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

[Jonathan Adler]

FWIW, there are examples of federal courts reversing election outcomes due
to fraud. The one with which I am most familiar is the 1993 decision
invalidating absentee ballots due to widespread fraud in the Stinson-Marks
state legislative race in Pennsylvania. The federal court concluded the
Stinson campaign had engaged in widespread absentee ballot fraud and
invalidated all absentee ballots. Without the absentee ballots, Marks
prevailed. The decision was upheld on appeal.  The evidence in this case
was quite overwhelming.

JHA

----
Jonathan H. Adler
Johan Verheij Memorial Professor of Law
Director, Coleman P. Burke Center for Environmental Law
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
ph) 216-368-2535
fax) 216-368-2086
cell) 202-255-3012
jha5 at case.edu
SSRN: http://ssrn.com/author=183995
Blog: https://reason.com/people/jonathan-adler/
Web: http://www.jhadler.net




On Sun, Dec 13, 2020 at 3:30 PM Josh Blackman <joshblackman at gmail.com>
wrote:

> 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
>
> ---------------------------------------------------------------------------
> Josh Blackman
> *Unprecedented: The Constitutional Challenge to Obamacare
> <https://amzn.to/2JDPbUL>*
> *Unraveled: Obamacare, Religious Liberty, & Executive Power
> <https://amzn.to/3l9QcC4>*
> *An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone
> Should Know* <https://amzn.to/34ASPou>
>
>
> 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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