Let's talk for a minute about the Pennsylvania election case.
It's a win for now, because a 4-4 tied SCOTUS vote means the lower court (here, PA Supreme) order stays intact.
But it's terrifying that 4 Justices thought otherwise, and might soon be joined by a 5th (Barrett). /1
It's a win for now, because a 4-4 tied SCOTUS vote means the lower court (here, PA Supreme) order stays intact.
But it's terrifying that 4 Justices thought otherwise, and might soon be joined by a 5th (Barrett). /1
Two basic, longstanding principles of law:
first, states control their own elections, though Congress can impose conditions;
second, state courts interpret their own state laws, including state constitutions.
That should've ended this case. Excerpt from PA Dems' brief.
/2
first, states control their own elections, though Congress can impose conditions;
second, state courts interpret their own state laws, including state constitutions.
That should've ended this case. Excerpt from PA Dems' brief.
/2
5 Republican Justices already blasted a hole in Congress's power to regulate elections in Shelby County v Holder, invalidating Congress's reauthorization of the VRA. Pics 1 & 2 from Ginsburg's dissent.
In the PA case, the Republicans' brief sang a different tune. (Pics 3 & 4) /3
In the PA case, the Republicans' brief sang a different tune. (Pics 3 & 4) /3
And 5 Republican Justices already ran roughshod over state election law in Bush v Gore. Pic 1 from Stevens' dissent. They knew it was trash, and in 20 years haven't relied on it.
In the PA case, Republicans wanted to do that again—in support of which they cite Bush v Gore. /4
In the PA case, Republicans wanted to do that again—in support of which they cite Bush v Gore. /4
In short, the PA election case was based on pure GOP hypocrisy—a sweeping view where any arguable interpretation of a federal statute blew up state election law (the polar opposite of Shelby County), plus dismissing state interpretations of its own laws. So they added a twist. /5
As @rickhasen explained, the Pennsylvania Republicans made an argument about the word "legislature" in the constitution which contradicted SCOTUS precedent from 2015 and, if accepted by SCOTUS, would create legal chaos over a wide range of issues. electionlawblog.org/?p=117040
/6
/6
The PA Dems asked SCOTUS to stop the madness going on nationwide caused by GOP lawsuits and just end these frivolous arguments and the confusion they're causing.
Apparently 5 Justices weren't willing to do that. I assume the 3 Dems convinced Roberts to at least deny the stay. /7
Apparently 5 Justices weren't willing to do that. I assume the 3 Dems convinced Roberts to at least deny the stay. /7
And that's where Barrett comes in. If she's on the Court, then Roberts is no longer a swing vote to create a 4-4 tie. Then there would be 5 Justices happy to take up this nonsense and bulldozer over well-settled law to manufacture electoral benefits for the GOP.
/end
/end
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