[EL] latest Supreme Court ruling on Pennsylvania

[Marty Lederman]

Alito angrily accuses the Court of denying cert. three weeks ago, when *all
*the parties urged it to grant & decide with plenty of time to spare.  But
of course the four dissenters in the earlier case *could have* *granted *cert.
then.  Perhaps BK voted with the Chief not to grant cert., and therefore
couldn't join an opinion today upbraiding the failure to grant cert.
earlier.

On Wed, Oct 28, 2020 at 6:27 PM Fredric Woocher <fwoocher at strumwooch.com>
wrote:

> I am curious what others’ thinking is as to why Justice Kavanaugh, given
> his apparent views on the merits of this issue, did not join in Alito’s
> statement.  Presumably he would have agreed with the denial of the motion
> to expedite on the ground that it was now too late to do so before the
> election, so does his refusal to join in the statement suggest that he was
> not comfortable with its suggestion that there could still be a
> post-election remedy by invalidating the ballots received after the
> Election Day deadline?
>
>
>
> Fredric D. Woocher
>
> Strumwasser & Woocher LLP
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> *From:* Law-election [mailto:law-election-bounces at department-lists.uci.edu]
> *On Behalf Of *Marty Lederman
> *Sent:* Wednesday, October 28, 2020 3:01 PM
> *To:* Rick Hasen <rhasen at law.uci.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] latest Supreme Court ruling on Pennsylvania
>
>
>
> Technically, Kavanaugh's footnote full o' dicta was not about state *constitutional
> *constraints but about state-court interpretations of state election
> statutes--but yeah, I think it's a fair wager that he'd say the same about
> state constitutional constraints.
>
>
>
> On Wed, Oct 28, 2020 at 5:54 PM Rick Hasen <rhasen at law.uci.edu> wrote:
>
> Breaking and Analysis: Supreme Court (with Justice Barrett Not
> Participating) Refuses Again Emergency Relief in Pennsylvania Ballot
> Deadline Case; At Least 3 Justices See Constitutional Issues Ahead
> <https://electionlawblog.org/?p=117673>
>
> Posted on October 28, 2020 2:27 pm <https://electionlawblog.org/?p=117673>
>  by *Rick Hasen* <https://electionlawblog.org/?author=3>
>
> The Supreme Court
> <https://www.supremecourt.gov/opinions/20pdf/20-542_i3dj.pdf> (with
> Justice Barrett not participating) has refused to expedite consideration of
> the cert. petition in the Pennsylvania voting case. Justices Alito,
> Gorsuch, and Thomas issued a separate statement saying that time was too
> late to review things now, but strongly stating a belief that counting the
> later ballots would be unconstitutional and that there could well be review
> after the election of the consideration of these ballots.
>
> The result is not surprising, nor is the lineup. Indeed I predicted that
> Chief Justice Roberts and Justice Kavanaugh would not go along with an
> attempt to relitigate this issue given the very strong reliance arguments
> <https://electionlawblog.org/?p=117382> (coming from the Court’s earlier
> refusal to grant a stay) and the likely lack of standing
> <https://electionlawblog.org/?p=117413>of the PA GOP which brought this
> latest request (without the GOP legislature).
>
> The big headline out of this decision is the very strong version of the
> “independent state legislature” doctrine that appears in the separate Alito
> statement: “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.”
>
> To translate this a bit: there are now at least four Justices (if you
> count Justice Kavanaugh’s views on the merits of this expressed in this
> week’s Wisconsin case) who believe that when a state Supreme Court applies
> a state constitution’s protection for voting rights and does so in a way
> that alters a statute done by the legislature, that act is presumptively
> illegitimate. That is going to have some very bad ramifications for voting
> rights going forward and also raises questions about whether states will be
> able to pass redistricting and other reforms by voter initiative going
> forward. (Reaching initiatives would require overturning the 2015
> *Arizona *case, but that seems to be well within the realm of future
> possibilities.)
>
> But what does this mean for a future challenge in the Pennsylvania case
> and other potential 2020-election related litigation? First, I continue to
> believe, as I’ve been saying, that given the reliance interests whereby PA
> voters knew from a few weeks ago that the Supreme Court was not changing
> the deadline, it’s too late to give a different remedy now. PA voters
> simply cannot return their ballots in time under the old deadlines and even TODAY
> the PA website
> <https://www.votespa.com/Voting-in-PA/Pages/Mail-and-Absentee-Ballot.aspx#return>is
> telling voters to mail their ballots by election day.
>
> Without Roberts and Kavanaugh going along, even if Justice Barrett
> participated in future cases there would not be 5 Justices to throw out
> those ballots. It is still a theoretical possibility however, especially
> with ballots now being segregated <https://electionlawblog.org/?p=117640> between
> those arriving by the original statutory deadline and later ballots.
> Hopefully the election will not be close enough in either PA or the
> electoral college and the issue becomes moot in this election.
>
> But if the issue of the power of state legislatures against state courts
> comes up again in the 2020 election cycle, and if Justice Barrett
> participates, then there could well be a different result. As I explained
> yesterday in the Washington Post:
> <https://www.washingtonpost.com/outlook/2020/10/27/brett-kavanaugh-election-opinion/>
>
> *This theory would matter if, say, Pennsylvania or North Carolina were
> having a dispute about a recount in which Biden was behind and the state
> was running out of time to resolve disputes over the ballots. Both states
> have Democratic-majority state supreme courts, which could order rules for
> resolving these disputes consistent with their state constitutions but
> against the wishes of the states’ Republican-dominated legislatures. The
> conservatives on the court could embrace Kavanaugh’s version of
> Rehnquist’s **Bush v. Gore **theory and say that the state court’s
> changes to allow a full vote count were impermissible, stopping the count.*
>
> *And although the Supreme Court deadlocked 4-4 on a similar issue last
> week out of Pennsylvania, with new Justice Amy Coney Barrett seated the
> court could now be 5-4 on this issue, even if Chief Justice John G. Roberts
> Jr. does not buy into the theory of broad legislative power endorsed by
> Kavanaugh and Gorsuch.*
>
> And what to make of Justice Barrett sitting this one out? Did she simply
> decide there was not enough time to get up to speed on this (a perfectly
> reasonable conclusion given when she joined the Court!) or is she going to
> recuse in all 2020-election related litigation? There is no way to know yet.
>
> [*This post has been updated*.]
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117673&title=Breaking%20and%20Analysis%3A%20Supreme%20Court%20(with%20Justice%20Barrett%20Not%20Participating)%20Refuses%20Again%20Emergency%20Relief%20in%20Pennsylvania%20Ballot%20Deadline%20Case%3B%20At%20Least%203%20Justices%20See%20Constitutional%20Issues%20Ahead>
>
> Posted in Uncategorized <https://electionlawblog.org/?cat=1>
>
>
>
>
>
> --
>
> 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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> --
>
> Marty Lederman
>
> Georgetown University Law Center
>
> 600 New Jersey Avenue, NW
>
> Washington, DC 20001
>
> 202-662-9937
>
>
>
>
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-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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