Tuesday, September 16, 12:15pm-1:15pm PT, Webinar
Register here.
Ben Haiman, UVA Center for Public Safety and Justice, Liz Howard, NYU Law Brennan Center for Justice, and Stephen Richer, Ash Center for Democratic Governance and Innovation, Harvard Kennedy School
Richard L. Hasen, moderator (Director, Safeguarding Democracy Project, UCLA)
UCLA School of Law is a State Bar of California approved MCLE provider. This session is approved for 1 hour of MCLE credit.
Nick Corasaniti in The NY Times on the retention elections for three seats held by Democrats on the Pennsylvania Supreme Court: “What’s at stake is nothing less than control of the highest court in the most important swing state in the country.”
I would point out that previous rulings of the Pennsylvania Supreme Court, including in 2020, raised suspicions on judicial overreaching among SCOTUS members and potentially provoked invocation of the Independent State Legislature Doctrine, which eventually led to Moore v. Harper. If the Pennsylvania Supreme Court were to stray too far in its interpretation of relevant state laws, including the state’s constitution, in 2028, I wouldn’t be surprised to see a majority of SCOTUS intervening based upon the standard it announced in Moore v. Harper.
It’s not exactly election law news, narrowly defined, but it seems significant enough to worth noting: Trump has filed a Florida state-law defamation complaint against the New York Times, several of its star reporters, and also Penguin Random House and the authors of the book Lucky Loser: How Donald Trump Squandered His Father’s Fortune and Created the Illusion of Success. The suit seeks $15 billion–yes, that’s billions with a b–in damages. There’s plenty of news coverage of it this morning; it leads the POLITICO Playbook newsletter, where I first saw it.
I know that Trump secured a settlement with Paramount (CBS), and maybe that’s his strategy here. It is perhaps ironic to recall that the landmark defamation case New York Times v. Sullivan involved a lawsuit in a state court by a public official against the same newspaper. Justices Thomas and Gorsuch have called for reconsidering that First Amendment precedent. We will see what if anything develops on that front, especially in the wake of calls (including by AG Pam Bondi) to suppress hate speech in the wake of Charlie Kirk’s horrific assassination. (Bondi’s remarks provoked this commentary on the National Review.) I don’t want to be a First Amendment alarmist–and as anyone who’s taught a First Amendment course knows (it’s been quite a few years for me), there are significant line-drawing issues in many areas of First Amendment law–but it’s obviously essential for any health democracy that politicians in power cannot suppress dissent because they don’t like criticism of their conduct or character. (I learned First Amendment law from the great Vince Blasi, who emphasized this key point, including in his article The Checking Value in First Amendment Theory. Another one of his articles, The Pathological Perspective and the First Amendment, which I had the privilege to cite-check as a junior law review staff member, also seems relevant at this moment.)
I’m looking forward to listening to this Odd Years podcast, given David Wasserman’s unsurpassed expertise on congressional redistricting.
ABC4 [Salt Lake City] reports, stating that the state supreme court’s order “means that unless another stay is granted, presumably by the U.S. Supreme Court, the Utah Legislature will need to draw new congressional maps by September 25.” I’m unaware, however, of any federal issues in the case that would give SCOTUS jurisdiction to issue a stay. I have not been following this case closely, but the Utah Supreme Court’s opinion accompanying its ruling (which is contained in the news report) seems to focus exclusively on issues of state law.
UPDATE: as one astute reader noted, there is at least the theoretical possibility of raising a federal question by claiming that the state judiciary contravened the prerogative of the state legislature to make the rules for congressional elections pursuant to the relatively modest version of the Independent State Legislature Doctrine articulated in Moore v. Harper. But it’s not clear to me what would be the specific argument that the state judiciary went too far in interpreting the state’s constitution. Of course, it is also possible that the current U.S. Supreme Court would overturn the decision in Arizona Independent Redistricting Commission, which permits citizens initiatives to constrain gerrymandering of a state’s congressional districts. But I don’t know whether a challenge to that precedent under the doctrine of stare decisis has been properly presented in that case, or if SCOTUS would have the appetite to entertain it.
The Guardian reports. I doubt that defying court orders is the best way to combat election denialism. The story discusses Democrats in Georgia who were found in contempt of court for refusing to appoint Republican election commissioners on the ground that they were “election denialists.” One of the Democrats defended their position by saying “we have no choice but to resist.” I would say, to the contrary, that the rule of law needs to be followed, which includes obeying court decrees and appealing them if necessary. I’m no fan of election denialism, as anyone who’s read my work knows, but ultimately the capacity of our democracy to sustain itself depends on handling election administration matters according to what the law requires, rather than what one personally believes is required in the particular situation.