“Trump v. Biden: An Opinion for a Hypothetical Case”

Ned Foley has posted this draft on SSRN (forthcoming Ohio State L.J. Online). Here is the abstract:

In RNC v. DNC, the U.S. Supreme Court issued an important, but sharply divided, 5-4 ruling concerning the power of courts to remedy potentially outcome-determinative disenfranchisement in a major statewide election. The particular case involved Wisconsin’s April 2020 election for a seat on the state’s supreme court (as well as the presidential primary), but the same type of issue easily could arise in the context of the November 2020 general election. This essay imagines a hypothetical case closely related to the actual RNC v. DNC facts, but significantly different in key respects. First, the hypothetical remedy does not contain the specific flaw that caused the Court’s majority to modify the actual remedy in RNC v. DNC (namely, permitting voters to cast ballots for extra days after Election Day). Second, the hypothetical remedy is issued by a state supreme court, rather than a lower federal court. To consider whether these differences would be enough to avoid a similar 5-4 split, and instead might produce greater consensus within the Court, the essay offers a hypothetical opinion to reason through the legal analysis involving the hypothetical facts. Readers are invited to consider whether the reasoning of this hypothetical opinion is sound, or whether it too is vulnerable to the kind of jurisprudential disagreement that produced the sharp divide in RNC v. DNC.

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