Thursday, October 29, 2020

Supreme Court Decisions Last Night in the Pennsylvania and North Carolina Election Cases (with Vik Amar)

Jason Mazzone

I am writing this post with my colleague Vik Amar.

Last night the Supreme Court issued rulings in two election cases. We write in response to the statement issued by Justice Alito in the Pennsylvania case and the dissent by Justice Gorsuch in the North Carolina case

In the Pennsylvania case, the Court rejected a request by Pennsylvania Republicans to expedite (and consider before the election) their challenge to a ruling by the Pennsylvania Supreme Court requiring election officials to count mail-in ballots received within three days after Election Day. In a statement, Justice Alito (joined by Justices Thomas and Gorsuch) wrote that while “there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution” and it would be “highly desirable” for the Court to review that decision before the election, “I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election.” Nonetheless, Alito observed, the issue of timing “does not mean that the state court decision must escape our review” because the petition for certiorari remains pending, the state has agreed to segregate ballots received after 8 pm on Election Day, and, if needed, the Court can impose “a targeted remedy” after the election has occurred. 

We see at least two problems with Alito’s suggestion. 

One is that with the Court having twice now refused to intervene on the Pennsylvania Supreme Court ruling at issue, and just two other members of the Court having signed onto Alito’s statement that review can nonetheless occur down the road, Pennsylvania voters have a strong reliance interest in their ballots being counted so long as received within three days after Election Day as the state court prescribed. Second, it strikes us as very unlikely that a majority of the Court will be eager to overturn the Pennsylvania Supreme Court after the election has occurred—especially if the outcome in Pennsylvania were poised to determine the winner of the presidency. Under the so-called Purcell principle (from a case of the same name), federal courts “should ordinarily not alter the election rules on the eve of an election.” But sometimes federal intervention after an election occurs is even worse than intervening just before the election takes place. This appears to be such a case. 

The Court also last night rejected a request by the Trump campaign and North Carolina Republicans to enjoin a decision of the North Carolina Board of Elections extending a deadline for the receipt of mail-in ballots to nine days--from a state statutory period of three days--after the election. Justice Gorsuch wrote a dissent joined by Justice Alito in which he said the Court’s intervention was needed because the Board’s extension “offend[s] the Elections Clause’s textual commitment of responsibility for election lawmaking to state and federal legislators.” (He also wrote that the Board’s extension does “damage to faith in the written Constitution as law, to the power of the people to oversee their own government, and to the authority of legislatures,” and “threaten[s] voter confidence in the [election] results.”) 

But as one of us explains today in a Justia column (and as Justice Ginsburg’s majority opinion in Arizona Legislature v. Arizona Independent Redistricting Commission makes clear), it is simply a mistake to conclude that when Article I and II confer powers on the “Legislature” of each state, the Constitution is singling out a particular body of state government (the standing elected lawmaking body), and excluding other empowered organs of state government such as, here, a state board of elections. In light of that point, Justice Gorsuch’s dissent does not set forth any federal issue in the North Carolina case that would warrant the Court’s intervention. Indeed, most of Justice Gorsuch’s dissent focuses on the meaning of state law and whether the decision of the Board of Elections complies with it. On rare occasion, the Supreme Court has refused to defer to a state court's interpretation of state law but that is not the issue here. Instead, Gorsuch concludes from his own reading of state law that the Board exceeded its prescribed powers. Perhaps he is right. But the state courts are available to determine the meaning of state law and whether the Board is following it. And if the U.S. Supreme Court needs to know whether the Board's extension violates state law, far better for it to certify that question to the Supreme Court of North Carolina.  

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