Much national attention is directed to the wide range of voter-suppression and vote-counting laws, and gerrymandered maps for federal elections being enacted by state legislatures, and the resulting need for federal voter-protection legislation. But there is an equally pernicious, but much lower-visibility, development evolving in the federal judiciary. The “independent state legislature doctrine” would curtail state-court review of such laws under their own state constitutions, and even limit such courts’ statutory interpretation of ambiguous election laws. Whether this serious erosion of state governments’ fundamental constitutional power of checks and balances prevails will be up to the United States Supreme Court.

Article I, sec. 4, cl. 1 of the U.S. Constitution (the Elections Clause) reads “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof …” Importantly, the clause empowers Congress to “make or alter” these state laws “at any time.” Additionally, Article II, sec. 1, cl. 2 (the Presidential Electors Clause) reads “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” to select the president. This arrangement giving states at least initial control over federal elections is unusual among federal countries. It was one of the many compromises in our federal Constitution in response to the states’ fears of a too-powerful federal government. State courts, however, are not “the Legislature” of the state.

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