[EL] Response to Stay Apps in PA Case

[Douglas, Joshua A.]

I guess I don't really understand the question. Are there specific limits to what the U.S. Supreme Court can rule with respect to the federal Equal Protection Clause? As the U.S. Supreme Court has said on multiple occasions, state supreme courts provide the final word in interpreting state laws under state constitutions.

The wrinkle here, of course, is Article II. I outlined a limiting principle to ensure a state supreme court does not run afoul of Article II in the presidential election context, which is that the state supreme court cannot completely abrogate the "manner" of appointing electors--popular vote in all states--that the legislature has chosen. But it is perfectly consistent with state constitutional structure for a state court to construe a statute to make it consistent with the state constitution so long as it does not materially alter the basic method of appointing electors that the legislature chose.

Have a good evening.

Josh

________________________________
From: Smith, Bradley <BSmith at law.capital.edu>
Sent: Tuesday, October 6, 2020 12:23 AM
To: Douglas, Joshua A. <joshuadouglas at uky.edu>; Rick Hasen <rhasen at law.uci.edu>; Foley, Edward <foley.33 at osu.edu>; Marty Lederman <Martin.Lederman at law.georgetown.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Response to Stay Apps in PA Case

CAUTION: External Sender

So are there any limits?

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
Phone: (614) 236-6317
Mobile:  (540) 287-8954


________________________________
From: Douglas, Joshua A. <joshuadouglas at uky.edu>
Sent: Tuesday, October 6, 2020 12:06 AM
To: Smith, Bradley <BSmith at law.capital.edu>; Rick Hasen <rhasen at law.uci.edu>; Foley, Edward <foley.33 at osu.edu>; Marty Lederman <Martin.Lederman at law.georgetown.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Response to Stay Apps in PA Case

Brad,

That statement--that "free and equal" (and I'd add "free and open") election clauses "are simply non-justiciable, because they are so unbounded" is simply wrong as a matter of history and precedent, with many state courts invoking those clauses over the years. Perhaps you think that's wrong and they should be construed as non-justiciable, but that's simply not how most state courts have ruled.

Josh

________________________________
From: Smith, Bradley <BSmith at law.capital.edu>
Sent: Tuesday, October 6, 2020 12:04 AM
To: Douglas, Joshua A. <joshuadouglas at uky.edu>; Rick Hasen <rhasen at law.uci.edu>; Foley, Edward <foley.33 at osu.edu>; Marty Lederman <Martin.Lederman at law.georgetown.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Response to Stay Apps in PA Case

CAUTION: External Sender

Generally, such clauses are simply non-justiciable, because they are so unbounded.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
Phone: (614) 236-6317
Mobile:  (540) 287-8954


________________________________
From: Douglas, Joshua A. <joshuadouglas at uky.edu>
Sent: Monday, October 5, 2020 11:50 PM
To: Smith, Bradley <BSmith at law.capital.edu>; Rick Hasen <rhasen at law.uci.edu>; Foley, Edward <foley.33 at osu.edu>; Marty Lederman <Martin.Lederman at law.georgetown.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Response to Stay Apps in PA Case

A state constitution's "free and equal" clause has to mean something beyond the normal protection afforded to the constitutional right to vote under the federal Equal Protection Clause. If courts construe the free and equal clause to be the same as federal constitutional protection (which has no federal counterpart), then the clause itself is superfluous. As the Kentucky Supreme Court said in 1915 (and cited by several other state courts with similar provisions), "It applies to all elections, and no election can be free and equal, within its meaning, if any substantial number of persons entitled to vote are denied the right to do so." Wallbrecht v. Ingram, 175 S.W. 1022 Ky. 1915). There is a slew of scholarship (including my own) on the meaning of these state constitutional provisions and why they must reach beyond federal equal protection, instead of merely "lockstepping" the U.S. Constitution. That's what the Pennsylvania Supreme Court found.

I would submit, then, that the reach of the clause is a separate question from whether invoking it at all violates Article II's allocation of authority to the state legislature to determine the "manner" of appointing presidential electors. And on the latter question--the question that Ned's initial email prompted--it seems to me that Justice Stevens had it exactly right in his Bush v. Gore dissent:

“[t]he [State’s] legislative power is the supreme authority except as limited by the constitution of the State.” Ibid.; cf. Smiley v. Holm, 285 U.S. 355, 367 (1932). The legislative power in Florida is subject to judicial review pursuant to Article V of the Florida Constitution, and nothing in Article II of the Federal Constitution frees the state legislature from the constraints in the state constitution that created it.

With respect to Ned's question about a limiting principle, I would think that a state supreme court that alters the statutory scheme without abrogating it completely still leaves the "manner" of appointing electors in the state legislature's hands. In Pennsylvania, the "manner" the legislature chose is a popular vote of the people, and extending the absentee balloting deadline does not materially change that decision. But a state supreme court ruling that gives the authority to appoint electors to the Governor, for example, does materially change the "manner" of appointing electors because it completely abrogates the state legislature's choice. Thus, a state supreme court's decision can keep the main structure of appointing electors as the legislature chose, but change some of the details of that structure because of the need to ensure that the legislation complies with the state constitution. That action would seem consistent with a state constitution contemplating a state judiciary that will construe state legislation. After all, the Pennsylvania Constitution creates both the legislature and judiciary, so the "legislature" in Article II should be understood as including judicial interpretation of legislation so long as the basics of the legislature's choice of "manner"--a popular vote--remains the same.

Josh


[https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fci5.googleusercontent.com%2fproxy%2ffbwhqcNL_TKJ1ugd_PcoEuRnMfK1TqINzoJwIjqOWvO8VxUlppZCYsi4z2mGOFUsx0KAFQ60LyB_vfQXjL1ARXcqaZmWaxvL-dLp%3ds0-d-e1-ft%23https%3a%2f%2fuknow.uky.edu%2fsites%2fdefault%2ffiles%2fUK-logo.png&c=E,1,DXryFFrqraUuXRyMvDYMrJUwWmS0EQEYcJxoXQNfwS6reHvQMQZMzL05uRN8ugCutDWdQERioSUMiMmJdATlXC8JvIdXjRlALGyf3r0Aq4wXRuYWk3Ob&typo=1]
Joshua A. Douglas
Ashland, Inc-Spears Distinguished Research Professor of Law
University of Kentucky J. David Rosenberg College of Law
620 S. Limestone
Lexington, KY 40506
859-257-4935
joshuadouglas at uky.edu<mailto:joshuadouglas at uky.edu>
Twitter: @JoshuaADouglas<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Ftwitter.com%2FJoshuaADouglas&data=02%7C01%7Cjoshuadouglas%40uky.edu%7C269bdc61e21c400f822108d869af9664%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637375550168229866&sdata=GF1%2FvkG4EPFXViU5nEnet9A1u2RyTgp5DVE%2FfZcY1ys%3D&reserved=0>

   Find me at www.JoshuaADouglas.com<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttp%253a%252f%252fwww.joshuaadouglas.com%252f%26c%3DE%2C1%2CB36TonaxMUrTBUUTafj6L5JMOqD_NMiQRBlBAjkF4cmedTI4IIkziOi54lTbodh9CV_uBpIy5kYNZwWBa-6e1ZMzzl5ak5H4xcRYBxBb-L18oUlMtzuMbO-fbkM%2C%26typo%3D1&data=02%7C01%7Cjoshuadouglas%40uky.edu%7C269bdc61e21c400f822108d869af9664%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637375550168239864&sdata=J6fcFURiW5%2BtwoEcEw4qpTeN8zaFcTbH1jJCCQzMtas%3D&reserved=0>.


________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Smith, Bradley <BSmith at law.capital.edu>
Sent: Monday, October 5, 2020 11:17 PM
To: Rick Hasen <rhasen at law.uci.edu>; Foley, Edward <foley.33 at osu.edu>; Marty Lederman <Martin.Lederman at law.georgetown.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Response to Stay Apps in PA Case

CAUTION: External Sender

Serious question:

Joe Biden has said on multiple occasions that he can only lose the election if there is chicanery. Could, therefore, the Pennsylvania Supreme Court hold that the "free and equal" clause requires the state to appoint Biden electors? Could the court declare that 16-year olds get to vote? Could the court have ordered early voting to begin on May 15? In other words, is there any limit to what the state supreme court can do under the "free and equal" clause? If the court can interpret "free and equal" however they'd like, then does Pennsylvania have "free and equal" elections?

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
Phone: (614) 236-6317
Mobile:  (540) 287-8954


________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Rick Hasen <rhasen at law.uci.edu>
Sent: Monday, October 5, 2020 10:57 PM
To: Foley, Edward <foley.33 at osu.edu>; Marty Lederman <Martin.Lederman at law.georgetown.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Response to Stay Apps in PA Case


One point made in this brief:

https://www.supremecourt.gov/DocketPDF/20/20A53/156682/20201002164607951_298904_Brief.pdf<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttps%253a%252f%252fwww.supremecourt.gov%252fDocketPDF%252f20%252f20A53%252f156682%252f20201002164607951_298904_Brief.pdf%26c%3DE%2C1%2C6phhMBwKEHH8X1Si8BClVerCcGQIqB3u9aBmtMI-gyfro7HMoYtDw4ZB9QX_79THovZYAShX8Wq9Qt7OPFRy_TQgOWmtqvJbtbzOjblBcOGIpdTjQ_aHXA%2C%2C%26typo%3D1&data=02%7C01%7Cjoshuadouglas%40uky.edu%7C269bdc61e21c400f822108d869af9664%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637375550168249851&sdata=yQwOXc7H1BltM10bE7T%2BbwzIOn9MLmLXO2iHX4AuAvc%3D&reserved=0>

by Tom Ridge, Christine Todd Whitman, and others, is that the Legislature itself adopted the state constitutional principle upon which the state Supreme Court rested its decision:



I. IN 1967, THE PENNSYLVANIA GENERAL ASSEMBLY APPROVED THE DECLARATION OF RIGHTS, INCLUDING THE FREE AND EQUAL CLAUSE, AS ITS OWN. The Applicants ignore the ample history showing the crucial role of the General Assembly in the approval of the Free and Equal Clause of the Pennsylvania Constitution. The Pennsylvania Constitution of 1790 was the first Pennsylvania Constitution to include a “free and equal” election clause. In 1789, the Pennsylvania General Assembly adopted resolutions providing for a state constitutional convention. Pa. Act of Sept. 15, 1789; Pa. Act of March 24, 1789.3 The ensuing Convention of 1790 adopted the Pennsylvania Constitution of 1790 (the “1790 Constitution”).4 Article IX of the 1790 Constitution contained a Declaration of Rights. Section V of Article IX provided: “That elections shall be free and equal.” Section XXVI of the Article IX (the “Inviolate Clause”) provided that all of the rights in



In 1835, the General Assembly enacted a statute providing for an election to advise whether to have a constitutional convention. Pa. Act of Apr. 14, 1835. At that election, the voters supported a constitutional convention. In 1836, the General Assembly enacted a statute providing for a convention, the election of delegates to that convention, and an election to adopt or reject the convention’s proposed changes to the Constitution. Pa. Act of Mar. 29, 1836. The Convention of 1837 did not change the “free and equal” clause or the Inviolate Clause and those remained Sections V and XXVI of Article IX of the Pennsylvania Constitution of 1838. In 1872, the General Assembly enacted a statute that provided for a constitutional convention, an election of delegates to that convention, and an election to adopt or reject the convention’s changes to the Pennsylvania Constitution. Pa. Act of April 11, 1872 (“1872 Act”). Importantly, this statute precluded the ensuing 1873 Convention from narrowing the “declaration of rights.” 1872 Act § 4. The Pennsylvania Constitutional Convention of 1873 framed a revised Constitution (the “1874 Constitution”) that the voters approved on December 16, 1873. Pa. Const. note. The 1874 Constitution moved the Declaration of Rights to Article I. Section 5 of Article I (the “Free and Equal Clause”) now read: “Elections shall be free and equal; and no power of, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” The Inviolate Clause became Section 26 of Article I.



The current Pennsylvania Constitution is the Constitution of 1968. Pa. Const. note. In 1967, the General Assembly enacted a statute authorizing an election to determine whether to have a constitutional convention but only “with limited powers.” Pa. Act of Mar. 15, 1967, P.L. 2, No. 2 § 1 (“1967 Act”), available at https://www.legis.state.pa.us. Importantly, that statute precluded both voters and the convention from narrowing the Declaration of Rights contained in Article I of the 1874 Constitution. Id. §§ 1, 7. The voters authorized a convention. In compliance with the 1967 Act, the convention did not propose, and voters did not approve, any change to the Free and Equal Clause and merely renumbered the Inviolate Clause as Section 25 of Article I.





From: "Foley, Edward" <foley.33 at osu.edu>
Date: Monday, October 5, 2020 at 7:30 PM
To: Marty Lederman <Martin.Lederman at law.georgetown.edu>
Cc: Rick Hasen <rhasen at law.uci.edu>, Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Response to Stay Apps in PA Case



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



[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<mailto: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





[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<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Date: Monday, October 5, 2020 at 8:34 PM
To: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto: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://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttps%253a%252f%252furldefense.com%252fv3%252f__https%253a%252felectionlawblog.org%252f%253fp%253d116241__%253b%2521%2521KGKeukY%2521lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQmB-ibUcA%2524%26c%3DE%2C1%2CZqQUS9pLJONVDv_hrWWVr_vxado3gphrYbrv9Maj8pWDB793UmS1PPTJqcCiAC20Nh0YrCt166Ap4K7JzDKWymCtLm8CQgeFUgYdM0GFC2q3ary3uAZZRcIx%26typo%3D1&data=02%7C01%7Cjoshuadouglas%40uky.edu%7C269bdc61e21c400f822108d869af9664%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637375550168249851&sdata=tOi06%2F42QapSZWIDpS5olVOdtUR56vlWrPhWiOy8Eyw%3D&reserved=0>

Posted on October 5, 2020 5:18 pm<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttps%253a%252f%252furldefense.com%252fv3%252f__https%253a%252felectionlawblog.org%252f%253fp%253d116241__%253b%2521%2521KGKeukY%2521lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQmB-ibUcA%2524%26c%3DE%2C1%2C0j0cox--HZhAaFz7A46p5PGq5DvL8jotluz7ducJZ43IcJrg8BS6NNZ-TcsZ4Oa32P1spoHn_SfTE_mOpWrxutBwIfLE_w5z5QUbKJqIzzKy%26typo%3D1&data=02%7C01%7Cjoshuadouglas%40uky.edu%7C269bdc61e21c400f822108d869af9664%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637375550168259850&sdata=7wKSHQwQjwKknyOJj7e9JYLEbWRA0fc66X8hjx2E9nM%3D&reserved=0> by Rick Hasen<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttps%253a%252f%252furldefense.com%252fv3%252f__https%253a%252felectionlawblog.org%252f%253fauthor%253d3__%253b%2521%2521KGKeukY%2521lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQlofOE_uA%2524%26c%3DE%2C1%2CCt3XIkmcBAq4qkrZIjoMxZPmV95_YfLWUraP8doK_s6qBPH3kDPBuoKGjpQ5y9seua4wZ0ErStvhmVfSJnwrrnol2kdN3GitcIm4KFYgwuaaotm2sAfNQqkm%26typo%3D1&data=02%7C01%7Cjoshuadouglas%40uky.edu%7C269bdc61e21c400f822108d869af9664%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637375550168269846&sdata=6fryGoQkF4dO%2Bcp3hNxpl%2FhOQAl3sZyfzwrSfbPK6cI%3D&reserved=0>

You can find the order here<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttps%253a%252f%252furldefense.com%252fv3%252f__https%253a%252felectionlawblog.org%252fwp-content%252fuploads%252f20A55-Order.pdf__%253b%2521%2521KGKeukY%2521lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQn_8Pxgdw%2524%26c%3DE%2C1%2C4qjZK7NfTMwa4KkTWDmpnZWa9au-ac2V2ajSDChSV5ozZG7Q2za9MLrFMCnhRXqLUvQNI2XAy_78g3RGroLGEJYlaovJ2GjEm7uvNbTXnB5ppxEEIhnF%26typo%3D1&data=02%7C01%7Cjoshuadouglas%40uky.edu%7C269bdc61e21c400f822108d869af9664%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637375550168269846&sdata=VGwaPWO8FZPvgbsZEhJN8nKZ27GCKzZvQPSLWby%2Fofg%3D&reserved=0>.

As I explained today in Slate<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttps%253a%252f%252furldefense.com%252fv3%252f__https%253a%252fslate.com%252fnews-and-politics%252f2020%252f10%252fsupreme-court-covid-voting-cases-pennsylvania-south-carolina.html__%253b%2521%2521KGKeukY%2521lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQmj0act5g%2524%26c%3DE%2C1%2CEHvRxvnrey7g1CtoblpcC6eRfq3o6QNLMkSskOIFZOaixRoEfHXQe8gozMjrGKw9hGQNMBoI8CLbNeZyAEkYb3TqhA__xD1Nr7frp90bN7xMqfrPYeT7U4m696PZ%26typo%3D1&data=02%7C01%7Cjoshuadouglas%40uky.edu%7C269bdc61e21c400f822108d869af9664%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637375550168279836&sdata=2JTL1RvNtZlp%2Fb28NxJGL6gR14mn3XCmnvTZBwZ2cs8%3D&reserved=0>, “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://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttps%253a%252f%252furldefense.com%252fv3%252f__https%253a%252fir.law.fsu.edu%252fcgi%252fviewcontent.cgi%253farticle%253d2542%2526context%253dlr__%253b%2521%2521KGKeukY%2521lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQnKU1V7vA%2524%26c%3DE%2C1%2CRteHkg647RQ_JEDem4v6aA2Z35LAdaOiJZd0yxTxB0A5jrk1LO8IclvT1qeXptlhSIXRIlVV80nFsP3XSCYRdkrP18iWwrlEs4YsOIFbKA%2C%2C%26typo%3D1&data=02%7C01%7Cjoshuadouglas%40uky.edu%7C269bdc61e21c400f822108d869af9664%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637375550168289834&sdata=IpecXwoVaOyOiSCxCs%2BspzGWTKNd%2BgFakRvs2%2BLYbl4%3D&reserved=0>, 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://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttps%253a%252f%252furldefense.com%252fv3%252f__https%253a%252fwww.liebertpub.com%252fdoi%252ffull%252f10.1089%252felj.2020.0646__%253b%2521%2521KGKeukY%2521lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQl2WxCkRQ%2524%26c%3DE%2C1%2C8LpiVt4V365jPtybGNxank6YMUy1udwmQlU0q32HNyU86RwPDpx-uD4UMTkE3VG8TNwDbGB1LBZWIeJ8_jYm0qDYK2Y1plZ5glSNye_H5LYaLA%2C%2C%26typo%3D1&data=02%7C01%7Cjoshuadouglas%40uky.edu%7C269bdc61e21c400f822108d869af9664%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637375550168289834&sdata=i6QIKvGZHT3Oc7D5u71Bet%2B%2FMFbYEwMV0cnsGiQeUEk%3D&reserved=0> a Court not willing to strongly protect voting rights.<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttps%253a%252f%252furldefense.com%252fv3%252f__https%253a%252fnymag.com%252fintelligencer%252f2020%252f10%252ftrumps-new-supreme-court-is-coming-for-the-next-elections.html__%253b%2521%2521KGKeukY%2521lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQnTK_heqw%2524%26c%3DE%2C1%2CsQmb5R-iaSLgQc47UJS9kAD3QuZ066VVS6qZFEEsNLVGNLZmvBr2OvvxO7nMLy_XvySNR3jBshr8ee0LPUJgJ4Q-SKeO_UIFMDWoBGoL-lEgabeDSA%2C%2C%26typo%3D1&data=02%7C01%7Cjoshuadouglas%40uky.edu%7C269bdc61e21c400f822108d869af9664%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637375550168299822&sdata=02ssCYism%2BqOHzTqO7wsQNFV6Yy3FdkDbT2%2FKPLTl9g%3D&reserved=0>

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.]

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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<mailto:rhasen at law.uci.edu>

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Marty Lederman

Georgetown University Law Center

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Washington, DC 20001

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