As for original views on the matter, legislators have admitted that a few early state constitutions placed limits on state laws for federal elections. Instead of taking this as evidence that it was not unthinkable in the founding era, they argued that the existence of these laws led them to the opposite conclusion. “The three outlier state provisions of this period which sought to limit the power of the electoral clause of the legislature, in Delaware (1792), Maryland (1810) and Virginia (1830), are at best historical outliers which are unable to overcome the preponderance of historical evidence – let alone the plain text of the election clause,” the lawmakers asserted.
The opposing side’s deadline for filing briefs isn’t for a few weeks, so right now the Supreme Court only has half the case before it. One group, however, filed an unusual brief that formally claimed to take no sides but largely disagreed with state lawmakers. The Conference of Chief Justices, which represents chief justices of state supreme courts across the country, told the Supreme Court that the election clause does not exclude state courts and constitutions.
“Many foundation-era state constitutions contained provisions regulating elections,” the group noted. “This historical background strongly supports state court review of state election laws under state constitutions. And while the text of the Elections Clause requires state legislatures to prescribe the laws governing federal elections, it does not otherwise displace the established authority of the states to determine the final content of their election laws, including through normal judicial review of constitutionality.