[EL] The Possibility of a Blockbuster Supreme Court Decision in the PA election-law case
Mark Scarberry
mark.scarberry at pepperdine.edu
Mon Oct 19 10:32:08 PDT 2020
With regard to Marty’s argument that the question is not what “legislature” means:
One way to characterize this is to ask whether the Article II presidential elector power is given by the Constitution only to the legislature or instead to all the actors who are involved in the ordinary law-making power, including but not limited to the legislature, such as the governor. In context, the former understanding is more reasonable: “legislature” means “legislature,” not the broader group of actors.
The related question is whether a direct grant of power by the Constitution to the state “legislature” can be limited by provisions of state law, such as the state constitution; or can be limited by state law of lesser authority, such as earlier adopted state statutes or state court interpretations of vague state constitutional provisions that, as interpreted, conflict with the legislature’s determinations.
There is a strong argument that the Article II presidential elector power given to state legislatures should be distinguished from the Article I “Times, Places, and Manner” provision interpreted by the Court in Smiley. Here are points I made in a discussion on the Conlawprof list (in part with regard to distinguishing Smiley):
(1) The Art. II presidential elector provision arguably gives a power to the state legislature that is different in nature from and stronger than the Art. I power to determine times, places, and manner of holding Congressional elections. The Art. I power is subject to congressional revision. The Art. II power is not.
(2) The Art. I power of state legislatures is a power only to create "Regulations," which seems to be a synonym for “laws." There is no such provision in Article II.
(3) State legislatures have power under Article II to choose electors directly. This is similar to an appointive or elective power. Thus, the Article II power is a hybrid power. It is similar in some respects to the Article I Times, Places and Manner provision, but in another way to the pre-17th Amendment power to choose Senators. (And of course the Court's decision in Smiley was post-17th Amendment, which could matter in a way that I don’t have time to discuss in this post.)
(4) The historical circumstance that legislatures have exercised their hybrid Article II power via ordinary statute need not be seen as determinative. Consider McPherson v. Blacker (which explicitly made the point that historical practice could not limit the power of the legislature).
(5) Consider also the remand to the Florida Supreme Court in 2000 for clarification of whether the Florida Supreme Court was applying the state constitution rather than the statute enacted by the legislature, which the legislature contended the Florida court was not entitled to do. If the Florida Constitution could not bind the legislature -- which the per curiam opinion suggested (though only suggested)* and which was one of the potential concerns that led to the earlier remand to the Florida Supreme Court** -- it's hard to see how an ordinary state law (even though previously enacted by the legislature as a statute) could bind the legislature.
I'm certainly not arguing that a state legislature should take back the power to appoint electors before Election Day.*** If a legislature did so (believing from polling that its preferred candidate would not win the state's electoral votes), and if that action determined the outcome of the election, our divisions would be deepened to the breaking point and half the country would believe that the winner lacked legitimacy. That would be a disaster.
Mark
*From the per curiam opinion, 531 U.S. 98, 104, 121 S. Ct. 525, 529–30:
The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. U.S. Const., Art. II, § 1. This is the source for the statement in McPherson v. Blacker, 146 U.S. 1, 35, 13 S.Ct. 3, 36 L.Ed. 869 (1892), that the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. Id., at 28–33, 13 S.Ct. 3. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35, 13 S.Ct. 3 (“ ‘[T]here is no doubt of the right of the legislature to resume the power **530 at any time, for it can neither be taken away nor abdicated’ ”) (quoting S.Rep. No. 395, 43d Cong., 1st Sess., 9 (1874)).
** Bush v. Palm Beach Cty. Canvassing Bd., 531 U.S. 70, 78, 121 S. Ct. 471, 475 (2000): "Specifically, we are unclear as to the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature's authority under Art. II, § 1, cl. 2. We are also unclear as to the consideration the Florida Supreme Court accorded to 3 U.S.C. § 5. The judgment of the Supreme Court of Florida is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion.”
*** I don’t think there is a need here to make the argument that the state legislature has no power to do so after Election Day, if electors were in fact chosen. I doubt that anyone on the list will make a contrary argument.
Mark S. Scarberry
Professor of Law
Pepperdine University
Rick J. Caruso School of Law
________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Douglas, Joshua A. <joshuadouglas at uky.edu>
Sent: Monday, October 19, 2020 6:22:25 AM
To: Pildes, Rick <rick.pildes at nyu.edu>; Marty Lederman <Martin.Lederman at law.georgetown.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] The Possibility of a Blockbuster Supreme Court Decision in the PA election-law case
Rick is 100% correct that a decision from the U.S. Supreme Court that reverses the Pennsylvania Supreme Court might fundamentally alter election law in its cabining of state constitutional protection of the right to vote. The implications go beyond just practical rules such as a state constitution that requires 10 days of early voting and a legislature that wants more or less. It could impact the very meaning of the constitutional right to vote.
As I've written before<https://vanderbiltlawreview.org/lawreview/wp-content/uploads/sites/278/2014/01/Douglas-67-Vand.-L.-Rev.-89.pdf>, 49 of the 50 state constitutions include an affirmative "right to vote" provision (only Arizona's doesn't), and about half of the state constitutions have a "free," "free and equal," or "free and open" elections provision. Numerous state courts have construed these clauses--correctly, in my view--as providing more protection than the U.S. Constitution under the Equal Protection Clause. State courts have struck down voter ID laws, felon disenfranchisement provisions, partisan gerrymandering, and more under these provisions. And there have been numerous state-level initiatives or executive actions on election administration--everything from adopting Ranked Choice Voting in Maine to redistricting commissions in numerous states to felon re-enfranchisement provisions to election changes to respond to the pandemic. Would all of these decisions be subject to review in the U.S. Supreme Court as to whether it's a "legislative" action under Article I's Election Clause or Article II's designation of authority to the state "legislature"? A decision that the "legislature" means only the formal lawmaking body, which can't be constrained by the state constitution, initiatives, or executive action, could usher in a whole new level of (6-3 conservative) U.S. Supreme Court oversight over elections. It would also be nonsensical, in my view, to say that the state constitution can't constrain the state legislature in election matters given that the state legislature is itself a creature of the state constitution.
The implications are profound, indeed.
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From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Pildes, Rick <rick.pildes at nyu.edu>
Sent: Monday, October 19, 2020 9:00 AM
To: Marty Lederman <Martin.Lederman at law.georgetown.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] The Possibility of a Blockbuster Supreme Court Decision in the PA election-law case
CAUTION: External Sender
Marty,
Thanks for reminding me of my earlier post about Purcell and state courts. I’ve updated the post as a result.
I think the Court might still discuss Purcell, for this reason. The Court could not reverse a state court decision based on Purcell, since it does not apply to the actions of state courts. A state court cannot “violate” Purcell.
But there’s still a question of how Purcell applies to the Supreme Court’s own actions when it decides on stay applications or on the merits in cases that come from state court. The Court could conclude that, even if it believes a state court decision violates federal law, the Court should not stand in the way of the state court decision if Supreme Court review comes too late in the day.
Best,
Rick
Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square So.
NYC, NY 10014
347-886-6789
From: Marty Lederman [mailto:Martin.Lederman at law.georgetown.edu]
Sent: Monday, October 19, 2020 8:45 AM
To: Pildes, Rick <rick.pildes at nyu.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] The Possibility of a Blockbuster Supreme Court Decision in the PA election-law case
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<mailto: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
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Georgetown University Law Center
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