Do Legislatures Need Executive Signoff or a Veto to Direct How Elections are Conducted?

[carla_rogers]

I don't see anywhere in the Constitution where it says setting rules for conducting elections has to be done the same way laws are made. Unlike laws, there is no requirement for Governors to sign (or to have vetoed) legislation directing election rules. As a result, GOP legislatures seeking election reform are stuck in dead-end negotiations with Commie Democrat governors. The legislatures need to ignore the Governors and ready their cases for the US Supreme Court and then we have to hope those deadbeats on the Supreme Court rule correctly (i.e., in accordance with what the Constitution says about setting rules for federal elections).

This misunderstanding is holding up election reform in Wisconsin, Michigan, and Pennsylvania. To have elections working right by November 2022, the legislatures need to get on the ball immediately. Time timeline already is running short. For one thing, they need to get cases into the federal courts ahead of the election and then be ready to go back to the courts immediately after the elections, while the legislatures change their schedules, so they will be in session after the election to avoid being out of action in November-December 2020.

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Status of Election Reform In Swing States Stolen in 2020 (link)

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As a practical matter, everything we do to run our country relies on straightening out the election process. From what I can see, progress on fixing the election process is not moving quickly enough. People are aroused to the issue, but generally not qualified to do the necessary. Even the legislatures, which hold all the power for directing elections, do not understand their powers and also do not understand enough about how elections work to define what is needed. In Georgia for example, big victory was declared this week in response to the Georgia Senate passing bills with many provisions for election reform. The problem is when some citizen election integrity people saw the bills, their assessment is these reforms will not solve the problems they have in Georgia elections. They said the provisions address voter fraud but the problem is election fraud.

Why are election reform bills getting passed without the right input from people who know what is needed to fix it? One problem is, I am told, the legislators are not really into election reform. They are hearing from their constituents, so they are going through motions, but their real interest always is maintaining cash flow from lobbyists who fund them, or bribe them.

Even though the Democrats are dumb, they are smart enough to have long ago recognized they could seize all power by setting the rules, so long as our side is constrained by the rules. We need the legislators to get a lot smarter about setting election rules.

The main rule the legislators have wrong is they think they need to pass election rules the same way they pass laws. GOP legislators need to not bend to anti-american governors who are not even wanting fair elections. We the people need to engage and lead election reform.

 

[NvEric]

I don't see anywhere in the Constitution where it says setting rules for conducting elections has to be done the same way laws are made. Unlike laws, there is no requirement for Governors to sign (or to have vetoed) legislation directing election rules. As a result, GOP legislatures seeking election reform are stuck in dead-end negotiations with Commie Democrat governors. The legislatures need to ignore the Governors and ready their cases for the US Supreme Court and then we have to hope those deadbeats on the Supreme Court rule correctly (i.e., in accordance with what the Constitution says about setting rules for federal elections).

This misunderstanding is holding up election reform in Wisconsin, Michigan, and Pennsylvania. To have elections working right by November 2022, the legislatures need to get on the ball immediately. Time timeline already is running short. For one thing, they need to get cases into the federal courts ahead of the election and then be ready to go back to the courts immediately after the elections, while the legislatures change their schedules, so they will be in session after the election to avoid being out of action in November-December 2020.

#####################################################

Status of Election Reform In Swing States Stolen in 2020 (link)

#####################################################

As a practical matter, everything we do to run our country relies on straightening out the election process. From what I can see, progress on fixing the election process is not moving quickly enough. People are aroused to the issue, but generally not qualified to do the necessary. Even the legislatures, which hold all the power for directing elections, do not understand their powers and also do not understand enough about how elections work to define what is needed. In Georgia for example, big victory was declared this week in response to the Georgia Senate passing bills with many provisions for election reform. The problem is when some citizen election integrity people saw the bills, their assessment is these reforms will not solve the problems they have in Georgia elections. They said the provisions address voter fraud but the problem is election fraud.

Why are election reform bills getting passed without the right input from people who know what is needed to fix it? One problem is, I am told, the legislators are not really into election reform. They are hearing from their constituents, so they are going through motions, but their real interest always is maintaining cash flow from lobbyists who fund them, or bribe them.

Even though the Democrats are dumb, they are smart enough to have long ago recognized they could seize all power by setting the rules, so long as our side is constrained by the rules. We need the legislators to get a lot smarter about setting election rules.

The main rule the legislators have wrong is they think they need to pass election rules the same way they pass laws. GOP legislators need to not bend to anti-american governors who are not even wanting fair elections. We the people need to engage and lead election reform.

I think you are able to write election law.
Have you tried?
It would be very helpful to those in the Legislature if they are given a well written election statute / law. This is what the Lobbyists do, present what they want to a lawmaker.
Legislatures are like brokers. They don't want to think to much, just move the item given.
I've written Amendments. They are not hard to do.
There's a Congressional Handbook of Style.
See the GPO for a download.
So, get going and pass it around here for comments.

 

[carla_rogers]

I don't know if I can write the laws but I think it will be a million times easier for whoever writes them if they can unload the burden of having to negotiate with the Commie governors who do not want fair elections

So what is the answer to my question? Do we need to get Governors to sign or overrride their veto to set election rules? I think the answer is no and and I think no one has noticed.

 

[NvEric]

I don't know if I can write the laws but I think it will be a million times easier for whoever writes them if they can unload the burden of having to negotiate with the Commie governors who do not want fair elections

So what is the answer to my question? Do we need to get Governors to sign or overrride their veto to set election rules? I think the answer is no and and I think no one has noticed.

All state laws have the governor sign them as is in the Federal system.
If vetoed, the legislature can override.
I came across a paper from SSRN - papers.ssrn.com ( 3731755.pdf ) which tried to say 'Legislatures' in the constitution included governors and courts, but as to who wrote it, it would be a liberal.

As to writing a law, look at the current one - then change it to what you want it to say. However, I've not read an election law other than HR1 which gave me a headache, which it is - a headache of a bill.
I'll try to investigate.

 

[carla_rogers]

I came across a paper from SSRN - papers.ssrn.com ( 3731755.pdf ) which tried to say 'Legislatures' in the constitution included governors and courts, but as to who wrote it, it would be a liberal.

Liberals act like we cannot read. This matter needs to be tested at the Supreme Court and if these Justices appointed by President Trump are anywhere near true to their word of abiding by the Constitution, we should be able to send the liberals home to cry on this matter.

I tried finding 3731755.pdf at papers.ssrn.com , without success.

CERTIFICATION
I would not take offense if a lawyer could agree with me. I accept there might be no lawyer who would do that. I am expressing a theory as if I know for certain it is correct, even though my legal education and experience are insufficient to justify certitude. To clarify, I have never been trained in the law and my experience in the law has been only incidental to unfortunate circumstances, often as not made worse by encounter with the judicial branch of government. My fees for legal services are set accordingly (free).

 

[highsea]

...I came across a paper from SSRN - papers.ssrn.com ( 3731755.pdf ) which tried to say 'Legislatures' in the constitution included governors and courts, but as to who wrote it, it would be a liberal.

Liberals do love to invent their own definitions...

Legislature=Government? I think not.

Legislatures are one branch of Gov't, certainly not the entirety. That's utterly basic to separation of powers. If the Framers did not intend it that way, they would not have spelled out the 3 branches in separate Articles.

Don't need to be a Constitutional lawyer to see that much...

 

[carla_rogers]

Liberals do love to invent their own definitions...

Legislature=Government? I think not.

Legislatures are one branch of Gov't, certainly not the entirety. That's utterly basic to separation of powers. If the Framers did not intend it that way, they would not have spelled out the 3 branches in separate Articles.

Don't need to be a Constitutional lawyer to see that much...

Well I love what you wrote. Funny thing is, every state acts as if election rules have to be passed the same way laws are passed, with either a signature from a Governor or a veto-override. In cases where the legislature is run by one party and the Governor and other state-wide offices are held by the other party, that forces them to negotiate with adversarial governors who do not want fair elections so much as they want elections that favor their side. This is causing Wisconsin to completely fail in their effort to fix their election rules. They Republicans don't realize they can just set the rules.

In many of the swing states, they have Republican legislatures, reflecting that most of the state is sparsely populated and the seats are mostly taken up by those rural Republican areas while the executive, state-wide offices tend to be filled by Democrats elected by voter blocks of big cities. That means the GOP legislature paired with a Democrat/Commie Governor is very common The Republican should be using this advantage by eliminating the Democrat Governors from the election rules making decisions.

 

[Dip Stick]

I don't see anywhere in the Constitution where it says setting rules for conducting elections has to be done the same way laws are made. Unlike laws, there is no requirement for Governors to sign (or to have vetoed) legislation directing election rules. As a result, GOP legislatures seeking election reform are stuck in dead-end negotiations with Commie Democrat governors. The legislatures need to ignore the Governors and ready their cases for the US Supreme Court and then we have to hope those deadbeats on the Supreme Court rule correctly (i.e., in accordance with what the Constitution says about setting rules for federal elections).

This misunderstanding is holding up election reform in Wisconsin, Michigan, and Pennsylvania. To have elections working right by November 2022, the legislatures need to get on the ball immediately. Time timeline already is running short. For one thing, they need to get cases into the federal courts ahead of the election and then be ready to go back to the courts immediately after the elections, while the legislatures change their schedules, so they will be in session after the election to avoid being out of action in November-December 2020.

#####################################################

Status of Election Reform In Swing States Stolen in 2020 (link)

#####################################################

As a practical matter, everything we do to run our country relies on straightening out the election process. From what I can see, progress on fixing the election process is not moving quickly enough. People are aroused to the issue, but generally not qualified to do the necessary. Even the legislatures, which hold all the power for directing elections, do not understand their powers and also do not understand enough about how elections work to define what is needed. In Georgia for example, big victory was declared this week in response to the Georgia Senate passing bills with many provisions for election reform. The problem is when some citizen election integrity people saw the bills, their assessment is these reforms will not solve the problems they have in Georgia elections. They said the provisions address voter fraud but the problem is election fraud.

Why are election reform bills getting passed without the right input from people who know what is needed to fix it? One problem is, I am told, the legislators are not really into election reform. They are hearing from their constituents, so they are going through motions, but their real interest always is maintaining cash flow from lobbyists who fund them, or bribe them.

Even though the Democrats are dumb, they are smart enough to have long ago recognized they could seize all power by setting the rules, so long as our side is constrained by the rules. We need the legislators to get a lot smarter about setting election rules.

The main rule the legislators have wrong is they think they need to pass election rules the same way they pass laws. GOP legislators need to not bend to anti-american governors who are not even wanting fair elections. We the people need to engage and lead election reform.

Sounds to me that you are pretty well versed in many political areas! Any thoughts of Maybe throwing your Hat in the Ring in the Near Future?

 

[highsea]

Well I love what you wrote. Funny thing is, every state acts as if election rules have to be passed the same way laws are passed, with either a signature from a Governor or a veto-override.

I'm no lawyer but AFAIK, this is correct. Election laws are no different than any other law wrt how they are put into place.

Basically, if it's a "law",, it means it's binding and it needs the Governor's signature or a legislative override. If it's a "resolution" it's non-binding and needs no signature.

In theory, a legislature could pass a law that defines election law as a "special class" of law that does not require executive buy-in. I don't know any Governor that would sign such a law that takes away his own power?

 

[Dip Stick]

I'm no lawyer but AFAIK, this is correct. Election laws are no different than any other law wrt how they are put into place.

Basically, if it's a "law",, it means it's binding and it needs the Governor's signature or a legislative override. If it's a "resolution" it's non-binding and needs no signature.

In theory, a legislature could pass a law that defines election law as a "special class" of law that does not require executive buy-in. I don't know any Governor that would sign such a law that takes away his own power?

I'll take your word for it! Thanks

 

[carla_rogers]

I'm no lawyer but AFAIK, this is correct. Election laws are no different than any other law wrt how they are put into place.

Basically, if it's a "law",, it means it's binding and it needs the Governor's signature or a legislative override. If it's a "resolution" it's non-binding and needs no signature.

In theory, a legislature could pass a law that defines election law as a "special class" of law that does not require executive buy-in. I don't know any Governor that would sign such a law that takes away his own power?

I am not a lawyer either so you have more authority than I do!

What I am saying is the Governor has no authority in this matter. Here is what the Constitution says:
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."

That is for putting people onto the Electoral college. No mention of Governors. This is not the language used for defining how laws are created. That language is in each State's Constitution. The states do not get to change the Federal rule that says the legislature directs elections. So Governors are supposed to butt out of the process and the legislatures have no obligation to consult with them in setting election laws.

That is my story and i am sticking to it until someone produces authoritative documentation indicating otherwise.

 

[highsea]

I am not a lawyer either so you have more authority than I do!

What I am saying is the Governor has no authority in this matter. Here is what the Constitution says:
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."

That is for putting people onto the Electoral college. No mention of Governors. This is not the language used for defining how laws are created. That language is in each State's Constitution. The states do not get to change the Federal rule that says the legislature directs elections. So Governors are supposed to butt out of the process and the legislatures have no obligation to consult with them in setting election laws.

That is my story and i am sticking to it until someone produces authoritative documentation indicating otherwise.

So my interpretation, for what it's worth, is that the plenary powers granted to the States in the election clause is there to keep the Federal Gov't out of elections. It's not meant to bind the States, but I think Legislatures would have a hard time making the case in court (to exclude the executive branch in the law making process) for this reason:

State Constitutions define how laws are passed, but there is a requirement that State Constitutions must be "republican in form" and not "repugnant" to the US Constitution. This requirement is written into the enabling acts before a territory can be admitted as a State.

"Republican in form" is taken to mean the 3 branches of gov't that we have come to expect, and the process of legislatures writing laws, Governor's agreeing, and courts reviewing.

So Governors have no say in creating the legislation, but they still get the executive veto that is part of our republican system.

I could be wrong, and I am sure there is variation between the States, but I do not know of any State where election laws are not made just like every other law.

 

[carla_rogers]

So my interpretation, for what it's worth, is that the plenary powers granted to the States in the election clause is there to keep the Federal Gov't out of elections. It's not meant to bind the States, but I think Legislatures would have a hard time making the case in court (to exclude the executive branch in the law making process) for this reason:

State Constitutions define how laws are passed, but there is a requirement that State Constitutions must be "republican in form" and not "repugnant" to the US Constitution. This requirement is written into the enabling acts before a territory can be admitted as a State.

"Republican in form" is taken to mean the 3 branches of gov't that we have come to expect, and the process of legislatures writing laws, Governor's agreeing, and courts reviewing.

So Governors have no say in creating the legislation, but they still get the executive veto that is part of our republican system.

I could be wrong, and I am sure there is variation between the States, but I do not know of any State where election laws are not made just like every other law.

Thank you. I very much appreciate and respect your opinion on this matter. At the risk of appearing histrionic, I want to tell you, it would be hard to overstate my gratitude in finding what seems to my lay-eye a competent response to the case I am offering. Competent response to honest inquiry is hard to come by during this Age of Censorship in America.

Here is my proposed rebuttal. The Constitution in many places refers to laws enacted by states, creating a distinction between law and the directives of the legislature.

Question: is there anything in the Federalist papers or precedent that would be an authority on this?

 

[highsea]

...Here is my proposed rebuttal. The Constitution in many places refers to laws enacted by states, creating a distinction between law and the directives of the legislature.

Question: is there anything in the Federalist papers or precedent that would be an authority on this?

Your question is not a stupid one. When the SCOTUS has to address Constitutional questions, or interpret the meaning of the text, they usually turn to the Federalist Papers and Blackstone.

I don't know which clauses you refer to as far as State laws, but I would say this- the Constitution is a compact between the States. It's not a coercive document, and it does not place restrictions on the States outside Article 4 Section 10.

The Federal Government is not a party to the agreement. It is the product. The States created the Federal government, and the States can uncreate it if they want to. So I do not see why they would have placed restrictions on themselves?

Even the Bill of Rights was originally only meant to restrict the Congress. For example, there were several States that had Official State religions. That was considered a State matter.. Incorporating the Bill of Rights against the States took a couple hundred years to get all the way through, and the 10th is still treated as a second class amendment by the courts.

We have gone a long way since 1789, and the Constitution doesn't much resemble what we really have today as far as government goes. There is no mention of Article 2 courts in the Constitution for example, but most of the rules we live by are actually administrative law- created by the various executive branch agencies, rather than the legislatures.

In fact, it would not surprise me one bit if much of our election law is actually written in the administrative code. It was sure treated that way!

I'm not well read on the Federalist Papers, I tend to read the parts that apply to the subject I am researching, but I have never read through them for fun. The language is a little tiresome to my modern version of the english language.

But in the conceptual sense, I think the answer to your question is no. The Federal Gov't does not have authority to insert itself into State laws, Bill of Rights and Article 4 SS10 notwithstanding, and as long as such laws are within the bounds of the "republican form of gov't" that is guaranteed by the Constitution.

 

[carla_rogers]

Your question is not a stupid one.

Thank you, everyone likes to avoid coming across as stupid. When you find it appropriate to inform me when I ask a stupid question in the future, this comment will make accepting your suggestion more easily and without feeling insulted. That matters, so again, thank you.

When the SCOTUS has to address Constitutional questions, or interpret the meaning of the text, they usually turn to the Federalist Papers and Blackstone.

Blackstone? I never heard of Blackstone. Did a search of "Supreme Court Blackstone". Tried a few links from there and found Commentaries on the Laws of England, by Sir William Blackstone.

I don't know which clauses you refer to as far as State laws,

Using text search, I found twenty one (21) occurrences of the word law on a web page containing the text of the United States Constitution including its amendments. The moment I saw one of the occurrences, I seized upon it as if the word is the exclusive focus of several sections or amendments, thereby giving the word law the deepest, most specific meaning imaginable, which I then, ad rationem meae, assumed would support my claims of its meaning, which I formed ad hoc, with the aim for a plausible meaning congruent with my hope that election rules can be set by legislatures using directives, not laws, to support my desire that election rules can be set by legislatures without consideration of Governors' views.

I would say this- the Constitution is a compact between the States. It's not a coercive document, and it does not place restrictions on the States outside Article 4 Section 10.

The Federal Government is not a party to the agreement. It is the product. The States created the Federal government, and the States can uncreate it if they want to.

This is one of the most interesting statements I have read regarding the Constitution. It probably would have baffled me completely, except for the coincidence that a week ago, I happened to hear something about how the Constitution was viewed as a contract among the states, something like what you are pointing out here.

So I do not see why they would have placed restrictions on themselves?

I don't understand this... continuing to read, not discouraged.

Even the Bill of Rights was originally only meant to restrict the Congress. For example, there were several States that had Official State religions. That was considered a State matter.. Incorporating the Bill of Rights against the States took a couple hundred years to get all the way through, and the 10th is still treated as a second class amendment by the courts.

We have gone a long way since 1789,

I was thinking this might come into play, things that have come up since 1789.... I doubt I am familiar with all of it, so this might be one of those spots where there is something to know that I cannot even understand when it is spelled out

...and the Constitution doesn't much resemble what we really have today as far as government goes.

EXACTLY! That is thanks to all those activist judges whose rulings all should be reversed in one order. I heard Justice Scalia was working on that before.... he became unavailable for further work.

do you know anything about those rumors....? My alien friends (my imagination or sources I cannot evaluate) tell me whatever happened to Justice Scalia is connected to improper pressures on Justices today, even influencing decisions connected with the 2020 election... so i will say this. if it ever comes out for sure there is truth to that, then my claim on how election rules are set is as valid as what we have been getting from the courts lately, except for some good dissents. There is potential for a grievance developing in my heart. I thank you for your indulgence on those words not relevant to the question at hand.

Ok, so, as I was starting to explain, I have known for a long time the distortions created by the activist judges have created things that are considered laws and there is no chance I could ever understand them since their authority derives from not law. If you are an activist judge or professional legal something of the activists kind, I mean no disrespect. I apologize for babbling.

In fact, it would not surprise me one bit if much of our election law is actually written in the administrative code.

There can be laws in administrative code? I will be looking for administrative code in a moment.

It was sure treated that way!

I'm not well read on the Federalist Papers, I tend to read the parts that apply to the subject I am researching, but I have never read through them for fun.

I know they are great and important, but I have found them kinda dry.

The language is a little tiresome to my modern version of the english language.

Are you telling me I am right about law vs. directives for setting election rules?
Nevermind, I forgot.... administrative code.....thank you.

But in the conceptual sense, I think the answer to your question is no.

I knew you were going to say that. So now i am looking to understand why, hoping my likely resistance to what you are telling me will not be argumentative.

The Federal Gov't does not have authority to insert itself into State laws, Bill of Rights and Article 4 SS10 notwithstanding, and as long as such laws are within the bounds of the "republican form of gov't" that is guaranteed by the Constitution.

Does that mean that each state can determine for itself how the legislature sets election rules and there is no restriction on the role of other branches?

Is the whole idea that election rules are set by legislatures not the other authorities a false concept?

The remainder of this note is extracted from Thomas's dissent in the recent denial to hear an election case from Pennsylvania. Evidently, the case was declined because all but three justices determined the case has become moot, which I call BS because it became supposedly moot while the court sat on it.

The Constitution gives to each state legislature authority to determine the “Manner” of federal elections. Yet both before and after the 2020 election, nonlegislative officials in various States took it upon themselves to set the rules instead. As a result, we received an unusually high number of petitions and emergency applications contesting those changes. The petitions here present a clear example. The Pennsylvania Legisla- ture established an unambiguous deadline for receiving mail-in ballots: 8 p.m. on election day. Dissatisfied, the Pennsylvania Supreme Court extended that deadline by three days.

Like most States, Pennsylvania has a long history of lim- iting the use of mail-in ballots. But in October 2019, the Pennsylvania Legislature overhauled its election laws. Rel- evant here, it gave all voters the option of voting by mail, and it extended the deadline for officials to receive mail bal- lots by several days to 8 p.m. on election day. 2019 Pa. Leg. Serv. Act 2019–77. Then, in response to COVID–19, the legislature again amended the law but decided not to ex- tend the receipt deadline further. See 2020 Pa. Leg. Serv. Act 2020–12.

Displeased with that decision, the Pennsylvania Demo- cratic Party sued in state court. It argued that the court could extend the deadline through a vague clause in the State Constitution providing, in relevant part, that “[e]lec- tions shall be free and equal.” Art. I, §5. The Pennsylvania Supreme Court agreed. On September 17, it held that this “free and equal” provision enabled the court to extend the deadline three days to accommodate concerns about postal delays.

Petitioners promptly moved for emergency relief, filing an application for a stay on September 28. That application easily met our criteria for granting relief. See Hol- lingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam).

Petitioners further established a fair prospect of certiorari and reversal. For more than a century, this Court has recognized that the Constitution “operat[es] as a limitation upon the State in respect of any attempt to circumscribe the legislative power” to regulate federal elections. McPherson v. Blacker, 146 U. S. 1, 25 (1892). Because the Federal Constitution, not state constitutions, gives state legislatures authority to regulate fed- eral elections, petitioners presented a strong argument that the Pennsylvania Supreme Court’s decision violated the Constitution by overriding “the clearly expressed intent of the legislature.” Bush v. Gore, 531 U. S. 98, 120 (2000) (Rehnquist, C. J., concurring).


Despite petitioners’ strong showing that they were entitled to relief, we divided 4–4 and thus failed to act. Scarnati v. Boockvar, ante, p. ___.

Four days later, petitioners filed the first of these peti- tions and moved to expedite consideration so the Court could decide the merits before election day. But by that time, election day was just over a week away. So we denied the motion to expedite even though the question was of “na- tional importance” and there was a “strong likelihood that the State Supreme Court decision violates the Federal Con- stitution.” Republican Party of Pa. v. Boockvar, ante, at 3 (statement of ALITO, J.).


overflow to next post

 

[carla_rogers]

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The rest of this explains why the case is not moot, contrary to the opinions of six justices.. This is not relevant to the way election rules are set. I included it because it shows the the reason the case was declined is due to it being seen as moot, not on the issues of requirements of how election rules are set.

II

Now that the petitions are before us under the normal briefing schedule, I see no reason to avoid them. Indeed, the day after we denied petitioner’s motion to expedite in No. 20–542, the case became even more worthy of review.

At first blush, it may seem reasonable to address this question when it next arises. After all, the 2020 election is now over, and the Pennsylvania Supreme Court’s decision was not outcome determinative for any federal election.

But whatever force that argument has in other contexts, it fails in the context of elections. For at least three reasons, the Judiciary is ill equipped to address problems—includ- ing those caused by improper rule changes—through post- election litigation.

First, postelection litigation is truncated by firm time- lines. That is especially true for Presidential elections, which are governed by the Electoral Count Act, passed in 1887. That Act sets federal elections for the day after the first Monday in November—last year, November 3. See 3 U. S. C. §1. Under a statutory safe-harbor provision, a State has about five weeks to address all disputes and make a “final determination” of electors if it wants that decision to “be conclusive.” §5. Last year’s deadline fell on Decem- ber 8, and the Electoral College voted just six days later. §7. Five to six weeks for judicial testing is difficult enough for straightforward cases. For factually complex cases, compressing discovery, testimony, and appeals into this timeline is virtually impossible.

Second, this timeframe imposes especially daunting con- straints when combined with the expanded use of mail-in ballots. Voting by mail was traditionally limited to voters who had defined, well-documented reasons to be absent. See, e.g., Moreton, Note, Voting by Mail, 58 S. Cal. L. Rev. 1261, 1261–1264 (1985). In recent years, however, many States have become more permissive, a trend greatly accel- erated by COVID–19. In Pennsylvania, for example, mail-in ballots composed just 4% of ballots cast in 2018. But the legislature dramatically expanded the process in 2019, thereby increasing the mail-in ballots cast in 2020 to 38%.

This expansion impedes postelection judicial review be- cause litigation about mail-in ballots is substantially more complicated. For one thing, as election administrators have long agreed, the risk of fraud is “vastly more prevalent” for mail-in ballots. Liptak, Error and Fraud at Issue as Absen- tee Voting Rises, N. Y. Times, Oct. 6, 2012. The reason is simple: “[A]bsentee voting replaces the oversight that exists at polling places with something akin to an honor system.” Ibid. Heather Gerken, now dean of Yale Law School, ex- plained in the same New York Times article that absentee voting allows for “simpler and more effective alternatives to commit fraud” on a larger scale, such as stealing absentee ballots or stuffing a ballot box, which explains “ ‘why all the evidence of stolen elections involves absentee ballots and the like.’” Ibid. The same article states that “[v]oting by mail is now common enough and problematic enough that election experts say there have been multiple elections in which no one can say with confidence which candidate was the deserved winner.” Ibid.

Pennsylvania knows this well. Even before widespread absentee voting, a federal court had reversed the result of a state senate election in Philadelphia after finding that the supposedly prevailing candidate “conducted an illegal ab- sentee ballot conspiracy and that the [election officials] cov- ertly facilitated the scheme with the specific purpose of en- suring a victory for” that candidate. Marks v. Stinson, 1994 WL 146113, *29, *36 (ED Pa., Apr. 26, 1994). This problem is not unique to Pennsylvania, and it has not gone away. Two years ago, a congressional election in North Carolina was thrown out in the face of evidence of tampering with absentee ballots. Because fraud is more prevalent with mail-in ballots, increased use of those ballots raises the likelihood that courts will be asked to adjudicate questions

022221zor_2cp3_25-end.pdf



that go to the heart of election confidence.2
Fraud is not the only aspect of mail-in ballots that com-

plicates postelection judicial review. Also relevant are the corresponding safeguards that States put in place to ame- liorate that heightened risk of fraud. To balance the “strong interest” of ballot access with the “‘compelling interest in preserving the integrity of [the] election process,’” Purcell, 549 U. S., at 4, many States have expanded mail-in ballots but sought to deter fraud—and create mechanisms to detect it—by requiring voters to return ballots in signed, dated se- crecy envelopes. Some States also require witness or notary signatures. Tallying these ballots tends to be more labor intensive, involves a high degree of subjective judgment (e.g., verifying signatures), and typically leads to a far higher rate of ballot challenges and rejections. Litigation over these ballots can require substantial discovery and la- bor-intensive fact review. In some cases, it might require sifting through hundreds of thousands or millions of ballots. It also may require subjective judgment calls about the va- lidity of thousands of ballots. Judicial review in this situa- tion is difficult enough even when the rules are clear and the number of challenged ballots small. Adding a dispute about who can set or change the rules greatly exacerbates the problem.

Third, and perhaps most significant, postelection litiga- tion sometimes forces courts to make policy decisions that they have no business making. For example, when an offi- cial has improperly changed the rules, but voters have al- ready relied on that change, courts must choose between
potentially disenfranchising a subset of voters and enforc- ing the election provisions—such as receipt deadlines—that the legislature believes are necessary for election integrity. That occurred last year. After a court wrongly altered South Carolina’s witness requirement for absentee ballots, this Court largely reinstated the original rule, but declined to apply it to ballots already cast. Andino v. Middleton, ante, p. ___. Settling rules well in advance of an election rather than relying on postelection litigation ensures that courts are not put in that untenable position.

In short, the postelection system of judicial review is at most suitable for garden-variety disputes. It generally can- not restore the state of affairs before an election. And it is often incapable of testing allegations of systemic maladmin- istration, voter suppression, or fraud that go to the heart of public confidence in election results. That is obviously prob- lematic for allegations backed by substantial evidence. But the same is true where allegations are incorrect. After all, “[c]onfidence in the integrity of our electoral process is es- sential to the functioning of our participatory democracy.” Purcell, supra, at 4; cf. McCutcheon v. Federal Election Comm’n, 572 U. S. 185, 191, 206–207 (2014) (plurality opin- ion) (identifying a compelling interest in rooting out the mere “appearance of corruption” in the political process). An incorrect allegation, left to fester without a robust mech- anism to test and disprove it, “drives honest citizens out of the democratic process and breeds distrust of our govern- ment.” Purcell, supra, at 4.

III

Because the judicial system is not well suited to address these kinds of questions in the short time period available immediately after an election, we ought to use available cases outside that truncated context to address these ad- mittedly important questions. Here, we have the opportunity to do so almost two years before the next federal elec- tion cycle. Our refusal to do so by hearing these cases is befuddling. There is a clear split on an issue of such great importance that both sides previously asked us to grant cer- tiorari. And there is no dispute that the claim is sufficiently meritorious to warrant review. By voting to grant emer- gency relief in October, four Justices made clear that they think petitioners are likely to prevail. Despite pressing for review in October, respondents now ask us not to grant cer- tiorari because they think the cases are moot. That argu- ment fails.

The issue presented is capable of repetition, yet evades review. This exception to mootness, which the Court rou- tinely invokes in election cases, “applies where (1) the chal- lenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Davis v. Federal Election Comm’n, 554 U. S. 724, 735 (2008) (internal quotation marks omitted) (resolving a dispute from the 2006 election); see also Anderson v. Celebrezze, 460 U. S. 780, 784, and n. 3 (1983) (resolving a dispute from the 1980 election). Here, the Pennsylvania Supreme Court issued its decision about six weeks before the election, leaving little time for review in this Court. And there is a reasonable expectation that these petitioners—the State Republican Party and leg- islators—will again confront nonlegislative officials alter- ing election rules. In fact, various petitions claim that no fewer than four other decisions of the Pennsylvania Su- preme Court implicate the same issue.3 Future cases will arise as lower state courts apply those precedents to justify intervening in elections and changing the rules.

 

[highsea]

Blackstone? I never heard of Blackstone. Did a search of "Supreme Court Blackstone". Tried a few links from there and found Commentaries on the Laws of England, by Sir William Blackstone.

Yep. that's Blackstone. It's the go-to for common law.

This is one of the most interesting statements I have read regarding the Constitution. It probably would have baffled me completely, except for the coincidence that a week ago, I happened to hear something about how the Constitution was viewed as a contract among the states, something like what you are pointing out here.

So I refer to it as a "compact", because I think of contract as "offer and acceptance".

A compact is more of a mutual agreement- "we all agree to do this" but there is no exchange or compensation. A trivial distinction.

The Constitution that came out of Philadelphia in 1787 had no teeth. It took two years for the States to ratify it before it became the law of the land. This illustrates the point that the US Constitution is an agreement between the States.

I don't understand this... continuing to read, not discouraged.

I was just saying that the Framers were not likely to create a Federal Gov't that had the power to dictate to the States how the States wrote their own laws (with the caveats previously mentioned).

EXACTLY! That is thanks to all those activist judges whose rulings all should be reversed in one order.

There can be laws in administrative code? I will be looking for administrative code in a moment.

These two kind of go together.

Activist judges are certainly part of the problem. A much larger part is the Congress. It goes back to Roosevelt and the Administrative Procedures Act.. This gutted the non-delegation clause in the Constitution and it permitted the unlimited expansion of the administrative state.

So now, the Congress passes laws, but they are vague and broad in scope and don't really tell you what you are supposed to do. What they really do is direct and enable whichever agency to implement some goal of Congress by writing the intent into the Administrative Code.

This is known as the CFR or "Code of Federal Regulations". Every State has their own administratiove code too, in Washington it's called the RCW's. Revised Code of Washington.

The CFR It's massive, grows like 100K pages every year. This is the law we have to live by, they just aren't called "laws", they're called "regulations".

Break the wrong one, you'll still go to jail...

Does that mean that each state can determine for itself how the legislature sets election rules and there is no restriction on the role of other branches?

Each State will pass laws according to their Constitutions. With election law, it's probably a mix of statute (law) and regulation (code). So to the extent there is election code in a State, the executive branch has enforcement authority. The Legislature has the authority to write the laws and oversee their execution.

The Judicial has the task of making sure the laws and codes do not violate the Constitution. Losses in administrative courts can be appealed to courts of law. IOW a penalty from a magistrate can be appealed to a judge.

Take all this as my opinion- I am not a lawyer or judge, I had one year of business law in college and that was 40 years ago!

I am just a lowly member of the merchant class, a machinist who owns a little shop in Oregon.

 

[carla_rogers]

I remember Trump's plan to ask whether people are citizens on the Census was blown out by Roberts citing failure to comply with the administration requirements

more to follow.

 

[highsea]

I remember Trump's plan to ask whether people are citizens on the Census was blown out by Roberts citing failure to comply with the administration requirements

more to follow.

Yeah. The APA sets out the process. First they have to publish a "notice of proposed rulemaking". They say what they are planning to do. Then there is a comment period where they are supposed to take comments and suggestions from the public. Then they publish a draft regulation, and have another comment period. Then they publish the final rule and it's placed into the CFR.

Since there were regulations created surrounding the census, the APA has to be followed to change them.

 

[carla_rogers]

Justice Thomas wrote:

Petitioners further established a fair prospect of certiorari and reversal. For more than a century, this Court has recognized that the Constitution “operat[es] as a limitation upon the State in respect of any attempt to circumscribe the legislative power” to regulate federal elections. McPherson v. Blacker, 146 U. S. 1, 25 (1892). Because the Federal Constitution, not state constitutions, gives state legislatures authority to regulate fed- eral elections, petitioners presented a strong argument that the Pennsylvania Supreme Court’s decision violated the Constitution by overriding “the clearly expressed intent of the legislature.” Bush v. Gore, 531 U. S. 98, 120 (2000) (Rehnquist, C. J., concurring).

Petitioners further established a fair prospect of certiorari and reversal.
Petitioners further established a fair prospect of certiorari and reversal.
Petitioners further established a fair prospect of certiorari and reversal.

The full context of this passage is included above.

Neither of us as found a record speaking to the specific question of whether the legislature's direction of election rules is distinct from the legislature's role in making laws.

Therefore:

The question of whether a legislature's decision is definitive in setting election rules without a role for executive signature as answerable by the legislature. That means the legislature can answer the question as "yes" and ignore governor when setting election rules.