Tuesday, October 27, 2020

Justice Amy's First Big Case Coming Up?

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:

Section 4

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:

Oh my, another good one. Conservatives having fun:


  1. The PA Governor(D) and Supreme Court(D) may be the first to lament the passing of Notorious RBG. Weren't they "adjusting" the laws to help Slo Mo Joe?

  2. SWC weighs in:

    1. I think what he's missing, and which underlies the views of the four conservative justices, is this:

      A federal system in which each state helps elect the federal officials who will represent the country's interests, and especially the chief executive, ipso facto has an interest in fair elections throughout the entire system. Thus if the federal constitution states that state legislatures set the terms for elections, the federal system as a whole has an interest in maintaining that standard uniformly. That must be the reason that the federal Constitution allows Congress to override state legislatures. Roberts is wrong to ignore that provision of I/4 and emphasize only the role of the states. The provision re Congress is a recognition that the federal system as a whole has a stake in each state's election laws.

    2. The provision re Congress specifying the time manner and place of elections is a recognition--that Roberts and SWC ignore AFIK--that the federal government has much at stake here. I would argue that if Congress has not acted on this, then the SCOTUS can take action to defend the state legislature from election tampering by the state judiciary. To defend the federal interest in fair and orderly elections. The key here is that in PA the Dem governor tried to get the GOP house/senate to change the law, and they REFUSED TO DO SO. That's when the Dem judiciary decided to change the law. I argue that the federal system as a whole has an interest in putting a stop to this type of tampering which could go on every single election cycle.

    3. Agree completely.

    4. "state legislatures set the terms for elections"

      And mustn't those terms generally comport with the law as dictated by the Constitution? While I realize there is some degree of variability in that from state to state within those bounds, does the law not demand a certain uniformity?

    5. I would argue that the Constitution, while allowing for variations in local circumstances, inserted the reference to Congress with exactly your observation in mind.

  3. This will be an easy decision for Justice Amy. Like she has repeatedly stated, Legislatures determine policy, and judges enforce the legislative policies. There is no ambiguity.