The U.S. Supreme Court may be lighting a path for election-law challenges.

This matters.

It matters in, for example, redistricting challenges and challenges to prevent future election illegalities.

An ongoing North Carolina challenge involves redistricting.

The state legislature in Raleigh drew congressional-district lines following the 2020 census. Unsatisfied, the state Supreme Court re-drew them.

State legislators asserted that under the U.S. Constitution, the state Legislature – not the state Supreme Court – draws such lines and asked the U.S. Supreme Court to step in and decide the issue before the entire action concluded in the lower courts. On March 7, the high court declined to step in now, yet that doesn’t preclude its deciding the North Carolina issue later if a party properly brings it back to the high court.

When the high court declines to accept a case or action, justices sometimes tip their hands on an issue. Three, perhaps four, of them did so on March 7.

Readers of this column in January 2021 and May 2021 will recall that the U.S. Constitution has both an Electors Clause and an Elections Clause.

¯ Under the Electors Clause, which is in Article II, Section 1, Clause 2 and speaks to presidential elections, “Each State shall appoint, in such Manner as the Legislature may direct, a Number of Electors … .”

¯ Under the Elections Clause, which is in Article I, Section 4 and speaks to congressional elections, “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law alter such Regulations, except as to the Places of choosing Senators.”

You, faithful reader of this column, can answer a key question that North Carolina legislators raise: Whom do the Electors Clause and the Elections Clause empower in each state? Is the answer (a) the Legislature, (b) the executive branch, or (c) the judiciary?

Yes, that’s right. The answer is (a).

Three justices on March 7 signaled their inclination to hold that the answer is (a).

Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, wanted to do so in the North Carolina action now, not later.

Dissenting from the high court’s declining to decide it now, Alito made multiple points, including these, with citations omitted:

“This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections. …

“The Elections Clause … could have said that these rules are to be prescribed ‘by each State,’ which would have left it up to each (s)tate to decide which branch, component, or officer of the state government should exercise that power … . But that is not what the Elections Clause says. Its language specifies a particular organ of a state government, and we must take that language seriously. …

“The question presented is one of federal not state law because the state legislature, in promulgating rules for congressional elections, acts pursuant to a constitutional mandate under the Elections Clause. And if the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.”

A fourth justice – Justice Brett Kavanaugh – agrees with Alito that the high court should decide the issue, yet Kavanaugh prefers doing so “after full briefing and oral argument” at a time other than “close to an election.”

Kavanaugh says the North Carolina issue, by contrast, came to the court in an “application … for emergency interim relief” to require “North Carolina to change its existing congressional election districts for the upcoming 2022 primary and general elections.”

So there’s a possible election-law-challenges path in the high court: First try to seek “full briefing and oral argument” at a time other than “close to an election.”

Dr. Randy Elf’s most recent U.S. Supreme Court brief is at https://works.bepress.com/elf/84.

COPYRIGHT ç 2022 BY RANDY ELF