When Courts Rewrite Election Law: Why Constitutional Structure Still Matters

In constitutional litigation, the most consequential errors are often not the loudest ones. They do not announce themselves as revolutions. Instead, they arrive quietly—through interpretation, implication, or judicial “clarification” that subtly shifts authority from where the U.S. Constitution, the foundational and primary American law places it.That is precisely why structural constitutional cases continue to matter, especially when courts are asked to decide not simply what the law says, but who has the authority to say it.

Today, I filed an amicus curiae brief in a case now before the U.S. Supreme Court that raises one of the Constitution’s most fundamental, yet frequently misunderstood, questions: when does a federal election actually occur—and who gets to decide the rules that govern it?

The answer is not merely academic. It goes to the heart of federalism, separation of powers and the legitimacy of judicial decision-making itself.

The Difference Between Voting and Administration

The U.S. Constitution draws a sharp distinction between the act of voting and the administrative processes that follow it. That distinction has existed since the founding.

Congress has exercised its Elections Clause authority to establish a uniform Election Day for federal offices. What it has not done is require that ballots be received, counted, or certified on that same day. For more than two centuries, States have handled the mechanics of elections—including absentee voting, mail delivery and post-Election Day canvassing—within that constitutional space.

The legal question presented to the Court is whether federal Election Day statutes silently preempt that longstanding state authority.Answering that question correctly requires more than policy preference or outcome-driven reasoning. It requires fidelity to constitutional structure.

Federalism Is a Default Rule—Not an Afterthought

The Elections Clause operates as a default rule of state authority. States regulate the times, places and manner of elections unless Congress clearly chooses to displace them.That clarity requirement is not incidental. It is a core feature of constitutional design.

When courts infer sweeping federal control from statutory silence, they invert that design—transforming judicial interpretation into de facto legislation. The danger is not limited to election law. Once courts become comfortable filing perceived gaps with national rules, the Constitution’s careful allocation of power begins to erode.

This why the U.S. Supreme Court has repeatedly insisted that preemption in areas of traditional state authority must be unmistakably clear. Elections are not an exception to that rule—they are one of its strongest applications.

Why “Election Day” Does Not Mean “Election Completion Day”

Historically, an “election” has always referred to the voter’s act of choosing, not the government’s act of counting. Dictionaries from the founding era defined elections as acts of choice. Early American practice reflected the same understanding.

Interpreting Election Day statutes to require final ballot receipt or tabulation by midnight would not merely disrupt modern absentee voting—it would retroactively invalidate centuries of accepted electoral practice. Provisional ballots, military ballots, overseas ballots and routine post-Election Day counting would all become constitutionally suspect.That is not statutory interpretation. It is statutory reinvention.

Separation of Powers Is Not Optional

The U.S. Constitution assigns different responsibilities to different branches for a reason. Courts interpret law; Congress writes it; the President enforces it. When courts manufacture national election rules from ambiguity or silence, they do more than resolve disputes—they reallocate power.

The U.S. Supreme Court has cautioned against this exact dynamic in multiple contexts, emphasizing that major structural changes must come from Congress itself. Election law is no different. If Congress wishes to impose a national ballot-receipt deadline, it has the authority to do so. Until then, courts are not free to impose one in its stead.Respecting that boundary preserves not only federalism, but institutional legitimacy.

Why These Cases Matter Beyond One Election

Elections cases often attract attention because of their immediate political implications. But the most important election decisions are rarely about who wins. They are about how power is exercised, who decides the rules and whether constitutional limits still constrain institutional ambition.

Structural constitutional litigation—especially before the U.S. Supreme Court—serves as a reminder that the rule of law is not measured by convenience or consensus, but by adherence to the framework that governs us all.That framework only endures if lawyers, judges and courts take it seriously.

A Continuing Commitment to Constitutional Integrity

Amicus advocacy has long played a critical role in U.S. Supreme Court jurisprudence, particularly in cases involving federalism and separation of powers. Thoughtful amicus briefs help courts see beyond the immediate parties and consider the broader constitutional consequences of their decisions.

In cases like this one, the goal is not to advance a political outcome, but to defend the architecture of the U.S. Constitution itself—an architecture that protects democratic legitimacy precisely because it restrains all branches equally.That commitment remains essential, especially as courts confront increasingly complex questions at the intersection of federal authority and state sovereignty.

Read the Full Amicus Curiae Brief:

https://www.supremecourt.gov/DocketPDF/24/24-1260/391101/20260108082351677_Updated%20Brief%20of%20Corey%20J.%20Biazzo%20as%20Amicus%20Curiae%20in%20Support%20of%20Petitioner%20.pdf