[EL] Response to Stay Apps in PA Case

Mon Oct 5 18:49:17 PDT 2020

Ned:  Why does the more limited congressional "manner" power re: electors
bear on the separate Art. II question about the relationship between a
state statute and the state constitution?  The only part of the case that
involves *Congress* is the GOP's *statutory *argument about setting
election day, which of course Congress has done for all federal elections,
including those for electors.

On Mon, Oct 5, 2020 at 9:41 PM Foley, Edward <foley.33 at osu.edu> wrote:

> Rick and List,
>
>
>
> As noteworthy (and unsurprising) as the stay in the South Carolina case,
> the response of the Pennsylvania Democratic Party to the two emergency stay
> applications in the case from the Pennsylvania Supreme Court seems, to me
> at least, the more significant development of the day at the U.S. Supreme
> Court.
>
>
>
> What struck me about the response—and I’m curious as to the views of
> others—is that it did not call for a straightforward denial of the stay
> applications (as one would ordinarily see in a response like this).
> Instead, the response asks SCOTUS to:
>
>
>
> “treat the stay applications as
>
> petitions for writs of certiorari; grant certiorari on the questions
> presented (as well as the existence
>
> of Article III standing, should the Court conclude that Applicants may
> lack standing); treat the stay
>
> papers as merits briefing; and issue a summary decision as soon as is
> practicable”
>
>
>
> This suggest to me that this Pennsylvania case may end up being even more
> significant than I thought it would be initially.  On the merits, I thought
> the response weaker than I expected. It confined its response to the
> Article II, in contrast to the Article I, issue to a footnote (p. 21 n.
> 17)—saying that the analysis of the two were essentially identical “because
> both clauses
>
> give state legislatures the authority to determine, in the first instance,
> the “manner” in which a State will conduct a
>
> federal election.”
>
>
>
> But this seems incorrect to me.  Yes, Article I gives Congress plenary
> authority to override any state law regulation concerning congressional
> elections, see *Arizona Inter Tribal*, but the same is not true of
> Article II.  Congress has no authority to determine the “manner” of
> appointing presidential electors. True, Congress “may determine the time of
> choosing the electors, and the day on which they shall give their votes;
> which day shall be the same throughout the United States”—but this is not
> at all the same as Article I giving state legislatures the authority to
> regulate congressional elections “in the first instance” subject to
> congressional override, as the Democrats’ response put it.
>
>
>
> I’m still wrestling in my own mind the limiting principle that would
> acknowledge that a state’s constitution can constrain to some extent a
> state legislature without violating the state legislature’s Article II
> power to determining the manner of appointing presidential electors
> (imposition of a secret ballot requirement, for example, as a matter of
> state constitutional law, which the legislature cannot violate if it
> chooses a popular vote as the manner of appointing electors), while at the
> same time not permitting a state constitution to completely eviscerate the
> state legislature’s power to determining the manner of appointing electors
> by, for example, vesting this power in the state’s governor or state’s
> judiciary rather than the state’s legislature.  I confess that the
> Democrats’ response did not help me very much in this regard.
>
>
>
> I’ll be interested to see how SCOTUS chooses to handle the case now and
> what it decides to say on some very important constitutional questions in
> advance of November 3.  As it stands now, I would expect a majority of the
> Court to favor the applicants’ position in this case, but I’m not sure how
> broadly they will want to rule/opine in the context of an emergency stay
> motion.  Maybe the Court can do what it did in the John Anderson case as I
> recall (*Anderson v. Celebreeze*), which is to issue an emergency ruling
> in advance of the election, and then return to the merits of the issue
> later, with full briefing and oral argument on an ordinary schedule.
>
>
>
> Again, I’m very curious to what others may think about all this. Thanks.
>
>
>
> Best, Ned
>
>
>
>
>
>
> [image: signature_1204328033]
>
>
>
> *Edward B. Foley *
>
> Ebersold Chair in Constitutional Law
>
> Director, Election Law at Ohio State
>
> Moritz College of Law   614-292-4288
>
>
>
>
>
> *From: *Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of Rick Hasen <rhasen at law.uci.edu>
> *Date: *Monday, October 5, 2020 at 8:34 PM
> *To: *"law-election at uci.edu" <law-election at uci.edu>
> *Subject: *[EL] Breaking: SCOTUS decides South Carolina case
>
>
> Breaking and Analysis: Without noted dissent, Supreme Court reverses 4th
> Circuit and says South Carolina voters still need to provide witness
> signatures to cast absentee ballots (except for those who already voted and
> ballots received within 2 days)
> <https://urldefense.com/v3/__https:/electionlawblog.org/?p=116241__;!!KGKeukY!lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQmB-ibUcA$>
>
> Posted on October 5, 2020 5:18 pm
> <https://urldefense.com/v3/__https:/electionlawblog.org/?p=116241__;!!KGKeukY!lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQmB-ibUcA$>
>  by *Rick Hasen*
> <https://urldefense.com/v3/__https:/electionlawblog.org/?author=3__;!!KGKeukY!lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQlofOE_uA$>
>
> You can find the order here
> <https://urldefense.com/v3/__https:/electionlawblog.org/wp-content/uploads/20A55-Order.pdf__;!!KGKeukY!lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQn_8Pxgdw$>
> .
>
> As I explained today in Slate
> <https://urldefense.com/v3/__https:/slate.com/news-and-politics/2020/10/supreme-court-covid-voting-cases-pennsylvania-south-carolina.html__;!!KGKeukY!lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQmj0act5g$>,
> “In South Carolina, a federal district court held that a requirement that
> those voting by mail obtain a witness signature unconstitutionally burdened
> voters’ rights during the pandemic, given the higher risk of COVID coming
> from obtaining such signatures. This followed similar, unchallenged orders
> from the judge during the primary season. A 4th U.S. Circuit Court of
> Appeals panel reversed, but the full 4th Circuit reinstated the
> requirement. The Republican Party and South Carolina government have gone
> to the Supreme Court to restore the requirement, even as voting by mail has
> already begun.”
>
> In today’s order, the Court reversed the en banc 4th Circuit and
> reinstated the signature requirement (except for those who already voted
> and ballots received within two days of this order). Justices Thomas, Alito
> and Gorsuch would have made those people who voted without a signature have
> to vote again to have that vote count.
>
> Justice Kavanaugh, speaking only for himself, defending the Court’s order
> on two grounds: deference to state officials over what do to about
> covid-related issues and the Purcell principle. I wrote in Slate about
> Purcell:
>
> *The third argument we are seeing from Republicans in both federal and
> state cases is something I have dubbed the Purcell principle
> <https://urldefense.com/v3/__https:/ir.law.fsu.edu/cgi/viewcontent.cgi?article=2542&context=lr__;!!KGKeukY!lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQnKU1V7vA$>,
> which suggests that courts should not accept challenges to state laws the
> nearer the date to an election because changes to voting close to the
> election can cause voter and election administrator confusion.*
>
> *The Purcell principle has never been fully explained, it has been applied
> inconsistently, and it focuses on only one aspect of how courts should
> consider emergency changes to the rules. It also doesn’t follow ordinary
> Supreme Court practice of considering a number of factors when adjudicating
> whether to grant emergency relief. Still, many courts this cycle, including
> the Supreme Court, have rejected changes to voting rules on grounds they
> come too close to the election. The South Carolina case is particularly
> interesting since the witness signature requirement was not in place in the
> primary and has been used for voting so far. Reinstating it now would cause
> more confusion and disenfranchisement.*
>
> There were no noted dissents from the Court’s order, not even from the
> three liberals.
>
> What to make of all of this? A few observations:
>
> 1.      This sends a strong signal that the Supreme Court is going to be
> wary of federal court ordered changes close to the election, even those
> done to deal with burdens on voters created by the pandemic (like the need
> to get witness signatures). This does not bode well for other cases heading
> up the pipeline where federal courts issued such orders. It also signals,
> per Justice Kavanaugh’s concurrence, a strong version of the Purcell
> principle is in play. With Gorsuch, Alito, and Thomas willing to go even
> further in risking disenfranchisement of voters, this is a signal that this continues
> to be
> <https://urldefense.com/v3/__https:/www.liebertpub.com/doi/full/10.1089/elj.2020.0646__;!!KGKeukY!lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQl2WxCkRQ$> a
> Court not willing to strongly protect voting rights.
> <https://urldefense.com/v3/__https:/nymag.com/intelligencer/2020/10/trumps-new-supreme-court-is-coming-for-the-next-elections.html__;!!KGKeukY!lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQnTK_heqw$>
>
> 2.      It is not clear exactly how these principles will play out when
> these emergency actions come up from state courts, where the doctrinal
> context is different. Rather than *Anderson-Burdick* federal
> constitutional balancing, these are cases under state law. And as Rick
> Pildes points out, it would be something new to move Purcell into state
> court doctrine. We could get some sense of this as the Court decides the
> pending Pennsylvania petition (also described in my Slate piece).
>
> 3.      Why did the Court’s liberals not note a dissent? It could be that
> they dissented without noting it, but in the other voting cases these
> Justices did not a dissent. One possibility is a compromise here: note the
> Court’s order did not extend to those in South Carolina who already voted
> without including a witness signature. Maybe unanimity was the price here.
> This also sends a signal to voting rights plaintiffs and Democrats who have
> been suing that things are not likely to go well as these cases work their
> way up to the Supreme Court. This is not a place that is going to be
> friendly for voting rights.
>
> 4.      This result doesn’t mean that Democrats and voting rights
> plaintiffs will lose all the cases coming up to the Court. There are
> reasons to think that the Pennsylvania case may not go Republicans’ way (as
> I explain in Slate, the Election Day argument is especially weak). That
> result may too signal a call to stand down in some of these cases with
> attempts to further litigate the election rules during a period when over 2
> million Americans have voted.
>
> 5.      Then again, this is all on the shadow docket, and these ruling
> are abbreviated and not fully explained. Perhaps we should not read too
> much into any one ruling. But if I’m a federal district court judge
> contemplating new relief at this stage of the process, I’m going to think
> long and hard about that before ordering it.
>
> [This post has been updated.]
>
> [image: Share]
> <https://urldefense.com/v3/__https:/www.addtoany.com/share*url=https*3A*2F*2Felectionlawblog.org*2F*3Fp*3D116241&title=Breaking*20and*20Analysis*3A*20Without*20noted*20dissent*2C*20Supreme*20Court*20reverses*204th*20Circuit*20and*20says*20South*20Carolina*20voters*20still*20need*20to*20provide*20witness*20signatures*20to*20cast*20absentee*20ballots*20(except*20for*20those*20who*20already*20voted*20and*20ballots*20received*20within*202*20days)__;IyUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJQ!!KGKeukY!lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQnHtvOyEw$>
>
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>
>
>
>
>
> --
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
> 401 E. Peltason Dr., Suite 1000
>
> Irvine, CA 92697-8000
>
> 949.824.3072 - office
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
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