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

Thu Oct 29 03:10:07 PDT 2020

I would like to see someone engage with Nick Stephanopoulos's question.
While I fully understand the importance of the textual and structural
arguments people have been rehearsing on this question, I'd like to hear a
normative defense of why the state legislature, unbound by the state
constitution as enforced through whatever process the state constitution
provides, should have the authority here.  Why this actor of all the actors?

On Thu, Oct 29, 2020, 12:20 AM Mark Scarberry <mark.scarberry at pepperdine.edu>
wrote:

> Just to be clear, I’m talking about the Article II, sec. 1, cl. 2
> Presidential Electors Clause.
>
> Congress of course has power under the Article I Elections Clause to
> override state legislatures’ provisions for the manner of holding
> congressional elections. And the court has held, correctly or not, that the
> term “legislature”  in the Elections Clause includes the entire law-making
> process of a state.
>
> I have argued (repeatedly, maybe ad nauseam) that those decisions do not
> control interpretation of the Presidential Electors Clause.
>
> Mark
>
> Mark S. Scarberry
> Professor of Law
> Pepperdine University
> Rick J. Caruso School of Law
> ------------------------------
> *From:* Kirsten Nussbaumer <kirsten_n at me.com>
> *Sent:* Wednesday, October 28, 2020 5:54 PM
> *To:* Mark Scarberry
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] Well, now we know there are at least four Justices
> (w/Barrett not yet opining)
>
> 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>
> 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
>
> [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 4:52 PM Eric J Segall <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> 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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