Law Professor Mark R. Brown of Capital University, Columbus, Ohio, has this article in Volume 7 of the Dartmouth Law Journal, on page 260. The title is “Structural Limitations on the Non-Legislative Regulation of Federal Elections.”

Generally, when the U.S. Constitution talks about state government, it uses the simple term “state”. But in the parts of the U.S. Constitution that talk about federal elections, it uses the term “legislature”, saying that only legislatures (not “states”) can write laws on selection of presidential electors, and election of members of Congress. This characteristic of the U.S. Constitution was not thought about very much, in recent times, until the 2000 election. Three justices of the U.S. Supreme Court said in their concurrences in Bush v Gore that the Florida Supreme Court was overstepping its authority by seeming to issue rules for counting the presidential vote that, arguably, the legislature had not approved. Professor Brown discusses the consequences for ballot access laws, in states in which state executive officers (such as the Secretary of State) have tried to fill in the gaps, or alter, ballot access laws passed by the legislature. Brown has represented either the Socialist Party or the Libertarian Party, or both of them, in ballot access lawsuits in Ohio, Louisiana, and Mississippi, and he is probably the leading thinker on this aspect of the U.S. Constitution and election law.