" I think the separation of powers argument here is weak."
Well, at least we now know that the US Supreme Court does not share this view.
According to the Supreme Court acceptance of the case, they're concerned about a federal law, 3 U.S.C. Sec. 5, which says that in choosing electors the states may not deviate from rules set forth at least six days prior to the election. That's the federal statute that they asked for briefing on. They may consider, but did not ask for briefing and argument on, the separation of powers issue.
Here's the actual text of the federal statute:
CITE 3 USC Sec. 5 01/26/98
EXPCITE TITLE 3 - THE PRESIDENT
CHAPTER 1 - PRESIDENTIAL ELECTIONS AND VACANCIES
TEXT Sec. 5. Determination of controversy as to appointment of electors
If any State shall have provided, by laws enacted prior to the
day fixed for the appointment of the electors, for its final
determination of any controversy or contest concerning the
appointment of all or any of the electors of such State, by
judicial or other methods or procedures, and such determination
shall have been made at least six days before the time fixed for
the meeting of the electors, such determination made pursuant to
such law so existing on said day, and made at least six days prior
to said time of meeting of the electors, shall be conclusive, and
shall govern in the counting of the electoral votes as provided in
the Constitution, and as hereinafter regulated, so far as the
ascertainment of the electors appointed by such State is concerned.
SOURCE (June 25, 1948, ch. 644, 62 Stat. 673.) |
