[EL] (no subject)

[Rick Hasen]

Yes, I’ve now gone back and reread and think that that footnote from J. Kavanaugh could well have been recycled from a statement that was not used in the PA case.

I also think it is interesting that J. Gorsuch (and the other conservatives) did not join Kavanaugh’s concurrence.  Though J. Gorsuch did say this on the independent state legislature doctrine:

The Constitution dictates a different approach to these how-much-is-enough questions. The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules. Art. I, §4, cl. 1. And the Constitution provides a second layer of protection too. If state rules need revision, Congress is free to alter them. Ibid. (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . ”). Nothing in our founding document contemplates the kind of judicial intervention that took place here, nor is there precedent for it in 230 years of this Court’s decisions.



From: "Pildes, Rick" <rick.pildes at nyu.edu>
Date: Monday, October 26, 2020 at 6:36 PM
To: Rick Hasen <rhasen at law.uci.edu>, Election Law Listserv <law-election at uci.edu>
Subject: RE: [EL] (no subject)

The independent legislature doctrine is the same issue in both PA and WI.  That’s what I was thinking, with Gorsuch and Kavanaugh now writing explicitly on that issue rather than those views being left silent in the 4-4 PA order.

From: Rick Hasen [mailto:rhasen at law.uci.edu]
Sent: Monday, October 26, 2020 8:28 PM
To: Pildes, Rick <rick.pildes at nyu.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] (no subject)

It was filed October 14
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20a66.html<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.supremecourt.gov_search.aspx-3Ffilename-3D_docket_docketfiles_html_public_20a66.html&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=Iv7gZ_Nh5p5shGMBb5QejioPy_m1aHbC-uSVaMPb4ts&s=MMo9kmn3cKEtPDZ5vPOjmlwenQObyhSZOn57Tkl6sIw&e=>

But the issues are sufficiently different that I don’t think much of it was written for PA

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of "Pildes, Rick" <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>>
Date: Monday, October 26, 2020 at 5:19 PM
To: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] (no subject)

How long was the WI case pending before the Court?  I am wondering if these opinions were written for PA originally, then suppressed in the 4-4 vote.

Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square So.
NYC, NY 10014
347-886-6789

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