Barrett didn’t participate! Can we hope that’s because she’s decided to recuse from all 2020 election decisions? Or is it only because this particular case had already been decided by the Court? Notably the Luzerne County Board of Elections filed a motion Tuesday asking Barrett to recuse herself.
Today’s Court decision mirrors their 4-4 decision in this same case earlier this month, Republican Party of Pennsylvania v. Boockvar. This week the RNC sought reconsideration, obviously hoping that Barrett would break the tie.
If you’re wondering how the Pennsylvania decisions differ from the recent decision in DNC v Wisconsin, consult Chief Justice Roberts’ opinion in the Wisconsin case:
In this case, as in several this Court has recently addressed, a District Court intervened in the thick of election season to enjoin enforcement of a State’s laws. Because I believe this intervention was improper, I agree with the decision of the Seventh Circuit to stay the injunction pending appeal. I write separately to note that this case presents different issues than the applications this Court recently denied in Scarnati v. Boockvar, ante, at ___, and Republican Party of Pennsylvania v. Boockvar, ante, at ___. While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes. Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin.
More to come, that’s for sure.
Wednesday, Oct 28, 2020 · 10:18:23 PM +00:00 · WildLilac
As explained in the comments, this probably isn’t as positive as it appeared at first glance, and Barrett didn’t actually recuse herself. Rather, she did not take part in the vote...
“because of the need for a prompt resolution of it and because she has not had time to fully review the parties’ filings,” court spokeswoman Kathy Arberg said in an email.
Also the Court left open the possibility of post-election review, which is bad news.
Justice Samuel Alito, writing for three justices, indicated he would support the high court’s eventual review of the issue. But, he wrote, “I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election.”
Whatever that means...
Thursday, Oct 29, 2020 · 12:25:37 AM +00:00 · WildLilac
When I wrote the diary, I assumed that it was once again a 4-4 split but via the comments apparently Kavanaugh did not vote with the conservatives this time. That is interesting. I read Kavanaugh’s opinion in the Wisconsin case, which was consistent with Roberts, and I could not reconcile his first vote in Pennsylvania with his opinion in Wisconsin. Now I’m wondering if he’s shifted away from interfering with the Pennsylvania Supreme Court’s election-law decisions. That would be more consistent with his view in Wisconsin. Maybe others can weigh in on this...