The Economist magazine looked at the new conservative belief that state legislatures along can decide the rules for conducting election.
The dissenters [in last year’s case] claimed that the constitution “specifies a particular organ of a state government”, the legislature, to determine the contours of elections, “and we must take that language seriously”. A fourth justice, Brett Kavanaugh, agreed in spirit and said that the court should take up the question soon in an appropriate case. But Justice Kavanaugh did not join his conservative colleagues—and voted against the Republicans’ request—out of respect for the so-called Purcell principle concerning last-minute changes to election rules. It was “too late”, he wrote, “for the federal courts to order that the district lines be changed for the 2022 primary and general elections”. In May the Supreme Court agreed to consider the matter on its regular docket to determine whether state legislatures will have virtually unchecked authority to set the terms of federal elections for 2024 and beyond. That is the matter the justices will tackle on December 7th.
Article I of America’s constitution provides that the “times, places and manner of holding elections” for Congress “shall be prescribed in each state by the legislature thereof”. Advocates of the independent-state-legislature theory say this clause assigns sole responsibility for redistricting to the state legislature; other branches of the state government, including the courts, must watch from the sidelines.
I do not accept the conservative position that there is no separation of powers for state governments setting rules for elections. The conservatives believe that only the legislature can make rules for voting, and that neither the courts nor the executive can play a role. This idea goes against the whole system of government in America. States do have the right to govern themselves as specified by the Tenth Amendment. I don’t believe the Constitution prohibits states from allowing its government to operate with separation of powers including judicial review of election rules.
