Amicus Curiae Brief — Timothy K. Moore, in His Official Capacity as Speaker of the North Carolina House of Representatives, et al., Petitioners v. Rebecca Harper, et al.

Supreme Court briefOct 26, 2022

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No. 21-1271

IN THE

Supreme Court of the United States

____________________

TIMOTHY K. MOORE, IN HIS OFFICIAL CAPACITY AS

SPEAKER OF THE NORTH CAROLINA HOUSE OF

REPRESENTATIVES, ET AL.,

Petitioners,

REBECCA HARPER, ET AL.,

Respondents.

____________________

On Writ of Certiorari to the

North Carolina Supreme Court

____________________

BRIEF OF LEAGUE OF WOMEN VOTERS OF

THE UNITED STATES AND LEAGUES OF

WOMEN VOTERS REPRESENTING 50 STATES

AND THE DISTRICT OF COLUMBIA AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

___________________

Jon Sherman

Counsel of Record

Michelle Kanter Cohen

Cecilia Aguilera

Helen L. Brewer*

FAIR ELECTIONS CENTER

1825 K Street, NW

Suite 450

Washington, DC 20006

(202) 248-5346

jsherman@fairelections

center.org

* Admitted only in Colorado;

supervised by Jon Sherman,

a member of the D.C. Bar

Meaghan VerGow

Andrew R. Hellman

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20006

L. Nicole Allan

O’MELVENY & MYERS LLP

Two Embarcadero Center

28th Floor

San Francisco, CA 94111

Celina W. Stewart

Caren E. Short

LEAGUE OF WOMEN VOTERS

OF THE UNITED STATES

1233 20th Street, NW

Washington, DC 20036

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF ARGUMENT.................................... 3

ARGUMENT .............................................................. 4

STATE COURTS HAVE

HISTORICALLY SHAPED OUR

DEMOCRATIC SYSTEM. .................... 4

II.

ISLT WOULD SOW CHAOS IN

ELECTION ADMINISTRATION

AND CAUSE WIDESPREAD

VOTER CONFUSION. ......................... 8

ISLT would bifurcate the

rules for federal and state

elections. ..................................... 9

ISLT would impose

overwhelming

administrative burdens on

election administrators

and confuse voters.................... 10

ISLT would create split

enforcement of voting

laws. .......................................... 15

Voter Identification

and Eligibility ................ 16

Voter Registration ......... 19

Absentee Voting ............ 21

TABLE OF CONTENTS

(CONTINUED)

Page

III.

ISLT WOULD FURTHER

ERODE VOTER

PARTICIPATION AND TRUST

IN AMERICAN DEMOCRACY. ......... 26

CONCLUSION ......................................................... 27

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Albence v. Higgin,

2022 WL 5333790 (Del. Oct. 7, 2022) ...... 13, 20, 22

Anderson v. Millikin,

9 Ohio St. 568 (1859) .............................................. 6

Applewhite v. Commonwealth,

2014 WL 184988 (Pa. Commw. Ct.

Jan. 17, 2014) ................................................. 11, 16

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n,

576 U.S. 787 (2015) .............................................. 20

Attorney General v. City of Detroit,

78 Mich. 545 (1889) ................................................ 6

Berger v. N.C. State Conf. of the NAACP,

142 S. Ct. 2191 (2022) ............................................ 8

Crawford v. Marion Cnty. Election Bd.,

553 U.S. 181 (2008) .............................................. 27

Democratic Nat’l Comm. v. Wis. State Legislature,

141 S. Ct. 28 (2020) ........................................ 15, 27

Dixon v. State,

74 Miss. 271 (1896) ................................................. 7

Gillespie v. Palmer,

20 Wis. 544 (1866) .................................................. 6

Higgin v. Albence,

2022 WL 4239590 (Del. Ch. Sept. 14, 2022) ........ 23

TABLE OF AUTHORITIES

(CONTINUED)

Page(s)

Holmes v. Moore,

No. 18 CVS 15292 (Wake Cnty., N.C. Super.

Ct. Sept. 17, 2021) ................................................ 17

Holmes v. Moore, No. 342PA19-2 (N.C.).................. 17

Jackson v. Ogilvie,

401 U.S. 904 (1971) ................................................ 7

Jeffries v. Ankeny,

11 Ohio 372 (1842) .................................................. 6

Kineen v. Wells,

144 Mass. 497 (1887) .............................................. 6

League of Women Voters of Ark. v. Thurston,

No. 60CV-21-3138 (Pulaski Cnty. Cir. Ct.,

6th Judicial Dist., Mar. 24, 2022) .................. 17, 24

League of Women Voters of N.H. v.

N.H. Sec’y of State,

174 N.H. 312 (2021) .............................................. 21

McLinko v. Dep’t of State,

279 A.3d 539 (Pa. 2022)........................................ 22

Missouri NAACP v. Missouri,

No. 22AC-CC04439 (Cole Cnty. Cir. Ct.

Oct. 12, 2022) ........................................................ 18

Mixon v. Commonwealth,

759 A.2d 442 (Pa. Commw. Ct. 2000) .................. 18

Mont. Democratic Party v. Jacobsen, 2022

WL 4362513 (Mont. Sept. 21, 2022)....13, 17, 19, 23

TABLE OF AUTHORITIES

(CONTINUED)

Page(s)

Mont. Democratic Party v. Jacobsen,

Consol. Case No. 21-0451 (Mont. 13th Dist.

Ct., Yellowstone Cnty., Sept. 30, 2022) ......... 17, 19

N.C. State Conf. of NAACP v. McCrory,

831 F.3d 204 (4th Cir. 2016) ................................ 17

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ................................................ 5

Opinion of Judge Appleton, 44 Me. 521 (1857) ......... 6

Pa. Democratic Party v. Boockvar,

238 A.3d 345 (Pa. 2020)........................................ 24

Priorities USA v. State,

591 S.W.3d 448 (Mo. 2020)................................... 18

Purcell v. Gonzalez,

549 U.S. 1 (2006) .................................................... 8

State ex rel. Williams v. Moorhead,

96 Neb. 559 (1914) .................................................. 6

Summit Cnty. Democratic Cent. & Exec.

Comm. v. Blackwell,

388 F.3d 547 (6th Cir. 2004) ................................ 15

Travia v. Lomenzo,

86 S. Ct. 7 (1965) .................................................... 7

Weinschenk v. State,

203 S.W.3d 201 (Mo. 2006)................................... 18

Constitutional Provisions

Mo. Const. art. I, § 25............................................... 18

TABLE OF AUTHORITIES

(CONTINUED)

Page(s)

Pa. Const. art. I, § 5 ................................................. 16

Statutes and Legislative Materials

2017 N.C. Sess. Laws 2018-144 (S.B. 824)

(Dec. 9, 2018) ........................................................ 17

25 Pa. Stat. Ann. § 2602 .......................................... 16

25 Pa. Stat. Ann. § 3050 .................................... 13, 16

25 Pa. Stat. Ann. § 3146.2 ....................................... 16

52 U.S.C. § 20507 ............................................... 19, 21

82 Del. Laws ch. 245, § 1 (2020) .............................. 23

H.B. 1878 (Mo. 2022) ............................................... 18

Me. Pub. L. 2011, c. 399, § 3 (2011), repealed by

Question 1: People’s Veto (Nov. 8, 2011) ............. 20

Mont. Code Ann. § 13-13-114, as amended by

2021 Mont. Laws Ch. 254 (S.B. 169), § 2 ............. 17

N.H. Rev. Stat. § 654:7............................................. 21

Other Authorities

John H. Aldrich, Rational Choice and Turnout, 37

Am. J. Pol. Sci. 246 (1993).................................... 26

Henry E. Brady & John E. McNulty,

Turning Out to Vote: The Costs of Finding and

Getting to the Polling Place,

105 Am. Pol. Sci. Rev. 115 (2011) ........................ 26

Del. Dep’t of Elections,

Vote by Mail Not Permitted .................................. 22

vii

TABLE OF AUTHORITIES

(CONTINUED)

Page(s)

Lynn Eisenberg, States as Laboratories for

Federal Reform: Case Studies in Felon

Disenfranchisement Law, 15 N.Y.U.

J. Legis. & Pub. Pol’y 539 (2012) ....................... 5, 6

Mich. Bureau of Elections, Proposal 22-2 ............... 25

N.C. State Bd. of Elections, Election Results

Dashboard............................................................. 11

Nat’l Conf. of State Legislatures, Same Day Voter

Registration .......................................................... 19

Nat’l Conf. of State Legislatures, Voter ID Laws ... 16

Nat’l Conf. of State Legislatures, Voting Outside the

Polling Place: Absentee, All-Mail and Other Voting

at Home Options ................................................... 22

Joel Rose & Liz Baker, 6 in 10 Americans Say U.S.

Democracy Is in Crisis as the ‘Big Lie’ Takes Root,

NPR, Jan. 3, 2022 ................................................... 8

Scot Schraufnagel, Michael J. Pomante II & Quan

Li, Cost of Voting in the American States: 2022,

21 Election L. J. 220 (2022)...................... 14, 26, 27

Carolyn Shapiro, The Independent State Legislature

Theory, Federal Courts, and State Law,

90 U. Chi. L. Rev. (forthcoming 2023) ................... 9

U.S. House of Representatives, Vacancies &

Successors, 1997 to Present .................................. 11

Wis. Elections Comm’n, Election Results Archive .. 11

INTEREST OF AMICI CURIAE 1

The League of Women Voters (the “League”) is a

nonpartisan, grassroots organization committed to

protecting voting rights, empowering voters, and

defending democracy. The League works to ensure

that all voters—including those from traditionally

underrepresented or underserved communities, such

as first-time voters, non-college youth, new citizens,

communities of color, the elderly, and low-income

Americans—have

the

opportunity

and

the

information they need to exercise their right to vote.

Founded in 1920 as an outgrowth of the struggle

to win voting rights for women, the League now has

more than 500,000 members and supporters and is

organized in more than 750 communities, all 50

states, and the District of Columbia. The national

League includes the League of Women Voters of the

United States and the League of Women Voters

Educational Fund. The national League is joined here

by the Leagues of Women Voters of Alabama, Alaska,

Arizona, Arkansas, California, Colorado, Connecticut,

Delaware, Florida, Georgia, Hawaii, Idaho, Illinois,

Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine,

Maryland, Massachusetts, Michigan, Minnesota,

Mississippi, Missouri, Montana, Nebraska, Northern

Nevada, New Hampshire, New Jersey, New Mexico,

New York, North Carolina, North Dakota, Ohio,

1 No counsel for any party authored this brief in whole or in

part, and no person other than amici or their counsel made any

monetary contribution intended to fund the preparation or

submission of this brief. All parties have consented to the filing

of this brief.

Oklahoma, Oregon, Pennsylvania, Rhode Island,

South Carolina, South Dakota, Tennessee, Texas,

Utah, Vermont, Virginia, Washington, West Virginia,

Wisconsin, Wyoming, and the District of Columbia,

which share a common mission, values, and vision for

democracy. Each affiliated organization works to

encourage informed and active participation in

government, to increase understanding of major

public policy issues, and to influence public policy

through grassroots activism, education, and

advocacy.

State and local Leagues support voters in their

communities throughout the election process. They

online resource that allows voters to access ballot

information (such as whether the individual is

registered to vote and where to vote); and equip

individuals with information to create their voting

plan, whether in person, early, or by mail. Many

League members serve as poll workers and poll

observers to ensure the electoral process runs

smoothly and lawfully.

To perform its work assisting voters, the League

tracks election rules and changes at the local, state,

and federal levels, particularly the rules and

deadlines relating to voter registration, early voting,

voting on election day, absentee voting, and how

voters can confirm their ballots were counted. When

the rules are unclear, the League has worked with

state Attorneys General and Secretaries of State to

clarify new or existing laws that impact voters and,

when necessary, litigated in state and federal courts

to ensure that voters have the clarity they need before

an election.

The League is dedicated to ensuring that voters

have information that is straightforward and

comprehensive so that voting rules and procedures

are accessible and clear. The national League and

Leagues representing all 50 states and the District of

Columbia are participating as amici to underscore to

the Court how a decision in favor of petitioners in this

case would be a devastating disruption to the electoral

process on the ground, harming voters and election

workers alike.

SUMMARY OF ARGUMENT

Since the founding, state courts have played a

critical and unquestioned role applying the mandates

of their state constitutions to state election laws.

Today’s election law landscape—and our democratic

process as we know it—results from two centuries of

this system at work. The “independent state

legislature” theory (“ISLT”) proposes a radical

departure from this traditional framework, and

adopting it would throw election law and

administration into disarray.

A rule that state courts may not review state

legislative action bearing on federal elections would

immediately fracture state electoral systems. ISLT, if

it became doctrine, would not be confined to

redistricting plans, applicable to only particular

offices or legislative bodies. Most state election laws

and most state court rulings on election laws concern

all elections—federal, state, and local. Adopting

petitioners’ theory would open the door to the

retroactive abrogation of all state court rulings that

have invoked state constitutional grounds to strike

down state statutes—but only as to federal elections.

Simply discerning which rules apply in which

elections in this bifurcated scheme would become

complex. And even assuming voting rules could be

sorted into clear “state and local” and “federal”

buckets, the consequences would be burdensome,

chaotic, and confusing for election officials and voters

alike. Invalidating state court judgments to the

extent they apply in federal elections would make it

harder for officials and poll workers to administer our

elections and harder for voters to participate in them.

By destabilizing settled election rules and our

longstanding system for establishing them, ISLT

would also sow distrust in the democratic process. A

healthy democracy depends on trust in electoral

outcomes and on voters’ faith in the integrity and

fairness of our elections. 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.

ARGUMENT

STATE COURTS HAVE HISTORICALLY

SHAPED OUR DEMOCRATIC SYSTEM.

Today’s electoral system is the product of two

centuries of work. From our country’s beginnings,

state courts have played a critical role interpreting

state election laws and enforcing state constitutional

requirements in the election context. Their efforts

have strengthened our democracy: State courts have

protected and expanded the franchise; ensured the

integrity of our elections; and safeguarded the

democratic process when elected officials have tried to

insulate their positions of power. Petitioners ask the

Court to upend this 233-year-old feature of American

federalism.

“[O]ne of the happy incidents of the federal

system” is “that a single courageous state may, if its

citizens choose, serve as a laboratory; and try novel

social and economic experiments.” New State Ice Co.

v. Liebmann, 285 U.S. 262, 311 (1932). Those

experiments include the guarantees and restrictions

on legislative power that a state’s citizens enshrine in

their constitution. Petitioners’ theory asserts that

state legislatures operate unchecked by their own

state constitutions when it comes to regulating

federal elections. Petitioners ignore state courts’

pioneering role in matters of election law throughout

our country’s history.

A survey of American suffrage movements in the

nineteenth century reveals that many state courts

drove the development of democratic norms by

applying their state constitutions in rulings that

governed all elections. 2 For example, some state

2 See, e.g., Lynn Eisenberg, States as Laboratories for

Federal Reform: Case Studies in Felon Disenfranchisement Law,

15 N.Y.U. J. Legis. & Pub. Pol’y 539, 575–76 (2012)

(“Historically, the federalist system has been a crucial element

in expansion of the franchise, from the slow elimination of

courts began to dismantle racial disenfranchisement

well before the passage of the Reconstruction

Amendments. In 1842, the Ohio Supreme Court

explained that a “clearly settled” interpretation of the

state constitution granted some citizens of color the

right to vote. Jeffries v. Ankeny, 11 Ohio 372, 375

(1842); Anderson v. Millikin, 9 Ohio St. 568 (1859)

(same). In 1857, the Supreme Court of Maine declared

in response to a Senate inquiry that the state

constitution’s grant of suffrage to “every male citizen

of the United States” included Black Americans.

Opinion of Judge Appleton, 44 Me. 521 (1857). And in

1866, the Supreme Court of Wisconsin decided that

an 1849 ballot question had in fact extended the right

to vote to Black voters in compliance with the state

constitution’s requirements. Gillespie v. Palmer, 20

Wis. 544, 547 (1866).

Later on, state courts also struck down

discriminatory measures that treated naturalized

U.S. citizens differently from native-born U.S.

citizens. See, e.g., State ex rel. Williams v. Moorhead,

96 Neb. 559, 570–72 (1914) (holding that affidavit

confirming details of naturalization sufficed to rebut

challenge to citizenship); Attorney General v. City of

Detroit, 78 Mich. 545, 561–64 (1889) (striking down

documentary proof of citizenship requirement for

naturalized voters); see also Kineen v. Wells, 144

Mass. 497, 503 (1887) (holding that 30-day

moratorium on voter registration for naturalized

property requirements to the national attainment of women’s

suffrage. In both instances, national voting norms changed and

national laws were enacted to reflect experiments in local voting

norms.” (footnotes omitted)).

citizens violated state constitution’s equal protection

clause).

State courts have also always performed an

important function resolving state constitutional and

statutory interpretation questions about the

mechanics of registration, voting, and vote-counting.

As this Court has long recognized, state courts have

greater institutional competence and knowledge

when it comes to resolving disputes about state

election laws that do not raise federal questions. See

Jackson v. Ogilvie, 401 U.S. 904, 904 (1971) (Douglas,

J., concurring) (“[F]ederal courts are usually less able

than state courts to work their way through a maze of

state electoral laws. If federal courts take the laboring

oar in these so-called ‘emergency’ cases involving local

electoral laws, they must make quick decisions on

local law issues that are often tangled with matters of

local construction and administration.”).

To be sure, there have been instances when state

courts obstructed our democracy’s progress. See, e.g.,

Travia v. Lomenzo, 86 S. Ct. 7, 9 (1965) (collecting

cases in which state courts had failed to redress

malapportionment of districts); Dixon v. State, 74

Miss. 271, 277–80 (1896) (upholding Jim Crow

literacy and constitutional understanding tests).

Federal protections and courts have also been vital to

securing and defending access to the ballot. But state

courts have nevertheless played a crucial historical

role

shaping

this

country’s

electoral

infrastructure—a role they still play today.

ISLT threatens to upend the important check

state courts have exercised on state legislative power

and the vital, if at times uneven, role they have played

in fostering democratic progress in this country.

Eliminating this guardrail would profoundly

destabilize the nation’s electoral infrastructure at a

moment when it most needs to be reinforced.

II.

ISLT WOULD SOW CHAOS IN ELECTION

ADMINISTRATION

AND

CAUSE

WIDESPREAD VOTER CONFUSION.

Elections have to work for democracy to work.

States have a strong interest in “stability and

certainty” in administering election laws. Berger v.

N.C. State Conf. of the NAACP, 142 S. Ct. 2191, 2205

(2022). “Court orders affecting elections, especially

conflicting orders, can themselves result in voter

confusion and consequent incentive to remain away

from the polls.” Purcell v. Gonzalez, 549 U.S. 1, 4–5

(2006). ISLT would undermine these interests and

wreak havoc on the ground. Forcing states to

administer federal and state elections under

different—often conflicting—rules would burden

election officials, confuse voters, and instill mistrust

in the electoral system. At a time when six in ten

Americans of all political stripes “believe U.S.

democracy is ‘in crisis and at risk of failing,’” 3

imposing a system that is much more difficult to

administer and understand is not a risk our

democracy can afford.

Joel Rose & Liz Baker, 6 in 10 Americans Say U.S.

Democracy Is in Crisis as the ‘Big Lie’ Takes Root, NPR, Jan. 3,

2022,

https://www.npr.org/2022/01/03/1069764164/americandemocracy-poll-jan-6.

ISLT would bifurcate the rules for

federal and state elections.

Because the Elections Clause does not apply to

state and local elections, ISLT would block state

courts from issuing state constitutional rulings only

as to federal elections. That would, in turn, bifurcate

the development and enforcement of election rules. 4

Bifurcation of election rules would occur in two ways.

First, state courts would continue to review state

election statutes for compliance with state

constitutions, but their rulings would be given

prospective effect only in state and local elections. 5

Second, ISLT could retroactively abrogate prior state

court rulings invalidating state election laws, but only

as to federal elections.

The difficult questions that would immediately

emerge are clearer than their answers. State and local

election officials across the country would have to

identify which laws govern which elections. Where

long-enjoined laws remain on the books, there may be

confusion about whether those laws have been

revived as to federal elections by the retroactive

4 See Carolyn Shapiro, The Independent State Legislature

Theory, Federal Courts, and State Law, 90 U. Chi. L. Rev.

(forthcoming 2023) (draft manuscript at 55) (arguing that “ISLT

would hang, like the sword of Damocles, over settled state

election law”), https://bit.ly/3OMpuOP.

5 And of course, whatever the outcome of this case, state and

federal courts alike will continue to be able to enforce the U.S.

Constitution and federal statutes.

application of a decision adopting ISLT. 6 Election

officials and their counsel would have to conduct a

painstaking review of every state court decision that

has struck down an election law that, by its terms,

governs all elections, as well as any injunctions in

pending lawsuits that are not yet final. This process

would surely prompt waves of new litigation over the

scope of ISLT—lawsuits that would in turn raise new

questions of their own, including which courts could

hear them or decide particular issues.

While this litigation played out, states would need

to create new, dual-track election systems for fullballot voters and restricted-ballot voters who could

vote only in federal elections or only in state and local

elections. While some laws would apply to both sets of

voters, others would not. And as detailed below,

implementing this dual-track system would cause

thorny logistical problems, increase election

administration burdens and costs, and slow down

what can already be an inefficient process. Split

enforcement of voting rules would also pose an

unprecedented voter education challenge for the

League and similar organizations.

ISLT would impose overwhelming

administrative burdens on election

administrators and confuse voters.

The voting rules that ISLT would revive or

insulate would apply to federal primary, general, and

6 Even if the challenged statute had been formally repealed,

a state legislature that was so inclined could simply reenact it,

so long as it applied only to federal elections.

special elections, 7 but not to state and local elections.

This bifurcation of federal and state election rules

would inject chaos into every corner of election

administration.

Because many elections involve only state and

local races, certain voting laws would switch on and

off from election to election. A voter in Pennsylvania,

for example, would have to comply with a photo ID

law that was previously blocked by the state’s courts,

Applewhite v. Commonwealth, 2014 WL 184988, at

*18 (Pa. Commw. Ct. Jan. 17, 2014), to vote in this

year’s congressional races, but not in next year’s state

and local elections. The alternation of voting rules

would occur both from year to year and also within a

year. 8 In 2019, North Carolina held six elections, four

with federal races on the ballot and two without. 9

This constant alternation of election rules would

7 Special elections, used to fill vacancies in the U.S. House of

Representatives following a death or resignation, occur

frequently and are scheduled throughout the year. There have

been 30 over the last five years. See U.S. House of

Representatives, Vacancies & Successors, 1997 to Present,

https://history.house.gov/Institution/Vacancies-Successors/115/.

8 State and local election officials administer myriad

elections, some with federal, state, and local races on the same

ballot and others with only local races or a special federal

election. In 2020, Wisconsin held a primary election for state

supreme court and congressional races in February; a general

state supreme court election and the presidential primary in

April; a special congressional general election in May; and then

primary and general elections for federal and state offices in

August and November, respectively. Wis. Elections Comm’n,

Election Results Archive, https://elections.wi.gov/elections/

election-results/results-all#accordion-866.

9 N.C. State Bd. of Elections, Election Results Dashboard,

https://www.ncsbe.gov/results-data/election-results.

confuse poll workers and voters alike and invite

errors, such as enforcing a particular rule when it is

not actually in effect. It would also slow down voter

registration and the processing of absentee ballot

applications as well as in-person voter intake and vote

counting for already-overburdened state and local

election officials.

In elections with both state and federal races on

the ballot, election administrators would either need

to provide different ballots to different voters or count

certain voters’ ballots differently. This process would

be required for all balloting systems, including

electronic voting machines. Since ballots vary by

districts and precincts and accordingly include

different state and local races, officials opting to

provide state-and-local-only ballots would need to

double an already significant number of unique

ballots. Otherwise, officials would need to figure out a

way to exclude votes cast in federal elections by stateand-local-only voters—say, voters who appeared that

day without the ID required to vote in a federal

election, or voters who could validly register on the

same day for state and local elections but not for the

federal races. And the reverse would be necessary

where a state court has invalidated a same-day voter

registration law such that same-day registrants can

only vote in federal elections.

All of these paths would require a reconfiguration

of most states’ voting technology. Optical scan, directrecording electronic, and other voting and votetabulation machines would need to be reprogrammed

to accommodate both full ballots and restricted

federal-only or state-and-local-only ballots.

Aside from choosing between those options for

restricted voting, states would need to navigate

countless additional steps in the process. In states

with split enforcement of voter ID requirements,

administrators would have to furnish state-and-localonly voters without the necessary ID with a separate

provisional ballot for federal elections only. 10 For

states with split enforcement of same-day voter

registration laws, voters could register at polling

places for federal elections but not state and local

elections, see Albence v. Higgin, 2022 WL 5333790, at

*1 (Del. Oct. 7, 2022), or vice versa, see Mont.

Democratic Party v. Jacobsen, 2022 WL 4362513, at

*10–12 (Mont. Sept. 21, 2022). See infra at 19–21.

Election officials would need to develop systems for

recording different registration statuses and ensuring

that voters who registered on election day either

received restricted ballots or had their votes in certain

races excluded. Poll workers in Delaware would need

to explain to same-day registrants that they could not

vote for governor or school board in that election but

that they would be able to vote in state and local races

in the future; in Montana, poll workers would need to

explain the same regarding federal races. These

would be confusing messages to deliver or receive.

A parallel set of issues would arise for absentee

ballots. Where an absentee voter failed to comply with

certain technical requirements required for one set of

races but not the other, that ballot would either need

10 Voter ID laws typically permit voters without ID to cast a

provisional ballot that can be cured by presenting valid voter ID

and/or signing an affidavit at the local election office. See, e.g.,

25 Pa. Stat. Ann. §§ 3050(a.2)(1), 3050(a.4)(5).

to be partially counted via machine or “re-made” 11 by

hand so that only valid votes were counted.

Alternatively, state election officials could mail

restricted federal-only or state-and-local-only ballots

to certain absentee voters. This would likely require

them to distribute enough state-and-local-only ballots

to polling places so that absentee voters restricted to

federal-only ballots who subsequently showed up in

person to vote in state and local elections would be

able to exercise their right to do so.

Any approach to limiting state court rulings to

state and local contests would be burdensome, costly,

and confusing, and officials may lack the resources to

accommodate additional complexity. Researchers

have observed that “[i]n one-party dominant states,

passing election law changes is often much easier

than administering those laws effectively.” 12 This is

especially true where those changes “come in the form

of unfunded mandates,” i.e., where states “fail to

provide funds to administer the changes.” 13 There is

no guarantee that states would respond to bifurcation

of their voting rules with additional funding to

support accurate administration of the laws. A

bifurcated electoral system would undermine the

“strong public interest in smooth and effective

administration of the voting laws.” Summit Cnty.

11 Duplication or “re-making” of ballots is a process by which

election workers copy the votes from a defective ballot, e.g., one

that is damaged, to a new ballot so that it can be scanned

properly and counted.

12 Scot Schraufnagel, Michael J. Pomante II & Quan Li,

Cost of Voting in the American States: 2022, 21 Election L. J.

220, 226 (2022).

13 Id.

Democratic Cent. & Exec. Comm. v. Blackwell, 388

F.3d 547, 551 (6th Cir. 2004).

Because “running a statewide election is a

complicated endeavor” requiring “thousands of state

and local officials and volunteers [to] participate in a

massive coordinated effort,” it is imperative that “the

rules of the road … be clear and settled.” Democratic

Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28,

31 (2020) (Kavanaugh, J., concurring in denial of

application to vacate stay). Adopting ISLT would do

just the opposite: magnify complexity and the risk of

error in an already complex area; unsettle the law

where the need for stability is most critical; and

burden the people on the ground—officials,

volunteers, and voters—who election after election

make our democracy work. 14

ISLT

would

create

enforcement of voting laws.

split

Adopting petitioners’ theory would create chaos at

every stage of the voting process: eligibility,

registration, and voting itself, especially absentee

voting.

To vindicate the rights of voters under certain specific

federal statutes like the National Voter Registration Act, federal

courts occasionally must order relief that results in a bifurcation

of rules. Such remedies, however, are a far cry from a theory that

would cause widespread, permanent splits in the enforcement of

voting rules and the disruption of settled state court precedents

across the country.

Voter

Identification

Eligibility

and

As discussed, adopting ISLT would create two

tiers of voters in many states: those eligible to vote in

all elections, and those eligible to vote either only in

state and local elections or only in federal elections.

One way this would occur is through the

bifurcation of voter ID laws. The last decade has seen

a sharp rise in the enactment of voter photo ID

requirements—most of which apply only to in-person

voters—and a corresponding swell in litigation. 15 As

a result, a number of state courts have invalidated

voter ID laws on state constitutional grounds. In

2014, for example, the Pennsylvania Commonwealth

Court permanently enjoined a photo ID law under the

state constitution’s “free and equal” elections clause.

Applewhite, 2014 WL 184988, at *18; Pa. Const. art.

I, § 5 (“Elections shall be free and equal; and no power,

civil or military, shall at any time interfere to prevent

the free exercise of the right of suffrage.”). Though

voters have not had to show photo ID to vote in

Pennsylvania for the past eight years, this law has not

been repealed. 25 Pa. Stat. Ann. §§ 3050, 3146.2,

2602(z.5).

In North Carolina, after the Fourth Circuit struck

down the General Assembly’s first attempt at

enacting a photo ID law as intentionally racially

discriminatory, see N.C. State Conf. of NAACP v.

15 Nat’l Conf. of State Legislatures, Voter ID Laws,

https://www.ncsl.org/research/elections-and-campaigns/voterid.aspx.

McCrory, 831 F.3d 204, 215 (4th Cir. 2016), the

legislature enacted a new photo ID law with

modifications, 2017 N.C. Sess. Laws 2018-144 (S.B.

824) (Dec. 9, 2018). This time, North Carolina courts

enjoined the law. Holmes v. Moore, No. 18 CVS 15292

(Wake Cnty., N.C. Super. Ct. Sept. 17, 2021). 16

Additionally, a recent decision in Montana struck

down on state constitutional grounds a law that made

the state’s voter ID requirement more restrictive. See

Mont. Democratic Party, 2022 WL 4362513 (affirming

preliminary injunction); Mont. Democratic Party v.

Jacobsen, Consol. Case No. 21-0451 (Mont. 13th Dist.

Ct., Yellowstone Cnty., Sept. 30, 2022) (judgment

following bench trial); Mont. Code Ann. § 13-13-114,

as amended by 2021 Mont. Laws Ch. 254 (S.B. 169),

§ 2.

Finally, a state court in Arkansas struck down a

state statute that eliminated the identity affidavit

alternative to the state’s photo ID requirement.

League of Women Voters of Arkansas v. Thurston, No.

60CV-21-3138, slip op. at 76–79 (Pulaski Cnty. Cir.

Ct., 6th Judicial Dist., Mar. 24, 2022). If upheld on

appeal, this ruling on state constitutional grounds

would not cover federal elections under ISLT.

In all four of these states, adopting petitioners’

theory would mean that voter ID requirements would

be enforced in different ways for different elections.

16 This case has been appealed to the Supreme Court of

North Carolina, where oral argument was recently heard.

Docket Sheet, Holmes v. Moore, No. 342PA19-2 (N.C.),

https://appellate.nccourts.org/dockets.php?court=1&docket=12019-0342-002&pdf=1&a=0&dev=1.

Voters in these states would be sorted into two

classes, one with full access to elections and one with

only partial access. 17

Voter-eligibility rules may also be impacted should

ISLT

subsequently

extended

voter

qualifications. In recent years, state legislatures,

state courts, and voters have been rethinking rules

around felony disenfranchisement and rights

restoration. In Mixon v. Commonwealth, 759 A.2d 442

(Pa. Commw. Ct. 2000), aff’d, 783 A.2d 763 (Pa. 2001),

for example, the Commonwealth Court of

Pennsylvania reviewed a state law that precluded

people with felony convictions from voting for five

years after their release from incarceration if they

had not been registered to vote before they were

incarcerated. The court held that the law violated the

Pennsylvania Constitution. Id. at 452. Applying ISLT

17 Missouri courts have twice blocked voter ID laws in whole

or in part. In 2006, the Supreme Court of Missouri held that the

state’s photo ID law violated the Missouri Constitution’s

requirement that “all elections shall be free and open; and no

power, civil or military, shall at any time interfere to prevent the

free exercise of the right of suffrage.” Weinschenk v. State, 203

S.W.3d 201, 211 (Mo. 2006) (en banc) (quoting Mo. Const. art. I,

§ 25). In 2020, that court affirmed a permanent injunction, again

on state constitutional grounds, blocking a revised voter ID law’s

affidavit requirement for voters using alternative non-photo

forms of identification. Priorities USA v. State, 591 S.W.3d 448,

451–55 (Mo. 2020), reh’g denied (Jan. 30, 2020). Had ISLT been

in effect, the affidavit requirement would have remained in force

for federal elections, notwithstanding the state supreme court’s

decision. The General Assembly has enacted yet another photo

ID requirement (H.B. 1878 (Mo. 2022)), which is being

challenged in state court once again. Missouri NAACP v.

Missouri, No. 22AC-CC04439 (Cole Cnty. Cir. Ct. Oct. 12, 2022).

to Mixon would require election officials to determine

which people with felony convictions had been

registered pre-conviction and to restrict all others to

state-and-local-only ballots for five years. Forcing

election administrators to engage in such tasks is a

waste of time and resources.

Voter Registration

Adopting ISLT would also create chaos in the voter

registration process. Registration deadlines are set by

the states (with a maximum number of days in

advance of election day established by the National

Voter Registration Act of 1993 (“NVRA”), see 52

U.S.C. § 20507(a)). States may also opt—as

approximately half of them have—to allow voters to

State courts have taken different views of sameday voter registration laws. Just last month, the

Montana Supreme Court affirmed a preliminary

injunction blocking the repeal of the state’s

longstanding election-day registration law. Mont.

Democratic Party, 2022 WL 4362513, at *10–12.

Then, following a bench trial, the district court

entered final judgment. Mont. Democratic Party v.

Jacobsen, Consol. Case No. 21-0451 (Mont. 13th Dist.

Ct., Yellowstone Cnty., Sept. 30, 2022). In a mirror

image of Montana Democratic Party, the Delaware

Supreme Court recently enjoined the state’s same-day

18 Nat’l Conf. of State Legislatures, Same Day Voter

Registration,

https://www.ncsl.org/research/elections-andcampaigns/same-day-registration.aspx.

registration law on state constitutional grounds.

Albence, 2022 WL 5333790, at *1.

And in Maine, voters in 2011 used a people’s veto

(effectively a referendum) to restore a same-day

registration statute that the legislature had repealed

after four decades of use. Me. Pub. L. 2011, c. 399, § 3

(2011), repealed by Question 1: People’s Veto (Nov. 8,

2011). If ISLT called into question direct democracy

powers such as ballot initiatives and referenda—a

delegation of legislative authority to decision-makers

other than legislators—this repeal of a state law

would also be implicated. Cf. Ariz. State Legislature v.

Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 813–

24 (2015) (narrowly rejecting Elections Clause

challenge to voter-initiated state constitutional

amendment

reassigning

state

legislature’s

redistricting powers to independent commission).

Adopting ISLT could give Montana and Maine

voters the opportunity to same-day register in state

and local but not federal elections, and Delaware

voters the reverse. Administrators would need to

announce whether each upcoming election would

allow same-day registration—and if same-day

registration would allow voters to participate in some

races but not others.

Election officials would also have to establish new

rules for processing would-be voters who are already

registered in a particular state but need to update

their addresses when voting. Some states that do not

offer same-day registration for new voters do offer

already-registered voters who have moved within the

state the opportunity to update their addresses when

they vote. 19 In states with same-day registration,

these voters can update their addresses at their

polling place. But if that opportunity were limited to

state and local elections, these states would need to

create a new parallel process just for federal elections,

one that would likely require new paperwork and

technological fixes.

The enforcement of other voter-registration laws

could also be fractured by type of election. For

example, the New Hampshire Supreme Court

recently invalidated on state constitutional grounds a

state law requiring documentary evidence of domicile,

League of Women Voters of N.H. v. N.H. Sec’y of State,

174 N.H. 312, 381 (2021), though the law remains on

the books, N.H. Rev. Stat. § 654:7. ISLT would

bifurcate this ruling, resulting in different proof

requirements for federal elections and state and local

elections. Once again, poll workers would need to

administer two distinct rules that would dictate

which elections voters could participate in and what

kinds of ballots administrators would need to create.

Absentee Voting

Finally, ISLT would bifurcate rules concerning the

manner and mechanics of voting itself, most notably

absentee voting. Voters across the country rely on

absentee or mail-in voting to exercise their right to

vote when they cannot show up to the polls due to

travel, business, military service, sickness, disability,

19 Certain opportunities to make local updates are required

by the NVRA. See 52 U.S.C. § 20507(e)(2).

or in many states simply because they prefer it. 20

ISLT will disrupt these well-established routines by

partially abrogating state court orders relating to

absentee voting laws.

Just this month and weeks before the 2022

midterm elections, the Delaware Supreme Court

ruled that a law permitting voters to cast a mail-in

ballot without an excuse conflicted with the state’s

constitution. Albence, 2022 WL 5333790, at *1. Many

Delaware voters had already applied for no-excuse

absentee ballots, and the Department of Elections

had to send these voters a letter explaining that they

would need to vote in person or reapply for an

absentee ballot with a qualifying excuse. 21 Votereducation organizations like the League have been

left scrambling to ensure voters receive accurate

information about their options.

ISLT would create even more confusion around

absentee voting in Delaware and any similarly

situated state. 22 Voters could vote by mail in federal

elections without an excuse but would still need to

provide one of the six excuses listed in the state’s prior

20 Nat’l Conf. of State Legislatures, Voting Outside the

Polling Place: Absentee, All-Mail and Other Voting at Home

Options,

https://www.ncsl.org/research/elections-andcampaigns/absentee-and-early-voting.aspx.

21 Del. Dep’t of Elections, Vote by Mail Not Permitted

https://elections.delaware.gov/services/voter/votebymail/

(last

visited Oct. 13, 2022).

22 Pennsylvania legislators mounted a similar challenge to

their state’s no-excuse absentee voting law, but it was rejected

by the state supreme court. McLinko v. Dep’t of State, 279 A.3d

539, 579–80 (Pa. 2022).

vote-by-mail statute to vote in state and local

elections. See Higgin v. Albence, 2022 WL 4239590, at

*4 (Del. Ch. Sept. 14, 2022) (citing 82 Del. Laws ch.

245, § 1 (2020)), aff’d in relevant part, 2022 WL

5333790. 23 Failing that, voters would need to vote in

person or split their votes between the two methods,

causing serious administrative problems.

Other state courts have considered laws related to

third-party collection of mail-in ballots. The Montana

Supreme Court recently affirmed a preliminary

injunction of a state law that would have banned

individuals from receiving payment to collect and

deliver mail-in ballots for absentee voters. Mont.

Democratic Party, 2022 WL 4362513. If ISLT

reinstated this law as to federal elections, ballot

collection would effectively cease because Montana

lists federal, state, and local races on the same ballot

and paid collectors could not lawfully collect and

deliver a ballot with federal races on it. The more

restrictive rule would prevail, nullifying the state

court’s ostensible power to rule as to state and local

elections.

Signature-matching processes for absentee voting

have also been scrutinized by state courts. For

example, this year, an Arkansas court invalidated the

signature verification requirement for absentee

voters without compliant identification. League of

23 The nonprofit organization that represented the Higgin

plaintiffs, the Public Interest Legal Foundation, submitted an

amicus brief urging the Court to adopt ISLT in this case, Brief

of the Public Interest Legal Foundation as Amicus Curiae in

Support of Petitioners, but such a result would invalidate the

relief it secured as to federal elections.

Women Voters of Ark., slip op. at 79–81 . Under ISLT,

a state using a single ballot for federal and state

elections would need to offer voters a means to comply

with the verification requirement and cure a

perceived non-matching signature for their federal

votes to count.

Another contested aspect of absentee voting

concerns ballot return deadlines. During the 2020

election, as vastly larger numbers of voters opted to

cast their ballots by mail due to the pandemic, some

state courts extended mail-in ballot receipt and

processing timelines. See, e.g., Pa. Democratic Party

v. Boockvar, 238 A.3d 345, 362–72 (Pa. 2020)

(granting relief for claim that “strict enforcement of

[absentee ballot return] deadline, in light of the …

COVID-19 pandemic and alleged delays in mail

delivery by the USPS, [would] result in extensive

voter disenfranchisement in violation of the

Pennsylvania Constitution’s Free and Equal

Elections Clause”). This year, an Arkansas court

struck down a law that moved the deadline for inperson return of absentee ballots from the Monday to

the Friday before election day. League of Women

Voters of Ark., slip. op. at 81–83. ISLT would reverse

these changes as to federal elections, compelling

voters to return their ballots by the earlier deadline

for their federal votes to count. Local election officials

would need to identify and segregate ballots received

after the earlier deadline but before the judicially

extended deadline in Pennsylvania or preexisting

deadline in Arkansas and figure out a way to count

only the state and local votes on these ballots. This

would entail reprogramming certain tabulation

machines or re-making the ballots by hand, see supra

at 14 & n.11, adding further time and complexity to

the ballot tabulation and certification process.

Should ISLT be extended in a future case to ballot

initiatives concerning federal elections, see supra at

20, other vote-by-mail provisions would also be

implicated. This November, for example, Michigan

voters will decide whether to approve Proposal 2,

which would amend the state’s constitution to give

voters the rights to be placed on a permanent

absentee voting list and to use absentee ballot drop

boxes. 24 If voters approve Proposal 2 and this Court

adopts and later expands ISLT to reach it, Michigan

voters would be entitled to automatically receive

mail-in ballots and use drop boxes only for state and

local elections. Absentee voters might ultimately have

to apply for a full ballot in every election and avoid

drop boxes altogether, effectively nullifying

constitutional provisions that would have been duly

adopted under state law. In this way, ISLT, which

purports to vindicate state autonomy, would actually

work to undermine it.

Countless other mail-in voting logistics could be

snarled by the adoption of ISLT. To name just a few,

election administrators and voters might have to

navigate two different receipt and postmark

deadlines, two different secrecy sleeve procedures,

Mich.

Bureau

Elections,

Proposal

22-2,

https://www.michigan.gov/sos/-/media/Project/Websites/sos/

BSC-Announcements/Proposal/Proposal-22-2-Ballot-Language.

pdf (“A proposal to amend the state constitution to add

provisions regarding elections”).

and two different sets of requirements for a return

envelope’s voter and witness certifications. The

mechanics of absentee voting are already complex;

switching the rules on and off based on the type of

races in the election would make them infinitely more

difficult to administer.

III.

ISLT WOULD FURTHER ERODE VOTER

PARTICIPATION

AND

TRUST

AMERICAN DEMOCRACY.

ISLT would have a grave impact not just on

election administrators but also on voters and the

American democratic system. Research shows that

every additional barrier to voting acts as another

deterrent to voter participation. 25 Complexity is its

own barrier. For example, voters “initially decide

whether to vote based on just the increased search

costs imposed by changed polling places.” 26 The dual

election systems ISLT would create would require

voters to spend more time deciphering and following

separate voting rules for state and federal elections.

Some voters would need to vote in person in one set of

elections, when they could otherwise have voted by

mail. Other voters might need to make extra trips to

See Schraufnagel et al., supra n. 12, at 223; John H.

Aldrich, Rational Choice and Turnout, 37 Am. J. Pol. Sci. 246,

262 n.17 (1993) (noting that “even low costs may be an effective

barrier to voting for the poor”); Henry E. Brady & John E.

McNulty, Turning Out to Vote: The Costs of Finding and Getting

to the Polling Place, 105 Am. Pol. Sci. Rev. 115, 128 (2011) (“[T]he

substitution of absentee voting for a reduction in polling place

voting is greatest among people of middle age and older, whereas

younger people are more inclined to simply not vote at all.”).

26 Brady & McNulty, supra n. 26, at 126.

their local election office to correct a registration or

ballot defect they mistakenly overlooked because it

was required by only one set of election rules. These

sorts of barriers “create confusion … perplex voters

and possibly discourage voter turnout.” 27 They would

impact even the most seasoned voters but would

especially undermine participation by new voters.

In this way, the administrative confusion caused

by ISLT would undermine the goal of election officials

in every democracy: “giving citizens (including the

losing candidates and their supporters) confidence in

the fairness of the election.” Democratic Nat’l Comm.,

141 S. Ct. at 31. As this Court has acknowledged,

“public confidence in the integrity of the electoral

process has independent significance.” Crawford v.

Marion Cnty. Election Bd., 553 U.S. 181, 197 (2008).

This is true both because it “encourages citizen

participation in the democratic process,” id., and

because it strengthens public confidence in electoral

outcomes. This Court should avoid an extreme change

that would severely corrode voters’ trust in our

elections.

CONCLUSION

For the foregoing reasons, the Court should affirm

the decisions below.

27 Schraufnagel et al., supra n. 12, at 226.

Respectfully submitted,

Jon Sherman

Counsel of Record

Michelle Kanter Cohen

Cecilia Aguilera

Helen L. Brewer*

FAIR ELECTIONS CENTER

1825 K Street, NW

Suite 450

Washington, DC 20006

(202) 248-5346

jsherman@fairelections

center.org

* Admitted only in Colorado;

supervised by Jon Sherman,

a member of the D.C. Bar

October 26, 2022

Meaghan VerGow

Andrew R. Hellman

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20006

L. Nicole Allan

O’MELVENY & MYERS LLP

Two Embarcadero Center

28th Floor

San Francisco, CA 94111

Celina W. Stewart

Caren E. Short

LEAGUE OF WOMEN VOTERS

OF THE UNITED STATES

1233 20th Street, NW

Washington, DC 20036

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.