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Thousands of election laws are already on the books, so the idea that any one of them can be “struck down” by the U.S. Supreme Court is not quite so facile. The real issue is whether the justices have the constitutional power to “strike down” statutes in the first place, and that, too, is far from easy.

The first line of defense, as I have written here before, is the doctrine of separation of powers: The fact that Congress passed some or all of the provisions in question does not prevent them from being struck down.

But the doctrine of separation of powers is also overused. For instance, it is extremely hard to see how the separation of powers operates when it comes to criminal prosecution. The vast majority of criminal prosecutions in the federal system is handled by state (and, in some special instances, local) governments. Do the states have the power to prosecute and punish federal crimes? Many political theorists would say yes, even if the U.S. Constitution says no.

The courts are supposed to guard against such overstepping. But, as I wrote in another recent post, the Supreme Court has on several occasions upheld state criminal laws on the basis of a separation of powers doctrine. So, to the extent that separation of powers doctrine was put forward to make sure that the courts would not be allowed to intrude in too many areas, it appears to have failed — at least so far.

For the most part, justices have been very timid about violating the separation of powers doctrine in the criminal case. Even so, there are exceptions. For instance, the court has struck down the conviction of a group of protesters in the 1965 court challenge of the Civil Rights Act of 1964. Likewise, in a 1979 ruling on pornography, the court held that Congress could not create a crime for the private possession of obscene materials, even though it had the power to outlaw such material.

But, with the exception of those two cases, the courts have rarely deviated from the basic separation of powers

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