Amicus Curiae Brief — Republican Party of Pennsylvania, Applicant v. Kathy Boockvar, Secretary of Pennsylvania, et al.

Nos. 20A53, 20A54

In the Supreme Court of the United States

JOSEPH B. SCARNATI, III, ET AL.,

Applicants,

v.

KATHY BOOCKVAR, SEC’Y OF PENNSYLVANIA, ET AL.,

Respondents.

REPUBLICAN PARTY OF PENNSYLVANIA,

Applicant,

v.

KATHY BOOCKVAR, SEC’Y OF PENNSYLVANIA, ET AL.,

Respondents.

On Applications for Stay Pending Disposition

of a Petition for a Writ of Certiorari

MOTION FOR LEAVE TO FILE AND BRIEF OF

AMICUS CURIAE EAGLE FORUM EDUCATION

& LEGAL DEFENSE FUND IN SUPPORT OF

APPLICANTS AND A STAY

LAWRENCE J. JOSEPH

1250 CONNECTICUT AVE. NW

SUITE 200

WASHINGTON, DC 20036

(202) 669-5135

ljoseph@larryjoseph.com

Counsel for Amicus

MOTION FOR LEAVE TO FILE AMICUS

CURIAE BRIEF

Movant Eagle Forum Education & Legal Defense

Fund respectfully requests leave to file the

accompanying brief as amicus curiae in support of the

application to stay the decision and remedy of the

Pennsylvania Supreme Court in the above-captioned

matter.*

IDENTITY AND INTERESTS OF MOVANT

Eagle Forum Education & Legal Defense Fund

(“EFELDF”) is a nonprofit corporation founded in

1981 and headquartered in Saint Louis, Missouri. For

more than thirty-five years, EFELDF has consistently

defended the Constitution’s federalist structure and

the separation of powers. In the context of the

integrity of the elections on which the Nation has

based its political community, EFELDF has

supported efforts to ensure equality of voters

consistent with the written Constitution and validly

enacted laws. For the foregoing reasons, movant

EFELDF has direct and vital interests in the issues

before this Court and respectfully requests leave to

file the accompanying amicus brief in support of the

stay applicants.

By analogy to FED. R. APP. P. 29(c)(5) and this Court’s Rule

37.6, counsel for movant and amicus curiae authored these

motions and brief in whole, and no counsel for a party authored

the motions and brief in whole or in part, nor did any person or

entity, other than the movant/amicus and its counsel make a

monetary contribution to preparation or submission of the

motions and brief.

*

i

REASONS TO GRANT LEAVE TO FILE

By analogy to Rule 37.2(b) of the Rules of the

Supreme Court, movant respectfully seeks leave to

file the accompanying amici curiae brief in support of

the stay applicants. By filing this motion

contemporaneously with the respondents’ deadline to

file an opposition, this filing should not disturb the

accelerated briefing schedule ordered in this matter.

Movant EFELDF respectfully submits that the

proffered amicus brief will bring two categories of

relevant matters to the Court’s attention:

• First, the EFELDF brief discusses the All Writs

Act, 28 U.S.C. §1651(a), as well as 28 U.S.C.

§2106, which aid this Court’s jurisdiction to apply

a stay and remedial power not only to issue a stay

but also to remedy the eventual merits. See

EFELDF Br. at 9-13.

• Second, the EFELDF brief addresses the Due

Process Clause as a federal basis for this Court to

hear the merits of this action, in addition to the

federal issues presented by the Elections Clause.

See EFELDF Br. at 15-17.

• Third, the EFELDF brief applies the preemption

analysis that this Court applies to Elections

Clause cases – without a presumption of

preemption – to show the likelihood of the

applicants’ prevailing. See EFELDF Br. at 18-19.

These issues are all relevant to deciding the stay

applications, and movant EFELDF respectfully

submits that filing the brief will aid the Court.

For the above reasons, EFELDF respectfully

requests that this motion for leave to file the

accompanying brief amicus curiae be granted.

ii

Dated: October 5, 2020

Respectfully submitted,

LAWRENCE J. JOSEPH

1250 CONNECTICUT AVE. NW

SUITE 700-1A

WASHINGTON, DC 20036

(202) 355-9452

lj@larryjoseph.com

Counsel for Movant

iii

TABLE OF CONTENTS

Pages

Motion for Leave to File Amicus Curiae Brief ........... i

Table of Contents ...................................................... iv

Table of Authorities................................................... vi

Amicus Curiae Brief in Support of Applicants .......... 1

Introduction ................................................................ 1

Federal Election Law ........................................... 2

Pennsylvania Election Law ................................. 2

Standard of Review .................................................... 4

Summary of Argument............................................... 5

Argument .................................................................... 6

I. The grant of a writ of certiorari is likely............. 6

II. Applicants are likely to prevail. .......................... 7

A. This Court has jurisdiction. .......................... 7

1. Federal law is implicated........................ 7

2. The All Writs Act gives this Court

jurisdiction now to preserve its future

jurisdiction over petitions for a writ

of certiorari. ............................................. 9

3. 28 U.S.C. §2106 gives this Court

further remedial authority. .................. 12

B. Applicants will prevail on the merits. ........ 13

1. The Pennsylvania Supreme Court

violated the Elections Clause. .............. 13

2. The Pennsylvania Supreme Court

violated the Due Process Clause. ......... 15

3. The Pennsylvania Supreme Court’s

remedy violates federal law. ................. 17

iv

4. Federal law preempts the state freeand-equal clause.................................... 18

III. The other stay criteria favor Applicants. .......... 19

A. Applicants’ harms are irreparable. ............. 19

B. The equities tip in Applicants’ favor. .......... 20

C. The public interest favors a stay. ............... 20

Conclusion ................................................................ 21

v

TABLE OF AUTHORITIES

Pages

Cases

ACLU v. Ashcroft,

322 F.3d 240 (3d Cir. 2003) ................................ 21

Allied Chem. Corp. v. Daiflon, Inc.,

449 U.S. 33 (1980) ......................................... 11, 21

Arizona Sect’y of State’s Office v. Feldman,

137 S.Ct. 446 (2016) .............................................. 2

Arizona State Legislature v. Ariz. Indep.

Redistricting Comm’n,

135 S.Ct. 2652 (2015) ...................................... 6, 13

Arizona v. Inter Tribal Council of Ariz., Inc.,

570 U.S. 1 (2013) ............................................ 18-19

Azar v. Garza,

138 S.Ct. 1790 (2018) ............................................ 6

Bank of Am. Corp. v. City of Miami,

140 S.Ct. 1259 (2020) ............................................ 6

Bell v. Hood,

327 U.S. 678 (1946) ............................................... 8

Burford v. Sun Oil Co.,

319 U.S. 315 (1943) ............................................. 21

Bush v. Palm Beach Cty. Canvassing Bd.,

531 U.S. 70 (2000) ................................................. 8

Cheney v. United States Dist. Court,

542 U.S. 367 (2004) ............................................. 11

Cipollone v. Liggett Group,

505 U.S. 504 (1992) ............................................. 18

City of Boerne v. Flores,

521 U.S. 507 (1997) ............................................. 15

vi

Commonwealth v. Gilmour Mfg. Co.,

573 Pa. 143, 822 A.2d 676 (Pa. 2003) ................... 3

Corley v. U.S.,

556 U.S. 303 (2009) ............................................. 15

CSX Transp., Inc. v. Easterwood,

507 U.S. 658 (1993) ............................................. 18

Diamond v. Charles,

476 U.S. 54 (1986) ............................................... 20

Edwards v. Hope Med. Group for Women,

512 U.S. 1301 (1994) ............................................. 4

Erfer v. Commonwealth,

568 Pa. 128, 794 A.2d 325 (Pa. 2002) ................. 19

Ex parte Yarbrough,

110 U.S. 651 (1884) ............................................. 17

Frank v. Walker,

135 S.Ct. 7 (2014) .................................................. 2

FTC v. Dean Foods Co.,

384 U.S. 597 (1966) ........................................ 10-11

Graddick v. Newman,

453 U.S. 928 (1981) ............................................. 19

Grayned v. City of Rockford,

408 U.S. 104 (1972) ............................................. 18

Hollingsworth v. Perry,

558 U.S. 183 (2010) ......................................... 4, 13

Holt v. 2011 Legislative

Reapportionment Comm’n,

620 Pa. 373, 67 A.3d 1211 (Pa. 2013) ................... 3

Husted v. Ohio State Conf. of the NAACP,

135 S.Ct. 42 (2014) ................................................ 2

Karcher v. May,

484 U.S. 72 (1987) ............................................... 20

vii

Kimble v. Swackhamer,

439 U.S. 1385 (1978) .......................................... 4-5

Knowlton v. Moore,

178 U.S. 41 (1900) ............................................... 14

League of Women Voters of Pa. v. Commonwealth,

644 Pa. 287, 175 A.3d 282 (Pa. 2018) ................... 4

League of Women Voters of Pa. v. Commonwealth,

645 Pa. 1, 178 A.3d 737 (Pa. 2018) ....................... 4

League of Women Voters of the United States v.

Newby, 838 F.3d 1 (D.C. Cir. 2016) .................... 21

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ............................................. 15

Mathews v. Eldridge,

424 U.S. 319 (1976) ............................................... 9

Mistretta v. U.S.,

488 U.S. 361 (1989) ............................................. 15

Murphy v. Hunt,

455 U.S. 478 (1982) ............................................... 6

Newman-Green, Inc. v. Alfonzo-Larrain,

490 U.S. 826 (1989) ........................................ 11-12

North Carolina v. Covington,

138 S.Ct. 974 (2018) .............................................. 2

North Carolina v. League of Women Voters,

135 S.Ct. 6 (2014) .................................................. 2

Pa. Prison Soc’y v. Commonwealth,

727 A.2d 632, (Pa. Commw. Ct. 1999) ................ 16

Pac. States Tel. & Tel. Co. v. Oregon,

223 U.S. 118 (1912) ............................................. 15

Purcell v. Gonzalez,

549 U.S. 1 (2006) ................................................ 1-2

viii

Republican Nat’l Comm. v. Democratic Nat’l

Comm., 140 S.Ct. 1205 (2020) .............................. 2

Rucho v. Common Cause,

139 S.Ct. 2484 (2019) .......................................... 15

Schlesinger v. Councilman,

420 U.S. 738 (1975) ............................................. 12

Securities Industry Ass’n v. Bd. of Governors of

Fed’l Reserve Sys., 468 U.S. 137 (1984) .............. 14

Sochor v. Florida,

504 U.S. 527 (1992) ............................................. 12

Steel Co. v. Citizens for a Better Env’t.,

523 U.S. 83 (1998) ................................................. 7

U.S. v. Lopez,

514 U.S. 549 (1995) ............................................. 16

U.S. v. Munoz-Flores,

495 U.S. 385 (1990) ............................................. 15

U.S. v. Williams,

504 U.S. 36 (1992) .............................................. 7-8

Ullmann v. U.S.,

350 U.S. 422 (1956) ............................................. 15

Washington v. Glucksberg,

521 U.S. 702 (1997) ............................................. 17

Washington v. Reno,

35 F.3d 1093 (6th Cir. 1994) ............................... 21

Will v. U.S.,

389 U.S. 90 (1967) ............................................... 11

Statutes

U.S. CONST. art. I, §4, cl. 1 ................................... 2, 14

U.S. CONST. art. I, §4, cl. 2 ......................................... 2

U.S. CONST. art. II, §1, cl. 2.................................... 2, 8

ix

U.S. CONST. art. IV, §4, cl. 1................................. 2, 14

U.S. CONST. art. V..................................................... 15

U.S. CONST. art. VI, cl. 2 .......................................... 18

U.S. CONST. amend. XIV, §1, cl. 3 ........ 5, 9, 13, 15, 17

2 U.S.C. §7 ............................................................ 2, 17

3 U.S.C. §1 ............................................................ 2, 17

All Writs Act,

28 U.S.C. §1651(a) ............................................. 4-5

28 U.S.C. §1653 ........................................................ 12

28 U.S.C. §2106 .................................................... 5, 12

PA. CONST. art. I, §5, cl. 1 ...................... 3, 7, 13, 18-19

PA. CONST. art. III, §4................................................. 9

PA. CONST. art. VII, §9 ............................................... 3

PA. CONST. art. XI, §1 ............................................... 15

25 PA. STAT. §3146.2a(a) ............................................ 3

25 PA. STAT. §3146.6(c) ............................................... 3

25 PA. STAT. §3150.12a(a) .......................................... 3

25 PA. STAT. §3150.16(c) ............................................. 3

2019 Pa. Legis. Serv. Act 2019-77 ............................. 2

Other Authorities

Cate Barron, ‘Battleground PA’ puts spotlight

on 2020 race, PATRIOT NEWS, Nov. 03, 2019,

at B-3 ................................................................... 10

Terence Ball, “A Republic - If You Can Keep It”, in

CONCEPTUAL CHANGE AND THE CONSTITUTION

(Terence Ball & J.G.A. Pocock eds., 1988) ......... 14

Confirmation Hearing on the Nomination of

John G. Roberts, Jr. to Be Chief Justice of the

x

United States Before the Senate Comm. on

the Judiciary, 109th Cong. (2005) ................. 16-17

GEORGE WASHINGTON, FAREWELL ADDRESS (Sept.

19, 1796), reprinted in THE WASHINGTON

PAPERS 308 (Saul K. Padover, ed. 1955)............. 16

11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER &

MARY KAY KANE, FED. PRAC. & PROC. Civ.2d

§2948.4................................................................. 21

xi

AMICUS CURIAE BRIEF IN SUPPORT OF

APPLICANTS

Amicus Curiae Eagle Forum Education & Legal

Defense Fund (“EFELDF”) respectfully submits that

the Circuit Justice (or the full Court if referred to the

full Court) should stay the decision and remedial

orders of the Pennsylvania Supreme Court in this

action until the applicants – the leaders of the

Pennsylvania House of Representative and Senate in

No. 20A53 and the Republican Party of Pennsylvania

in No. 20A54 (collectively, hereinafter “Applicants”) –

timely file and this Court duly resolves petitions for a

writ of certiorari. Amicus EFELDF’s interests are set

out in the accompanying motion for leave to file.

INTRODUCTION

Purportedly acting under a generally worded

clause of the state constitution that “Elections shall be

free and equal,” PA. CONST. art. I, §5, cl. 1, a bare

partisan majority of the Pennsylvania Supreme Court

has enacted a new election law weeks before a federal

election. This Court has recognized even the fear of

election fraud as a harm in its own right, Purcell v.

Gonzalez, 549 U.S. 1, 4 (2006), and the Pennsylvania

Supreme Court’s action to count even non-postmarked

ballots received 3 days after Election Day certainly

raises that possibility in close elections. In addition,

the state court usurped authority that the Elections

Clause vests in state legislatures.

The solution here is easy: stay the Pennsylvania

Supreme Court’s decision and orders, pending this

Court’s resolution of timely petitions for a writ of

certiorari. When late-breaking election-law rulings

1

surface near an election, this Court has not hesitated

to issue stays2 to avoid electoral chaos and voter

confusion. Purcell, 549 U.S. at 4-5 (“Court orders

affecting elections … can result in voter confusion and

consequent incentive to remain away from the polls”).

Amicus EFELDF respectfully submits that the Court

must do so here.

Federal Election Law

The Elections Clause provides that state

legislatures shall prescribe the “Times, Places and

Manner of holding Elections for Senators and

Representatives,” U.S. CONST. art. I, §4, cl. 1, subject

to the power of “Congress at any time by Law [to]

make or alter such Regulations.” Id. art. I, §4, cl. 2. In

addition, state legislatures also have plenary power to

set the process for appointing presidential electors:

“Each State shall appoint, in such Manner as the

Legislature thereof may direct, a Number of Electors.”

Id. art. II, §1, cl. 2. Under these powers, Congress has

set a uniform nationwide Election Day on the Tuesday

next after the first Monday in November. See 3 U.S.C.

§1; 2 U.S.C. §7.

Pennsylvania Election Law

In 2019, Pennsylvania adopted bipartisan election

reforms. See 2019 Pa. Legis. Serv. Act 2019-77. The

law sets two deadlines relevant here: (1) a deadline of

5:00 p.m. on the Tuesday before an election day for

See, e.g., Frank v. Walker, 135 S.Ct. 7 (2014); Husted v. Ohio

State Conf. of the NAACP, 135 S.Ct. 42 (2014); North Carolina v.

League of Women Voters, 135 S.Ct. 6 (2014); Arizona Sect’y of

State’s Office v. Feldman, 137 S.Ct. 446 (2016); North Carolina

v. Covington, 138 S.Ct. 974 (2018); Republican Nat’l Comm. v.

Democratic Nat’l Comm., 140 S.Ct. 1205 (2020).

2

2

voters to apply to vote by mail, 25 PA. STAT.

§§3146.2a(a), 3150.12a(a), and (2) a deadline of 8:00

p.m. on an election day for a county board of elections

to receive a mail-in ballot. 25 PA. STAT. §§3146.6(c),

3150.16(c). As relevant here, however, Pennsylvania

also has a generally worded clause about elections in

its Constitution: “Elections shall be free and equal.”

PA. CONST. art. I, §5, cl. 1. The legislature and voters

approved this provision in 1976.

Until very recently, the free-and-equal clause had

been held not to authorize judicial tinkering with

election laws. See, e.g., Erfer v. Commonwealth, 568

Pa. 128, 142 n.4, 794 A.2d 325, 334 n.4 (Pa. 2002); Holt

v. 2011 Legislative Reapportionment Comm’n, 620 Pa.

373, 412, 67 A.3d 1211, 1235 (Pa. 2013). Indeed,

investing criteria for apportionment into the free-andequal clause renders another provision of the same

constitution mere surplusage, see PA. CONST. art. VII,

§9 (expressly setting same criteria for state legislative

districts). That normally would suggest that the freeand-equal clause does not address apportionment:

“[A] bedrock principle of statutory construction

requires that a statute be construed, if possible, to give

effect to all its provisions, so that no provision is mere

surplusage.” Commonwealth v. Gilmour Mfg. Co., 573

Pa. 143, 149, 822 A.2d 676, 679 (Pa. 2003) (interior

quotations omitted, emphasis added). But the current

majority on the Pennsylvania Supreme Court appear

to place more emphasis on electoral results than on

norms of judicial conduct.

That enterprise started when the same majority

held in 2018 that – for the first time in Pennsylvania’s

history – the free-and-equal clause allowed that court

3

to reapportion Pennsylvania’s congressional districts.

See League of Women Voters of Pa. v. Commonwealth,

644 Pa. 287, 175 A.3d 282 (Pa. 2018); League of

Women Voters v. Commonwealth, 645 Pa. 1, 178 A.3d

737 (Pa. 2018). This litigation continues that trend by

counting ballots – even non-postmarked ones –

received 3 days after Election Day, which extends the

deadline set by Pennsylvania’s legislature.

STANDARD OF REVIEW

A stay pending the timely filing and ultimate

resolution of a petition for a writ of certiorari is

appropriate when there is a “(1) a reasonable

probability that four Justices will consider the issue

sufficiently meritorious to grant certiorari; (2) a fair

prospect that a majority of the Court will vote to

reverse the judgment below; and (3) a likelihood that

irreparable harm will result from the denial of a stay.”

Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). For

“close cases,” the Court “will balance the equities and

weigh the relative harms to the applicant and to the

respondent.” Id.

Where the All Writs Act, 28 U.S.C. §1651(a) is

implicated, the Court also considers the necessity or

appropriateness of interim relief now to aid the

Court’s future jurisdiction. See Edwards v. Hope Med.

Group for Women, 512 U.S. 1301 (1994) (requiring

“reasonable probability that certiorari will be

granted,” a “significant possibility” of reversal, and a

“likelihood of irreparable harm”) (Scalia, J., in

chambers). Although “a single Circuit Justice has no

authority to summarily reverse a judgment of the

highest court of a State,” he or she can “grant interim

relief in order to preserve the jurisdiction of the full

4

Court to consider an applicant’s claim on the merits.”

Kimble v. Swackhamer, 439 U.S. 1385 (1978)

(Rehnquist, J., in chambers) (interior quotations

omitted).

SUMMARY OF ARGUMENT

With respect to the likelihood of this Court’s

granting a writ of certiorari, this Court will typically

grant certiorari to vacate a judgment that becomes

moot on appeal, as this will unless the Court grants

an expeditious review; in any event, this Court has

often reviewed Elections Clause cases that go to which

state actors have authority to act as the legislature

under the Elections Clause (Section I). Notwithstanding the Pennsylvania Supreme Court’s

purportedly ruling on a state-law ground, this Court

has jurisdiction because both the procedure and the

substance of the state court’s ruling violate not only

the Elections Clause and the Due Process Clause but

also federal election statutes (Section II.A.1), which of

course fall within this Court’s jurisdiction. Moreover,

the All Writs Act, 28 U.S.C. §1651(a) provides a

supplemental basis for jurisdiction and relief (Section

II.A.2), and 28 U.S.C. §2106 provides remedial

authority (Section II.A.3).

As to the merits, Applicants are likely to prevail

because the Pennsylvania Supreme Court usurped

the legislature’s authority under the Elections Clause

(Section II.B.1) and, in doing so, violated due process

(Section II.B.2) and federal election law (Section

II.B.3). Moreover, for all of these reasons, the state

constitutional provision that the Pennsylvania

Supreme Court purports to interpret is preempted by

federal law (Section II.B.4).

5

The other stay factors also favor Applicants

because the irreparable harm – namely, chaos and

voter confusion in the 2020 election – will not be

fixable if the elections proceed under the state court’s

order and this Court later reverses (Section III.A). The

other stay factors merge with the merits, which – as

indicated – tip to Applicants (Sections III.B-III.C).

ARGUMENT

I. THE GRANT OF A WRIT OF CERTIORARI

IS LIKELY.

There is a reasonable possibility that this Court

will grant Applicants’ forthcoming petition for a writ

of certiorari, either because the case will become moot

on appeal – and thus subject to vacatur, see, e.g., Bank

of Am. Corp. v. City of Miami, 140 S.Ct. 1259 (2020);

Azar v. Garza, 138 S.Ct. 1790 (2018) – or because the

Court perceives the urgent election and federalism

issues at stake here and orders expeditious briefing.

At some point, this Court will need to consider the

issue of whether the Pennsylvania Supreme Court’s

actions here run afoul of the Elections Clause’s

delegation to the “Legislature” of a state, U.S. CONST.

art. I, §4, as this Court did for independent

commissions in Arizona State Legislature v. Ariz.

Indep. Redistricting Comm’n, 135 S.Ct. 2652 (2015).

Indeed, this Court potentially could consider the issue

of federal preemption of the Pennsylvania’s Supreme

Court’s unlawful actions here under the exception for

moot actions capable of repetition, yet evading review.

Murphy v. Hunt, 455 U.S. 478, 482 (1982). In any of

the foregoing scenarios, this Court would grant

review. Applicants meet the first criterion for a stay.

6

II. APPLICANTS ARE LIKELY TO PREVAIL.

This section demonstrates that Applicants are

likely to prevail on the merits. To make that showing,

amicus EFELDF first shows that Applicants’ petition

will present a federal question, notwithstanding the

state-court majority’s transparent effort to insulate

their ruling from review by claiming to have relied on

the Pennsylvania Constitution. After establishing this

Court’s jurisdiction to act, amicus EFELDF then

shows why Applicants will prevail on the federal

merits presented here.

A. This Court has jurisdiction.

Before reaching the question of Applicants’

likelihood of prevailing on the merits, this Court – or

the Circuit Justice – first must establish federal

jurisdiction. Steel Co. v. Citizens for a Better Env’t.,

523 U.S. 83, 95 (1998). But this Court considers issues

either pressed or passed upon in the lower court, U.S.

v. Williams, 504 U.S. 36, 41 (1992), and a state-court

majority cannot avoid a federal question by ignoring

it. While this Court would lack authority to review

cases solely based on state-law issues, that does not

prevent review when state courts violate federal law.

1. Federal law is implicated.

Although the Pennsylvania Supreme Court seeks

to evade review by premising its holding on an absurd

and expansive interpretation of a state constitutional

mandate that “Elections shall be free and equal,” PA.

CONST. art. I, §5, cl. 1, that evasion must fail for two

reasons. First, the state court’s remedy and this

litigation implicate several strands of federal election

law. Second, Pennsylvania’s free-and-equal clause is

not purely a matter of state law because it applies “not

7

only to elections to state offices, but also to the election

of Presidential electors,” meaning that Pennsylvania

enacted the clause, in part, “by virtue of a direct grant

of authority made under Art. II, §1, cl. 2, of the United

States Constitution.” See Bush v. Palm Beach Cty.

Canvassing Bd., 531 U.S. 70, 76 (2000). Under the

circumstances, this Court has the power to correct the

lower court’s error of federal law.

Applicants’ filings make clear that this case

presents an issue under the Elections Clause, even

though the state-court majority attempts to evade

that issue by offering a purely state-law basis for its

holding. At a minimum, the issue was pressed below,

and that is all that this Court requires. Williams, 504

U.S. at 41. Although amicus EFELDF will argue that

Applicants are likely to prevail, see Section II.B, infra,

parties do not need winning hands for the Court to

have jurisdiction. Instead, jurisdiction exists when

“the right of the petitioners to recover under their

complaint will be sustained if the Constitution and

laws of the United States are given one construction,”

even if the right “will be defeated if they are given

another.” Bell v. Hood, 327 U.S. 678, 685 (1946). At

least as to jurisdiction, Applicants need only survive

the low threshold “where the alleged claim under the

Constitution or federal statutes clearly appears to be

immaterial and made solely for the purpose of

obtaining jurisdiction or where such a claim is wholly

insubstantial and frivolous.” Id. at 682. Applicants

plausibly allege that the Pennsylvania Supreme

Court violated the Elections Clause, which is enough

for jurisdictional purposes.

8

In addition to the Elections Clause, amicus

EFELDF respectfully submits that the Due Process

Clause also provides a federal basis for this Court’s

reviewing the state-court decision, notwithstanding

the state-law basis for the ultimate holding. The Due

Process Clause prohibits inter alia the denial of

liberty without due process of law. U.S. CONST.

amend. XIV, §1, cl. 3. “The fundamental requirement

of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner.”

Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Under

Pennsylvania’s constitution, “[e]very bill shall be

considered on three different days in each House,” PA.

CONST. art. III, §4 (emphasis added). Due process in

Pennsylvania is thus to have an open several-day

process to consider changes in any law. A court’s nonpublic deliberations would fail that minimal standard

for due process, even if the Elections Clause did not

also require that the consideration of election issues

take place in a representative body.3

2. The All Writs Act gives this Court

jurisdiction now to preserve its

future jurisdiction over petitions for

a writ of certiorari.

The All Writs Act provides an alternate,

supplemental form of jurisdiction to stay the

Pennsylvania Supreme Court’s action here, if only to

preserve the full range of the controversy now for this

Because justices on the Pennsylvania Supreme Court run

for election statewide, that body – unlike the legislature – can be

biased toward population centers like Philadelphia.

3

9

Court’s consideration upon Applicants’ future appeal

to this Court:

The All Writs Act empowers the federal courts

to issue all writs necessary or appropriate in

aid of their respective jurisdictions and

agreeable to the usages and principles of law.

The exercise of this power is in the nature of

appellate jurisdiction where directed to an

inferior court, and extends to the potential

jurisdiction of the appellate court where an

appeal is not then pending but may be later

perfected.

FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966)

(interior quotations and citations omitted, emphasis

added) (citing Ex parte Crane, 5 Pet. 190, 193 (1832)

(Marshall, C.J.); Ex parte Bradstreet, 7 Pet. 634 (1833)

(Marshall, C.J.)). Although this Court’s jurisdiction to

provide interim relief does not require resort to the All

Writs Act, that Act nonetheless ensures the Court’s

jurisdiction here. The All Writs Act provides “a limited

judicial power to preserve the court’s jurisdiction or

maintain the status quo by injunction pending review

of an agency’s action through the prescribed statutory

channels,” and that “power has been deemed merely

incidental to the courts’ jurisdiction to review” the

ultimate merits of the future appeal. Id. at 604

(alterations omitted). As explained in this section,

that power is appropriate in this case.

Without a stay, Pennsylvania’s federal election

will proceed unlawfully, and – worse – the unlawful

result could determine the election’s outcome. Cate

Barron, ‘Battleground PA’ puts spotlight on 2020 race,

PATRIOT NEWS, Nov. 03, 2019, at B-3 (Pennsylvania is

10

a swing or battleground state that might decide the

election). That is the type of harm that justifies action

under the All Writs Act.

Although resort to the All Writs Act is an

extraordinary remedy – as indeed is any stay – the

writ “has traditionally been used in the federal courts

only to confine an inferior court to a lawful exercise of

its prescribed jurisdiction or to compel it to exercise

its authority when it is its duty to do so.” Will v. U.S.,

389 U.S. 90, 95 (1967) (interior quotations omitted).

While “only exceptional circumstances … will justify

the invocation of this extraordinary remedy,” those

circumstances certainly include a “judicial usurpation

of power” as happened here. Id. (interior quotations

omitted); accord Allied Chem. Corp. v. Daiflon, Inc.,

449 U.S. 33, 35 (1980); Cheney v. United States Dist.

Court, 542 U.S. 367, 380 (2004). A partisan majority

of elected judges on a state supreme court have

attempted to seize the Legislature’s constitutional

power, which easily meets the “judicial usurpation of

power” test that this Court has repeatedly set.

While the All Writs Act perhaps may seem too

obvious to mention, amicus EFELDF respectfully

submits that it bears explicit emphasis because it can

provide the difference in a close case: “where a case is

within the appellate jurisdiction of the higher court a

writ may issue in aid of the appellate jurisdiction

which might otherwise be defeated.” Dean Foods, 384

U.S. at 604. It is irrelevant that Applicants did not cite

the All Writs Act in their stay applications. First, if

“jurisdiction … actually exists,” plaintiffs – or, here,

applicants – can cite that jurisdiction for the first time

on appeal. Newman-Green, Inc. v. Alfonzo-Larrain,

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490 U.S. 826, 831 (1989); 28 U.S.C. §1653. Second,

subject-matter jurisdiction does not require specific

citations where the “facts alleged and the claim

asserted … were sufficient to demonstrate

[jurisdiction’s] existence.” Schlesinger v. Councilman,

420 U.S. 738, 745 (1975). Third, failure to raise

jurisdictional arguments does not waive those

arguments. Sochor v. Florida, 504 U.S. 527, 534 n.*

(1992). Certainly, Applicants can cite the All Writs

Act in their respective replies. Accordingly, amicus

EFELDF respectfully submits that the Circuit Justice

or the full Court should consider the appropriateness

of relief to preserve the full controversy for review.

3. 28 U.S.C. §2106 gives this Court

further remedial authority.

In addition to the All Writs Act, this Court also

can rely on §2106 for additional authority to resolve

this matter:

The Supreme Court or any other court of

appellate jurisdiction may affirm, modify,

vacate, set aside or reverse any judgment,

decree, or order of a court lawfully brought

before it for review, and may remand the

cause and direct the entry of such appropriate

judgment, decree, or order, or require such

further proceedings to be had as may be just

under the circumstances.

28 U.S.C. §2106. As §2106 makes clear, this Court can

not only alter the judgment from the lower court but

also require further proceedings. Indeed, given the

questions about the partisanship of the Pennsylvania

Supreme Court majority and their expert, this Court

could even assign a special master to work with the

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General Assembly to resolve any state-law issues,

assuming that any state-law issues remained after

this Court’s review of the federal issues.

B. Applicants will prevail on the merits.

In order to warrant a stay, there must be a “fair

prospect” of Applicants’ prevailing. Hollingsworth,

558 U.S. at 190. As explained in the next four sections,

Applicants likely will prevail under the Elections and

Due Process Clauses, federal election law, and federal

preemption.

1. The Pennsylvania Supreme Court

violated the Elections Clause.

While amicus EFELDF disagrees with Arizona

State Legislature that independent agencies can take

the place of a legislature under the Elections Clause,

the initiative passed in Arizona expressly supplanted

the legislature: “There is a critical difference between

allowing a State to supplement the legislature’s role in

the legislative process and permitting the State to

supplant the legislature altogether.” 135 S.Ct. at 2687

(Roberts, C.J., dissenting). Although Arizona State

Legislature rejected that position and allowed

supplanting legislatures, it in no way allowed

supplanting them sub silentio with vaguely worded

general clauses like Pennsylvania’s free-and-equal

clause.

Even accepting that the Pennsylvania Supreme

Court correctly interpreted that state’s constitution,

the remedy that the state court imposed usurped the

power that the Elections Clause gives to the General

Assembly. This Court has taken a jaundiced view of

courts’ claiming to need to usurp legislative power in

order to remedy a case properly before the court:

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The grave consequences which it is asserted

must arise in the future if the right to levy a

progressive tax be recognized involves in its

ultimate aspect the mere assertion that free

and representative government is a failure,

and that the grossest abuses of power are

foreshadowed unless the courts usurp a

purely legislative function. If a case should

ever arise, where an arbitrary and

confiscatory exaction is imposed bearing the

guise of a progressive or any other form of tax,

it will be time enough to consider whether the

judicial power can afford a remedy by

applying inherent and fundamental principles

for the protection of the individual, even

though there be no express authority in the

Constitution to do so.

Knowlton v. Moore, 178 U.S. 41, 109-10 (1900). As

with the tax in Knowlton, the election deadlines here

are not so egregiously out of the norm to justify a

judicial remedy so egregiously out of the norm.

With statutes, this Court has readily recognized

the judiciary’s role as arbiter, not author, of our laws:

“it is not this Court’s function to sit as a superlegislature and create statutory distinctions where

none were intended.” Securities Industry Ass’n v. Bd.

of Governors of Fed’l Reserve Sys., 468 U.S. 137, 153

(1984) (interior quotations omitted). The same is true

in Pennsylvania, as it would have to be true under our

Constitution. U.S. CONST. art. IV, §4, cl. 1. When

asked what form of government the Framers had

given us, Benjamin Franklin reportedly replied “A

republic … if you can keep it.” Terence Ball, “A

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Republic - If You Can Keep It”, in CONCEPTUAL

CHANGE AND THE CONSTITUTION 35, 137 (Terence Ball

& J.G.A. Pocock eds., 1988). It now falls to this Court

to keep the republic.4

2. The Pennsylvania Supreme Court

violated the Due Process Clause.

Our constitutional structure and heritage of

divided power and dual federal-state sovereignty

protects liberty. Mistretta v. U.S., 488 U.S. 361, 380

(1989); U.S. v. Munoz-Flores, 495 U.S. 385, 394-96

(1990). Indeed, the “history of liberty has largely been

the history of observance of procedural safeguards”

Corley v. U.S., 556 U.S. 303, 321 (2009) (interior

quotations omitted), and thus “‘procedural rights’ are

special.” Lujan v. Defenders of Wildlife, 504 U.S. 555,

572 n.7 (1992) (interior quotations omitted). In

addition to violating the Elections Clause – and

indeed because of that violation – the Pennsylvania

Supreme Court also violated the Due Process Clause.

While the “power to interpret the Constitution …

remains in the Judiciary,” City of Boerne v. Flores, 521

U.S. 507, 524 (1997), the power to amend the

Constitution remains with the states. U.S. CONST. art.

V; PA. CONST. art. XI, §1. “Nothing new can be put into

the Constitution except through the amendatory

process. Nothing old can be taken out without the

same process.” Ullmann v. U.S., 350 U.S. 422, 428

(1956), which is a principle that applies equally in

Although enforcing the Guarantee Clause for all state-court

usurpations may be non-justiciable under Pac. States Tel. & Tel.

Co. v. Oregon, 223 U.S. 118 (1912), and Rucho v. Common Cause,

139 S.Ct. 2484, 2506 (2019), enforcing the Elections Clause is

entirely justiciable.

4

15

Pennsylvania. Pa. Prison Soc’y v. Commonwealth, 727

A.2d 632, 635 (Pa. Commw. Ct. 1999) (invalidating a

constitutional amendment because the process of its

adoption violated another provision of the

Pennsylvania Constitution).

In his farewell address, President Washington

warned of the type of amendment through

interpretation that the Pennsylvania Supreme Court

has inflicted on the citizens of Pennsylvania:

If in the opinion of the People, the distribution

or modification of the Constitutional powers

be in any particular wrong, let it be corrected

by an amendment in the way which the

Constitution designates. But let there be no

change by usurpation; for though this, in one

instance, may be the instrument of good, it is

the customary weapon by which free

governments are destroyed. The precedent

must always greatly overbalance in

permanent evil any partial or transient

benefit which the use can at any time yield.

GEORGE WASHINGTON, FAREWELL ADDRESS (Sept. 19,

1796), reprinted in THE WASHINGTON PAPERS 308

(Saul K. Padover, ed. 1955). In this season of tearing

down statues, amicus EFELDF implores this Court to

stand with President Washington and legal norms.

Constitutions are not blank checks with which

judges can remake this Nation or a state, wholly apart

from the states’ and the People’s intent in ratifying a

constitution’s general provisions. U.S. v. Lopez, 514

U.S. 549, 602 (1995) (Thomas, J., concurring). “[The]

job [is] to call balls and strikes, and not to pitch or

bat.” Confirmation Hearing on the Nomination of

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John G. Roberts, Jr. to Be Chief Justice of the United

States Before the Senate Comm. on the Judiciary,

109th Cong. 56 (2005) (Statement of Hon. John G.

Roberts, Jr.). Accordingly, this Court already has

recognized the limits posed on using the generally

worded Due Process Clause to legislate beyond

“fundamental rights and liberties which are,

objectively, deeply rooted in this Nation’s history and

tradition.” Washington v. Glucksberg, 521 U.S. 702,

720-21 (1997). Amicus EFELDF respectfully submits

that this Court should adopt a state-law version of

Glucksberg to pare judicial activism.

3. The Pennsylvania Supreme Court’s

remedy violates federal law.

By requiring the counting of ballots – even nonpostmarked ones – received 3 days after Election Day,

the Pennsylvania Supreme Court violates the statutes

that set Election Day as the Tuesday after the first

Monday in November. See 3 U.S.C. §1; 2 U.S.C. §7.

States rationally may believe that having elections

decided on Election Day would foster voter confidence

and eliminate the opportunity for fraud. The

Founders intended that elections bind this Nation

together. Ex parte Yarbrough, 110 U.S. 651, 661

(1884) (“the election of members of congress occurring

at different times in the different states” would give

rise to “more than one evil”). Acting through their

legislatures, states plausibly may enact legislation

toward that public goal, as Pennsylvania did here. In

addition to violating the Elections Clause and the Due

Process Clause, the Pennsylvania Supreme Court’s

remedy also violates federal election law by counting

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ballots – even non-postmarked ones – received 3 days

after Election Day to count toward the election.

4. Federal law preempts the state freeand-equal clause.

Given these conflicts between federal election law

and Pennsylvania’s judicial interpretation of its freeand-equal clause and the fact that this Court cannot

adopt a narrowing construction of state law to save a

law from unconstitutionality, Grayned v. City of

Rockford, 408 U.S. 104, 110 (1972) (“it is not within

our power to construe and narrow state laws”), amicus

EFELDF respectfully submits that this Court could

accept Pennsylvania’s interpretation, declare that law

preempted by federal election law, and enjoin its use

in election cases involving federal candidates.

Under the Constitution’s Supremacy Clause,

federal law preempts state law whenever they

conflict. U.S. CONST. art. VI, cl. 2. Courts have

identified three ways in which the Supremacy Clause

can preempt state laws: express preemption, “field”

pre-emption, and implied or conflict pre-emption.

Cipollone v. Liggett Group, 505 U.S. 504, 516 (1992).

Preemption analysis begins with a federal provision’s

plain wording, which “necessarily contains the best

evidence of Congress’ pre-emptive intent.” CSX

Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993).

In election cases, preemption analysis ends there, too:

“We have never mentioned [a presumption against

preemption] in our Elections Clause cases.” Arizona v.

Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 13 (2013)

(“ITCA”). For the reasons already explained, federal

election law both expressly preempts and conflict

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preempts the free-and-equal clause as Pennsylvania’s

Supreme Court has interpreted that clause.

ITCA dooms the Pennsylvania Supreme Court’s

usurpation of the legislature’s plenary power under

the Elections Clause. Because the state legislature

and voters never intended to confer a roving

commission under the free-and-equal clause, voiding

that power would have the beneficial effect of giving

Pennsylvania’s actual sovereigns – its People – the

chance to adopt a new constitutional provision to

protect the People and their elections from

interference from any corner.

III. THE OTHER STAY CRITERIA FAVOR

APPLICANTS.

Although the likelihood of this Court’s granting a

writ of certiorari and ruling for Applicants on the

merits would alone justify granting a stay, amici

EFELDF addresses the three other potential stay

factors. All of these factors weigh in favor of staying

the Pennsylvania Supreme Court’s actions until the

resolution of any timely filed petitions for a writ of

certiorari.

A. Applicants’ harms are irreparable.

For stays, the question of irreparable injury

requires a two-part “showing of a threat of irreparable

injury to interests that [the applicant] properly

represents.” Graddick v. Newman, 453 U.S. 928, 933

(1981) (Powell, J., for the Court5). “The first, embraced

by the concept of ‘standing,’ looks to the status of the

Although Graddick began as an application to a circuit

justice, the Chief Justice referred the application to the full

Court. Graddick, 453 U.S. at 929.

5

19

party to redress the injury of which he complains.” Id.

“The second aspect of the inquiry involves the nature

and severity of the actual or threatened harm alleged

by the applicant.” Id. Applicants meet both tests.

As to standing, the legislative Applicants have

standing not only to defend state law (i.e., the statute

they enacted), Diamond v. Charles, 476 U.S. 54, 62-63

(1986), but also to defend the legislative prerogatives

under the Elections Clause from encroachment by the

partisan state-court majority. Karcher v. May, 484

U.S. 72, 82 (1987). As to irreparable harm, it would be

essentially impossible to restore the status quo ante if

this Court allows the election to proceed under the

state court’s new rule. Closer to Election Day, some

people might rely on those new rule, and invalid

ballots might be impossible to remove from valid ones

if the election proceeds under the state court’s new

rule. Most importantly, the stain of illegitimacy will

hang over the election results if the election goes

forward under the new rule.

B. The equities tip in Applicants’ favor.

The third stay criterion is the balance of equities,

which tips in Applicants’ favor. If this Court grants a

stay now, with the deadline for mail-in ballots weeks

away, no one who seeks to vote by mail will be

prejudiced.

C. The public interest favors a stay.

The last stay criterion is the public interest. While

the Pennsylvania Supreme Court majority has

injected itself into this litigation as a judicial

challenger to state law, the case began as – and, for

this Court’s purposes, remains – litigation between

interested parties. Where the parties dispute the

20

lawfulness of government actions, the public interest

collapses into the merits. 11A CHARLES ALAN WRIGHT,

ARTHUR R. MILLER & MARY KAY KANE, FED. PRAC. &

PROC. Civ.2d §2948.4; ACLU v. Ashcroft, 322 F.3d 240,

247 (3d Cir. 2003) (“the public interest [is] not served

by the enforcement of an unconstitutional law”)

(interior quotation omitted); Washington v. Reno, 35

F.3d 1093, 1103 (6th Cir. 1994) (recognizing “greater

public interest in having governmental agencies abide

by the federal laws”); League of Women Voters of the

United States v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016)

(“no public interest in the perpetuation of unlawful

[government] action”). If the Court accepts Applicants’

merits views, the public interest will tilt decidedly

toward Applicants: “It is in the public interest that

federal courts of equity should exercise their

discretionary power with proper regard for the

rightful independence of state governments in

carrying out their domestic policy.” Burford v. Sun Oil

Co., 319 U.S. 315, 318 (1943). Mandamus relief “has

the unfortunate consequence of making a … judge a

litigant,” Daiflon, Inc., 449 U.S. at 35, but it would not

have been this Court’s or Applicants’ doing: the

Pennsylvania Supreme Court majority made

themselves litigants here. As between Applicants and

the original petitioners, the public-interest factor

heavily favors Applicants.

CONCLUSION

A stay should be granted.

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Dated: October 5, 2020

Respectfully submitted,

LAWRENCE J. JOSEPH

1250 CONNECTICUT AVE. NW

SUITE 700-1A

WASHINGTON, DC 20036

(202) 355-9452

lj@larryjoseph.com

Counsel for Movant

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