Critics including voting rights groups, election scholars and even some conservative judicial experts say it would undermine a more than 200-year-old tradition of checks and balances, consolidating authority over elections in the hands of partisan legislatures. Daniel Squadron, a former New York state senator who co-founded The States Project, which spent millions on electing Democrats in battleground statehouses, describes it as a “loaded gun pointed at the heart of our democracy.”
Arizona offers a case study for how far some state legislators want to go in taking control of elections if the Supreme Court rules in favor of the independent state legislature theory.
On a single day in March, Boyer banded with the chamber’s minority Democrats and one other Republican to vote down 12 of his own party’s bills aimed at upending elections administration. Many of the more than 100 proposed bills he calls “crazy” this legislative session probably would have become law next year had Democrat Katie Hobbs not beaten Republican Kari Lake in the governor’s race and seized the veto pen, Boyer cautioned in an interview with POLITICO in Phoenix.
“I was the one vote for many of them,” he said, referring to several tie breaking votes he cast.
In the state House, one bill that did not make it for a vote would have allowed the legislature to nullify an election or call a new one — the very nightmare scenario court experts have warned could be attempted in statehouses across the nation if the Supreme Court rules in favor of the independent state legislature theory.
Numerous conservative legal groups have lined up in support of the plaintiffs arguing before the Supreme Court on Wednesday, arguing in part that the dire warnings about threats to democracy are “overblown lamentations.” Concern among court scholars has centered on legislatures undermining access to voting and forcing unfair congressional and state legislative maps, though the threat of legislators who would attempt to use it to overturn a federal election looms.
Jason Snead, executive director of the Honest Elections Project, which filed an amicus brief in support of the plaintiffs, says the concerns are “hyperbolic by design.”
“It’s designed to conceal what the case is really about, which is a power grab in state courts,” said Snead, whose group has ties to Leonard Leo, the conservative Supreme Court activist who directed millions toward advocating for its current conservative majority. Snead said North Carolina law is unique in its deference to legislatures to draw maps. Bartlett Cleland, general counsel for the American Legislative Exchange Council, a nonprofit organization of conservative state lawmakers, also tried to play down the case, saying “this is not a case that would sprawl to whether changes can be made in election procedures.”
Still, the independent state legislature theory underpinned former President Donald Trump’s failed attempt to have states invalidate the 2020 election, and the lawyer who conceived that strategy, John Eastman, has filed an amicus brief on behalf of the The Claremont Institute making a similar case. While some of the election-related laws may have survived court challenges, giving legislatures sole authority over them would remove the ability of a state court to review them.
“What’s at stake here are truly the checks and balances our founders laced into the system,” said Neal Katyal, a former acting U.S. solicitor general under President Obama and partner at Hogan Lovells who will argue before the court on Wednesday.
In a recent call with reporters, Katyal emphasized the unfettered ability of statehouses to draw gerrymandered maps — which are frequently challenged and overturned in state courts — as the most immediate consequence of a ruling in favor of the plaintiffs. Already in Ohio, for instance, the GOP-led legislature has for most of this year been in open defiance of the state Supreme Court’s repeated orders to redraw congressional and state legislative maps it has deemed gerrymandered.
The second major threat is a flood of election administration laws that could cause chaos, and that threat is nationwide. This year Republicans in Colorado, Arizona, Missouri, New Hampshire, Washington and West Virginia introduced bills to ban ballot tabulators, which would cause significant delays in counting ballots. At the same time, politicians who deny the outcome of the 2020 election, including Trump, have loudly protested that counties that fail to count all ballots on Election Day are suspect.
In total, this year there were at least 175 bills introduced in dozens of states that would “interfere with election administration,” including requiring partisan audits, seizing power over election authority and imposing criminal penalties on election administrators, according to the nonpartisan States United Democracy Center. “These burdens will push election systems to the limit at the same time that election administration has become highly partisan and baseless claims of fraud are rampant,” the group said in a recent report.
The legislative push over the past year in Arizona is proof, according to Boyer and democracy watchdog groups, that if the Supreme Court removes the guardrails that state courts provide, partisan state legislatures could and would grab power in numerous unconstitutional ways including overturning elections. Arizona state Senate President Karen Fann, who helped steer the bills, and two spokeswomen for the Arizona State Senate Republican Caucus declined email requests for comment.
“My colleagues would like to take a lot of control over certain aspects of government that we’ve never historically had before,” Boyer told POLITICO in an interview from a charter school nestled beside a red rock mountain where he is decamping to teach Latin and history. In Arizona, Republicans even tried to take away a commission that regulates corporations and energy policy that’s been in the constitution since statehood in 1914, said Boyer.
“They haven’t thought through some of these things,” he said, warning the bills would have also created a tangle of contradictory statutes. “We’re just telling elections officials ‘we think we know better and we will better implement elections,’ when the reality is the counties have been doing it” for decades, said Boyer.
At 45 years old, Boyer is taking a “sabbatical” from public service after his term ends in early January. “I’m just tired. I just needed the break,” he said.
Among the bills Boyer’s helped block, one would have required an audit every two years of federal elections — a hugely expensive undertaking that would have drained funds from other areas of government oversight, according to Boyer — and publicly posting digital images of voters’ ballots he says could have created legal risks for election officials. It would have taken away legitimate audits of other necessary departments, such as schools or the Department of Corrections, for instance, said Boyer.
The Arizona state House member who proposed a bill to cancel an election, Shawnna Bolick, also ran for secretary of state. Her 2021 bill would have allowed a simple majority of lawmakers in both chambers to revoke the secretary of state’s certification of the winning slate of presidential electors.
“The legislature could either nullify it and call a new election or vote for who they think should be the winner based on whatever the legislature determines was the bad actions of that election,” said Boyer.
Another Arizona bill would have required Maricopa County Supervisor Bill Gates to, against Arizona law, surrender the 2020 general election ballots to state senators. “We were voting for, essentially, sending them to jail (for up to six months) for following the law,” which requires a judge’s order or an official recount for ballots to be surrendered, said Boyer.
The entire Maricopa county board of supervisors could have faced up to six months of jail time, he said. Nobody really knew where they would be jailed, he said. “Maybe it was our basement or with the county sheriff,” Boyer said. Boyer recalled a tense meeting with board supervisor Gates in which Gates said his daughter called asking when he was going to prison. “That’s when it started, where I became the one vote that wasn’t sticking with my party,” he said.
“You can’t make this up,” said Boyer.
Another would have required all of the state’s ballots be hand-counted by 9 pm on Election night. (It took six months for a group of “cyber ninjas” in 2020 to hand count two races.) Squadron said such bills would, in many cases, purposely create chaos and confusion that could be used as a pretext by “rightwing” state legislatures to intervene. “It’s all a justification for state legislatures to step in and choose the winner,” he said.
“Even if a handful of them passed, elections officials would not have known how to do their jobs,” said Boyer. “The ‘Stop the Steal’ crowd would have have ‘aha, they’re corrupt because we made sure they couldn’t do their jobs,’” said Boyer.
While Democrat Hobbs’ narrow election victory ensures the bills won’t survive for now, Boyer said his experience demonstrates why there is no world in which state legislatures dominated by either political party should given free reign over elections.
“We will no longer be able to govern ourselves. It will be contingent upon force and accident,” said Boyer, citing Founding Father Alexander Hamilton, who asserted that many governments over history have been ruled by force as opposed to “reflection and choice.”