The Radical Legal Theory Threatening Fair Election Administration

Partisan actors eager to tilt the election playing field in their favor are pushing a new tactic in their voter suppression toolkit: the independent state legislature theory, a fringe constitutional interpretation under which only state legislatures have the authority to regulate federal elections. As the Supreme Court prepares to rule on a case challenging long-standing checks on state legislative power, American Oversight is using open records requests to investigate the efforts of right-wing activists and partisan state lawmakers to consolidate election administration power.

The Independent State Legislature Theory

Following the 2020 presidential election, as unfounded claims of widespread voter fraud and corrupt administrators proliferated, many conspiracy theorists and partisan actors pushed for aggressive election administration changes. Their efforts resulted in the enactment of restrictive measures constraining access to the polls, limiting or reassigning local and state election powers, and creating new investigatory offices that elevated the false specter of widespread fraud. 

With this momentum also came renewed support for the “independent state legislature theory,” a fringe constitutional interpretation that, if adopted, threatens to shield from legal challenges many harmful and even illegal election-related measures, like unnecessary voter registration hurdles or unfairly gerrymandered districts. Under the most extreme version of the theory, state constitutions, state courts, citizen initiatives, and even gubernatorial vetoes would be unable to impose checks on state legislation regulating national elections. Additionally, some election deniers have even cited the illegitimate theory as a potential avenue for overturning election results.

The independent state legislature theory is primarily based on a novel and literal interpretation of the U.S. Constitution’s Elections Clause, which reads, in part, “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Though “the Legislature thereof” has historically been read to include all components of the legislative process as dictated in state laws and constitutions, supporters of the theory argue — in a radical departure from this precedent — that the phrase is literal, only referring to the state’s elected representative body. 

In the coming year, the U.S. Supreme Court is set to rule on Moore v. Harper, a redistricting-related case brought by North Carolina Republican lawmakers who invoked the dubious theory to argue that the state supreme court had no authority to strike down illegally gerrymandered district boundary maps. Though the U.S. Supreme Court has dismissed the theory in several past rulings, four current justices have recently suggested support for some version of it.

Efforts by State Legislators to Seize Power

While the arguments in Moore v. Harper are perhaps the most brazen recent attempt by state legislators to concentrate power, similar efforts have marked many state legislative sessions since the 2020 election. Records retrieved by American Oversight revealed that Honest Elections Project — the Leonard Leo-founded election integrity group pushing discredited election conspiracy theories — and the American Legislative Exchange Council (ALEC) had worked with legislators in Ohio and South Carolina, and likely other states including Wisconsin, to craft bills providing lawmakers with the opportunity to intervene in lawsuits challenging specific measures or to require legislative approval of certain settlements and consent decrees, like those expanding absentee voting access during the coronavirus pandemic and protecting against undue ballot rejections. 

In South Carolina, state Rep. Garry Smith shared the proposed legislation with others in the state House of Representatives and the attorney general’s office. In his email, Smith decried “judicial activism” and the recent changes to election administration that “completely circumvented the legislative process where these things should naturally be addressed.”

Both ALEC and Honest Elections Project have filed amicus briefs in Moore v. Harper in support of the North Carolina lawmakers pushing the Supreme Court to adopt the independent state legislature theory. Other “election integrity” groups supporting the plaintiffs include former U.S. Attorney General William Barr’s Restoring Integrity and Trust in Elections, former White House adviser Stephen Miller’s America First Legal, the Public Interest Legal Foundation, the National Republican Redistricting Trust, the Republican National Committee, and Citizens United.

To uncover efforts by such outside groups to amass support for the radical theory among state legislators and attorneys general, American Oversight has filed requests in six states for communications with select groups or mentioning the theory or related cases.

American Oversight has also investigated other efforts by state legislatures to bolster their control of election administration. In Georgia, several members of the General Assembly successfully restructured local elections boards, allowing partisan actors to gain control over election administration. American Oversight obtained documents revealing that the changes often came as a surprise to the board members and typically provoked strong backlash. In one instance, we discovered that the legislative delegation representing Lincoln County opted to dissolve and reform the elections board to circumvent a law requiring that board members be given a hearing before the Board of Commissioners prior to termination. 

In July 2021, the Pew Charitable Trusts reported that legislators in 14 states had enacted laws enabling state legislators to take control of county election boards, eliminate secretaries of state’s executive authority, or make local election officials financially or criminally liable for errors in election administration. In August 2022, CBS News reported that in the first two quarters of the year, 33 state legislatures had introduced more than 240 bills intended either to provide the partisan legislature or legislatively appointed officials with more power over election administration than civilian appointees, or to create excessive burdens for nonpartisan election officials.

American Oversight will continue investigating these desperate, anti-democratic efforts to cement partisan control over election administration powers and practices.

Related Documents

July 25, 2022

Records Request to Ohio Secretary of State for Emails with Select Proponents of Independent State Legislature Doctrine

Ohio Secretary of State
FOIA Request
July 25, 2022

Records Request to North Carolina State Board of Elections for Emails with Select Proponents of Independent State Legislature Doctrine

North Carolina State Board of Elections
FOIA Request
July 25, 2022

Records Request to North Carolina Speaker Moore for Emails with Select Proponents of Independent State Legislature Doctrine

North Carolina House of Representatives
FOIA Request
July 25, 2022

Records Request to North Carolina Rep. Destin Hall for Emails with Select Proponents of Independent State Legislature Doctrine

North Carolina House of Representatives
FOIA Request
July 25, 2022

Records Request to North Carolina Rep. Saine for Emails with Select Proponents of Independent State Legislature Doctrine

North Carolina House of Representatives
FOIA Request
July 25, 2022

Records Request to North Carolina Rep. Kyle Hall for Emails with Select Proponents of Independent State Legislature Doctrine

North Carolina House of Representatives
FOIA Request
July 25, 2022

Records Request to North Carolina Rep. Riddell for Emails with Select Proponents of Independent State Legislature Doctrine

North Carolina House of Representatives
FOIA Request
July 25, 2022

Records Request to North Carolina Sen. Berger for Emails with Select Proponents of Independent State Legislature Doctrine

North Carolina Senate
FOIA Request
July 25, 2022

Records Request to North Carolina Sen. Daniel seeking emails with select proponents of Independent State Legislature Doctrine

North Carolina Senate
FOIA Request
July 25, 2022

Records Request to North Carolina Senator Sen. Hise for Emails with Select Proponents of Independent State Legislature Doctrine

North Carolina Senate
FOIA Request
July 25, 2022

Records Request to North Carolina Sen. Newton for Emails with Select Proponents of Independent State Legislature Doctrine

North Carolina Senate
FOIA Request
July 25, 2022

Records Request to Ohio Attorney General for Emails with Select Proponents of Independent State Legislature Doctrine

Ohio Attorney General
FOIA Request
July 25, 2022

Records Request to Ohio Secretary of State for Emails with Select Proponents of Independent State Legislature Doctrine

Ohio Secretary of State
FOIA Request
July 25, 2022

Records Request to Ohio Senate President Huffman for Emails with Select Proponents of Independent State Legislature Doctrine

Ohio Senate
FOIA Request
July 25, 2022

Records Request to Ohio Sen. Gavarone for Emails with Select Proponents of Independent State Legislature Doctrine

Ohio Senate
FOIA Request
July 25, 2022

Records Request to Ohio Sen. Cirino for Emails with Select Proponents of Independent State Legislature Doctrine

Ohio Senate
FOIA Request
July 22, 2022

Records Request to Florida State Rep. Perez for External Emails with Select Proponents of Independent State Legislature Doctrine

Florida House of Representatives
FOIA Request
July 22, 2022

Records Request to Florida State Rep. Clemons for Emails with Select Proponents of Independent State Legislature Doctrine

Florida House of Representatives
FOIA Request
July 22, 2022

Records Request to Florida State Rep. Roach for Emails with Select Proponents of Independent State Legislature Doctrine

Florida House of Representatives
FOIA Request
July 22, 2022

Records Request to Florida State Rep. Fischer for Emails with Select Proponents of Independent State Legislature Doctrine

Florida House of Representatives
FOIA Request
July 22, 2022

Records Request to Florida State Sen. Baxley for Emails with Select Proponents of Independent State Legislature Doctrine

Florida Senate
FOIA Request
July 22, 2022

Records Request to Florida State Sen. Gruters for Emails with Select Proponents of Independent State Legislature Doctrine

Florida Senate
FOIA Request
July 22, 2022

Records Request to Florida State Sen. Harrell for Emails with Select Proponents of Independent State Legislature Doctrine

Florida Senate
FOIA Request
July 22, 2022

Records Request to Florida State Sen. Rodrigues for Emails with Select Proponents of Independent State Legislature Doctrine

Florida Senate
FOIA Request
July 22, 2022

Records Request to Florida Attorney General for Emails with Select Proponents of Independent State Legislature Doctrine

Florida Attorney General
FOIA Request
July 22, 2022

Records Request to Florida Department of State for Emails with Select Proponents of Independent State Legislature Doctrine

Florida Department of State
FOIA Request
July 22, 2022

Records Request to Missouri Attorney General for Emails with Select proponents of Independent State Legislature Doctrine

Missouri Attorney General
FOIA Request
July 22, 2022

Records Request to Missouri Secretary of State for Emails with Select Proponents of Independent State Legislature Doctrine

Missouri Secretary of State
FOIA Request
July 22, 2022

Records Request to Missouri State Rep. Hill for Emails with Select Proponents of Independent State Legislature Doctrine

Missouri House of Representatives
FOIA Request
July 22, 2022

Records Request to Missouri State Rep. Baker for Emails with Select Proponents of Independent State Legislature Doctrine

Missouri House of Representatives
FOIA Request
July 22, 2022

Records Request to Missouri State Rep. Lewis for Emails with Select Proponents of Independent State Legislature Doctrine

Missouri House of Representatives
FOIA Request
July 22, 2022

Records Request to Missouri State Rep. Shaul for Emails with Select Proponents of Independent State Legislature Doctrine

Missouri House of Representatives
FOIA Request
July 22, 2022

Records Request to Missouri State Rep. Kelly for Emails with Select Proponents of Independent State Legislature Doctrine

Missouri House of Representatives
FOIA Request
July 22, 2022

Records Request to Missouri State Sen. Burlison for Emails with Select Proponents of Independent State Legislature Doctrine

Missouri Senate
FOIA Request
July 22, 2022

Records Request to Missouri State Sen. Bernskoetter for Emails with Select Proponents of Independent State Legislature Doctrine

Missouri Senate
FOIA Request
July 22, 2022

Records Request to Missouri State Sen. Hegeman for Emails with Select Proponents of Independent State Legislature Doctrine

Missouri Senate
FOIA Request
July 21, 2022

Records Request to Arizona Attorney General for External Emails with Select Proponents of Independent State Legislature Doctrine

Arizona Attorney General
FOIA Request
July 21, 2022

Records Request to Arizona Senate for External Emails with ALEC and Select Proponents of Independent State Legislature Doctrine

Arizona Senate
FOIA Request
July 21, 2022

Records Request to Arizona House of Representatives for External Emails with Select Proponents of Independent State Legislature Doctrine

Arizona House of Representatives
FOIA Request
July 21, 2022

Records Request to Arizona House of Representatives for External Emails with ALEC and Select Proponents of Independent State Legislature Doctrine

Arizona House of Representatives
FOIA Request
October 28, 2021

Records Request to Ohio State Rep. Seitz for Records Concerning the Honest Elections Project Academy Event Held in July 2021

Ohio House of Representatives
FOIA Request
September 13, 2021

South Carolina Attorney General’s Office Records of Attorney General Wilson’s Communications Concerning RAGA Funders

South Carolina Attorney General
Agency Record
June 16, 2021

Records Request to South Carolina Attorney General’s Office Seeking AG Alan Wilson’s Communications with and About Prominent RAGA Funders

South Carolina Attorney General
FOIA Request
April 7, 2021

Pickens County, Ga., Communications Regarding Changes to Board of Elections

Georgia - Pickens County
Agency Record
April 1, 2021

Records Request to Lincoln County, Ga., for Board of Commissioners Communications Concerning Changes to Board of Elections

Georgia - Lincoln County
FOIA Request
April 1, 2021

Records Request to Pickens County, Ga., for Communications Regarding Changes to Board of Elections

Georgia - Pickens County
FOIA Request
April 1, 2021

Records Request to Pierce County, Ga., for Board of Commissioners Communications Regarding Changes to Board of Elections

Georgia - Pierce County
FOIA Request
April 1, 2021

Records Request to Spalding County, Ga., for Communications Regarding Changes to Board of Elections

Georgia - Spalding County
FOIA Request