• Description


he 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.

Independent State Legislature Theory Undermines Elections Principles