June 28, 2023

"The decision merely says that 'state courts do not have free rein' and that they may not 'transgress the ordinary bounds of judicial review...'"

"'... such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.' The court offers no concrete understanding nor any example of what that means. It’s clear that a majority was cobbled together among conservative and liberal justices by agreeing to decide this part of the case in the narrowest terms.... [T]he state court interpreted general provisions in the state constitution — such as that requiring elections to be 'free and fair' — to in effect ban partisan gerrymandering. Whether this decision transgresses ordinary judicial review or exemplifies it remains a mystery. Had the court resolved that question, it would have provided much-needed guidance for 2024.... Judicial minimalism can be a virtue in many contexts.... But in the context of election law, it can be a vice. Elections benefit greatly from clear rules laid out well in advance of Election Day.... Clear rules specified in advance are all the more important in this era of pervasive distrust and suspicion concerning elections...."

The love for clear rules is easier to express after the Court has rejected the clear rule your opponents were pushing. 

ADDED: Pildes declines to mention Bush v. Gore, but that's the precedent here. From the majority opinion in yesterday's case, Moore v. Harper:
Members of this Court last discussed the outer bounds of state court review in the present context in Bush v. Gore, 531 U. S. 98 (2000) (per curiam). Our decision in that case turned on an application of the Equal Protection Clause of the Fourteenth Amendment. Id., at 104–105. In separate writings, several Justices addressed whether Florida’s Supreme Court, in construing provisions of Florida statutory law, exceeded the bounds of ordinary judicial review to an extent that its interpretation violated the Electors Clause. 
Chief Justice Rehnquist, joined in a concurring opinion by JUSTICE THOMAS and Justice Scalia, acknowledged the usual deference we afford state court interpretations of state law, but noted “areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law.” Id., at 114. He declined to give effect to interpretations of Florida election laws by the Florida Supreme Court that “impermissibly distorted them beyond what a fair reading required.” Id., at 115. Justice Souter, for his part, considered whether a state court interpretation “transcends the limits of reasonable statutory in- terpretation to the point of supplanting the statute enacted by the ‘legislature’ within the meaning of Article II.” Id., at 133 (Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting). 
We do not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause. The questions presented in this area are complex and context specific. We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.

The new opinion creates pressure on state courts to resist going too far as they follow their own political preferences under the guise of applying the law. Deciding based on politics is something they shouldn't do at all, but they are human and willful, and everyone knows it's impossible to eradicate the pull of these preferences. What we've learned is that there's a limit, and the Supreme Court won't tell us exactly what it is. The state courts can internalize restraint or they can lean toward activism and find out.

ALSO: Consider the unclarity in Pildes's expression of love for clear rules:

For illustrative purposes, let’s say in 2024 the Wisconsin state legislature passes a law establishing deadlines for requesting or returning absentee ballots, but a state court rules those deadlines unconstitutional because they contradict the state constitution’s guarantee of the right to vote. The losing party will now turn to the federal courts and argue that the state court has gone “too far” in its interpretation of the state constitution.

The clearest clear rule in that hypothetical is the legislature's specification of deadlines. The state court injects unclarity — and seems to display political will — by seizing upon the vague concept of "the right to vote" and using that to overcome the clear deadlines. The federal court, asking whether that goes "too far," would in fact defending us the people of Wisconsin from the activism of a politicized state court. 

27 comments:

Leslie Graves said...

Like FAFO.

Meade said...

Hahaha. She made us think that. 😊

Yancey Ward said...

It would have been interesting to see what SCOTUS would have done had the underlying case itself not been mooted- in other words, had the original NC high court ruling still been in effect, would Roberts, Kavanaugh, and Barrett have still decided the same way?

SCOTUS never should have involved itself in the Bush v. Gore case. I suspect that had they not done so, the Florida court would have eventually have simply given the state's electors to Gore, regardless of whether he managed to get ahead on any count- that is the direction the Florida court was headed towards, and the arguments were already being prepared to do so by claiming Gore would have won the state absent ballot errors. The Florida legislature would have then probably sent the other slate to D.C. and the House would have been forced to do its job and fully resolve the issue.

Lloyd W. Robertson said...

Are some of the conservatives on the Court getting ready to say state legislatures don't have unlimited authority to appoint a slate of Electors for a state?

MartyH said...

IIRC, didn’t the Supreme Court say in the Bush v Gore ruling that it was not to be used as precedent because it was such an outlier?

gilbar said...

to in effect ban partisan gerrymandering.

just to remind people
partisan gerrymandering, is when republicans do it
ensuring voices, is when democrats do it

mikee said...

Whenever Bush v. Gore is raised, I like to point out that after the NY Times extensive review of all ballots, long after the election, they were forced to conclude that the ONLY method of vote recounting leading to a Gore victory was the one proposed by AlGore. In other words, Gore tried to steal that election, after he did not win it.

And he might have gotten away with it were it not for incidents such as the Republicans refusing to allow vote recounts to go on without public oversight.

AlGore tried to steal that election. The Supreme Court of Florida tried to help him do so. When it is so obvious that even the NY Times has to admit it, what else could the US Supreme Court do other than stop the farce?

Humperdink said...

The PA legislature set the rules for elections and have done so for decades. When the Dems became the majority on the state supreme court that all changed. Funny how that works.

Sebastian said...

"Clear rules specified in advance"

Which the Court clearly provides: whatever serves Dem interests, goes. If you're a Dem state court, go ahead and meddle to Dem benefit; if you're a GOP state court, stay out of Dem legislative business.

iowan2 said...

Yancy mentioned it.
Bush v Gore was a mess when the Florida supreme court stepped in with no case in front of them.

What almost all forget, there is always a backup. IF the Florida vote could not get certified. The Florida House would have selected the electors.

Case closed.

No one has offered a justification for the Florida Supreme violating the Constitution.

Gusty Winds said...

Good luck restraining the liberal WI Supreme Court when Janet Protasiewicz is seated August 1st. She openly campaigned as a political beast. I'd imagine the new liberal majority will oust Anette Ziegler as Chief Justice.

I'm expecting coordinated, instant lawsuits to declare Act 10 "unconstitutional". The court will use it's power to redraw WI maps. WI is not gerrymandered. It's the layout of the population. Medium size liberal urban areas, and a lot of red small towns. The new court will do whatever it can to silence these areas along with Oconomowoc and the rest of Waukesha and Washington Counties. Ozaukee is now purple.

I'd imagine, prior to the 2024 Presidential Election, there will be challenges to Wisconsin's voter ID requirement and the Court will throw it out.

Mason G said...

"And he might have gotten away with it were it not for incidents such as the Republicans refusing to allow vote recounts to go on without public oversight."

How often do Republicans win close elections after counting votes with no oversight?

Gusty Winds said...

Blogger Humperdink said...
The PA legislature set the rules for elections and have done so for decades. When the Dems became the majority on the state supreme court that all changed. Funny how that works.

Same thing will happen here in Wisconsin starting August 1st.

rcocean said...

THe obvious solution is for the state constitution to forid the State courts from ruling on election laws or gerrymandering and reserving that to the state legistature. Of course, as shown by the Calf Supreme court OVERRULING the state constitution on Gay marriage, the clear meaning of the state constitution won't keep the leftists in black robes from using their power.

Ultimately, all this comes about because the Center-Right will NOT think and act. They either don't want to win or they're stupid. The Left meanwhile is constantly looking at EVERY avenue to win. If they can't win through the legislature, they'll use executive orders. if that isn't available its the deep state. If that can't be used it the Judicary.

Once you realize the Left has no principle except "Just win baby, just win". Then the path forward is clear. Come up with counter-strategies. But that takes a chess player, and the American Center-right is full of people who can't get out of bed to play checkers.

Michael K said...

Increasingly, in this country, lawyers=Democrats. Law schools have been taken over by the left and soon there will be no right leaning lawyers left.

Ann Althouse said...

"to in effect ban partisan gerrymandering"

If partisan gerrymandering were banned the cases would be about whether what happened was partisan gerrymandering.

The only way to avoid litigation is to dictate that the courts are excluded from remedying partisan gerrymandering.

Elliott A. said...

The constitution only refers to the time places and manner of the election, not the question of congressional boundaries. A reasonable solution would be for congress to enact a law requiring states to use a bipartisan equal panel of legislators to draw boundaries which the legislature can then approve. The time is fixed by federal law. The manner is where state courts overstepped their bounds by changing due dates and various other laws about the election. Reasonable ID, proof of residency and age, and eligibility (felons) should only be subject to review if unfair to any reasonable person.

Fred Drinkwater said...

Let's hope some basic principles get re-established.

"Clear rules" so subjects of law can know what is required.

"In advance" so subjects can plan their lives and businesses.

If I hear one more person say "let the courts figure it out" I'm going to blow a gasket.

boatbuilder said...

"The only way to avoid litigation is to dictate that the courts are excluded from remedying partisan gerrymandering."

Dictated by the legislature? How does the legislature prevent the courts from declaring that the legislature's rule is unconstitutional as a denial of due process, or whatever the court comes up with?

Michael K said...


Blogger Mason G said...

"And he might have gotten away with it were it not for incidents such as the Republicans refusing to allow vote recounts to go on without public oversight."

How often do Republicans win close elections after counting votes with no oversight?


Ask the WA and MN candidates who lost by a few hundred votes after they were "found" late?

Then there is this.

What follows below is a brilliant analysis of the federal government motive to create a J6 crisis that permitted House Speaker Nancy Pelosi to trigger an emergency session and avoid the 2020 election certification challenges.

Those congressional floor challenges, known and anticipated well in advance of the morning of January 6, 2021, would have formed a legal and constitutional basis for ‘standing’ in judicial challenges that would have eventually reached the Supreme Court. The certification during “emergency session” eliminated the problem for Washington DC.


And this.

How do you prevent congress from delaying the certification of state electoral votes?

A: It requires a crisis. A crisis that creates an “emergency” …An “emergency” that invokes special house rules.

FACTS: Remember carefully, focus please. Just moments, literally 3 minutes before two representatives issued a vote for motions to suspend the certification, the House members were “informed” by capitol police and other “agents” that a protest was about to breach the chambers. It was at this time that key people: Pence, Pelosi, Schumer, Mcconnell can be seen being walked out and escorted from the chamber. This effectively halted the Entire Chamber Process.

♦ Q2: Why was it necessary to halt the chamber process?

A: The crisis was created to eliminate the motion challenges to halt the certification and to begin voting to look into voting irregularities and fraud.

rcocean said...

Dont ya love people who just ask questions?

why do they do that?

Greg the Class Traitor said...

The new opinion creates pressure on state courts to resist going too far as they follow their own political preferences under the guise of applying the law. Deciding based on politics is something they shouldn't do at all, but they are human and willful, and everyone knows it's impossible to eradicate the pull of these preferences.

Which is why they should get no say in the matter.

For illustrative purposes, let’s say in 2024 the Wisconsin state legislature passes a law establishing deadlines for requesting or returning absentee ballots, but a state court rules those deadlines unconstitutional because they contradict the state constitution’s guarantee of the right to vote. The losing party will now turn to the federal courts and argue that the state court has gone “too far” in its interpretation of the state constitution.

You have a "right to vote" on Election Day.

Anything else is a gift, and can be taken away at the whim of the State Legislature.

If you're not willing to show up on Election Day, then that's your choice. But it's your problem, no one else's

Gahrie said...

You have a "right to vote" on Election Day.

Nobody has a "right" to vote at anytime. Go back and read the Constitution and the various amendments.

Gahrie said...

Dictated by the legislature? How does the legislature prevent the courts from declaring that the legislature's rule is unconstitutional as a denial of due process, or whatever the court comes up with?

In California the people passed an amendment to the Constitution that the courts ruled was unconstitutional. How is that even remotely possible or legitimate?

Gahrie said...

The constitution only refers to the time places and manner of the election, not the question of congressional boundaries

Setting Congressional boundaries is part of the "manner" of the election.

Gospace said...

AS mikee said...

AlGore tried to steal that election. And to that we must add all DemoncRAT election officials.

There's those statistical anomalies in that election, like in 2020, that cannot be explained away. Like, for example, almost every overvote- two chads clearly punched, were for Gore and another candidate. And overvotes were far more common in heavily DemoncRAT counties. And the only logical explanation for this is- a bunch of punch cards were piled together and pushed through for Gore. If the was no vote- or a hanging chad (and that was the year we all discovered what a "chad" in this context) that ballot became a clear vote for Gore. If there was a vote for another candidate- the process invalidated that vote, effectively awarding +1 vote to Gore if the vote had been for Bush. And if the other vote was a hanging chad- well clearly the pushed out fully chad indicated voter intent for Gore...

Greg the Class Traitor said...

They actually ruled correctly

Eliminating racial discrimination means eliminating all of it. Ac-
cordingly, the Court has held that the Equal Protection Clause applies
“without regard to any differences of race, of color, or of nationality”—
it is “universal in [its] application.” Yick Wo v. Hopkins, 118 U. S. 356,
369. For “[t]he guarantee of equal protection cannot mean one thing
when applied to one individual and something else when applied to a
person of another color.” Regents of Univ. of Cal. v. Bakke, 438 U. S.
265, 289–290.