Who Decides Elections

December 6, 2022

Who Decides Elections

who decides elections

Mark Rubin

The U.S. Supreme Court hears oral arguments in Moore v. Harper, No. 21-1271, on Wednesday, December 7, 2022. To suggest that democracy in America depends on the outcome of this case does not overstate its importance. The notion that the likely outcome might render voters irrelevant in many jurisdictions ought to scare every reader, regardless of political leanings.

Moore v. Harper

The issue, as set forth at SCOTUSblog, is:

Whether a state’s judicial branch may nullify the regulations governing the ‘Manner of holding Elections for Senators and Representatives … prescribed … by the Legislature thereof,’ and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a ‘fair’ or ‘free’ election.

Of course, when you present the issue thusly, the answer is obvious: Who made judges kings or queens? Except … wait. What? The legislature decides what is and is not constitutional.

The Independent State Legislature Theory depends heavily on word choices from 200+ years ago, as if common usage never changes. Further, it relies on a disputed document and very dicey historical analysis. Marginal stuff!

An abstract issue? Not really. If state legislatures have absolute and unfettered control over elections, nothing prevents a runaway legislature from deciding which electors will vote for POTUS in the Electoral College. Call the November vote … err … advisory. And everything else about voting goes away, too. (Much about how we vote depends on decades of law, developed carefully over time, to insure representational government. Unseen machinery, about to be tossed aside.)

If you think this is crazy talk, look at what almost happened in Arizona in the past couple of weeks. The Cochise County Board of Supervisors denied approval of its county canvass of votes. Only a judicial order validated 47,000 votes. (By the way, the R majority’s initial action would have caused the election of a D to Congress.)

Back to the issue, as framed. Constitutional provisions lack the specificity associated with statutes. They state overarching principles. Statutes get more specific. Appellate court decisions fill in the blanks, applying laws – whether they are set forth in constitutions, statutes, or prior reported opinions – to fact patterns, unexpected or otherwise. That’s how the legal system works!

The justices on the Court understand the concepts in the preceding paragraph. They learned them in their first week or so of Con Law, generally a 1L class. That they’re hearing a case with an issue that refers to “vague state constitutional provisions purportedly vesting the state judiciary with power to …” begs this question: Does the Court majority think it has authority to decide cases? (Too much experience tells me state constitutional language tends to be less vague than similar provisions in the U.S. Constitution.)

Rucho v. Common Cause and the Past aka Three Years Ago

Leaving aside the absurdly framed issue, recent history begs another question: Why now? In 2019 the Court decided a gerrymander case, Rucho v. Common Cause, No. 18-422. Rucho addressed the validity of gerrymander maps in North Carolina, the same state which brings us Moore v. Harper. By a 5-4 majority, the Court told us federal courts have no role in deciding gerrymander cases. Political questions, per the Court. Not our department. Take them to state court.

Okay! Not, but better than a poke in the eye with a sharp stick. At least, the Court left complaining parties with a forum – state courts – to address their grievances.

Now, less than three years later, the Court considers a No to All Courts rule. Three years later!

Did something happen in the law? No. The Independent State Legislature Theory has bounced around for more than 100 years, and has been specifically rejected by the Court more than once, and most recently just eight years ago.

Was there an electoral issue that makes the case for an unchecked legislature? No, unless you believe Americans re-elected Former Guy in 2020.

One might think Justice Ruth Bader Ginsburg’s passing explains all. Maybe, but conservatives held a 5-4 majority when the Court decided Rucho. Still, if one of the 2019 majority justices doesn’t buy into the Independent State Legislature Theory, that might explain why the Court has this case before it.


“Averse to change” explains conservativism. Change within three years by a Court majority that attaches itself to “conservative” at every opportunity reflects h-y-p-o-c-r-i-s-y, plain and simple.

Stay tuned. Maybe two justices from the Court majority will surprise us and send the Independent State Legislature Theory to the dust heap. Or not!

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