Divorcing State and Federal Elections is Damaging to Democracy

Elections are complex undertakings with thousands of moving parts (in the best of circumstances). Some policymakers are now looking to double election complexity and cost of while also undermining security and creating a lot of confusion.

The biggest risk for election administration chaos comes from the Supreme Court’s pending ruling on the Independent State Legislature Theory in the Moore v. Harper case. If the Supreme Court endorses the theory, it could lead to a bifurcated system of election administration that would force states to run separate and simultaneous elections for state and federal offices.

The case may be mooted this month if the North Carolina Supreme Court overrules the underlying case. The question is a legal grey area, and we may not know the outcome for some time. Even if the Supreme Court does not endorse the theory, an emerging trend in state legislatures could result in equally damaging consequences for elections.

State Legislative Efforts on Bifurcation on the Rise

Since 2020, five states have introduced legislation that would separate federal and state elections: Missouri, Texas, and Oklahoma this year and New Hampshire and Alaska in the 2021-22 legislative session. These efforts claim to create state sovereignty over election processes and insulate state elections from federal oversight and intervention. Alaska and Oklahoma went as far as to title their legislation as “Election Sovereignty Acts.” Running two separate but simultaneous elections with different rules would create widespread confusion for voters, dramatically increase costs of administering elections, and could make it easier for bad actors to exploit complexity and spread misinformation.

The impetus behind this nascent trend appears to be based on unwarranted fears that the federal government will nationalize elections. Texas Representative Mike Schofield proclaimed, “Congress has the right to set the time, place, and manner of their elections, but not for ours.” And, Alaska Senator Mike Shower offered this statement in committee when his bill was being heard, “If the federal government nationalizes the election system, undermining the long tradition of mutual cooperation, or worse, the sovereign rights of a state to manage its internal election affairs, then Alaska should simply tell the federal government to run their own election, bifurcating the election process.”

As efforts encouraging Congress to act on voting rights legislation continue, and efforts to institute proof of citizenship expand in states, attempts by state legislatures to bifurcate elections may increase.

Bifurcation Undermines Free and Fair Elections

Uniform rules for election administration mitigate confusion, improve election administration, and ensure voters are treated equitability. A bifurcated system creates two separate and unequal sets of rules, one for state elections and one for federal elections, complicating and burdening the election administration ecosystem.

BPC’s report, Independent State Legislature Theory Undermines Elections Principles, highlighted some of the potential implications of bifurcation:

• Cost and complexity. Bifurcation would necessitate two distinct ballots for each voter and potentially additional accommodations, doubling costs, and complexity.
  • Election administrators already must divert valuable resources to increase communication to voters amidst rising disinformation.
  • Funding for state and federal elections would be severed, leaving vast disparities in resources for administering elections between and within states. Because some bifurcation legislation proposes leaving responsibility for funding federal elections to the federal government alone, and state investment in elections funding is highly variable, local jurisdictions could see their costs skyrocket. Conversely In addition, under-resourced counties that are dependent on federal resources may suffer when their jurisdictions are not able to dedicate federal support to local and state elections.
• More workers and training. More workers would be needed to meet the demands of a complex system with two sets of rules, even though many jurisdictions nationwide already struggle to recruit and train the necessary number of workers to support elections. Training for election administrators and poll workers would be more complex and require more resources.
• Additional hurdles for rural counties. Rural counties with fewer resources and more diffuse/smaller populations? would struggle to implement separate and simultaneous elections. These same counties often struggle to find poll workers and would be tasked with developing a two-track system of training.
• Increase in voter confusion. Voters could, for example, cast a mail ballot for state contests and then be required to appear in person for the federal races. Additional complexity will decrease voter confidence at a time when voters already struggle to understand why voting options differ across state lines. Greater attention from higher profile federal races may encourage and educate voters on only one system, reducing voter participation in state and local races.
• Separate voter rolls jeopardize accuracy, access, and integrity. Systems that have been instituted to ensure the accuracy of voter rolls and a bifurcated system could jeopardize access to voter registration for eligible voters. A bifurcated system would necessitate two separate voter registration lists—a time-consuming and complex task that would drain resources, confuse, and disenfranchise voters, and contribute to long waits at voting sites as poll workers struggle to manage two voter lists.
• Longer waits for results. Doubling the complexity of the voting process will increase the amount of time between Election Day and the reporting of results. Among other things, delayed results create opportunities for misinformation to flourish.

A bifurcated election administration system with one set of rules for federal contests and another for state could be calamitous. Voter confusion would be high, turnout would suffer, and administration would be ripe for unintentional errors.

Past Efforts to Bifurcate Voter Registration

Bifurcation is not a new concept. Arizona and Kansas have attempted to bifurcate their voter registration systems to varying degrees believing it necessary as precondition to implement a proof of citizenship requirement based up court of appeals ruling. Other states, like Alabama, have passed but failed to implement voter registration laws that contradict federal law. Under the National Voter Registration Act of 1993 (NVRA), proof of citizenship is prohibited, but only for federal elections. This tension between states’ desire to implement proof of citizenship requirements and the prohibition of such requirements may lead other states and legislators to pursue bifurcated voter registration systems. Voter roll bifurcation creates confusion for elections administrators and voters and would damage the election administration eco-system.

As election administrators and others work to build trust and confidence in our elections, conversations related to bifurcating state and federal elections may create new opportunities to undermine efforts to bolster election administration. Moreover, with Moore v. Harper pending, a decision affirming the Independent State Legislature Theory could prompt more interest among state legislators to bifurcate state and federal elections. If the North Carolina Supreme Court overrules the underlying case, legislators fearing future federal action on elections policy may continue to push legislation that would create two separate elections structures in a misguided attempt maintain sovereignty over state election policy. In either circumstance bifurcated elections have negative ramifications for democracy.

Bifurcation Legislation Introduced Since 2020