by Claire Bartholomew*

It has long been accepted that although state legislatures have inherent constitutional authority to set the “Times, Places and Manner of holding Elections,” other state judicial and executive officials, such as Governors, Secretaries of State, and state supreme courts, may alter or nullify duly enacted state election regulations if they violate that state’s constitution or the federal constitution. However, in recent years, some state legislatures have argued that their authority over state election regulations is absolute and untouchable by non-legislative state officials, promulgating what they have termed the “independent state legislature theory.” This Contribution argues that this theory must be fully repudiated; to protect our democracy from authoritarian rule, non-legislative state officials must be allowed to alter or nullify state election regulations if they violate their state or the federal constitution.

The Constitution’s Elections Clause states: “The Times, Places and Manner of holding on 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 [sic] Senators.”1 It has long been understood by state governments and election law scholars that this means state legislatures have the primary authority to design their state’s infrastructure for federal elections, including determining the dates and times of federal elections, the locations of polling places for federal elections, and other federal election logistics.2 If state election regulations need to be modified, Congress is the ultimate body to do so, according to the Elections Clause.3

However, the Supreme Court has also long held that the Elections Clause “neither requires nor excludes” state non-legislative participation in state election regulations.4 For example, governors generally have the power to veto election regulations in every state, just as they have the power to veto any legislation passed by the legislature,5 and Secretaries of State often prescribe their own regulations to enforce state election laws.6 As recently as 2015, the Supreme Court also noted that state legislatures’ election authority is not and never has been understood to be unfettered or unlimited. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court concluded that “[n]othing in th[e] [Elections] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.”7 The Court additionally noted that, as a general proposition, any “state legislation in direct conflict with the State’s constitution is void.”8 In 2019 in Rucho v. Common Cause, the Supreme Court reiterated that “state constitutions can provide standards and guidance for state courts to apply,”9 thus establishing that state courts may review state election regulations and that state constitutions provide the limits on such regulations.10 Thus, although state legislatures are the main designers and enactors of election regulations, state courts and executive officials may step in if those election regulations violate any state or federal constitutional provision.

Despite this seemingly clear precedent, the extent to which state officials besides the state legislature can alter or nullify election regulations is very much a live issue.11 In recent years, state legislatures have refused to implement election maps reformulated by state supreme courts,12 attempted to dissolve state independent election commissions,13 and, in the case of Texas, enlisted the state Attorney General to sue states to overthrow presidential election results.14 In this Supreme Court term in December 2022, the Court heard oral argument in Moore v. Harper concerning:

Whether a State’s judicial branch may nullify the regulations governing the “Manner of      holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,” U.S. Const. art. I, § 4, cl. 1, and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.15

Moore v. Harper is widely recognized as a plea for the Supreme Court to recognize at least some version of what has been dubbed the “independent state legislature theory.”16 The independent state legislature theory has many definitions, but its most common formulation, and the one at issue in Moore, posits that the Elections Clause gives state legislatures exclusive and near-absolute power to regulate federal elections and that state courts and executive officials cannot override those election regulations.17

Moore is a North Carolina congressional gerrymandering case wherein North Carolina’s legislative leaders are appealing a ruling from the North Carolina Supreme Court striking down the state legislature’s proposed congressional map as an extreme partisan gerrymander.18

The North Carolina state legislature is relying on the independent state legislature theory to argue that the North Carolina Supreme Court had no authority to invalidate the proposed congressional map because the state legislature has exclusive control over everything connected to federal elections in their state—even if the state legislature runs afoul of the state constitution (as the North Carolina Supreme Court determined).19 The respondent—Rebecca Harper on behalf of Common Cause, a nonpartisan organization dedicated to democracy—has argued that the Elections Clause does not allow state legislatures to violate their own constitutions and that the independent state legislature theory would “[u]pend [e]lections [n]ationwide.”20

As noted by Common Cause in their briefing, the independent state legislature theory relied upon by the North Carolina state legislature has wide-reaching and potentially devastating consequences.21 As the Brennan Center for Justice, a leading think tank on election law, explains:

The result? When it comes to federal elections, legislators would be free to violate the state constitution and state courts couldn’t stop them. Extreme versions of the theory would block legislatures from delegating their authority to officials like governors, secretaries of state, or election commissioners, who currently play important roles in administering elections.22

It may sound appealing for state legislatures to be independent and insulated from judicial review or executive action and some commentators have argued that the theory would serve as a check on partisan state supreme courts that may interfere with state elections for political reasons or on executive officials that may alter election regulations on a whim.23 But the name of the independent state legislature theory is a misnomer, obscuring both its legal and practical consequences, as well as its lack of any foundation in the Constitution or history.24 As many election law scholars have argued, the independent state legislature theory would enable state legislators to override state constitutional provisions that protect access to voting, as well as ignore other election laws meant to ensure free and fair elections.25

As to whether the theory is grounded in the Constitution or historical practice, proponents of the independent state legislature theory often argue that the text of the Elections Clause vests state legislatures with the authority to design and enact election regulations, so other state officials cannot be involved in election regulations, and state constitutional provisions have no bearing on states’ federal constitutional duty to prescribe federal election regulations.26 Of course, the U.S. Constitution is supreme to any state constitution,27 and the Elections Clause must be scrupulously followed. However, as discussed above, the Supreme Court has long held that non-legislative state officials’ involvement in election regulations is consistent with the text, intention, and history of the Elections Clause.28 Additionally, when a state constitutional provision is not in conflict with a federal constitutional provision—such as when a state constitution mandates “free” and/or “fair” elections, which does not infringe upon the state legislature’s Elections Clause authority at all—it must be followed by state officials.29 We cannot allow state legislatures to circumvent their state constitutions by spuriously interpreting the federal Constitution.

In any conflict between a state legislature and a state constitution, the state’s constitution must take precedence. State legislatures are ever-changing and increasingly susceptible to capture by special interests, dark money, and minority voting blocs.30 Many state constitutions can be directly amended through ballot referendums or other voting mechanisms, thus allowing the people of a state to explicitly express their will.31 All except one state constitution also contain an explicit right to vote (in contrast with the federal Constitution), and many state constitutions require elections to be free or equal.32 State constitutions are thus more protective of the right to vote and of free and fair elections than the federal constitution, and are more representative of the will of the people than the will of the state legislature. As the Supreme Court explained in Arizona State Legislature:

Both parts of the Elections Clause are in line with the fundamental premise that all political power flows from the people. McCulloch v. Maryland, 4 Wheat. 316, 404–405 (1819). So comprehended, the Clause doubly empowers the people. They may control the State’s lawmaking processes in the first instance, as Arizona voters have done [by voting to amend the state constitution to vest redistricting authority in an independent commission], and they may seek Congress’ correction of regulations prescribed by state legislatures.33

The purpose of the Elections Clause is to let power over elections flow directly from the people. Giving state legislatures exclusive authority over election regulations, no matter how undemocratic those election regulations may be, would be contrary to that aim.

It was unclear at oral argument how the Supreme Court will decide Moore v. Harper,34 but even a narrow endorsement of a minimalist version of the independent state legislature theory would be detrimental to our democracy. Some commentators have argued that even under the theory, procedural regulation of elections by non-legislative state actors, such as governors’ power to veto legislation, could still constrain state legislatures when they regulate federal elections35 because of Smiley v. Holm, in which the Supreme Court held that a governor’s veto of election regulations did not violate the Elections Clause.36 However, even with that procedural “carveout,” state courts would likely not be able to enforce anti-gerrymandering provisions or substantive constitutional rights, like protections of the right to vote. Enforcing those provisions would involve making substantive decisions about how election regulations are functioning, and the independent state legislature theory requires all substantive decisions about elections to be vested in the state legislature alone.37

If, in deciding Moore, the Supreme Court embraces the maximalist version of the independent state legislature theory and decides that state legislatures have exclusive power over state election regulations and only Congress and the federal courts may intervene, our democracy will suffer greatly. Our democracy relies upon a system of checks and balances. If a state legislature is permitted to act with impunity, they could violate their state’s constitution and severely restrict voting access, and their state’s courts or executive officials would be powerless to stop them. Voters would have to rely on federal courts and Congress to save them; claims could flood the federal government, and state citizens would be deprived of their state forum to argue state constitutional violations.

Even if the Supreme Court fully rejects the version of the independent state legislature theory proffered in Moore, state legislatures will likely continue to push the boundaries of their election regulation power.38 Nevertheless, no matter how it is conceived or framed, the independent state legislature theory must be fully repudiated. State executive officials and state courts must be able to intervene to alter or nullify state election regulations when state legislatures run afoul of state or federal constitutions, or we risk empowering rogue state legislatures to embrace increasingly restrictive voting laws and continue to entrench minority rule.

* Claire Bartholomew is a J.D. Candidate (2023) at New York University School of Law. This Contribution is a commentary on the problem at the 2022 William B. Bryant-Luke Charles Moore Virtual Civil Rights Moot Court Competition hosted by Howard University School of Law. The question presented was whether a state constitutional provision can permit non-legislative state officials to alter election regulations that were enacted by the state legislature pursuant to its power to “prescribe[ ]” “[t]he Times, Places, and Manner of holding [federal] Elections.” U.S. Const. art. I, § 4. This Contribution presents a distillation of one side of the argument at the Competition, and the views expressed herein do not necessarily reflect the views of the author.

 

1. U.S. Const. art. I, § 4, cl. 1.

2. See, e.g., Foster v. Love, 522 U.S. 67 (1997) (determining that the power of states to prescribe “times, places and manner” for electing federal representatives encompasses nearly every procedural aspect of federal election); United States v. Classic, 313 U.S. 299, (1941) (noting that the Elections Clause gives states wide discretion in formulating their system for choice of U.S. Senators and Representatives).

3. Cook v. Gralike, 531 U.S. 510, 522 (2001) (“Through the Elections Clause, the Constitution delegated to the States the power to regulate the ‘Times, Places and Manner of holding Elections for Senators and Representatives,’ subject to a grant of authority to Congress to ‘make or alter such Regulations.’” (quoting Classic, 313 U.S. at 315)); Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 9 (2013) (“In practice, the [Election] Clause functions as ‘a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices.’” (citation omitted) (quoting Foster, 522 U.S. at 69)).

4. Smiley v. Holm, 285 U.S. 355, 368 (1932) (“Article 1, s 4, of the Federal Constitution, neither requires nor excludes [the Governor’s] participation. And provision for it, as a check in the legislative process, cannot be regarded as repugnant to the grant of legislative authority.”).

5. Id. (referencing non-legislative participation such as “[w]hether the Governor of the state, through the veto power, shall have a part in the making of state laws . . .”).

6. See, e.g., Nev Rev. Stat. § 293.247 (authorizing the Nevada Secretary of State to execute and enforce the state election laws and adopt necessary regulations therefor); Cal. Elec. Code § 19232 (authorizing the California Secretary of State to review voting systems); see also Secretary of State (state executive office), Ballotpedia (last visited Jan. 29, 2023), https://ballotpedia.org/Secretary_of_State_(state_executive_office) (“The officeholder also often serves as the chief election official in their state, administering state elections and maintaining official election results.”).

7. 576 U.S. 787, 817–18 (2015) (internal citation omitted).

8. Id. at 818.

9. 139 S. Ct. 2484, 2507 (2019).

10. Id.

11. See, e.g., Melissa Quinn, Supreme Court requests more briefs in case over independent state legislature theory, CBS News (Mar. 2, 2023), https://www.cbsnews.com/news/supreme-court-independent-state-legislature-theory-moore-v-harper-briefs/ (“The Supreme Court on Thursday ordered North Carolina Republican leaders, the Biden administration and voting rights groups to file additional briefs in a closely watched elections case . . . at the center of which is [independent state legislature] theory.”).

12. Andy Chow, Ohio Republicans take fight over congressional district map to the U.S. Supreme Court, NPR Network: 91.7 WVXU News (Oct. 16, 2022, 9:55 AM), https://www.wvxu.org/politics/2022-10-16/ohio-republicans-take-fight-over-congressional-district-map-to-the-u-s-supreme-court (“Republican leaders in the Ohio House and Ohio Senate have filed an appeal in the U.S. Supreme Court to overturn the Ohio Supreme Court’s ruling against the GOP-drafted congressional district map—using language similar to the what’s been called the independent state legislature theory.”).

13. Matthew Rothschid, New GOP Bill Would Dissolve the Wisconsin Elections Commission, Wis. Democracy Campaign (Jan. 5, 2022), https://www.wisdc.org/news/commentary/7035-new-gop-bill-would-dissolve-the-wisconsin-elections-commission.

14. Tucker Higgins & Kevin Breuninger, Texas sues four battleground states in Supreme Court over ‘unlawful election results’ in 2020 presidential race, CNBC (Dec. 9, 2020, 11:46 AM), https://www.cnbc.com/2020/12/08/texas-sues-four-battleground-states-in-supreme-court-over-unlawful-election-results.html (“Texas Republican Attorney General Ken Paxton on Tuesday filed a lawsuit in the U.S. Supreme Court to invalidate presidential election results in Pennsylvania, Georgia, Wisconsin and Michigan.”).

15. Petition for Writ of Certiorari at I, Moore v. Harper, 142 S. Ct. 2901 (No. 21-1271).

16. Hansi Lo Wang, The Supreme Court is weighing a theory that could upend elections. Here’s how, NPR (Jan. 22, 2023, 5:00 AM), https://www.npr.org/2023/01/22/1143086690/supreme-court-independent-state-legislature-theory-moore-v-harper (“[M]any legal scholars and voting rights advocates remain on alert for a court ruling by this summer on what’s known as the ‘independent state legislature theory.’”).

17. Other versions of the theory involve the Presidential Electors Clause of the Constitution, which states: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a number of Electors.” U.S. Const. art. 1 § 1 c1. 2. The corresponding version of the independent state legislature theory argues that states legislatures have unilateral and exclusive authority over how they appoint Presidential Electors to the Electoral College. Ethan Herenstein & Thomas Wolf, The “Independent State Legislature Theory,” Explained, Brennan Ctr. for Just. (June 30, 2022), https://www.brennancenter.org/our-work/research-reports/independent-state-legislature-theory-explained. The Presidential Electors Clause, and the corresponding theory, is not at issue in Moore v. Harper and is beyond the scope of this Contribution.

18. Petition for Writ of Certiorari at 8–14, Moore v. Harper, 142 S. Ct. 2901 (No. 21-1271).

19. Ari Savitzky & Kristi Graunke, Explaining Moore v. Harper, the Supreme Court Case That Could Upend Democracy, ACLU (Dec. 6, 2022), https://www.aclu.org/news/voting-rights/explaining-moore-v-harper-the-supreme-court-case-that-could-upend-democracy.

20. Brief by State Respondents at 55, Moore v. Harper, 142 S. Ct. 2901 (No. 21-1271).

21. Id.

22. Herenstein & Wolf, supra note 17.

23. See, e.g., Bruce Ledewitz, The one good thing about the independent state legislature theory, Pa. Capital-Star (Dec. 16, 2022, 6:30 AM), https://www.penncapital-star.com/commentary/the-one-good-thing-about-the-independent-state-legislature-theory-bruce-ledewitz/ (“The Independent State Legislature Doctrine, for all its faults, would protect the public from judicial partisanship.”).

24. See 6 Reasons the Far-Right’s ‘Independent State Legislature Theory’ Makes No Sense, Common Cause (Oct. 20, 2022), https://www.commoncause.org/democracy-wire/6-reasons-the-far-rights-independent-state-legislature-theory-makes-no-sense/ (explaining how the independent state legislature theory has no grounds in the Constitution nor history).

25. See, e.g., id. (“Not only would this make gerrymandering and voter suppression even easier than it already is for extremist politicians intent on consolidating power, but it would also undermine the public’s trust in our elections and may force voters to navigate two very different and very confusing sets of rules just to cast ballots while exercising their fundamental rights to vote.”).

26. See, e.g., Carolyn Shapiro, The Independent State Legislature, Federal Courts, and State Law, 90.1 U. Chi. L. Rev. 137, 139 (2022) (“Justice Alito, for example, proclaimed that ‘[t]he provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.’” (quoting Republican Party of Pa. v. Boockvar, 141 S. Ct. 1, 2 (2020) (Alito, J., statement))).

27. U.S. Const. art. VI, § 2.

28. See supra notes 3, 4, 7–9. See also Ariz. State Legislature, 576 U.S. at 818–21 (discussing the purpose of the Elections Clause and concluding that state courts and executives as checks on state legislatures’ elections power conforms to the Framers’ principle that “the people should choose whom they please to govern them”).

29. See Caroline Sullivan, The Power of State Constitutions, Democracy Docket (July 26, 2022), https://www.democracydocket.com/analysis/the-power-of-state-constitutions/ (“While state constitutions cannot conflict with the national document, states are able to outline or clarify rights that go further than those in the federal Constitution.”).

30. See, e.g., Chisun Lee et al., Secret Spending in the States, Brennan Ctr. for Just. (June 26, 2016), https://www.brennancenter.org/our-work/research-reports/secret-spending-states (“Fully transparent spending has declined from 76 percent in 2006 to just 29 percent in 2014 in six states where data was available.”); Rob O’Dell & Nick Penzenstadler, Copy, paste, legislate, USA TODAY (Dec. 16, 2019, 8:13 PM), https://www.usatoday.com/in-depth/news/investigations/2019/04/03/abortion-gun-laws-stand-your-ground-model-bills-conservatives-liberal-corporate-influence-lobbyists/3162173002/ (“USA TODAY and the Republic found at least 10,000 bills almost entirely copied from model legislation [written by special interest groups] were introduced nationwide in the past eight years, and more than 2,100 of those bills were signed into law.”); Miriam Seifter, Countermajoritarian Legislatures, 121.6 Colum. L. Rev. 1733, 1733 (2021), https://columbialawreview.org/wp-content/uploads/2021/10/Seifter-Countermajoritarian_Legislatures.pdf/ (“The combination of our districting scheme, geographic clustering, and extreme gerrymandering means that state legislatures are recurrently controlled by the state’s minority party.”).

31. See Initiative and Referendum Processes, Nat’l Conf. of State Legislatures (Jan. 4, 2022), https://www.ncsl.org/elections-and-campaigns/initiative-and-referendum-processes (detailing that 24 states allow their citizens to amend their constitution through ballot initiatives or direct repeal/approval of state legislation).

32. Sullivan, supra note 29 (“[S]tate constitutions are strikingly uniform in explicitly granting the right to vote;  49 states include who ‘shall be qualified to vote,’ is ‘entitled to vote’ or is a ‘qualified elector.’ Only in the Arizona Constitution is the language flipped, stating who does not have the right to vote. Thirty state constitutions contain additional voting protections–12 states have some form of constitutional requirement that elections be ‘free’ and 18 states go even further, requiring that elections be ‘free’ and ‘equal’ or ‘open.’”).

33. 576 U.S. 787 at 824 (emphasis added).

34. See Tierney Sneed & Ariane de Vogue, Takeaways from Moore v. Harper, the historic Supreme Court arguments on election rules, CNN Politics (Dec. 7, 2022, 4:03 PM), https://www.cnn.com/2022/12/07/politics/takeaways-moore-harper-supreme-court/index.html (noting that “[k]ey swing votes appear skeptical of the maximal version of the [independent state legislature theory,] but “[a] narrow ruling in legislature’s favor [is] still possible,” and it is difficult to “read the tea leaves” on the overall outcome); Amy Howe, Justices order new briefing in Moore v. Harper as N.C. court prepares to rehear underlying dispute, SCOTUSblog, https://www.scotusblog.com/2023/03/justices-order-new-briefing-in-moore-v-harper-as-n-c-court-prepares-to-rehear-underlying-dispute/ (Mar. 2, 2023, 7:30 PM) (“[T]he justices asked for additional briefing in Moore v. Harper, a case argued in December, to address whether the [C]ourt still has the power to hear the case when the North Carolina Supreme Court has agreed to reconsider the underlying redistricting dispute that sparked the case.”).

35. Eliza Sweren-Becker & Ethan Herenstein, There Is No ‘Lite Version’ of the ‘Independent State Legislature Theory,’ Brennan Ctr. for Just. (Dec. 6, 2022), https://www.brennancenter.org/our-work/analysis-opinion/there-no-lite-version-independent-state-legislature-theory (“[T]he gerrymanderers have suggested that certain ‘procedural’ state constitutional provisions could still constrain state legislatures when they regulate federal elections, so long as the provisions only regulate how laws are made, not what the laws say.”).

36. 285 U.S. at 368 (“Whether the Governor of the state, through the veto power, shall have a part in the making of state laws, is a matter of state polity. Article 1, s 4, of the Federal Constitution, neither requires nor excludes such participation. And provision for it, as a check in the legislative process, cannot be regarded as repugnant to the grant of legislative authority.”).

37. See Ariz. State Legislature, 576 U.S. at 824.

38. See, e.g., Barton Gellman, How Six States Could Overturn the 2024 Election, The Atlantic (July 29, 2022), https://www.theatlantic.com/ideas/archive/2022/07/moore-harper-scotus-independent-state-legislature-election-power/670992/ (detailing how several states asked the Supreme Court to block the certification of electors for President Biden in Pennsylvania, Georgia, Wisconsin, and Michigan, and how those states have expressed wanting to use the independent state legislature theory to preemptively refuse to recognize other states’ electors).