A flurry of activity today, on a Saturday, from the Pennsylvania Supreme Court. Perhaps the most important statement is this one coming from the Court per curiam opinion in the undated/misdated timely ballots case: “This Court will neither impose nor countenance substantial alterations to existing laws and procedures during the pendency of an ongoing election. See Crookston v. Johnson, 841 F.3d 396, 398 (6th Cir. 2016) (“Call it what you will — laches, the Purcell[1] principle, or common sense — the idea is that courts will not disrupt imminent elections absent a powerful reason for doing so.”). It also added this footnote: “However, we will continue to exercise our appellate role with respect to lower court
decisions that have already come before this Court in the ordinary course. See, e.g., Genser v. Butler Cty. Bd. of Elections, 26 & 27 WAP 2024; Cntr. for Coalfield Justice v. Washington Cty. Bd. of Elections, 28 WAP 2024.”

And here is the order setting for briefing one of those appeals “in the ordinary course:”

The issues, rephrased for clarity and brevity, are:

(1) Whether the Commonwealth Court erred in holding the mail-in ballot return policy implemented by the Washington County Board of Elections resulted in violations of electors’ procedural due process rights.

(2) Whether the Commonwealth Court erred in affirming the trial court’s injunction and order directing the board to (1) “notify any elector whose mailin packet is segregated for a disqualifying error, so the voter has an opportunity to challenge (not cure) the alleged defects”; (2) “input the accurate status of the mail-in packet in the SURE system and provide the
status to the elector if requested”; and (3) “properly document in the poll [259 WAL 2024] books that the elector has not ‘voted’ when an elector’s mail-in packet is egregated for a disqualifying defect in accordance with 25 P.S. §3150.16 (which will allow the elector the opportunity to cast a provisional ballot) and choose the most appropriate selection in the SURE system to reflect as
such.” Opinion and Order, Ctr. for Coalfield Justice v. Washington Cty. Bd. of Elections, No. 2024-3953, at 4 (C.P. Washington, Aug. 23, 2024).

Yesterday was publication day for my new book, Aligning Election Law. The book builds on several earlier articles of mine, and argues that promoting alignment between governmental outputs and popular preferences should be an overarching goal for election law. You can download the book’s introduction for free here. For ELB readers in the Boston area, I’ll be giving a talk about the book at MIT on Oct. 21 at 6pm; folks can RSVP here. And here’s the book’s abstract:

This book argues that alignment between governmental outputs and popular preferences should be a tenet of the law of democracy. Alignment is a core democratic value. Yet it isn’t appreciated by election law scholarship, much of which focuses on other democratic goals. Nor do the courts consider alignment when deciding election law cases. In fact, the Roberts Court has undermined alignment at almost every turn. And in part because of these rulings, modern American politics is marred by pervasive misalignment. If alignment were recognized as a legal and political principle, it could function as a sword or as a shield. As a sword, alignment would be wielded offensively to strike down misaligning electoral practices (or not to enact them in the first place). As a shield, alignment would be deployed defensively to justify aligning electoral practices (in litigation or in public discourse). The federal courts could be a valuable ally in the struggle for alignment. Unfortunately, the Roberts Court has been a foe rather than a friend, declining to invalidate many misaligning policies and nullifying several aligning ones. Fortunately, federal litigation isn’t the only route to a more aligned political system. Congress could pass a range of potent aligning laws. So could state legislatures. State courts are also more promising venues, relative to their federal counterparts, because they adhere to a democracy principle unfamiliar to federal law. Last but not least, the people themselves could pursue alignment on their own, through either direct democracy or wholly private activity.

A case out of Montana is going to provide the next test of where the Court stands on the independent state legislature doctrine (ISL). In Moore v. Harper (2023), the Court rejected a more extreme version of the doctrine, but endorsed a weaker version, as I discussed in this NYTimes essay. Under that version, “[S]tate courts may not so exceed
the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by” the Elections Clause, which applies to federal elections. Scholars have debated how much teeth this weaker version might have.

In MT, the state court struck down via the state constitution two changes the legislature made to state election laws regulating federal elections. The first change ended same-day voter registration and required voters to register no later than noon the day before the election. The second change required the MT Secretary of State to adopt regulations banning paid absentee ballot collection. In a 5-2 decision, the MT Supreme Court held that both these legislative changes violated the state’s constitutional protections for the right to vote. The court held that the state constitution provides greater protection for the right to vote than is provided under federal constitutional law by the Anderson-Burdick doctrine.

MT has filed a cert. petition arguing that this state court interpretation of the state constitution violates the constraints Moore v. Harper announced. The case is Jacobsen v. MT Democratic Party. Several amicus briefs have been filed in support of the petition, including by 15 states. The Court is due to discuss the case at its Oct. 18th conference, but since respondents have waived their right to file a response, the Court’s first action might be to request a response. MT has not sought an emergency stay, so if the Court hears the case, it would be well after the election.

This case definitely bears watching. If the Court denies cert., that will be a signal that the weaker version of the ISL is not likely to be robust. If the Court grants cert., that would signal the opposite.

AP:

Betting on the outcome of U.S. Congressional elections can resume, at least temporarily, a federal appeals court ruled Wednesday.

The U.S. Court of Appeals for the District of Columbia Circuit dissolved an order it had previously issued that prevented New York startup company Kalshi from taking bets on which political party would control the House and Senate after this November’s elections.

The ruling clears the way for such betting to resume while the court further considers the underlying issues in the case.

So far, Kalshi has only offered bets on congressional races; it was not immediately clear whether they plan to expand offerings to include the presidential election.