[EL] The Likely Issue in the Trump Campaign's Supreme Court Petition out of PA

[Mark Scarberry]

Under Supreme Court precedent, the Elections Clause argument (I, 4, i) is
much weaker than the argument with respect to the manner of appointing
electors (II, 1, ii).

Mark

[image: Pepperdine wordmark]*Caruso School of Law*

*Mark S. Scarberry*

*Professor of Lawmark.scarberry at pepperdine.edu
<mark.scarberry at pepperdine.edu>*
Personal: mark.scarberry at gmail.com




On Tue, Sep 22, 2020 at 11:42 AM Marty Lederman <
Martin.Lederman at law.georgetown.edu> wrote:

> Does anyone have a link to the similar application by the Pennsylvania
> RNC?  And to the briefs on the merits in the Pennsylvania Supreme Court?
>
> On Sep 22, 2020, at 2:17 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
> 
> Pennsylvania Republican Legislators File Pa. Supreme Court Document Teeing
> Up SCOTUS Review of Extension of PA Voting Rules [Link to Brief]
> <https://electionlawblog.org/?p=115580>
>
> Posted on September 22, 2020 11:16 am
> <https://electionlawblog.org/?p=115580> by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> The brief
> <https://drive.google.com/file/d/1dqqasjda3x1OH-BtOnEXpXN-MVxgLghp/view> (courtesy
> of John Kruzel) makes two arguments:
>
> *First, the decision violates federal law, which establishes “the Tuesday
> next after the 1st Monday in November” as a single Federal Election Day,
> which falls on November 3rd this year. 2 U.S.C. § 7; see also 2 U.S.C. § 1;
> 3 U.S.C. § 1. These provisions mandate holding all elections for Congress
> and the Presidency on a single day throughout the Union. However, Footnote
> 26 and page 63 of this Court’s Slip Opinion extend Election Day past
> November 3, 2020. It does this by forcing election officials to accept
> ballots received after election day even if these ballots lack a legible
> postmark. This permits ballots to be both voted and counted after election
> day, extending the General Election past November 3, 2020. This clearly
> violates 2 U.S.C. § 7….*
>
> *Second, the decision violates the Elections Clause, Article I, § 4 cl. 1
> of the United States Constitution, by seizing control of setting the times,
> places, and manner of federal elections from the state legislature.
> Although this Court has the final say on the substantive law of
> Pennsylvania, the Elections Clause of the United States Constitution vests
> the authority to regulate the times, places, and manner, of federal
> elections to Pennsylvania’s General Assembly, subject only to alteration by
> Congress, not this Court. U.S. Const. Art. I, § 4. The General Assembly has
> not delegated authority to alter these regulations to the Pennsylvania
> Judiciary, yet this Court’s decision fundamentally changes the policy
> decisions inherent in the General Assembly’s duly enacted election laws.
> This Court has substituted its will for the will of the General Assembly
> and this substitution usurps the authority vested in the General Assembly
> by the Elections Clause. U.S. Const. Art. I, § 4.*
>
> Kruzel
> <https://thehill.com/homenews/administration/517587-gop-will-ask-supreme-court-to-limit-mail-voting-in-pennsylvania-in?rnd=1600797517> in
> The Hill:
>
> *Republicans plan to ask the Supreme Court to review a major Pennsylvania
> state court ruling that extended the due date for mail ballots in the key
> battleground state, teeing up the first test for the Supreme Court since
> the death of its liberal leader Justice Ruth Bader Ginsburg
> <https://thehill.com/people/ruth-ginsburg>. *
>
> *The GOP legal strategy, which was revealed in a pair of court
> <https://drive.google.com/file/d/1ybdZhrDUMjbS5nC_AB_TCvZrh7FWQ8t7/view> documents
> <https://drive.google.com/file/d/1dqqasjda3x1OH-BtOnEXpXN-MVxgLghp/view> filed
> overnight and Tuesday morning, has not been previously reported.*
>
> *The development comes after the Pennsylvania Supreme Court dealt
> Republicans a major blow last week in a bitterly partisan election lawsuit
> that could help determine whether President Trump
> <https://thehill.com/people/donald-trump> or Democratic nominee Joe Biden
> <https://thehill.com/people/joe-biden> takes the Keystone State, which
> Trump won in 2016 by just over 44,000 votes.*
>
> *The expected petition to the Supreme Court comes just days after
> Ginsburg’s death from cancer last Friday injected further uncertainty into
> a chaotic 2020 presidential contest that is on track to be the most
> intensely litigated election cycle in U.S. history.*
>
> *“This could be a big first test for the post-RBG Supreme Court and where
> it will stand on election issues,” said Rick Hasen, an election law expert
> and law professor at the University of California Irvine. “There’s little
> reason to believe that the conservative-liberal divide will disappear with
> Justice Ginsburg’s death.”*
>
>
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115580&title=Pennsylvania%20Republican%20Legislators%20File%20Pa.%20Supreme%20Court%20Document%20Teeing%20Up%20SCOTUS%20Review%20of%20Extension%20of%20PA%20Voting%20Rules%20%5BLink%20to%20Brief%5D>
> <image001.png>
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115580&title=Pennsylvania%20Republican%20Legislators%20File%20Pa.%20Supreme%20Court%20Document%20Teeing%20Up%20SCOTUS%20Review%20of%20Extension%20of%20PA%20Voting%20Rules%20%5BLink%20to%20Brief%5D>
>
> Posted in Uncategorized <https://electionlawblog.org/?cat=1>
>
>
>
>
>
> *From: *"Levitt, Justin" <justin.levitt at lls.edu>
> *Date: *Tuesday, September 22, 2020 at 10:23 AM
> *To: *"Pildes, Rick" <rick.pildes at nyu.edu>, Rick Hasen <rhasen at law.uci.edu>,
> Election Law Listserv <law-election at uci.edu>
> *Subject: *RE: The Likely Issue in the Trump Campaign's Supreme Court
> Petition out of PA
>
>
>
> It’s always possible that the Trump campaign will raise the argument Rick
> P. suggests.  But given the far narrower RNC v. DNC stay decision
> <https://clearinghouse.net/chDocs/public/VR-WI-0019-0021.pdf> in April,
> I’m not sure why the Court would indulge that argument at the moment.
>
>
>
> If the Court were to seriously engage the argument that the “legislature”
> in this context means “only the legislature, exclusively,” and not “the
> state lawmaking power, including a state constitutional role for courts to
> interpret state law,” there are a host of additional consequences that
> would seriously upend the election.  The Court would have to determine when
> judicial action involves a construction of state law rather than an
> alteration of it, which depends in turn on your theory of what it is a
> legislature is doing when it legislates in a way that’s inconsistent with
> underlying state constitutional commands.  (Or when legislation is
> generally consistent with underlying state constitutional commands, but
> inconsistent in certain external contexts.)  And the consequence of a Court
> decision in this context isn’t limited to Pennsylvania.  I’ve catalogued 250
> cases involving COVID-19 and the election process
> <https://electionlawblog.org/?p=111962> this year; while they don’t *all*
> raise this issue, most of them involving court-ordered relief do.  Indeed,
> the consequence of a Court decision in this context isn’t limited to the
> courts: there are additional questions about whether ballot initiatives
> could ever modify the rules by which states choose electors, or whether
> legislation vetoed by a governor now suddenly represents the law of the
> land for voting on Presidential electors but not state candidates.  Unless
> the Court somehow magically declared that whatever principle were used to
> resolve the fight in Pennsylvania could not be used to file any other suit
> in any other state, deciding this one case would prompt hundreds more.
>
>
>
> I’ve (obviously) got views on the underlying substance.  (And I know that
> Mark S., for example, disagrees.)  But *whatever* your take on the
> underlying substance, my point is that it’s really hard to write a decision
> finding that the PA Supreme Court unconstitutionally interfered with the
> state legislature’s power without also either 1) answering a whole host of
> additional questions or 2) instantly destabilizing the election
> infrastructure nationwide.
>
>
>
> In the litigation over the Arizona redistricting commission, I offered a
> list of questions
> <https://redistricting.lls.edu/files/AZ%20leg%2020150123%20scholars.pdf#page=35>,
> like those above, that would have become quite prominent had the Arizona
> case come out the other way.  Some of them are avoidable or
> distinguishable; others are, at least as a matter of logic (and not power),
> not.  The Court doesn’t do its best work in a hurry, and there is no
> question that we’re in a hurry to get the rules clear right now.  And while
> a decision on this issue in Pennsylvania itself might be seen to restore a
> pre-existing status quo, the potential for radical destabilization would
> instantly upend a much more established status quo in almost every state in
> the country.
>
>
>
> Again, it’s entirely possible that the Trump campaign would tee up the
> issue – they’ve raised it in the Pennsylvania federal court litigation (and
> others this cycle) before.  Given the April precedent, though, even if the
> Court is interested in reviewing the Pennsylvania Supreme Court’s decision
> generally, I’m just not sure why this Court would want the issue Rick P.
> flagged, right now.
>
>
>
> Justin
>
>
>
>
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *Pildes, Rick
> *Sent:* Tuesday, September 22, 2020 8:28 AM
> *To:* Rick Hasen <rhasen at law.uci.edu>; Election Law Listserv <
> law-election at uci.edu>
> *Subject:* [EL] The Likely Issue in the Trump Campaign's Supreme Court
> Petition out of PA
>
>
>
> In a post a bit ago, Rick Hasen flagged the news that the Trump campaign
> will go to the Supreme Court to seek review of the PA Supreme Court’s
> decision to order the state to accept absentee ballots up to 5 days after
> Election Day.  I put up this point identifying the major issue – and it is
> a big one – I expect this petition to focus on:
>
> I expect the main constitutional issue the Trump campaign will raise in
> this petition to be the argument that the PA Supreme Court
> unconstitutionally interfered with the state legislature’s power in Art.
> II, Sec. 1, cl. 2 of the Constitution. That provision states the
> “legislature” in each state may direct the “manner” by which a state
> appoints its electors to the Electoral College. The petition will argue, I
> expect, that when the PA Supreme Court held that the state constitution
> required PA to accept absentees up to 5 days after Election Day, when the
> enacted state election law requires those absentees to be received by 8 pm
> on Election Day, the state court (and the state constitution, in essence)
> unconstitutionally interfered with “the legislature’s” power to direct the
> method of selecting electors.
>
> This is potentially a huge issue — perhaps, in fact, the single most
> important legal issue that could arise before the election. If the Supreme
> Court were to take the case and accept this argument, it would mean that
> there would be federal constitutional oversight over how state courts apply
> any state law (either through statutory interpretation or, as here, through
> interpretation of the state constitution) governing voting in the
> presidential election. This is an argument that three Justices of the
> Supreme Court endorsed in *Bush v. Gore *(CJ Rehnquist and Justices
> Scalia and Thomas).
>
> Not having seen the petition, I have no prediction about whether the Court
> would choose to hear the case — assuming I’m right about the central issue
> it will raise.
>
>
>
>
>
> Best,
>
> Rick
>
>
>
> Richard H. Pildes
>
> Sudler Family Professor of Constitutional Law
>
> NYU School of Law
>
> 40 Washington Square So.
>
> NYC, NY 10014
>
> 212 998-6377
>
>
>
>
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