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

[Marty Lederman]

Mark:  Are you basing this distinction on anything *other than *the passage
from Sen. Morton's report quoted in *McPherson*?

On Tue, Sep 22, 2020 at 2:51 PM Mark Scarberry <
mark.scarberry at pepperdine.edu> wrote:

> 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
>>
>>
>>
>>

-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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