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Wed Oct 28, 2020, 05:45 PM

The Supreme Court Should Not Muck Around in State Election Laws.

It is dangerous and destabilizing.

By Akhil Reed Amar, Vikram David Amar and Neal Kumar Katyal

'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.'>>>



DU lawyers, are we having fun yet???

A personal aside: Sad that, at this 'law-heavy' time, most of the lawyers in my family (Dad, husband, cousin) are no longer 'with us;' just my brother IS; he's in Iowa. We had some very interesting and fun conversations, in the 'good ole' Bush v Gore days.

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Reply The Supreme Court Should Not Muck Around in State Election Laws. (Original post)
elleng Oct 2020 OP
spooky3 Oct 2020 #1

Response to elleng (Original post)

Wed Oct 28, 2020, 05:54 PM

1. Katyal was just on The Beat talking about this

and how unprecedented the action is (except for Bush v Gore, of course).

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