesy between neighbors. The company has long aspired to be a social network where civility and neighborliness prevail; there’s even a guide to being respectful to your neighbors in the Nextdoor help center. Still, users criticize the company for becoming, instead, a platform for all sorts of pettiness, vitriol, and offensive behavior among neighbors.

Nextdoor

On its website, Nextdoor displays a “decision tree” directing its moderators how to regulate posts about politics.

“Your ability to connect to Nextdoor is really tied into living in that physical place, which creates a very different network and community than what you would see on Twitter and Facebook,” Delcourt explained.

The local nature of Nextdoor has factored into some of the company’s biggest controversies. The company made changes to its crime reporting feature after criticism that the platform enables racial profiling and an exaggerated fear of crime, and there have been reports of police digitally patrolling Nextdoor neighborhoods and discrimination against Black users.

This election season, rumors about voting issues have sometimes swirled on Nextdoor, according to local reports and discussions on Reddit. Officials in Colorado, for instance, have found themselves responding to claims that originated on Nextdoor, like unsubstantiated reports of voter intimidation at ballot boxes.

On a Nextdoor post about wearing masks, a commenter shared an image that implied Democrats might vote on a different day than Republicans. The user said the post was flagged to both the neighborhood moderators and Nextdoor staff, and was eventually removed.

In one Georgia Nextdoor community, a user shared a chain message from a “very reliable good friend” that warned of poll workers marking up ballots, falsely claiming that this could invalidate them. Another user eventually pointed out that the rumor was wrong — poll workers can’t invalidate ballots by writing on them — and directed others to a Snopes fact-check of the viral message. But several people had already said they shared the same post on their own personal social media, according to Audrey Harrelson, a retiree in the community who spoke with Recode.

There’s also evidence that more extreme conspiracy theories aren’t always taken down. A search of publicly available content on the platform indicates that, to some extent, the platform has housed QAnon-related content and organizing. Tammy Fiorella, who lives in New Jersey, told Recode that it took weeks and a Twitter call-out for Nextdoor to respond to her reports of a neighbor’s posts containing QAnon talking points. A screenshot reviewed by Recode showed this user accusing billionaire George Soros of funding a Democrat-led “deep state” and arguing that the media covers up child abuse and human trafficking.

Part of the challenge of keeping conspiracy theories and misinformation off of Nextdoor stems from the company’s approach to moderation, which is typically led by several residents of a neighborhood (Nextdoor staff can sometimes step in). These unpaid moderators are given special privileges on the site, like the ability to vote on what constitutes a violation of Nextdoor’s rules.

But the moderation system has led to problems. Earlier this summer, Nextdoor faced criticism when moderators deleted posts in support of Black Lives Matter, which only added to existing concerns about racist moderation practices. In response, the company declared that posts supportive of Black Lives Matter should be allowed on the platform — and could be considered local issues — and said that leads would receive unconscious bias training.

Nextdoor tries to discourage discussion of national politics.

Nextdoor did not respond to several requests for comment on political discussion on its platform. Vote.org, a nonprofit working with the company on voter turnout initiatives, declined to comment.

Despite Nextdoor’s policies discouraging conversations about national politics, discussions of neighborhood topics can quickly derail into debates about exactly that, according to Will Payne, a geographic information science professor at Rutgers, who has researched Nextdoor. Posts about topics like yard waste pickup, he says, can quickly descend into discussions about “antifa” and “the wall.”

“I think they saw that as an issue and created this other place to say, ‘Look, you can talk about Trump, Biden, or whatever, you just can’t do it in the main area. We’re going to create special groups for you to go talk about that,’” Payne told Recode about Nextdoor’s attempt to move national politics discussions to groups, noting that Yelp has a similar strategy of sequestering certain discussions to other parts of its platform.

But many issues with moderation remain. Kiersten Dirkes, who works in the film industry in the greater Los Angeles area, told Recode that when she posted a link to warn people about California GOP officials setting up unauthorized ballot boxes, her post was removed. Another Nextdoor user from a suburb of Daytona Beach, who calls herself “very socially aware,” says the conservative-leaning moderators of her community make no attempt at fairness, and routinely remove her posts from the general feed while leaving pro-Trump posts up.

Some users say the platform has devolved markedly in the past few months.

“It went from ‘All Lives Matter’ to Covid, and then as things really started ramping up for the election, things kind of went off the rails,” says Fiorella in New Jersey, who says she’s not in any politics-focused groups on Nextdoor. “I rarely see a post that’s really about a neighborhood thing. Like once in a blue moon, I’ll see something about a lost dog or cat or something.”

Robert, another user based in Daytona Beach, Florida, who asked to be identified only by his first name, told Recode that his Nextdoor community has evolved from backlash against Covid-19 safety measures, like wearing masks, into conspiracy theories and misinformation about the election, which seems inspired by Trump’s rhetoric.

“Nextdoor was a tool that was created to be helpful for people and their neighbors,” Robert said. “But it’s now spawned into this offshoot thing that’s like the worst of Facebook and Twitter combined — but at a hyperlocal level.”

A common flashpoint, several users told Recode, is stolen political yard signs. Sometimes, these fights can get people booted from the platform. Ian Shea-Cahir, who works in social media in Kansas City, says he posted on Nextdoor that the theft of his Biden-Harris and Black Lives Matter lawn signs constituted a crime. Then a neighbor joined the thread, threatened Shea-Cahir, and called him a “communist.” Shea-Cahir responded by reporting the comment to the Nextdoor moderators and forwarding screenshots to the police. When the insults continued, Shea-Cahir donated to Black Lives Matter in the neighbor’s name. Nextdoor then blocked Shea-Cahir from posting on the platform, claiming he had been bullying.

Even local discussions have become polarized on the platform

Compared to national politics, Nextdoor is more welcoming of discussions of local and state politics, which can have a more measurable influence on a locality’s policies. This appears to be a way that Nextdoor can set itself apart from other social networks, which could soon be more direct competition. Facebook is currently testing a feature called Neighborhoods that looks an awful lot like Nextdoor. This invites users to create verified, localized profiles that connect with others nearby, a move that comes as Facebook continues to emphasize private group interactions.

“We think local politics actually has a really big place on Nextdoor,” Friar told Wired earlier this fall. “It’s an interesting nuance of: how do we ensure national moves off into a group but local can really stay in the main newsfeed because, for many people, there’s no local news anymore, no newspaper to go to. So it can be the way they’re finding out about what’s going on with, say, the local mayor.”

The platform also provides local public agencies like city governments as well as fire and police departments a direct channel to “easily broadcast information” to several Nextdoor communities at once.

But even in local updates, multiple users told Recode that misinformation, politically motivated moderation, and general distrust of discussions about local political topics remain problematic on Nextdoor. Officials in one town in Michigan even sued Nextdoor this summer, arguing that misinformation about a local ballot initiative spread on the platform and led to its failure to pass.

Beyond misinformation, some neighborhood feeds seem influenced by politicized moderators and a black-box algorithm. Wang, the moderator from Cupertino who described Nextdoor as a “cesspool of bad conversation,” says the platform’s moves to discourage national political discussions have made discourse around local politics even more heated.

“I honestly don’t think they want to be in the political business or in the business of censorship,” Wang said. “They just want to be a happy community that’s hyperlocal.”

Stephen Floor, a professor at the University of California San Francisco, noted that there’s no mechanism for users to report and remove false information about local initiatives, adding that his Nextdoor contains misinformation about several California propositions on the ballot this year.

“I understand that there’s going to be differences of opinion,” he told Recode. “But when somebody misrepresents the text of a proposition that is worth billions of dollars, that seems to be something that should be regulated.”

But understanding just how much of Nextdoor has been subsumed by the election is difficult. Each community, segmented from public view, comes with its own tensions and problems. And each neighborhood can end up in its own echo chamber, with moderators and community creating their own political reality.

“I looked around here and I couldn’t find any election misinformation in my small neighborhood and its neighbors in Central New Jersey,” said Payne, the Rutgers professor. “But that tells me very little about what’s going on elsewhere.”

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