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

Tue Oct 27 13:43:23 PDT 2020

Among the various issues with Kavanaugh's concurrence is that he places
repeated emphasis on the fact that "most States" count mail-in ballots only
if they are received on/before Election Day.  He's technically correct if
we're talking about regular mail-in ballots, as 28 states will use a
November 3rd receipt deadline in 2020. (Still, hardly the type of
supermajority approach he supposes.)  But he's actually incorrect if you
look at the UOCAVA deadlines because the numbers flip--28 states + DC
accept and count UOCAVA ballots that are received after Election Day.  This
does not seem to mesh with the legislative justifications he was somehow
able to so breezily divine from multiple legislatures across the various
states.

I think there are meritorious arguments in favor of the result reached in
this case.  This isn't one of them.

Matt

On Mon, Oct 26, 2020 at 8:33 PM Rick Hasen <rhasen at law.uci.edu> wrote:

> The Kagan-Kavanaugh Dispute Over “Suspicions” of Ballots Arriving after
> Election Day “Flipping” Election Results
> <https://electionlawblog.org/?p=117447>
>
> Posted on October 26, 2020 5:31 pm <https://electionlawblog.org/?p=117447>
>  by *Rick Hasen* <https://electionlawblog.org/?author=3>
>
> This is also worth highlighting from today’s dueling opinions
> <https://assets.documentcloud.org/documents/7276432/10-26-20-DNC-v-Wisconsin-SCOTUS-Order.pdf>
> .
>
> 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://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117447&title=The%20Kagan-Kavanaugh%20Dispute%20Over%20%E2%80%9CSuspicions%E2%80%9D%20of%20Ballots%20Arriving%20after%20Election%20Day%20%E2%80%9CFlipping%E2%80%9D%20Election%20Results>
>
> Posted in Supreme Court <https://electionlawblog.org/?cat=29>
>
>
>
>
>
> *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://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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