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

[Nicholas Stephanopoulos]

I wonder if anyone thinks as a normative, non-textual matter that it's
desirable to give state legislatures near-total authority over
congressional and presidential elections? Of the set of possible regulators
-- state legislatures, governors, state agencies, state courts, federal
courts, Congress, the people through direct democracy -- would anyone
defend state legislatures as the optimal choice?

On Wed, Oct 28, 2020 at 7:25 PM Rick Hasen <rhasen at law.uci.edu> wrote:

> 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> 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
>
>
>
> [image: Pepperdine wordmark]
>
> *Caruso School of Law*
>
>
> * Mark S. Scarberry*
>
>
> *Professor of Law **mark.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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>
>
>
> --
>
> Marty Lederman
>
> Georgetown University Law Center
>
> 600 New Jersey Avenue, NW
>
> Washington, DC 20001
>
> 202-662-9937
>
>
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-- 
Nicholas O. Stephanopoulos
Professor of Law
Harvard Law School
nstephanopoulos at law.harvard.edu
(617) 998-1753
https://hls.harvard.edu/faculty/directory/11787/Stephanopoulos
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