Supreme Court

Supreme Court Affirms Stay of District Court Injunction Against Wisconsin Election Law

This time, the justices explain themselves.

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This evening, while the Senate was preparing to vote on the nomination of Amy Coney Barrett to be the 103rd Associate Justice, the Supreme Court affirmed a stay of a district court order enjoining enforcement of Wisconsin election laws. The vote was 5-3 along ideological lines.

Unlike with other recent election-related order, the Justices explained themselves. The Chief Justice, Justice Gorsuch and Justice Kavanaugh each wrote opinions concurring in the denial of the application to vacate the stay. Justice Kagan dissented, joined by Justices Breyer and Sotomayor.

The Chief Justice's opinion is particularly interesting, because it explains why he voted to affirm a stay here, but refused to vote for a stay of an order of the Pennsylvania Supreme Court, leading to a 4-4 split. At the time, I suggested the Chief joined the liberals in that case "because he does not like judicial intervention or the unnecessary granting of stays." His opinion in Democratic National Committee v. Wisconsin State Legislature suggests I was correct:

In this case, as in several this Court has recently addressed, a District Court intervened in the thick of election season to enjoin enforcement of a State's laws. Because I believe this intervention was improper, I agree with the decision of the Seventh Circuit to stay the injunction pending appeal. I write separately to note that this case presents different issues than the applications this Court recently denied in Scarnati v. Boockvar and Republican Party of Pennsylvania v. Boockvar. 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.

The Chief Justice is not a fan of preliminary injunctions as a general matter, and has sought to curtail their use by federal district courts in a range of contexts. In the case of elections, he has embraced a strong form of the Purcell principle, which counsels that, as elections approach, federal courts should err on the side of non-intervention. As the Supreme Court oversees the lower federal courts, the Chief Justice is ready to enforce this principle against federal district courts. When state courts, state agencies, or state legislatures intervene late in the process, however, the Chief Justice does not think this is his concern. Thus the burden to convince the Chief to overturn a state-level decision is much higher.

There are serious arguments for and against the Chief Justice's approach. Whatever the underlying merits, there is a method to the Chief Justice's madness.

NEXT: Digital Dunkirk

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  1. I’m surprised Roberts didn’t stab the Constitution in the back since this was a swing state. Like he did in PA.

    1. The Constitution says that state supreme courts can’t make rulings based on state constitutions that don’t present a federal issue?

      1. Federal elections aren’t a federal issue?

        1. There has never been a federal election.

        2. Not when there is no relevant federal legislation or federal right at issue and the question involves a state court interpreting a state statute that empowers a state executive officer to make rules in this area.

          1. “the question involves a state court interpreting a state statute that empowers a state executive officer to make rules in this area.”

            That’s the case for state and local offices. For federal offices, the federal constitution empowers the state legislature to make rules in this area, so the federal judiciary is perfectly entitled to ask if the rest of the state government is actually following those rules.

            1. Pretty sure reading judicial review out of the legislative power is unprecedented.

              1. It’s not reading out judicial review. It’s just that, for federal elections, the state courts aren’t guaranteed the last word, because the state legislature is exercising a federal, not state, power.

                If we were talking state or local offices, the state supreme court could get away with just about any BS ruling they wanted, as long as they didn’t violate some specific federal right.

                But this is about federal offices, and for federal offices, the state courts aren’t immune to federal review. If they order that the legislature’s election laws be violated, (As they did in PA.) the federal courts can over-rule them.

                1. ” If they order that the legislature’s election laws be violated, (As they did in PA.) the federal courts can over-rule them.”

                  Whether the state legislature is suppressing voting rights or not, saith the Republican.

                  1. Yes, you may engage in wild fantasies that not changing election laws whenever Democrats demand it is “suppressing voting rights”. Those fantasies won’t deprive the federal judiciary of jurisidiction.

                2. Exactly.

                  “When state courts, state agencies, or state legislatures intervene late in the process, however, the Chief Justice does not think this is his concern. ”

                  And this is precisely where the Chief Justice goes wrong. If and when state courts or agencies, deploying the state constitution, or any other charm or token to override the State legislature’s prescribed manner for choosing Electors, or for conducting elections to Congress*, it’s the duty of the federal courts to set them right.

                  Because this is a federal question.

                  * in the case of elections to Congress, state and federal courts may also consult Congressional statutes modifying the manner prescribed by the State legislatures.

        3. Excellent question!

          See my thread on Bush v. Palm Beach County, which unanimously turned presidential elections into a federal issue:

          https://twitter.com/dilanesper/status/1320889337739841536

          1. Contrary to you, I was not the least surprised by Bush v. Palm Beach County, and not much surprised at it being unanimous.

            The thing here is that the state court wasn’t just wrong. They were egregiously wrong. They were wrong to the point where even the ‘liberal’ justices found what they’d done offensive.

            If they’d just been a little wrong, they might have gotten away with it.

            The PA case is eerily like Bush v Palm Beach. Another case of a state supreme court relying on a vague provision of a state constitution to over-ride crystal clear statutory language in a federal election.

            1. They had this crazy idea that the election isn’t over until all the votes have been counted, and demanding that a winner be certified prior to that is contrary to public policy. Those crazy motherfuckers.

              1. They had this crazy idea that they were in charge of making the rules for selecting Electors, not the legislature. And that, if they didn’t like the rules the legislature originated, they could change them.

      2. Federal law sets election day for federal officials as the first Tuesday after the first Monday in November. If states are effectively allowing people to vote after the statutory deadline, I would say that very much presents a federal issue.

        1. Because allowing the post office to disenfranchise people by simply forgetting to deliver their ballots to the elections office isn’t any kind of infringement on the right to vote.

          1. No, it isn’t, any more than it’s an infringement of the right to vote if you have a car accident on the way to the polls.

            1. Are you familiar with the meaning of the word “accident?”

            2. Actually, it is.

              It’s a deliberate act, like stealing ballots out of the mailbox.

  2. Just as a correction, Republican appointed justice do not decide cases “along ideological lines.” Ideologies include values, and Republican justices divest themselves of all values when deciding cases. Justices appointed by Democrats make decisions only based on values, thus their rulings fall along ideological lines.

  3. Even if we accept that Roberts has principles, it won’t matter cause ACB will vote with the other 4 to give the Rs whatever election advantage they want. The PA case is coming up again and we will know for sure then.

    1. Doesn’t matter if they piss off enough voters that they can’t suppress them all.

  4. Roberts is the lone justice to apply the principle that the states get to decide for themselves.

    Of course there could be cases where the states disenfranchise in a way that clearly violates federal statute or the Constitution. But, the logic of the liberals goes beyond that possibility to a more nebulous burden on the right to vote.

    On the other hand, the conservative justices other than Roberts require that state legislatures must explicitly approve any changes, rejecting any changes from the state executive or judicial branches, even though its the judicial branch that interprets what the legislature approved.

    If Barrett joins the other conservatives, then all matter of regulations making it easier to vote will be rejected, and I believe in the case where state authority has approved such changes, naked partisanship will have prevailed.

    1. Don’t be silly. I’m sure that when the Democrats sue to stop the GOP from ballot harvesting by using boxes, the liberal justices will jump to support the Democrats.

      1. They might and the conservative justices might flip-flop as well. Perhaps we would be better served if all followed Roberts.

      2. Pre-emptive whataboutery.

        Not a convincing form of argument.

    2. Josh R : On the other hand, the conservative justices other than Roberts require that state legislatures must explicitly approve any changes, rejecting any changes from the state executive or judicial branches, even though its the judicial branch that interprets what the legislature approved.

      As you imply, the Roberts position of leaving it to the States is, in the view of “conservative justices” (and indeed all competent readers) simply and obviously wrong as a matter of the constitutional text. Which Roberts himself well understood in his ringing dissent in the Arizona redistricting case. The “manner” of conducting elections to Congress is not reserved to the States, it is assigned to the State legislatures, explicitly in the text of the Constitution.

      There is nothing at all to prevent State legislatures, in exercising this federal grant of power, providing, within that manner, that the State executive may make various adjustments within constrained limits . Because such adjustments are, by virtue of being authorised by the prescribed manner, themselves within the manner prescribed. Nor is there anything preventing the State legislature from granting the State judiciary a role in adjudicating disputes, within such limits as the State legislature specifies in its manner.

      But in the Pennsylvania case, the Pennsylvania Supreme Court acknowledged that its remedies were nowhere to be found in the State legislature’s prescribed manner. They had plucked them from the state constitution (or so they said.) But the State constitution is granted no deference at all in Articles 1 and 2, where the federal power is granted to the State legislature.

      And since the question of whether the election is, or is not, being conducted in the manner prescribed by the State legislature is ineluctably a federal question, for it hangs on the text of the federal Constitution, the federal courts are entitled to, indeed have a duty to, correct the state court’s error.

      Of course there could be cases where the states disenfranchise in a way that clearly violates federal statute or the Constitution.

      And so, you understand the principle. The federal Constitution wins. So where’s the difficulty in acknowledging that the federal Constitution still wins whether it has to do with unconstitutional disenfranchisement of voters, or unconstitutional usurpation of the State legislature’s power ?

      1. When a statute is vague or ambiguous, and authorizes an executive branch member to enforce the statute, it makes no sense that the executive and judicial branches of a state should have no power to weigh in. For example the decision being appealed from Pennsylvania that Barrett may hear was whether statute required or authorized signature matching verification. The PA courts held it does not based on a reading of the statute, not the PA constitution.

        1. I am unfamiliar with the “makes no sense” theory of statutory interpretation. It looks very like the “I prefer this, thanks” theory of statutory interpretation, of which I am not a fan.

          At least one of the items being appealed to SCOTUS is on a matter that the Pennsylvania Supreme Court acknowledged was unambiguous in the statute, and where they deployed (a particularly airy phrase from) the State constitution to trump the statute.

          And in any case, even if the state court reaches an opinion based on statutory interpretation, the federal courts still have every right to disagree, because the state court’s opinion may be (a) incorrect and (b) usurping of the State legislature’s power under the federal Constitution.

          If a state court ruled that a provision of the state’s election law was perfectly OK under the 14th Amendment, disappointing plaintiffs who had argued otherwise, is it your view that the state court’s opinion must be decisive and that no claim could be advanced in federal court ?

          1. Of course the 14th Amendment takes precedence. But you are begging the question of what “shall be prescribed in each State by the Legislature” means in Article One. It seems to me the correct reading is at least statutes as interpreted by the state judiciary. Otherwise, there is no way to resolve ambiguous statutes and (sorry) that doesn’t make sense.

            You hypothesize that SCOTUS has jurisdiction to interpret state statutes. But, I don’t see how “shall be prescribed in each State by the legislature” grants such a power.

            As far as the judiciary ruling based on the state constitution, perhaps you have a better argument. However, what if the constitution clearly says ballots will be accepted up to three days after the election but the state legislature never approved? I believe your position requires the federal courts to step in and forbid such ballots from being counted. That sounds wrong to me.

            1. It seems to me the correct reading is at least statutes as interpreted by the state judiciary. Otherwise, there is no way to resolve ambiguous statutes and (sorry) that doesn’t make sense.

              I agree that passing a state statute would be the usual way of establishing the manner of elections. But I don’t think it would be the only way. So, a State constitution might, like the federal Constitution, require a Bill passed by the Legislature to be presented to and approved by the Governor before it took effect. That would mean that the Governor’s approval would be a necessary condition of passing state legislation. Fine, and so it would be.

              But what if the State legislature passed a Bill prescribing the manner of Congressional elections under the Article 1 power granted to the State legislature, but the Governor refused to sign it ? What would be its status ? Well it certainly wouldn’t be a state law. But I see no diificulty in accepting that it has binding force by virtue of the federal Constitution, which makes no mention of any role for the State Governor. So a Bill of this nature would not be state law but it would be still be legally binding.

              As for resolving ambiguous statutes, there would be no bar on the State legislature offering a role for the State judiciary in its prescribed manner. But even if it didn’t, such matters would be resolvable through the federal courts because an aggrieved voter or candidate would have a federal cause of action – whether the treatment meted out to the litigant was within or without the prescribed manner.

              Which is the answer to :

              “You hypothesize that SCOTUS has jurisdiction to interpret state statutes. But, I don’t see how “shall be prescribed in each State by the legislature” grants such a power.”

              It’s not just a state statute. It’s a state statute that exercises a federal power granted to a particular State actor. If some other State actor usurps that federal power, under color of state law, that is a breach of the federal Constitution.

              what if the constitution clearly says ballots will be accepted up to three days after the election but the state legislature never approved? I believe your position requires the federal courts to step in and forbid such ballots from being counted. That sounds wrong to me.

              What if the state constitution said that the votes of women were to count half, even though the State legislature had provided that they were to count whole ? Yup, my position is that the federal courts could happily step in and insist that the votes of women must count whole, and nuts to the state constitution.

              Because, as mentioned previously, the federal Constitution wins.

              1. I would think prescribing the manner of elections requires a legally binding instrument such as a statute that must be signed by the governor. Is there precedent to the contrary?

                I agree that if another state actor usurps the legislative power to prescribe the manner of elections, SCOTUS can step in. But, that power doesn’t include the ability to second guess the state judiciary’s interpretation of an ambiguous statute.

                Of course the federal constitution is superior and counting women’s vote as half would violate the federal constitution. But, the only clause that might be violated in the federal constitution for ignoring a state constitution’s mandate that ballots be counted if they arrive up to three days after election day, is Article I, Section 4. And it is downright silly in my view to argue “prescribed by the Legislature” permits ignoring the state constitution.

              2. “as mentioned previously, the federal Constitution wins.”

                Not necessarily. Ideally, whichever source provides the most freedom wins. As was the case for voting rights for gyno-Americans prior to the 19th amendment. Some states and territories had extended the franchise to women before the federal Constitution was amended to require them to do so.

  5. So there is a secret switch? Federalism on/federalism off. We just dont know when equal protection kicks in?

    1. It is all partisan now, that tells you who likes federalism and when.

    2. Not secret.

      Federalism has always been mostly an argument of convenience.

  6. Kavanaugh says that “[s]tates want to avoid the
    chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.” Kagan correctly notes that, “there are no results to “flip” until all valid votes are counted. And nothing could be more “suspicio[us]” or “improp[er]” than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”

    So much of the conservative approach to voting flies in the face of basic logistics. There are going to be closer to 150 million people voting in this election. They obviously can’t all go and vote in a 12 hour window on a Tuesday. And they obviously can’t all be counted within an 8 hour window after that. But the recent Trumpian framing of elections, like the one Kavanaugh for some reason has adopted, expects exactly that! And since it makes no logistical sense whatsoever, the only reason they would want it to be like this is so that less votes are counted overall. The possibility that a voters vote goes uncounted does not seem to phase them in any way shape or form. But a lot of people in this country and around the world have sacrificed immensely, been subject to violence, and even died for the right for their vote to be counted. Yet they don’t care. It’s pretty gross.

    1. Yes, I agree, but it was a bad move of the legislators to say it is OK to mail ballots on election day, but not say it is OK to count them if they arrive after.

      1. As a policy matter, you can argue with it, but they were acting within their reasonable discretion: The election ends at the end of election day.

        They didn’t have to allow mail in ballots AT ALL. They didn’t have to allow absentee ballots, early voting, or any of that. They would be entirely within their rights to say, “You want to vote? Show up in person on election day, and that’s it.”

        1. The election ends at the end of election day.

          Lots of states count ballots received after election day.

          1. On the theory that they originated before election day. But that’s nothing they’re obligated to suppose.

            1. Unless, I suspect, Brett thought there was a partisan advantage for his preferred brand of politician from counting them (say, ballots returned by servicepeople serving overseas, who tend to pick “correctly”, ie, the same as Brett does.)

            2. But that’s nothing they’re obligated to suppose.

              Unless their state Constitution says otherwise, as interpreted by their Supreme Court.

              1. Nope. The power to prescribe the manner of Congressional elections in the State is granted to the State legislature (not any other organs of the State) by the federal Constitution, not by the State constititution.

                It is a federal question.

                1. Try again. Limitations on how the legislature may use it’s power, like the definition of the legislature, come from the state’s constitution. If this were not so, there would be nothing preventing any group of wackos from declaring themselves to be the state legislature. The exact group of wackos who are entitled to have this claim recognized by others (including the federal government) is defined in your state’s constitution.

            3. You don’t have to suppose it. First, you can accept postmarked ballots. Second you can logically assume, despite your objection, that a ballot that arrives in the mail on Wednesday was mailed no later than Tuesday.

              The thing you overlook, Brett, is that there is a Constitutional right not to have a substantial burden placed on your right to vote. What is not a burden normally is one under present circumstances.

              I suggest you read Kagan’s dissent. It thoroughly eviscerates Kavanaugh’s concurrence.

              But what is “reasonable” in one set of circumstances may become unreasonable in another. And when that switch occurs, a constitutional problem arises. So it matters not that Wisconsin could apply its ballot-receipt deadline when ballots moved rapidly through the mails and people could safely vote in person. At this time, neither con-dition holds—again, according to the district court’s emi-nently believable findings. Today, mail ballots often travel at a snail’s pace, and the elderly and ill put themselves in peril if they go to the polls. So citizens—thousands and thousands of them—who have followed all the State’s rules. still cannot cast a successful vote. And because that is true, the ballot-receipt deadline that once survived constitutional review no longer does.

              That deadline, contrary to JUSTICE KAVANAUGH’s view, now disenfranchises Wisconsin citizens—however much he objects to applying that term here.

              There’s more. Read it. It’s only ten pages, and I read Kavanaugh’s concurrence.

        2. “As a policy matter, you can argue with it, but they were acting within their reasonable discretion: The election ends at the end of election day.”

          Nonsense. The election ends when the last vote is counted.

          1. So all you have to do is hide a ballot, and the election never ends? Cool!

            1. For people who can read, your answer is both stupid and worthy of ridicule. First, focus on whether the word “ballot” is the same word as “vote”, which check should be completed by the time you notice that B and V are different letters. Have you caught up yet?

    2. Would you accept a decision by any district court judge in any state who rules that to avoid disenfranchisement, voting must be allowed for “x days after the state deadline” or counting permitted for “y days after the state deadline” AND the ruling applies to every state i. e. national injunction? If not, let us know who gets to review such decision, what standards are used, whether states have any say over their voting rules or one federal judge decides voting rights for the country.

      1. Ruqt, you misunderstand, even if it is misunderstanding bolstered by overwhelming majority agreement. You are all wrong together.

        We are not talking about voting rights, which, if they existed, judges would be empowered to adjudicate this way or that. We are talking instead about the exercise by voting of the sovereign constitutive power. That, judges are not properly empowered to adjudicate, but only to one-sidedly defend. Judges are obliged to support the nation’s sovereign People, in the jealous preservation of their power, and tailor decisions to chastise governments which presume to interfere. When it comes to voting, the only question properly before any court is whether a particular government action or policy furthers sovereign power, or threatens to impede it.

  7. It’s reasoning like this that makes me hate lawyers and the law schools that produce them.

    There is nothing objectionable, in itself, in saying that state legislatures ought to be the ones deciding how their elections are to be run. Having federal district courts jumping in, citing poorly-defined constitutional principles, and making precise judgments about how those elections are to be run, is obviously a recipe for chaos and inconsistencies from state to state, circuit to circuit.

    But it is also true that Republican legislatures are very intentionally sabotaging the process, in order to serve their own electoral purposes. You have legislatures on one side, refusing to make even moderately reasonable accommodations for voters who fear showing up in person during a pandemic, and then political appointees gumming up the works at the USPS, sowing their own confusion and logistical headaches. The purpose of all of this is to disqualify tens of thousands, maybe hundreds of thousands, of ballots – by fully legal, registered voters. That’s the reality. And every judge and justice knows this.

    But all of our stolid legal training teaches us to ignore – well, all of that. That the calm application of a rule of law plays to the advantage of a party that seeks to abuse it to usurp the will of the governed is just – y’know, too bad. Better luck next time. Vote for better people, if they let you?

    This is just an extension of the disastrous abdication of any judicial role in constraining partisan gerrymandering. The conservative Court will continue to place its thumb on the scales against the will of the people, ensuring that an even smaller minority can set the agenda of the country. They thereby undermine their own legitimacy and threaten the stability of our country.

    And for the “own the libz” crowd – don’t forget that this is going to cut against you, as well. A government that is not responsive to the opposition is going to be no less responsive to your own interests, when they cut against the political establishment’s. You think Trump or McConnell isn’t willing to throw your job, your family, your safety, into the mulch bin, if it gets in the way of their own agenda? A system that insulates them from Democrats also insulates them from insurgent Republicans. No one wins in this future.

    1. That the calm application of a rule of law plays to the advantage of a party that seeks to abuse it to usurp the will of the governed is just – y’know, too bad.

      It’s more striking than that, and worse. When we are talking about citizens in the act of voting, they are not in their role as subjects of government, or, “the governed.” They are in their role as the joint sovereign of this nation. The sovereign People constrain government, not vice versa.

      SimonP, I suggest that you actually do understand the distinction, which is why you speak, justifiably, of threats to the stability of the country. If the government, which owes allegiance and obedience to the sovereign, instead attempts to hamper the sovereign in its exercise of its most important power, that is indeed destabilizing, and dangerous to the nation.

      In cases such as these, a wise court would tailor decisions to chastise governments which practice attempted constraints on sovereign power—and make delivering that chastisement the ordering principle guiding its decisions.

      1. The question, for me, is not even one of political philosophy. The destabilization of democracies has happened often enough in recent memory that we essentially have empirical evidence of how it happens. Warping the judiciary to favor one party in virtually any dispute leads, inexorably, to further corruption, autocracy, oppression, and ultimately violent revolt.

        1. I tend to agree that a practical analysis can be more persuasive than a philosophical one. But when speaking to so many would-be originalists, it is worth noting that among the founders analysis based on prerogatives of sovereignty WAS regarded as practical analysis. Madison, James Wilson, and probably others among the founders, thought history showed that a national government without a separate sovereign above it was an impossibility.

        2. SimonP, by the way, your comments have been excellent.

      2. Is it really necessary to reply to dozens of comments with this same strange point of yours?

    2. Excellent comment.

      I guess if DeJoy simply closed all post offices between now and election day it wouldn’t trouble Roberts at all.

    3. The will of the governed is expressed through the votes of their duly elected representatives, who will always have a stronger claim on expressing the will of the governed than the unelected judiciary.

      People can always say, “But the legislature isn’t really effectuating the will of the people who elected them!”, and often they’ll be right. But nobody else in the government has a better claim to be doing so than the elected representatives, and certainly not a superior enough claim to just rule by fiat in the name of the people.

      1. The will of the governed is expressed through the votes of their duly elected representatives, who will always have a stronger claim on expressing the will of the governed than the unelected judiciary.

        But these cases are not about “the will of the people.” They are about the rights of the people, specifically, voting rights, and there legislatures are more often mischief-makers than defenders of those rights.

        Again, Kagan,

        And if there is one area where deference to legislators should not shade into acquiescence, it is election law. For in that field politi-cians’ incentives often conflict with voters’ interests—that is, whenever suppressing votes benefits the lawmakers who make the rules.

      2. “The will of the governed is expressed through the votes of their duly elected representatives, who will always have a stronger claim on expressing the will of the governed than the unelected judiciary.”

        Unless, of course, they do not. I had no part in the selection of 437 of the members of the House of Representatives, and no part in the selection of 98 of the Senators. Claiming these people I had no influence in selecting are inherently more representative of me than the judiciary is fanciful, at best.

      3. “People can always say, “But the legislature isn’t really effectuating the will of the people who elected them!”, and often they’ll be right.”

        There’s a fairly strong case to be made that the legislature expresses the will of the political parties rather than of the electorate. A critic of either party will readily supply individual cases where the party actually undermined something it claimed to be advancing, because the party leadership saw an advantage for themselves in doing so.

    4. “But it is also true that Democrats are very intentionally sabotaging the process, in order to serve their own electoral purposes.”

      FTFY

      1. You mis-spelled “Republicans”. There’s no “D” in the word.

    5. “There is nothing objectionable, in itself, in saying that state legislatures ought to be the ones deciding how their elections are to be run.”

      Depends entirely on who sees partisan advantage in making changes.

      Since 1868, the federal government has acted as the guarantor of voting rights. Republicans would now like to dismantle this, as they control many state houses.

  8. In the case of elections, he has embraced a strong form of the Purcell principle, which counsels that, as elections approach, federal courts should err on the side of non-intervention.

    Which raises a question. Should federal courts err also on the side of reversing state interventions which occur too close to an election. I don’t understand why the Purcell principle, in this case, precludes federal action, but not the state action. Anyone inclined to come back to tell me, “But that’s a state court, and Roberts thinks the Purcell principle should not apply to it,” is now asked to explain on what basis that kind of thinking is justified, and how they know Roberts relied on any such basis.

    It’s a little easier for me to imagine Roberts is just trying to divvy up the results evenly until the storm blows over.

    1. One of those rare shafts of Lathropian sunlight.

    2. But the Purcell principle was based on the fear that changes could confuse voters. Simply extending the deadline for receipt of ballots doesn’t carry that risk.

      By the way, in 2000, weren’t the Republicans, Roberts, Kavanaugh, and Barrett among them, arguing vigorously for counting absentee ballots received after election day?

      1. If they can’t stick to principles from 2016, what makes you think they’ll stick to principles from 2000? The rule is that they favor whatever outcome supports their chosen party. They used to at least PRETEND that this wasn’t a rule, but a good many partisans don’t bother to even pretend otherwise anymore.

  9. If one wanted to make voting a fundamental right; could that be done via Congress (ie, as a “regular” law)? Or would it take a Const. amendment?

    1. Voting is not a fundamental right. It is better than that. It is a sovereign power. As such, it ought not be subject to any constraint by government at all.

      1. Voting is NOT a fundamental right. Fundamental rights are rights you can exercise in a state of nature, when and where and how you want. Freedom of speech, freedom of religion, things like that.

        Not fundamental: Right to trial by jury, voting, and so forth. Rights that only exist because there’s government, and in the context of government.

        If you had a fundamental right to vote, you could vote on Supreme court justices. You could vote next year. You could vote in the next county over, without moving first.

        But, no, it’s not fundamental. It’s very, very limited: One place, one time, only for offices that are voted on, with identifying yourself being a natural consequence of these limits.

        Ironically, the right to vote, though not fundamental, IS routinely violated. But it’s not violated by voter ID, or requiring that you properly fill out the ballot and get it to your polling place before the election is over.

        It’s violated by ballot access laws. Jungle primaries. Prohibitions on write in votes. Because, while it’s very limited in context, it IS a right to vote for whoever you damned well please.

        1. “If you had a fundamental right to vote, you could vote on Supreme court justices. You could vote next year.”

          Of course, each and every one of us can do all of these. What you don’t get is a right to have anyone else pay any attention to your votes, except on election day.

      2. So then everybody living in an area should be able to vote. Also, if I own two homes, I should be able to vote in both locations. Also, children should be able to vote. Why not if you own a business in a location, you get to vote there too?

        1. “Also, if I own two homes, I should be able to vote in both locations.”

          Absolutely, assuming you can demonstrate an ability to be in both places at the same time.

    2. It took a Constitutional amendment.

  10. It’s interesting that Roberts and Kavanaugh took the opposite position in Bush v. Gore.

    And no crap about how they didn’t really believe it and were just representing…

    1. Assuming they have a consistent judicial philosophy is probably at least partly a mistake.

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