Thread by @JoshuaADouglas

THREAD on #SCOTUS 4-4 decision refusing to intervene in Pennsylvania Supreme Court decision. It's a BIG deal.

Normally, the U.S. Supreme Court won't hear cases from state courts about state law. This decision was under PA state constitution's protection for right to vote. 1/

The PA Supreme Court had extended absentee ballot deadline due to pandemic, saying the PA Constitution's "free and equal" clause required expanded voter access.

That should have ended the matter. 2/

But PA Republicans argued that the PA Supreme Court's decision altered the "manner" of running elections under Art. I, Sec. 4 of the U.S. Constitution, which lets state "legislatures" determine the "times, places, and manner" of holding elections. 3/

PA Republicans also argued that the PA Supreme Court's decision changed the manner of determining presidential electors, which again is for the "legislature" to determine.

It's a terrible argument but for 3 justices in Bush v. Gore who bought a similar argument. 4/

Four Justices (Thomas, Alito, Gorsuch, Kavanaugh) would have granted request to hear the case. They signaled they are open to hearing cases from state supreme courts, which had construed state constitutions.

Guess what happens when you add a 5th vote from Justice Barrett? 5/

Yep, U.S. Supreme Court could review decisions of state courts under state constitutions. Why is this a big deal?

Fed. court rulings on right to vote has been very narrow (see my earlier thread tonight!).

But 49 of 50 state constitutions include affirmative right to vote. 6/

Previously, state courts could (rightly) say that they need to follow fed. court jurisprudence on right to vote cause their state constitutions go farther.

But now? U.S. Supreme Court could intervene in those cases because they take away power from "legislature." 7/

It opens the door for the U.S. Supreme Court to question how state courts are construing their own state constitutions.

And it means state legislatures might not be constrained by state constitutions!

If you think that's absurd, you're right. 8/

State legislatures are created by state constitutions, so shouldn't they also dictate the boundaries of what the state legislatures can do? Maybe not, if the state legislature is regulating a federal election. 9/

Now, we don't know for sure that Justice Barrett will rule with other 4. We don't know that they would definitely rule that the PA Supreme Court's decision improperly took power away from the legislature. We don't know how it will read the word "legislature" in the US Const. 10/

But the signals aren't good here. The four conservatives have indicated they are at least open to this argument that state supreme court decision under state const. could violate the delegation of authority to "legislature" in U.S. Constitution.

I'm not optimistic. 11/

So while today's 4-4 ruling dodges a bullet for now, that bullet is coming very soon.

State constitutions were a strong protector of the constitutional right to vote. That could be undermined if the Court goes down this path. 12/

Now, does this mean a state legislature could thwart the will of the voters in their state and award electoral college votes as they want? I don't think so, as due process concerns are still present. The U.S. Const. still provides *some* protections (I hope!). 13/

But the project of cutting off most avenues to protect the constitutional right takes a big step forward with those 4 votes and the addition of a new Justice Barrett. 14/

And this, my friends, is a major reason why McConnell has been so insistent on filling the federal courts--and why he is pushing the confirmation of Judge Barrett so quickly. She *could* impact 2020 election litigation after all. /end

By the way, I REALLY wonder what happened behind the scenes on this one. It was pending for a long time to have it come out as a 4-4 decision with no opinion. 🤷‍♂️ /end+1