Excellent new Rick Pildes in the NYT:

Relief that the court did not endorse this extreme position, though, must be tempered by the fact — which many initial responses to the decision have not recognized — that the court simultaneously endorsed a version of the independent state legislature theory. The court held that the Constitution imposes some limits on the way state courts interpret their own state constitutions. These limits also apply to the way state courts interpret state election statutes — as well as the way state election administrators apply state election statutes in federal elections.

Yet the court offers no guidance, no standard at all, for lower courts to know when a state court has gone too far. The decision merely says that “state courts do not have free rein” and that they may not “transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”

The court offers no concrete understanding nor any example of what that means. It’s clear that a majority was cobbled together among conservative and liberal justices by agreeing to decide this part of the case in the narrowest terms. Indeed, the court announced this constitutional constraint but avoided telling us even whether the North Carolina Supreme Court — in the decision the U.S. Supreme Court reviewed — had violated this vague limitation….

Judicial minimalism can be a virtue in many contexts. Deciding cases on narrow grounds or postponing resolution until a sharp conflict is unavoidably before the court can limit judicial overreaching and produce more consensus within the court.

But in the context of election law, it can be a vice. Elections benefit greatly from clear rules laid out well in advance of Election Day. Such rules minimize voter confusion; bolster the ability of election officials to communicate clear, consistent messages to voters; enable political campaigns to organize efforts to mobilize voters; and avoid continual litigation over unclear rules or doctrines. Clear rules specified in advance are all the more important in this era of pervasive distrust and suspicion concerning elections.