[EL] Response to Stay Apps in PA Case

[Mark Scarberry]

I don't think complete abrogation can be the test. More later, perhaps.

Meanwhile I would note that Justice Stevens's quote from McPherson v.
Blacker in his Bush v. Gore dissent was taken very much out of context, and
used by him to support a proposition that was the opposite from the point
that the Court in McPherson was making.

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 9:32 PM Douglas, Joshua A. <joshuadouglas at uky.edu>
wrote:

> 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
>
>
> 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
> 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
>
>
>
>
> [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://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.]
>
> [image: Share]
> <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.addtoany.com%252fshare%252aurl%253dhttps%252a3A%252a2F%252a2Felectionlawblog.org%252a2F%252a3Fp%252a3D116241%2526title%253dBreaking%252a20and%252a20Analysis%252a3A%252a20Without%252a20noted%252a20dissent%252a2C%252a20Supreme%252a20Court%252a20reverses%252a204th%252a20Circuit%252a20and%252a20says%252a20South%252a20Carolina%252a20voters%252a20still%252a20need%252a20to%252a20provide%252a20witness%252a20signatures%252a20to%252a20cast%252a20absentee%252a20ballots%252a20%2528except%252a20for%252a20those%252a20who%252a20already%252a20voted%252a20and%252a20ballots%252a20received%252a20within%252a202%252a20days%2529__%253bIyUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJQ%2521%2521KGKeukY%2521lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQnHtvOyEw%2524%26c%3DE%2C1%2CYoOqRjunnruwocQeoaRro1RMfbK3tevJjGrOGKAwM_eBhxP9YYAks6jBF7JuoyIFqiZs5H4B2RioDXIXnSWWDTNsc5GCQfw4WmbRUeX5YuNGOtY%2C%26typo%3D1&data=02%7C01%7Cjoshuadouglas%40uky.edu%7C269bdc61e21c400f822108d869af9664%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637375550168309821&sdata=Y4u8UKZfGgdyZm9MvVk8Rvfpf%2BdXgeucTYpJIWKXvdc%3D&reserved=0>
>
> Posted in Supreme Court
> <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%253fcat%253d29__%253b%2521%2521KGKeukY%2521lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQmoLYrB2Q%2524%26c%3DE%2C1%2CS7wzAruOkEmICpdB5_bIwIaKAVX4t8mgLCVgkriZwjGHWS7RD6O3Pa8qZaYp1KjGY_XI0QQ6kQDUpFw5AsiPQ1-Jn3U92mFdXxMrZO8k%26typo%3D1&data=02%7C01%7Cjoshuadouglas%40uky.edu%7C269bdc61e21c400f822108d869af9664%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637375550168309821&sdata=sz1SYx26lW6BbCvHp6Za5xmVBRphhGvkkbgayCnGdSQ%3D&reserved=0>
>
>
>
>
>
> --
>
> 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/
> <https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttps%253a%252f%252furldefense.com%252fv3%252f__http%253a%252fwww.law.uci.edu%252ffaculty%252ffull-time%252fhasen%252f__%253b%2521%2521KGKeukY%2521lwsbpxa9tb-d_hz8p292Br2YlY9HwC1-rHEtGA_SC5l55kcMrxfObGHIxQm60KWRwg%2524%26c%3DE%2C1%2CYSjA2MR4WXCcw1m--_YbA3PYhhI9aPi9D6oZyozmR1YRmGCFplvrW7X__vOetQJ4MtmK-k6oymrkLYjoGQQJaiQYll9Z_Z0k009KFWkbUj17R0X0URgm9KcR6A%2C%2C%26typo%3D1&data=02%7C01%7Cjoshuadouglas%40uky.edu%7C269bdc61e21c400f822108d869af9664%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637375550168319816&sdata=AfvMUscDMSftZADLUN%2BVbcvStvEaU4x0qaYZuj%2FIlEE%3D&reserved=0>
>
> http://electionlawblog.org
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>
>
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
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>
>
>
>
> --
>
> Marty Lederman
>
> Georgetown University Law Center
>
> 600 New Jersey Avenue, NW
>
> Washington, DC 20001
>
> 202-662-9937
>
>
> _______________________________________________
> Law-election mailing list
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