If Petitioners Get Their Way in Moore v. Harper Case, the Dispute over Saturday Voting in Georgia Senate Runoff Would Spill into Federal Court as Well as State Court

I noted on the blog the other day that the state of Georgia, after losing in the state court of appeals, declined to appeal further the ruling that Georgia law allows counties to set Saturday as a day of early voting in their discretion. The counter argument is that state law does not allow Saturday voting after holidays. The question is one of the interpretation of the meaning of state law. The state GOP has appealed the question to the state supreme court, which is likely to rule very soon, given that we are just a few days away from that Saturday voting.

But I thought it worth pointing out that if the Petitioners in Moore v. Harper get their way, the aggrieved party in state court would be able to get a second bite at the apple in federal court. They would be able to argue—whichever way the state court rules—that the state court has “usurped” the power of the Legislature to alone to “regulate” federal elections. In other words, every bona fide dispute over the interpretation of a state election statute creates not just a state law claim but a federal one as well, putting federal courts into the position of second-guessing state court rulings as a matter of federal constitutional law.

This would be an extra big mess if there were both state and federal races on the runoff ballot, because a federal court ruling would apply only to the federal races and the state rules would control for the state races. It’s really an untenable rule that will inject federal courts into a huge number of garden variety election disputes at the worst time.

(I make this point more fully in my amicus brief in Moore, relying in part of Carolyn Shapiro’s excellent forthcoming article.)

UPDATE: In a brief unsigned order with no noted dissents, the Supreme Court of Georgia allowed early voting on Saturday to go forward.

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