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

Sun Dec 13 13:03:49 PST 2020

All,

Thanks so much for the replies. I agree, laches would usually apply.
Imagine a case where the policy that was announced before the election was
valid, but the means in which it was followed on election day was a
substantial departure from that policy. In other words, there was no way
for the candidate to know before the election that there was reason to sue.
I don't think laches would bar that suit.
---------------------------------------------------------------------------
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 2:59 PM Tom at TomCares.com <Tom at tomcares.com> wrote:

> 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.”
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> https://department-lists.uci.edu/mailman/listinfo/law-election
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> https://department-lists.uci.edu/mailman/listinfo/law-election
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201213/39231eb3/attachment.html>