[EL] The WI Federal District Court Decision on the Independent State Legislature Issues

[Josh Blackman]

Rick P.,

I appreciate the concise analysis. Here, I wrote a followup post:
https://reason.com/volokh/2020/12/13/what-is-the-remedy-for-a-substantial-departure-from-election-law/

What would the correct remedy be if there was a "substantial departure"
from election law? This remedial question has long vexed me.

Imagine there was a case where the plaintiff had standing, the case was not
moot, laches was not applicable, and there was an egregious departure from
the election code. Could a federal court in fact invalidate votes that were
cast in good faith reliance on the law?

Thanks always,
Josh

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Josh Blackman
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On Sun, Dec 13, 2020 at 12:11 PM Pildes, Rick <rick.pildes at nyu.edu> wrote:

>               I’m posting this on the blog but wanted to send to the list
> now:
>
>
>
> I wanted to highlight several important aspects of the recent decision in *Trump
> v. The Wisconsin Election Commission *on the so-called “independent state
> legislature” (ISL) doctrine.  The decision addresses several important
> issues about the ISL debate.  I also want to comment that, while we are
> fully aware of the courts uniformly rejecting the lawsuits the Trump
> campaign and its allies have brought, we have not said as much about the
> impressively high quality of many these opinions, particularly given the
> extraordinary time pressures under which they have been produced.
>
>
>
>               This decision was written by Judge Brett H. Ludwig, a Trump
> appointee just confirmed in September.  These are the important issues his
> opinion addresses and how he resolved them:
>
>
>
> 1.       *Standing to Bring Claims under the Electors Clause.  *There are
> uncertainties about who has standing to raise a claim under this clause.
> Some believe only state legislatures should have standing, since the clause
> protects the power to state legislatures.  Yesterday’s opinion rejects this
> view and concludes that candidates have standing to claim the Electors
> Clause has been violated, because they have a legally recognizable and
> particularized injury if they are harmed by a violation.  This holding is
> consistent with the positions of the Eighth and Eleventh Circuits on this
> issue.
>
>
>
> 2.      *Does the ISL Apply to the Way State Election Officials
> Administer* *the Election?  *This might be the most interesting aspect of
> the decision.  The Electors Clause empowers state legislatures to decide
> “the manner” in which a state chooses its presidential electors.  All
> states, of course, have decided to use popular elections to do so.  But
> what is the scope of this power to choose the “manner” of selection?
>
> The court concludes that “manner” means the basic mode of selection –
> whether to hold an election, or appoint the electors directly (as state
> legislatures did early on).  But the court concludes that the issue of how
> election officials administer the laws creating the popular election is not
> within the scope of the Electors Clause.  These administrative matters do
> not involve the “manner” of choosing the electors, but details of
> administration.  The court’s position on this is based on a textualist
> reading of the Electors Clause and is important:
>
> “If plaintiff’s reading of “Manner” was correct, any disappointed loser in
> a Presidential election, able to hire a team of clever lawyers, could flag
> claimed deviations from the election rules and cast doubt on the election
> results. This would risk turning every Presidential election into a federal
> court lawsuit over the Electors Clause. Such an expansive reading of
> “Manner” is thus contrary both to the plain meaning of the Constitutional
> text and common sense.”
>
> 3.      *Even if The Electors Clause Includes Election Administration, is
> the Clause Satisfied When Election Administrators Have Been Delegated
> Authority by the State Legislature? *The court hold that if the clause
> includes election administration, it also encompasses the legislature’s
> choice to empower election officials to perform the roles they performed in
> WI (this principle would likely extend to election administration in most
> states).  So if election administrators have been directly empowered by
> state legislation to implement the election laws, their decisions are
> consistent with the Electors Clause.
>
>
>
> 4.      *Even if A Court Were to Disagree with These Prior Conclusions,
> Under What Circumstances Does Election Administration Violate the Electors
> Clause?  *Finally, the court concludes that even if the Electors Clause
> includes election administration, the mere fact that election officials
> have resolved disputed issues of statutory construction does not amount to
> a violation.  Instead, only “significant departures” from the election code
> would violate the clause.
>
>
>
> 5.      *The Trump Campaign’s Claims “Fail On Their Merits.”  * I mention
> this because the President has recently taken to complaining that the
> courts are not resolving his campaign’s claims on the merits.  The court
> here could have declined to reach the merits, given its holdings on issues
> 2. and 3. above.  But instead, the court did go on to address the merits
> and reject the claims.
>
>
>
> As the court said in conclusion:  “This Court has allowed plaintiff the
> change to make his case and he has lots on the merits.”
>
>
>
>
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