In a case that drew national attention and a half dozen emergency amicus briefs from around the country, the Alaska Supreme Court yesterday summarily affirmed an Alaska state trial court’s ruling that the state’s director of the Division of Elections, Carol Beecher, wrongly removed a senatorial candidate, Dan J. Sullivan, from the ballot. Beecher contended that Sullivan was not acting with “good intent” by seeking office, but was merely attempting to confuse voters who might otherwise vote for the Republican incumbent, Dan S. Sullivan. Because she had been delegated authority by Alaska’s legislature to “determine eligibility under regulations adopted by the director,” Beecher argued she could consistent legally determine that a candidate lacked the “good intent” needed to run for office.

While the Alaska Supreme Court has yet to issue its opinion, the state trial court’s decision seems eminently reasonable. In a thoughtful opinion that fully explored both Alaska law and the limitations found in the federal Constitution, it correctly observed that two federal constitutional provisions stand out, the elections clause in Article I, § 4 and the senatorial qualifications clause in Article I, § 3. The Constitution’s elections clause states in relevant part that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” while its qualifications clause  for senators states “No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”

According to the state court, Beecher “in essence found that Mr. Sullivan lacked a particular quality of fitness, specifically a ‘good faith’ intention,” which is not required by the federal qualifications clause. This alone, the state court intimated, invalidated Beecher’s action. Further, the state court rejected Beecher’s claim that she possessed authority to add “good faith” as a time, place and manner component under Article I, § 4. “[T]he Alaska legislature has not included a motive or ‘good-faith’ requirement in any of the election statutes,” the court wrote, and although the legislature had delegated some authority to the director to issue ballot-access regulations, those regulations “do not contain a ‘good-faith’ requirement.” Having failed to issue such a regulation, the court concluded, the director “may not now assert a new requirement.”

Professor Derek Muller recently questioned the Alaska trial court’s decision under Article I: “the state certainly has the power to exclude candidates who are frivolous–or those who are not ‘bona fide.’ Doing so is not an additional constitutional qualification,” and “rules that relate to the reliability and integrity of the election itself–including the decision to exclude candidates where the record demonstrates that the purpose is to confuse the electorate–are procedural in nature” under Article I, § 4.

I disagree. The Supreme Court made clear in Cook v. Gralike (2001) that  Article I, § 4’s time, place and manner language denies States the power “to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.” States thus may not force candidates to wear pejorative labels – in that case one that identified the candidate as not supporting term limits — on the ballot, since that could influence voters. A strong argument can be made that “good intent” and “good faith” decisions made by election officials sufficiently risk “dictat[ing] electoral outcomes” and “disfavor[ing] particular candidates” to cause Article I, § 4 concerns. Good faith is only going to be used against challenges, after all, even if it can be properly defined. Election officials who answer to major-party political hacks, as many if not most do, should not be vested with this sort of extraordinary (and extraordinarily vague) authority.

An even stronger point supporting the Alaska court’s conclusion is its finding that the Director of Elections did not properly exercise delegated authority to remove Sullivan’s name from the ballot. The federal elections clause in Article I, § 4 vests procedural authority over congressional elections in state legislatures rather than election officials. Although state election officials can be delegated procedural regulatory authority over congressional elections, such a delegation must be clear and must be scrupulously followed. Election officials have no authority under the federal Constitution to apply either procedural or substantive rules that have not been approved by state legislatures to congressional candidates. Because no good faith requirement was imposed by the legislature, the Director of Elections’ action presumably violated Article I, § 4. Only by showing that she properly exercised an express delegation of authority could she prevail, something the state trial court concluded she had failed to do.

This variant on the so-called “independent legislature” doctrine has been recognized by various Justices on the Supreme Court, though a majority has yet to coalesce around the doctrine’s application to state executive actions. Justice Gorsuch (joined by Justice Alito) in Moore v. Circosta (2020) made much of the doctrine in a case arising from the 2020 election. There, the Supreme Court (by a 5-3 vote) refused to enjoin a consent decree executed by the North Carolina State Board of Elections that extended the deadline for absentee ballots. Justice Gorsuch, dissenting from the Court’s refusal to enjoin the consent decree, stated that it was “egregious” for “a state court and the Board [to] work together to override a carefully tailored legislative response to COVID.” He added that “efforts like these … offend the Elections Clause’s textual commitment of responsibility for election lawmaking to state and federal legislators ….”  “Such last-minute changes by largely unaccountable bodies … invite confusion, risk altering election outcomes, and in the process threaten voter confidence in the results.”

The Supreme Court’s more recent decision in Moore v. Harper (2023) does not alter this result. As a federal court recently explained, “Moore recognizes that the principle of ordinary judicial review provides a check for lawmaking bodies who transgress state-law limits on their regulatory authority over elections.” Its holding does not apply to executive usurpations of legislative actions. Even after Moore, election officials cannot make ballot decisions that are not supported by pre-existing, legislatively-adopted rules.

To be sure, state courts do not have blank checks to do whatever they want, either. The Supreme Court in Moore explained that “[a]lthough we conclude that the elections clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein.” “As in other areas where the exercise of federal authority or the vindication of federal rights implicates questions of state law, we have an obligation to ensure that state court interpretations of that law do not evade federal law.” This remains doubly true where state executive officials either attempt to create or misuse state law. State election officials can only impose good faith requirements when the state legislature has expressly said so. In the matter of Dan J. Sullivan, as explained by the Alaska trial court, this was simply not true.

My experience representing “alternative” parties and candidates over the past thirty years has been illuminating, to say the least.  I have discovered that election officials often concoct rules and reasons to dictate or manipulate electoral outcomes. They do so because they are told to do so by their major-party political bosses. They do so because they can. They do so because they have convinced themselves that non-major candidates are “spoilers” who necessarily lack good faith. Non-major candidates can’t win anyway, right? This major-party political self-righteousness is endemic with not only election officials, moreover, but also infects state and federal judges.

Other than his successful attempt to objectively qualify for Alaska’s senatorial ballot, I know nothing about Dan J. Sullivan. He may hope to unseat the incumbent (as occasionally happens) or he may simply want (like many successful candidates) to confuse voters. Regardless of his subjective motivations, because he has satisfied the pre-existing rules established by the Alaska legislature he has a right under the federal Constitution to appear on Alaska’s ballot. The vapid “good faith” candidacy jingo being trotted out in Alaska (and elsewhere) these days is just another manifestation of what has become an all-too-common and all-too-tolerated objective—dumbing down the American ballot.

Mark R. Brown holds the Newton D. Baker/Baker & Hostetler Chair at Capital University Law School. He clerked for Judge Harry W. Wellford on the U.S. Court of Appeals for the Sixth Circuit and served as a Judicial Fellow at the U.S. Supreme Court under the Chief Justice during October Term 1993. Brown has also taught at Stetson, Illinois, Ohio State, and Florida State.