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

[Mark Scarberry]

Marty,

But haven't some state courts interpreted very vague state constitutional
requirements ("free and fair elections") to embody the courts' own views of
what is appropriate, despite state legislative provisions to the contrary?

If Art. II includes a direct grant of authority by the Constitution to the
state legislatures -- a proposition that I know is subject to good faith
dispute -- isn't a serious federal question created when a state court
refuses to recognize that authority?

Even if the state constitution can bind the legislature, I presume that
state legislators also take an oath to uphold the state constitution. They
would argue that they followed their best understanding of the state
constitutional requirement for "free and fair elections" in enacting the
rules that the state courts have overriden. If the authority is given
directly to the state legislators as a matter of federal law, and a very
vague provision of the state constitution is involved, why shouldn't
federal courts defer to the legislators' understanding of what the state
constitution requires? And that's an approach that doesn't, in these cases,
depend on whether state constitutions can limit the legislatures' authority.

Mark

[image: Pepperdine wordmark]*Caruso School of Law*

*Mark S. Scarberry*

*Professor of Lawmark.scarberry at pepperdine.edu
<mark.scarberry at pepperdine.edu>*
Personal: mark.scarberry at gmail.com




On Wed, Oct 28, 2020 at 2:29 PM Marty Lederman <
Martin.Lederman at law.georgetown.edu> wrote:

> 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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