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

[Rick Hasen]

Marty wrote exactly what I was thinking. If THAT’s going to be the test, the Supreme Court would have a hard time looking in the mirror (just think about its interpretation of the 11th Amendment, as Eric Segall often points out)

From: Marty Lederman <Martin.Lederman at law.georgetown.edu>
Date: Wednesday, October 28, 2020 at 4:21 PM
To: Mark Scarberry <mark.scarberry at pepperdine.edu>
Cc: 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)

Hasn't the U.S. Supreme Court interpreted the even vaguer words of the First and Fourteenth Amendments to establish dozens and dozens of doctrines reflecting what that Court thinks are "appropriate" ways of constraining legislatures--federal and state--in order to advance the ends of the those amendments, including a very rich body of doctrines, many of them intensely fact-dependent, relating to elections, in particular?

Do those many Court-created constitutional doctrines "refuse to recognize" the authority of state legislatures and Congress to enact election codes?  Do they ignore the fact that all those legislators took oaths to uphold their state and federal constitutions?

On Wed, Oct 28, 2020 at 7:11 PM Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>> wrote:
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

[Pepperdine wordmark]
Caruso School of Law

Mark S. Scarberry
Professor of Law
mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>
Personal: mark.scarberry at gmail.com<mailto:mark.scarberry at gmail.com>




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