A case out of Montana is going to provide the next test of where the Court stands on the independent state legislature doctrine (ISL). In Moore v. Harper (2023), the Court rejected a more extreme version of the doctrine, but endorsed a weaker version, as I discussed in this NYTimes essay. Under that version, “[S]tate courts may not so exceed
the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by” the Elections Clause, which applies to federal elections. Scholars have debated how much teeth this weaker version might have.

In MT, the state court struck down via the state constitution two changes the legislature made to state election laws regulating federal elections. The first change ended same-day voter registration and required voters to register no later than noon the day before the election. The second change required the MT Secretary of State to adopt regulations banning paid absentee ballot collection. In a 5-2 decision, the MT Supreme Court held that both these legislative changes violated the state’s constitutional protections for the right to vote. The court held that the state constitution provides greater protection for the right to vote than is provided under federal constitutional law by the Anderson-Burdick doctrine.

MT has filed a cert. petition arguing that this state court interpretation of the state constitution violates the constraints Moore v. Harper announced. The case is Jacobsen v. MT Democratic Party. Several amicus briefs have been filed in support of the petition, including by 15 states. The Court is due to discuss the case at its Oct. 18th conference, but since respondents have waived their right to file a response, the Court’s first action might be to request a response. MT has not sought an emergency stay, so if the Court hears the case, it would be well after the election.

This case definitely bears watching. If the Court denies cert., that will be a signal that the weaker version of the ISL is not likely to be robust. If the Court grants cert., that would signal the opposite.

Update: After this post went up, the Supreme Court did request a response from the respondents to the cert. petition. The Court also extended the time for that response to Dec. 23, 2024.