Election law expert Richard L. Hasen says the U.S. Supreme Court has adopted a weaker formulation of the independent state legislature theory, which will empower federal judges to second-guess state court rulings in politically sensitive election cases.
Hasen, who teaches election law and directs the Safeguarding Democracy Project at the ULCA School of Law, worries that the Supreme Court’s decision in Moore v. Harper, No. 21-1271, 2023 WL 4187750 (June 27, 2023), could cause a surge of messy litigation during the 2024 presidential election and beyond….
WT: You have expressed some concern about the ruling already online. Why?
RH: This weaker version of the independent state legislature theory is going to cause mischief. It means that litigants can take a second bite at the apple when they don’t like the ruling of a state court about the application of an election law in a federal election. Ordinarily, state courts are the final arbiters of the meaning of state constitutions and state statutes. This will inject federal courts into second-guessing these state interpretations in cases that are going to be highly politically sensitive. It could even get the Supreme Court to decide the outcome of a presidential election in a very close election where this issue arises.
Let me offer an example. In the midst of the pandemic, when many more voters were voting by mail and the U.S. mail system was not functioning well, voters went to the Pennsylvania Supreme Court complaining that the state Legislature’s requirement that mail ballots arrive by election day would violate their right to vote under the state constitution. The state Supreme Court agreed there was a risk of disenfranchisement and extended the deadline for receipt of such ballots by three days, relying upon voter protections in the state constitution.
Justice Samuel Alito of the U.S. Supreme Court ordered those late-arriving ballots set aside on grounds that the state Supreme Court order may have violated the independent state legislature theory. The ballots turned out not to matter for the 2020 election outcome, so the court did not return to the issue. But in a future election, the Supreme Court could second-guess the state supreme court’s decision and potentially affect the outcome of a future election.
What’s worse, the court did not flesh out exactly how to know when a state court has gone too far in its interpretation, a point Justice Clarence Thomas recognized in his dissent. Unfortunately, without a clear standard and with these cases being politically sensitive, there’s the concern that the courts could divide along partisan and ideological lines and send the message to the public that judges are swayed by politics.1
It may not be just state court decisions that are going to be subject to second-guessing by federal courts; it also may be decisions of state election administrators.2 To give another example from the 2020 election: in the midst of the COVID-19 pandemic, many voters were wary of voting in person in polling places. Texas was one of the few states that did not make it easy for people to vote by mail even during the pandemic. But Texas did have extensive in-person early voting. Election administrators in Harris County, Texas, set up “drive thru” voting, so that voters would be able to vote from their car and not have to come into a polling place….