As the November midterm elections draw closer, a looming Supreme Court decision is forcing states to confront the possibility of stricter rules regarding mail-in ballots. The case, Moore v. Harper, centers on a controversial legal theory known as the “independent state legislature” doctrine, and its outcome could significantly alter how elections are conducted across the country. Several states are already taking steps to prepare for a potential ruling that could invalidate existing laws allowing ballots to be counted if they arrive after Election Day. The core issue revolves around the authority of state courts to review election laws passed by state legislatures.
The Supreme Court’s conservative justices have expressed skepticism towards state laws that permit mail ballots to be received and counted after polls close on Election Day. During oral arguments in December 2022, several justices questioned the legality of such extensions, suggesting they could violate the Constitution. A decision in Moore v. Harper is expected by June 30, 2023, according to SCOTUSblog, and the timing could create significant challenges for states preparing for the 2024 elections. The potential for disruption is particularly acute given the increasing reliance on mail-in voting in recent years, a trend accelerated by the COVID-19 pandemic.
States Prepare for Potential Changes to Mail Ballot Rules
The uncertainty surrounding the Supreme Court case has prompted several states to proactively assess their election laws and consider contingency plans. States with existing laws allowing for a grace period for mail-in ballots—typically a few days after Election Day—are particularly focused on the potential impact. North Carolina, for example, currently allows mail ballots to be received up to three days after the election, provided they are postmarked by Election Day. The North Carolina State Board of Elections is monitoring the Moore v. Harper case closely and has indicated it will adjust its procedures if necessary to comply with any Supreme Court ruling.
Pennsylvania also allows for a three-day extension for receiving mail ballots, a provision that was contested during the 2020 election. Wisconsin, another key battleground state, requires ballots to be received by Election Day, but the state has faced legal challenges regarding its absentee voting rules. Election officials in these and other states are evaluating options such as shortening the mail-in ballot request period, increasing the number of drop boxes, and intensifying voter education efforts to encourage early voting. Some states are also considering legal strategies to defend their existing laws, should the Supreme Court rule against them.
The “Independent State Legislature” Doctrine Explained
At the heart of the Moore v. Harper case is the “independent state legislature” doctrine, a legal theory with potentially far-reaching consequences for American democracy. Proponents of the doctrine argue that the U.S. Constitution grants state legislatures exclusive authority to regulate federal elections, without interference from state courts or other state entities. This means that state courts would be barred from reviewing laws passed by the legislature regarding federal elections, even if those laws violate the state’s own constitution.
Critics of the doctrine warn that it could lead to partisan gerrymandering and voter suppression, as state legislatures could enact election laws without any meaningful checks and balances. They argue that the doctrine is not supported by the text of the Constitution or historical precedent. The Brennan Center for Justice, a nonpartisan law and policy institute, has published extensive analysis outlining the dangers of the “independent state legislature” theory. Their research details how the doctrine could undermine the fundamental principles of democratic governance.
What’s at Stake for Voters?
A Supreme Court ruling upholding the “independent state legislature” doctrine could have a significant impact on voters across the country. It could make it more demanding to challenge unfair or discriminatory election laws, potentially disenfranchising voters and undermining the integrity of elections. The ruling could also create uncertainty and confusion about election procedures, leading to lower voter turnout. Specifically, a ban on counting late-arriving mail ballots would disproportionately affect certain groups of voters, including military personnel stationed overseas, voters with disabilities, and those living in rural areas with limited access to postal services.
The potential changes also raise concerns about election administration. Election officials would require to adapt to new rules and procedures, potentially straining already limited resources. Voter education efforts would need to be intensified to ensure that voters are aware of the new requirements. The National Conference of State Legislatures (NCSL) has been tracking the debate over the “independent state legislature” doctrine and providing resources to state legislatures.
The case also touches on the broader debate over voting rights and access to the ballot box. Advocates for voting rights argue that any restrictions on mail-in voting would disproportionately harm marginalized communities and make it more difficult for eligible citizens to participate in the democratic process. They are urging the Supreme Court to reject the “independent state legislature” doctrine and uphold the principle of free and fair elections.
As states prepare for the possibility of a changed legal landscape, election officials are emphasizing the importance of voters checking their registration status, understanding their state’s specific election laws, and submitting their mail-in ballots well in advance of Election Day. Resources for voters are available from state election websites and the U.S. Election Assistance Commission (EAC).
The Supreme Court is expected to issue its decision in Moore v. Harper by June 30, 2023. Following the ruling, states will need to assess the impact on their election laws and procedures and make any necessary adjustments. The next key checkpoint will be the implementation of any changes in time for the 2024 elections. We will continue to follow this developing story and provide updates as they grow available.
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