From WSJopinion: Unless the justices get the answer right in Moore v. Harper, elections for Congress and president could become a free-for-all with judges being the ultimate deciders, write DavidRivkin and andrewmgrossman
The Supreme Court considers on Wednesday whether the Constitution’s Elections Clause means what it says—that “the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.” That question arises from a litigation blitz seeking to override state election laws. Unless the justices get the answer right, elections for Congress and president could become a free-for-all with judges being the ultimate deciders.
It really is that simple. Many other constitutional clauses refer to a “state,” but the Elections Clause singles out a state “legislature.” In so doing, it conveys a unique legislative power to make a type oflaw. Like all federal laws, these can’t be trumped by state constitutional provisions. State courts have the power toelection regulations, but they can’t override the legislature’s handiwork unless it conflicts with the U.S. Constitution or a statute enacted by Congress.
Yet neither of these cases read the word “legislature” as a mere synonym for “state.” While the former term may be broader than state houses and senates, it is narrow enough to encompass only those people and institutions involved inthe laws; they have no role in the legislative process.
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