On Dec. 7, the Supreme Court will hear oral argument in Moore v. Harper, a radical case on the fate of the so-called “independent state legislature” theory which could end the ability of state courts to interpret their own state’s election laws as applied to federal elections, thereby closing their doors to a wide swath of voting rights suits. Although there are many persuasive arguments against the ISL theory—including that it is inconsistent with the text, history, and precedent of interpreting the U.S. Constitution—we have argued in a just-filed amicus brief that there’s a self-interested reason for the Supreme Court to reject the ISL argument as well: It will lead to a flood of new federal litigation that will undermine voter confidence in elections, harm the legitimacy of the courts, and pave the way for potential election subversion.
The legal issue in Moore is arcane, but the stakes for democracy are extraordinarily high. Good-government groups for years have been trying to stop states like North Carolina from engaging in partisan gerrymanders: drawing district lines to help one party and hurt another. The North Carolina General Assembly, dominated by Republicans, has drawn its congressional districts so that Republicans are likely to capture a huge majority of the seats in a state that is roughly evenly divided between Democrats and Republicans.
After the Supreme Court foreclosed the possibility of federal lawsuits against partisan gerrymandering in the 2019 case Rucho v. Common Cause, challengers sought relief in the state court system. Common Cause filed suit over the 2020 round of congressional redistricting in North Carolina court, arguing that partisan gerrymandering violated a provision of the state constitution guaranteeing free elections. The North Carolina Supreme Court agreed, and required a more balanced map.
North Carolina’s Republican legislators then appealed that result to the U.S. Supreme Court. They argue in Moore that the elections clause in Article I, Section 4 of the U.S. Constitution allows legislatures and only legislatures to “regulate” federal elections, unbound by state judicial review or reasonable interpretation by state election administrators.
The argument is absurd in a number of ways. The elections clause gives state legislatures the power to prescribe, and Congress the power to override, “times, places and manner of holding elections for Senators and Representatives.” When Congress acts to override state laws under this provision of the Constitution, it may only do so in ways that comply with the U.S. Constitution. There is no reason that state legislatures should not be similarly constrained, not only by the U.S. Constitution but the state constitution that created the legislature in the first place. There’s also Supreme Court precedent rejecting this odd reading of the elections clause. For example, the court in a 1932 case held that subjecting a legislature’s congressional redistricting plan to a governor’s signature or veto does not violate the elections clause.
Moreover, the petitioners’ argument in Moore ignores how election laws are made, interpreted, and implemented. As a practical matter, state legislatures cannot draft detailed regulations that cover every aspect of the administration of federal elections, and any drafting is sure to leave gaps and ambiguities in statutes as new issues arise. In practice, state legislatures cannot “regulate” federal elections alone because there is so much detail for conducting elections simply absent from statutory text. Therefore, state administrators and state courts, in every state, must routinely interpret state election laws on matters pertaining to early voting, absentee voting, mail-in balloting, electioneering, redistricting, and the mechanics of normal election administration.
If the Supreme Court agrees with petitioners, it will invent an entirely new constitutional cause of action in all of these instances, significantly burdening federal courts. Each state judicial or administrative act of gap-filling or interpretation would become the basis for a federal constitutional lawsuit based upon some alleged discrepancy between the statutory text and the interpretation and implementation of that text by the state’s judicial and executive branches. Worse, each time a state court decides if a state or local election administrator has gone too far, that ruling itself would open the floodgates to new litigation in federal courts, framing these issues as a federal constitutional violation of the elections clause.
Election litigation in the United States is already at record highs, up nearly 26 percent in the 2020 election period compared with the 2016 period, and nearly tripling in the period since the disputed 2000 election that culminated in Bush v. Gore.
Further, we’ve compiled statistics on emergency election litigation filed in the Supreme Court, and the numbers are also high. There have been at least 65 of these cases in the last dozen years. In the 2016 term alone, the Supreme Court considered 11 emergency election-related petitions, and in the 2020 term there were 15. Most recently, there were seven in the 2021 term, a non-presidential–election year.
An expansive interpretation of the elections clause surely will fuel much more litigation, placing a heavy burden on federal courts, and especially on the Supreme Court, as it will be asked to consider an ever-increasing number of time-sensitive, election-related motions on its emergency docket. The high number of election cases on the emergency docket will surge even further.
In our current hyperpolarized atmosphere, candidates and political parties who may be on the losing end of a close election will have every incentive to file lawsuits in federal courts in an effort to second-guess the decisions of state courts and election administrators, even when those institutions have interpreted and implemented the applicable statutes competently and in good faith. Such lawsuits, whether successful or not, provide a basis for litigants to publicly assert that elections are being conducted “unlawfully” or “illegally,” which can further undermine voter confidence in the fairness and integrity of elections.
These concerns are not hypothetical. Consider, for example, a dispute over whether state law permits the use of ballot “drop boxes” for voters to return absentee ballots. Today, such litigation is handled as a matter of state law over the proper interpretation of state election statutes. But under the legislators’ argument, this issue inevitably will reach federal courts as well.
Such a novel constitutional cause of action will force federal courts, and especially the Supreme Court, to constantly second-guess these state determinations and decide if a judicial or administrative interpretation strayed too far from the words of the state statute, thereby creating a federal constitutional violation. It also will lead to clashes between state and federal courts over the legality of election administrators’ actions. Election disputes will be more commonplace, constantly thrusting the Supreme Court into the political thicket in the midst of highly contested elections. Increased federal judicial activity on such issues will promote confidence in neither the election system nor the judiciary.
Such claims are especially dangerous in these fractious political times, when segments of the public (including possible future candidates like former President Donald Trump) conflate claims of judicial or administrative technical “illegality” or “unconstitutionality” with unsubstantiated claims of widespread election fraud.
At the extreme, the damage to confidence that these lawsuits will create provides a pathway for election subversion as segments of the public become more willing to reject lawful election results. If the Supreme Court accepts the legislators’ far-reaching and absurd theory, it could provide a pretext for state legislatures to submit alternative slates of electors should members of the legislature be unhappy with the choice of their state’s voters for president, without the ability of state courts to check such unquestionably unlawful actions. Although a legislature’s attempt to appoint alternative slates of electors in these circumstances would violate both the Constitution and federal statutes, those seeking to undermine free and fair elections in the United States would only be further emboldened by a decision of the Supreme Court embracing the legislators’ expansive view of state legislative power in federal elections.
There are many reasons to reject the legislators’ argument in Moore. But self-preservation—for both the judiciary and our democracy—may be the most compelling practical reason to do so.