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

Tue Sep 22 15:20:44 PDT 2020

I think the question’s a little different than the one Mark presents.  In my mind, it’s not whether the state court was “refusing” to follow the statute.  It’s whether the statute was – in this instance, as applied – lawful given the constraints of the state constitution.  And that’s why I think even if this isn’t turtles all the way down, the turtles go a lot farther down than it may appear.

Consider a state constitution that sets the order of offices on the ballot: President(ial electors), then U.S. Senate, then U.S. House, then state offices, then local ones.  Now consider a legislature in that state that wants to promote local democracy, nudging voters to think harder about (and not skip) local races, by putting local races at the top of the ballot<https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB25>, and President last.  Let’s say that the law is not in any reasonable way ambiguous.  I take it that the state courts would likely invalidate that law, however well-intentioned, as inconsistent with the state constitution.  And I take it that we wouldn’t say, in that context, that the state court was “refusing” to follow the statute.

In that circumstance, I don’t think Article II requires the state to follow the legislature’s command, and to list the President last on the ballot, contrary to the state Constitution.  Mark might (I honestly don’t know, and I don’t mean to ascribe a position to him that he doesn’t take).  My point is simply that when the state courts are acting on the grounds that a piece of state legislation is incompatible with the state constitution, you can’t avoid the hard questions – and the ones that really open a Pandora’s box -- by simply asserting that the legislation was clear.

I think my hypothetical captures what the Pennsylvania Supreme Court was doing.  The court was deciding that in this instance, the state legislation was incompatible with the state constitution.  Whether the decision was right or wrong as a matter of state law, if you decide that the state supreme court is not empowered to make that decision with respect to the mechanics of a Presidential race, that creates an awful lot of uncertainty about who’s empowered to decide what matters of state law.  And it doesn’t take much tinkering with my hypothetical to see the practical chaos, in which the legislature creates some conditions that override the state constitution for Presidential races (and other federal races? Is the Court also going to resolve an Article I, s 4 case 43 days before the election?), but not for state contests on the same ballot.

Justin

From: Mark Scarberry <mark.scarberry at pepperdine.edu>
Sent: Tuesday, September 22, 2020 11:45 AM
To: Rick Hasen <rhasen at law.uci.edu>
Cc: Levitt, Justin <justin.levitt at lls.edu>; Pildes, Rick <rick.pildes at nyu.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] The Likely Issue in the Trump Campaign's Supreme Court Petition out of PA

In response to Justin: in many cases there is a fair breadth of reasonable interpretation of statutes. Only in rare cases would we think that a state court was not giving a statute a plausible reading, if the state court claimed to be interpreting the statute. In this case the Pennsylvania Supreme Court admitted that it was not interpreting the statute:

"Unlike other provisions of Act 77 currently before this Court, we are not asked to
interpret the statutory language establishing the received-by deadline for mail-in ballots.
Indeed, there is no ambiguity regarding the deadline set by the General Assembly: ...

http://www.pacourts.us/assets/opinions/Supreme/out/J-96-2020mo%20-%20104548450113066639.pdf?cb=1, p. 33.

A grant by the U.S. Supreme Court of a stay would not, I think, open the floodgates. The constitutional question is not whether the state court got the interpretation wrong, within the breadth of plausible interpretations, but whether the state court was refusing to follow the statute, which the concurring justices in Bush v. Gore thought the Florida S. Ct. had done.

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 Tue, Sep 22, 2020 at 11:21 AM Rick Hasen <rhasen at law.uci.edu<mailto: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.”
[Share]<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<mailto:justin.levitt at lls.edu>>
Date: Tuesday, September 22, 2020 at 10:23 AM
To: "Pildes, Rick" <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>>, 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: 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<mailto: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<mailto:rhasen at law.uci.edu>>; Election Law Listserv <law-election at uci.edu<mailto: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

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200922/f49f5d8d/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200922/f49f5d8d/attachment.png>