Saturday, November 01, 2014
just lost the post i was writing on baude's discussion of north dakota's weird 4 of 5 judges needed to invalidate a statute. he raises an interesting conundrum. I don't have the answer.
Section 4. A majority of the supreme court shall be necessary to constitute a quorum or to
pronounce a decision, provided that the supreme court shall not declare a legislative
enactment unconstitutional unless at least four of the members of the court so decide.
Thinking about it has clarified for me why the Wisconsin supreme court was wrong to use an "innocent until proven guilty" standard to review a severe burden on voting rights.
It's a supremacy clause error. The WI court is required to use federal law, as decided by the US
Supreme Court,and federal law sets a different standard of review. Maybe Crawford's Anderson test, maybe the Norman v Reed severe burden/strict scrutiny test, maybe the Harper strict scrutiny test,
but the WI court doesn't get.. no I'm wrong. The WI case did not involve federal claims, so it can make up whatever fool test it wants.
anyway, Baude has updated his post with some cites.
Section 4. A majority of the supreme court shall be necessary to constitute a quorum or to
pronounce a decision, provided that the supreme court shall not declare a legislative
enactment unconstitutional unless at least four of the members of the court so decide.
Thinking about it has clarified for me why the Wisconsin supreme court was wrong to use an "innocent until proven guilty" standard to review a severe burden on voting rights.
It's a supremacy clause error. The WI court is required to use federal law, as decided by the US
Supreme Court,and federal law sets a different standard of review. Maybe Crawford's Anderson test, maybe the Norman v Reed severe burden/strict scrutiny test, maybe the Harper strict scrutiny test,
but the WI court doesn't get.. no I'm wrong. The WI case did not involve federal claims, so it can make up whatever fool test it wants.
anyway, Baude has updated his post with some cites.
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