The Supreme Court will soon hear a case with the potential to upend both election administration and the basic principles of how American democracy works. Its ruling will be handed down less than a year before primaries begin in the 2024 election, possibly creating a massive disruption to voting just before a contentious contest.
The case, Moore v. Harper, involves state legislative power over congressional redistricting. The petitioners bringing the case posit that Article I, Section 4 of the Constitution,1 commonly referred to as the Elections Clause, endows state legislatures with exclusive power to decide how federal elections are administered within their states. If the Supreme Court rules in favor of this theory, the laws state legislatures pass to regulate federal elections would become immune from the normal checks and balances of state constitutions and state judicial review that apply to all other state lawmaking activities. Legislatures could enact laws inconsistent with their state constitutions, effectively overriding the source of their own legislative power.
The novel concept is named the independent state legislature theory (ISL). We believe that ISL—if endorsed by the Supreme Court in maximal form—could not be limited to state legislative control over redistricting. ISL would necessarily extend to all aspects of state regulation of federal elections under the Elections Clause.
In the most extreme possibility, local election administrators could be forced to run simultaneous elections—one for federal contests and one for state contests—on different ballots and with different rules. Voter confusion and anger in 2024 and beyond would be certain.
This brief focuses on three principles that are essential for U.S. election administration and how the implementation of ISL would upend them:
- Principle 1: State legislatures cannot move quickly enough to establish statutes, regulations, or guidance for elections in the heat of election cycles when legislatures are out of session.
- Principle 2: State constitutions, voter-enacted initiatives, and state courts—in addition to state legislatures—have legitimate roles in shaping voting and the administration of elections.
- Principle 3: The voting experience is smoother and election administration is more efficient when each state has uniform rules and practices for state and federal elections.
Within each principle we highlight the real-world effects of a ruling that affirms state legislative supremacy over other parts of state government, even the state constitutions that created the legislatures themselves, with respect to federal elections.
To anticipate the effects of ISL on voting and elections practices, this brief presumes a Supreme Court ruling that fully embraces the independent state legislature theory. By this we mean a ruling holding that state legislatures cannot be constrained in any way by state constitutions or state judicial review when it comes to regulating federal elections. Federal laws and the U.S. Constitution, however, would still restrain state legislatures’ discretion. We recognize that some scholars have speculated about a more limited ruling, but there is little consensus about what such a ruling would be. This leaves the purest form of ISL—the version supported by the petitioners in the case—as the most viable scenario from which to draw inferences. Even limited adoption would disrupt elections.
Principle 1: State legislatures cannot move quickly enough to establish statutes, regulations, or guidance for elections in the heat of election cycles when legislatures are out of session.
State election codes cannot account for all possible scenarios with enough clarity to administer an election, leaving election administrators at the state and local levels to interpret statutes. When these broad statutes conflict with each other or unexpected circumstances occur, election administrators must make judgment calls to maximize voter access and protect the integrity of the vote.
ISL could easily be read to mean that state legislatures have the authority to usurp an election administrator’s determination of the on-the-ground reality; it could also empower the legislature to make literally every decision regarding federal elections in the state.
No statute can be written to anticipate every eventuality and innovation in the election space. Election officials at the state level must have the flexibility to produce timely guidance based on both changing conditions and their interpretation of the legislature’s intent.
Emergencies often happen close to Election Day. Superstorm Sandy hit New Jersey and New York in late-October 2012, less than two weeks before Election Day. Dozens of polling places were damaged, forcing officials to relocate precincts and shift to alternative methods of voting that statutes had not explicitly authorized. In 2018, Hurricane Michael made a direct impact on Mexico Beach, Fla., wiping out entire neighborhoods. The local supervisor of elections determined that state law allowed voters an opportunity to cast electronic ballots so that they did not lose their right to vote.
The COVID-19 pandemic similarly disrupted the 2020 presidential election. In states that had limited options for voting outside of polling places, election officials tried to offer the most accessible and secure options they could within statutes that never anticipated such limitations.
BPC’s Task Force on Elections, a group of state and local election officials from politically and geographically diverse areas, endorses deliberate and clear legislating that ends far before Election Day. The task force emphasized that legislation passed too close to Election Day harms public confidence and weakens election administration.
Yet issues will almost always arise before and on Election Day. For example, what should administrators do for voters who inadvertently received incorrect ballots? What if polling sites become unavailable and local officials are scrambling to provide in-person voting options? If administrators at the state and local level do not have authority to make quick decisions, voters could be left without a way to cast their ballots.
ISL’s implementation would mean administrators would have to get guidance from polarized, gridlocked legislatures or risk potentially opening their decisions up to litigation. Legislatures are slow, deliberative bodies not accustomed to or ideal for making nuanced decisions quickly. In the weeks leading up to Election Day when these decisions are needed most urgently, some legislatures will not even be in session.
Consequently, ISL would greatly expand federal election litigation and federal judicial oversight of state election laws. If ISL restricts state and local election officials from applying discretion or judgment in administering vague, conflicting or unworkable laws, state legislatures will need to bring claims in federal court to ensure administrators are in strict compliance with each statute. Other individuals—candidates for office or a voter, for example—would also likely have standing to bring claims.
In effect, federal courts would be charged with interpreting state statutes as they apply to federal elections. States are already bogged down in election litigation—the implementation of ISL would severely worsen the problem.
One further concern is with the powers related to the certification of election results. ISL could feasibly allow the legislatures to establish policies for the certification of federal election results, up to and including replacing local boards and secretaries of state with the legislature itself as the final arbiter of election results.
The current political incentive structure encourages partisanship over impartiality. If state legislatures were to empower themselves with final certification over federal election results, we envision unavoidable standoffs when the party in power in the state legislature loses a given federal contest. In essence, a state legislature could nullify a federal election result simply by refusing to send the certification to Congress.
Under the U.S. Constitution, Congress is empowered to judge the elections of its own members.2 In situations where a state has withheld certification or denied certification to the legitimate winner, it is not difficult to imagine a partisan clash in a closely divided Congress.
Principle 2: State constitutions, voter-enacted initiatives, and state courts—in addition to state legislatures—have legitimate roles in shaping voting and the administration of elections.
In a ruling endorsing ISL, the Supreme Court would establish that state legislatures cannot be constrained by state constitutions, voter-enacted initiatives, and state judicial precedent in the context of federal elections. This would undermine the voting process in many states almost immediately.
State constitutional provisions can provide voters with confidence that election rules will not swing rapidly from one election to the next. Across the states, constitutional provisions currently shape electoral policies, including ballot design, voter ID rules, voter registration, absentee voting, and voting by mail, among others.3 Each of these would be vulnerable to easy repeal by a state’s legislature, even though states, and in many cases voters, originally intended to give more permanence to these policies by placing them beyond the cyclical legislative process. ISL would subvert that intent.
Election practices across the United States include many that voters demanded over the objections or inaction of legislatures. Among these are the Ohio constitution’s residency requirement for voting and its ban on straight-ticket voting, Oregon’s voter registration deadline, and Mississippi’s voter ID requirement.4
Michigan provides a recent example: Following a successful 2018 ballot petition, the state constitution provides that all qualified voters have the right to automatic voter registration. The people of Michigan have placed that right beyond the reconsideration of the legislature, barring an amendment to the state constitution.
Should the legislature be able to simply ignore the people of Michigan’s wishes and set its own standard for voter registration for federal elections? It will likely have that authority if the Supreme Court endorses ISL.
In addition to constitutional provisions, voters have used the initiative process to enact statutory provisions related to voting. Arizona voters passed a ballot initiative in 2011 to require voter ID for all elections. Their state constitution bars the legislature from repealing a statute enacted by voter initiative. ISL would allow the legislature to circumvent that restriction to repeal the law on its own if it chooses.5
Proponents of ISL say that it is necessary to protect state legislatures from impingement on their authority by the other branches of state government. In one regard, it has become relatively common for litigants to sue for policy changes that they cannot achieve through the legislative process. For example, current litigation in Maryland is challenging how the state processes absentee ballots, especially regarding when state election administrators can begin counting returns during the 2022 election. Maryland law limits early processing, but a state court judge has mandated that it be available for this one cycle.
Although BPC strongly endorses the pre-processing of ballots, state court rulings such as these undermine constitutional checks and balances, as would be the adoption of ISL. State judges should not have the unilateral power to implement policy best reserved for the regular legislative process that ends with a governor’s signature. To buttress legislative authority through an extreme independent state legislature theory, however, would be an over-corrective. These questions have been and should continue to be decided through the long-established legal and political processes in each state.
State constitutional provisions, initiative and referenda, and judicial precedent combine to establish each state’s election procedures. The regular legislative process as understood for over two centuries is complicated and slow, but it provides a measure of stability endorsed by the citizens of the state and the generations of legislators, executives, and judges who have built upon previous generations’ work. To unbalance the process and remove all guardrails from legislative action invites wild policy swings and unmoors the process from a basis in the rule of law.
Principle 3: The voting experience is smoother and election administration is more efficient when each state has uniform rules and practices for state and federal elections.
Elections are complex undertakings that intertwine federal and state statutes, judicial precedent, and executive administration to produce election processes and procedures.
No matter the outcome in Moore v. Harper, state court rulings and state constitutions would still apply to all state and local contests, even when federal contests are being decided in the same election. The same would be true for voter registration, vote counting, recounts, and auditing procedures with respect to elections for state and local office.
If the Supreme Court validates ISL, state legislatures would be empowered to unilaterally change the rules for federal contests—but not state contests. As a result, the rules for federal and state contests could diverge, requiring election officials to administer two separate elections simultaneously.
For example, in states with constitutional provisions for no-excuse absentee voting, the legislature could by statute declare it does not apply to federal contests. It could similarly curtail early voting to a different and more limited schedule for federal contests than state elections.
This situation would almost certainly necessitate two separate ballots for each voter, essentially doubling costs and complexity. Voters could conceivably 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.
As a practical matter, doubling the complexity of the voting process will in fact increase the amount of time between Election Day and the reporting of final results. The time between Election Day and the release of unofficial results is often cited as a major problem with current election administration. This interlude is especially ripe for the spread of mis- and disinformation about election results. The implementation of ISL would only exacerbate that problem.
A bifurcated election administration system with one set of rules for federal contests and one for state could be calamitous. Voter confusion would be high, turnout would suffer, and administration would be ripe for unintentional errors.
Americans’ textbook understanding of their government is that the legislative branch makes the laws, the executive branch implements them, and the judicial branch evaluates whether the others have acted in accordance with established constitutional and statutory standards. This basic arrangement holds true at the state and federal levels. The independent state legislature theory stands for the opposite when it comes to federal elections.
If the Supreme Court embraces the independent state legislatures theory, the implications for American democracy will be far-reaching, difficult to fully predict or contain, and likely destabilizing to an election system already under constant stress and short on resources.
1 Art. I, Sec. 4: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
2 Art. I, Sec. 5: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…”
3 Testimony of Richard Pildes: Hearing on “The Independent State Legislature Theory and its Potential to Disrupt our Democracy” Before the House Comm. on Administration, 117th Con. (2022) (statement of Richard Pildes, Sudler Family Professor of Constitutional Law at NYU School of Law).
4 Nathaniel Persily, Samuel Byker, William Evans & Alon Sachar, When is a Legislature Not a Legislature? When Voters Regulate Elections By Initiative, 77 Ohio State Law Journal 689 (2016), 717.
5 Ibid., 715
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