Trump appointees squint at the Elections Clause and see a federal judicial “pollice verso” over state court interpretations of state election law

Over the last four years, President Trump has appointed nearly a quarter of the federal judiciary at a record setting pace.[1] These appointment were made possible by Republican Senate creating massive vacancies by quite literally refusing to hear or confirm President Obama’s second term nominations.[2] Unsurprisingly, the Republican Party’s collapse into valueless realpolitik and retreat into the judiciary has sowed some harrowing consequences for voting rights and federalism. Some are summarized below.

Tl;dr — Trump appointed federal judges have asserted their authority to overrule states applying their own election laws and disenfranchise hapless voters ex post facto but will (mostly) not assert that authority until after Election Day.

On October 26, 2020, two Trump appointed Justices — Kavanaugh and Gorsuch — entered minority concurrences that the Elections Clause lets (requires?) the federal judiciary to overturn state court decisions applying state election law if a federal judge disagrees with the state court’s interpretation of the state election law.[3] Within a few days, Justices Alito and Thomas had all warmed up to this position.[4] Due to their volume, complexity, and resolution through the “shadow docket,” simple pragmatic summary of all voting cases before SCOTUS is difficult but, in a pinch, I’d say they sum to “nothing huge for now but we reserve our right to intervene after the election once Justice Barrett is more comfortable.”[5][6]

A day later, two Trump Judges on the Eighth Circuit got the barely coded messaging described supra and submitted an granting Republican Electors their desired relief overruling a state court confirmed consent decree extending the state’s ballot acceptance deadline.[7][8] Despite Minnesota’s judiciary and elected Secretary of State both agreeing that the legislative branch would have wanted these citizens’ votes to count and the legislative branch raising no objection, the federal judiciary has decided it knows better and Minnesota must now “segregate” all “late” arriving ballots, and the court will decide whether to count them at a later date. This ruling — submitted on October 27,2020 — has the potential to disenfranchise an unknown number of Minnesotans who FOOLISHLY relied on their (a) state government in mailing in their absentee ballot; and (b) federal government to actually deliver their mail.[9]

A day after that, ennobled by the waterfall of federal judicial electoral intervention described supra, the Texas Republican Party filed an emergency complaint to throw out 117,000+ already cast curbside ballots the day after the Eighth Circuit opinion was submitted.[10] Best I can tell, their argument is comprised of (a) literally misspelling “T33exas Election Code” (the law they are trying to “protect”) on the first page of their complaint; and (b) metaphorically yelling “THE ELECTIONS CLAUSE” through the remainder.[11] U.S. District Judge Andrew Hanen has set the matter for hearing on Monday November 2, 2020 — LESS THAN FIVE DAYS AFTER INITIAL FILING — and without letting the state of Texas respond on paper.[12] I know most readers are not fancy sophisticated litigators like me but generally courts (a) are what we in the biz call “slow as hell” and (b) prefer to hear from all parties before making a decision. This behavior suggests Judge Hanen is as receptive to the GOP’s desired outcome as Dean Martin is to a martini. Also, if you were curious, the Texas Supreme Court, which is entirely Republican, has already refused to halt curbside voting earlier this year when the GOP previously claimed the practice was illegal.[13] I’m super hyped to hear what new arguments the Republican Party will raise in their never ending effort to litigate (and re-litigate and re-litigate) away voter’s ability to safely cast a ballot.

So, in the true spirit of federalism, a powerful minority faction of Trump “conservative” appointees have seemingly decided that Elections Clause now means that states cannot execute or interpret their own election laws without the federal judiciary double checking their decision as, apparently, only the federal judiciary knew what the state legislature really meant. The timing for this judicial pollice verso appears to be wildly flexible and seems to extend well after the state’s ballots have been collected and, possibly, after its election results have been certificated.

I have personally observed nothing within the foregoing conservative judges’ opinions[14] which even attempts to reconcile their “the Elections Clause is so SACROSANCT that it means federal courts, not the states, get to interpret and apply state election law on the eve of an election” with the following “hey these may also be important!” points of legal authority.

(a) The “Purcell” doctrine which instructs federal courts to disfavor judicial changes to election laws close to an election.[15]

(b) That the state courts are the ultimate arbiters of the laws of each state and the federal judiciary is “bound to accept the interpretation of [State] law by the highest court of the State”[16] / the several federal statutes which support that general position.[17]

(c) The “one person one vote” principle which, as a reductionist general summary, means your vote should count and have relatively equal value as your peers.[18][19]

(d) The “parity” doctrine assuming that federal and state courts are equally competent forums for the interpretation, enforcement, and upholding of the federal Constitution including, presumably, state court’s application of the Elections Cause.[20]

(e) The “adequate and independent state law ground” doctrine, which states the SCOTUS lacks jurisdiction over petitions to review judgments resting on both state and federal law if the state ground is adequate to support the judgment and independent of the federal law.[21]

Call me old fashioned, these seem like pretty important competing interests that the federal judiciary might want to at least address while asserting the authority to tell the purportedly sovereign states “what they really mean” vis a vis their own election laws on the eve of an election.

Regards,

Scott Kane

P.S. For super-ultra-maximum irony on this topic, please enjoy this excerpt from a recent Justice Thomas judgment-only concurrence employing the principles of federalism to argue against federal intervention against state legislative gerrymandering and other shitty voter suppression tactics:

“The choice is best left for the people of the states to decide for themselves how they should apportion their legislatures. There is no single ‘correct’ method of apportioning state legislatures. And the Constitution did not make this court a centralized politburo appointed for life to dictate to the provinces the ‘correct’ theories of democratic representation, or the ‘best’ electoral systems for securing truly representative government.” — Justice Clarence Thomas, Evenwel v. Abbott, №14–940.[22]

For those of you keeping score at home, per Justice Thomas, the federal judiciary intervening to enforce The Guarantee of Republican Form of Government clause is undemocratic authoritarianism but the same vis a vis the Elections Clause is a mandatory duty necessary to protect the constitution. Woof.

[1] https://www.pewresearch.org/fact-tank/2020/07/15/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/

[2] https://www.brookings.edu/blog/fixgov/2018/06/04/senate-obstructionism-handed-judicial-vacancies-to-trump/

[3] https://assets.documentcloud.org/documents/7276432/10-26-20-DNC-v-Wisconsin-SCOTUS-Order.pdf

[4] https://www.supremecourt.gov/opinions/20pdf/20-542_i3dj.pdf

[5] https://www.washingtonpost.com/outlook/supreme-court-election-rulings/2020/10/29/6a7b65d6-1991-11eb-aeec-b93bcc29a01b_story.html

[6] https://apnews.com/article/supreme-court-election-orders-4820caf0f0e8a7aaa3488f242b633cdf

[7] https://ecf.ca8.uscourts.gov/opndir/20/10/203139P.pdf

[8] https://www.reuters.com/article/us-usa-election-minnesota/u-s-appeals-court-upends-minnesota-plan-to-extend-deadline-for-receiving-ballots-idUSKBN27E3P3

[9] https://lawandcrime.com/2020-election/judge-warns-8th-circuits-drastic-intervention-in-minnesota-election-ignores-substantial-risk-of-disenfranchisement/

[10] https://slate.com/news-and-politics/2020/10/texas-drive-through-voting-throw-out-ballots.html

[11] https://assets.documentcloud.org/documents/20401146/sd-tex-20-cv-03709.pdf

[12] https://lawandcrime.com/2020-election/ultra-conservative-judge-assigned-to-texas-republicans-lawsuit-which-seeks-to-toss-out-117000-ballots-in-harris-county/

[13] https://communityimpact.com/houston/lake-houston-humble-kingwood/election/2020/10/23/texas-supreme-court-rules-harris-county-drive-thru-curbside-voting-can-continue/

[14] There is A LOT of material being published very quickly and I am not perfect, so I may have missed some things. Please correct me if you see anything contrary!

[15] https://electionlawblog.org/?p=115927

[16] Hortonville Joint School District №1. v. Hortonville Education Ass’n, 426 U.S. 482, 488 (1976)

[17] See e.g. 28 U.S.C. § 1257

[18] https://www.nytimes.com/2016/04/05/us/politics/supreme-court-one-person-one-vote.html

[19] Wesberry v. Sanders, 376 U. S. 1, 7–8, Reynolds v. Sims, 377 U. S. 533, 568

[20] https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1290&context=wmlr

[21] https://www.wikiwand.com/en/Adequate_and_independent_state_ground#:~:text=The%20adequate%20and%20independent%20state%20ground%20doctrine%20states%20that%20when,(1)%20%E2%80%9Cadequate%E2%80%9D%20to

[22] https://www.supremecourt.gov/opinions/15pdf/14-940_ed9g.pdf