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

[Jeff Hauser]

How does a federal court determine what is the state legislature absent the
State Constitution, which in turn is interpreted definitively by its
State Supreme Court?

e.g., Nebraska is generally deemed to be "unicameral." But what if some
gathering in Omaha declares they're in the actual state capitol and they're
the long lost Nebraska State Assembly. Who is to tell them otherwise? The
Supreme Court based on... what sort of factfinding?

The concept of a state legislature outside the context of a state
Constitution interpreted by a state's highest Court is incoherent.

On Wed, Oct 28, 2020 at 5:56 PM Samuel S. Wang <sswang at princeton.edu> wrote:

> I was once told by my betters that rights were not limited to those
> enumerated in the Constitution, but that stronger protections could be
> conferred by the states. Also, that state courts are arbiters of those
> additional rights. But ymmv.
>
> Sam Wang
>
> >>>
> Sent by handheld. Excuse brevity please!
>
> On Oct 28, 2020, at 5:50 PM, Ilya Shapiro <IShapiro at cato.org> wrote:
>
> To me that reads as supporting the notion that state courts are bound by
> state constitutions and aren’t free-ranging “justice” commissions with
> limitless power to rewrite legislation, but I guess ymmv.
>
>
>
> Ilya Shapiro
>
> Director, Robert A. Levy Center for Constitutional Studies
>
> Publisher, *Cato Supreme Court Review*
>
> Cato Institute
>
> 1000 Massachusetts Ave. NW
>
> Washington, DC  20001
>
> cel. (202) 577-1134
>
> Skype: ishapiro99
>
> Bio/clips: https://www.cato.org/people/ilya-shapiro
>
> Twitter: www.twitter.com/ishapiro
>
> SSRN: http://ssrn.com/author=1382023
>
>
>
> Buy my new book: *Supreme Disorder: Judicial Nominations and the Politics
> of America’s Highest Court
> <https://www.amazon.com/Supreme-Disorder-Judicial-Nominations-Politics/dp/1684510562/>*
>
>
>
> *Cato Supreme Court Review*:  http://www.cato.org/supreme-court-review
>
> Watch our 19th Annual Constitution Day Conference, Sept. 17, 2020:
>
> https://www.cato.org/events/19th-annual-constitution-day
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *Marty Lederman
> *Sent:* Wednesday, October 28, 2020 5:29 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)
>
>
>
> *CAUTION: External Email*
>
>
>
> 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."
>
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