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

Tue Oct 27 08:56:50 PDT 2020

Spinning off of Rick's email, does anyone think Anderson/Burdick has any
life at all any longer--as a practical matter in the SCOTUS, anyway?

On Tue, Oct 27, 2020 at 11:43 AM Rick Hasen <rhasen at law.uci.edu> wrote:

> I am worried not just about the current election but the kinds of
> precedents being created around the country that will hurt voting
> plaintiffs for years to come (I’m thinking of cases such as the 5th
> circuit cases on voting by mail in Texas).  I am very sympathetic to Jon’s
> clients, but in the long run I think some of these cases are making it
> worse for more people in similar positions.
>
>
>
> One thing I would like to do is look at when voting rights plaintiffs were
> successful in their suits. One pattern I think we will see is Republican
> states allowing suits making it easier to vote during the primary (e.g.,
> signatures not required in South Carolina) but then fighting to block those
> changes when the general election is on the line.  (I call dibs on this
> research, lol)
>
>
>
> And I continue to think you give me way too much credit.  The Purcell
> Principle is the tail wagging the dog; these Justices wanted to block
> expansions of voting rights and Purcell was a convenient way to do it. It
> is not as though they would have sided with voting rights plaintiffs if
> these claims didn’t exist.  My point in writing about the Principle in 2016
> was to try to get the Court to do what justice Kagan said last night in her
> dissent: treat these election cases under the full four-factor approach to
> stays and other emergency relief rather than singling out timing as the
> only significant factor. It is clear from J. Kavanaugh’s opinion that
> Purcell is just one of a number of paths to get to what the conservative
> Justices want.
>
>
>
>
>
> *From: *Jon Sherman <jsherman at fairelectionscenter.org>
> *Date: *Monday, October 26, 2020 at 9:09 PM
> *To: *Rick Hasen <rhasen at law.uci.edu>
> *Cc: *"Foley, Edward" <foley.33 at osu.edu>, Election Law Listserv <
> law-election at uci.edu>
> *Subject: *Re: [EL] Breaking SCOTUS WI ruling, and tea leaves for PA
>
>
>
> That's not accurate. This only really took off in 2014 in the four shadow
> docket cases you cited, out of OH, WI, TX, and NC. I suspect strongly that
> if there were any there there at all prior to 2014, your or one of your
> colleagues would have long written about it before that point. But in 2014, you
> called "dibs" <https://electionlawblog.org/?p=66643> on it because that
> was the first real meaningful application of it at SCOTUS. Indeed, when the
> Supreme Court cites to *Purcell *in *RNC v. DNC*, it jumps straight from
> 2006 to 2014. I think it's naive to think that one of the nation's foremost
> election law scholars, having boosted the idea of a "*Purcell *principle"
> innumerable times in the press and in scholarship, this article having been
> cited repeatedly in judicial opinions, has had no impact in concretizing
> and amplifying what was amorphous, inchoate, internally contradictory,
> inconsistently applied to the point of evaporation, etc. There is a case
> named *Purcell*, but there's no such thing as a *Purcell* principle. But
> you and others will keep using that phrase, harmful as it is to voting
> rights. You don't need to agree with me publicly, but you should consider
> it privately. The cynical abuse the less cynical.
>
>
>
> It's also inaccurate to say that *RNC v. DNC *signalled that SCOTUS would
> not approve any pandemic-related changes to election law. Here's what the
> Court actually said: "The Court’s decision on the narrow question before
> the Court should not be viewed as expressing an opinion on the broader
> question of whether to hold the election, or whether other reforms or
> modifications in election procedures in light of COVID–19 are appropriate.
> That point cannot be stressed enough." That decision solely imposed a
> postmark requirement, given the existing deadline extension, which was not
> brought to the Court by the RNC and Legislature.
>
>
>
> You look at the aftermath and call it a bad result and a misguided, even
> boneheaded, attempt. We look at the voters and here's what we see -- people
> with cancer, diabetes, COPD, heart diseases and a host of other (common)
> comorbidities and conditions that put them at severe risk of complications
> or death from voting in person in an indoor environment where countless
> voters have congregated throughout the day, potentially shedding virus,
> even if they're asymptomatic or presymptomatic. (Some of you may be rolling
> your eyes and still don't believe the research on aerosolized transmission
> - I don't think your eyes will be rolling after this winter's done.) One
> client was diagnosed with cancer just before the April 7 election. She
> couldn't take a risk of contracting Covid-19, both for the simple risk to
> her life, but also because she would need to test negative to undergo the
> life-saving surgery she needed. She applied for a ballot weeks in advance.
> None came in the mail. She sought a replacement ballot. None came in the
> mail. She stared at the lines wrapping around the block, and just couldn't
> do it. This is the kind of impossible choice between protecting one's
> health and exercising one's right to vote in a free society that the
> Supreme Court has endorsed and validated as constitutional. This client
> stands in for thousands of voters who never received a ballot in the mail
> in April. You will see backlogs and delivery failures this election as
> well. I'm not going to ask whether you think this person is entitled to
> relief. She is. You dispute the wisdom of seeking this relief, even if
> she's entitled to it under the Constitution because of the risk of making
> bad law. But the only way to avoid making bad law, as you know, is to give
> up entirely. Because if you win in district court and you win at the
> circuit, you can be taken to the Supreme Court against your will. And
> countless cases this year that have arrived at SCOTUS in this way could
> have generated the exact same opinions. So there's no call for singling the
> Wisconsin cases out, as the only way to avoid these kinds of opinions is to
> give up entirely. That, of course, no one, including myself, will do.
>
>
>
> I started to put together a list of all the success voting rights
> litigators have had in federal court this year in forcing protections for
> voters and realized I was just too tired to list them all out. But even
> leaving aside states like Minnesota, Virginia, New Jersey, and Rhode
> Island, where litigation forced consent decrees, from Kentucky to Louisiana
> to North Carolina to Arizona, federal litigation has had a meaningful
> impact for voters casting their ballots in unprecedented circumstances.
>
>
>
>
>
>
>
>
>
>
>
> On Mon, Oct 26, 2020 at 11:08 PM Rick Hasen <rhasen at law.uci.edu> wrote:
>
> 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> 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
>
>
> [image: 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> on
> behalf of Rick Hasen <rhasen at law.uci.edu>
> *Date: *Monday, October 26, 2020 at 8:33 PM
> *To: *"law-election at uci.edu" <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.*
>
> [image: Share]
> <https://urldefense.com/v3/__https:/www.addtoany.com/share*url=https*3A*2F*2Felectionlawblog.org*2F*3Fp*3D117447&title=The*20Kagan-Kavanaugh*20Dispute*20Over*20**BSuspicions**C20of*20Ballots*20Arriving*20after*20Election*20Day*20**BFlipping**C20Election*20Results__;IyUlJSUlJSUlJSXigJzigJ0lJSUlJSUl4oCc4oCdJSU!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0cCZq3nTg$>
>
> Posted in Supreme Court
> <https://urldefense.com/v3/__https:/electionlawblog.org/?cat=29__;!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0e5s1PQlw$>
>
>
>
>
>
>
>
>
> *From: *Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of Rick Hasen <rhasen at law.uci.edu>
> *Date: *Monday, October 26, 2020 at 5:22 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://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$> for
> the PA GOP requesting intervention.
>
> [*This post has been updated.*]
>
> [image: Share]
> <https://urldefense.com/v3/__https:/www.addtoany.com/share*url=https*3A*2F*2Felectionlawblog.org*2F*3Fp*3D117435&title=Breaking*20and*20Analysis*3A*20Supreme*20Court*2C*20on*205-3*20Party*20Line*20Vote*2C*20Won**Bt*20Restore*20Wisconsin*20Ballot*20Deadline*20Extension*3B*20Justices*20Fight*20in*20Footnotes*20over*20Pennsylvania*20State*20Court*20Issue__;IyUlJSUlJSUlJSUlJSUlJSUlJSXigJklJSUlJSUlJSUlJSUlJSU!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0foQvTN_g$>
>
> Posted in absentee ballots
> <https://urldefense.com/v3/__https:/electionlawblog.org/?cat=53__;!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0eQa8dBIQ$>
>
>
>
>
>
>
>
>
>
> --
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
> 401 E. Peltason Dr., Suite 1000
>
> Irvine, CA 92697-8000
>
> 949.824.3072 - office
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
> <https://urldefense.com/v3/__http:/www.law.uci.edu/faculty/full-time/hasen/__;!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0eW4edZmQ$>
>
> http://electionlawblog.org
> <https://urldefense.com/v3/__http:/electionlawblog.org/__;!!KGKeukY!jLYB0hnoDQpJ8sCZxSgYiOvF0V-NT9yGhcWyMwrb81vaR0lWWVfX6MZ6n0enrilkpw$>
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
>
> --
>
> Jon Sherman
>
> Senior Counsel
> Fair Elections Center
> 1825 K Street NW, Suite 450
>
> Washington, D.C. 20006
> Phone: (202) 248-5346
>
> jsherman at fairelectionscenter.org
>
> www.fairelectionscenter.org
>
>
>
>
> --
>
> Jon Sherman
>
> Senior Counsel
> Fair Elections Center
> 1825 K Street NW, Suite 450
>
> Washington, D.C. 20006
> Phone: (202) 248-5346
>
> jsherman at fairelectionscenter.org
>
> www.fairelectionscenter.org
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election

-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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