This follows up on an earlier post today. Writing in the Washington Post, Neal Katyal and Joshua A. Geitzer address The absurd legal theory conservative judges are using to restrict voting: No, state election laws don’t have to be set by legislatures alone without input from executives or courts. (Mr. Geltzer is a visiting law professor at Georgetown. Mr. Katyal, a former solicitor general, holds an endowed chair at Georgetown Law School.)
Being actual experts on constitutional law, unlike me, and having actually studied the cases with care, they explain with greater precision that I was able to muster
what happened in the [recent] Minnesota, North Carolina and Pennsylvania [electoral] cases. In Minnesota, a state official, relying on explicit authority granted by the state legislature, determined when mail-in ballots must be received this year to comply with the laws of the state. In North Carolina, a state election board figured out how to make sense of various state laws. In Pennsylvania, a state court played that role. In none of these cases did the decider somehow wrest power away from the state legislature as the author of the state’s election laws. In each, it tried to effectuate the legislature’s handiwork, consistent with the state and federal constitutions.
In grade school, children learn that legislatures write the law, executives implement the law and courts interpret the law. To insist that, in the area of election administration alone, state legislatures must do it all themselves fetishizes the words “the Legislature” in the Constitution and strains them beyond recognition — because that’s never what legislatures do. For judges and justices suddenly to claim otherwise isn’t just a bad take on election law, but a bad take on law — period.
Professors Geitzer and Katyal would be subject to professional criticism were they to say in so many words that the Four Horsemen—Alito, Gorsuch, Kavanaugh, and Thomas—are not acting in good faith and that they exhibit shocking intellectual dishonesty.
As a retired lawyer writing anonymously, I will let you in on the secret. The Four Horsemen are not reasoning honestly and in good faith.