[larrymcg421]

Originally Posted by SackAttack

The states have the Constitutional right to dictate the "times, places, and manner" of elections, but I'd guess that Congress would hold that any changes have to affect the next proximate future election. Otherwise, for example, you could see an election where a gubernatorial candidate wins on the strength of early voting and the Legislature, controlled by the opposite party, votes to retroactively kill early voting to take those ballots off the table so Their Guy gets to be governor.

Or like what happened with the Maine dude who sued to kill ranked voting because he lost. He wanted to be declared the winner because he won a plurality of first-choice ballots. Maine voters voted knowing that their 2nd and 3rd place choices could impact the election, but that dude wanted the rules to change after he lost, and the courts said 'nope.'

The difference here is that in a Presidential election, Article 2 gives specific mention of state legislatures - "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,"

In Bush vs. Gore, three justices (Rehnquist, Scalia, Thomas) argued this meant that the state courts couldn't even review the legislature's decision to appoint electors. Kennedy and O'Connor didn't sign on to this (and Kennedy basically made fun of the guy who tried to argue this during oral arguments), but they're not on the court anymore.

I agree with you that the clause doesn't authorize the legislatures to make an ex post facto change of the "manner" they already determined, but I don't know how confident I am of the current court makeup.