[EL] Response to Stay Apps in PA Case

Mon Oct 5 19:49:57 PDT 2020

 A very quick response to Marty (and I haven't read the briefs):

The state legislature's power to determine how congressional elections will
be done is obviously not an exclusive power, because Congress can override
it. It also does not include the power to make the ultimate decision as to
who shall be elected.

For both those reasons, a state legislature's power under Art. I (even if
you think the Arizona redistricting case was decided correctly) doesn't
have the constitutional valence, so to speak, of the state legislature's
power under Article II. The Article II power is not subject to
congressional override and includes the power to make the ultimate decision
as to who shall be appointed to be the presidential electors. (Of course,
that power cannot ordinarily -- or perhaps ever -- be exercised after
electors are chosen on Election Day, per Congress's power to set the date
on which electors are chosen.)

I'm sure I could be clearer if I had more time, but I don't.

Mark

[image: Pepperdine wordmark]*Caruso School of Law*

*Mark S. Scarberry*

*Professor of Lawmark.scarberry at pepperdine.edu
<mark.scarberry at pepperdine.edu>*
Personal: mark.scarberry at gmail.com

On Mon, Oct 5, 2020 at 7:30 PM Foley, Edward <foley.33 at osu.edu> wrote:

> Hi Marty,
>
>
>
> The PA GOP stay app, at pages 24-26 is a full-on application of *Bush v.
> Palm Beach Canvassing Board*, *Bush v. Gore*, *McPherson v. Blacker*—that
> the state supreme court violated the state legislature’s Article II power
> to determine the manner of appointing electors—by negating the state
> legislature’s chosen deadline for return of mailed ballots, and
> substituting its own new deadline (3 days later) based on its reading of a
> nonspecific “free and equal elections” clause in the state’s constitution.
>
>
>
> I didn’t see in the Response to the stay app any real counter to this line
> of reasoning under Article II.  It talks about Rehnquist’s concurrence in *Bush
> v. Gore* as being about excessive statutory interpretation, saying that
> in this case the Pennsylvania Supreme Court didn’t really engage in
> statutory interpretation, but rather invalidated the state statute as
> applied because of the state constitution (Response, 24).  But that
> actually seems to me to put the state supreme court here on weaker footing
> than the Florida Supreme Court in *Bush v. Gore*, because bad statutory
> interpretation is at least attempting to implement the will of the state
> legislature, which is the body exercising the Article II power to choose
> the manner of appointing electors.  When the state supreme court, by
> contrasts, admits that it’s not doing statutory interpretation at all, but
> nullifying the legislature’s will because of its judicial view that a
> nonspecific “free and equal elections clause” requires that judicial
> nullification of the legislature’s will, it seems to me that the state
> supreme court is skating on much thinner ice if one accepts the basic
> theory of Article II that underlines the Rehnquist concurrence.  Whether or
> not one is inclined to agree with this theory, I didn’t see the Response
> really grabbling with it, and that would seem to make the state supreme
> court opinion potentially vulnerable on Article II grounds.
>
>
>
> But maybe I’m missing something here.
>
>
>
> Thanks, 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: *Marty Lederman <Martin.Lederman at law.georgetown.edu>
> *Date: *Monday, October 5, 2020 at 9:49 PM
> *To: *College of Law <foley.33 at osu.edu>
> *Cc: *Rick Hasen <rhasen at law.uci.edu>, "law-election at uci.edu" <
> law-election at uci.edu>
> *Subject: *Re: [EL] Response to Stay Apps in PA Case
>
>
>
> 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
>
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>
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> --
>
> Marty Lederman
>
> Georgetown University Law Center
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