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

Mon Oct 19 17:12:29 PDT 2020

My thoughts:

“In a 4-4 Split, the Supreme Court Lets Pennsylvania Make Voting Easier—For Now; The decision signals that Amy Coney Barrett will cast the deciding vote in any upcoming election disputes.”<https://electionlawblog.org/?p=117090>
Posted on October 19, 2020 5:11 pm<https://electionlawblog.org/?p=117090> by Rick Hasen<https://electionlawblog.org/?author=3>
I have written this piece<https://slate.com/news-and-politics/2020/10/supreme-court-pennsylvania-election-law-order.html> for Slate. It begins:

After a very long delay in an emergency election case, the shorthanded United States Supreme Court came to a 4-4 tie<https://www.supremecourt.gov/orders/courtorders/101920zr_3fb4.pdf> in an election law case out of Pennsylvania on Monday evening. While a tie result that leaves the lower court ruling standing is a clear short-term win for Democrats in making it easier to vote in the Keystone State in November, Republicans could end up with a much bigger victory if there is any post-election Trump v. Biden litigation. If Amy Coney Barrett joins the Court next week as expected, she could be the deciding vote in any case that challenges election or recount rules set out by a Democratic-dominated state Supreme Court in a place like Pennsylvania or North Carolina in opposition to those states’ Republican legislatures….

This 4-4 tie is doubly troubling. First, it means that we have no guidance from the Court as to when and whether a state Supreme Court can rely on a state Constitution when it expands or changes state voting rules in a presidential election. Even though Democrats opposed the stay sought by Republicans in the case, they begged the Court to fully take the case and give an explanation as to the scope of state court power in this case. This lack of guidance could be a huge problem in the two battleground states—North Carolina and Pennsylvania—with Democratic state Supreme Courts and Republican legislatures who could battle over any post-election voting rules.
Further, it shows that President Trump was right about the role that Judge Amy Coney Barrett could play in any post-election litigation over the winner of the November election. He has said he wants Barrett on the Supreme Court to decide such a case. I earlier expressed skepticism<https://nymag.com/intelligencer/2020/10/trumps-new-supreme-court-is-coming-for-the-next-elections.html> that Barrett would act as a tie-breaker in such circumstances, reasoning that Chief Justice Roberts would not want to put her in this position. But I’ve now reconsidered. Judge Barrett is a deeply conservative judge, much like Justices Alito, Gorsuch, Kavanaugh, and Thomas who voted Monday to grant a stay. She easily could have been a fifth vote hear to side with the broad power of state legislatures against state Supreme Courts seeking to protect voting rights under the state constitution.
If you thought the stakes of a Barrett confirmation couldn’t get any higher, they just did.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, Supreme Court<https://electionlawblog.org/?cat=29>, The Voting Wars<https://electionlawblog.org/?cat=60>

From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of "Levitt, Justin" <justin.levitt at lls.edu>
Date: Monday, October 19, 2020 at 5:10 PM
To: Marty Lederman <Martin.Lederman at law.georgetown.edu>
Cc: 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

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
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