[EL] U.S. Supreme Court denies a stay of Pa. Supreme Court's extension on vote by mail ballots

[Levitt, Justin]

Well, fair.  But because it’s hard for me to understand those votes in any way that’s consistent with what the court has either done or (in extremely limited fashion) said this cycle, I’d love the explanation from the people in the robes casting the votes.  And I take Fred’s point that 4-4 ties may not be the vehicle for explanation.  But that just makes the silence thus far this cycle (in majority decisions) more frustrating.

To Fred’s earlier question, both applications were applications for stays pending the filing of cert. petitions, yes, though the Republican Party petition invited the Court to construe the application as a cert. petition, and the PA Dems said “fine by us.”  I’ve not yet seen a separate cert. petition in either case.

Justin

From: Marty Lederman <Martin.Lederman at law.georgetown.edu>
Sent: Monday, October 19, 2020 4:54 PM
To: Levitt, Justin <justin.levitt at lls.edu>
Cc: Pamela S Karlan <pkarlan at stanford.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] U.S. Supreme Court denies a stay of Pa. Supreme Court's extension on vote by mail ballots

I suspect Justin actually knows full well how the four Justices voting to grant are conceiving the "equities" in this case.

On Mon, Oct 19, 2020 at 7:52 PM Levitt, Justin <justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>> wrote:
Thanks, Pam.

I’ll note that that’s four votes for a federal stay of a state supreme court decision, which would have changed the rules 14 days before an election and after 900,000 ballots have already been returned<https://electproject.github.io/Early-Vote-2020G/index.html> in Pennsylvania, without any explanation of why federal law demands such a result.  That’s just another example of why I joined Pam and several other members of this list, following Nick’s post here<https://takecareblog.com/blog/freeing-purcell-from-the-shadows>, asking SCOTUS to clarify<https://www.supremecourt.gov/DocketPDF/20/20A66/157915/20201016105409273_20A64%20-%2020A65%20-%2020A66%20Election%20Law%20Scholars%20Motion%20-%20Brief.pdf> exactly what the heck the rules are in granting or declining (or vacating) last-minute judicial stays.  Because I legitimately don’t know how the four Justices voting to grant are conceiving the equities in this case, or how those votes would be consistent with the prior stays this cycle.

Justin

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Pamela S Karlan
Sent: Monday, October 19, 2020 4:35 PM
To: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] U.S. Supreme Court denies a stay of Pa. Supreme Court's extension on vote by mail ballots

4-4.  No opinions.

https://www.supremecourt.gov/orders/courtorders/101920zr1_ebfi.pdf


Pamela S. Karlan

Kenneth and Harle Montgomery Professor of Public Interest Law

Co-Director, Supreme Court Litigation Clinic

Stanford Law School

karlan at stanford.edu<mailto:karlan at stanford.edu>

650-725-4851
_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto: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/20201020/8c379a9b/attachment.html>