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

[Levitt, Justin]

Fair … and if the PA Supreme Court meant to say “we recognize that the Pennsylvania Constitution gives full discretion to the legislature, and we’re doing something outside of the state Constitution here,” I’m (really) all for a SCOTUS smackdown.  It’s just hard to believe that the PA Supreme Court that that it was acting extra-constitutionally, rather than finding that the legislature’s balance, while perfectly constitutional as applied to most circumstances, was unconstitutional in these exceptional ones.


From: Derek Muller <derek.muller at gmail.com>
Sent: Wednesday, October 28, 2020 3:04 PM
To: Levitt, Justin <justin.levitt at lls.edu>
Cc: Marty Lederman <Martin.Lederman at law.georgetown.edu>; Rick Hasen <rhasen at law.uci.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Well, now we know there are at least four Justices (w/Barrett not yet opining)

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<mailto: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<mailto: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<mailto:rhasen at law.uci.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto: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."
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