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

Tue Oct 27 09:14:17 PDT 2020

It was encouraging that Kavanaugh at least conducted an
*Anderson/Burdick* analysis
(albeit after saying that analysis wasn't necessary to his decision). I
believe that was the first time this year that a conservative justice
acknowledged the existence of the relevant doctrinal framework. So maybe
that's some kind of silver lining -- at least *Anderson/Burdick* hasn't
been silently overruled, and formally there's still constitutional
protection for the right to vote.

On Tue, Oct 27, 2020 at 12:00 PM Marty Lederman <
Martin.Lederman at law.georgetown.edu> wrote:

> 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
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election

-- 
Nicholas O. Stephanopoulos
Professor of Law
Harvard Law School
nstephanopoulos at law.harvard.edu
(617) 998-1753
https://hls.harvard.edu/faculty/directory/11787/Stephanopoulos
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201027/fe925a56/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 3612 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201027/fe925a56/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 2024 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201027/fe925a56/attachment-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.png
Type: image/png
Size: 2025 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201027/fe925a56/attachment-0002.png>