The Supreme Court begins its annual term this upcoming Monday, October 3.  Unofficially, the term begins later today when the Supreme Court holds its opening conference (at which it will start selecting the cases that will start to fill out its January and February argument sessions).  In Part 1, we covered the cases that have been scheduled for argument in October and November.  In this post, we will cover the cases that were previously accepted for argument back in the Spring but which have yet to be assigned to an argument docket (as of yesterday).  Any day now, we should have a list of the December cases (which will actually begin on November 28 and be half in November and half in December).

Percoco vs. United States and Ciminelli vs. United States are related cases involving bidding fraud and government contracting.  One aspect of the cases is whether a lobbyist with political connections (here a former campaign manager) can be found guilty for “honest services fraud” (a means of holding elected officials liable for their part in going along with fraud).

Moore vs. Harper may be the biggest election law case of the term.  The Constitution grants initial power over federal elections to state legislatures.  The two elections clauses — one for congressional elections and one for the choosing of presidential elections — have typically been interpreted as referring to the state legislative power rather than specific bodies (recognizing that, even in the 1780s, there were differences between the states in how they structured their governments).  This traditional interpretation recognized that the people of the states had the authority to enact restrictions on election laws in their state constitutions.  In recent years, conservatives have come up with the “independent state legislature” theory.  Under this theory, the federal elections clauses granted power to the state legislatures that are beyond the control of state constitutions and state laws and rules.  In relevant part, absent an express grant in the state election laws, this theory contends that state courts may not invalidate state elections laws related to federal elections based on state constitutions and that state executive branch officials may not deviate from the express commands in those state elections laws.  This case arises in the context of congressional redistricting, but the theory of the North Carolina legislature would open up a convoluted mess of when a court or an election authority is merely interpreting the relevant state statues and when they are altering it. Continue Reading...