Nat Bach and I have written this piece at Slate. It begins:
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….
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.