How to Prevent Republican State Legislatures from Stealing the Election

AUSTIN SARAT, DANIEL B. EDELMAN

Amherst College Associate Provost Austin Sarat and attorney Daniel B. Edelman explain the important role of Democratic governors in preventing Republican state legislatures from stealing the election. Sarat and Edelman describe a “nightmare scenario” in which Republican legislatures may try to strip the electoral votes of Pennsylvania, Wisconsin, Michigan, Georgia, Arizona, and Nevada, leaving Biden with 232 electoral votes compared to Trump’s 306. The authors call upon the governors of those states to defend the integrity of their states’ election results, insist that there have been no “election failures,” and, if necessary, submit to Congress their own elector lists.

Read More

Agudath Israel of America v. Cuomo

Dockets: 20-3572, 20-3590

Opinion Date: November 9, 2020

Areas of Law: Civil Rights, Constitutional Law

These appeals challenge Governor Andrew Cuomo's issuance of an executive order directing the New York State Department of Health to identify yellow, orange, and red "zones" based on the severity of COVID-19 outbreaks and imposing correspondingly severe restrictions on activity within each zone. Appellants, Agudath Israel and the Diocese, each challenged the executive order as a violation of the Free Exercise Clause of the First Amendment. After the district court denied appellants' motion for a preliminary injunction against enforcement of the order, appellants moved for emergency injunctions pending appeal and to expedite their appeals. Preliminarily, the Second Circuit concluded that Agudath Israel did not move first in the district court for an order granting an injunction while an appeal is pending before filing with this court its present motion for an injunction pending appeal. Rather, Agudath Israel moved for a preliminary injunction pending the district court’s final judgment. Furthermore, Agudath Israel has not explained or otherwise justified its failure to comply with the straightforward requirement of Federal Rule of Appellate Procedure 8(a). Agudath Israel has also failed to demonstrate that moving first in the district court would be impracticable, or even futile, particularly in light of the fact that a full eleven days elapsed after the district court's ruling before Agudath Israel sought relief from this court. Therefore, the court denied Agudath Israel's motion for procedural reasons. The court also denied the Diocese's motion, concluding that appellants cannot clear the high bar necessary to obtain an injunction pending appeal. The court stated that, while it is true that the challenged order burdens appellants' religious practices, the order is not substantially underinclusive given its greater or equal impact on schools, restaurants, and comparable secular public gatherings. To the contrary, the executive order extends well beyond isolated groups of religious adherents to encompass both secular and religious conduct.