Opinion | The Supreme Court Should Not Muck Around in State Election Laws - The New York Times

Opinion | The Supreme Court Should Not Muck Around in State Election Laws - The New York Times

Recent Case: _Pennsylvania Democratic Party v. Boockvar_Harvard Law Review | (COVID-19 and postal service cuts have presented historic challenges to our electoral systems and sparked widespread fear of voter disenfranchisement. Recently, in Pennsylvania Democratic Party v. Boockvar, the Pennsylvania Supreme Court extended the November due date for mail-in ballots by three days and approved several changes to electoral processes during the pandemic. Because Pennsylvania is...)

Recent Case: _Pennsylvania Democratic Party v. Boockvar_Harvard Law Review | (COVID-19 and postal service cuts have presented historic challenges to our electoral systems and sparked widespread fear of voter disenfranchisement.  Recently, in Pennsylvania Democratic Party v. Boockvar, the Pennsylvania Supreme Court extended the November due date for mail-in ballots by three days and approved several changes to electoral processes during the pandemic.  Because Pennsylvania is...)

OCTOBER 4, 2020

As Supreme Court Weighs Election Cases, a New Life for Bush v. Gore - The New York Times

As Supreme Court Weighs Election Cases, a New Life for Bush v. Gore - The New York Times

by Adam Liptak

WASHINGTON — The Supreme Court’s decision in Bush v. Gore 20 years ago was supposed to work like the tape recorder in “Mission: Impossible.” It was meant to produce a president and then self-destruct.

“Our consideration is limited to the present circumstances,” the majority wrote. In other words: The decision was a ticket for one ride only, handing the presidency to George W. Bush and then disappearing. In the two decades that followed, only a single Supreme Court opinion ever cited the case, and that was a passing reference in a footnote to a 2013 dissent from Justice Clarence Thomas.

On Monday, Justice Brett M. Kavanaugh breathed new life into the decision, which on December 12, 2000 shut down a recount in Florida ordered by the state Supreme Court. He said the decision could play a role in deciding an election dispute now before the court and other potential challenges to election rulings from state courts.

Then, in a long footnote, Justice Kavanaugh addressed a different question, one not before the court. Citing Bush v. Gore, he said federal courts do have a role to play in supervising state courts in some election disputes. Ordinarily state Supreme Courts have the last word on issues of state law.

“As Chief Justice Rehnquist persuasively explained in Bush v. Gore,” Justice Kavanaugh wrote, referring to a concurring opinion in that case, “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”

KEEP READING

Supreme Court in Unsigned Order on 5-3 Vote Reinstates Alabama Ban on Curbside Voting; Justice Sotomayor Writes Dissent for Three Liberal Justices; What It Means | Election Law Blog

Order and dissent: Merrill, Secretary of State v. People First of Alabama  

Breaking: Supreme Court in Unsigned Order on 5-3 Vote Reinstates Alabama Ban on Curbside Voting; Justice Sotomayor Writes Dissent for Three Liberal Justices; What It Means | Election Law Blog

By Rick Hasen (UC Irvine) October 21, 2020)

I am not at all surprised by this ruling, even though I agree 100% with Justice Sotomayor’s disssent. If you look at the two main statements of the Court in these emergency covid election cases, from Wisconsin and South Carolina, it is clear that the conservative Justices believe that it is up to states, rather than federal courts, to decide how to best balance health concerns related to voting during the pandemic with burdens on voting rights. These Justices also seem to have adopted a strong view of the Purcell Principle against changes in voting rules by federal courts close to the election. (Chief Justice Roberts, who was in the majority in both of those cases and the Pennsylvania state case seems to believe in great deference to states—even state courts—in deciding how to balance these health and safety concerns.)

This would seem to bode poorly for the attempts by Democrats and voting rights groups petitioning the Supreme Court to reinstate the extension of voting deadlines in Wisconsin, which a district court had granted and the 7th Circuit had reversed, citing the Supreme Court precedents. Any more federally ordered voting changes that make their way to the Supreme Court before the election face a steep uphill climb.

The liberals, as expressed in the Wisconsin dissent by Justice Ginsburg and the Sotomayor dissent today would, as I believe they should, put a thumb on the scale favoring voting rights during the pandemic. It is quite clear that the right to vote is too weakly protected in the U.S. even during the pandemic.

Sotomayor concludes:

The District Court’s modest injunction is a reasonable accommodation, given the short time before the election. It does not require all counties to adopt curbside voting; it simply gives prepared counties the option to do so. This remedy respects both the right of voters with disabilities to vote safely and the State’s interest in orderly elections. The District Court’s compromise likewise does not risk creating “voter confusion and consequent incentive to remain away from the polls.” Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam).

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...

Supreme Court Tie Gives Pennsylvania More Time to Tally Some Votes - The New York Times

A 4-to-4 tie let stand a ruling from Pennsylvania’s highest court that had extended the deadline for counting some mailed ballots by three days, citing the pandemic and postal delays.  As is common practice no explanation was offered.

Supreme Court Tie Gives Pennsylvania More Time to Tally Some Votes - The New York Times

By Adam Liptak 

5-3 Scotus bars Wisconsin mail ballots postmarked by but received after election day

The Supreme Court by 5-3 vote has refused to vacate a stay of a District Judge's order that mailed ballots postmarked before but received after election day be counted.  Neil Gorsuch and Brett Kavanaugh are derisively dismissive of Justice Kagan's concerns about maximizing the vote during the health emergency. 

Remarkably, as I discussed in April, the Supreme Court majority in the Wisconsin primary had itself entered a sua sponte order that ballots postmarked by election day be counted. 

- GWC

 DNC v. Wisconsin Legislature | Powered by Box

Elena Kagan, dissenting: 

Wisconsin is one of the hottest of all COVID hotspots in the Nation.  So rather than vote in person, many Wisconsinites will  again  choose  to  vote  by  mail.    State  election  officials  report that 1.7 million people—about 50 percent of Wiscon-sin’s voters—have already asked for mail ballots.  And more are expected to do so, because state law gives voters until October 29, five days before Election Day, to make that re-quest.        To ensure that these mail ballots are counted, the district court  ordered  in  September  the  same  relief  afforded  in  April:  a  six-day  extension  of  the  receipt  deadline  for  mail  ballots postmarked by Election Day.  The court supported that order with specific facts and figures about how COVID would affect the electoral process in Wisconsin.  See Democratic National Committee v. Bostelmann, 2020  WL  5627186 (WD  Wis.,  Sept.  21,  2020).   

The  district court  found  that  the  surge  in  requests  for  mail  ballots  would  overwhelm  state officials in the weeks leading up to the October 29 ballot-application deadline.  And it discovered unusual delays in the United States Postal Service’s delivery of mail in the State.  The combination of those factors meant, as a high-ranking  elections  official  testified,  that  a  typical  ballot  would take a full two weeks “to make its way through the mail from a clerk’s office to a voter and back again”—even when  the  voter  instantly  turns  the  ballot  around. 

Based on the April election experience, the court determined that many voters would not even receive mail ballots by Election Day, making it impossible to vote in that way.  And as many as 100,000 citizens  would  not  have  their  votes  counted—even  though  timely requested and postmarked—without the six-day ex-tension.  (To put that number in perspective, a grand total of 284 Wisconsin mail ballots were not counted in the 2016 election.1)    In  the  court’s  view,  the  discarding  of  so  many  properly  cast  ballots  would  severely  burden  the  constitutional right to vote.  The fit remedy was to create a six-day grace period, to allow those ballots a little extra time to ar-rive in the face of unprecedented administrative and delivery delays.     But  a  court  of  appeals  halted  the  district  court’s  order,  and today this Court leaves that stay in place.  

I respectfully dissent because  the  Court’s  decision  will  disenfranchise  large numbers of responsible voters in the midst of hazardous pandemic conditions.

Adam Liptak NYT Deep Dive into the Shadow Docket and the Purcell Principle: “Missing From Supreme Court’s Election Cases: Reasons for Its Rulings” | Election Law Blog

The `Purcell Principle':

“Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or non-issuance of an injunction, considerations specific to election cases and its own institutional procedures,” the unsigned opinion said. “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Purcell v. Gonzalez, per curiam, 549 U.S. 1 (2006)

Adam Liptak NYT Deep Dive into the Shadow Docket and the Purcell Principle: “Missing From Supreme Court’s Election Cases: Reasons for Its Rulings” | Election Law Blog

New Sidebar NYT column from Adam Liptak:

At least nine times since April, the Supreme Court has issued rulings in election disputes. Or perhaps “rulings” is too generous a word for those unsigned orders, which addressed matters as consequential as absentee voting during the pandemic in Alabama, South Carolina and Texas, and the potential disenfranchisement of hundreds of thousands of people with felony convictions in Florida.

Most of the orders, issued on what scholars call the court’s “shadow docket,” did not bother to supply even a whisper of reasoning.

“This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” said Nicholas Stephanopoulos, a law professor at Harvard. “If courts don’t have to defend their decisions, then they’re just acts of will, of power. They’re not even pretending to be legal decisions.”…

If the court is going to treat emergency applications with something like equal care, it might consider explaining what it is doing. Explaining, Judge Frank H. Easterbrook wrote in 2000, is what distinguishes judges from politicians.

“The political branches of government claim legitimacy by election, judges by reason,” he wrote. “Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat, which requires compelling justification.” Terse rulings on emergency applications are not new. But “the shadow docket has truly exploded in the last few years,” Stephen I. Vladeck, a law professor at the University of Texas, wrote on Scotusblog last week.

The Trump administration has been a major contributor to the trend, Professor Vladeck wrote, having filed 36 emergency applications in its first three and a half years. By contrast, the administrations of Presidents George W. Bush and Barack Obama filed just eight such applications over 16 years.

More recently, emergency applications in voting cases have spiked. Lower courts have struggled to make sense of the court’s orders, which are something less than precedents but nonetheless cannot be ignored by responsible judges….

The passage in the Purcell ruling that has been boiled down to the shadow doctrine of a near-categorical bar on late-breaking adjustments to state election procedures by federal courts was three sentences long. It was not at all clear, but it suggested that judges should balance competing interests and use judgment.

KEEP READING 

Symposium: The solicitor general, the shadow docket and the Kennedy effect - SCOTUSblog

In 2012 Chief Justice John Roberts in Maryland v. King, writing for the court and granting a stay of a judgment vacating a conviction for assault, recited the conventional grounds for the Supreme Court to grant a stay:

(1) “a reasonable probability” that this Court will grant certiorari, (2) “a fair prospect” that the Court will then reverse the decision below, and (3) “a likelihood that irreparable harm [will] result from the denial of a stay.”

Few suspected how substantial that decision would prove to be.  It seemed at the time to be an unremarkable, conservative pro-prosecution decision on a Fourth Amendment search and seizure question about which Circuit courts had differed.  Roberts, relying on a 1977 "in chambers" opinion by  his mentor, declared

 \         “[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of             its people, it suffers a form of irreparable injury.” New Motor Vehicle Bd. of Cal. v. Orrin W.                     Fox Co., 434 U. S. 1345, 1351 (1977) (Rehnquist, J., in chambers)."

None suspected that four years later Donald Trump would follow Barack Obama and that the principle would form the basis for a pattern of frequent grants of stays of lower court opinions restraining controversial decisions of the Trump administration - particularly regarding asylum and immigration claims. But today the Court's "shadow docket" - decisions it makes in applications for stays and extraordinary interventions - would become a major area of concern for those concerned about the agenda of an aggressive administration and a solidly conservative Supreme Court.  

- George Conk

10/23/20

Symposium: The solicitor general, the shadow docket and the Kennedy effect - SCOTUSblog

by Steve Vladeck

The shadow docket produced its fair share of headlines in the 20th century, too — from Justice William O. Douglas’ last-minute stay of the executions of Julius and Ethel Rosenberg in 1953, to the Cambodia bombing litigation 20 years later, to at least the first round of Bush v. Gore. But for all of these historical anecdotes, there are at least two respects in which the shadow docket has truly exploded in the last few years: the number of requests for emergency relief from the solicitor general, specifically; and the public divisiveness of the justices’ responses — both in those cases and others.

The data are striking. Three and a half years into the Trump administration, the solicitor general has sought emergency relief — to stay a lower-court ruling or lift a lower-court stay — on 36 separate occasions, including 14 alone during the October 2019 term. That’s in contrast to the previous 16 years — under Presidents George W. Bush and Barack Obama — when the solicitor general sought such relief eight times, or once every other year. And as I wrote last November in an essay for the Harvard Law Review, the justices have largely acquiesced: 22 of the solicitor general’s first 35 emergency applications were granted in full or in part; only eight have been denied in full; and only half of those eight were denied with prejudice. Indeed, emergency applications have become such a significant part of the solicitor general’s caseload that the office recently cited that uptick in explaining why it had added a fifth deputy.

The uptick has not just produced more rulings from the court; it’s also produced more division. In the 22 cases in which the court has granted at least partial relief to the government, at least two justices have publicly noted dissents 17 times, and nine of the orders have publicly been 5-4. (One of the quirks of the shadow docket is that we don’t usually know the actual vote count — unless four justices publicly note dissents.) In contrast, no justice publicly noted a dissent on any of the four occasions that the court granted emergency relief to the government between 2001 and 2017.

As I noted last fall, there are any number of competing explanations for these upticks — for the significant increase in the frequency with which the solicitor general is seeking such relief, and the concomitant increase in how often the court is acquiescing. By now, at least, it is clear that the trend can’t be pegged entirely, or even mostly, to the uptick in so-called “nationwide injunctions”; too many of the applications are in cases where such relief is not at issue. Instead, as I’ve suggested, it seems likely that there is now a majority of the court in support of a subtle doctrinal shift that Chief Justice John Roberts espoused in an influential in-chambers opinion in 2012 — that the government suffers an irreparable harm weighing in favor of relief whenever its policies are enjoined, and without regard to a balancing of the equities. In those circumstances, the government’s entitlement to emergency relief will, for better or worse, rise and fall entirely on the justices’ predictions of how they are likely to rule on the merits. Given the current composition of the court, it’s hardly surprising that a Republican administration would fare relatively well under that standard. Nor is it surprising that the Office of the Solicitor General would be uniquely well-positioned to notice — and take advantage of — such a subtle doctrinal shift.

But none of this explains the radical increase in the (public) divisiveness of ****KEEP READING

Symposium: Shining a light on the shadow docket - SCOTUSblog

Symposium: Shining a light on the shadow docket - SCOTUSblog

Near the end of two meandering days of questions at last week’s Senate hearings for Amy Coney Barrett, Sen. Richard Blumenthal (D-Conn.) asked a question that probably has never been asked at any other Supreme Court nomination hearing.

“Are you aware of the Supreme Court’s – as it’s called – shadow docket?” he asked.

Barrett, who clerked for Justice Antonin Scalia, said she was. “The shadow docket has become a hot topic in the last couple of years,” she added.

Barrett is right. In fact, in just the last few months, the court has issued emergency rulings on coronavirus policies, immigration restrictions, capital punishment, access to abortion, the U.S. census and procedures for the upcoming election. All of those rulings have been part of the court’s shadow docket.

The court itself would never use that term. Law professor William Baude coined it in 2015 to refer unofficially to the body of orders issued by the Supreme Court outside the formal opinions in the 70 or so cases in which it hears oral argument each term. Some of those orders are peripheral and procedural. But others resolve, at least temporarily, contentious policy disputes or matters of life and death. And this year, the shadow docket is taking on more significance – and getting more attention – than it ever has before.

KEEP READING

Eric Segall : Confronting Originalism: Truths and Myths - Dorf on Law

OTHERWISE: Dorf on Law: Confronting Originalism: Truths and Myths: An accessible and lucid survey by Professor Segall with helpful links on how originalism (viz. Amy Coney Barrett) has become a signal, not a...

OTHERWISE: Opinion | I Was Reagan’s Solicitor General. Here’s What Biden Should Do With the Court. - The New York Times

OTHERWISE: Opinion | I Was Reagan’s Solicitor General. Here’s What Biden Should Do With the Court. - The New York Times

Justices take up border-wall, “remain in Mexico” cases - SCOTUSblog

The United States Supreme Court's decision to take up Wolf v. Immigration Law Labs, the so-called Migrant Protection Protocols case is unsurprising.  The Court on March 11 (Sotomayor objecting) had stayed the February 28 order upholding the preliminary injunction issued by District Judge Richard Seeborg (while limiting the order below to the confines of the Circuit) .  The  Ninth Circuit Court of Appeals a week earlier denied a stay of the District Court's order barring enforcement of the harsh Department of Homeland Security protocols.

The Circuit motion panel explained clearly the legal issues:

The MPP requires that all asylum seekers arriving at our southern border wait in Mexico while their asylum applications are adjudicated. The MPP clearly violates 8 U.S.C. §§ 1225(b) and 1231(b). Section 1225(b) divides aliens applying for asylum into two categories:  Section (b)(1) applicants are those who have no documents or fraudulent documents. In fleeing persecution in their home countries, typical bona fide asylum seekers have either fraudulent documents or no documents at all. Section (b)(2) applicants are “all other” applicants. Section (b)(2) applicants include spies, terrorists, alien smugglers, and drug traffickers. 

Section 1225 specifies different procedures for the two categories of applicants. Section (b)(1) applicants who have expressed a “credible fear” of persecution have a right to remain in the United States while their applications are adjudicated. Section (b)(2) applicants do not have that right. Subsection (b)(2)(c) specifically authorizes the Attorney General to require § (b)(2) applicants to wait in Mexico while their asylum applications are adjudicated. There is no subsection in § (b)(1) comparable to subsection (b)(2)©. It is easy to understand why § (b)(1) and § (b)(2) applicants are treated differently. Section (b)(1) applicants pose little threat to the security of the United States. By contrast, § (b)(2) applicants potentially pose a severe threat. The MPP applies subsection (b)(2)(C) to § (b)(1) applicants. There is no legal basis for doing so. 

The underlying factual issues include: is Mexico actually a safe haven for the families who crossed our border seeking recognition as refugees under the Asylum Act, 8 USC 1158  Or is their safety in fact in substantial jeopardy as they huddle in wait?

Prospects for affirming the injunction against MPP appear to be nil.  The court will soon be joined by Amy Coney Barrett who has shown no inclination to challenge the Trump administration in any respect, and certainly not on behalf of immigrants.  In June Barrett issued a forty page dissent from the ruling of Chief Judge Diane Wood and Judge Ilana Rovner (herself a Latvian refugee from the Nazis).  Wood began her opinion saying

Like most people, immigrants to the United States would like greater prosperity for themselves and their families. Nonetheless, it can take time to achieve the American Dream, and the path is not always smooth. Recognizing this, Congress has chosen to make immigrants eligible for various public benefits... 

The United States Supreme Court  on February 21 of this year, acting a week before oral argument in the Circuit Court stayed the District Court's order in Illinois v Wolf enjoining the "public charge rule" which barred those who in the government's opinion might someday claim public benefits to which they are entitled by law. The stay was met by a  powerful Sotomayor dissent. Barrett, in a merits dissenting opinion in in August,  saw only a permissible exercise of executive discretion.

The Immigration Law Labs case will likely be a vehicle for the Supreme Court's conservative super majority to sharply limit the use of so-called "nationwide injunctions", a cause Neil Gorsuch has strongly embraced.

Justices take up border-wall, “remain in Mexico” cases - SCOTUSblog

By Amy Howe

The Supreme Court announced on Monday morning that it would take up two cases arising out of the Trump administration’s effort to stem immigration through the United States’ border with Mexico. The justices granted review to weigh in on the long-running dispute over the funding for President Donald Trump’s border wall, as well as the legality of the Trump administration’s “remain in Mexico” policy, which allows the Department of Homeland Security to return immigrants seeking asylum to Mexico while they wait for an asylum hearing in U.S. immigration court.

In Wolf, Secretary of Homeland Security v. Innovation Law Labs the Issues accepted are:

 (1) Whether the Department of Homeland Security policy known as the Migrant Protection Protocols is a lawful implementation of the statutory authority conferred by 8 U.S.C. 1225(b)(2)(C); (2) whether MPP is consistent with any applicable and enforceable non-refoulement obligations; (3) whether MPP is exempt from the Administrative Procedure Act requirement of notice-and-comment rulemaking; and (4) whether the district court’s universal preliminary injunction is impermissibly overbroad.

Compare to plaintiffs' Counterstatement of issues:

 

1. Does the government’s return-to-Mexico policy, known as the “Migrant Protection Protocols” (“MPP”), violate 8 U.S.C. § 1225(b), by forcing asylum seekers who lack proper documents and thus are subject to § (b)(1), to return to Mexico pending removal proceedings, when the statute establishes two distinct categories of applicants for admission, § (b)(1) and § (b)(2); authorizes return pending proceedings only of applicants under § (b)(2); and specifically exempts from § (b)(2) those applicants to whom § (b)(1) “applies”? 

2. Do the procedures implementing MPP violate the United States’ nonrefoulement obligation under the withholding-of-removal statute, 8 U.S.C. § 1231(b)(3), because they do not inform the individual of the right to request a fear interview, and even where such interviews are held, they are cursory and require that the applicant meet the same more-likely-than-not standard required for an ultimate grant of withholding at the conclusion of full removal proceedings? 

3. Are the new procedures the Department of Homeland Security (“DHS”) created to ensure that MPP is consistent with the government’s nonrefoulement obligation arbitrary and capricious under the Administrative Procedure Act (“APA”) where they are less protective than established procedures implementing the same obligation, and where the agency failed to acknowledge or explain its departure from these existing procedures? 

4. Did the government violate the APA when it established entirely new procedures to meet its ii mandatory nonrefoulement obligation under MPP but failed to comply with the APA’s notice-andcomment requirement? 

5. Is the district court’s injunction overbroad, where the court correctly held that MPP violates federal statutes and directly impedes the organizational plaintiffs’ missions; where the only way to redress those injuries is to enjoin MPP as a whole; and where such relief is consistent with 5 U.S.C. § 706(2)(A), which directs courts to “set aside” unlawful agency action? iii 

 

Slavery From the founding to the civil war

Fugitive Slave Act 1793

Justice Accused - 

Frederick Douglass, Prophet of Freedom - David W. Blight (2018)

Emancipation proclamation - an act of justice - John Hope Franklin

Freeing Purcell from the Shadows | Take Care

Freeing Purcell from the Shadows | Take Care

By Nicholas Stephanopoulos  (Harvard Law School)

Supreme Court observers have begun to pay more attention to the Court’s “shadow docket”: disputes the Court resolves summarily, without the usual briefing, argument, explanations, or even indications how each Justice voted. Still mostly overlooked, however, is that the Court doesn’t just have a shadow docket; it also has shadow doctrines, rules the Court applies only in its non-merits cases. In my own field of election law, the most prominent of these shadow doctrines is undoubtedly the Purcell principle, named for the 2006 (non-merits) decision of Purcell v. Gonzalez. In Purcell, the Court strongly disfavored judicial changes to election regulations close to election day. Such changes, according to the Court, “can themselves result in voter confusion and consequent incentive to remain away from the polls.” “As an election draws closer,” moreover, “that risk will increase.”

Since it was announced, the Purcell principle has reared its head every two years as elections have approached. But it has never been as important as this year for one simple reason: There has never been as much litigation in the leadup to an election. According to the COVID-Related Election Litigation Tracker, more than three hundred election law cases have been filed in 2020 in more than forty states. Among (many) other issues, these suits have addressed polling place locations and procedures, deadlines for requesting and returning absentee ballots, witness and notarization requirements for absentee ballots, and signature thresholds for qualifying for the ballot. The Supreme Court has already resolved half a dozen disputes on Purcell grounds—an all-time high—three of which included reasons for the Court’s actions or written dissents. And the Court will surely confront Purcell again before this election is over. Lower-court election litigation continues to rage, making it inevitable that more appeals will land on the Court’s doorstep.

Despite all this activity, the Purcell principle remains remarkably opaque. Precisely because it is a shadow doctrine, appearing only in the Court’s shadow docket, its contours have never been clarified. The above quote from Purcell itself was almost all the Court had to say about the rule against late-breaking judicial intervention when the Court first unveiled this policy. Since Purcell, the Court has added only a few more sentences about the doctrine’s operation. In April of this year, the Court praised “the wisdom of the Purcell principle,” and in August, the Court held that the principle carries less weight when “state election officials support the challenged decree.” True, occasional dissents from the Court’s Purcell jurisprudence have explored in somewhat more detail when courts should and shouldn’t change election regulations close to election day. But these have still been skimpy opinions that didn’t purport to offer a comprehensive analytical framework.

My aim in this piece, then, is to put some meat on Purcell’s bones: to consider more fully when judicial intervention near an election is inadvisable and when, conversely, it’s prudent or even urgent. I make two main points. First, the Purcell principle can’t be an ironclad rule. The Court’s own rationales for the doctrine indicate that judicial revision of election regulations can sometimes be appropriate despite the imminence of an election. Second, the circumstances under which judicial action is warranted, even though an election beckons, are reasonably foreseeable. They include (1) when a court’s remedy will cause little voter confusion; (2) when a court’s remedy will cause little administrator error; (3) when, if a court fails to intercede, significant disenfranchisement will ensue; (4) when plaintiffs have diligently pursued their claim; and (5) when an election is further rather than closer based on Congress’s judgments about election proximity.

Start with the argument that Purcell should be understood as a presumption against—not a prohibition of—judicial intervention near an election. This is the reading most consistent with Purcell’s actual language. In deciding whether to issue injunctions in election law cases, the Court held, lower courts are “required to weigh” the possibility that their orders will cause voter confusion and consequent disenfranchisement. Of course, to weigh a factor is to take it into account, to examine carefully all the evidence that bears on it. To weigh a factor is not to make it dispositive in all cases, to prioritize it over all competing values. So Purcell can’t fairly be construed as a categorical bar on courts amending election regulations close to election day. The decision is more like an admonition that courts considering such amendments take seriously the prospect that the changes will confuse or even disenfranchise certain voters.

KEEP READING

Supreme Court nominee Amy Coney Barrett’s originalist approach to the Constitution, explained - Vox

OTHERWISE: Supreme Court nominee Amy Coney Barrett’s originalist approach to the Constitution, explained - Vox

by Ian Millhiser

Supreme Court forces end to census - Sotomayor dissents

Judge Lucy Koh (N.D. CA) issued a preliminary injunction in an action brought by advocacy groups, cities, counties and Native tribes against Secretary of the Commerce Ross to block the administration's plan to bring an early end to the counting of the population despite the delays and difficulties created by the pandemic.  On September 24 she ruled for plaintiffs:

IT IS HEREBY ORDERED THAT, effective as of the date of this Order: The U.S. Census Bureau's August 3, 2020 Replan's September 30, 2020 deadline for the completion of data collection and December 31, 2020 deadline for reporting the tabulation of the total population to the President are stayed pursuant to  U.S.C. § 705; and Defendants Commerce Secretary Wilbur L. Ross, Jr.; the U.S. Department of Commerce; the Director of the U.S. Census Bureau Steven Dillingham, and the U.S. Census Bureau are enjoined from implementing these two deadlines.

The Administration appealed to the Ninth Circuit and, denied a stay there, presented the issue to the Supreme Court.  The Justices granted the stay, effectively bringing the counting to a halt, in what  is considered a big win for the Trump administration.

The order required the Census to continue collecting information until October 31.  The matter is important to states and municipalities because federal funds - and representation - are allocated according to the total population, regardless of citizenship status.  The Trump administration had unsuccessfully sought to limit the count to citizens and legal residents.

WILBUR ROSS, SECRETARY OF COMMERCE, ET AL. v. NATIONAL URBAN LEAGUE, ET AL.ON APPLICATION FOR STAY

The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. The district court’s September 24, 2020 order granting a preliminary injunction is stayed pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

Justice Sonia Sotomayor  penned the latest in a series of strong dissents from the high court's grants of stays of injunctions against Trump administration immigration policies:

Today, the Court stays a preliminary injunction requiring the Census Bureau to follow the data collection plan the agency once described as necessary to avoid “risking significant impacts on data quality.” Electronic Case Filing in No. 5:20–cv–5799, Doc. 198–7 (ND Cal., Sept. 22, 2020), p. 131 (ECF). The injunction required the Bureau to continue its data collection efforts until October 31, 2020, a deadline the Bureau itself selected in response to the significant operational disruptions caused by the COVID–19 pandemic. The Government now claims that this Court’s immediate intervention is necessary because, absent a stay, the Bureau will not be able to meet the December 31 statutory deadline for reporting census results to the President. This representation is contrary to the Government’s repeated assertions to the courts below that it could not meet the statutory deadline under any circumstances. Moreover, meeting the deadline at the expense of the accuracy of the census is not a cost worth paying, especially when the Government has failed to show why it could not bear the lesser cost of expending more resources to meet the deadline or continuing its prior efforts to seek an extension from Congress. This Court normally does not grant extraordinary relief on such a painfully disproportionate balance of harms.

Trump announced his intent to exclude undocumented immigrants from the population base for congressional apportionment, Secretary Ross announced the “Replan Schedule.” Under the Replan Schedule, data collection would end on September 30, 2020. The administration simultaneously stopped pushing Congress to extend the reporting deadline by 120 days. II Respondents, who are advocacy groups, cities, counties, and Native tribes, sued to enjoin the Replan Schedule. The District Court issued detailed factual findings, concluding that respondents had demonstrated a likelihood of success on the merits of their claim that the Bureau’s reversal was arbitrary and capricious,1 and that the harms to respondents absent an injunction vastly outweighed any harm the injunction would cause the Government. The court preliminarily enjoined the Replan Schedule’s September 30 deadline for completing data collection (i.e., the deadline for individuals to complete the census questionnaire and for the Bureau to wrap up its field operations) and the December 31 deadline for reporting the results to the President. 

The District Court subsequently clarified that the Bureau’s original October 31 deadline for data collection would be reinstated. The Court of Appeals for the Ninth Circuit reversed the injunction as to the December 31 deadline, but affirmed the reinstatement of the October 31 deadline. The Government now asks this Court to intervene and stay the entire injunction. I would deny a stay of that injunction. 

An applicant for a stay “must demonstrate (1) ‘a reasonable probability’ that this Court will grant certiorari, (2) ‘a fair prospect’ that the Court will then reverse the decision below, and (3) ‘a likelihood that irreparable harm [will] result from the denial of a stay.’” Maryland v. King, 567 U. S. 1301 (2012) (ROBERTS, C. J., in chambers) (quoting Conkright v. Frommert, 556 U. S. 1401, 1402 (2009) (Ginsburg, J., in chambers)). The Government fails to demonstrate that the injunction is likely to cause it irreparable harm. Regardless of the merits of respondents’ claims, this failure, alone, requires denying the requested stay. 

The Government articulates a single harm: that if data collection continues through October 31, the Bureau will not meet the December 31 statutory deadline to report census results to the President. But it is unlikely the District Court’s injunction will be the cause of the Bureau’s inability to do so. Indeed, for months, senior Bureau officials have represented that, whatever the data collection deadline, meeting the December 31 reporting deadline would be impossible. See ___ F. 3d ___, ___, 2020 WL 5940346, *6 (CA9, Oct. 7, 2020) (“[T]he President, Department of Commerce officials, Bureau officials, and outside analysis from the Office of the Inspector General, the Census Scientific Advisory Committee, and the Government Accountability Office all stated unequivocally, some before and some after the adoption of the Replan, that the Bureau would be unable to meet [the December 31] deadline under any conditions”). Only recently have officials begun to claim that the Bureau might yet be able to meet the statutory deadline, and even then, their story keeps changing.  

Judicial originalism as myth - Eric J. Segall - Vox

The vaunted  Scalian battle cry of "original public meaning" would leave us hemmed in not only by the slaveholders of the 1787 federal convention, but even by the prejudices of the post civil war Republicans who did not object to segregated public schools as in Washington. - gwc

Judicial originalism as myth - Vox

by Eric J. Segall (Georgia State School of Law)

“It is simply anti-democratic to conceal something as fundamental as the nature of constitutional decision-making — especially if concealment is motivated by the fear that the citizenry wouldn't stand for the practice if it knew the truth. If the Court can't admit what it is doing, then it shouldn't do it.” —Paul Brest, 1981

The doctrine of originalism, whereby judges purport to identify and then rely on the original meaning of the United States Constitution to resolve constitutional cases, is more ingrained in our national consciousness today than at any other time in our history. Six years ago, one of our most liberal justices, Elena Kagan, stated during her confirmation hearing that “we are all originalists.” Prominent professors are proudly proclaiming in our most elite law reviews that “Originalism is our Law.”

Why Amy Coney Barrett Should Not Be On The Supreme Court ❧ Current Affairs

OTHERWISE: Why Amy Coney Barrett Should Not Be On The Supreme Court ❧ Current Affairs: Why Amy Coney Barrett Should Not Be On The Supreme Court ❧ Current Affairs by Nathan J. Robinson I  do not care about  Amy Coney Barrett ...

Trump's Christian Judges March On - Rolling Stone

OTHERWISE: Trump's Christian Judges March On - Rolling Stone: Trump's Christian Judges March On - Rolling Stone by Sarah Posner n August, Justin Walker, a federal judge in Louisville, Kentucky, issue...

Trump Org. denies attorney waived attorney-client privilege in NY AG Investigation

Trump Org. denies attorney waived attorney-client privilege in NY AG Investigation

By Daniel Tay// Law360

Law360 (October 6, 2020, 6:32 PM EDT) -- A former Trump Organization attorney's actions cannot waive the organization's privilege in a probe into whether President Donald Trump inflated his asset values, the organization said, asking a New York state court to privately review contested documents.

A failure by land use attorney Charles Martabano, who formerly worked with the Trump Organization, to produce an adequate privilege log should not have meant the organization's attorney-client and work product privileges were deemed waived, the organization, Eric Trump and Martabano told the court Monday. They asked New York Supreme Court Judge Arthur Engoron to conduct a private review of the documents at issue, which New York Attorney General Letitia James had subpoenaed as part of a probe into actions surrounding a Trump property in Westchester County.

Martabano, Eric Trump and the Trump Organization criticized James' response to their motion to reargue Judge Engoron's ruling that Martabano's actions had waived the organization's privilege over the documents. James' office said the court hadn't misconstrued the law and didn't overlook any facts in finding that Martabano had waived privilege.

The Trump Organization said James had not shown any case where a New York court found a privilege holder had waived privilege "as a sanction for its former attorney's failure to adequately comply with a subpoena that was directed to that attorney personally. The reason for this is simple — it is unprecedented under New York law." 

The fight over records held by Martabano are the latest volley of court actions surrounding an investigation that includes whether the Trump Organization inflated the value of Seven Springs Estate, an approximately 212-acre property in Westchester County, to claim a $21.1 million tax deduction in 2015.

Martabano worked with the Trump Organization in the potential development of the Seven Springs property starting in about 2011. He previously asked the court to deny the office's request to compel him to produce additional documents and to be further deposed.

James' office in August asked the court to compel the Trump Organization, Morgan Lewis & Bockius LLP, Eric Trump and others to supply information in response to the probe. Those subpoenaed by James' office argued they wanted to preserve attorney-client and other privileges, while James' office said they made overbroad privilege objections.

Judge Engoron ruled on Sept. 23 that Trump couldn't wait until after the November election to sit for a deposition and largely ruled that various subpoenaed parties must hand over records to James' office. But on Sept. 30, Martabano and the Trump Organization asked to reargue the issues in Judge Engoron's holding. In response, Judge Engoron ordered the stay last week and instructed James to show why the Trump Organization and Martabano should not be allowed to reargue his holding.

Thomas and Alito: "ruinous consequences" for religious liberty

OTHERWISE: Thomas and Alito: "ruinous consequences" for religious liberty: The Obergefell case, recognizing the right to marriage of same sex couples, has had "ruinous consequences for religious liberty, Justice Clarence Thomas, joined by Samuel Alito have stated, while concurring in the denial of certiorari to former Kentucky County Clerk Jean Davis.  She was famously held in contempt of court for her refusal to issue marriage license certificates to same sex couples.

OTHERWISE: The Case for Ending the Supreme Court as We Know It | The New Yorker

OTHERWISE: The Case for Ending the Supreme Court as We Know It | The New Yorker

U.S. Department of Labor Proposes rule tightening criteria for employment status

 If one is an employee, rather than an independent contractor, the Fair Labor Standards Act promises time and a half for overtime.  Thus the status of an Uber driver or other `gig economy' worker matters a great deal.  The United States Department of Labor has issued a notice of proposed rule-making that will make it more difficult to establish that one is a covered employee.

The DOL move comes at a time when courts of the United States are increasingly inhospitable to workers claims.  Although the Third Circuit last year in the Uber case found its drivers to be employees, two months ago a Seventh Circuit panel, in Wallace v. Grubhub, an August opinion by soon to be Associate Justice Amy Barrett barred drivers from suing in court.  The proclaimed textualist found that commerce said that in the Federal Arbitration Act "the phrase “engaged in commerce” as used in § 1 meant something narrower than “affecting commerce” or “involving commerce” as used in § 2."

In the first just about any economic activity involves interstate commerce and is thus within Congress's enumerated powers, but in the second section "involving commerce" means actually transporting goods across state lines, not taking orders via the world wide web and delivering them locally.  Consequence: no right to go to court, no right to a decision by a judge and appeal to a higher court.  Go direct to arbitration. - 

In this rulemaking, the Department [of Labor] proposes to:

• Adopt an “economic reality” test to determine a worker’s status as an FLSA employee or an independent contractor. The test considers whether a worker is in business for themselves (independent contractor) or is economically dependent on a putative employer for work (employee);
• Identify and explain two “core factors,” specifically: the nature and degree of the worker’s control over the work; and the worker’s opportunity for profit or loss based on initiative and/or investment. These factors help determine if a worker is economically dependent on someone else’s business or is in business for themselves;
• Identify three other factors that may serve as additional guideposts in the analysis including: the amount of skill required for the work; the degree of permanence of the working relationship between the worker and the potential employer; and whether the work is part of an integrated unit of production; and
• Advise that the actual practice is more relevant than what may be contractually or theoretically possible in determining whether a worker is an employee or an independent contractor.

The Department seeks comment on all aspects of the proposed rule; comments can be submitted through regulations.gov for 30 days following the publication on the Notice of Proposed Rulemaking in the Federal Register.