[EL] The Possibility of a Blockbuster Supreme Court Decision in the PA election-law case
James Grimaldi
jamesvgrimaldi at gmail.com
Mon Oct 19 16:22:36 PDT 2020
And here it is
The Supreme Court refused to disturb a ruling by Pennsylvania’s highest
court that extended the battleground state’s deadline for accepting mail-in
ballots
https://www.wsj.com/articles/supreme-court-allows-extension-for-mail-in-ballots-in-pennsylvania-11603149426?st=0mbi25lsh5lbjc8&reflink=article_imessage_share
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.
> <https://www.google.com/maps/search/40+Washington+Square+So.+%0D%0A+NYC,+NY+10014?entry=gmail&source=g>
>
>
>
>
>
> Richard H. Pildes
>
> Sudler Family Professor of Constitutional Law
>
> NYU School of Law
>
> 40 Washington Square So.
> <https://www.google.com/maps/search/40+Washington+Square+So.+%0D%0A+NYC,+NY+10014?entry=gmail&source=g>
>
> NYC, NY 10014
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>
> 347-886-6789
>
>
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