Cert. Petition Filed in Supreme Court in Pennsylvania Election Case (Bognet) Proposes Resolution of Independent State Legislature Doctrine After Election Is Over

From the cert petition:

This case presents critically important issues about the conduct of federal elections that have split the lower courts. Do State courts and executive
officials have authority to alter legislatively established election rules, despite the U.S. Constitution’s vesting of authority to set the rules for
federal elections in State legislatures? If State courts or executive officials do alter election rules, who has standing to challenge those changes in federal court? And if State courts and executive officials change the rules on the eve of an election (or even after voting has started), should federal courts step aside and let those changes stand regardless of their constitutionality?


These issues were presented in an emergency posture repeatedly in the recently concluded election, including to this Court. See, e.g., Moore v. Circosta, No. 20A72, 2020 WL 6305036 (U.S. Oct. 28, 2020); Republican Party of Pa. v. Boockvar, No. 20-542, 2020 WL 6304626 (U.S. Oct. 28, 2020). And they are highly likely to recur in the future, particularly without a clear directive from this Court. This case presents an opportunity for the Court to resolve these issues in an orderly manner on full briefing and argument, rather than on the “shadow docket” under the time pressures of an ongoing election.


The conflict and confusion in the lower courts regarding the issues presented is exemplified by the disparate treatment given to claims arising from attempted extensions of legislatively established deadlines for receipt of absentee ballots in Pennsylvania, North Carolina, and Minnesota.

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