[EL] The Possibility of a Blockbuster Supreme Court Decision in the PA election-law case

[Marty Lederman]

I agree with Rick about the potential dire implications of the PA decision,
although I think--I hope, anyway!--that it's unlikely any such *major *revision
of doctrine would occur in a case that hasn't been briefed and argued on
the merits.  (More likely, one or more Justices are writing a dissent
warning of such holdings in the future.)

I would quibble, however, about one thing: I don't think the Article II
issue turns on the meaning of the term "legislature."  Even if the Court
were to hold, as Roberts argued in his *Arizona *dissent, that
"legislature" means only a representative assembly (a decision that would
in effect overrule *Arizona*, which is why I think it highly unlikely
they'd do it in this "shadow docket" setting), nevertheless that wouldn't
answer the question of whether the legislature is bound by state
constitutional provisions, substantive and/or procedural.  Indeed, Roberts
himself, in his *Arizona *dissent, reaffirmed the validity of the
*Smiley* doctrine,
under which the legislature must act in accord with at least the *procedural
*requirements of state constitutional law, such as presentment to the
governor.  (His complaint was that Arizona had cut the representative
assembly out of the lawmaking process altogether.)

Also, as Rick himself noted earlier, *Purcell *itself--whatever it might
mean--shouldn't have any effect here, because this is a case coming from a
state court that isn't subject to "equitable" constraints the SCOTUS
imposes on federal courts pursuant to its administrative supervision over
such courts.

On Mon, Oct 19, 2020 at 8:26 AM Pildes, Rick <rick.pildes at nyu.edu> wrote:

> Because the Supreme Court’s decision in the PA election case could be of
> major significance, I’ve written this longer analysis. I’m posting it
> directly to the listserv since the decision could come down at any moment:
>
>
>
>               The Supreme Court has taken an exceptionally long time –
> given the impending election -- to address the legal challenges before it
> involving voting issues in Pennsylvania.  Given that length of time, it’s
> reasonable to assume we are going to get a substantial opinion from the
> Court, which will likely include dissenting opinions as well.  The opinions
> could well address one of the most important unresolved constitutional
> issues concerning state regulation of presidential elections and maybe
> national elections more generally.  The ramifications of the Court doing so
> would go well beyond PA and well beyond this election as well.
>
>               Two principal issues are before the Court, as it reviews the
> decision from the PA supreme court.  The first issue, a minor one, is
> whether the state court decision permits absentee ballots to be cast after
> Election Day and, if so, whether that would violate federal statutes that
> require the election to take place on Election Day.  If that’s all the
> Court addresses, the decision would be of minimal legal and practical
> significance.
>
>               But given the length of time this case has been pending –
> the initial application for a stay was filed on Sept. 28th – it is
> reasonable to assume the Court is addressing the much bigger question.
> That issue is what the meaning of the term “legislature” is in the
> Constitution.  More  specifically, the question is the meaning of that term
> for purposes of the Elections Clause in Art. I -- which applies to state
> regulation of national elections in general -- and the Art. II provision
> that governs the Electoral College and the presidential elections process
> in particular.
>
>               The more immediate stakes in this issue focus on whether the
> PA supreme court violated the Constitution in ordering that absentee
> ballots be treated as valid votes even if received up to three days after
> Election Day.  In PA, the Elections Code, enacted through the normal
> lawmaking process, requires that absentees must be received by 8 pm on
> Election Night to be valid.  Around 40 states similarly require valid
> absentees to be received on or before Election Night, though some states
> permit later receipt.  Based on the state constitution, the PA supreme
> court held that this three-day extension was required, in order to protect
> the right to vote, given potential delays in mail service.
>
>                If the Court holds that the PA court decision was itself
> unconstitutional, that would mean that courts – both state and federal –
> would not have the power to order extensions of these receipt deadlines.
> That could be consequential for this election, particularly in PA; it would
> also mean that any court decisions still intact that have extended these
> deadlines could now be challenged and possibly reversed.  But by now, there
> are not many court decisions still in place that have ordered extension of
> these deadlines.  Most decisions by lower courts, state or federal, that
> have done so have now been reversed on appeal.
>
>               Much more importantly, though, is the path by which the
> Court would have to get to this result.  The term “legislature” appears in
> the Constitution seventeen times.  And a major constitutional issue centers
> around whether that term is best understood to mean (1) the ordinary
> lawmaking processes of a state, as established by the state constitution,
> or whether it should mean only (2) the formal institution of the
> legislature itself.  Put less legalistically, the issue is whether in
> regulating the presidential election process or national elections more
> generally, the state legislatures have exclusive powers that cannot be
> significantly constrained by the ordinary constraints on state lawmaking –
> such as the state constitution or the requirement that that the Governor be
> given an opportunity to veto proposed laws.
>
>               To hold that the PA court violated the Constitution, the
> Court would have to hold that “legislature” means the formal institution
> itself.  That would mean the state constitution cannot control the
> substantive policy choices the legislature makes about the rules governing
> presidential elections (and perhaps all national elections, as well).  The
> state legislatures would still be bound by the federal Constitution, of
> course, so that they could not enact rules that would violate the
> Fourteenth or Fifteenth Amendments, for example.  But within the state, the
> legislature would have plenary and exclusive control over the ground-rules
> for presidential elections.
>
>               The ramifications of that ruling would spread far and wide.
> For one, would this mean that Governors would no longer be able to exercise
> vetoes over the “legislature’s” regulation of the presidential election
> process?  That would, of course, be a profound change.  Second, to what
> extent are various state constitutional provisions still binding on the
> legislature when it regulates the presidential election process – in other
> words, what would the boundaries be on the kind of rules the state
> constitution can or cannot impose on the legislature?  As an example,
> suppose a state constitution requires ten days of early voting in
> presidential elections; if the legislature wants to have more or fewer
> days, would the Constitution now mean that the state legislature is free to
> decide for itself on matters like this, regardless of the state
> constitution?
>
> Another major question would be whether the implication would be that the
> term “legislature” would mean only the institution itself all seventeen
> times it is used in the Constitution.  The Court’s decision might expressly
> address only the “legislature’s” power over presidential elections, under
> Art. II.  But what would the decision imply about the state “legislature’s”
> power to regulate all national elections, under the Art. I Elections
> Clause?
>
> Three options exist here:  (1) the term “legislature” always means simply
> the institution itself; (2) the word legislature always means the ordinary
> lawmaking processes of the state; (3) “legislature” sometimes means the
> institution and sometimes means the ordinary lawmaking processes of a
> state.  As an example of how that third possibility might come about, the
> Court could hold that Art. II, on the presidential election process, is a
> special provision that was specifically designed to give the legislatures
> exclusive control over this essential process.  But if we think the Court
> has a textualist majority, it is not hard to imagine textualists concluding
> that “legislature” must have the same meaning each time it appears in the
> Constitution.
>
>               Yet another question would immediately be what implications
> this has for the Court’s recent 5-4 decision upholding the right of voters,
> through the initiative process, to bypass the legislature and adopt
> independent commissions, or commissions of other designs, to do
> redistricting.  That decision, in *Arizona State Legislature v. Arizona
> Independent Redistricting Commission – * the title tells you exactly
> what’s going on in the case – held that “legislature” in the Elections
> Clause means the ordinary lawmaking processes of a state.  As a result, if
> a state permits voter initiatives to regulate the national election
> process, that does not intrude, based on the *AIRC *decision, on any
> purportedly exclusive powers of the state legislature.  But the decision
> provoked a vehement 4-Justice dissent, written by Chief Justice Roberts.
>
>               If the Court holds that the PA court has violated the
> federal constitution, that would certainly create obvious tensions with the *AIRC
> *decision.  The Court is unlikely to say anything about the continuing
> validity of that decision.  And it’s possible in later cases, the Court
> might conclude that, even if *AIRC *is in tension with the (forthcoming)
> PA decision, that the Court will respect the precedent of that decision,
> but will not extend it further to new contexts.  But however the Court
> ultimately resolves the continuing validity of *AIRC*, there would
> certainly at least be tension between that decision and the PA decision
> that will, eventually, have to be resolved.
>
> On top of all this, the Court would likely have to say something about the
> notoriously uncertain *Purcell *principle.  Other than as a general
> admonition to courts to be wary of making last-minute changes to election
> laws, *Purcell *does not lay out clearly which types of last-minute
> changes courts can properly make and which not.  If the Court overturns the
> PA supreme court decision here, the Court will have to provide a bit more
> clarity about *Purcell *and why it does not stand in the way here of the
> Court’s decision.
>
>               Finally, a holding that “legislature” means only the formal
> institution would put the federal courts in the position of having to
> adjudicate a vast array of election-law issues previously thought to be
> solely within the purview of state law.  That would be all the more true if
> the decision implies that “legislature” means only the institution for
> purposes not just of presidential elections, but state regulation of all
> national elections.  Each time a state court interprets state law on these
> matters, the ruling would be easily transformed into one that implicates
> federal constitutional law.  The losing side will always pursue the
> argument that the state court interpretation unconstitutionally interferes
> with “the legislature’s” exclusive power.  Similarly, rulings of state
> executive officials on election law, such as from the Secretary of State,
> could easily be transformed into federal constitutional ones, for the same
> reason.  The federal courts might eventually conclude that “reasonable”
> interpretations of the election code do not violate “the legislature’s”
> exclusive power – but that would put the federal courts in the position of
> judging, case by case, whether the actions of state courts or executive
> officials regarding state election law, for national elections, is indeed
> reasonable.
>
>               This essay just begins to unpack the range of questions that
> will arise should the Court hold that the PA supreme court violated the
> U.S. Constitution.  That decision would be a blockbuster one, whose
> implications the federal courts would spend years sorting out.
>
> We should find out any day now whether, in fact, that’s why the PA case
> has been pending so long.
>
>
>
>
>
> Richard H. Pildes
>
> Sudler Family Professor of Constitutional Law
>
> NYU School of Law
>
> 40 Washington Square So.
>
> NYC, NY 10014
>
> 347-886-6789
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election



-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201019/6d7a3f13/attachment.html>