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

Wed Oct 28 21:04:55 PDT 2020

I don’t believe there were any cases before PA this election season that made it to SCOTUS that involved a state court relying on a state constitution to expand a statutory voting rule.

Rick Hasen
Sent from my iPhone. Please excuse typos.
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From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Tierney Sneed <tmsneed27 at gmail.com>
Sent: Wednesday, October 28, 2020 8:01:07 PM
To: Kirsten Nussbaumer <kirsten_n at me.com>
Cc: law-election at uci.edu <law-election at uci.edu>
Subject: Re: [EL] Well, now we know there are at least four Justices (w/Barrett not yet opining)

This is a separate question, but I am just kind of curious why we're only finding out this week that 3-4 justices hold this view of the Election Clause. I mean I understand that the PA dispute is what queued it up head on. But was there anything stopping Gorsuch, Alito or Thomas from flagging this in a concurrence in the half-dozen other orders over the summer where SCOTUS stayed lower court decisions but didn't tell us why? Props to the smart legal minds who were are already arguing that deference to state legislatures was what was driving this trend. But I am sure plenty of people assumed it was just Purcell, since that was the thrust of the WI primary order, no?

On Wed, Oct 28, 2020 at 8:55 PM Kirsten Nussbaumer <kirsten_n at me.com<mailto:kirsten_n at me.com>> wrote:
Okay, after reading Mark’s 8:26 post, I have to take back the part of my comment that called his theory “minimalist” on the question of whether a state constitution constrains the state legislature under the Elections Clauses…

On Oct 28, 2020, at 8:26 PM, Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>> wrote:

In response to Marty and Rick :

I think there is a level of authority issue here and a primary versus secondary issue.

Yes, the U.S. Constitution directly gives authority to Congress to make laws, but also, as appropriately interpreted, the U.S. Constitution directly gives authority to the Court to review acts of Congress (and of state legislatures) for constitutionality in cases that are justiciable. It is obvious then that exercise of that power by the Court doesn't violate the U.S. Constitution. The power comes from the same level. Marty's and Rick's criticisms are off-target.

Some of us have argued -- as the Court has stated at least in dictum -- that the U.S. Constitution grants authority directly to the state legislatures to determine the manner by which presidential electors are appointed by the states (subject, of course, to other provisions of the Constitution, such as the 15th and 19th Amendments). I think that is the case, and let me explain why that is not inconsistent with the view (which I don't hold) that legislators are bound by their own state constitutions in exercising the power granted directly to them by the U.S. Constitution.

The U.S. Constitution does not directly (or at all) grant  authority to state courts to determine whether an exercise of that power by a state legislature is consistent with the state constitution. (And will anyone argue that the U.S. Constitution requires a state to provide that sort of judicial review?) To the extent that a state constitution does provide for judicial review, the state court's judicial review operates secondarily, after the state legislature has determined for itself what the state constitution requires.

So state legislators can consider themselves to be bound by their oaths to follow their state constitutions, but not, in exercising a power granted directly to them by the U.S. Constitution, to be bound to follow their state courts' interpretation of their states' constitutions. Their authority comes from a higher level, the U.S. Constitution.

We may question whether state legislators are honestly following their best interpretation of the state constitution. They have taken oaths to do so, and they are accountable to the people, whose right to vote (to throw them out of office)  is protected to a substantial degree by the U.S. Constitution.

And that's even if state legislatures are bound to follow the state constitution and do not consider themselves free to exercise their authority beyond what their state constitution requires, as they best understand it.

But of course some of us think they aren't bound, even with respect to their own understanding of their state constitutions, because the direct grant of authority to them to determine the manner by which electors are appointed is a power granted to them outside of their state constitutions and thus controlled by their own views of what ought to be done, even if that is contrary to a state constitutional provision.

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 4:52 PM Eric J Segall <esegall at gsu.edu<mailto:esegall at gsu.edu>> wrote:
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<mailto: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<mailto:Martin.Lederman at law.georgetown.edu>>
Date: Wednesday, October 28, 2020 at 4:21 PM
To: Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>>
Cc: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>, Election Law Listserv <law-election at uci.edu<mailto: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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