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

[Tom@TomCares.com]

I am curious which situations you might imagine where votes would already
be cast, without laches applying? If an administrator sets a policy in
advance of the vote, a litigant should address it promptly before voters
start casting ballots under that policy.

-Tom Cares

On Sun, Dec 13, 2020 at 8:30 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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