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

Mon Oct 26 20:08:40 PDT 2020

If you think me naming and criticizing the use of Purcell actually facilitated its use by the courts, I think you give me way too much credit. By the time I wrote about the principle in 2016, the Supreme Court had already been deploying it on the shadow docket for nearly a decade without much academic analysis. I make that point in my article<https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2542&context=lr>.

As far as the question I posed on twitter: I stand by the idea that voting rights plaintiffs take a big risk of getting adverse precedent that applies nationwide when they go to the Supreme Court for “clarification.”  Far better from the point of view of voting rights to have at least some circuits where they are protected.

For that matter, I’m not sure that all the aggressive pushing to expand voting rights during the pandemic, as laudable as that is in theory and as much as I wholly support it as a theoretical matter<https://www.liebertpub.com/doi/full/10.1089/elj.2020.0646>, made sense after the RNC v. DNC case, which signalled that a Supreme Court majority was going to swat down federal court interventions to make voting easier during the pandemic. While it allowed some positive voting changes, many others got late reversals which might have made voters worse off.

Indeed, I wonder, knowing what we know now about how at least four members of the Court favor an aggressive reading of the independent state legislature doctrine whether it made sense to push for extensions of the deadline for receipt of absentee ballots in PA.

Something to keep in mind if there is any post-election litigation in PA or NC (both cases with Democratic state supreme courts and Republican dominated legislatures).

From: Jon Sherman <jsherman at fairelectionscenter.org>
Date: Monday, October 26, 2020 at 7:58 PM
To: "Foley, Edward" <foley.33 at osu.edu>
Cc: Rick Hasen <rhasen at law.uci.edu>, Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Breaking SCOTUS WI ruling, and tea leaves for PA

Instead of casting aspersions on the lawyers who have been in the trenches all year<https://mobile.twitter.com/rickhasen/status/1320895945316335619>, some of the academics on this listserv might do well to look hard in the mirror and take stock of the ways in which their scholarship has been abused by the courts. Perhaps the person who coined the oft-cited phrase "the Purcell principle," helping to turn something poorly-defined and flimsy into something muscular, shouldn't be throwing stones?

Our case, Gear, didn't generate an opinion here, alas, so I don't feel personally attacked but I will stick up for those who brought this fight to the Supreme Court, as we all advocated for some definition and detail to be developed for the barebones (if it can even be said to be bone) Purcell "principle." There are elections all the time, not just the ones that this listserv pays attention to, and at this rate, this pandemic is going nowhere. Voting rights advocates and courts must know when these cases can proceed and how fast they need to proceed. Litigation to protect the right to vote will not cease. I and others can point to any number of wins this year that litigation has forced for every loss that this listserv might dwell on. And almost needless to say, these same opinions could've been written in just about any of the dozen or so cases that reached the Court this year.

There is no Purcell principle. Tonight's opinion not only blocks a ballot receipt deadline extension but a ruling from the district court that would allow poll workers to serve in any part of Wisconsin, not just in their county of registration. This helps keep polling places open during a pandemic where the usual volunteer pool is deathly afraid and dropping out. Someone explain to me how that violates any of the considerations identified in the Court's Purcell decision. Will voters be confused by statewide poll worker service? Will they be deterred from participating? Will allowing poll workers to serve anywhere statewide add to administrative burdens and costs or reduce them? Give me a break. (This was not part of the relief in the Gear case.)

The Gear Plaintiffs went to the Supreme Court seeking consistency, seeking adherence to the concerns actually identified in Purcell. But the Court isn't interested in the considerations it actually identified in Purcell or even in enforcing the reductive version of the "principle." In 2016, the US District Court for the Western District of Wisconsin ordered an extension of email delivery of ballots to all voters, not just military and overseas voters. Just 7 weeks before absentee ballots were due to be mailed out for the presidential election, the Wisconsin Elections Commission sought a stay at the Seventh Circuit, and the panel denied it without even so much as an explanation. (Indeed, the One Wisconsin Institute decision resulted in a variety of changes to election laws, and none of these were stayed.) The 2016 presidential election proceeded, nearly 10,000 ballots were delivered to voters by email, and 7,000+ were returned by mail. No incidents, no dispute, and Trump won the election. This year, in late June, the Seventh Circuit reverses that part of the district court's opinion -- after holding onto the case for 3.5 years after a February 2017 oral argument -- but of course the mandate doesn't issue until July 29, smack dab in the middle of the August 11 primary election, with ballots already out and early voting ongoing. The Seventh Circuit did not stay its decision or explain how its reversals should be implemented in the course of the ongoing election, administrative chaos and voter confusion be damned. We sought to reinstate email delivery as a fail-safe for voters on a limited basis (it had been used for the prior 20 years and available to all Wisconsin voters for the previous 4), for voters who cannot safely vote in person and who timely request but do not receive an absentee ballot in the mail. Ballots did not arrive in the mail for thousands of voters back in April, and thousands lost their right to vote as a result. The relief was to run for a short time period (the Court ordered 8 days, October 22-29), and we even suggested that the court could insist that these voters have requested their ballots X number of days in advance of exercising the fail-safe. This exceedingly limited ruling was of course stayed by the 7th Circuit, without even so much as an application of the actual considerations in Purcell or even the Nken factors. So, a much much much much more limited version of the same relief ordered back in 2016 which the Seventh Circuit did not stay around almost the exact same time that it stayed the lower court's order here...... There is no Purcell principle, and no one should be using that phrase. It doesn't describe reality, as principles have concrete meaning and are applied in a consistent fashion. But there could be a set of factors for consideration. They could put some meat on the bones and actually enforce consideration of those factors/considerations. But that would deprive the Court of the flexibility to kill all voting rights litigation without explanation.

On Mon, Oct 26, 2020 at 10:13 PM Foley, Edward <foley.33 at osu.edu<mailto:foley.33 at osu.edu>> wrote:
Given the discussion of the back-and-forth between Justices Kavanaugh and Kagan on various issues, there is another back-and-forth between them that is relevant to the pending PA & NC cases, and which relates to a point I address in a new piece for the Washington Post today: https://www.washingtonpost.com/opinions/2020/10/26/what-kind-conservative-will-amy-coney-barrett-be-election-could-depend-it/

Justice Kavanaugh (page 3 of his opinion) invokes the principle of “judicial restraint”—and Justice Kagan (in note 7 on page 11 of her dissent) observes that this invocation of judicial restraint is just one of "two views [he offers] about the federal judiciary's role in voting-rights cases.” The other view is judicially activist stance in the form of the “independent state legislature” doctrine at issue in the PA & NC cases.

Which of these two views will Justice Barrett embrace in the pending PA & NC cases, and more broadly which of these two views will prevail with the Court as a whole? That’s the question I consider in the WaPo piece (and I note the relevance of the Kavanaugh-Kagan exchange on this point here: https://twitter.com/Nedfoley/status/1320904748938178566 )

Ned

[signature_1204328033]

Edward B. Foley
Ebersold Chair in Constitutional Law
Director, Election Law at Ohio State<https://u.osu.edu/electionlaw/>
Moritz College of Law  
614-292-4288

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Date: Monday, October 26, 2020 at 8:33 PM
To: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Breaking SCOTUS WI ruling, and tea leaves for PA

The Kagan-Kavanaugh Dispute Over “Suspicions” of Ballots Arriving after Election Day “Flipping” Election Results<https://urldefense.com/v3/__https:/electionlawblog.org/?p=117447__;!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0ew1KsZ6Q$>
Posted on October 26, 2020 5:31 pm<https://urldefense.com/v3/__https:/electionlawblog.org/?p=117447__;!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0ew1KsZ6Q$> by Rick Hasen<https://urldefense.com/v3/__https:/electionlawblog.org/?author=3__;!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0dHfdVz4A$>

This is also worth highlighting from today’s dueling opinions<https://urldefense.com/v3/__https:/assets.documentcloud.org/documents/7276432/10-26-20-DNC-v-Wisconsin-SCOTUS-Order.pdf__;!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0eNF1W-iA$>.

Justice Kavanagh:

For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day. Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.

Justice Kagan:

JUSTICE KAVANAUGH alleges that “suspicions of impropriety” will result if “absentee ballots flow in after election day and potentially flip the
results of an election.” Ante, at 7. But there are no results to “flip” until
all valid votes are counted. And nothing could be more “suspicio[us]” or
“improp[er]” than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is
to disserve the electoral process.
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From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Date: Monday, October 26, 2020 at 5:22 PM
To: Election Law Listserv <law-election at uci.edu<mailto: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://urldefense.com/v3/__https:/electionlawblog.org/?p=117435__;!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0e3FlyjNw$>
Posted on October 26, 2020 5:04 pm<https://urldefense.com/v3/__https:/electionlawblog.org/?p=117435__;!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0e3FlyjNw$> by Rick Hasen<https://urldefense.com/v3/__https:/electionlawblog.org/?author=3__;!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0dHfdVz4A$>

On a 5-3 party line vote,<https://urldefense.com/v3/__https:/assets.documentcloud.org/documents/7276432/10-26-20-DNC-v-Wisconsin-SCOTUS-Order.pdf__;!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0eNF1W-iA$> 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://urldefense.com/v3/__https:/ir.law.fsu.edu/cgi/viewcontent.cgi?article=2542&context=lr__;!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0flPzPJ0A$>:

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://urldefense.com/v3/__https:/electionlawblog.org/?p=117382__;!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0eXZA0rtQ$> based upon the earlier state ruling and there’s a serious standing question<https://urldefense.com/v3/__https:/electionlawblog.org/?p=117413__;!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0epc4BlzQ$> for the PA GOP requesting intervention.

[This post has been updated.]
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