_{By David B. Rivkin Jr. and Lee A. Casey}

_{August 22, 2022, in the Wall Street Journal}

_{Was the Federal Bureau of Investigation justified in searching Donald Trump’s residence at Mar-a-Lago? The judge who issued the warrant for Mar-a-Lago has signaled that he is likely to release a redacted version of the affidavit supporting it. But the warrant itself suggests the answer is likely no—the FBI had no legally valid cause for the raid.}

_{The warrant authorized the FBI to seize “all physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§793, 2071, or 1519” (emphasis added). These three criminal statutes all address the possession and handling of materials that contain national-security information, public records or material relevant to an investigation or other matters properly before a federal agency or the courts.}

_{The materials to be seized included “any government and/or Presidential Records created between January 20, 2017, and January 20, 2021”—i.e., during Mr. Trump’s term of office. Virtually all the materials at Mar-a-Lago are likely to fall within this category. Federal law gives Mr. Trump a right of access to them. His possession of them is entirely consistent with that right, and therefore lawful, regardless of the statutes the FBI cites in its warrant.}

_{Those statutes are general in their text and application. But Mr. Trump’s documents are covered by a specific statute, the Presidential Records Act of 1978. It has long been the Supreme Court position, as stated in Morton v. Mancari (1974), that “where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” The former president’s rights under the PRA trump any application of the laws the FBI warrant cites.}

_{The PRA dramatically changed the rules regarding ownership and treatment of presidential documents. Presidents from George Washington through Jimmy Carter treated their White House papers as their personal property, and neither Congress nor the courts disputed that. In Nixon v. U.S. (1992), the U.S. Circuit Court of Appeals for the District of Columbia held that Richard Nixon had a right to compensation for his presidential papers, which the government had retained under the Presidential Recordings and Materials Preservation Act of 1974 (which applied only to him). “Custom and usage evidences the kind of mutually explicit understandings that are encompassed within the constitutional notion of ‘property’ protected by the Fifth Amendment,” the judges declared.}

_{The PRA became effective in 1981, at the start of Ronald Reagan’s presidency. It established a unique statutory scheme, balancing the needs of the government, former presidents and history. The law declares presidential records to be public property and provides that “the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records.”}

_{The PRA lays out detailed requirements for how the archivist is to administer the records, handle privilege claims, make the records public, and impose restrictions on access. Notably, it doesn’t address the process by which a former president’s records are physically to be turned over to the archivist, or set any deadline, leaving this matter to be negotiated between the archivist and the former president.}

_{The PRA explicitly guarantees a former president continuing access to his papers. Those papers must ultimately be made public, but in the meantime—unlike with all other government documents, which are available 24/7 to currently serving executive-branch officials—the PRA establishes restrictions on access to a former president’s records, including a five-year restriction on access applicable to everyone (including the sitting president, absent a showing of need), which can be extended until the records have been properly reviewed and processed. Before leaving office, a president can restrict access to certain materials for up to 12 years.}

_{The only exceptions are for National Archives personnel working on the materials, judicial process, the incumbent president and Congress (in cases of established need) and the former president himself. PRA section 2205(3) specifically commands that “the Presidential records of a former President shall be available to such former President or the former President’s designated representative,” regardless of any of these restrictions.}

_{Nothing in the PRA suggests that the former president’s physical custody of his records can be considered unlawful under the statutes on which the Mar-a-Lago warrant is based. Yet the statute’s text makes clear that Congress considered how certain criminal-law provisions would interact with the PRA: It provides that the archivist is not to make materials available to the former president’s designated representative “if that individual has been convicted of a crime relating to the review, retention, removal, or destruction of records of the Archives.”}

_{Nothing is said about the former president himself, but applying these general criminal statutes to him based on his mere possession of records would vitiate the entire carefully balanced PRA statutory scheme. Thus if the Justice Department’s sole complaint is that Mr. Trump had in his possession presidential records he took with him from the White House, he should be in the clear, even if some of those records are classified.}

_{In making a former president’s records available to him, the PRA doesn’t distinguish between materials that are and aren’t classified. That was a deliberate choice by Congress, as the existence of highly classified materials at the White House was a given long before 1978, and the statute specifically contemplates that classified materials will be present—making this a basis on which a president can impose a 12-year moratorium on public access.}

_{The government obviously has an important interest in how classified materials are kept, whether or not they are presidential records. In this case, it appears that the FBI was initially satisfied with the installation of an additional lock on the relevant Mar-a-Lago storage room. If that was insufficient, and Mr. Trump refused to cooperate, the bureau could and should have sought a less intrusive judicial remedy than a search warrant—a restraining order allowing the materials to be moved to a location with the proper storage facilities, but also ensuring Mr. Trump continuing access. Surely that’s what the government would have done if any other former president were involved.}

_{Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.}

_{Source: https://www.wsj.com/articles/the-trump-warrant-had-no-legal-basis-mar-a-lago-affidavit-presidential-records-act-archivist-custody-classified-fbi-garland-11661170684}

By David B. Rivkin, Jr., and Lee A. Casey

August 10, 2022, in the Wall Street Journal

The warrant under which federal agents searched Donald Trump’s Florida home hasn’t been made public, but press leaks suggest that it was related to the former president’s suspected mishandling of official documents. That has prompted speculation that Mr. Trump could be prosecuted under a law governing the misuse of federal government documents, which includes a provision for disqualification from federal office. According to this theory, if Mr. Trump is convicted, he would be ineligible to serve a second term as president. It won’t work. The theory is deficient on both statutory and constitutional grounds.

Presidential records were traditionally considered the former president’s personal property. Congress acknowledged this in the Presidential Libraries Act of 1955, which “encouraged”—but didn’t require—ex-presidents to deposit their papers for the benefit of researchers and history.

After President Richard Nixon resigned in August 1974, he struck an agreement with the archivist of the United States to donate his papers, but he reserved the right to destroy certain materials, including some of the infamous Watergate tapes. To prevent this, Congress enacted the Presidential Recordings and Materials Preservation Act of 1974. That law, which applied only to Nixon, required these materials to be secured by the government and ultimately made public under appropriate regulations. It provided for financial compensation to the former president, a further acknowledgment of his property interest in the materials.

The Presidential Records Act of 1978 addressed the handling of later presidents’ papers. The PRA asserts government ownership and control of “presidential records,” as defined in the statute, and requires the archivist to take possession of these records when a president leaves office, to preserve them, and to ensure public access. There are important exceptions—in particular, for qualifying materials designated by a lame-duck president to be held confidential for 12 years after he leaves office. These materials include “confidential communications requesting or submitting advice, between the president and the president’s advisers, or between such advisers.”

The law also directs presidents to “assure that the activities, deliberations, decisions, and policies” reflecting the execution of their office are “adequately documented.” Once created, these records must be preserved and managed, or disposed of, in accordance with the statute. The PRA defines presidential records to include “documentary materials” created or received by the president or his immediate staff in carrying out activities related to his official duties. Presidential records don’t include records of a “purely private or nonpublic character” unrelated to the execution of the office.

Significantly, while the PRA vests the U.S. District Court for the District of Columbia with jurisdiction over any action brought by a former president claiming a violation of his rights or privileges under the act, it establishes no penalties, civil or criminal, for its violation. The statute also guarantees that “presidential records of a former president shall be available to such former president or the former president’s designated representative.”

Other federal statutes may permit the prosecution of people who improperly dispose of presidential records, which are now considered government property. The one of most interest to Mr. Trump’s foes appears to be 18 U.S.C. Section 2071(b), which imposes fines and up to three years’ imprisonment on anyone having custody of records deposited in a “public office” who “willfully and unlawfully” mishandles these records. It provides that on conviction, the defendant “shall forfeit his office and be disqualified from holding any office under the United States.”

But the Constitution forbids that result with respect to the presidency. Even assuming the government could prove beyond a reasonable doubt that Mr. Trump deliberately mishandled government documents knowing this to be a violation of federal statute—a difficult task, since the PRA itself guarantees his access to his presidential records and former presidents are generally entitled to receive classified information—a court couldn’t disqualify him from serving as president.

The Constitution establishes the qualifications for election to the presidency: Only natural-born American citizens over 35 who have been U.S. residents for at least 14 years may serve. The Constitution also provides the only mechanism whereby an otherwise qualified person may be disqualified from becoming president: This penalty can be imposed (by a separate vote of the Senate) on someone who has been impeached and convicted for high crimes and misdemeanors. The proposed application of Section 2071(b) to the presidency would create an additional qualification—the absence of a conviction under that statute—for serving as president. Congress has no power to do that.

In Powell v. McCormack (1969) and U.S. Term Limits Inc. v. Thornton (1995), the Supreme Court decided comparable questions involving the augmentation of constitutionally established qualifications to serve in Congress. In the former case, the House refused to seat a constitutionally qualified and duly elected member, Rep. Adam Clayton Powell Jr. of New York, because it concluded he had diverted House funds to his own use and falsified reports of foreign-currency expenditures. The justices ruled that Powell couldn’t be denied his seat on these grounds, as that would effectively add an extraconstitutional “qualification” for office. That, they concluded, would deprive the people of an opportunity to elect candidates of their choice, contrary to the Constitution’s structure. The court cited Federalist No. 60, in which Alexander Hamilton wrote: “The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.”

The high court reaffirmed that conclusion in Thornton, which struck down an Arkansas ballot measure imposing term limits on the state’s U.S. representatives and senators. The justices articulated as their “primary thesis” that “if the qualifications for Congress are fixed in the Constitution, then a state-passed measure with the avowed purpose of imposing indirectly such an additional qualification”—in this case, not having already served a specific number of terms—“violates the Constitution.”

Using Section 2071(b) to disqualify Mr. Trump (or anyone else) from serving as president is unsupportable under Powell and Thornton. Such a claim would be far weaker than the one the House made in Powell, as the constitution authorizes each congressional chamber to judge the “qualifications of its own members” but gives Congress no authority over presidential qualifications. The only constitutional means to disqualify a president for wrongdoing is through impeachment and conviction.

If preventing Mr. Trump from running in 2024 was the purpose of the Mar-a-Lago search, the government wasted its time and the taxpayers’ resources.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/trump-cant-be-disqualified-over-documents-fbi-mar-a-lago-presidential-records-act-constitution-impeachment-conviction-supreme-court-2024-11660159610

By David B. Rivkin, Jr., and Jason Snead

August 1^st, 2022, in the Wall Street Journal

Marc Elias, the leading Democratic election lawyer, complains that “a dangerous theory will have its day in court” this fall. That’s rich—he was instrumental in bringing it there by litigating the case that raises it. But his dire warnings have attracted plenty of support. The headline of a Washington Post op-ed by a trio of legal scholars blares the threat of a “body blow to our democracy.”

Moore v. Harper is the product of a nationwide campaign, led by Mr. Elias, to mow down state election laws that make it easy to vote but hard to cheat. That effort is a large part of the reason the Supreme Court felt the need to weigh in.

After North Carolina gained a House seat in the 2020 census, the state’s Republican-controlled Legislature drew a new congressional map. Mr. Elias and his clients petitioned state courts to toss out that map as unduly partisan in violation of the state constitution—a legal theory the North Carolina Supreme Court had rejected as unworkably open-ended in 2015.

This time, citing a handful of clauses plucked seemingly at random from the North Carolina Constitution, the state supreme court invented a new, judicially enforceable prohibition on so-called partisan gerrymandering. It used this newfound power to toss out the Legislature’s map and replace it with one of its own design, along the lines Mr. Elias’s experts proposed.

Which brings us—and Mr. Elias—to the U.S. Supreme Court. The U.S. Constitution’s Elections Clause provides that the “manner” of conducting congressional elections must be “prescribed in each state by the legislature thereof.” As Justice Samuel Alito has noted, the clause “specifies a particular organ of a state government.” It doesn’t assign this authority to the state as a whole. That necessarily limits the power of state courts and executive-branch officials to override lawmakers’ handiwork.

Until about a decade ago, state legislatures were in the driver’s seat on election laws. But as Republicans took majorities in state capitals around the country, Democrats bowed out of the legislative process, turning to state officials and state courts instead. Through backroom deals, they persuaded election officials to drop ballot-integrity regulations, open up drop boxes, and loosen deadlines. When deal-making didn’t work, they asked state courts to rewrite election laws wholesale, typically based on vague language in state constitutions like the declaration in North Carolina’s constitution that “all elections shall be free.”

The pandemic accelerated this process in 2020. Through settlements and litigation, Mr. Elias and his colleagues wielded a massive budget to sustain a campaign of litigation that forced states to adopt Democratic election-law priorities against the will of the legislature. Covid became an excuse to upend the law, but the end result was widespread chaos driven by ever-shifting rules intended to benefit one side.

Harper v. Hall, as the North Carolina case was styled in state court, was the next logical step. If state courts are willing to draft their own election codes, why not their own maps too? Never mind that years of litigation had proved, as the U.S. Supreme Court observed in Rucho v. Common Cause (2019), another case from North Carolina, that there is no “clear, manageable, and politically neutral” legal standard for partisan-gerrymandering claims.

That was a federal case, so it didn’t address the limits on state judges’ power. Moore gives the justices an opportunity to do so, with respect to voting rules as well as redistricting. The idea that honoring the Constitution’s limits on state judicial power is a threat to democracy is risible. When state legislatures make laws governing federal election law, their power is subject to all the limitations of the U.S. Constitution and federal statutes, including the 15th Amendment and the Voting Rights Act, which prohibit racial discrimination.

The shrillest critics of the appeal in Moore assert that state legislatures simply can’t be trusted and have to be closely supervised by state supreme courts. They point to Donald Trump’s failed attempts to work state legislatures to swing the vote in his favor following the 2020 election, by disregarding the Election Day result and appointing pro-Trump electors. Yet no state legislature did Mr. Trump’s bidding. No state election law on the books today gives state legislatures an open-ended power to disregard the popular vote and appoint presidential electors, and there’s no indication of any serious attempt to enact such a law.

Further, it would violate federal law. Like the Elections Clause, the Electors Clause, which governs presidential elections, gives state legislatures power to set the “manner” of choosing presidential electors. But that power is tempered by Congress’s authority to set “the time of choosing the electors.” Federal law plainly states that presidential electors “shall be appointed” on Election Day. So although a state legislature has broad leeway in setting the rules for the presidential vote, it can’t change the rules, or nullify the voters’ decision, after Election Day. Moore won’t change that.

Moore’s real threat is to partisan election lawfare and the gravy train that the Elias Law Group, 70 attorneys strong, is riding. The real threat to democracy is cynical “voting rights” litigation brought to sway election outcomes and the many ways that it undermines the administration of the vote and public confidence in the electoral process. And what could be fairer or more neutral than following the Constitution, or more democratic than leaving the matter to elected lawmakers?

Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush. Mr. Snead is executive director of the Honest Elections Project.

Source: https://www.wsj.com/articles/marc-elias-curious-idea-of-democracy-moore-v-harper-court-state-judges-election-law-gerrymandering-legislature-11659380162

By David B. Rivkin, Jr., and Mark Wendell DeLaquil

July 11, 2022, in the Wall Street Journal

In a case last month upholding religious liberty, Justice Neil Gorsuch announced that an old precedent had ceased to be good law: “This Court long ago abandoned Lemon.” One day the Supreme Court may issue a similarly belated death notice for Chevron v. Natural Resources Defense Council, the 1984 ruling that vastly expanded the power of administrative agencies. If so, the beginning of the end will have come on the closing day of this year’s term, when the high court decided West Virginia v. Environmental Protection Agency.

In Chevron, the justices held that when Congress enacts an “ambiguous” statute, courts are obliged to defer to any “reasonable” interpretation offered by an executive-branch agency. The Chevron doctrine assumes that agency personnel have expertise that judges lack and that agencies are more democratic than courts because the former answer to the president. Chevron deference allowed the EPA to set national carbon-dioxide standards, the Transportation Department to prescribe automobile safety features and numerous other agencies and departments to regulate virtually every aspect of American life.

But this approach corroded democratic accountability by freeing lawmakers from the duty to legislate clearly. West Virginia is an important step in returning responsibility for solving the nation’s problems where it belongs, to Congress. It will shape resolution of the key policy issues in the remainder of the Biden administration and beyond.

Under Chevron, as Chief Justice John Roberts noted for the court in West Virginia, the absence of a political consensus to address difficult problems led to undertake extravagant regulatory efforts. Among them were the Centers for Disease Control and Prevention’s attempting to dictate housing policy, the Occupational Safety and Health Association’s driving vaccination policy, and, in this case, the Environmental Protection Agency’s creating national energy policy by updating the Obama administration’s anti-fossil-fuel Clean Power Plan.

In these cases, the agencies acted outside their expertise and certainly didn’t promote political accountability. The legislative process of political compromise was bypassed and democracy subordinated to government lawyers stalking dusty library shelves in search of vague and outmoded statutes. The West Virginia decision buttressed legislative authority yet led to strident criticism from legislators, dramatizing how comfortable Congress has become in abdicating its responsibility for difficult policy decisions.

Chevron also dramatically weakened the judiciary’s ability to check agencies’ regulatory overreach. Before 1984, the judiciary took a “hard look” approach in assessing the legality of federal regulations. Chevron was more of a rubber stamp. Judges blessed specific regulations and countenanced agency actions that Congress had never authorized. It made a mockery of Chief Justice John Marshall’s declaration in Marbury v. Madison (1803): “It is emphatically the duty of the Judicial Department to say what the law is.”

West Virginia limits Chevron by fleshing out the “major questions doctrine,” a longstanding judicial presumption that when an administrative agency asserts authority over questions of great economic and political significance, it may act only if Congress has clearly authorized it to do so. Or, as the Constitution puts it: “All legislative powers herein granted shall be vested in a Congress of the United States.

West Virginia’s critics focus on its policy impact because its legal merit is so compelling. By proscribing ambiguous congressional delegation where it matters most, the major questions doctrine re-establishes judicial authority and legislative responsibility. Absent a clear statutory delegation of the power to regulate, the executive branch can’t regulate at all. Where statutory language is clear enough to grant regulatory authority, it should eliminate substantial ambiguity about how that authority can be exercised. This effectively strips agencies of much of their regulatory willfulness, compelling them to regulate only as Congress intended. The domain of Chevron deference is limited to filling in the interstitial details of statutes in which Congress has decided the policy stakes.

West Virginia and the major questions doctrine are certain to surface again soon. Take the Securities and Exchange Commission’s proposed climate-change disclosure regulations. The SEC has a statutory directive to protect investors, facilitate capital formation, and maintain the efficient operation of capital markets. It has neither the expertise nor the statutory authority to regulate greenhouse-gas emissions. In light of West Virginia, the SEC ought to withdraw its proposal.

The Federal Trade Commission is contemplating a regulation that, without any clear statutory authority and departing from well-established FTC practices, purports to ban mergers even when no anticompetitive harms are visited on consumers. The Education Department proposes to eliminate basic mandatory procedural due-process requirements, such as a live hearing and cross-examination, in Title IX regulations that govern disciplinary procedures in universities.

Going forward, the first question in any important case concerning agency power is whether Congress actually intended for the agency to be regulating at all, not whether agency attorneys were clever enough to find a vague statute to justify a new rule. The power of the administrative state is certain to recede, bolstering democratic accountability, economic growth and liberty.

Mr. Rivkin was lead outside counsel in the case brought by 27 states challenging the Obama administration’s Clean Power Plan, in which the Supreme Court issued a 2016 stay. Mr. DeLaquil is lead counsel for Westmoreland Mining Holdings, a party to a case the court decided last month with West Virginia v. EPA.

Source: https://www.wsj.com/articles/no-more-deference-to-the-administrative-state-west-virginia-v-epa-chevron-major-questions-john-roberts-regulation-democracy-congress-11657475255

By David B. Rivkin, Jr., and Jennifer L. Mascott

25 June 2022 in the Wall Street Journal

The most anxiously awaited Supreme Court decision in decades is also the least surprising. An act of institutional sabotage leaked Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization nearly eight weeks in advance. On Friday a five-justice majority definitively overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), affirming states’ authority to regulate abortion. In so doing, the court reclaimed its legitimate constitutional role and signaled a willingness to re-examine precedents that strayed across the line between law and policy or misconstrued important constitutional provisions.

But the draft opinion’s leak damaged the court, which requires the justices to collaborate in confidence. The leaker’s purpose seems obvious: a last-ditch effort to mobilize public opinion and activist protesters in hope of intimidating the justices into rethinking their position.

This breach was shocking but probably shouldn’t have been surprising. In the past several decades, and particularly since President Trump began appointing justices, the court has faced mounting opposition, including pointed threats against individual justices by members of Congress. Supreme Court nominations, especially by Republican presidents, have become ideological and partisan wars, sometimes featuring ugly uncorroborated allegations of personal misconduct. Sending mobs to threaten justices and their families at home was only the latest escalation.

These attacks on the court are part of a concerted campaign to undermine the legitimacy of American institutions and norms and the Constitution itself. The court’s most vociferous critics either don’t understand its proper role or, more likely, reject it. This was evident in the national debate over the leaked draft of Justice Alito’s opinion, which focused entirely on the policy and political implications of overturning Roe rather than its legal basis.

In fact, Dobbs imposes no policy. It simply states that abortion is not among those individual rights protected by the federal Constitution. The result is that this contentious issue has been returned to the state legislatures, which had primary responsibility for setting abortion policy until the court imposed its own views on the country in 1973.

It was at that time, and not today, that the justices overstepped their boundaries and ensured that the court would become the focus of political contention for half a century. Dobbs belatedly corrects that error by recognizing that the federal judiciary’s constitutional role is merely to decide cases and controversies, based upon the established tenets of law grounded in the Constitution, federal statutes and common law. Policy decisions properly belong to the elected branches of federal and state government.

Congress’s approval ratings are abysmally low, as are President Biden’s, and some critics have claimed the justices should be concerned that the Supreme Court’s ratings are declining too. But the federal judiciary is a countermajoritarian institution. The court does its most important work when it renders decisions that are unpopular but legally correct.

It bears emphasizing that Dobbs’s detractors lob objections that don’t reflect the true nature of the opinion. They claim the justices have shown a disregard for stare decisis, the doctrine of respecting precedent. In fact, the decision relies on the precedent in Washington v. Glucksberg (1997), which concluded that there is no constitutional grounding for any claimed right that is neither enumerated in the Constitution nor deeply rooted in the nation’s history and tradition.

Dobbs also marks a path toward restoring the constitutionally prescribed diffusion of powers among governmental branches, undergirded by a system of checks and balances. This uniquely American structure of government is the primary safeguard of individual liberty.

In the coming years, the court will face a series of momentous opportunities to perform its constitutional responsibilities. It will be called on to continue re-examining Congress’s authority to dictate state policy by attaching strings to funding measures. And in a series of cases over the past 30 years, the justices have issued rulings restoring some of the proper balance between the federal government and the states by reaffirming that there are limits on Congress’s authority to regulate interstate and foreign commerce. Those limits may now be tested depending on whether Congress decides to refederalize abortion by legislation either requiring or limiting its availability.

The court will also face key questions involving the relationship between Congress and the executive branch, such as the permissibility of broad congressional delegations of policy-making power to regulatory agencies and statutory limitations on the president’s constitutional duty to manage federal bureaucracies.

The extent to which executive agencies can adjudicate matters involving significant private-property and liberty interests without close judicial supervision is another question that the court likely will revisit. The justices are repeatedly being asked to resolve questions about whether agencies have overstepped their statutory authority to regulate, particularly in areas involving major policy questions. In the oft-repeated words of Chief Justice John Marshall : “It is emphatically the province and duty of the Judicial Department to say what the law is.” The burgeoning federal bureaucracy too often arrogates this power to itself, often overlooking statutory and constitutional constraints.

The Supreme Court’s legitimacy therefore is of utmost importance. The decision in Dobbs suggests a majority committed to the court’s proper role, which is to decide cases independent of political and popular winds.

Mr. Rivkin practices appellate and constitutional law in Washington. Ms. Mascott is an assistant professor at Antonin Scalia Law School and a former clerk for Judge Brett Kavanaugh and Justice Clarence Thomas.

Source: https://www.wsj.com/articles/supreme-court-reclaims-legitimacy-abortion-roe-v-wade-dobbs-v-jackson-women-health-reproductive-rights-life-originalism-justice-alito-11656084197

By David B. Rivkin, Jr., and Andrew M. Grossman

April 24, 2022, in the Wall Street Journal

Pennsylvania lawmakers in 2019 decided to allow mail-in voting for the first time. They enacted a statute providing that “a completed mail-in ballot must be received in the office of the county board of elections no later than eight o’clock P.M. on the day of the primary or election.” In 2020 the state Democratic Party went to court, arguing that in light of the Covid pandemic, the deadline “results in an as-applied infringement” of the right to vote.

The Democrat-dominated Pennsylvania Supreme Court—its members are chosen in partisan elections—sided with the party and ordered a deadline extension, even as it acknowledged the statutory language was clear and unambiguous. The U.S. Supreme Court declined to hear an appeal, so the 2020 election was conducted under this and other new, judge-imposed rules.

Usually there’s no reason for the high court to review a state-court decision about state law. But election law is different. The U.S. Constitution mandates that state legislatures make the laws governing federal elections for Congress and the presidency. The Pennsylvania ruling was therefore unconstitutional. But the justices in Washington, perhaps chastened by the enduring political controversy over Bush v. Gore (2000), seem reluctant to take up such cases close to an election. Fortunately, they will soon have an opportunity to address the issue and to avert the possibility of an electoral meltdown in 2024.

Pennsylvania wasn’t alone in 2020. Faced with Republican control of many state legislatures, the Democrats and their allies took advantage of the pandemic to upend that year’s voting process. Longstanding wish-list items like near-universal voting by mail, ballot “harvesting,” drop boxes, extended deadlines, and loosened identification and signature-match requirements came to pass in much of the country, often by state court order.

The pandemic disruption may be behind us, but litigation over election rules continues. One reason is the success of the Democrats’ 2020 efforts, which their current cases treat as setting a new legal baseline. Returning to ordinary pre-pandemic procedures, they claim, amounts to unlawful “voter suppression.”

But there’s another reason for the state-court litigation explosion: redistricting after the 2020 Census. If state judges are willing to second-guess voting laws, why not the maps too? New maps are often litigated, but what’s different this time is the number of cases asking courts to toss out alleged partisan gerrymanders. The U.S. Supreme Court closed the door to such claims under the federal Constitution in Rucho v. Common Cause (2019), reasoning that there was no “clear, manageable, and politically neutral” standard for courts to apply. The same objection applies to suits brought under state law, but Rucho didn’t address that question.

So they proliferated. Many states where Democrats could pick up House seats with a different map have faced lawsuits based on open-ended state constitutional provisions, such as North Carolina’s proclaiming “all elections shall be free.” Several states’ top courts have tossed out legislature-enacted maps; the North Carolina justices even authorized a lower court to hire its own mapmakers. Republicans won state-court decisions against Democratic gerrymanders in Maryland and New York state.

None of this passes constitutional muster. State courts can interpret and apply laws governing federal elections and consider challenges to them under federal law, including the Constitution. But they have no authority to strike those laws down under state constitutions, let alone a freestanding power to contrive their own voting rules and congressional maps. The U.S. Constitution often assigns powers and duties to the “states” generally, but Article I’s Elections Clause directs that the “times, places and manner” of conducting congressional elections shall “be prescribed in each state by the legislature thereof,” unless overridden by Congress. The Electors Clause similarly vests the “manner” of choosing presidential electors in “the legislature.”

In McPherson v. Blacker (1892), the U.S. Supreme Court recognized that the Electors Clause “leaves it to the legislature exclusively to define the method” of choosing electors and that this power “cannot be taken from them or modified by their state constitutions.” In State Legislature v. Arizona Independent Redistricting Commission (2015), it held that “redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking.”

Still, it’s no wonder plaintiffs and state judges have felt emboldened to buck these limitations. The decision of a state supreme court can be appealed only to the U.S. Supreme Court, which has shied away from such cases. Around the same time the justices declined to hear the 2020 Pennsylvania case, they turned back a request to block North Carolina officials from altering legislatively enacted mail-in ballot deadlines. This year, they denied emergency requests to block judge-made maps in North Carolina and Pennsylvania from being used in November.

Election-law cases present unique timing considerations, given the potentially disruptive consequences of changing laws or maps with an election approaching. When courts make changes weeks before a filing deadline or Election Day, the justices’ ability to right the wrong is severely constrained. There’s rarely a serious basis to press the issue after votes have been cast. Those circumstances apply in most election-law cases.

But unlike state-court orders meddling with voting procedures, which typically apply to one election only, congressional maps remain in place until they’re altered, which usually isn’t for a decade. So there’s no timing issue to prevent the court from hearing a redistricting case.

Justices Samuel Alito, Clarence Thomas and Neil Gorsuch dissented from last month’s denial of the North Carolina stay application, arguing that the case was a good vehicle to consider the power of state courts to rework federal-election laws. Justice Brett Kavanaugh wrote separately to say that the court should take a case raising the issue, but this one came too close to the 2022 election. North Carolina’s House speaker has petitioned the court to take the case in its next term. If it does, a decision would likely come next summer, nearly a year and a half before the 2024 election.

The court’s failure to resolve this issue could spell catastrophe. If the 2024 presidential vote is close in decisive states, the result will be an onslaught of litigation combining all the worst features of the 2000 and 2020 election controversies. The court’s precedents in this area all point toward legislature supremacy but leave the door cracked enough for canny litigants, abetted by state judges, to shove it open and seize electoral advantage. To avoid a constitutional crisis, the justices need to articulate with clarity that state courts can’t rely on state constitutions or their own judicial power to alter either congressional redistricting maps or voting rules in federal elections.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/how-to-avert-a-2024-election-disaster-supreme-court-mail-in-ballot-drop-box-covid-election-rules-pennsylvania-new-york-north-carolina-11650820394