The absurd legal theory conservative judges are using to restrict voting

[Nevilledog]

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Joshua A. Geltzer
@jgeltzer
"This newfound notion that legislatures must, in utter isolation, set election rules alone is impossible to square with the basics of how law works in America."

Always honored to team up with the mighty @neal_katyal to write for @PostEverything:

Perspective | The absurd legal theory conservative judges are using to restrict voting
No, state election laws don’t have to be set by legislatures alone without input from executives or courts.
washingtonpost.com

https://www.washingtonpost.com/outlook/2020/10/30/conservative-judges-voting-theory/

A novel legal theory is surging among conservative judges and justices. The notion is that, under the Constitution, only state legislatures — without any input from state executives or courts — may set the rules for presidential elections. This theory is clearly a misunderstanding of constitutional election law. But it’s actually worse than that: It fundamentally misapprehends how law itself functions. To imagine that the work of legislatures can be wholly isolated from the work of other parts of our government is a fantasy untethered from an inescapable feature of the American legal system: Law represents an interplay between legislators and those who must interpret and implement their handiwork, including judges and executive branch officials.

Here’s what everyone agrees on: Article II of the Constitution says that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” that state’s representatives to the electoral college, which chooses the president. No one disputes the basic reality that state legislatures typically take the lead in setting rules for the statewide elections that choose electors who, in turn, choose a president.

But in the past couple of weeks, the focus on two words in that constitutional text — “the Legislature” — has been taken to fanatical extremes. Most recent — and most absurd — is a decision on Thursday by a federal court of appeals that, five days before Election Day (too late for the state to do anything to respond to it), abruptly changed the rule for Minnesota voters from a requirement that their mail-in ballots be sent by Election Day to a requirement that those ballots be received by Election Day, thus unsettling at the last moment both the law and voters’ expectations. The two judges voting for that outcome insisted that a state official who’d interpreted state law to allow the more accommodating deadline had intruded on a power reserved to the legislature alone. It’s the same basic notion that Justice Neil M. Gorsuch expressed in voting to halt a decision by North Carolina’s State Board of Elections interpreting North Carolina law on election rules, and that Justice Samuel A. Alito Jr. articulated in voting to halt a Pennsylvania Supreme Court decision interpreting that state’s election laws. Alito insisted on strict adherence to “the provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections.”

There’s the core principle uniting all of these recent decisions: State election rules must be set by state legislatures alone.

Put aside that this is the opposite of what the U.S. Supreme Court has said — including in a 2015 decision holding that the Constitution’s reference to “the Legislature” means a state’s process of making laws, including a governor’s role in vetoing laws and courts’ role in interpreting laws. And put aside the oddity that this idea means that a ballot could count for Minnesota’s state elections but somehow not for federal ones, even though the same legislature enacted the rules for both of them and the ballot includes candidates for both sorts of offices. Even more fundamentally, this newfound notion that legislatures must, in utter isolation, set election rules alone is impossible to square with the basics of how law works in America.

*snip*

[Fiendish Thingy]

1. Here's a rebuttal to that truly absurd argument...

From Laurence Tribe, among others:

Legislatures cannot act alone in appointing electors
(References existing law and prior rulings, including SCOTUS):

http://www.dorfonlaw.org/2020/09/state-legislatures-cannot-act-alone-in.html

https://static1.squarespace.com/static/5e70e52c7c72720ed714313f/t/5f625c790cef066e940ea42d/1600281722253/State_Legislature_Paper.pdf

https://verdict.justia.com/2020/09/30/no-republicans-cannot-throw-the-presidential-election-into-the-house-so-that-trump-wins

https://www.electoral-vote.com/evp2020/Pres/Maps/Sep25.html#item-2

[Thekaspervote]

3. +1000

I worry that despite these laws that these RWNJ judges will rule differently. Having said that, I don’t know all the ins and outs about how a precedent is set or how that would ultimately affect a ruling

[Hoyt]

4. The lesson is simple, as long as we have conservative judges, the Secretary of State -- like in

Minnesota -- or other agencies should not try to change the rules when they don't have the authority. If he had not, no one would have relied on his deadline. They would have mailed in in time to make the Nov 3rd deadline for receipt of ballots.

Fortunately, I believe Democrats are smart enough to use drop boxes if for some reason they waited until the last minute. I'm hoping GOPers did wait too long.

To extend the lesson, Congress needs to carefully draft laws to avoid challenges as much as possible.

[Klaralven]

5. 31 states require that mailed ballots be received by close of election day

They may make exception for overseas voters and/or US service members.

It's not clear why Minnesota felt it necessary to change without enacting legislation.

[gratuitous]

6. Suggested course of action for Minnesota: Ignore the Eighth Circuit ruling

Proceed with the balloting and the counting as planned. By the time any court gets a chance to weigh in, the results will already be certified by the state.

[Hermit-The-Prog]

7. We need drastic judicial reform to dilute the extremism. Expand the federal judiciary.