Aziz Huq writes:

The new Supreme Court term that began this week isn’t overflowing with obvious blockbusters. The justices have taken one big culture-war case — a challenge to Tennessee’s ban on gender-affirming health care for trans youth — but turned down invitations to deepen the court’s assault on the administrative state.

Will such modesty last? One reason to think not is this: The presidential election cycle is just getting to the point where political conflicts could mutate into constitutional cases. In fact, the Supreme Court has already shown it is unafraid to scramble electoral rules mere weeks before balloting starts: It recently accepted a Republican effort to require proof of citizenship for some Arizona ballots.

It’s impossible to predict whether another Bush v. Gore is around the corner. Yet the court may well soon face a high-profile dispute with no obviously “right” legal answer — and where the result decides the election.

Three paths already exist for the Supreme Court if it wants to reshape the 2024 outcome.

The first path lies through a challenge to a state court’s ruling on state election law. The Supreme Court ordinarily hears only federal law cases. But a 2022 decision in Moore v. Harper held that the justices could step in if state judges “exceeded the bounds of ordinary judicial review” in ruling on state election law. The justices never clarified what this vague language could entail. This means they have a free hand to second-guess state courts’ state law decisions when it comes to federal elections. [Continue reading…]