Justice Samuel Alito’s opinion dissenting from the denial of application for stay in Moore v. Harper last March offered the following reflection and string citation of cases:

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. There can be no doubt that this question is of great national importance. But we have not yet found an opportune occasion to address the issue. See, e.g., Democratic National Committee v. Wisconsin State Legislature, 592 U.S. _ (2020); Scarnati v. Boockvar, 592 U.S. (2020); Moore v. Circosta, 592 U.S. __ (2020); Wise v. Circosta, 592 U. S. __ (2020); Bush v. Gore, 531 U.S. 98, 112 (2000) (Rehnquist, C. J., concurring); see also Republican Party of Pennsylvania v. Degraffenreid, 592 U.S. __ (2021) (THOMAS, J., dissenting from denial of certiorari); id., at (ALITO, J., dissenting from denial of certiorari); Wisconsin State Legislature, 592 U. S., at __ (GORSUCH, J., concurring). We will have to resolve this question sooner or later, and the sooner we do so, the better. This case presented a good opportunity to consider the issue, but unfortunately the Court has again found the occasion inopportune.

Justice Brett Kavanaugh rejected the application for a stay, but he added these thoughts:

I agree with JUSTICE ALITO that the underlying Elections Clause question raised in the emergency application is important, and that both sides have advanced serious arguments on the merits. The issue is almost certain to keep arising until the Court definitively resolves it. Therefore, if the Court receives petitions for certiorari raising the issue, I believe that the Court should grant certiorari in an appropriate case—either in this case from North Carolina or in a similar case from another State. If the Court does so, the Court can carefully consider and decide the issue next Term after full briefing and oral argument.

The grant of Moore, and the focus of briefing so far, addresses one batch of cases. But it has (essentially) nothing to say about another batch of cases, and there’s a significant risk that the Court fails to address this batch of cases, if it finds for the Legislature in this case.

To begin, Justice Alito’s string citation is overbroad. One of his citations is Democratic National Committee v. Wisconsin State Legislature, which involved federal courts, not state courts (hence, the “see also” citation). The other two cases (despite their various incarnations) came from Pennsylvania and North Carolina. These, two, plus Moore v. Harper (and one might add the League of Women Voters v. Pennsylvania partisan gerrymandering case), are basically the universe of such cases in recent years.

But two scenarios appear to be recurring. (And, of course, one could start to spin out additional scenarios, which is I suppose a different question of risk tolerance.)

First, those cases of state courts construing the state constitution to limit or alter the actions of the state legislature. That’s the partisan gerrymandering cases (like Moore v. Harper). That’s also Pennsylvania’s 2020 litigation over the receipt of absentee ballots. (I had some reflections that presaged Moore v. Harper here at ELB shortly after Election Day 2020.)

Second, the North Carolina 2020 cases. (It’s worth adding here Carson v. Simon, a case out of Minnesota in 2020, too.) These are cases where the executive entered into a consent decree, arguably subverting the will of the legislature.

Consent decrees are tricky. On the one hand, they can easily and readily help a lawsuit go away where uncertainty–and perhaps even a likely loss–are costly. On the other hand, they are convenient ways for “collusion” between executives and private parties who sue to circumvent legislative preferences.

I think these cases may likely disappear for a reason unrelated to the Legislature Thereof Clause. States have begun to enact laws (including Georgia’s SB 202) that require things like advance notice of any settlement agreements, and the Supreme Court has approved state laws that allow legislators to intervene in election disputes by state statute. Reining in consent decrees, then, remains a state legislative function that can be controlled without reference to the federal courts.

But the rules from the Supreme Court look different in these two batches of cases. Consider how the case has been briefed so far. The overwhelming focus is on the degree to which, if at all, a state constitution can substantively constrain a state legislature in a way that is enforceable by a state court.

That’s not the issue in the batch of consent degree cases. These are questions of executive enforcement or defense in litigation, often at a statutory directive of the legislature, without much reference to the state constitution (in fact, the Minnesota case was a consent decree based on federal law).

It’s not clear to me that there’s going to be an easy way of resolving what Justice Alito described as an “exceptionally important and recurring question of constitutional law.” It strikes me that there are two different sets of concerns in these cases, and it’s not obvious to me that the resolution in Moore will resolve the other set. Now, of course, if the Court finds against the legislature, it becomes much easier to reject the claims elsewhere. But I’ll be looking closely at the rule articulated by the Supreme Court to see how easily it may transfer to other cases.