Does the U.S. Constitutions Elections Clause Protect State Legislatures Against Encroachment by State Courts or Governors?
The question on the merits in Lance is an important one: It asks to what extent the federal Constitution’s mention of state “Legislatures” in the Elections Clause (and elsewhere) protects state legislative bodies from encroachment by state judicial and/or executive branches. The Supreme Court has not had much occasion to determine and clarify how important state “Legislatures” – as distinguished from state governments more generally – are, when the federal Constitution mentions them in connection with a federal process (such as drawing Congressional districts, selecting Presidential electors, or participating in the federal constitutional amendment process.) Indeed, a similar issue arose in the infamous Bush v. Gore case; much of the debate in that litigation, as it made its way to the Supreme Court, was over how active and aggressive Florida courts could be in overseeing the state recount process in the 2000 Presidential election, consistent with the federal Constitution. (In Article
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