Durham County Board of Elections staff process absentee ballots in October 2020 at the agency's warehouse. Each blue bin holds ballots from a different precinct. The workers are removing ballots from absentee-by-mail envelopes and flatten them, to be scanned in batches later on. Jordan Wilkie / Carolina Public Press

Republicans around the country turned to an untested legal theory to challenge changes to state election laws during the COVID-19 pandemic and the subsequent national election results.

The theory, called the independent state legislature doctrine, would vest more authority in state legislatures to set rules for federal elections with fewer checks by other state bodies like courts or board of elections. 

North Carolinian Republicans used the theory, based on a strict reading of the U.S. Constitution’s elections clause, to challenge almost every stage of election governance. 

In the end, these efforts failed to change the results of the election. But they fanned the flames of a constitutional argument that could reshape the way states create rules for federal elections.

The elections clause made its appearance in North Carolina’s elections when state House Speaker Tim Moore and state Senate leader Phil Berger sued the State Board of Elections in September. The board had settled a separate lawsuit, pending state court approval, with a Democratic-backed group that would temporarily change some state election laws like allowing a longer window for by-mail ballots to be delivered. 

Moore and Berger argued in both state and federal courts that the Elections Board couldn’t actually enter into such an agreement, and a state court couldn’t ratify it, in part because neither had the authority to change state laws under the elections clause of the U.S. Constitution. 

Under the interpretation of the Constitution that Moore and Berger presented in court, only the U.S. Congress and potentially federal courts would have the authority to review federal election laws set by state legislatures, according to UNC law professor Rick Su

“To knock the (state) courts out of this just because they didn’t like what the court did in the last election, I mean that’s a wholesale revision, in my opinion, of how we understand not only the election clause, but how we generally understand how state and federal governments operate,” Su said. 

Though Su also said he understood why Republicans were upset with the settlement, using this serious constitutional argument was not the appropriate way to seek remedy, given that it could have potentially significant ramifications for the entire country. 

“This is dangerous,” Su said. “My sense is they’re playing with fire to solve a local dispute.” 

‘Voter suppression effort’

The lawsuits brought by Moore and Berger, which moved through every level of state and federal courts on an expedited basis, were denied, though they were able to stop a significant portion of the settlement — not by using elections clause arguments. Now that the election is over, the lawsuits have been dropped, too. 

But that’s not true everywhere. 

A similar lawsuit out of Pennsylvania, in which Republicans from that state opposed an election rule change brought on by the state’s Supreme Court in light of the pandemic, was also denied emergency review by the U.S. Supreme Court during the election. But unlike the North Carolina case, that state’s lawsuit is still active and is pending the Supreme Court’s decision to take it up or not. 

Because the case is federal, if the Supreme Court takes up the case, its ruling would affect every state in the country. 

Even after Moore and Berger’s lawsuits were denied, other state Republicans took up the elections clause banner, as did Republicans around the country. 

But while Berger and Moore’s lawsuits were ostensibly about the limits of the State Board of Elections to act on its own — and not about each party trying to get more of its own votes counted — the other state Republicans used the elections clause as a tool to challenge the legitimacy of the election itself.  

Tommy Tucker, a Republican member of the five-person State Board of Elections, referenced the elections clause when he voted against certifying North Carolina’s elections. He did not challenge the accuracy of the results, but rather the fairness of the process. He was not on the board when its three Democratic and two Republican members voted unanimously to settle the lawsuit

North Carolina’s Republican delegation to the U.S. House of Representatives — Dan Bishop, Ted Budd, Madison Cawthorn, Virginia Foxx, Richard Hudson, Gregory F. Murphy and David Rouzer — referenced the elections clause in their objections to the certification of the Electoral College on Jan. 6. They cast their votes opposing the election results in several states won by Joe Biden after the insurrection that triggered former President Donald Trump’s second impeachment. Ironically, even though the same theoretical objection could have been applied in North Carolina, which Trump won with a plurality, none of them objected to their own state’s results.

They all, along with Mark Walker whose term ended on Jan. 3 and who announced a run for the Senate in 2022, signed onto a legal brief asking the U.S. Supreme Court to block the national certification of the election. 

The story here is “pure and simple,” said Jason Roberts, a professor of political science and the associate chair in the department at UNC Chapel Hill. 

“The draw of that argument is that Republicans control a lot of state legislatures, and so it’s a convenient argument to advance their interest in the kinds of electoral regimes they would like to see,” Roberts said. 

In response to CPP’s request for comment, a spokesperson for Rep. Rouzer sent his public statement supporting the independent state legislature interpretation of the Constitution for why he opposed the certification of Electoral College votes. None of the other active representatives responded. 

For voting rights advocates like Eliza Sweren-Becker, a lawyer in the Democracy Program at the Brennan Center, a nonpartisan law and policy institute, the elections clause arguments represented another assault on voting access. 

“This is part and parcel of a long-standing voter suppression effort,” Sweren-Becker said. “And now, I think these vote suppressor activists are going after state protections for voters.”

If the elections clause arguments succeeded, Sweren-Becker said, they could nullify protections from state constitutions, which are often broader than the federal constitution or state laws. 

Speaking nationally, Sweren-Becker said that the lawsuits brought before Election Day were meant to make it harder to vote, and the ones brought after were meant to overturn the election. 

But for Joseph Kyzer, Speaker Moore’s director of communications, their lawsuit was about protecting bipartisan legislation that already accounted for the difficulties elections officials and voters would face during the pandemic. 

“North Carolina lawmakers engaged in months of negotiations to enact the Bipartisan Elections Act of 2020 that was signed by the governor,” Kyzer wrote in an email to CPP. “That legislative process and its duly enacted statutes were then undermined by the partisan actions of the State Board of Elections in entering a collusive settlement agreement with its Democratic allies after voting had begun.”

In its own turn, the State Board of Elections pointed to the state District Court decision showing that its settlement was not a product of collusion. That decision was upheld by the North Carolina appellate and supreme courts. 

From litigation to legislation, or not 

The State Board of Elections is a creation of the state legislature, and what it created, it can change, according to Derek Muller, law professor at the University of Iowa. 

“Anything created by the legislature, the legislature can go ahead and undo, subject to other external constitutional constraints,” Muller said. 

After the November election, Republicans picked up three seats in the state House and lost one in the Senate, though they still control both chambers. But Roy Cooper, the Democratic governor, won reelection and can veto any bill that reaches his desk. Republicans do not have a veto-proof majority in the legislature. 

That means that any changes to the State Board of Elections’ authority, which Kyzer said Republicans have some interest in, would have to be approved by both parties.

“Many state lawmakers, and voters, are interested in legislation to prevent these types of partisan deals by the State Board of Elections,” Kyzer wrote in an email. “The House Committee on Elections Law and Campaign Finance Reform would likely consider those proposals.” 

That Cooper would approve these efforts seems unlikely. CPP asked Cooper if he would be willing to work with the legislature to change the board’s authority or composition. 

“The Board of Elections has been following the law to ensure fair, safe and secure access to the ballot box for all voters,” Dory MacMillan, Cooper’s press secretary, responded by email.

“While it is appropriate for the courts to weigh in on interpretations and applications of the law, the governor will continue to oppose efforts by legislators to diminish the Board of Elections’ ability to do its job.” 

Cooper’s veto is likely why Moore and Berger pursued the elections clause argument in court, Su said.

“This is like, ‘We’re not going to do what legislators do because we don’t think we can win or because we can’t push the way we want to push and get consensus on it,’” Su said. 

In North Carolina, Pennsylvania and Wisconsin, the three states with the most prominent elections clause cases, the legislature is controlled by Republicans and the executive branch by Democrats. 

This election was likely only the beginning of seeing elections clause arguments in election years, Muller said. 

“I think it’ll be here to stay unless the Supreme Court shuts them down,” Muller said. 

The particular dynamics of the pandemic, wherein state courts and elections administrators repeatedly changed state laws to meet the needs of the moment, fueled these lawsuits seeking to define the limits of legislative versus court or executive power over federal election law. 

Republicans might also be eyeing a more favorable court, according to Gregory Wallace, a law professor at Campbell University. 

The last time the court ruled on this issue, in a 5-4 decision in 2015, it ruled against the independent state legislature doctrine being advanced by Republicans today. But two members who voted in the majority, Anthony Kennedy and Ruth Bader Ginsburg, have been replaced with more conservative justices, Neil Gorsuch and Brett Kavanaugh, who have expressed support for the Republican interpretation of the elections clause. 

“Anytime you have a change in the makeup of the court, where you have justices open to certain legal theories that the court was not open to earlier … obviously you’re going to have people bringing cases that would raise those theories,” Wallace said. 

The challenge, he said, is getting the cases in front of a court in a timely fashion so that a ruling would not violate federal court standards to not intervene in the middle of an election. 

In pursuit of good governance  

Each expert to whom CPP talked for this story said that, in election litigation in the United States, the motivation is always driven at least in part by the pursuit of power, and that is not limited to one political party over another. 

“In the history of battles over voting in this country, you’re going to find it’s rare that any of these actors have pure motives,” said Roberts, the UNC political science professor. 

“It’s almost all motives are based on what’s going to help them in the short run, and that’s certainly the case here.” 

But Justin Levitt, law professor at Loyola Marymount law school, is not convinced that Republicans actually want to win their elections clause arguments. 

“It would not be the first time that hubris and lack of forethought caused a political party to take a whole bunch of moves that turned out to bite them in the rear a couple years down the line,” Levitt said. 

While the independent state legislature doctrine could help Republicans control federal election rules in states like North Carolina and Pennsylvania, it could actually be more harmful to the party’s national authority. 

“Believe me, the tradition and the history in both New York and California says that, if unleashed, Democrats will have absolutely no trouble figuring out how to abuse their power,” Levitt said. 

If state legislatures are not checked in creating federal election law by state courts or executive branches, which “rein in the worst instincts of the Democratic legislatures” in those states, then Republican arguments about the elections clause could create 20 new Democratic congressional seats, Levitt said. 

The independent state legislature doctrine would also only affect the lawmaking process for federal elections, Levitt said. State elections would still be subject to state constitutional checks on the laws, which means that there would be no long-term guarantee that parties would maintain control over the state legislatures that make their own federal election laws. 

“I think it’s exceedingly myopic to think that just because Republicans happen to have brought these particular lawsuits in 2020, that a rule extracting legislatures from their normal process and giving them complete reign over the development of elections for federal office is going to necessarily play into the hands of one party or the other,” Levitt said. 

There are simply too many unknowns for how the doctrine would work in practice that it is not clear, nationally, whom this would benefit or for how long.

Among those unknowns is how elections would actually be run in a system devised by the independent state legislature doctrine. 

Having different standards for determining state and federal election laws could set up an “unusual incongruity,” Muller said, in which two elections regimes are created. 

“It might set up the opportunity for states to kind of have dueling systems where they have one set of rules governing their federal elections and another set of rules governing their state elections, which I think might be a big problem going forward in terms of administering elections,” Muller said. 

To use North Carolina as an example, if Moore and Berger’s elections clause arguments had prevailed, they would only have affected the rules for federal elections. State elections would still have gotten the extension on when by-mail ballots could arrive, which would have created a logistical nightmare for county boards of election since both races were on the same ballot. 

North Carolina was among the last states in the country to have clear election results and to certify those results as it was. 

Bob Orr, a retired judge and a Republican who sat on the state Supreme Court for almost a decade, said he sees this pattern of litigation for short-term gain every election. 

“Each party, in varying cycles, gets a result they don’t like, or they’re worried about a result that they don’t like,” Orr said. “And they run into court, trying to figure out, ‘How can I switch the result?’ or ‘How can I readjust the playing field so that there’s a greater likelihood that my side will prevail?’”

The people driving these lawsuits are often politicians who do not understand the potential consequences of the litigation, Orr said. 

“From a good government perspective, what you need are people saying, ‘What’s a reasonable, appropriate system of elections that serves the general public, not one party or the other,’” Orr said. 

Each of the North Carolina parties involved in November’s litigation — Moore and Berger, the governor’s office and the State Board of Elections — said seeking good governance was exactly what they were trying to do.

Jordan Wilkie

Jordan Wilkie is a Report for America corps member and is the lead contributing reporter covering election integrity, open government, and civil liberties for Carolina Public Press. Email jwilkie@carolinapublicpress.org to contact him.

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