In fact, this part of Bush v. Gore has already been squarely rejected by a landmark 2015 case, Arizona Legislature v. Arizona Independent Redistricting Commission. Writing for the court in one of her greatest opinions, Justice Ruth Bader Ginsburg — who had emphatically dissented in Bush v. Gore — made clear that when Article I of the federal Constitution empowers the “legislature” of each state to regulate various aspects of congressional elections, the word “legislature” means the lawmaking process set up by a state’s constitution: Nothing in the federal Constitution, she said, “instructs, nor has this court ever held, that a state legislature” may regulate “federal elections in defiance of the provisions of the state’s constitution.”
The same rules for Article I also apply to Article II, which uses virtually identical language. It too empowers each state “legislature”— this time, to regulate the manner of picking presidential electors — but it does not empower a state “legislature” to ignore the state constitution creating that legislature, or the state supreme court that authoritatively interprets that state constitution.
Thus, when a state court construes a state election statute to align it with a state constitution’s right-to-vote principles, that state court is doing exactly what the federal Constitution and binding federal precedent authorize.
Justice Kavanaugh and the three other justices who wanted to jump into the Pennsylvania postmark dispute missed all this — a particularly striking lapse for jurists who say they are guided by the letter and spirit of the Constitution and by the basic rules of well-settled precedents. Indeed, just last year, the court, in a major opinion by Chief Justice Roberts, and joined by all the other dissenters in the Arizona Legislature case, and by Justice Kavanaugh, cited that case and squarely relied on its key holding.
Allowing federal courts to muck around with state election laws is dangerous and destabilizing. States generally set uniform rules for federal and state elections; giving federal courts latitude to topple state rules, but only for federal elections, eviscerates in-state uniformity.
Does it really make sense that your ballot in Pennsylvania will count for state elections but not the presidency — or federal House or Senate races, for that matter — because it arrives on Nov. 5?
Even if state constitutions do not apply of their own force to presidential ballots, these constitutions apply because state legislatures have chosen to incorporate them by reference into comprehensive state election codes regulating all elections in the state — local, state, congressional and presidential. Likewise, state legislatures have knowingly deputized state courts to oversee all these elections to ensure conformity with state constitutions.