Thursday, November 26, 2020

A Reminder: Kavanaugh's Election Law Warning

Andrea Widburg, in her article that I linked earlier this morning, provides a variety of links to articles that bring us up to date on Trump's challenge to The Steal. One of those links is to an article that Widburg wrote back near the beginning of October. That was, you'll recall, during the post-Ginsburg pre-Justice Amy interregnum at the Scotus.

In The Supreme Court and appellate courts are drawing back from voting madness Widburg summarizes the SCOTUS' handling of an Obama judge's attempted election meddling in Texas. What transpired in that case reinforces the case I made for optimism this morning, regarding Justice Kavanaugh's jurisprudential views as they will impact the election cases that will surely arrive at the SCOTUS. In The New SCOTUS, which dealt with the Free Exercise case in New York, I wrote:

Why is this [Kavanaugh's rejection of Roberts' dissenting opinion] so important and why do I think Kavanaugh's conservative views extend beyond Free Exercise? Because Kavanaugh also dissented from Roberts' laissez faire approach to the PA Supreme Court's rewriting of election law--another 4-4 pre-Justice Amy opinion. Not only did Kavanaugh dissent at that time, but in another opinion very shortly afterwards, regarding the situation in Wisconsin, Kavanaugh went out of his way to bring up the PA case and to emphasize, once again, his disagreement with Roberts. So, for all his dialed down rhetoric, this conservative solidarity may bode well for the Trump challenges. If I had to guess, I'd say that the SCOTUS will ultimately hear these cases and Trump will get a sympathetic hearing from the conservative majority.

Now, read what Widburg wrote a month and a half ago. Note that the SCOTUS was, in fact, in broad agreement, despite Roberts' later fall from grace over PA election law:

The district court judge, an Obama appointee, eagerly seized the opportunity to change the existing law to do away with the witness requirement.  She didn't include the Legislature in this decision.  She did it by judicial fiat.

At the Supreme Court, something interesting happened.  All eight justices — not just the four strict constructionists — held against the district court judge.  They reversed the district court's ruling, although they held that absentee votes that had already been mailed could be counted.  (Justices Alito, Thomas, and Gorsuch would have disallowed even that small exception.)

Justice Kavanaugh wrote a short concurring opinion that warns leftist federal judges to stop rewriting election laws.  It's the job of the state's Legislature, which is "politically accountable," not the job of a federal court, to decide what to do during pandemics:

It follows that a State legislature's decision either to keep or to make changes to election rules to address COVID–19 ordinarily "should not be subject to second-guessing by an 'unelected federal judiciary,' which lacks the background, competence, and expertise to assess public health and is not accountable to the people."

Ultimately, district courts lack the appropriate accountability to second-guess the Legislature.  Therefore, as elections draw near, district courts should not interfere with state election laws:

Second, for many years, this Court has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election.

Let me reiterate that Kavanaugh put down a baseline: decisions about how votes should be cast belong to legislatures, not judges.  Judges across America would be well advised to remember that.

Now, it's necessary to point out that the Texas case is different from the Pennsylvania case. In Texas the meddling judge was a federal judge. In Pennsylvania the meddling judges were on the Pennsylvania state Supreme Court--and the distinction between federal v. state judicial meddling is precisely the distinction that Roberts hung his hat on. Nevertheless, Kavanaugh dissented sharply from Roberts' view (in a 4-4 decision), so this all seems fairly promising when we contemplate a SCOTUS reprise of the Pennsylvania case. Kavanaugh appears to be firm in his views, and there's no reason to suppose Alito, Gorsuch, and Thomas have changed their minds during the last month. We don't know Justice Amy's views, but there's good reason to suppose that she will agree with the other conservative justices.


  1. Mark, no it's not Justice 'Amy's' views - it's Justice 'Barrett's views.

    Just like it's not Justice 'Sonia's views, nor Justice 'Neil's' views.

    Don't start a trend. Just saying.

    1. I've been pretty plugged in to Justice Amy for over a month now. But don't worry, there'll be no Justice Sonia. I liked the RedState article today:

      Low-Wattage Justice Sotomayor's Attack on the Bill of Rights Makes Her the Left's New Supreme Court Bobblehead

      Maybe Low Watt Sonia, or just Bobblehead.

    2. No, It's Justice "Coney Barrett", not Justice Barrett, you sexist.

      Besides, "Justice Amy" has a nice ring to it. I seriously doubt she is offended by being referred to as "Justice Amy".

    3. I prefer to a refer to her as the "Glorious ACB." It sets the hair of supporters of the Notorious RGB afire. Andy S.

    4. I vote for "Low Watt Sonja" :)