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

[Rick Hasen]

Is this fan fiction?

From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Mark Scarberry <mark.scarberry at pepperdine.edu>
Date: Monday, October 19, 2020 at 5:26 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

And then she cites Purcell to preserve the Court, limit damage to the country,and avoid setting a precedent.

Mark

Prof. Mark S. Scarberry
Pepperdine University
Rick J. Caruso School of Law
________________________________
From: Marty Lederman <Martin.Lederman at law.georgetown.edu>
Sent: Monday, October 19, 2020 5:16:33 PM
To: Mark Scarberry <mark.scarberry at pepperdine.edu>
Cc: Election Law Listserv <law-election at uci.edu>; Fredric Woocher <fwoocher at strumwooch.com>
Subject: Re: [EL] U.S. Supreme Court denies a stay of Pa. Supreme Court's extension on vote by mail ballots

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<mailto: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.

Her ideal move would be to write the opinion denying the stay.

Mark



Error! Filename not specified.
Caruso School of Law

Mark S. Scarberry
Professor of Law
mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>
Personal: mark.scarberry at gmail.com<mailto:mark.scarberry at gmail.com>



On Mon, Oct 19, 2020 at 4:57 PM Fredric Woocher <fwoocher at strumwooch.com<mailto:fwoocher at strumwooch.com>> wrote:










Seriously, Mark, you believe there is some doubt about how a Justice Barrett would rule on this case?





FDW





From: Law-election [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>]

On Behalf Of Mark Scarberry


Sent: Monday, October 19, 2020 4:49 PM


To: Election Law Listserv <law-election at uci.edu<mailto: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








Thanks, Pam.









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

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

power, court-packing almost certainly would result.









Mark






































Error! Filename not specified.


Caruso School of Law





















Mark S. Scarberry


Professor of Law


mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>


Personal:

mark.scarberry at gmail.com<mailto:mark.scarberry at gmail.com>
















































On Mon, Oct 19, 2020 at 4:36 PM Pamela S Karlan <pkarlan at stanford.edu<mailto:pkarlan at stanford.edu>> wrote:






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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