National government associations and legal scholars want U.S. Supreme Court to reject NC Republicans’ theory on elections

Published October 27, 2022

By Lynn Bonner

National associations representing cities, counties and mayors are asking the U.S. Supreme Court to reject North Carolina Republicans’ claim that legislatures should be the sole state authority setting rules for federal elections.  

In a friend of the court brief filed Wednesday in the case Moore vs. Harper, the local government associations said a decision in favor of North Carolina legislators would create a complicated two-tiered system of elections in some states, muck-up ballot counting, and undermine confidence in elections.  

A separate brief submitted Tuesday on behalf of seven local government law professors, including Rick Su at the University of North Carolina law school, argues that a decision endorsing Republicans’ position would “wreak havoc” on local election administration and lead to more federal court cases challenging local decisions.  

Likewise, a brief submitted Wednesday on behalf of the League of Women Voters of the United States says a decision in favor of Republicans would be a “devastating disruption to the electoral process on the ground, harming voters and election workers alike.” 

Republican lawmakers in North Carolina are asserting that the Constitution’s Elections Clause means legislatures can set rules for federal elections that state courts cannot review. The case grew from GOP legislators’ appeal of a state Supreme Court decision this year that election districts the legislature created were unconstitutional partisan gerrymanders.  

The state is holding congressional elections this year using a plan for districts that a trial court adopted. Republican legislators claim state courts should not dictate the look of congressional districts. Critics and legal scholars say this “independent state legislature theory” rests on a misreading of the Constitution.  

The Court has scheduled oral arguments in the case for Dec. 7. 

More than two dozen individuals and groups have weighed in through friend of the court briefs. Some support Republicans’ interpretation of the Constitution and say the North Carolina Supreme Court was out of step. Critics say endorsing the theory would undermine elections, deepen voter confusion and distrust, and result in federal courts being inundated with complaints over election administration.  

If the Court decides that legislatures can make rules for federal elections, it would mean that some states would have one set of rules for presidential, U.S. Senate, and congressional elections, and another set of rules for city, state, and local elections, according to the legal briefs.

The brief filed on behalf of the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyer Association uses the North Carolina Board of Elections’ long list of rules as one of its examples, and says they would be invalid for federal elections. The elections board sets out rules on voting administration details.   

Legislatures could set rules for counting mail-in votes for federal offices that differ from rules for counting votes for other offices, the local governments’ brief says. For example, the Pennsylvania Supreme Court allowed mail-in ballots received within three days of election day in 2020 to be counted. If the Pennsylvania court couldn’t make that decision for federal races along with state and local races, local officials could face new obstacles to vote counting.  

States could end up with two sets of ballots, different rules for recounts for federal versus state and local elections, and two sets of voting rules, the local governments’ brief says.  

The local government law professors’ brief contemplates elections officials in Tennessee being required to enforce a state law allowing people only five minutes to mark their ballots in federal races and having to set up different voting procedures for federal and state elections.  

The brief raises Pennsylvania as another example, where state courts have determined that a voter identification requirement legislators wanted violated the state constitution. Under the North Carolina Republicans’ theory, the Pennsylvania legislature could require voter ID for federal elections, while the IDs wouldn’t been needed for state and local elections. Any approach to navigating voter ID requirements would complicate elections, the brief says.  

Even if elections officials were able to separate elections into state, federal and local buckets, the results would be confusing for voters and elections officials, the League of Women Voters brief says.  

The voter confusion could extend to same-day registration requirements in some states, the League brief says, with poll workers left to explain why people would be able to vote in one set of races but not another.  

Adopting the independent state legislature theory could give voters in Montana and Maine the ability to use same-day registration in state and local elections, but not in federal elections. The opposite would be true in Delaware.  

States could end up with two sets of laws governing mail-in voting, voter registration requirements, and felony disenfranchisement, the League brief said.  

“A healthy democracy depends on trust in electoral outcomes and on voters’ faith in the integrity and fairness of our elections,” the brief says. “A decision adopting petitioners’ theory would undermine those values at a time when voters’ confidence in our institutions of government is particularly fragile. The Court should decline to abruptly overhaul the framework that has made our country one of the most successful democracies in the world.”