As I noted earlier this evening, the Supreme Court (conservative majority and all) is falling down on the job of defending the express constitutional power of state legislatures to write election laws for presidential and congressional elections. That power is limited, of course, by various federal constitutional and statutory rules, but state courts and state agencies have no right to declare their supremacy over democratically enacted law in this area.
Once again, in an appeal from North Carolina, only three justices (Thomas, Alito, and Gorsuch), with Justice Barrett not participating, were willing to stand up for that constitutional allocation of power and the written rule of law, while a majority allowed the State Board of Elections of North Carolina to unilaterally ignore state deadlines for the submission of ballots. As Gorsuch wrote:
The parties before us all acknowledge that, under the Federal Constitution, only the state “Legislature” and “Congress” may prescribe “[t]he Times, Places and Manner of holding Elections.” Art. I, §4, cl. 1. Everyone agrees, too, that the North Carolina Constitution expressly vests all legislative power in the General Assembly, not the Board or anyone else. N. C. Const., Art. II, §1; cf. N. C. Const., Art. I, §6. So we need not go rifling through state law to understand the Board’s permissible role in (re)writing election laws. All we need to know about its authority to override state election laws is plain from the Federal and State Constitutions…In the Fourth Circuit, Judges Wilkinson, Agee, and Niemeyer thoughtfully explained the Board’s constitutional overreach and the broader problems with last-minute election-law-writing-by-lawsuit. As they observed, efforts like these not only offend the Elections Clause’s textual commitment of responsibility for election lawmaking to state and federal legislators, they do damage to faith in the written Constitution as law, to the power of the people to oversee their own government, and to the authority of legislatures. Such last-minute changes by largely unaccountable bodies, too, invite confusion, risk altering election outcomes, and in the process threaten voter confidence in the results.
Rules, from the Democratic point of view, are for suckers. The most Roberts could say in Monday’s Wisconsin case, as to why the Court should stay out of lawless state Democrats rewriting the rules in Pennsylvania while stopping a federal judge in Wisconsin from doing so, was this:
While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes. Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin.
It is disappointing to see Roberts and Kavanaugh allowing this sort of thing. After the Wisconsin ruling, Mark Joseph Stern of Slate thundered that “Brett Kavanaugh Signals He’s Open to Stealing the Election for Trump” simply because he sometimes wants the laws passed by elected legislatures to govern, as set forth in the text of the Constitution. One hopes that this sort of wholly disingenuous rhetorical assault is not compromising Kavanaugh’s willingness to uphold the law without fear or favor.