SCOTUS

[RedFromMI]

I took a look at the Kavanaugh opinion. Is he really this big of an idiot? How on earth did he get this far?

As a term paper in any decent undergrad "Law and society" class, that opinion would get a C minus.

If it was a paper I graded, I am not sure it would have gotten that high a grade...

[Kismet]

I took a look at the Kavanaugh opinion. Is he really this big of an idiot? How on earth did he get this far?

As a term paper in any decent undergrad "Law and society" class, that opinion would get a C minus.

Yes, he's really THAT big an idiot. So is the idiot who appointed him and all those in the Senate who voted for him when there were plenty of other jurists available and qualified who weren't and aren't idiots.

[cradleandshoot]

Could someone point me to a real world reason why we are having this stupid pointless conversation????

Look at the polls linked above.

79% of Americans favor legal abortion in all or many circumstances. In 1975, that number was 75%. This issue has been settled for 50 years. People's minds have not changed on this. There is zero indication that minds will change in the future.

The lip flapping about RvW is just symbolic partisan base boosting. RvW has had little practical significance for many may years. It barely matters today as a legal/practical matter.

If RvW were to be over-ruled (not gonna happen by the way) there would be almost zero practical impact. Abortions would continue to be harder to find in Missouri and Utah -- as is already the case. And easier to find in CA and NY -- as is already the case.

C&S -- you've told us about your personal feelings on this (over and over and over). So now please do us a favor and move on. We are talking SCOTUS and law on here. Talk about your personal feelings somewhere else, OK?

No problem counselor, moving on is a very wise thing to do. We certainly both know where each other stands. My last words on the subject will never change, likewise yours as well. I will point out that a whole bunch of folks here are worried about the fate of R v W. I hope they take your advice as well... it will have zero practical impact one way or the other. Was that not the basis for the panic attack from some folks about ACB sitting on the SCOTUS? They feared the right to abortion would be revoked in principle. It should not be as Judge Roberts stated when he was being interviewed in his nomination process. Stare Decisis makes R v W the law of the land, Decided law should be just that, decided law.

[seacoaster]

I took a look at the Kavanaugh opinion. Is he really this big of an idiot? How on earth did he get this far?

As a term paper in any decent undergrad "Law and society" class, that opinion would get a C minus.

Yes, he's really THAT big an idiot. So is the idiot who appointed him and all those in the Senate who voted for him when there were plenty of other jurists available and qualified who weren't and aren't idiots.

He licked the right boots, and had some timing go his way. Here is a trio of well-regarded law professors' rejoinder to Kavanaugh's concurrence in the Wisconsin case:

https://www.nytimes.com/2020/10/28/opin ... d=tw-share

"Just as they did in the infamous Bush v. Gore litigation in 2000, Republican lawyers are trying to get the Supreme Court to undermine state court rulings protecting voting rights under state law. Their theory? That state courts, by relying in part on state constitutions, are wrongly exercising power that belongs to state legislatures.

This idea that state constitutions are irrelevant, and that all that matters is what state legislatures say, is preposterous. Yet recent events suggest this wrongheaded theory may have some traction among the justices.

And this theory has huge consequences. It would mean that many of the decisions you are reading about, where state judges are applying state constitutions to protect the right to vote (say, by finding that ballots postmarked by Election Day will be counted, or that onerous witness requirements will be relaxed because of Covid-19) would now be fair game for the Supreme Court to reverse — even though these decisions are interpretations of state law by state courts.

So far, partisan attempts to involve the federal judiciary have failed, and rightly so. Early last week, the Supreme Court rejected an effort by Pennsylvania Republicans to overturn a Pennsylvania Supreme Court decision that votes postmarked by Election Day but received a few days later must be counted. The court deadlocked 4-4, letting the state court decision stand, with Chief Justice John Roberts joining the court’s three Democratic appointees in voting to leave undisturbed what the state court had done.

Now the Republican challengers are trying to bring the case back before the court, hoping to win support from its newest member, Amy Coney Barrett. We may see a similar push to overturn a second Pennsylvania Supreme Court ruling issued last Friday, also protecting state voters’ rights — this time to have their votes counted notwithstanding technical signature glitches in mail-in or absentee ballots.

Federal courts have no business interfering in state-law matters. As the three of us wrote back in 2000, the effort of several justices to hijack state law in Bush v. Gore was a disgrace. These justices asserted that the “Florida Supreme Court’s interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required.” Of course, “fair reading” meant how these justices read state law, not how Florida’s expert judges saw the matter.

No Supreme Court case before 2000 ever tried this maneuver to upend a decision by a state court on state law, and in Bush v. Gore itself, only three justices, led by the chief justice at the time, William Rehnquist, claimed that the federal Constitution made them the ultimate word on the meaning of state election codes.

Until this week, only Justice Clarence Thomas, writing for himself, had ever invoked any aspect of Bush v. Gore as good law. But on Monday evening, ominously, Justice Brett Kavanaugh repeatedly endorsed Rehnquist’s Bush v. Gore concurrence, claiming that the Supreme Court should feel free to second-guess state court interpretations of state election law whenever presidential elections are at issue.

“The text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws,” he wrote in a footnote to a decision in which the court refused, 5-3, to extend Wisconsin’s deadline for receiving absentee ballots to six days after the election.

In fact, this part of Bush v. Gore has already been squarely rejected by a landmark 2015 case, Arizona Legislature v. Arizona Independent Redistricting Commission. Writing for the court in one of her greatest opinions, Justice Ruth Bader Ginsburg — who had emphatically dissented in Bush v. Gore — made clear that when Article I of the federal Constitution empowers the “legislature” of each state to regulate various aspects of congressional elections, the word “legislature” means the lawmaking process set up by a state’s constitution: Nothing in the federal Constitution, she said, “instructs, nor has this court ever held, that a state legislature” may regulate “federal elections in defiance of the provisions of the state’s constitution.”

The same rules for Article I also apply to Article II, which uses virtually identical language. It too empowers each state “legislature”— this time, to regulate the manner of picking presidential electors — but it does not empower a state “legislature” to ignore the state constitution creating that legislature, or the state supreme court that authoritatively interprets that state constitution.

Thus, when a state court construes a state election statute to align it with a state constitution’s right-to-vote principles, that state court is doing exactly what the federal Constitution and binding federal precedent authorize.

Justice Kavanaugh and the three other justices who wanted to jump into the Pennsylvania postmark dispute missed all this — a particularly striking lapse for jurists who say they are guided by the letter and spirit of the Constitution and by the basic rules of well-settled precedents. Indeed, just last year, the court, in a major opinion by Chief Justice Roberts, and joined by all the other dissenters in the Arizona Legislature case, and by Justice Kavanaugh, cited that case and squarely relied on its key holding.

Allowing federal courts to muck around with state election laws is dangerous and destabilizing. States generally set uniform rules for federal and state elections; giving federal courts latitude to topple state rules, but only for federal elections, eviscerates in-state uniformity.

Does it really make sense that your ballot in Pennsylvania will count for state elections but not the presidency — or federal House or Senate races, for that matter — because it arrives on Nov. 5?

Even if state constitutions do not apply of their own force to presidential ballots, these constitutions apply because state legislatures have chosen to incorporate them by reference into comprehensive state election codes regulating all elections in the state — local, state, congressional and presidential. Likewise, state legislatures have knowingly deputized state courts to oversee all these elections to ensure conformity with state constitutions.

The federal Constitution is emphatically clear and so is federal precedent. Any potential Supreme Court ruling to the contrary, especially any ruling with a partisan alignment, would be a disaster for the court and the country.

One Bush v. Gore is enough."

Akhil Reed Amar is a professor at Yale Law School. Vikram David Amar is dean of the University of Illinois College of Law. Neal Kumar Katyal, a former acting solicitor general of the United States during the Obama administration, is a professor at Georgetown Law School.

[cradleandshoot]

I took a look at the Kavanaugh opinion. Is he really this big of an idiot? How on earth did he get this far?

As a term paper in any decent undergrad "Law and society" class, that opinion would get a C minus.

Yes, he's really THAT big an idiot. So is the idiot who appointed him and all those in the Senate who voted for him when there were plenty of other jurists available and qualified who weren't and aren't idiots.

Too bad he sits on the SCOTUS and you are sitting in the peanut gallery venting your opinion. Shout louder, maybe somebody will hear you.

[cradleandshoot]

I took a look at the Kavanaugh opinion. Is he really this big of an idiot? How on earth did he get this far?

As a term paper in any decent undergrad "Law and society" class, that opinion would get a C minus.

Yes, he's really THAT big an idiot. So is the idiot who appointed him and all those in the Senate who voted for him when there were plenty of other jurists available and qualified who weren't and aren't idiots.

He licked the right boots, and had some timing go his way. Here is a trio of well-regarded law professors' rejoinder to Kavanaugh's concurrence in the Wisconsin case:

https://www.nytimes.com/2020/10/28/opin ... d=tw-share

"Just as they did in the infamous Bush v. Gore litigation in 2000, Republican lawyers are trying to get the Supreme Court to undermine state court rulings protecting voting rights under state law. Their theory? That state courts, by relying in part on state constitutions, are wrongly exercising power that belongs to state legislatures.

This idea that state constitutions are irrelevant, and that all that matters is what state legislatures say, is preposterous. Yet recent events suggest this wrongheaded theory may have some traction among the justices.

And this theory has huge consequences. It would mean that many of the decisions you are reading about, where state judges are applying state constitutions to protect the right to vote (say, by finding that ballots postmarked by Election Day will be counted, or that onerous witness requirements will be relaxed because of Covid-19) would now be fair game for the Supreme Court to reverse — even though these decisions are interpretations of state law by state courts.

So far, partisan attempts to involve the federal judiciary have failed, and rightly so. Early last week, the Supreme Court rejected an effort by Pennsylvania Republicans to overturn a Pennsylvania Supreme Court decision that votes postmarked by Election Day but received a few days later must be counted. The court deadlocked 4-4, letting the state court decision stand, with Chief Justice John Roberts joining the court’s three Democratic appointees in voting to leave undisturbed what the state court had done.

Now the Republican challengers are trying to bring the case back before the court, hoping to win support from its newest member, Amy Coney Barrett. We may see a similar push to overturn a second Pennsylvania Supreme Court ruling issued last Friday, also protecting state voters’ rights — this time to have their votes counted notwithstanding technical signature glitches in mail-in or absentee ballots.

Federal courts have no business interfering in state-law matters. As the three of us wrote back in 2000, the effort of several justices to hijack state law in Bush v. Gore was a disgrace. These justices asserted that the “Florida Supreme Court’s interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required.” Of course, “fair reading” meant how these justices read state law, not how Florida’s expert judges saw the matter.

No Supreme Court case before 2000 ever tried this maneuver to upend a decision by a state court on state law, and in Bush v. Gore itself, only three justices, led by the chief justice at the time, William Rehnquist, claimed that the federal Constitution made them the ultimate word on the meaning of state election codes.

Until this week, only Justice Clarence Thomas, writing for himself, had ever invoked any aspect of Bush v. Gore as good law. But on Monday evening, ominously, Justice Brett Kavanaugh repeatedly endorsed Rehnquist’s Bush v. Gore concurrence, claiming that the Supreme Court should feel free to second-guess state court interpretations of state election law whenever presidential elections are at issue.

“The text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws,” he wrote in a footnote to a decision in which the court refused, 5-3, to extend Wisconsin’s deadline for receiving absentee ballots to six days after the election.

In fact, this part of Bush v. Gore has already been squarely rejected by a landmark 2015 case, Arizona Legislature v. Arizona Independent Redistricting Commission. Writing for the court in one of her greatest opinions, Justice Ruth Bader Ginsburg — who had emphatically dissented in Bush v. Gore — made clear that when Article I of the federal Constitution empowers the “legislature” of each state to regulate various aspects of congressional elections, the word “legislature” means the lawmaking process set up by a state’s constitution: Nothing in the federal Constitution, she said, “instructs, nor has this court ever held, that a state legislature” may regulate “federal elections in defiance of the provisions of the state’s constitution.”

The same rules for Article I also apply to Article II, which uses virtually identical language. It too empowers each state “legislature”— this time, to regulate the manner of picking presidential electors — but it does not empower a state “legislature” to ignore the state constitution creating that legislature, or the state supreme court that authoritatively interprets that state constitution.

Thus, when a state court construes a state election statute to align it with a state constitution’s right-to-vote principles, that state court is doing exactly what the federal Constitution and binding federal precedent authorize.

Justice Kavanaugh and the three other justices who wanted to jump into the Pennsylvania postmark dispute missed all this — a particularly striking lapse for jurists who say they are guided by the letter and spirit of the Constitution and by the basic rules of well-settled precedents. Indeed, just last year, the court, in a major opinion by Chief Justice Roberts, and joined by all the other dissenters in the Arizona Legislature case, and by Justice Kavanaugh, cited that case and squarely relied on its key holding.

Allowing federal courts to muck around with state election laws is dangerous and destabilizing. States generally set uniform rules for federal and state elections; giving federal courts latitude to topple state rules, but only for federal elections, eviscerates in-state uniformity.

Does it really make sense that your ballot in Pennsylvania will count for state elections but not the presidency — or federal House or Senate races, for that matter — because it arrives on Nov. 5?

Even if state constitutions do not apply of their own force to presidential ballots, these constitutions apply because state legislatures have chosen to incorporate them by reference into comprehensive state election codes regulating all elections in the state — local, state, congressional and presidential. Likewise, state legislatures have knowingly deputized state courts to oversee all these elections to ensure conformity with state constitutions.

The federal Constitution is emphatically clear and so is federal precedent. Any potential Supreme Court ruling to the contrary, especially any ruling with a partisan alignment, would be a disaster for the court and the country.

One Bush v. Gore is enough."

Akhil Reed Amar is a professor at Yale Law School. Vikram David Amar is dean of the University of Illinois College of Law. Neal Kumar Katyal, a former acting solicitor general of the United States during the Obama administration, is a professor at Georgetown Law School.

Sorry those grapes are so sour for you coaster. A spoonful of sugar helps the medicine go down. It stuns me to no end that some of my friends here disagree with Justice Kavanaugh. i know if i ever disagreed with Justice Ginsberg... well all holy hell would break loose then by golly. Her decisions and opinions were forever beyond reproach.

[ggait]

He licked the right boots, and had some timing go his way. Here is a trio of well-regarded law professors' rejoinder to Kavanaugh's concurrence in the Wisconsin case:

Beer Kav's writing shows the emptiness of the conservative's claim to not legislate from the bench.

These election cases are fundamentally issues of state law. SCOTUS is not a general court of appeal with jurisdiction to review decisions by state supreme courts interpreting state laws and state constitutions. So, you know, states rights!!

Unless there is some specific federal law (say the federal voting rights act) or federal constitutional issue (say equal protection or due process), SCOTUS should stay out of it. Only an ACTIVIST judge would venture into this stuff.

[cradleandshoot]

He licked the right boots, and had some timing go his way. Here is a trio of well-regarded law professors' rejoinder to Kavanaugh's concurrence in the Wisconsin case:

Beer Kav's writing shows the emptiness of the conservative's claim to not legislate from the bench.

These election cases are fundamentally issues of state law. SCOTUS is not a general court of appeal with jurisdiction to review decisions by state supreme courts interpreting state laws and state constitutions. So, you know, states rights!!

Unless there is some specific federal law (say the federal voting rights act) or federal constitutional issue (say equal protection or due process), SCOTUS should stay out of it. Only an ACTIVIST judge would venture into this stuff.

"These election cases are fundamentally issues of state law. SCOTUS is not a general court of appeal with jurisdiction to review decisions by state supreme courts interpreting state laws and state constitutions. So, you know, states rights!!"

Holy molies, someone should rush right over to the SCOTUS and advise them of what their legal responsibilities are. i guess those dumb clucks just don't know what their job is.

[RedFromMI]

SC denied the GOP request from PA to fast track a suit regarding when they stop counting ballots. Vote was 5-3, with Kav part of the majority to deny (maybe he felt he needed a cleanup on aisle 5 after that disastrous concurrance), and Barrett not participating.

[Kismet]

I took a look at the Kavanaugh opinion. Is he really this big of an idiot? How on earth did he get this far?

As a term paper in any decent undergrad "Law and society" class, that opinion would get a C minus.

Yes, he's really THAT big an idiot. So is the idiot who appointed him and all those in the Senate who voted for him when there were plenty of other jurists available and qualified who weren't and aren't idiots.

Too bad he sits on the SCOTUS and you are sitting in the peanut gallery venting your opinion. Shout louder, maybe somebody will hear you.

The Vermont SoS certainly heard - He just formally requested that Keganaugh put down his beer and correct his official written opinion that incorrectly described VT as not having changed their election procedures for 2020 because of COVID. Keg wouldn't find a spot in the peanut gallery.

https://twitter.com/VermontSOS/status/1 ... 3728823296

[seacoaster]

Oops.

https://mobile.twitter.com/hashtag/2020 ... htag_click

[njbill]

Actually, the vote was 8-0 to deny the request for expedited review of the cert petition. The court’s information officer said that Barrett took no part in the consideration of the case because she had not had enough time to review the papers. That seems to me to be a sensible decision on her part.

There was no majority opinion issued, simply a one sentence statement of the resolution of the motion.

Alito, joined by Thomas and Gorsuch, wrote separately. He said he thought the Pennsylvania Supreme Court’s decision to allow counting of ballots received through Friday violated the federal Constitution because, he said, the Pa. Supreme Court unreasonably overrode a state statute requiring mail in ballots to be received by election day. The state court had based its decision largely on a state constitutional provision.

Alito said, however: “I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election.” Thus, he voted to deny the motion.

Alito notes that the cert petition remains pending. Four votes to grant cert are required. It’s not clear when the justices will vote on whether or not to grant certiorari.

Alito’s opinion notes that the parties evidently have agreed to segregate mail in ballots received between 8 PM on election day and 5 PM on Friday. Seems pretty clear that if those votes are enough to change the outcome, then the Court could well take up the case again. If so, Barrett’s vote will be decisive because it sounds like there are already four votes to disallow the ballots received after election day.

Wouldn’t it be ironic if Biden is ahead after all ballots received by election day are tallied, but would lose if post election day ballots are counted.

The court’s opinion says that “Additional opinions may follow.” Wouldn’t surprise me if Kavanaugh weighs in with his own views which, I suspect, will be somewhat similar to Alito’s. Maybe one of the other justices will write as well.

While I don’t agree with Alito’s view of the Pennsylvania Supreme Court decision, today’s resolution is at least practical and based in common sense. My guess is that it is unlikely that the ballots received after election day will be enough to change the outcome in Pennsylvania. But we shall see.

I sure hope Pennsylvania doesn’t become 2000 Florida.

http://cdn.cnn.com/cnn/2020/images/10/2 ... lvania.pdf

[wgdsr]

Actually, the vote was 8-0 to deny the request for expedited review of the cert petition. The court’s information officer said that Barrett took no part in the consideration of the case because she had not had enough time to review the papers. That seems to me to be a sensible decision on her part.

There was no majority opinion issued, simply a one sentence statement of the resolution of the motion.

Alito, joined by Thomas and Gorsuch, wrote separately. He said he thought the Pennsylvania Supreme Court’s decision to allow counting of ballots received through Friday violated the federal Constitution because, he said, the Pa. Supreme Court unreasonably overrode a state statute requiring mail in ballots to be received by election day. The state court had based its decision largely on a state constitutional provision.

Alito said, however: “I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election.” Thus, he voted to deny the motion.

Alito notes that the cert petition remains pending. Four votes to grant cert are required. It’s not clear when the justices will vote on whether or not to grant certiorari.

Alito’s opinion notes that the parties evidently have agreed to segregate mail in ballots received between 8 PM on election day and 5 PM on Friday. Seems pretty clear that if those votes are enough to change the outcome, then the Court could well take up the case again. If so, Barrett’s vote will be decisive because it sounds like there are already four votes to disallow the ballots received after election day.

Wouldn’t it be ironic if Biden is ahead after all ballots received by election day are tallied, but would lose if post election day ballots are counted.

The court’s opinion says that “Additional opinions may follow.” Wouldn’t surprise me if Kavanaugh weighs in with his own views which, I suspect, will be somewhat similar to Alito’s. Maybe one of the other justices will write as well.

While I don’t agree with Alito’s view of the Pennsylvania Supreme Court decision, today’s resolution is at least practical and based in common sense. My guess is that it is unlikely that the ballots received after election day will be enough to change the outcome in Pennsylvania. But we shall see.

I sure hope Pennsylvania doesn’t become 2000 Florida.

http://cdn.cnn.com/cnn/2020/images/10/2 ... lvania.pdf

as someone who knows nothing about how this ish works, i was right about one thing. this should've been cleared up in the summer. obviously, that's impossible.

i'm all for checks and balances, but stakeholders of lawmakers, executive and judicial all pining to get in until the last minute is redonkulous. who is in charge and has the say?

texas and pennsylvania governors should've been out of the loop. or there's no reason to have the other 2.

alito and barrett bailing on last minute is good to hear, but may just be kicking the can down the road.

what a potential shl.t show.

[njbill]

In another defeat for Trump, the US Supreme Court has upheld North Carolina’s rule allowing mail in ballots to be counted up to nine days after the election if postmarked by election day.

[ggait]

Alito, joined by Thomas and Gorsuch, wrote separately. He said he thought the Pennsylvania Supreme Court’s decision to allow counting of ballots received through Friday violated the federal Constitution because, he said, the Pa. Supreme Court unreasonably overrode a state statute requiring mail in ballots to be received by election day. The state court had based its decision largely on a state constitutional provision.

Bill -- help me with the basis of SCOTUS jurisdiction here.

PA Supreme Court renders decision construing PA statue and PA constitution. PA Supreme Court (like any court) may be considered by someone else right or may be wrong in their decision.

But since when is SCOTUS considered the Court of Appeals for state supreme courts construing state law? Absent some federal issue, isn't the state supreme court the final word on that state's law?

I know that Art I, section 4 says the local election rules are determined by the state "legislatures", but wouldn't most normal lawyers/people see that as just a delegation to the state law making process? Which means laws enacted in the state per the state process? Which involves a signature by the governor (not a member of the legislature)? And review/interp of such laws by the courts of that state?

Counting ballots mailed before/received after election day may not be the best/smartest rule to use. But many states have that rule. And if the state authorities determine that rule, then that's the rule.

[RedFromMI]

Alito, joined by Thomas and Gorsuch, wrote separately. He said he thought the Pennsylvania Supreme Court’s decision to allow counting of ballots received through Friday violated the federal Constitution because, he said, the Pa. Supreme Court unreasonably overrode a state statute requiring mail in ballots to be received by election day. The state court had based its decision largely on a state constitutional provision.

Bill -- help me with the basis of SCOTUS jurisdiction here.

PA Supreme Court renders decision construing PA statue and PA constitution. PA Supreme Court (like any court) may be considered by someone else right or may be wrong in their decision.

But since when is SCOTUS considered the Court of Appeals for state supreme courts construing state law? Absent some federal issue, isn't the state supreme court the final word on that state's law?

Counting ballots mailed before/received after election day may not be the best/smartest rule to use. But many states have that rule. And if the state authorities determine that rule, then that's the rule.

The way I have seen their objections explained is the constitution specifically references the state legislatures in creating the rules for elections, but of course the legislative actions are always subject to the governor's veto, and the legislation that sets the rules can always have provisions for emergencies. At least one of the justice's objections for one of these cases was that the level of "emergency" for the pandemic was not high enough...

[faircornell]

REF PA: My understanding is that it was a conflict of laws type of issue, with a reference to the US Constitution. The argument, as I understand it, was that the PA Supreme Court had opined on a matter which (according to the US Constitution) should have been decided by the legislature, and the PA Court had acted against the literal interpretation of the US Constitution. I may be incorrect.

[njbill]

Alito, joined by Thomas and Gorsuch, wrote separately. He said he thought the Pennsylvania Supreme Court’s decision to allow counting of ballots received through Friday violated the federal Constitution because, he said, the Pa. Supreme Court unreasonably overrode a state statute requiring mail in ballots to be received by election day. The state court had based its decision largely on a state constitutional provision.

Bill -- help me with the basis of SCOTUS jurisdiction here.

PA Supreme Court renders decision construing PA statue and PA constitution. PA Supreme Court (like any court) may be considered by someone else right or may be wrong in their decision.

But since when is SCOTUS considered the Court of Appeals for state supreme courts construing state law? Absent some federal issue, isn't the state supreme court the final word on that state's law?

I know that Art I, section 4 says the local election rules are determined by the state "legislatures", but wouldn't most normal lawyers/people see that as just a delegation to the state law making process? Which means laws enacted in the state per the state process? Which involves a signature by the governor (not a member of the legislature)? And review/interp of such laws by the courts of that state?

Counting ballots mailed before/received after election day may not be the best/smartest rule to use. But many states have that rule. And if the state authorities determine that rule, then that's the rule.

A Pa. statute says that mail in ballots must be received by election day to be counted. The Pa. Supreme Court ruled that mail in ballots postmarked by election day are to be counted if received by Friday (putting aside the no/illegible postmark portion of the decision). The court held that its decision was not based on an interpretation of the statute but rather was necessary to protect voters’ rights under the Free and Fair Elections clause of the state constitution due to the exigencies of a “natural disaster,” the COVID pandemic.

The U.S. Supreme Court’s subject matter jurisdiction, it is argued, arises from the fact that the Pa. state law was enacted pursuant to the Pa. legislature’s authority under the U. S. Constitution to make rules governing the conduct of elections for federal office. The petitioners also argue that the Pa. Supreme Court’s decision violated the federal statute setting a uniform date for federal elections by, in essence, “extending’’ the date of the election by allowing votes to be counted for several days after election day.

According to Alito in his opinion today:

“[T]here is a strong likelihood that the State Supreme Court decision violates the Federal Constitution. The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”

In his concurrence in the Wisconsin case, Gorsuch sounded a similar theme:

“The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules.”

And Kavanaugh in the Wisconsin case:

Under the U. S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections. Article II expressly provides that the rules for Presidential elections are established by the States "in such Manner as the Legislature thereof may direct." The text of Article II means that "the clearly expressed intent of the legislature must prevail" and that a state court may not depart from the state election code enacted by the legislature. Bush v. Gore [additional citations omitted]. In a Presidential election, in other words, a state court’s "significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question." Bush v. Gore. As Chief Justice Rehnquist explained in Bush v. Gore, the important federal judicial role in reviewing state-court decisions about state law in a federal Presidential election "does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II."

Without going back and refreshing myself on some stuff I’ve read recently on the other side of the issue, it seems there is a debate of sorts among the Justices and scholars about whether the term “State . . . Legislature” in the applicable provision of the U.S. Constitution is strictly limited to the legislature, itself, or is to be read more broadly to include the state constitution and any applicable decisions by the state supreme court. Those that advocate for a narrow reading of “Legislature” argue that a state supreme court’s role is limited when it comes to interpreting or ruling on state election laws that apply to federal elections. In effect, this theory goes, the U.S. Supreme Court can act as a super court of appeals to review decisions by a state supreme court. Sorta like what they did in Bush v. Gore.

I fear that this Court has enough Justices who adopt the narrow reading of “Legislature” and the concomitant broad prerogative of the Court to overturn decisions by state supreme courts interpreting or applying their own state laws.

I agree with your analysis, but it seems there is authority that the arguable foundational applicability of the federal constitutional provision and federal statute gives the U.S. Supreme Court a sufficient basis for jurisdiction. Once they find they have jurisdiction, it seems some of the justices are off to the races in substituting their own views on a state’s law. Crazy.

[ggait]

So under that federal theory, could the gop led pa legislature enact election laws without getting the dem governor’s signature?

Even though pa laws require the gov to approve?

Crazy town.

[wgdsr]

why do you guys think it's crazy? you're attorneys.

when a state court can view something as "necessary" for fair elections and invoke natural disaster clauses (which is one of a gagillion outs written in, probably), anything is in play. just make sure you have the correct party letter by your name when the music stops.