[EL] Well, now we know there are at least four Justices (w/Barrett not yet opining)

[Levitt, Justin]

Well, if they acquire<https://www.supremecourt.gov/opinions/20pdf/20-542_i3dj.pdf> one more vote, this ought to be really fun for both the Court and for Pennsylvania election officials.  Chaos<https://takecareblog.com/blog/pennsylvania-legislators-invite-some-extra-scotus-chaos-this-election-season>, indeed.

Leave aside the Justices’ whimsical new approach to stare decisis.  If this opinion gets another vote, Pennsylvania officials will have to count some ballots for state offices but not for federal offices (unless, of course, there’s an equal protection problem in treating votes for those offices differently).  And if that’s an equal protection problem, then the Court will have magically freed legislatures from any state constitutional constraints on their own state elections, too.  Plus, we’d get to watch the Court decide all kinds of state law issues, like when a state court was really making the legislature’s rules or just interpreting the legislature’s rules, which leads to the prospect of the Court trying to discern what state legislatures really wanted (without the help of the state courts, which appear to have their own constitutionally subordinate agenda) – in every state where the state courts may have construed a statute bearing on federal elections.

Justin

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Marty Lederman
Sent: Wednesday, October 28, 2020 2:29 PM
To: Rick Hasen <rhasen at law.uci.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: [EL] Well, now we know there are at least four Justices (w/Barrett not yet opining)

for the notion that legislatures can't be bound by their own state constitutions:

"[T]here is a strong likelihood that the [PA] State Supreme Court decision violates the Federal Constitution. The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election. See Art. I, §4, cl. 1; Art. II, §1, cl. 2."

The dripping contempt for courts' very common, ordinary constitutional adjudication, is palpable:  "simply by claiming"; "make whatever rules it thought appropriate."
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201028/623ac6a4/attachment.html>