Download Edited Version Of Moore v. Harper From Barnett/Blackman Supplement

About half the case is on jurisdiction/mootness, and the other half is on election law.

I have finished editing Moore v. Harper for the Barnett/Blackman supplement. I trimmed 65 pages down to 22 pages. You can download the opinion here.

This case will be useful for two separate topics: jurisdiction/mootness and election law. I suspect professors interested in the former will be less interested in the latter, and vice versa. To make things easier, the discussion on mootness appears in Part II of the majority opinion and Part I of the dissent. And the discussion of election law appears in Parts III and IV of the majority opinion and Part II of the dissent.

I'll have much more to say about this decision in future writings.

Comments

[Sam Bankman-Fried]

Roberts and Kavanaugh and ACB would have ruled differently if a Bush were involved in the election at hand…it’s hilarious how they stabbed Trump in the back.

[Bored Lawyer]

What's hilarious is how you make things up with no basis, and think you are being clever.

What's sad is you think that Justices of the Supreme Court should interpret the law based on their loyalty to Donald Trump.

Newsflash: Donald Trump is not the king. He was elected president, an office created by the Constitution. The loyalty due by both him and his appointees are to the Constitution. It's even in the oath each of them takes.

[gormadoc]

The OP, who is probably also “Sebastian Cremmington”, is vociferously anti-Bush and thinks Trump is an idiot, not that they deserve his loyalty or that they should have voted for them on his account.

[EscherEnigma]

What’s sad is you think that Justices of the Supreme Court should interpret the law based on their loyalty to Donald Trump.

Pardon, but Sam used "would", not "should". You can think that judges are biased and vote based on partisan politics without thinking it's right for them to do so.

[Bored Lawyer]

He wrote, "it’s hilarious how they stabbed Trump in the back." That's what I was commenting on.
Whether the decision helps or hurts Trump should be irrelevant to their decision.

[Krychek_2]

While I will admit to thoroughly enjoying Trump's judicial appointments repeatedly rule against him, it was a fairly silly argument and the Supreme Court probably would have reached the same conclusion no matter who made it.

[F.D. Wolf]

Fascinating discussion, but I'm unclear how this decision has anything to do with Trump.

[Voize]

ISL theory was also central to some of the stolen 2020 election arguments, that state courts enabled violation of election laws established by legislatures that they lacked jurisdiction to review.

[F.D. Wolf]

That seems a pretty attenuated connection, but okay.

[Randal]

It's the reason everyone cares so much about what's otherwise a pretty technical case.

[juris imprudent]

ISL wasn't an issue in Pennsylvania, but the State SC here decided it could ignore a non-severability clause in the law as passed. Oh that, we're not bound by that! Which of course had been what cemented the compromises in place.

[David Nieporent]

Oh, god, another Brett who doesn’t know what “as applied” means.

[David Nieporent]

Also, just to be clear: the effect of a severability clause in a PA law is determined… by the PA courts.

[David Nieporent]

Saying "ISL wasn't an issue in Pennsylvania" is kind of ironically hilarious because actually the exact opposite is true. In Pennsylvania, the GOP-controlled legislature passed a law in 2019 to dramatically expand absentee voting. In 2020, after Trump lost the state, Trump turned around and sued, saying (in contradiction of the ISL doctrine) that the legislature didn't have authority to pass that law because it violated the state constitution.

But the ISL doctrine played a big role in the post-election Trump litigation in 2020. The Krakens made up completely fake fraud claims, but Trump's own lawyers never made those arguments in court. Instead, they argued about election procedure and who had authority to decide it.

[juris imprudent]

Trump's litigation wasn't the case decided by the PA SC that actually controlled the election.

If severability isn't binding, then it is utterly superfluous. It is there for a reason or it has no reason to be there at all.

[F.D. Wolf]

In Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015), a 5-4 Court, ruled that the word "legislature" in the Constitution merely meant generally "the lawmaking process", so that it was alright for the Arizona legislature to delegate redistricting to an independent commission. Chief Justice Robert wrote a caustic, fiery dissent ridiculing that notion.

Today, in an opinion by Chief Justice Roberts, the Court affirms that "legislature" just means "the lawmaking process", relying heavily on the Arizona decision.

Classic Roberts.

[Mr. Bumble]

Wonder what he would've been like if he were an Associate Justice rather than the Chief.

[F.D. Wolf]

Probably better, and certainly in a position to do less damage. Leadership and management are not his strengths.

For those who may not recall, President George W. Bush initially nominated Roberts to succeed the retiring Justice O'Connor, but when Chief Justice Rehnquist suddenly died, he withdrew the nomination and nominated Roberts to succeed Rehnquist. He then nominated Samuel Alito to replace O'Connor. Yes, I think the Court and the country would have been better served by a Chief Justice Alito and an Associate Justice Roberts.

[Randal]

Ha! The court would already be 15 large if Alito were chief. Probably with a couple additional Chief Justices plus a new Supreme Justice outranking Alito.

[Krychek_2]

Well, Arizona is now controlling precedent, whatever Roberts may think of it.

[Dilan Esper]

Right. This is exactly what SCOTUS justices are supposed to do. A court majority makes the law, which then binds the Court until it is overturn. Continually dissenting is just being in love with yourself.

[F.D. Wolf]

To clarify, the "independent commission" was created by a voter referendum, as permitted under the state constitution, not the legislature directly.

[hoppy025]

I agree he’s a squishy mess. Incidentally, I agree with the majority’s opinion, but I think reasonable minds can think otherwise.

But Roberts is so unprincipled and devoid of any kind of philosophy that it’s hilariously pathetic.

It's pretty clear to me from the other references to "state legislatures" that they're referring to something being a province of the state, rather than the federal government. At that point, the state courts are part of the "state."

That said, I don't think the Democrat Party state supreme courts acted properly. The shenanigans they pulled in the name of COVID are just as bad as Democrat Party federal judges holding that the Due Process Clause gives the Rev. Kirkland the right to shoot a load into a little boy and "marry" him.

[CJColucci]

Roberts is so unprincipled and devoid of any kind of philosophy that it’s hilariously pathetic.

All things considered, that may be his best quality.

[Rev. Arthur L. Kirkland]

just as bad as Democrat Party federal judges holding that the Due Process Clause gives the Rev. Kirkland the right to shoot a load into a little boy and “marry” him.

How are those "civility standards" -- the ones you claimed to be relying on when you censored liberals and libertarians for making fun of and criticizing conservatives -- coming along, Prof. Volokh?

Prof. Volokh is entitled to censor anyone and anything he likes (his playground, his rules). Partisan, disingenuous hypocrites have rights, too.

[Theendoftheleft]

‘Partisan, disingenuous hypocrites have rights, too’.

Not on blogs they don’t.

Besides, what do you care? Not only is the guy’s claim about you true, but you also characteristically end your comments by noting how folks should carry on till their ‘betters’ stop them, insinuating a violation of ALL the former’s rights. How is that civilized?

I’m kidding: as you really are a disingenuous hypocritical moron, you obviously don’t care about any norms of civility, let alone how this blog is moderated. We just need to deconstruct all the Christo-fascist, hetero-normative, patriarchal, capitalist norms, including those concerning manners and etiquette, yeah? Your appeal to norms of civility is just a power move in your duplicitous, ‘transgressive’ efforts to destroy America and the West and to craft a new identity and value system based on your proven, robust knowledge about how to do so cogently.

Carry on, AIDS, you totalitarian fuckwit. Till your American betters Breivik your loved ones.

[Rev. Arthur L. Kirkland]

I trimmed 65 pages down to 22 pages.

Without indicating the points at which content was removed?

Is that customary in current textbooks?

[Magister]

As an experiment, it is 22 pages in Word without omitting anything, just by using narrow margins and running the short lines together. Not very readable, as headers and footnotes all get mixed up, but then I'm not a law professor.

[Bored Lawyer]

Most of my law school textbooks only excerpted opinions, to get to the germane parts of the opinions.

[Rev. Arthur L. Kirkland]

I think the abbreviated versions in my textbooks (decades ago) indicated the omissions with ellipses, but I could be wrong.

[BravoCharlieDelta]

Don't pretend you ever opened, much less owned a textbook. It's rude.

[SimonP]

It's customary in case books to omit substantial parts of opinions. Not every element of the Court's analysis is going to be relevant to every topic for which an opinion might be included.

That said, having spent enough time reading Josh's... musings... here, I would be deeply skeptical that he is anything like a competent editor of Court opinions. His posts regularly engage in reasoning one might find on the LSAT (where questions require test-takers to spot errors or missing premises in arguments). It's bizarre to me that Randy has kept him on as a kind of glorified research assistant. I guess he doesn't care if his students don't understand constitutional law, either.

[Rev. Arthur L. Kirkland]

It’s bizarre to me that Randy has kept him on as a kind of glorified research assistant.

Not to me. Prof. Barnett has become a full-throttle "own the libs" wingnut -- check his tweeties.

And Today In Supreme Court History has vividly demonstrated Prof. Barnett's (lack of) academic rigor.

He and Prof. Blackman are a natural pairing.

[Randal]

Yeah, like 10, 15 years ago, he (Randy) used to be pretty smart. What happened? Cult brain?

[Rev. Arthur L. Kirkland]

Disaffected misfit huddling with other culture war losers for warmth as they await even more mainstream rejection.

[Theendoftheleft]

In ten years, will they even consider you to count as a 'person'?

[Theendoftheleft]

What's going to happen in America when people start to regularly and openly talk about the Prophet's (pbuh) marriage to Aisha when she was age six and that he consummated that marriage when she was nine?

What's going to happen when they talk about how the Prophet (pbuh) took on some Jewess as an additional war trophy bride?

What's going to happen in America when people start talking about how the Prophet (pbuh) was a slave owner, and that slavery only ended in the Islamic world because the West crushed it (as part of the latter's own imperialism)?

What's going to happen in America when people start talking about how the Prophet (pbuh) was an illiterate warmonger?

What's going to happen in America when people start realizing that sharia is, and has always been, an imperialist apartheid legal-normative order? That the concepts of political and legal equality have always been alien, and indeed antithetical to it?

What's going to happen when Americans come to understand why America's better law schools, which otherwise insist upon a strict separation of church and state, are hiring Islamic law scholars. What happens when the masses find out where some of that funding is coming from?

What's going to happen in America when people start learning the truth about the consanguinity rates across the Islamic world, and the rates of child marriage?

What's going to happen to you, AIDS, as your efforts to subvert and destroy Islam are rendered clearer to more of the Islamic world, given your -- repeatedly stated -- remarks that it's a mere superstition and that the world would be better off without religion?

Carry on, AIDS. The whole world, despite its radically different views and politics, is becoming united in its contempt for your garbage, hypocritical, duplicitous, imperialistic values. Carry on, till either the American right or some religious fellow blows your brains out.

[Randal]

You are exhibit #1 for my thesis that conservatives are driven by fear.

[Theendoftheleft]

Fear of what? The truth?

I'm not afraid of the truth. You are. That's why you people don't talk about this stuff.

[CJColucci]

I'll have much more to say about this decision in future writings.

Promise or threat?

[Mr. Bumble]

Both.

[juris imprudent]

"...fundamental right to equal voting power,"

Well then, since Dems and Repubs are always denying me the representation I want, my equal voting power is being denied! I demand vindication!

What horseshit. You can damn sure bet no court would ever allow that argument from a Communist or a Libertarian or a Green. Nor should they; they just shouldn't for the losing wing of the uni-party.

[BravoCharlieDelta]

If the constitution says only the House can appropriate funds, and then a judge comes along and appropriates funds, or a bureaucrat at some department decides to appropriate funds because of some alleged emergency he declared no one in their right minds would believe that judge or that bureaucrat had the power to appropriate funds.

Why is it different when it comes to elections?

[hoppy025]

Because the framers seemed to use "state legislature" generically to mean "states."

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;-And"

For example, the above clause in Article I, Section 8, states that the "legislature" of the state must be consent for the federal government to buy land for military use. But in reality, it's not JUST the legislature. The legislature generally has to approve it via a bill, which the governor then signs or vetoes.

[BravoCharlieDelta]

But a Court nor some department commissioner could never consent on their own, like we've seen with elections.

[Randal]

I think you're thinking of something else. Elections have another feature that, for example, buying military land doesn't have. Elections are a process involving practically every adult citizen of a state, and that process has a fixed deadline. Also, the rules need to be well understood and consistently applied in order for the election to be fair.

So if a department commissioner "illegally" sets some election rule in April, there's limited time available to challenge and overturn it. If you file your challenge in June, no problem.

But if you file your challenge in October (or December!), you're shit outta luck.

The Republicans had every opportunity to challenge the election rules they didn't like over the summer. But instead they tried gaming the system and waiting until the election was over or almost over -- as in, once they knew they'd lost -- in order to challenge them. Many of the rules they challenged were Republican rules!

The Supreme Court rightly called bullshit on that. You can't go along with the rules of an election while you're campaigning and only object to them once you lose. No do-overs.

[BravoCharlieDelta]

So this feature of applying to every eligible voter acts to expand who has authority to set its rules? Is that stated anywhere or just implied by other parts of the constitution?

[Randal]

It's implied by otherwise elections wouldn't work.

[BravoCharlieDelta]

Elections wouldn't work if only the legislature made the rules?

I'm sorry, but I don't think that's very reasonable. There is no limiting principle to this grant of power. How many other things do governments do that effect every voter? Why aren't those included in your "since it effects every voter, everyone in government gets to make the rules for it" principle?

[Sarcastr0]

"There is no limiting principle to this grant of power"

This is what you wish for state legislatures.

[Randal]

No, elections wouldn't work if you could change the rules in October or December.

You're complaining, I suspect, about 2020. Some "department commissioner" made a rule you think was unconstitutional.

If the rule had been challenged in June, there's every chance it would've been found unconstitutional in federal court.

But it wasn't. Unchallenged rules go into effect. Someone's gotta challenge it in order for it to be found illegal.

[BravoCharlieDelta]

https://publicintegrity.org/politics/elections/us-polling-places/pennsylvania-election-rules-up-in-the-air/

You're misremembering. There were a bunch of lawsuits on the rule changes. The PA courts were one of the groups inventing COVID election rules.

[Randal]

That October 2020 article makes my point precisely.

[David Nieporent]

Elections wouldn’t work if only the legislature made the rules?

Correct.

First, executive agencies always make a bunch of rules. Do you think that an enabling statute is the same thing as a policy manual?

Second, as I keep explaining to Brett, in every election ever, there's a problem at some precincts — a power failure in the building, not enough ballots delivered, etc. And courts have to fashion equitable remedies to deal with those situations, such as ordering those precincts to stay open an extra hour. This is routine, and nobody made any fuss about it until 2020.

There were more changes in 2020 because of COVID, but those changes came from red and blue officials alike.

[hoppy025]

This part is BS. They tried to challenge it early, and the courts said the issue wasn't "ripe." Then when it was time, they said it was too late.

[David Nieporent]

Nope.

[Theendoftheleft]

'Elections are a process involving practically every adult citizen of a state, and that process has a fixed deadline'.

Sometimes former and dead ones too!

[F.D. Wolf]

Because the framers seemed to use “state legislature” generically to mean “states.”

This is demonstrably not so. The original Constitution provided:

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years

This changed with the ratification of the Seventeenth Amendment in 1913 which provided for the direct election of Senators. But from 1788 until then, every single senator in every state had been chosen by the legislature, and the legislature alone. As the movement for direct elections picked up, some states began to have popular “elections”, but these were purely advisory. The legislature still ultimately picked the senator. It is exceptionally curious that in those 120+ years, it never seemed to occur to a single person that, “Hey, guys, ‘legislature’ just means ‘state’, so we can just pass a state law providing for the direct election of our senators.”

[hoppy025]

But that's the crux of the argument. Could a state's constitution have constrained what the legislatures could have done with respect to selecting senators?

[F.D. Wolf]

The Ohio state constitution allowed the voters, through popular referendum, to overturn any act of the legislature, which is exactly what the people of Ohio did after the legislature ratified the Eighteenth Amendment (Prohibition). A unanimous Supreme Court said, sorry, people, the Constitution reserves ratification of amendments to the "legislatures", and "legislature" means legislature.

The only question really for determination is what did the framers of the Constitution mean in requiring ratification by "legislatures"? That was not a term of uncertain meaning when incorporated into the Constitution. What it meant when adopted it still means for the purpose of interpretation. A legislature was then the representative body which made the laws of the people.

Hawke v. Smith, 253 U.S. 221, 227 (1920).

So, what does the today's Court do with that? It could just overrule it, but instead it offers a bumbling distinction that, well, ratification isn't really lawmaking in its traditional sense. So, we're essentially left with is, "Sometimes in the Constitution, "legislature" means legislature, and sometimes it doesn't."

Incidentally, when it comes to this clause:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...

it seems to me that it certainly wouldn't fit in the Court's "traditional lawmaking" category, so contra all the headlines, this decision does not resolve the question of whether "legislature means legislature" in THAT clause.

[Randal]

Why is it different when it comes to elections?

It's not different. That was the whole point of the opinion.

[BravoCharlieDelta]

SCOTUS did rule that the legislature isn’t immune from judicial review, which makes sense.

However, they didn’t decide if the NC Supreme Court violated the constitution when it took it upon itself to decide elections, which is what my question was targeting.

“The Court need not decide whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause, as petitioners did not meaningfully present the issue in this Court.”

So it’s still undetermined if courts and public health officials and county elections supervisors can alter our elections as they deem fit. So it is different. Election rules can be decided by anyone in a state government, apparently, whereas, appropriations cannot.

[Randal]

No. Appropriations can be decided by anyone in a state government. The Constitution has nothing to say about that, so there’s no way to even get federal review. If the Washington Supreme Court issued an opinion appropriating a bunch of state money to, say, public education, there’s nothing a federal court could do about it. (This essentially happened.)

But where the Constitution has something to say about it, like with elections, there can be federal review. Roberts mentions property law and contract law as existing examples. Since the Constitution makes guarantees about property and contracts, state actors (including state courts) can’t make state law interfere with those federal guarantees, even though property law and contract law are defined by states. Roberts puts election law into that same category.

So you’ve got it exactly backwards. Appropriations can be decided by anyone in a state government, whereas election rules cannot.

[BravoCharlieDelta]

I don’t think you’re understanding the opinion very well, you’re crossing streams.

The courts have judicial review powers, even over elections. The ISL theory was that no one could review the legislature’s election rules. SCOTUS said that’s not going to work.

However, NC Supreme Court commandeered the legislature’s authority and created districts under it’s own command. The SCOTUS did not decide whether or not they could do this, and said explicitly they didn’t decide on this issue.

So as it stands, anyone in a state government can change election laws even though it seems pretty clear who can and cannot.

re: appropriations – it was an analogy, I understand the US Constitution doesn’t ‘dictate to states how to organize.

[Randal]

So as it stands, anyone in a state government can change election laws even though it seems pretty clear who can and cannot.

No, as it stands, this has not been decided. And actually, Roberts made it super-clear that they can't. He just didn't draw a crisp line because nobody asked him to.

Blame the Republicans' legal team for that. The oral argument was atrocious. And they explicitly said, if state courts get judicial review, we lose. They chose to go all in in an attempt to force the court into an extreme ruling. But it (predictably) backfired.

[BravoCharlieDelta]

Roberts said they didn’t, not because they can’t but because the question wasn’t “meaningfully presented”.

That’s part of the quote I already provided you.

"No, as it stands, this has not been decided."

The status quo is anyone can make up election rules, county commissioners, judges, secret consent decrees made between activist groups and friendly state agencies. Anyone.

Ballot custody rules, signature verification standards, election observers being present, postmark dates (or lack thereof) of mail-in ballots, all get to be whimsically decided by whomever feels like it.

[Randal]

If you don't understand what words like "meaningfully presented" mean, then I can't help you. I'm sorry.

[BravoCharlieDelta]

If a party is engaging in some acts, and no one is stopping them and a court isn't deciding on those acts, what is the status quo?

That the parties can engage in those acts, or the parties cannot engage in those acts?

[Randal]

The status quo is that the acts haven't been challenged in court. Try challenging them (timely!) and see what happens.

Your word games aren't amusing to anyone but yourself. They make you sound like a six-year-old. "I can throw my food. I can smack my little brother in the face. I can make election laws in state court. I can drive 105 miles an hour. I can armed-rob this bank." You sound like an idiot. Yeah, a legality fairy isn't going to fly down from Heaven and magically prevent you from robbing a bank or violating the elections clause, so you can. Time to grow up now.

[BravoCharlieDelta]

And clearly no legality fairy is flying down and stopping all these non-legislative Democrats from making up their own election laws either. Election clauses don't meaningfully matter.

It’s a simple truism. Just like no one holds the criminals at the DOJ accountable, so they keep violating our civil rights.

There is no effective law, nor do we effectively have rights since they can be so freely violated by the DOJ or CIA or NSA or DHS.

The Federal Government has a network of agencies coordinating censorship of civilians. No one is stopping them. Therefore it’s effectively legal.

Your words games fall apart when they encounter reality. Just like when a transgender looks in the mirror.

[Jason Cavanaugh]

If you're not someone dumb enough to trust Blackman's editing, here's the actual opinion:

https://www.supremecourt.gov/opinions/22pdf/21-1271_3f14.pdf