The year is 2024. Congressional maps in the political battleground states of North Carolina and Pennsylvania have been invalidated, and legal fights are ongoing to determine what maps will take their place. State high courts are hesitant to act because their normal powers of judicial review have been curtailed. Entire bodies of election rules, developed over decades, have been wiped out, and officials are struggling to figure out how to administer their elections. Divided state legislatures cannot provide resolution because they have deadlocked, and organized groups on both sides of the aisle have declared election results presumptively invalid as the presidential primaries loom. Voters, already fatigued from years of election disputes, have lost faith that states will be able to administer elections, endangering the democratic process.
The United States Supreme Court is set to hear argument in Moore v. Harper, a case that could have drastic ramifications for how elections are conducted in every state, on December 7, 2022. The case arises out of a dispute over North Carolina’s congressional map, which the legislature in Raleigh redrew after the 2020 census. Voters and voting-rights groups sued, arguing that the map was a partisan gerrymander that violated North Carolina’s constitutional guarantee that elections be “free.” The North Carolina Supreme Court concluded that the legislature had violated the state’s constitution. A group of North Carolina legislators petitioned the U.S. Supreme Court for certiorari, which it granted.
Petitioners present a novel reading of the Elections Clause of the United States Constitution, contending that it grants exclusive authority to state legislatures to regulate the manner of federal elections, to the exclusion of state executive and judicial branches and, even more radically, without constraint by state constitutions. Petitioner’s argument is premised primarily on the text of the Elections Clause: “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[.]”
It is hard to overstate the magnitude of the independent state legislature theory’s impact, were it to be adopted by the US Supreme Court. While all states govern their elections through legislatively enacted codes, no state’s code contains an exhaustive set of rules. All states use delegations of authority to officials to fill gaps left by the legislature. All state courts review election laws, like any other laws, for state constitutional compliance. The US Supreme Court, in Smiley v. Holm, has already said that redistricting, where conducted as a regular legislative enactment, is subject to gubernatorial veto. More recently, in Rucho v. Common Cause, the Supreme Court announced that even if the federal courts were closed for business on partisan gerrymandering disputes, “[p]rovisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.” Adoption of the petitioner’s theory would change all of this.
Given the potentially seismic impact of this case on the administration of elections in all 50 states, many parties have submitted amicus briefs before the Supreme Court on both sides. Notably, many Republican groups and individuals have participated as amici opposing the independent state legislature theory, including former Governor Arnold Schwarzenegger, longtime Republican election attorney Benjamin Ginsberg, and a group of former Republican elected and executive branch officials.
A particularly empirical amicus brief was submitted by the Brennan Center for Justice, a nonpartisan, not-for-profit organization that regularly produces research geared toward improving election administration and safeguarding the franchise. In its brief, the Brennan Center analyzes just how much disruption the independent state legislature theory would cause in election administration. It argues that petitioner’s reading of the Elections Clause would render state constitutional provisions nullities, invalidate duly enacted delegations of rulemaking authority and therefore large swaths of election rules, and throw into question state court decisions, all of which will surely have second-order effects we cannot yet see. A mass invalidation of existing rules would create chaos; it would be impossible in many cases even “to discern definitively what the law is.” Accompanying the brief is a large compendium of state constitutional provisions, state laws, and state court decisions potentially on the chopping block.
Much ink has been spilled by other amici concerning the validity of the petitioner’s understanding of the text and history of the Elections Clause, including Brief of Professor Evan Bernick as Amicus Curiae in Support of Respondents; Brief of Amici Curiae Scholars of State Constitutional Law in Support of Respondents; Brief of Amici Curiae Professors Akhil Reed Amar, Vikram David Amar, and Steven Gow Calabresi in Support of Respondents. The Brennan Center brief approaches the issue from a different angle and does an admirable job grounding somewhat abstract constitutional arguments in real-world consequences, as well as compiling the large body of evidence—in the form of constitutional provisions, statutes, decisions interpreting those provisions and statutes, voter-initiated referenda, and gubernatorial vetoes—that state actors have always considered state legislative action on election administration to be bound by state constitutions and subject to state judicial review.
This is one of the brief’s strongest arguments: making concrete the sheer volume of law the independent state legislature theory would endanger and therefore the extent of the chaos its implementation would produce. If the Court adopts the theory sometime before the end of term in June 2023, it is very difficult to imagine any state managing to sort out its election rules in time for the general election in 2024 (let alone the states with state-administered primaries months earlier). Adoption of the theory would result in the need for remedial legislation to fill gaps left by invalidated state court decisions and administrative rules. Litigation over this new legislation, if any were able to pass, would take years. Inevitable lacunae in hastily thrown together legislative stopgaps would produce absurd results that state courts would be disempowered to fix. Elections officials and workers would need to be trained on new sets of rules.
And that’s the best-case outcome. Pennsylvania, for example, has a relatively robust legislatively enacted Election Code, but that code provides a broad grant of authority to 67 individual county boards of election to “make and issue such rules, regulations and instructions, not inconsistent with law, as they may deem necessary for the guidance of voting machine custodians, elections officers and electors.” Under the petitioner’s theory, all of these (many) rules would be immediately void. Pennsylvania’s incoming legislature will be divided, with a Democratic House and a Republican Senate; what if no legislation filling the gaps can pass? If no state entity aside from the legislature can speak to elections, no one will be able to discern definitively what the law is. Worse still, the independent state legislature theory would only remove state courts as arbiters of federal election rules, leaving their power to make constitutional judgments affecting state election rules intact. Without separating federal and state elections at enormous taxpayer expense and with overwhelming voter confusion, it is difficult to see how states could administer one election with two different sets of rules in a way that would ensure uniform adherence to either. Pennsylvania’s constitution requires that elections be “free and equal.” No free and equal election could be possible under these circumstances.
Aside from driving home the electoral chaos, the Brennan Center brief’s argument that will likely have the most persuasive effect on the Court is the warning (echoed by other amici) that eliminating state courts from the election law game will leave federal courts as the only avenue for litigation over the rules that govern federal elections, steeply increasing the amount of election litigation brought in federal courts. On the one hand, this is not a desirable scenario for the Supreme Court, as its decision to step out of the partisan arena in the gerrymandering context suggests. (See Rucho, declining the “unprecedented expansion of judicial power…into one of the most intensely partisan aspects of American political life.”) On the other hand, the independent state legislature theory does provide the Court an opportunity to increase the scope of its own power at the expense of its state court counterparts. See Leah Litman and Katherine Shaw’s piece Textualism, Judicial Supremacy, and the Independent State Legislature Theory. The oral argument may provide more insight into which impulse will prevail.
Not much about how the country would manage the fallout from the independent state legislature theory is clear. What is clear, though, is that if the Supreme Court decides to upend the status quo that has endured in the administration of elections in this country, it will own the resulting mess. A functional democracy requires voter confidence that we all understand the ground rules, and that confidence, already under threat, may not survive a shakeup of this magnitude.
Emma Shoucair is a proud graduate of University of Michigan Law School. After two federal clerkships, she moved home to Pittsburgh, Pennsylvania, and currently practices as an associate at Dentons Cohen & Grigsby. She focuses on constitutional and election law.
Suggested citation: Emma Shoucair, The US Supreme Court Prepares to Hear a Case that Could Bring About Electoral Chaos, JURIST – Professional Commentary, December 2, 2022, https://www.jurist.org/commentary/2022/12/emma-shoucair-moore-harper-electoral-choas/.
This article was prepared for publication by Hayley Behal, JURIST Commentary Co-Managing Editor. Please direct any questions or comments to her at email@example.com