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

[Jonathan Adler]

FWIW, here's my quick take:
https://reason.com/2020/10/19/supreme-court-denies-request-for-stay-in-pennsylvania-election-dispute/

----
Jonathan H. Adler
Johan Verheij Memorial Professor of Law
Director, Coleman P. Burke Center for Environmental Law
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
ph) 216-368-2535
fax) 216-368-2086
cell) 202-255-3012
jha5 at case.edu
SSRN: http://ssrn.com/author=183995
Blog: https://reason.com/people/jonathan-adler/
Web: http://www.jhadler.net




On Mon, Oct 19, 2020 at 8:17 PM Marty Lederman <
Martin.Lederman at law.georgetown.edu> wrote:

> 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:
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>> 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.
>>
>> Mark
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>>
>> [image: Pepperdine wordmark]*Caruso School of Law*
>>
>> *Mark S. Scarberry*
>>
>> *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
>>>
>>>
>>> *To:* 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
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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>
>>> wrote:
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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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>>
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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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