[EL] Supreme Court reinstated ban on curbside voting in Alabama: 20A67, Merrill v. People First

Wed Oct 21 18:57:01 PDT 2020

Dear Brad,

I was referring only to the lineup on the Supreme Court, where I don't think this lineup is unexpected given the decisions, so far, about whether federal district judges can order adjustments to voting rules to account for COVID-19 or the huge upsurge in voting by mail. Is there anything that surprised you about this decision?

I have not myself gone back and looked and every one of the lower court decisions, but this article might be informative to some of you:  https://www.nytimes.com/2020/10/17/us/politics/federal-appeals-courts-trump-voting.html
[https://static01.nyt.com/images/2020/10/18/us/politics/18dc-voting-print1/merlin_178632708_7ade44a4-d9e6-4bb6-b890-1590da70da45-facebookJumbo.jpg]<https://www.nytimes.com/2020/10/17/us/politics/federal-appeals-courts-trump-voting.html>
Federal Appeals Courts Emerge as Crucial for Trump in Voting Cases - The New York Times<https://www.nytimes.com/2020/10/17/us/politics/federal-appeals-courts-trump-voting.html>
Federal district courts have tended to rule for Democrats in litigation over how to run the election, but appeals courts, well stocked with the president’s nominees, are blocking them.
www.nytimes.com

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

650-725-4851

________________________________
From: Smith, Bradley <BSmith at law.capital.edu>
Sent: Wednesday, October 21, 2020 6:38 PM
To: 'Vladeck, Stephen I' <SVladeck at law.utexas.edu>; Pamela S Karlan <pkarlan at stanford.edu>; 'Rick Hasen' <hasenr at gmail.com>; larrylevine at earthlink.net <larrylevine at earthlink.net>
Cc: 'Election Law Listserv' <law-election at uci.edu>
Subject: Re: [EL] Supreme Court reinstated ban on curbside voting in Alabama: 20A67, Merrill v. People First

We should be careful when using phrases like "the expected lineup" etc..  It may be worth pointing out that in the mass of litigation this election has triggered, Republican-appointed judges appear to have much more frequently sided against Republican politicians and party officials than Democratic-appointed judges have taken a position opposite the Democrats. I say "appear," because I haven't done a full survey of the dozens if not hundreds of decisions now rendered. But we should be careful in this apparent casting of aspersions on the judges and justices.

Ironically, in this case, in the 11th Circuit, Judge Jordan, an Obama appointee, sided against the Democratic allied elements on some (but not all issues). From what I've noticed, he's the only Obama or Clinton appointee to break with the "party line" in voting litigation this year.

For example, just this week in Wise v. Circosta, 3 Trump-appointed judges joined the ruling against the Republican legislative leaders who brought the suit. A couple other examples that come quickly to mind: In Trump v. Boockvar, a Trump-appointed district court judge ruled against the Trump campaign. In Trump v. Cegavske, a Bush-appointed district judge ruled for the state, against the Trump campaign. In DNC v. Bostelman, a Reagan appointee dissented, placing herself in opposition to the position of the Republican legislature. In Scarnotti v. Boocknar, it's apparent from the 4-4 vote that at least one Republican-appointee voted against the Republican Party.

If I'm right that these and other cases I've noticed reflect a general pattern, it may be because the positions being taken by various Republican-oriented entities are simply weaker as a legal matter. But if that's true, it suggests that it is not as simple as "the expected lineups." Or the difference may reflect a hard-core partisanship of Democratic-appointees, in which case that dimissive approach may have the wrong targets. Or it may indicate that there is a broader diversity of thought among Republican-appointed judges. Or it may just be random noise.

But I think that we ought to be careful about just looking at the various results as "the expected lineups" and nothing but partisanship.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
Phone: (614) 236-6317
Mobile:  (540) 287-8954

________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of larrylevine at earthlink.net <larrylevine at earthlink.net>
Sent: Wednesday, October 21, 2020 9:12 PM
To: 'Vladeck, Stephen I' <SVladeck at law.utexas.edu>; 'Pamela S Karlan' <pkarlan at stanford.edu>; 'Rick Hasen' <hasenr at gmail.com>
Cc: 'Election Law Listserv' <law-election at uci.edu>
Subject: Re: [EL] Supreme Court reinstated ban on curbside voting in Alabama: 20A67, Merrill v. People First

        ** [ This email originated outside of Capital University ] **

This court is beginning to demonstrate two political truisms: 1) when you have the votes, vote and don’t explain; and 2) god is on the side of the guy with the most votes. Hang onto your hats. It’s about to get even more extreme.

Larry

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Vladeck, Stephen I
Sent: Wednesday, 21 October 2020 5:54 PM
To: Pamela S Karlan <pkarlan at stanford.edu>; Rick Hasen <hasenr at gmail.com>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Supreme Court reinstated ban on curbside voting in Alabama: 20A67, Merrill v. People First

I’d just add the utter irresponsibility of providing not even a single sentence of explanation as to why the district court order, which even the Eleventh Circuit refused to stay, meets the criteria for a stay from the Court…

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: Wednesday, October 21, 2020 8:48 PM
To: Rick Hasen <hasenr at gmail.com<mailto:hasenr at gmail.com>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] Supreme Court reinstated ban on curbside voting in Alabama: 20A67, Merrill v. People First

5-3, with the expected lineup.  A dissent from Justice Sotomayor that ends with a truly heartbreaking quotation:  “ Plaintiff Howard Porter, Jr., a Black man in his seventies with asthma and Parkinson’s Disease, told the District Court: “ ‘[S]o many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we’re past that – we’re past that time.’ ” Id., at *11.”

The total indifference of the Court to citizens’ ability to vote — while the Court does its business remotely — is stunning.

Pamela S. Karlan

Kenneth and Harle Montgomery Professor of Public Interest Law

Co-Director, Stanford Supreme Court Litigation Clinic

Stanford Law School

559  Nathan Abbott Way

Stanford, CA 94305

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

650.725.4851
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