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

Sun Dec 13 13:03:11 PST 2020

I am not a lawyer, but as a former election official I don’t see any remedy other than declaring the election invalid and holding a new one — unless  the contents of the disputed ballots are known. This may result in a temporary vacancy in the office.

By the way, it was my immediate predecessor on the Philadelphia County Board of Elections who presided over the Stinson-Marks election and segregated the ballots in question in her — later my — desk. And apparently Donald Trump went to Philadelphia to raise money for Marks — according to a source I can’t vouch for <https://spiritnews.org/articles/trumps-russian-speaking-lawyer-once-represented-local-district-after-winning-voter-fraud-suit/>.

> On Dec 13, 2020, at 12:51 PM, Pildes, Rick <rick.pildes at nyu.edu> wrote:
> 
> Yes, that’s a difficult question in the law of election remedies, which we cover in Chapter 10 of the current edition of our casebook.   There have always been contexts in which courts even permit future elections to be conducted unlawfully – such as when a districting plan is held illegal, but there’s not enough time to craft new plans, hold new primaries in validly drawn districts.
>  
> Laches does prevent the issue from arising all that frequently.  Most disputed issues affecting a significant number of ballots arise through actions that can be challenged in advance.
>  
> But if not, there’s another practical issue:  most of the time, there is no way of knowing for whom the votes were cast when a later determination is made that some election practice was not lawful.  Unless disputes arose early enough to segregate the ballots at issue, that practical constraint precludes litigation from even arising.  This tends to happen mainly if absentee ballots are the ones in dispute.   
>  
> But suppose the number of ballots later held to be invalidly cast is large enough to have potentially affected the outcome of the election.  Courts are still highly reluctant to order new elections.  They will do so when election fraud is the reason, particularly if one of the campaigns has been involved in the fraud.  Or if what makes the ballots invalid is a significant constitutional violation, but usually even these violations involve willfulness, like intentional racial discrimination.
>  
> Much more could be said about all this, I assume others will fill in some details. 
>  
>  
> Best,
> Rick
>  
> Richard H. Pildes
> Sudler Family Professor of Constitutional Law
> NYU School of Law
> 40 Washington Square So.
> NYC, NY 10014
> 347-886-6789
>  
> From: Josh Blackman [mailto:joshblackman at gmail.com] 
> Sent: Sunday, December 13, 2020 3:29 PM
> To: Pildes, Rick <rick.pildes at nyu.edu>
> Cc: Election Law Listserv <law-election at uci.edu>
> Subject: Re: [EL] The WI Federal District Court Decision on the Independent State Legislature Issues
>  
> 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/ <https://urldefense.proofpoint.com/v2/url?u=https-3A__reason.com_volokh_2020_12_13_what-2Dis-2Dthe-2Dremedy-2Dfor-2Da-2Dsubstantial-2Ddeparture-2Dfrom-2Delection-2Dlaw_&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=Vxgq79iQTe5XW6yXF4Lt4ByYak4IH4hK89I96ILvELY&s=epa9xZLjrHHSR66kmjs1OKsprjlYNE1t11MSTP2SWSc&e=>
>  
> 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://urldefense.proofpoint.com/v2/url?u=https-3A__amzn.to_2JDPbUL&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=Vxgq79iQTe5XW6yXF4Lt4ByYak4IH4hK89I96ILvELY&s=3LobXHO-38bCPkELmnbSm-xe9RrQ3Q7IkIeZJRB9bII&e=>
> Unraveled: Obamacare, Religious Liberty, & Executive Power <https://urldefense.proofpoint.com/v2/url?u=https-3A__amzn.to_3l9QcC4&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=Vxgq79iQTe5XW6yXF4Lt4ByYak4IH4hK89I96ILvELY&s=_Igw-eGReljK5CfHwhIq1qe1C0SGGktNADVILMqhaHg&e=>
> An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know <https://urldefense.proofpoint.com/v2/url?u=https-3A__amzn.to_34ASPou&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=Vxgq79iQTe5XW6yXF4Lt4ByYak4IH4hK89I96ILvELY&s=uXFH4vSjiJf3eg6pLBjyKNYIHQeaGQbc7anWu7-riVg&e=>
>  
>  
> On Sun, Dec 13, 2020 at 12:11 PM Pildes, Rick <rick.pildes at nyu.edu <mailto: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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