Anna Jessurun in Slate:

As several scholars predicted, ISLT proponents have now seized on the language in Moore to argue that state supreme court decisions that invalidate state election laws on state constitutional grounds violate the elections clause. This spring, the Montana Supreme Court held that various election laws, such as the elimination of same-day voter registration and the restriction of third-party absentee ballot collection activities, violated the right to vote in the state constitution. Now Montana has asked the U.S. Supreme Court to review and reverse that decision, arguing that by striking down these laws, the state Supreme Court unconstitutionally interfered with the authority of the Legislature.

Far from raising substantial questions under the elections clause, the Montana case underscores why the vast majority of post-Moore ISLT claims should not succeed. As I and others argue in an article forthcoming in Boston College Law Review, it will be exceptionally rare for a state court to exceed the ordinary bounds of judicial review, and accordingly, it will almost never be appropriate for the Supreme Court to second-guess state court decisions on state constitutional law under the elections clause.