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

[Derek Muller]

The Pennsylvania Supreme Court held, "we recognize that the determination
of that balance [between providing voters ample time to request mail-in
ballots, while also building enough flexibility into the election timeline
to guarantee that ballot has time to travel through the USPS delivery
system] is *fully enshrined within the authority granted to the Legislature
*under the United States and Pennsylvania Constitutions. [Article I,
Article II]" (Emphasis added.) In the next paragraph, led by
"Nevertheless," it turns to a judicial remedy--in a precedent from a state
election in 1985 (with no further citation to Articles I or II). The
Pennsylvania Supreme Court's decision giveth and taketh away in two
paragraphs, which, I think, makes Justice Alito's point salient here.

Derek T. Muller
Professor of Law
University of Iowa College of Law
Iowa City, Iowa 52242
+1 319-335-1935
SSRN: http://papers.ssrn.com/author=464341
Twitter: http://twitter.com/derektmuller

On Wed, Oct 28, 2020 at 4:53 PM Levitt, Justin <justin.levitt at lls.edu>
wrote:

> 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."
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201028/b274a21b/attachment.html>