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

[Marty Lederman]

Once she gets there it won’t be about a stay: it’ll be about the merits,
and thus, very possibly, whether (tens/hundreds of?) thousands of ballots
should be thrown out.

On Mon, Oct 19, 2020 at 8:13 PM Mark Scarberry <
mark.scarberry at pepperdine.edu> wrote:

> Actually, I would bet a substantial sum that she would refuse to break the
> tie in favor of granting a stay. Institutional concerns would lead her that
> way, and the procedural posture permits a stay to be denied without setting
> any precedent. Even instrumentally, a vote against the grant of the stay
> would make it likely that the Democrats would not pack the Court, which
> would preserve a 6-3 majority on other matters.
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> Her ideal move would be to write the opinion denying the stay.
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> Mark
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> [image: Pepperdine wordmark]*Caruso School of Law*
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> *Mark S. Scarberry*
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> *Professor of Lawmark.scarberry at pepperdine.edu
> <mark.scarberry at pepperdine.edu>*
> Personal: mark.scarberry at gmail.com
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> On Mon, Oct 19, 2020 at 4:57 PM Fredric Woocher <fwoocher at strumwooch.com>
> wrote:
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>> Seriously, Mark, you believe there is some doubt about how a Justice
>> Barrett would rule on this case?
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>> FDW
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>> *From:* Law-election [mailto:
>> law-election-bounces at department-lists.uci.edu]
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>> *On Behalf Of *Mark Scarberry
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>> *Sent:* Monday, October 19, 2020 4:49 PM
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>> *To:* Election Law Listserv <law-election at uci.edu>
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>> *Subject:* Re: [EL] U.S. Supreme Court denies a stay of Pa. Supreme
>> Court's extension on vote by mail ballots
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>> Thanks, Pam.
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>> If/when Judge Barrett joins the Court, will this be revisited? Which way
>> would she go? (That's a serious question; whatever her views on the merits,
>> she would, I think, consider the institutional interests of the Court and
>> the broader concerns
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>> for the nation. A stay need not be granted even if there is a likelihood
>> that the GOP ultimately would prevail. Among other matters, the public
>> interest is a factor.) Or would she recuse herself? If she tips it 5-4
>> against the extension, and if Democrats take
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>> power, court-packing almost certainly would result.
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>> Mark
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>> [image: Pepperdine wordmark]
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>> *Caruso School of Law*
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>> *Mark S. Scarberry*
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>> *Professor of Law**mark.scarberry at pepperdine.edu
>> <mark.scarberry at pepperdine.edu>*
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>> Personal:
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>> mark.scarberry at gmail.com
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>> On Mon, Oct 19, 2020 at 4:36 PM Pamela S Karlan <pkarlan at stanford.edu>
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>> 4-4.  No opinions.
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>> https://www.supremecourt.gov/orders/courtorders/101920zr1_ebfi.pdf
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>> Pamela S. Karlan
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>> Kenneth and Harle Montgomery Professor of Public Interest Law
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>> Co-Director, Supreme Court Litigation Clinic
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>> Stanford Law School
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>> karlan at stanford.edu
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>> 650-725-4851
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-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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