Tuesday, October 27, 2020

Supreme Court, on 5-3 Party Line Vote, Won’t Restore Wisconsin Ballot Deadline Extension; Justices Fight in Footnotes over Pennsylvania State Court Issue | Election Law Blog

Supreme Court, on 5-3 Party Line Vote, Won’t Restore Wisconsin Ballot Deadline Extension; Justices Fight in Footnotes over Pennsylvania State Court Issue | Election Law Blog
By Rick Hasen (UCLA)

The result in this case is not a surprise; in every case that Court has considered this election cycle where a federal court has extended a voting rule over state objection, the state has won (often, but not always, along a party line vote). Indeed, I was surprised that Wisconsin plaintiffs decided to take this case up. Doing so risked making more bad law, which is what this case just did.

Perhaps of greatest importance in this case, however, is not the (unsurprising) holding or party-line split but instead the fight over the issue in the Pennsylvania case: what happens when it is a state court, not a federal court, extending voting rights during the pandemic. Three of the Justices weighed in on this. Justice Kavanaugh dropped an extensive footnote, citing Bush v. Gore (!), arguing that state courts too are limited in extending voting rights even during a pandemic and even in reliance on a state constitution if a state legislature objects...

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