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

[Eric J Segall]

Thanks Rick for the shout out. I just want to mildly suggest that you and Marty and many other people do amazing doctrinal work on these issues, and I’m not criticizing that at all. And, we should all recognize the huge personal stakes for the Justices in these kind of potentially country changing cases, and after Bush v Gore, virtually anything is possible. I suspect if these issues reach the Court in a way that effects or could effect the election, the popular vote discrepancy might be very important. To take one example, if Biden were to win by 8,000,000 to 10,000,000 votes, I don’t think 5 Justices would do a Bush v Gore b/c they might be concerned about serious violence. There are numerous other non-law like factors that might be in play not the least of which are three Trump judges handing him the election, etc. We are not trained to think this way but for better or worse, Posner and Tushnet are my inspirations.

Also most political scientists think those are the factors not legal formulations that would matter, and of course that’s true for Bush v Gore (and Dred Scott).

If any of us were on the Court, we’d act the same way.

And the heavy doctrinal work is important as well.

Best,

Eric

Sent from my iPhone

On 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<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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