Supreme Court rejects novel legislative theory but leaves a door open for 2024 election challenges

The Supreme Court is seen behind flowers, Tuesday, June 27, 2023, in Washington. The Supreme Court gave a win for the democratic principle of checks and balances in affirming that state courts can weigh in on legislative decisions affecting federal elections, but justices also left an opening for future challenges.

Conservatives who had advocated for limits on the role of state courts in federal elections agreed with Hasen that the court didn't settle the question of when, precisely, state courts need to stay out of federal elections. The issue may only get resolved in a last-minute challenge during the presidential election, they warned.

The independent state legislature theory stems from the clause in the U.S. Constitution declaring that state legislatures shall set the “time, place and manner” of elections for the U.S. Senate and House of Representatives. Advocates argue that shows the founders wanted to give legislatures ultimate power in federal elections.

In 2020, the Trump campaign asked the Supreme Court to overturn a ruling by the Pennsylvania Supreme Court allowing the tallying of mail ballots received after Election Day in a case that many thought would pivot on the theory. But the high court simply ordered the late mail ballots to be segregated during the vote count and, when they were too few in number to change the outcome, did nothing further. Joe Biden won the state by a little over 80,000 votes.

“When legislatures make laws,” Roberts wrote, “they are bound by the provisions of the very documents that give them life.”

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