[EL] Breaking SCOTUS WI ruling, and tea leaves for PA

Mon Oct 26 18:50:57 PDT 2020

Justice Kavanaugh's footnote discussing the Article II theory was dictum.
It dealt with the power of state courts, and, as I read it, had nothing to
do with the decision not to lift the stay imposed by the 7th Circuit of a
federal district court's order. I think it was largely a response to
Justice Kagan's charge in her footnote 7 (footnote 6 as described by
Justice Kavanaugh) that Justice Kavanaugh's approach was inconsistent.

With regard to the Palm Beach County decision:

The Court in the Palm Beach County case did decline to reach the federal
question, but, as I read it, that was because it wasn't clear what the
Florida Supreme Court had done; there was "considerable uncertainty as to
the precise grounds for the [Florida Supreme Court's] decision." The Court
arguably provided the standard by which the federal question would be
governed once the Florida Supreme Court clarified its decision on remand.
There would be a federal question if the Florida S. Ct. relied on the
Florida Constitution to override the statute; and the power granted to the
legislature by the Constitution would control. The Court could not issue a
conditional opinion, dependent on the result of the remand.

So, yes, it was in a real sense dictum, but it was dictum that had an
effect: it caused the Court to remand the case.

Here is the language from the Palm Beach County per curiam opinion setting
out the standard:

As a general rule, this Court defers to a state court's interpretation of a
state statute. But in the case of a law enacted by a state legislature
applicable not only to elections to state offices, but also to the
selection of Presidential electors, the legislature is not acting solely
under the authority given it by the people of the State, *but by virtue of
a direct grant of authority made under Art. II, § 1, cl. 2, of the United
States Constitution*. That provision reads:

    "Each State shall appoint, in such Manner as the Legislature thereof
may direct, a Number of Electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled in the Congress .... "

Although we did not address the same question petitioner raises here, in
McPherson v. Blacker, 146 U. S. 1, 25 (1892), we said:

"[Art. II, § 1, cl. 2,] does not read that the people or the citizens shall
appoint, but that 'each State shall'; and if the words 'in such manner as
the legislature thereof may direct,' had been omitted, it would seem that
the legislative power of appointment could not have been successfully
questioned in the absence of any provision in the state constitution in
that regard. Hence the insertion of those words, while operating as a
limitation upon the State in respect of any attempt to circumscribe the
legislative power, cannot be held to operate as a limitation on that power
itself."

Emphasis supplied.

With regard to Justice Kavanaugh's use of "see" as a signal before the cite
to the Palm Beach County case, note that it followed directly after a cite
to a concurring opinion, not a majority opinion. If his claim was that the
Palm Beach County decision was controlling (which he obviously did not
claim), you would think he would have put it first. Note that later in the
footnote he refers to what the Court "stated" in the Palm Beach County
case, not what the Court held in that case. Even so, some qualification of
the "see" would have been good, such as "(requiring remand to determine
whether the state court was following the legislature's statute or the
state court's interpretation of the Florida Constitution)."

Mark

[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

On Mon, Oct 26, 2020 at 5:56 PM Marty Lederman <
Martin.Lederman at law.georgetown.edu> wrote:

> Contrast his care in reading SCOTUS opinions on p.8:
>
> In attempting to justify the District Court’s injunction, Applicants also
> rely on this Court’s decision in April regarding the Wisconsin primary
> election. They claim that the Court there approved the District Court’s
> change of the deadline for receipt of absentee ballots in the primary
> election, so long as the ballots were postmarked by election day. RNC, 589
> U. S. ___. *That assertion is incorrect. In that case, this Court
> explicitly stated that the District Court’s last-minute extension of the
> deadline for receipt of absentee ballots was “not challenged in this
> Court.” Id., at ___ (slip op., at 1).*
>
>
> On Mon, Oct 26, 2020 at 8:44 PM Levitt, Justin <justin.levitt at lls.edu>
> wrote:
>
>> We’ve been down this road on the listserv before (and I know Mark S.
>> disagrees with me on the meaning of the Court’s opinion).  But it’s
>> discouraging for a sitting Supreme Court Justice to say that a unanimous
>> Court resolved a federal question when that same Court said expressly that
>> it would “decline at this time to review the federal questions asserted to
>> be present.”  Bush v. Palm Beach Cnty. Canvassing Bd., 531 U.S. 70, 78
>> (2000).
>>
>>
>>
>> It's one thing to interpret what the Constitution says.  It’s another
>> thing to interpret what a Court says when the Court *expressly* notes
>> that they’re not saying what you think they’re saying.
>>
>>
>>
>> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
>> Behalf Of *Rick Hasen
>> *Sent:* Monday, October 26, 2020 5:21 PM
>> *To:* Election Law Listserv <law-election at uci.edu>
>> *Subject:* [EL] Breaking SCOTUS WI ruling, and tea leaves for PA
>>
>>
>> Breaking and Analysis: Supreme Court, on 5-3 Party Line Vote, Won’t
>> Restore Wisconsin Ballot Deadline Extension; Justices Fight in Footnotes
>> over Pennsylvania State Court Issue
>> <https://electionlawblog.org/?p=117435>
>>
>> Posted on October 26, 2020 5:04 pm
>> <https://electionlawblog.org/?p=117435> by *Rick Hasen*
>> <https://electionlawblog.org/?author=3>
>>
>> On a 5-3 party line vote,
>> <https://assets.documentcloud.org/documents/7276432/10-26-20-DNC-v-Wisconsin-SCOTUS-Order.pdf> the
>> Supreme Court rejected Democrats’ and voting rights groups attempts to
>> reverse the 7th Circuit putting the brakes on a district court order that
>> would have extended the deadline for receipt of absentee ballots postmarked
>> by election day and received for up to six days after election day. All of
>> the Republican-appointed Justices voted against extending the deadline; all
>> of the Democratic-appointed Justices voted to allow the extension.
>>
>> There was no majority opinion. The principal concurrence came from
>> Justice Kavanaugh, who not only advanced a very strong notion of the
>> Purcell principle but also argued extensively that federal courts should
>> not be second guessing state decisions about how to balance health and
>> voting during the pandemic. (Justice Gorsuch in a separate brief dissent
>> made similar points about federal court authority.) But Justice Kavanaugh
>> went even further and found that there would be no disenfranchisement,
>> engaging in a kind of reweighing of the evidence to show that Wisconsin
>> voters would have ample opportunity to vote by mail without the extension.
>>
>> Justice Kagan wrote the sole dissent. In some ways, she echoed Justice
>> Ginsburg’s earlier dissent in the RNC v. DNC case, which saw the risk of
>> disenfranchisement with the failure to extend voting rules during
>> Wisconsin’s primary. But Justice Kagan’s analysis went further, attacking
>> the strong reading of the Purcell Principle and echoing the main point I
>> made in my “Reining in the Purcell Principle” law review article
>> <https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2542&context=lr>:
>>
>> *At its core, Purcell tells courts to apply, not depart from, the usual
>> rules of equity. See, e.g., Winter v. Natural Resources Defense Council,
>> Inc., 555 U. S. 7, 24 (2008) (“In each case, courts must balance the
>> competing claims of injury and must consider the effect on each party of
>> the granting or withholding of the requested relief” (internal quotation
>> marks omitted)). And that means courts must consider all relevant factors,
>> not just the calendar. Yes, there is a danger that an autumn injunction may
>> confuse voters and suppress voting. But no, there is not a moratorium on
>> the Constitution as the cold weather approaches. Remediable incursions on
>> the right to vote can occur in September or October as well as in April or
>> May.*
>>
>> The result in this case is not a surprise; in every case that Court has
>> considered this election cycle where a federal court has extended a voting
>> rule over state objection, the state has won (often, but not always, along
>> a party line vote). Indeed, I was surprised that Wisconsin plaintiffs
>> decided to take this case up. Doing so risked making more bad law, which is
>> what this case just did.
>>
>> Perhaps of greatest importance in this case, however, is not the
>> (unsurprising) holding or party-line split but instead the fight over the
>> issue in the *Pennsylvania* case: what happens when it is a *state* court,
>> not a *federal* court, extending voting rights during the pandemic.
>> Three of the Justices weighed in on this. Justice Kavanaugh dropped an
>> extensive footnote, citing *Bush v. Gore* (!), arguing that state courts
>> too are limited in extending voting rights even during a pandemic and even
>> in reliance on a state constitution if a state *legislature* objects:
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> *A federal court’s alteration of state election laws such as Wisconsin’s
>> differs in some respects from a state court’s (or state agency’s)
>> alteration of state election laws. That said, under the U. S. Constitution,
>> the state courts do not have a blank check to rewrite state election laws
>> for federal elections. Article II expressly provides that the rules for
>> Presidential elections are established by the States “in such Manner as the
>> Legislature thereof may direct.” §1, cl. 2 (emphasis added). The text of
>> Article II means that “the clearly expressed intent of the legislature must
>> prevail” and that a state court may not depart from the state election code
>> enacted by the legislature. Bush v. Gore, 531 U. S. 98, 120 (2000)
>> (Rehnquist, C. J., concurring); see Bush v. Palm Beach County Canvassing
>> Bd., 531 U. S. 70, 76–78 (2000) (per curiam); McPherson v. Blacker, 146 U.
>> S. 1, 25 (1892). In a Presidential election, in other words, a state
>> court’s “significant departure from the legislative scheme for appointing
>> Presidential electors presents a federal constitutional question.” Bush v.
>> Gore, 531 U. S., at 113 (Rehnquist, C. J., concurring). As Chief Justice
>> Rehnquist explained in Bush v. Gore, the important federal judicial role in
>> reviewing state-court decisions about state law in a federal Presidential
>> election “does not imply a disrespect for state courts but rather a respect
>> for the constitutionally prescribed role of state legislatures. To attach
>> definitive weight to the pronouncement of a state court, when the very
>> question at issue is whether the court has actually departed from the
>> statutory meaning, would be to abdicate our responsibility to enforce the
>> explicit requirements of Article II.” Id., at 115.*
>>
>>
>>
>> * The dissent here questions why the federal courts would have a role in
>> that kind of case. Post, at 11, n. 6 (opinion of KAGAN, J.). The answer to
>> that question, as the unanimous Court stated in Bush v. Palm Beach County
>> Canvassing Bd., and as Chief Justice Rehnquist persuasively explained in
>> Bush v. Gore, is that the text of the Constitution requires federal courts
>> to ensure that state courts do not rewrite state election laws.*
>>
>> Justice Kagan briefly objected to this analysis, believing this issue
>> controlled by the recent *Arizona* redistricting ruling (where the Chief
>> Justice dissented, before he had a more conservative majority for the
>> Court):
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> *At the same time that JUSTICE KAVANAUGH defends this stance by decrying
>> a “federal-judges-know-best vision of election administration,” ante, at
>> 10, he calls for more federal court involvement in “reviewing state-court
>> decisions about state [election] law,” ante, at 9, n. 1. It is hard to know
>> how to reconcile those two views about the federal judiciary’s role in
>> voting-rights cases. Contrary to JUSTICE KAVANAUGH’s attempted explanation,
>> neither the text of the Elections Clause nor our precedent interpreting it
>> leads to his inconstant approach. See Arizona State Legislature v. Arizona
>> Independent Redistricting Comm’n, 576 U. S. 787, 817–818 (2015); Smiley v.
>> Holm, 285 U. S. 355, 372 (1932).*
>>
>> Chief Justice Roberts, who sided with the liberal Justices the first time
>> this issue came up in the Pennsylvania context, just broadly stated that
>> cases coming from federal and state courts present different issues:
>>
>>
>>
>>
>> *In this case, as in several this Court has recently addressed, a
>> District Court intervened in the thick of election season to enjoin
>> enforcement of a State’s laws. Because I believe this intervention was
>> improper, I agree with the decision of the Seventh Circuit to stay the
>> injunction pending appeal. I write separately to note that this case
>> presents different issues than the applications this Court recently denied
>> in Scarnati v. Boockvar, ante, at , and Republican Party of Pennsylvania v.
>> Boockvar, ante, at . While the Pennsylvania applications implicated the
>> authority of state courts to apply their own constitutions to election
>> regulations, this case involves federal intrusion on state lawmaking
>> processes. Different bodies of law and different precedents govern these
>> two situations and require, in these particular circumstances, that we
>> allow the modification of election rules in Pennsylvania but not Wisconsin.*
>>
>> What does all this mean for the pending request to expedite the cert.
>> petition in the Pennsylvania case? It is hard to say, because in that case
>> there are serious reliance interests
>> <https://electionlawblog.org/?p=117382> based upon the earlier state
>> ruling *and* there’s a serious standing question
>> <https://electionlawblog.org/?p=117413> for the PA GOP requesting
>> intervention.
>>
>> [*This post has been updated.*]
>>
>> [image: Share]
>> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117435&title=Breaking%20and%20Analysis%3A%20Supreme%20Court%2C%20on%205-3%20Party%20Line%20Vote%2C%20Won%E2%80%99t%20Restore%20Wisconsin%20Ballot%20Deadline%20Extension%3B%20Justices%20Fight%20in%20Footnotes%20over%20Pennsylvania%20State%20Court%20Issue>
>>
>> Posted in absentee ballots <https://electionlawblog.org/?cat=53>
>>
>>
>>
>>
>>
>> --
>>
>> Rick Hasen
>>
>> Chancellor's Professor of Law and Political Science
>>
>> UC Irvine School of Law
>>
>> 401 E. Peltason Dr., Suite 1000
>>
>> Irvine, CA 92697-8000
>>
>> 949.824.3072 - office
>>
>> rhasen at law.uci.edu
>>
>> http://www.law.uci.edu/faculty/full-time/hasen/
>>
>> http://electionlawblog.org
>>
>>
>> _______________________________________________
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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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