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

[Mark Scarberry]

I am looking forward to working through MIchael's articles. Meanwhile let
me say that there is another potentially very important matter at stake
here: the constitutionality of the National Popular Vote Compact's
pre-presidential-election  blackout period, during which a legislature (in
fact, the state's entire legislative process) purportedly is prohibited
from choosing to use a different method of choosing electors.

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 19, 2020 at 10:46 AM Michael Morley <mmorley at law.fsu.edu> wrote:

> I've spent several years researching the independent state legislature
> doctrine, and would like to offer links to a few pieces of mine that may be
> of interest to people following this usually obscure debate:
>
> - On the meaning of "legislature" in the Elections Clause and Presidential
> Electors Clause - see "The Intratextual Independent 'Legislature' and the
> Elections Clause," 109 Nw. U. L. Rev. 847 (2015).
> https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2515096
>
> - On the Supreme Court's ruling in Arizona Independent Redistricting
> Commission - see "The New Elections Clause," 91 Notre Dame L. Rev. Online
> 79 (2016), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2636007
>
> - On the Independent State Legislature Doctrine, and its history of
> application throughout the Nineteenth Century in the U.S. Supreme Court,
> state supreme courts, chambers of Congress, treatises, and other venues -
> see "Partisan Gerrymandering and State Constitutions," Ga. L. Rev.
> (forthcoming 2021),
> https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3530136
>
> I hope at least some of this might be helpful.  The forthcoming Georgia
> draft, in particular, engages with many historical sources that have been
> largely overlooked in previous debates on the issue.  Thank you very much,
>
> Michael
>
> Michael T. Morley
> Assistant Professor of Law
> Florida State University College of Law
>
>
>
> ------------------------------
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of Mark Scarberry <mark.scarberry at pepperdine.edu>
> *Sent:* Monday, October 19, 2020 1:32 PM
> *To:* 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
>
> 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://urldefense.com/v3/__https://vanderbiltlawreview.org/lawreview/wp-content/uploads/sites/278/2014/01/Douglas-67-Vand.-L.-Rev.-89.pdf__;!!PhOWcWs!mYq72NBDBugCWJROyRRNi8x3Oq-oDxwhc9uryPT-OCot-imo9Ye7FYyXMtIyNjykC7I$>,
> 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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