Last week, in a 4-4 decision written by CJ Roberts, the SCOTUS let the Pennsylvania Supreme Court's outrageous election meddling stand. That was followed by a Roberts smackdown of a federal court meddling in Wisconsin's election. The difference? Here, per Bench Memos, Roberts explains himself:
While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes. Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin.
It sounds like a salutary exercise in federalism, but there is a fly in that ointment--the US Constitution.
Justices Gorsuch and Kavanaugh were having none of Roberts' rehashing of the Pennsylvania case, and sharply disagreed--once again. Ed Whelan explains:
For Gorsuch and Kavanaugh, by contrast, the [US] Constitution limits intrusions by both federal and state judges on state election statutes. Gorsuch writes: “The [US] Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules. Art. I, §4, cl. 1.” Kavanaugh develops this point more fully in a long footnote. An excerpt:
"A federal court’s alteration of state election laws such as Wisconsin’s differs in some respects from a state court’s (or state agency’s) alteration of state election laws. That said, under the U. S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections. Article II expressly provides that the rules for Presidential elections are established by the States “in such Manner as the Legislature thereof may direct.” §1, cl. 2 (emphasis added). The text of Article II means that “the clearly expressed intent of the legislature must prevail” and that a state court may not depart from the state election code enacted by the legislature. Bush v. Gore, 531 U. S. 98, 120 (2000) (Rehnquist, C. J., concurring); see Bush v. Palm Beach County Canvassing Bd., 531 U. S. 70, 76–78 (2000) (per curiam); McPherson v. Blacker, 146 U. S. 1, 25 (1892)."
Any way you slice it, it seems beyond dispute that the SCOTUS does have an interest in how state courts handle federal elections. The federal interest in such elections is actually spelled out quite clearly in the full text of Art. I, §4, because Congress is expressly given a (potential) role:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
Note that it doesn't expressly mention elections for the presidency. Still, the federal interest in state elections for federal office seems clear to me.
Will it seem clear to Justice Amy? The Pennsylvania GOP has filed for a rehearing before the SCOTUS, so now Justice Amy gets a say. Will she side with the four conservative justices against Roberts? Is it a "federal intrusion" for the SCOTUS to demand that the state legislature must prevail as to "The Times, Places and Manner of holding Elections" for federal office, as the US Constitution states? We should be finding that out very soon.
ADDENDUM: I couldn't resist adding this:
The “rules” are the Constitution of the United States, which was not changed. Maybe you should stick to telling us how it’s racist for a working mom of 5 to adopt two kids from disaster stricken Haiti and raise them to love all races and America https://t.co/BraDLTcsQG— Undercover Huber (@JohnWHuber) October 27, 2020
Oh my, another good one. Conservatives having fun:
News: Judge moves into vacant office.— Hans Mahncke (@HansMahncke) October 27, 2020
Not news: The Bidens were in business with the "spy chief of China". https://t.co/aUHMyD10B7